NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Valley Hospital Medical Center, Inc. and
December 28, 2007
decision and order
By Members Liebman, Kirsanow
and Walsh
On May 23, 2007, Administrative Law Judge Lana H. Parke issued the attached decision. The Respondent filed exceptions and a supporting brief, the Charging Party and General Counsel filed answering briefs, and the Respondent filed a reply brief. The Charging Party also filed exceptions and a supporting brief, the Respondent filed an answering brief, and the Charging Party filed a reply brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions for the reasons set forth below and to adopt the judge’s recommended Order as modified.[1]
i. background
Employee Joan Wells, the
In September, the
On the same day, a story written by Wells appeared on a
website maintained by the
The level of care for patients at
This means that one person is watching the heart rhythms for the twenty-five critically ill patients in the Medical ICU plus about 44 other hospital patients, and the other technician is watching the heart rhythms of all remaining patients in the hospital.
What happens when the technician needs to take a break or go to the bathroom? It means that staff attending to critically ill patients must step away from their duties to help out—or that one person is responsible for monitoring the heart rhythms of every single patient in the hospital! Do you want to be one of one hundred sixty-nine people depending on one overworked Telemetry Technician?
On medical-surgical floors, nurses may have eight or more patients. An irregular heartbeat can develop quickly, and fast action is needed. This means that without the help of the technicians watching patients’ heart rhythms a patient could have a heart attack and possibly die.
UHS, the for-profit company that owns
Subsequently, as part of a management investigation into Wells’ statements, Risk Manager Antoinette Pretto interviewed Wells. Pretto asked Wells for specific dates, times, and names in connection with the incidents described in her statements. Wells told Pretto that her statements were “general statements” based on Wells’ personal experience. Wells also told Pretto that Pretto could get some of the information she sought by reviewing medication administration records, in which nurses note delays in giving patients their medications. With respect to telemetry technician understaffing, Wells told Pretto that she had seen instances of only two telemetry technicians on duty at a time.
Typically, in the MICU, where Wells worked, no more than two patients were assigned to each nurse. Upon reporting for work on October 7, several MICU nurses, including Wells, found three patients listed next to their names on the assignment board; one nurse, Tracy Canty, had four patients listed next to her name. After initially refusing to work, the nurses filed written protests and performed their assigned work. Ultimately, only one nurse was assigned three patients, and no nurses were assigned four patients.
After this incident, Human Resource Administrator Dana Thorne interviewed Wells, who told Thorne that the assignment board had listed four patients assigned to Canty. Later, Thorne notified Wells that she was being suspended pending an investigation into the September 13 publications and the October 7 incident.
On October 13, the Union distributed a flyer at the
Hospital, bearing the
After conducting its investigation, management decided that Wells’ September 13 statements were false and disparaging to the Respondent and that terminating Wells was appropriate. On October 20, Thorne again met with Wells. At that meeting, Wells acknowledged making the statements contained in the October 13 flyer. When asked what the basis was for her statements, Wells told Thorne that Canty initially had been assigned four patients on October 7. Wells acknowledged that Canty ultimately was not assigned four patients that day. Thorne concluded that Wells’ October 13 statements were false, added those statements to the grounds for termination, and terminated Wells.[3]
ii. judge’s
decision
Stating that she was applying Wright Line,[4] the judge concluded that the Respondent violated Section 8(a)(3) and (1) of the Act in discharging Wells. In reaching this conclusion, the judge determined that Wells’ statements were protected because, viewed in context, they were an extension of an ongoing labor dispute over staffing levels. The judge also found that the statements did not cause Wells to lose the protection of the Act, as the Respondent had not shown that the statements were disloyal or maliciously false, i.e., knowingly false or made with reckless disregard for their truth or falsity. In the latter regard, the judge found that Wells had based her statements on her own observations and what other employees had told her. In addition, the judge noted that Wells’ statement regarding patients lying in excrement was phrased in the conditional, i.e., that staffing shortages “could” result in such a situation.
iii.
respondent’s exceptions
The Respondent argues that Wells’ statements were not protected
because they raised only patient-care issues and did not mention a labor
dispute or attempt to elicit public support for the
iv. analysis
Section 7 of the Act provides, in pertinent part, that
“[e]mployees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection . . . .” The protection afforded by Section 7 extends
to employee efforts to improve terms and conditions of employment or otherwise
improve their lot as employees through channels outside the immediate employee-employer
relationship. See Eastex, Inc. v. NLRB, 437
In the health care field, patient welfare and working conditions are often inextricably intertwined. See id. In this connection, employees’ statements regarding patient care and/or staffing levels have been found protected where it was clear from the context of the statements that they related to a labor dispute and/or employees’ terms and conditions of employment. See, e.g., Brockton Hospital, 333 NLRB 1367, 1374–1375 (2001) (distribution to nurse employees of articles addressing adverse effect on patients of downsizing and restructuring nursing staff, and of using nonprofessional employees to perform nursing duties, protected), enfd. in relevant part 294 F.3d 100 (D.C. Cir. 2002), cert. denied 537 U.S. 1105 (2003); Misericordia Hospital Medical Center, 246 NLRB 351, 356 (1979) (participation in preparing report concerning staffing levels at hospital and number of patients to be cared for by staff, protected), enfd. 623 F.2d 808 (2d Cir. 1980).[6] Even where employees’ communications are “primarily concerned with the effect of . . . staffing on patient care, that is not inconsistent with finding that” the communications also related to a “labor dispute.” Holy Rosary Hospital, supra at 1210.
But finding that employees’ communications are related to a labor dispute or terms and conditions of employment does not end the inquiry. Otherwise-protected communications with third parties may be “so disloyal, reckless, or maliciously untrue [as] to lose the Act’s protection.” Emarco, Inc., 284 NLRB 832, 833 (1987); accord Mountain Shadows Golf Resort, 330 NLRB 1238, 1240 (2000).
Statements have been found to be unprotected as disloyal
where they are made “at a critical time in the initiation of the company’s” business
and where they constitute “a sharp, public, disparaging attack upon the quality
of the company’s product and its business policies, in a manner reasonably
calculated to harm the company’s reputation and reduce its income.” NLRB v.
IBEW Local 1229 (
Statements are also unprotected if they are maliciously
untrue, i.e., if they are made with knowledge of their falsity or with reckless
disregard for their truth or falsity.
See, e.g., TNT Logistics North America,
Inc., 347 NLRB No. 55, slip op. at 2 (2006). The mere fact that statements are false, misleading
or inaccurate is insufficient to demonstrate that they are maliciously
untrue. See, e.g., Sprint/United Management Co., 339 NLRB 1012, 1018 (2003). Where an employee relays in good faith what
he or she has been told by another employee, reasonably believing the report to
be true, the fact that the report may have been inaccurate does not remove the
relayed remark from the protection of the Act.
See KBO, Inc., 315 NLRB 570,
571 (1994), enfd. mem. 96 F.3d 1448 (6th Cir. 1996). In addition, in the context of an identified,
emotional labor dispute, the fact that an employee’s statements are hyperbolic
or reflect bias does not render such statements unprotected. See Emarco,
above at 834.
We now apply these standards to Wells’ statements.
A. September 13 Newspaper Statements
Wells’ statements were made at a union press conference
that occurred while the parties were in the process of negotiating over
staffing levels. Wells expressly tied
her comments to the effect of nurse-to-patient ratios on nurses’ ability to do
their jobs, stating that as a result of understaffing, “[y]ou don’t get
medications to patients on time. They
could be lying in their own excrement for who knows how long. You can’t even do the basic things you want
to do.” The fact that these comments
expressed concern over patient care does not mean that they were unrelated to
the ongoing labor dispute over staffing ratios.
We further find that the statements were not disloyal, and
therefore unprotected, under Jefferson
Standard. There is no evidence that
they were made “at a critical time in the initiation of” the hospital’s
business. Jefferson Standard, 346
Neither were Wells’ statements maliciously false. The judge found that Wells based these statements on her own experiences and the experiences of other nurses as related to Wells. With respect to the “excrement” comment, the judge found that this was stated in the conditional, not in the affirmative. In sum, there is no basis for finding that Wells’ statements reported in the September 13 newspaper article were knowingly false or made with reckless disregard for their truth or falsity.
B.
September 13 Website Statements
Much of Wells’ September 13 website article focused on
patient care and on telemetry technicians, who concededly are not part of the
nurses’ bargaining unit. Critically,
however, her comments expressly discussed the impact of telemetry technician
staffing levels on nurses’ terms and conditions of employment. For example, she stated that, as a result of
cuts in telemetry technician staffing, when a technician “needs to take a break
or go to the bathroom,” nurses “attending
to critically ill patients must step away from their duties to help out . .
.” (emphasis added). She also
stated: “On medical-surgical floors,
nurses may have eight or more patients.
An irregular heartbeat can develop quickly, and fast action is
needed. This means that without the help
of the technicians watching patients’ heart rhythms a patient could have a
heart attack and possibly die.” In other
words, too few telemetry technicians affect the nurses’ ability to perform their jobs. In addition, Wells directly referred to the
dispute with management over staffing levels:
“UHS, the for-profit company that owns
We also find that the statements were neither disloyal nor maliciously false. Like Wells’ statements in the newspaper article, these statements were intended not to disparage or harm the Respondent but to pressure the Respondent to increase staffing and thereby improve nurses’ working conditions. And Wells based her assertions of staffing cuts on her own observations as well as on conversations with the telemetry technicians and the person who was in charge of scheduling them.
C. Wells’ October 13 Statements
In the October 13 flyer, Wells was quoted as stating that
she had been suspended for “standing up, with my co-workers, to management’s doubling
of the patient load in ICU[,]” which referred to the MICU nurses’ concerted
protest over being assigned three and (in one case) four patients. The flyer displayed the
We also find that the statements were not disloyal. Again, Wells’ statements were intended not to injure the Respondent’s business, but to pressure the Respondent to improve nurses’ working conditions by providing sufficient staffing to enable the nurses to carry out their duties effectively.
We further find that the statements were not maliciously false. The judge found that, at least temporarily, four patients were assigned to nurse Canty on October 7. Arguably, Wells’ statements regarding “doubling of the patient load in ICU” and “[e]xpanding intensive care patient loads to 3 and even 4 patients” were hyperbolic insofar as they did not reflect the temporary nature of the situation, as only one nurse ended up with three patients that day and none ended up with four. However, as discussed previously, the mere fact that statements made in the context of an emotional labor dispute are hyperbolic does not remove them from the protection of the Act. See Emarco, 284 NLRB at 834.[8]
The Respondent argues that, rather than making her statements
publicly, Wells should have complained to the Respondent internally regarding
the negative effects that staffing levels were having on patient care. However, so long as protected concerted
activity is not unlawful, violent, in breach of contract, or disloyal,
employees engaged in such activity generally do not lose the protection of the
Act simply because their activity contravenes an employer’s rule or
policies. See CWA Local 9509, 303 NLRB 264, 272 (1991). Specifically, an employer may not interfere
with an employee’s right to engage in Section 7 activity by requiring that the
employee take all work-related concerns through a specific internal process.
For the foregoing reasons, we find that all of the statements that undisputedly motivated Wells’ discharge were protected under the Act. Accordingly, we affirm the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Wells.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the
Respondent, Valley Hospital Medical Center, Inc.,
1. Substitute the following for paragraph 2(c):
“(c) Within 14 days from the date of this Order, remove from its files any reference to Joan Wells’ unlawful discharge, and within 3 days thereafter notify her in writing that this has been done and that the discharge will not be used against her in any way.”
2. Substitute the attached notice for that of the administrative law judge.
Dated,
Wilma
B. Liebman, Member
Peter
N. Kirsanow,
Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not discharge any of our employees because they engage in union or other protected concerted activities.
We will not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights set forth above.
We will, within 14 days from the date of the Board’s Order, offer Joan Wells full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
We will make Joan Wells whole for any loss of earnings and other benefits suffered as a result of the discrimination against her, less any net interim earnings, plus interest.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to Joan Wells’ discharge, and we will, within 3 days thereafter, notify her in writing that this has been done and that her discharge will not be used against her in any way.
Valley Hospital Medical Center, Inc.
Joel Schochet, Atty., for the General Counsel.
Raymond J. Carey, Atty. (Foley & Lardner
LLP), of
Glen Rothner Atty. (Rothner, Segall &
Greenstone), of
Daniel Bush, Atty., of
DECISION
i. statement
of the case
Lana
H. Parke, Administrative Law
Judge. This matter was tried in Las
Vegas, Nevada on March 27 through 28, 20071
upon order consolidating cases, consolidated complaint and notice of hearing (the
complaint) issued January 31, 2007 by the Regional Director of Region 28 of the
National Labor Relations Board (the Board) based upon charges filed by Nevada
Service Employees Union, Local 1107, affiliated with Service Employees International
Union, (the Union or the Charging Party), alleging that Valley Hospital Medical
Center, Inc. (Respondent) violated Sections 8(a)(1) and (3) of the National
Labor Relations Act (the Act). On March
27, 2007, the Regional Director approved the withdrawal of all charges except
for allegations relating to the discharge of Joan Wells, as addressed in the
unfair labor practice charge 28–CA–21047.2
The Respondent essentially denied all allegations of unlawful conduct.
ii. issue
Did the Respondent violate Section 8(a)(1) and (3) of the Act by discharging employee Joan Wells on October 20, 2006?
iii.
jurisdiction
The Respondent, a
iv. findings
of fact
Since the Union’s 1999 certification as the
collective-bargaining representative of the Respondent’s registered nurses
(RNs), the
At all relevant
times, the Respondent had in effect a Healthcare Peer Review (HPR) reporting
procedure that provided a system for employees to report patient/visitor
incidents inconsistent with the “routine care of a patient and/or the desired
operations of the facility [and which] requires or could have required (near
miss/potential) unexpected medical intervention, unexpected intensity of care,
or causes or had the potential of cause an unexpected health care
impairment.” Each HPR report was
reviewed by a risk manager for referral to appropriate hospital personnel.
The Respondent’s
code-of-conduct policy, in effect at all relevant times, stated, in pertinent
part:
ii. purpose
To establish guidelines for employee communication that will portray a positive professional image of staff to clients and the community as well as promote a safe, efficient and harmonious work environment that is conducive to quality customer interactions.
III.. POLICY
When acting on behalf of or representing VHS in any capacity, employees will conduct themselves in a manner which promotes a positive image to patients, visitors, physicians, and other staff members, which is in line with the VHS philosophy.
The Respondent’s Standards of Conduct, in effect at all relevant times, cautioned: “Conduct that . . . brings discredit on the Hospital . . . will not be tolerated.”
During 2006 in the exercise of her chief steward/executive
vice president duties, Wells engaged in the following union-related activities:
attended negotiating sessions that Dana Thorne (Thorne), HR administrator, also
attended; accompanied another employee to a fact-finding discussion with
Thorne; and headed a group of RNs in a
visit to the Respondent’s human resources (HR) office to discuss nurse orientation
issues. Following the visit, by letter
dated June 27, Thorne, wrote to Wells, in pertinent part:
This letter is in response to your visit to Human Resources on Monday, June 26 regarding SEIU presentations during nurse orientation.
The RNs representing the SEIU made a negative impression on everyone in the Human Resources office as they interrupted employees and visitors . . . .
Finally, in response to your note regarding the monthly employee reports, both May and June reports have been sent to the SEIU . . . . 5
On September 13
the Las Vegas Review Journal (LVRJ), a local newspaper, ran an article entitled
“Hospital nurse-to-patient ratio rated,” in which it was reported that the
You don’t get medications to patients on time. They
(patients) could be lying in their own excrement for who knows how long. You can’t even do the basic things you want
to do.
According to
Wells, her criticism was based on the reports of other nurses made during 2006
negotiation caucuses and on her own experience.
Wells testified that during one caucus a floor nurse, whose name she
could not recall, said she was unable to get medications to patients on time
because of staffing issues. At the
hearing, Wells detailed her experiences as follows:
When you have a
[patient who keeps you very busy . . . you don’t get back to your other patient
in time sometime . . . to give meds that are timed—they are timed for specific
times of the day. So you might be late
giving them which is why you don’t get them on time . . . If . . . you have one
patient that is taking all your time, you don’t get to [give basic care, e.g.,
make sure patients are clean, dry, hydrated, turned, free from pain].6
On September 13,
the same date the LVRJ article was published, a story (web story) by Wells
appeared on the “Share Your Story” page of the “Quality Care
The level of care for patients at
This means that one person is watching the heart rhythms for the twenty-five critically ill patients in the Medical ICU plus about 44 other hospital patients, and the other technician is watching the heart rhythms of all remaining patients in the hospital Do you want to be one of one hundred sixty-nine people depending on one overworked Telemetry Technician?
On medical-surgical floors, nurses may have eight or more patients. An irregular heartbeat can develop quickly, and fast action is needed. This means that that without the help of technicians watching patients’ heart rythms a patient could have a heart attack and possibly die.
UHS, the for-profit
company that owns
Wells based her
assertion of reduced telemetry technician staffing on conversations with Virginia Hinkle, a telemetry technician
scheduler who expressed concern that only two telemetry technicians worked on
many shifts, and on her having seen
only two telemetry technicians at work rather than the customary four. Although
Wells could not specify when she had observed reduced telemetry technician
staffing, it “seemed quite often” to her: “one week it might happen once or
twice and then maybe it wouldn’t happen for another week.” 7
After publication
of the LVRJ news article and the web story (the September 13 publications),
Thorne and Michelle Nichols (Nichols), chief nurse officer discussed their
content and thereafter directed Antoinette Pretto (Pretto), risk manager,8 to investigate Wells’ allegations that
patients could be lying in excrement, not getting medications on time, and
insufficiently monitored by telemetry technicians. In early October, after some scheduling
delays,9 Pretto interviewed Wells with Cheryl Bunch
(Bunch), union representative, also present.
Pretto asked Wells for dates, times, and names underlying the content of
the September 13 publications. Wells
said her statements were “general statements” but that she had personal
experience. When Pretto again asked for
specific supporting information, Wells said, “No comment,” as she feared discipline
for herself and other nurses who, like her, had been unable to give medications
on time. Wells testified that she also
told Pretto she could look on medication administration records (MAR), where
nurses were required to enter medication delays.10
Pretto asked for specific information relating to patients lying in excrement. Wells told Pretto that her comment in that
regard had also been a “general statement.”11
With regard to telemetry technician understaffing, Wells gave Pretto no
specifics beyond saying that she had seen instances of only two telemetry technicians
working.12
On October 4,
Pretto provided Thorne with a summary of her interview with Wells, stating
essentially that Wells had failed to provide specific examples or information
regarding untimely administration of medication, patients lying in excrement,
or reduction in telemetry staffing. The summary quoted Wells as saying she did
not “keep notes everyday when [she] worked” and that her publicized comments
were “general statements based on working in ICUs during [her] career.” Pretto told Thorne that inasmuch as Wells
could not substantiate her assertions, she believed the publicized statements
were false.
Normally, the Respondent assigned only two MICU patients to an RN per shift.13 On October 7, an RN scheduled for the 7:30 MICU shift called in sick. To cover for her absence, the MICU charge nurse revised the assignment schedule. At about 7 a.m. when scheduled RNs, including Wells, reported for their 7:30 a.m. shifts, the dry-erase assignment board showed more than two patients assigned to some of the RNs.14 After discussion among the reporting nurses, all MICU day shift nurses except one refused to accept assignments, i.e. “take report”15 until more nursing coverage was obtained. By telephone Wells informed the shift supervisor and Karen Pels Jaminez (Jaminez), the appropriate union representative, that the MICU day-shift nurses would not take report until more staff was found. About 5 to 10 minutes later, Jaminez telephoned Wells and told her that if the nurses did not take report, they could be fired for insubordination, which caution Wells reported to the nurses. Thereafter, the Respondent having arranged for additional nursing coverage, the scheduled nurses filed individual assignment Despite Objection (ADO) forms16 with the MICU charge nurse and took report. Only one RN took report on more than two patients for the full shift, accepting report for three.
On Saturday, October 7, following the refusal-to-take-report incident in MICU (the
October 7 incident), Judith
Eaton (Eaton), MICU day-shift charge nurse, told Canty that Wells was taking the union thing too far. Canty also heard Mark Trowbridge (Trowbridge), MICU night-shift charge nurse, say
that Wells needed to be
quiet. When Thorne and Nichols, shortly thereafter, commenced
an investigation, both Trowbridge and Eaton informed Thorne they believed Wells
was the ringleader of the nurses who declined to take report.17
On the following Monday, Nichols told Canty that she had heard Wells had
“corralled” the other RNs and “coached” their actions, which Canty denied.
On October 12,
Thorne conducted a telephone fact-gathering interview with Wells in which Bunch
participated. In the course of the
interview, Wells told Thorne that on October 7, the assignment board in MICU
had shown four patients assigned to Canty.
Following the interview, Thorne notified Wells that she was suspended
pending investigation of the September 13 publications and the October 7 incident.
At the end of the
week following the October 7 incident,. Canty overheard Trowbridge gloating, “I
got her; I got her; I got her.” On
another occasion, Canty overheard Eaton and Trowbridge discussing the
possibility of a strike at the hospital and heard Trowbridge say, “I don’t have
to listen to her mouth no more.” Canty assumed
Trowbridge referred to Wells.
On October 13, the
Union distributed a flier at the hospital bearing the
I was suspended yesterday for standing up, with my co-workers, to management’s doubling of the patient load in ICU. Expanding intensive care patient loads to 3 and even 4 patients is simply unsafe, unacceptable and needlessly endangers patients. Now more than ever, we have to stand together for our patients.
Thorne considered Wells’ October 13 statement to convey false information on two counts: (1) that the Respondent had doubled the patient load in MICU from two patients per nurse to four, and (2) that Wells’ suspension was disciplinary rather than investigatory. Thorne, Nichols, and Greg Boyer, the Respondent’s CEO, discussed Wells’ September 13 publications and her statement in the October 13 flier, asking what the Respondent would do if Wells were a “regular” employee of the hospital.19 Concluding that a regular employee would be terminated for making false and disparaging statements about the hospital, they decided that Wells’ union activity should not protect her from the consequences of her conduct and that she should be terminated. The Respondent made no decision to discipline any RN for participation in the October 7 incident.20 Thereafter, Thorne prepared a written Employee Counseling/Corrective Discipline Notice (termination document) for Wells on which the September 13 publications were listed as offenses.
On October 20,
Thorne met with Wells. Sue Lewark
(Lewark), director of nursing operations, and Bunch were also present. Thorne intended to terminate Wells absent an
ameliorative presentation by Wells and/or Bunch. In response to questioning by Thorne, Wells
acknowledged that she had made the statement attributed to her in the October
13 flier. Thorne asked Wells which nurse
had been assigned four patients, and Wells named Canty but admitted that Canty
had not, in fact, cared for four patients.
Thorne asked Wells and Bunch to step out of her office. Believing that Wells had admitted to making a
false statement in the October 13 flier, Thorne added that offense to Wells’
termination document, and she and Lewark signed it. When Wells and Bunch returned to Thorne’s
office, Thorne gave Wells the termination document, which cited Wells for
policy violations including “Falsification,” with the following explanation:
Joan Wells made statements published in the newspaper, a web site, and a flyer which she has admitted she had no factual basis to support (see attached).21 These statements discredited the hospital and were intended to harm the hospital and/or undermine patient confidence in the hospital.
Upon receiving the
termination document, Wells wrote, “All statements made were based on fact,
therefore true” in the Employee Statement section and signed it. No further discussion occurred.
A. Positions of the Parties
The General Counsel contends that the Respondent discharged
Wells because of her activities on behalf of the
For its part, the Respondent contends that it bore Wells no animus for
either her position with or her protected activities on behalf of the
B. The Discharge of Wells
Counsel for the General Counsel argues that the Respondent
had a disguised motive in terminating Wells, i.e. to silence a vocal union leader
irrespective of the September 13 publications and the October 13 flier. Under the Board’s analytical framework for deciding
cases turning on employer motivation,23
the General Counsel meets his evidentiary burden by showing that an employee’s
protected conduct was a motivating factor in the employer’s decision to take
adverse action against the employee. The
elements of discriminatory motivation are union or protected activity by the
employee, employer knowledge of the activity, and employer animus. St. George Warehouse, Inc., 349 NLRB No.
84, fn. 28 (2007);
In determining whether the General Counsel has met his evidentiary burden, Ms. Wells’ union or concerted activity must be considered in two parts: (1) her activity as a chief union steward/executive vice president separate from her statements and (2) her three commentaries relating to the Respondent: the September 13 publications and the October 13 flier.
As to Wells’ involvement in union leadership activities,
e.g. participating in grievance processing, addressing collective-bargaining
concerns to management, and participating on the negotiating committee, her
activities were indisputably protected.24 Moreover, in spite of the Respondent’s denial
that its managers/supervisors knew of her specific positions with the Union, it
is clear, as noted earlier, the Respondent was aware Wells was not a “regular”
employee, that she held some union leadership position, and that she
energetically supported the
The General Counsel’s proof as to the third element—employer animus—is less unambiguous. Counsel for the General Counsel and Counsel for the Charging Party argue that the following facts demonstrate the Respondent’s animus toward Wells’ union activities: (1) following Wells’ suspension, Trowbridge was overheard saying, “I got her” and (2) the Respondent unwarrantedly identified Wells as the “ringleader” of and treated her differently from all other RNs involved in the October 7 incident.25
Reasonable minds might suspect Trowbridge referred to
Wells when he boasted he had “got her,” but suspicion is no substitute for
evidence, see Caribe Ford, 348 NLRB
No. 74 (2006).
Moreover, no basis exists for concluding that union animus rather than
personal antagonism prompted his satisfaction.
The statement does not, therefore, demonstrate animus. However, the Respondent’s identification of
Wells as the ringleader of the October 7 incident does. From their respective contemporaneous
statements to other employees that Wells needed to be quiet and that she was
taking the union thing too far, it is apparent that Trowbridge and Eaton had
Wells’ union partisanship in mind when they singled her out as instigator. The Respondent presented no evidence to
support the two supervisors’ conclusions, and Eaton’s purported substantiation, i.e. that Wells had
filled out all of the October 7 ADOs, was demonstrably erroneous. The Respondent also presented no evidence
that any participating RN named Wells as initiator or facilitator of the
refusals to take report. Indeed, Canty
specifically denied to Nichols, the Respondent’s investigating manager, that
Wells had “corralled” or “coached” the RNs.
The Respondent considered the RNs’ October 7 refusal to take report to
be misconduct, and although unable to provide proof of a reasonable or
good-faith belief that Wells had catalyzed the misconduct, the Respondent
nonetheless blamed her for it.
Ascribing responsibility for misconduct in the absence
of a reasonable belief that an employee has engaged in misconduct evidences
animus. See McKesson
Drug Co., 337 NLRB 935, 936 fn. 7 (2002) (Respondent “must
show that it had a reasonable belief that the employee[s] committed the
offense, and that it acted on that belief when it discharged [them].”); Midnight Rose Hotel &
Casino, Inc., 343 NRB 1003, 1005 (2004) (employer must
establish, at a minimum, that it had reasonable belief of employee misconduct);
GHR Energy, 249 NLRB 1011, 1012–1013 (1989) (demonstrating
reasonable, good-faith belief that employees had engaged in misconduct
sufficient). Based on the
evidence of record, the Respondent had no reasonable or good faith basis for
concluding that Wells had led the October 7 refusals to take report except for
her prominence in union activity. These
circumstances support an inference that the Respondent bore animus toward
Wells’ for her union activities and that such animus was a motivating factor in
the Respondent’s decision to discharge her.26 Wright
Line, supra at 1089.
Having proven the three elements of discriminatory motivation, the
General Counsel has met his initial burden.
Such a finding does not mean that Wells’ discharge was in fact “unlawfully motivated.” Id. As the Board has noted, “The existence of protected
activity, employer knowledge of the same, and animus . . . may not, standing
alone, provide the causal nexus sufficient to conclude that the protected
activity was a motivating factor for the adverse employment action.” Shearer’s
Foods, Inc., 340 NLRB 1093 fn. 4 (2003); see also American Gardens
Management
The Respondent contends that irrespective of Wells’ protected union activity, she would have been discharged for publicly disparaging the quality of the Respondent’s patient care. In this regard, the threshold question to be resolved is whether Wells’ statements at issue herein were protected under the Act.
Employees do not lose Section 7 protection by communications to third
parties that are (1) related to an ongoing labor dispute, NLRB v. Local 1229 ( Jefferson Standard), 346 U.S. 464 (1953), and (2) not “so
disloyal, reckless, or maliciously untrue to lose the Act’s protection.” Emarco, Inc.,
284 NLRB 832, 833 (1987) citing Jefferson
Standard.28 The Act protects employees seeking “to
improve terms and conditions of employment or otherwise improve their lot as
employees through channels outside the immediate employee-employer relationship.”
Five Star Transportation, Inc., 349
NLRB No. 8, slip op. at 3 (2007), quoting Eastex v. NLRB, 437
The Respondent initially argues that Wells’ statements, made through
channels outside the immediate employee-employer relationship, were unprotected
because they did not pertain to wages or working conditions. Respectively, Wells’ September 13 statements
were reported to a local newspaper and published as a web story on the publicly
available union website; her October 13 statement was disseminated by flier to
employees and union representatives.29 All of Wells’ statements related to the
Respondent’s RN and telemetry technician staffing levels. Staffing ratios were of significant interest
to the RN bargaining unit and a primary topic of contemporaneous collective bargaining
in which Wells was involved as a union officer.
Wells’ LVRJ statement was in the context of a news article about the
collective-bargaining controversy between the
The Respondent next argues that Wells’ statements were unprotected because they were false, defamatory, disloyal, and publicly discreditable to the hospital. In assessing whether employee communications have lost the Act’s protection, the Board considers whether “the attitude of the employee is flagrantly disloyal, wholly incommensurate with any grievances which they might have, and manifested by public disparagement of the employer’s product or undermining of its reputation . . . .”31 or whether employee communications are maliciously false, i.e. statements made with knowledge of their falsity or with reckless disregard for their truth or falsity. TNT Logistics North America, Inc., 347 NLRB No. 55