Beckley Appalachian Regional Hospital

National Labor Relations Board - Board Decisions

Aug 31, 1995

318 N.L.R.B. 907 (N.L.R.B. 1995)

907
318 NLRB No. 65
BECKLEY APPALACHIAN REGIONAL HOSPITAL
1 All subsequent dates are in 1993 unless otherwise indicated.
2 The suspension letter dated March 8 informed Kongkasuwan that
she was:
suspended for three (3) work days and subject to discharge in
accordance with Article XIV, Employee Discipline, Section A,
for violation of hospital procedures, practices, and instructions.
Due to the severity of these violations, severe disciplinary action
is required. Therefore, the progressive discipline steps are being
bypassed.
3 Nasby testified that Kongkasuwan explained at the disciplinary
hearing that other nurses had supplied her with the documents.
4 The employee handbook states in relevant part:
All employees are involved in the care of patients at your hos-
pital. By your nearness to patients and their records, you may
have access to information about these patients. Information
about an individual or the health status of an individual in your
hospital must be kept absolutely confidential. Request for infor-
mation from outside sources should be channeled to the proper
authorities in your hospital. Do not discuss patients with persons
outside or inside the hospital except in meeting the needs of the
patients. Also, do not discuss private information with the pa-
tients themselves.
5 The Hospital’s confidentiality policy specifically states that pa-
tient information is not to be disclosed to persons either outside or
inside the Hospital except when meeting patient needs.
Beckley Appalachian Regional Hospital and Carol
Kongkasuwan. Case 9–CA–31051
August 31, 1995
DECISION AND ORDER
MEMBERS BROWNING, COHEN, AND TRUESDALE
On August 19, 1994, Administrative Law Judge
Karl H. Buschmann issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed an answering brief. The Re-
spondent 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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent violated Sec-
tion 8(a)(1) by suspending and discharging registered
nurse Carol Kongkasuwan for engaging in protected
concerted activity. As explained below, we disagree
and dismiss the complaint.
The facts as more fully set forth by the judge are
as follows. Carol Kongkasuwan is a registered nurse at
the Behavioral Science Center (BSC) at Beckley Appa-
lachian Regional Hospital (Hospital). The Hospital’s
registered nurses are represented by the West Virginia
Nurses Association.
On March 3, 1993,1 Kongkasuwan was involved in
an incident regarding a defective intravenous (IV) pro-
cedure. The Hospital Personnel Manager, Edna Nasby,
investigated this incident and scheduled an initial dis-
ciplinary hearing for March 5. At this hearing, several
other work-related incidents were discussed, including
Kongkasuwan’s misspelling of a drug in a report, and
her untimely completion of work assignments. Follow-
ing the hearing, Nasby suspended Kongkasuwan for 3
days for violating Hospital procedures.2 Kongkasuwan
appealed the suspension.
In the interim, Kongkasuwan obtained patient
records from other employees to show that other
nurses had committed similar work infractions without
incurring discipline. Nasby became aware that Kongka-
suwan had sought the aid of other employees. Nasby
contacted Union President Rue Hairston, and com-
plained that Kongkasuwan had involved other Hospital
employees in her discipline case. It had been reported
to Nasby that Kongkasuwan and licensed practical
nurse Peggy Lester had been seen together. Nasby
asked Lester who had been helping Kongkasuwan. Al-
though not mentioned by the judge, Lester testified
that Nasby told her that whoever had helped Kongka-
suwan would be discharged.
At the March 16 appeal hearing, Kongkasuwan was
provided with union representation. In her defense,
Kongkasuwan proffered the patient records to show
disparate treatment. The judge found that the internal
Hospital records were confidential material. Although
the names of the patients had been redacted, each pa-
tient’s Hospital identification number was still visible.
Nasby demanded to know how many copies of pa-
tient records Kongkasuwan possessed, how she had ob-
tained these documents, and who had assisted her.
Kongkasuwan refused to reveal the names of the indi-
viduals who had provided the information.3 Nasby then
concluded the meeting.
By letter dated March 16, Kongkasuwan was sus-
pended for 5 days for violating the Respondent’s strict
policy concerning the confidentiality of patient records.
The Respondent’s code of ethics states that the unau-
thorized disclosure of confidential information con-
stitutes cause for disciplinary action. A copy of the
code of ethics is given to each employee during ori-
entation. In addition, the Respondent gives each em-
ployee a copy of its employee handbook, which em-
phasizes the importance of the confidentiality of pa-
tient information.4
Subsequently, by letter dated March 23, Nasby con-
verted the 5-day suspension into a discharge. Accord-
ing to Nasby, the Hospital’s code of ethics was vio-
lated in three respects; (1) disregard for patient con-
fidentiality, (2) unauthorized removal of medical
records, and (3) unauthorized disclosure of confidential
information.5 The Respondent’s code of ethics states
that such acts ‘‘are considered proper causes for dis-
ciplinary action.’’ Nursing Manager Barbara Schuyler
testified that employees are told ‘‘up front’’ that they
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
can be fired for breach of confidentiality, and that she
personally informed Kongkasuwan of this policy.
On August 23, Kongkasuwan filed the instant
charge. The October 7 complaint alleges that the Re-
spondent violated Section 8(a)(1) by suspending and
discharging Kongkasuwan because of her protected
concerted activity or because it believed that she had
engaged in protected concerted activity.
II. THE JUDGE’S ANALYSIS AND THE
RESPONDENT’S EXCEPTIONS
The judge found that Kongkasuwan was engaged in
protected concerted activity. Although finding insuffi-
cient evidence of actual concerted activity, he con-
cluded that the Respondent believed that Kongkasuwan
had acted in concert with other employees, and that
this belief motivated her discharge. The judge reasoned
that the Respondent (1) increased the discipline im-
posed on Kongkasuwan after suspecting that she had
obtained assistance from other employees, (2) threat-
ened discharge of those employees, and (3) expressed
extreme dissatisfaction with Kongkasuwan’s involve-
ment of fellow employees in her suspension.
The judge rejected the Respondent’s Wright Line6
defense that Kongkasuwan’s activity was unprotected
because she had violated the Hospital’s rules regarding
the confidential treatment of patient records. He found
that she did no more than submit confidential records
to the Hospital administration for the purpose of as-
sessing the quality of health care given by its other
employees. He emphasized that the patient records
were used for internal Hospital purposes, that they did
not leave the premises, and that they were never dis-
closed to any unauthorized personnel. He also stressed
that the patients’ names had been redacted, the records
were used in a limited manner, and the records were
only exposed to Hospital management, which already
had access to them. Further, the judge stressed that the
Hospital used similar patient records from Kongkasu-
wan’s personnel file when initiating disciplinary action
against her. Because the Hospital administration was
able to refer to such documents for information relat-
ing to actions involving Hospital personnel, the judge
found it inequitable to deny employees the same ac-
cess, particularly where precautions were taken to pre-
vent any breach of patient privacy. Thus, the judge
concluded that the Respondent violated Section 8(a)(1)
by suspending and discharging Kongkasuwan for en-
gaging in protected concerted activity.
The Respondent excepts to this conclusion. It con-
tends that there is no prima facie case because Kong-
kasuwan’s breach of the Hospital’s patient confiden-
tiality rules is unprotected conduct. We agree. We fur-
ther find that the Respondent satisfied its Wright Line
burden of showing that, in any event, it would have
discharged Kongkasuwan for lawful reasons.
III. LEGAL ANALYSIS
As explained above, the Respondent has a strict pol-
icy prohibiting the disclosure of confidential patient
records. Kongkasuwan knew that the documents she
had received were classified by the Respondent as con-
fidential. She was also aware of the Respondent’s rule
against unauthorized disclosure and dissemination of
such information. In fact, Nursing Manager Barbara
Schuyler testified that employees are told, when they
commence employment, that they can be fired for
breach of patient confidentiality. Schuyler personally
informed Kongkasuwan of this policy.
Thus, upon acceptance of employment, Kongkasu-
wan agreed to abide by the Respondent’s confidential-
ity policy. Notwithstanding this agreement, she
breached this policy when she used the confidential
records in a way that was clearly prohibited. The Re-
spondent’s rule provides that patient ‘‘information is
absolutely confidential.’’ There is to be no disclosure
‘‘to persons outside or inside the hospital except in
meeting the needs of the patients.’’ Kongkasuwan’s
use of the records was not related to ‘‘patient needs’’;
her use of the records was solely related to her em-
ployment dispute with the Respondent. In these cir-
cumstances, the method and means by which Kongka-
suwan made use of the Respondent’s confidential pa-
tient records fell outside the protection of Section 7 of
the Act. Ridgely Mfg. Co., 207 NLRB 193, 196–197
(1973) (‘‘employees are entitled to use for self-organi-
zational purposes information and knowledge which
comes to their attention in the normal course of work
activity and association but are not entitled to their
Employer’s private or confidential records’’). Accord:
Bell Federal Savings & Loan Assn., 214 NLRB 75, 78
(1974).
Concededly, there may be circumstances where the
use of confidential records, in pursuit of an employ-
ment dispute, may be protected. The Board explained
the law in Altoona Hospital, 270 NLRB 1179, 1180
(1984):
It is undisputed that employers have a legiti-
mate interest in keeping certain information con-
fidential; that is unquestionably true with regard
to a health care employer whose patient records
are especially sensitive. An employee’s violation
of an employer’s rule against the disclosure of
confidential information may also be the subject
of lawful discipline even when the disclosure is
made for reasons arguably protected by the Act.
The test of such discipline is whether the employ-
ee’s interests in disclosing the information out-
weigh the employer’s legitimate interests in con-
909BECKLEY APPALACHIAN REGIONAL HOSPITAL
1 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
2 All subsequent dates are in 1993 unless otherwise indicated.
fidentiality. If they do not, then discipline is law-
ful. [Citations omitted.]
In applying that balance to the instant case, we note
initially the strong and compelling interest in protect-
ing the confidentiality of patient records. On the other
side of the balance, we note that employee Kongkasu-
wan could have used other channels to obtain the nec-
essary information. More particularly, Kongkasuwan
could have requested that her union, as exclusive rep-
resentative, make an information request. The Act en-
courages this means of obtaining information as part of
an effort to foster collective bargaining without deni-
grating legitimate confidentiality concerns. The Re-
spondent and the Union, in the give-and-take of collec-
tive bargaining, could have explored ways to provide
the necessary information without jeopardizing the Re-
spondent’s confidentiality interests. Kongkasuwan by-
passed these established procedures and knowingly
violated the Respondent’s confidentiality policy by an
unauthorized disclosure of the patient records.
Our dissenting colleague notes that Kongkasuwan
deleted patient names from the records. However, the
records contained patient identification numbers from
which patient names could be ascertained. She also
notes that outsiders (e.g., insurance carriers) have ac-
cess to patient records. However, there is no showing
that such access is, as here, without the consent of the
Respondent or the patient.
Our dissenting colleague also suggests that a dis-
ciplinary proceeding is for the purpose of meeting pa-
tient needs, and thus Kongkasuwan, no less than the
Respondent, was entitled to use the information. That
argument misses the mark. Assuming arguendo that a
disciplinary proceeding is for that purpose, the fact is
that the Respondent’s policy imposes restraints on em-
ployee usage, not on its own usage. Nor does this lead
to inequity in the disciplinary proceeding. The collec-
tive-bargaining procedures, set forth above, are de-
signed to prevent such inequity. Kongkasuwan chose
to ignore those procedures.
Finally, our colleague argues that the patient infor-
mation was disclosed only to management and union
officials, and that they had a right to see and use the
information because they were authorized to be present
at the grievance hearing. We disagree. The fact that of-
ficials are authorized to participate in grievance proce-
dures does not necessarily mean that each and every
one of these officials must see and use sensitive mate-
rials. Decisions can be made to confine the materials
to only a few officials. Management has the authority
to determine which of its officials can see and use the
information, and the collective-bargaining process will
determine which union officials can do so. In any
event, it was not up to employee Kongkasuwan to uni-
laterally make this delicate decision.
Based on the above, we conclude that the use of the
confidential records was unprotected. Because this was
the reason for the discharge, such discharge was privi-
leged. Further, assuming arguendo that a reason for the
discharge was the protected activity of seeking the as-
sistance of other employees, we conclude that another
reason was the use of confidential records and that the
latter conduct, by itself, was sufficient to warrant the
discharge. See Wright Line.
Accordingly, we dismiss the complaint in its en-
tirety.
ORDER
The complaint is dismissed.
MEMBER BROWNING, dissenting.
For the reasons explained below, I agree with the
judge that the Respondent violated Section 8(a)(1) by
suspending and discharging registered nurse Carol
Kongkasuwan. In cases like this one, the Board applies
the causation test enunciated in Wright Line.1 Under
that test, the General Counsel must make a prima facie
showing sufficient to support the inference that pro-
tected conduct is a motivating factor in the respond-
ent’s action. Once this is established, the burden shifts
to the respondent to demonstrate that the same action
would have taken place even in the absence of the pro-
tected conduct.
I find, contrary to my colleagues and in agreement
with the judge, that the General Counsel established a
prima facie case that the Respondent suspended and
discharged Kongkasuwan because it believed that she
had engaged in conduct with other employees for mu-
tual aid and protection. More specifically, the Re-
spondent discharged Kongkasuwan after she had pre-
sented patient records that it believed she had obtained
from other employees to assist her in challenging a
prior suspension that was at issue during her discipli-
nary appeal hearing on March 16, 1993.2 I agree with
the judge that whether Kongkasuwan actually engaged
in concerted activity to obtain these documents the Re-
spondent believed that she had. This belief that she en-
gaged in conduct with other employees for mutual aid
and protection is sufficient to satisfy the ‘‘knowledge’’
aspect of the General Counsel’s prima facie case. See
United States Service Industries, 314 NLRB 30 (1994);
Monarch Water Systems, 271 NLRB 558 (1984). Cf.
Respond First Aid, 299 NLRB 167 fn. 13 (1990).
I also agree with the judge that the General Counsel
established that Kongkasuwan’s conduct was ‘‘pro-
tected’’ within the meaning of Section 7 of the Act.
As the judge noted, Kongkasuwan used Hospital
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 While patient identification numbers may have still appeared on
the documents, anyone who could have gleaned a patient’s name
through use of these numbers would presumably have had legitimate
access to the documents in any event.
4 Moreover, although not mentioned by the judge, the Respond-
ent’s personnel director, Edna Nasby, admitted that these same types
of patient records are reviewed by insurance carriers, by outside
counsel, during doctor peer reviews, and for educational purposes.
5 In relying on this consideration as a factor in finding that Kong-
kasuwan’s activity is protected, I recognize that Hospital manage-
ment may have legitimate reasons for denying employees the same
access to such patient records as management had. Thus, I do not
rely on the judge’s suggestion that management itself breached its
confidentiality policy by making certain confidential records part of
Kongkasuwan’s personnel file. Similarly, I do not rely on the
judge’s suggestion that if management denied employees the same
access to such records as management had, the policy would be in-
herently unfair.
records only for internal purposes. There is no evi-
dence that the records ever left the facility, and there
was no disclosure of patient information to unauthor-
ized individuals. Simply put, Kongkasuwan did not di-
vulge information about patients to sources outside the
Hospital, nor did she discuss private information with
patients. I emphasize that Kongkasuwan was careful to
delete the names of the patients from the documents
she presented.3 The documents were only shown to
Hospital and union officials who had a qualified privi-
lege to view them because they were present at the
March 16 meeting. These officials could have re-
viewed them in any event had they chosen to do so.4
In fact, the same sorts of patient records that Kongka-
suwan produced were used by management during its
consideration of Kongkasuwan’s discipline, and the
consideration of her discipline was the specific purpose
of the appeal hearing.5
Thus, the information Kongkasuwan presented was
material to her disciplinary hearing and related to work
performance, it bore directly on the issue of disparate
treatment, and it was directly related to ‘‘terms and
conditions of employment.’’ Significantly, there has
been no showing that Kongkasuwan purloined the doc-
uments. In sum, Kongkasuwan used the information in
a manner consistent with the intent and purposes un-
derlying the Respondent’s patient confidentiality rules.
I find her conduct protected.
The Respondent’s animus, generated by its belief
that Kongkasuwan had acted in concert for mutual aid
or protection, is shown by the following facts: (1)
Nasby’s conversation with Union President Rue Hair-
ston during which Nasby expressed displeasure that
Kongkasuwan had involved other employees in her
discipline; (2) Nasby’s demand to know who had as-
sisted Kongkasuwan by providing the information; (3)
Nasby’s questioning of licensed practical nurse Peggy
Lester, as to Lester’s involvement; and (4) Nasby’s
statement to Lester that employees assisting Kongkasu-
wan would be discharged.
In light of the foregoing, I conclude that the General
Counsel established a prima facie case that Kongkasu-
wan’s suspension and discharge were motivated by her
protected conduct.
The burden thus shifts to the Respondent to prove
by a preponderance of the evidence that it would have
suspended and discharged Kongkasuwan even in the
absence of her protected conduct. I conclude that the
Respondent failed to satisfy its Wright Line burden.
Rather, I find that the Respondent seized on the al-
leged breach of patient confidentiality as a convenient
pretext to justify an unlawful discharge.
As shown below, a strong inference arises that the
actual motivation for Kongkasuwan’s 5-day suspension
on March 16 and her eventual discharge on March 23
was the Respondent’s belief that she acted in concert
with fellow employees to challenge her original 3-day
suspension. It was not until the Respondent suspected
and accused Kongkasuwan of obtaining confidential
documents with the help of other employees that it de-
cided to institute more severe disciplinary measures. In
fact, the Respondent’s March 23 letter is devoid of any
explanation why the 5-day suspension was converted
to a discharge.
More importantly, the Respondent has not estab-
lished that Kongkasuwan actually breached the rules
that it relied on in discharging her. The reasons given
by the Respondent in support of Kongkasuwan’s dis-
charge were her: (1) refusal to comply with facility
policies and practices; (2) deliberate unauthorized re-
moval of Hospital property; and (3) unauthorized dis-
closure of confidential information. The Respondent
has failed to establish that Kongkasuwan failed to
comply with Hospital policies.
While the Respondent’s code of ethics specifically
prohibits discussing patients with persons inside or
outside the Hospital, Kongkasuwan did not engage in
such conduct at the March 16 hearing. Instead, she at-
tempted to raise circumstances related to the quality of
health care given by other employees that would assist
her in establishing that she should not have been dis-
ciplined. The Employer’s confidentiality policy specifi-
cally allows disclosure of patient information within
the Hospital in order to meet patient needs. Just as the
Respondent’s use of patient information to support its
disciplinary action against Kongkasuwan was for the
purposes of fostering quality patient care and thus
meeting the needs of the patients, so too did Kongka-
suwan act in furtherance of patient needs by using the
records to defend her performance of tasks directly re-
lated to patient care.
With respect to any unauthorized removal of prop-
erty, there is no evidence that Kongkasuwan removed
any Hospital records. Rather, she was an innocent ben-
eficiary of assistance from others.
911BECKLEY APPALACHIAN REGIONAL HOSPITAL
1 John Hodack appears as ‘‘Houdac’’ in the record.
Finally, the Respondent has failed to establish any
unauthorized disclosure of confidential information. As
explained above, Kongkasuwan used the records for
internal Hospital purposes. There was no evidence that
they ever left the Hospital. Further, the information
was only disclosed to individuals who had access to
such information in any event. This information was
‘‘disclosed’’ only to individuals who already had the
right to see and use the information by virtue of their
participation in the contractual grievance procedure—
i.e., the Respondent’s officials and Kongkasuwan’s
union representatives, who were all authorized to be
present at the hearing on her grievance. Thus, the Re-
spondent’s confidentiality claim here rings hollow be-
cause there was no disclosure to ‘‘unauthorized’’ per-
sons within the meaning and purpose of the Respond-
ent’s patient record confidentiality policy. The Re-
spondent’s legitimate confidentiality interests were
never in jeopardy as a result of Kongkasuwan’s use of
the information which had come into her possession.
In finding Kongkasuwan’s conduct to be unpro-
tected, my colleagues assert that, instead of using doc-
uments which had come into her possession, Kongka-
suwan should have requested that the Union attempt to
obtain the information from the Respondent on her be-
half. I disagree. The issue here is whether Kongkasu-
wan was engaged in protected activity for which she
was discharged, not whether she had alternative means
of obtaining the information necessary to contest her 3-
day suspension. That Kongkasuwan could have asked
her bargaining representative to make an information
request did not preclude her from utilizing documents
which had been made available to her by another
source, particularly because the Respondent has not
shown that Kongkasuwan’s use of those documents
was inconsistent with the Hospital’s confidentiality
policy. Indeed, by asserting that Kongkasuwan should
have asked her union to make an information request
for the documents, my colleagues in the majority clear-
ly contemplate that the Respondent would be com-
pelled to produce them. In that event, the documents
would have been seen by exactly the same people who
saw them pursuant to Kongkasuwan’s disclosure.
Nor has the Respondent shown that a breach of pa-
tient confidentiality, if any, would have induced it to
discharge Kongkasuwan. The Respondent produced no
evidence that it discharged other employees for similar
conduct or that Kongkasuwan’s conduct merited dis-
charge under established Hospital policy. In these cir-
cumstances, I conclude that the Respondent seized
upon the alleged breach of patient confidentiality as a
pretext and has failed to prove that Kongkasuwan
would have been discharged even in the absence of her
protected conduct. Accordingly, I find merit in the
8(a)(1) complaint allegation and would order reinstate-
ment and backpay.
Donald A. Becher, Esq., for the General Counsel.
Stephen A. Weber, Esq. (Kay, Casto, Chaney, Love & Wise),
of Charleston, West Virginia, for the Respondent.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This
case was tried in Beckley, West Virginia, on June 16, 1994.
Upon a charge filed on August 23, 1993, by Carol Kongka-
suwan, a complaint issued on October 7, 1993, as amended
on December 7, 1993. It alleges that Beckley Appalachian
Regional Hospital (the Respondent or Hospital) violated Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act) by
suspending and discharging Kongkasuwan because she had
engaged in protected concerted activities. The Respondent
filed an answer which admitted the jurisdictional and super-
visory allegations in the complaint and which denied the
commission of any unfair labor practices.
On the record as a whole, including my observation of the
witnesses and the briefs filed by the General Counsel and the
Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Beckley Appalachian Regional Hospital, the Respondent,
has been engaged in the operation of a hospital providing in-
patient and outpatient medical care at Beckley, West Vir-
ginia. With gross revenues in excess of $250,000 and with
purchases and receipts of goods in excess of $50,000 directly
from points outside the State, the Respondent is admittedly
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The West Virginia Nurses Association (the Union) is ad-
mittedly a labor organization within the meaning of Section
2(5) of the Act.
Personnel Manager Edna C. Nasby, Manager of Nursing
Service Barbara Schuyler, and Director of Behavioral
Science and Psychiatry John Hodack,1 are admittedly super-
visors within the meaning of Section 2(11) of the Act.
II. THE FACTS
The charging party, Carol Kongkasuwan, is a registered
nurse who was assigned to the Behavioral Science Center of
the Beckley Appalachian Regional Hospital. The registered
nurses are represented by the West Virginia Nurses Associa-
tion. In early March 1993, Respondent’s personnel manager,
Edna Nasby, became aware of an incident involving Kongka-
suwan. The incident report, dated March 3, 1993, dealt with
a defective intravenous (IV) procedure on a patient. (R. Exh.
1.) Following an investigation by management personnel,
Nasby decided that a disciplinary hearing should be sched-
uled for March 5, 1993. Several other work infractions were
also discussed, including the IV incident, her misspelling of
a drug on a report, and the untimely completion of her work.
By letter of March 8, 1993, Nasby informed Kongkasuwan
that she was suspended for 3 days ‘‘for violations of hospital
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
procedures, practices, and instructions.’’ (G.C. Exh. 2, Tr.
59–60.) In her assessment of the discipline, Nasby relied on
various documents which are contained in Kongkasuwan’s
personnel file, such as memoranda from supervisory nurses,
progress notes, incident reports, and forms dealing with intra-
venous treatment or physician’s instructions. (Tr. 24, G.C.
Exhs. 4–9.) Several documents were forms dealing with pa-
tient care although the patients’ names were redacted or
blackened out. (Tr. 20.)
Kongkasuwan appealed the suspension. The meeting was
scheduled for March 16, 1993. In the meantime, she had ob-
tained certain documents, including patient records, which
showed that other nurses had committed similar infractions
without incurring any discipline. (G.C. Exhs. 10–12, Tr. 30–
31.) Nasby became aware that Kongkasuwan had sought the
aid of other employees about her suspension. (Tr. 26.) Dur-
ing a telephone conversation with Rue Hairston, president of
the Union, Nasby expressed her concern and displeasure that
Kongkasuwan had involved other employees in her discipline
problem. (Tr. 25.) It was reported to Nasby that Kongkasu-
wan had met and been seen with Peggy Lester, a licensed
practical nurse. (Tr. 27–28.)
The March 16 hearing was attended by Union President
Hairston, Kongkasuwan, several hospital officials including
the assistant administrator, and Nasby. She explained the rea-
sons for the suspension, including the ‘‘IV’’ incident, the
misspelling of a drug, and the time problem. Nasby also ex-
pressed her concern that other employees had became in-
volved in this issue. (Tr. 30–31.) Kongkasuwan defended her
conduct and offered examples of other employees’ mis-
conduct. She presented the documents which, according to
her own testimony, were provided to her by other persons.
(G.C. Exh. 10–12, Tr. 106.) Nasby described these docu-
ments as ‘‘medical information obtained out of the patient’s
chart, EKG, progress notes from the RN’s, a daily medica-
tion report, lab report,’’ and others on which the patients’
names were obliterated. (Tr. 63–64.) Nasby testified that
Kongkasuwan explained at the hearing that she had obtained
those documents from other nurses. (Tr. 31.) Nasby therefore
interrupted the meeting and questioned the employee (Tr.
68):
I stopped the meeting and asked Ms. Kongkasuwan
how many copies she had, [of] how many patients she
had records, how did she get those, how did she get
that information.
There was no response at all . . . she did say that
an RN and an LPN helped her.
Kongkasuwan refused then and now to reveal the names
of anyone who had provided the information. (Tr. 32, 106.)
The documents concerning the three incidents of misconduct
revealed one where a nurse who had overdosed a patient
with drugs was not disciplined, another incident where the
Hospital tolerated a misspelling of a drug and other mistakes
by an employee without discipline, and a third incident
where an RN took certain actions involving a patient (hepa-
rin lock and flush) without a physician’s order and was not
disciplined. (G.C. Exhs. 10–12.) The names of the patients
were obliterated.
Demanding to know who had assisted her in providing the
information and specifically inquiring whether Peggy Lester
helped her, Nasby concluded the meeting after Kongkasuwan
refused to reveal the identity of the individuals.
By letter of March 16, 1993, Nasby informed Kongkasu-
wan that she was suspended for 5 days for violating several
sections of the Hospital’s personnel policies. (G.C. Exh. 13.)
By letter of March 23, 1994, Nasby converted the suspension
into a discharge. (G.C. Exh. 14.) According to Nasby, the
hospital policy or code of ethics was violated in three re-
spects: (1) disregard for the confidentiality of the patients;
(2) unauthorized removal of medical records; and (3) unau-
thorized disclosure of confidential information. (Tr. 73–74.)
The General Counsel argues that Kongkasuwan was dis-
charged because of her ‘‘use of information that it [Respond-
ent] believed she had obtained from other employees to assist
her in challenging discipline’’ or ‘‘conduct with other em-
ployees for her mutual aid and protection’’ in violation of
Section 8(a)(1) of the Act.
The Respondent argues that the Charging Party had ob-
tained copies of patients records which revealed confidential
patient information in violation of company policy.
DISCUSSION AND CONCLUSIONS OF LAW
The parties basically agree that the Charging Party may
have engaged in concerted activities with other employees of
the Hospital, but that the record is not clear on this issue.
Kongkasuwan declined to reveal the names of the other indi-
viduals who helped her during her tenure at the Hospital, and
the General Counsel has made it clear that ‘‘the names of
any other co-workers involved with production of docu-
ment’’ be excluded and be kept confidential. (Tr. 10–12.) In-
deed, when Kongkasuwan was interrogated by Respondent’s
counsel about the identity of the persons who aided her dur-
ing the investigation, the General Counsel objected. (Tr.
107.) The record shows that the Respondent threatened to
discipline or even discharge these employees. (Tr. 45–46,
68–69.) I upheld the objection. The Respondent is, accord-
ingly, correct in arguing that there is insufficient evidence in
the record that the Charging Party actually acted in concert
with other employees.
Nevertheless, the General Counsel argues that the Re-
spondent violated the Act, because the discharge was based
on Respondent’s belief that Kongkasuwan had acted in con-
cert with other employees. The Respondent correctly under-
stood this argument, paraphrasing ‘‘even if Kongkasuwan did
not actually engage in concerted protected activity with the
co-workers, BARH terminated her because it thought she
had.’’ (R. Br., p. 11.)
In this regard, the record supports the General Counsel.
Kongkasuwan had faced a 3-day suspension for work related
problems. Not until management suspected her and accused
her of obtaining confidential documents with the help of
other employees, did it decide to discharge its employee.
Nasby threatened those who had assisted Kongkasuwan with
discipline, possibly discharge. Nasby admittedly conveyed to
the union president, to employee Lester, and to everyone at
the meeting her extreme dissatisfaction with Kongkasuwan’s
involvement of fellow employees in her suspension. (Tr. 25–
28, 30–32.) Nasby questioned Lester about her association
with Kongkasuwan. (Tr. 45):
913BECKLEY APPALACHIAN REGIONAL HOSPITAL
Edna asked if I knew who was helping Carol. That
Carol had not done that alone. They would find out
who it was.
In short, the Respondent was convinced that Kongkasuwan
had received the assistance of other employees and con-
cluded that she had acted in concert with them.
Most of the documents which Kongkasuwan had obtained
and which she presented to management officials during the
March 16 meeting were internal hospital records. These are
considered confidential because they contain patient informa-
tion. Even though the patient’s names had been blackened
out, any employee in the Hospital with access to a computer
could have ascertained the patient’s name. However, a person
not connected with the Hospital would have been unable to
gain access to a patient’s information with the information
contained in these documents. (Tr. 94.) Accordingly, so ar-
gues the Respondent, even if Kongkasuwan’s activity was
concerted it was not ‘‘protected,’’ because it violated com-
pany rules of confidential treatment of patient information.
For the reasons cited in its brief, it would indeed be difficult
to justify the breach of confidentiality or the purloining of
hospital records and then to classify such conduct as ‘‘pro-
tected.’’
Under the circumstances here, however, the Charging Par-
ty’s conduct was protected for a number of reasons. The hos-
pital records were used for internal purposes, there is no evi-
dence that they ever left the confines of the facility, and
there is no evidence that there was a breach of confidentiality
or a disclosure of patient information to an unauthorized per-
son or to any party not connected with the Hospital. More-
over, the patient’s names were obliterated, so that anyone not
connected with the facility would be unable to use any con-
fidential information. And hospital personnel with access to
computers would have access to patient information in any
case. In short, the hospital records at issue here were used
in a very limited way and were exposed to hospital manage-
ment which already had access to such information.
Significantly, the Hospital used the same type of informa-
tion, i.e., hospital records which reveal patient information
for the purpose of its initial personnel action against Kongka-
suwan and those hospital records were contained in her per-
sonnel file. Respondent’s counsel argues that the hospital ad-
ministration should be able to ‘‘refer to confidential patient
documents in assessing the quality of health care given by
its employees’’ without risking ‘‘its employees from review-
ing patient information whenever they feel a need to do so
as a defense to disciplinary action.’’ (R. Br., p. 21.) Such an
argument is equally applicable to Kongkasuwan who did no
more than submit to the hospital administration confidential
records for the purpose of assessing the quality of health care
given by its other employees. And if those documents are so
sacrosanct that they should not have been used for personnel
actions, then it was management which breached the privi-
lege first by making such records a part of Kongkasuwan’s
personnel file. In either case, the information was used for
‘‘management’’ purposes. To suggest that the hospital super-
visors should have access to such information while denying
employees the same right would render the policy inherently
unfair, particularly where the employee has taken the same
precautions against disclosure by redacting the patients’
names. The prohibition against disclosure of confidential pa-
tient information would appear to apply equally to super-
visors or management employees and regular employees.
I accordingly find that the employee conduct here was not
only concerted but also protected by the Act. Respondent’s
conduct in suspending and discharging Kongkasuwan’ for
engaging in protected concerted activity violated Section
8(a)(1) of the Act. The unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having unlawfully discharged Carol Kongkasuwan, the
Respondent shall offer her reinstatement and make his em-
ployee whole for lost earnings and other benefits computed
on a quarterly basis from the date of discharge to the date
of a proper offer of reinstatement, less net interim earnings
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]