Gaylord Hospital

National Labor Relations Board - Board Decisions

Jun 26, 2013

359 N.L.R.B. 1266 (N.L.R.B. 2013)

1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 143
Gaylord Hospital and Jeanine Connelly. Cases 34–
CA–013008 and 34–CA–013079
June 26, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On September 6, 2012, Administrative Law Judge
Lauren Esposito issued the attached decision. The Act-
ing General Counsel filed exceptions, a supporting brief,
a reply brief, and an answering brief to the Respondent’s
cross-exceptions. The Respondent filed cross-exceptions,
a supporting brief, and an answering brief to the Acting
General Counsel’s exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,
1
and conclusions, and to adopt the recommended
Order.

ORDER
The National Labor Relations Board orders that the
Respondent, Gaylord Hospital, Wallingford, Connecti-
cut, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.

Rick Concepcion, Esq. and Claire T. Sellers, Esq., for the Act-
ing General Counsel.
Brian Clemow, Esq. and Jarad M. Lucan, Esq. (Shipman &
Goodwin, LLP), for the Respondent.
DECISION
STATEMENT OF THE CASE
LAUREN ESPOSITO, Administrative Law Judge. Based on
charges filed on June 9 and August 15, 2011, by Jeanine Con-
nelly, an individual (Connelly), a consolidated complaint and
notice of hearing issued on September 30, 2011. The complaint
alleges that Gaylord Hospital (Gaylord or Respondent) violated
Section 8(a)(1) of the National Labor Relations Act (the Act)
by issuing a written warning to Connelly on April 1, 2011,
suspending her on April 5, 2011, and discharging her on April
8, 2011, in retaliation for her protected concerted activities.
The consolidated complaint also alleges that Respondent vio-
lated Section 8(a)(1) by prohibiting employees from discussing
their terms and conditions of employment, and by threatening

1 The Acting General Counsel has excepted to some of the judge's
credibility findings. The Board's established policy is not to overrule
an administrative law judge's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(1) by prohibiting employee Jeanine Connelly from
discussing terms and conditions of employment.
them with job loss in retaliation for their protected concerted
activities. Respondent filed an answer denying the material
allegations of the complaint. This case was tried before me on
January 9, 10, 11, and 12, on February 27 and 28, on March 12,
13, 14, and 15, and on April 10, 11, 12, and 13, in Hartford,
Connecticut.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel (the General Counsel) and Re-
spondent I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a nonprofit corporation with an office and
place of business in Wallingford, Connecticut, where it oper-
ates a hospital providing inpatient and outpatient medical care.
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates a long-term acute care health facility,
which provides health care services similar to an acute care
hospital. Respondent is licensed by the State of Connecticut as
a chronic disease hospital, and is recognized by the Federal
Government’s Center for Medicare and Medicaid Services as a
long-term acute care hospital. Respondent’s patients are gener-
ally medically complex patients with several different condi-
tions, who therefore require longer-term inpatient care. Re-
spondent employs hundreds of employees, the majority of
which, over 200, comprise its nursing staff. The events at issue
in this case took place in the respiratory therapy department,
which consists of approximately 20–30 employees, the majority
of whom are respiratory therapists (RTs).
Respondent’s clinical operations are overseen by Chief Med-
ical Officer Dr. Louis Teba, who is responsible for all clinical
care matters. The medical director for respiratory care, who
reports to Dr. Teba, is responsible for clinical care in the respir-
atory therapy department; during the events at issue in this case
the medical director for respiratory care was Dr. Brett Gersten-
haber. Dr. Gerstenhaber was not an employee of Gaylord, but
part of a group which contracts to provide services at the hospi-
tal. Charlotte Hyatt is Respondent’s vice president of clinical
services, and the director of the respiratory therapy department
reports to her. At the time of the events at issue here, the direc-
tor of the respiratory therapy department was Paul Trigilia, who
left his employment with Respondent in June 2011.1 The RTs
are directly supervised by the respiratory therapy department’s
supervisor. Michael Burke was the respiratory therapy depart-
ment supervisor from March 15 until December 9, 2011, when
he resigned.2 Prior to becoming supervisor of the department,
Burke worked for Respondent as an RT on a per diem basis.

1 Trigilia was replaced as director of the respiratory therapy depart-
ment by Jerry Schlette.
2 Donna Ward was the supervisor of the respiratory therapy depart-
ment prior to Burke.
GAYLORD HOSPITAL 1267

Respondent admitted in its answer and I find that Hyatt, Trigil-
ia, and Burke were supervisors within the meaning of Section
2(11) of the Act, and stipulated at the hearing that Gerstenhaber
was an agent of Respondent within the meaning of Section
2(13) of the Act. Hyatt, Gerstenhaber, Trigilia, and Burke all
testified at the hearing.
Susan Hostage is Respondent’s director of outcomes man-
agement, and reports to Dr. Teba as well as to Respondent’s
president and chief financial officer. Hostage is responsible for
performance improvement, risk management, customer satis-
faction, accreditation, licensure, and regulatory compliance
issues. Hostage testified at the hearing. Rena Susca is a super-
visor in Respondent’s information services department, and
testified at the hearing as well.
Walter Harper is Respondent’s vice president of human re-
sources, and Bryana Minor, an employment administrator, re-
ports to him. Respondent admitted in its answer and I find that
Harper is a supervisor within the meaning of Section 2(11) of
the Act, and stipulated at the hearing that Minor is an agent
within the meaning of Section 2(13). Harper and Minor both
testified at the hearing.
The Charging Party, Jeanine Connelly, was employed by Re-
spondent as a respiratory therapist. Connelly initially worked
for Respondent on a per diem basis from November 2008 until
August 2009, and was then employed full time until her dis-
charge on April 8, 2011. Respiratory Therapists Teresa Char-
land, Marlene Slowenski, and William Hutson, all currently
employed by Respondent, testified at the hearing as well.
B. The Operations of Respondent’s Respiratory
Therapy Department
Respondent’s respiratory therapists are responsible for
treatments and procedures involving patients’ respiration, in-
cluding administration of medication through nebulizers or
inhalers,3 breathing exercises, arterial blood gas, and other test-
ing, maintenance of tracheostomy tubes and other medical de-
vices, and maintaining and weaning patients off of ventilators.
The instant case involves an arterial blood gas, or ABG, test.
These tests are often ordered to be performed by the RTs in the
morning. In order to perform an ABG test, the RT draws blood
from the patient, placing a needle bevel up into the artery after
washing an appropriate area of the skin down with alcohol.
After the blood is drawn, pressure is applied to the area with
gauze. The blood is then taken on ice to a machine which
measures the amount of oxygen, carbon dioxide, and other
gases it contains.
Respondent’s facility has several buildings. RTs cover pa-
tients in the Hooker, Lyman, and Milne buildings, each of
which has two floors. The Milne building was opened in De-
cember 2008, and while, according to Hyatt, the overall patient
census did not increase dramatically, the general acuity level of
the patients may have increased as a result. Each day shift
typically has four RTs, one of which covers the Hooker build-

3 Because medication is so often administered by RTs through such
devices, the words “medication” and “treatment” are generally used
interchangeably.
ing, one of which covers the Lyman building, and two of which
cover the Milne building, with one RT assigned to each floor.
RTs are also responsible for entering information into patient
medical records in connection with the procedures and tests
they perform. Information Services Department Supervisor
Rena Susca explained that patient records are created through
the Meditech software system, which encompasses all infor-
mation from the time of the patient’s admission, including la-
boratory tests, medications, physicians’ orders, and billing.
Medical orders are primarily entered into the Meditech system
by physicians through its provider order management module.
However, RTs can also enter physicians’ orders through the
provider order entry module. In order to do so, the RT must
sign into the computer and the Meditech system with their own
user name and password, proceed to the order entry module,
and choose the enter orders routine. The system will then
prompt them to enter the ordering physician, which they must
do to proceed to enter the order. RTs are trained on the Med-
itech system when they begin their employment with Respond-
ent, and provided with written reference materials about the
system. Trigilia and Burke also testified that they were availa-
ble for consultation in case of specific problems involving
Meditech, and Charland testified that she once called Burke at
home for assistance with a particular issue. Nevertheless, it is
evident from the testimony of Connelly, Charland, and Hutson
that the RTs encountered difficulties with the use of the Med-
itech system. In Connelly’s performance appraisal for the cal-
endar year 2010, dated December 8, she was encouraged to
become more proficient in Meditech.
The RT department holds weekly meetings to discuss clini-
cal and employment-related issues. These meetings include the
director and supervisor of the department. Hyatt testified that
she has also attended the majority of the weekly RT department
meetings since 2009. Minutes are prepared of each meeting,
which are available in the RT documentation room for the RTs
to review in the event that they are unable to attend.
C. Evidence Pertaining to Connelly’s Protected
Concerted Activities
The evidence establishes that a number of the RTs have had
concerns regarding staffing levels and workload since 2009.
According to Hyatt, Respondent considered budget cuts and
reductions in staff due to a decreased patient census during the
summer of 2009. In response, the RTs, including Connelly,
drafted a letter which was sent to Paul Cullen, Respondent’s
chief executive officer at the time, Hyatt, Teba, Hostage, and
other managers, expressing their concerns regarding the work-
load and the impact of possible staff reductions on patient care.4
In response, a meeting was arranged, which Cullen and Hyatt

4 The preponderance of the evidence does not establish that this let-
ter was forwarded to Cullen and the other managers with Connelly’s
signature. I credit the testimony of Susan Hostage authenticating the
signature sheet in evidence as R. Exh. 8. In addition, Hutson, who also
participated in drafting the letter, testified that he could not be certain
as to whether or not Connelly signed it. I find this evidence to be more
probative overall than Connelly’s testimony that she signed the letter,
and her assertion that the signature sheet in evidence as R. Exh. 8 is
missing the names of other RTs employed by Respondent at the time.
1268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

attended, to discuss the RTs’ workload and the possible reduc-
tions in staff. Hyatt recalls that RT Anne Marie Iosa was the
most vocal employee at the meeting. Slowenski testified that
Connelly discussed scheduled medications which were being
missed, or not administered, by the RTs as a result of their
workload overall.5
Hyatt testified that the proposed reductions were not ulti-
mately implemented because the patient census increased
again. In response to the RTs’ concerns, she began meeting
with Trigilia to review the RTs’ workload and productivity, and
to determine whether additional RT department staff was nec-
essary. Slowenski testified that after the meeting, Respondent
began assigning overtime to the RTs, and created a new “help-
er” position to handle morning treatments for patients in the
Milne building. The evidence establishes that no RT has been
laid off since the Milne building opened.
The record also establishes that scheduling and “callouts”
were an ongoing issue in the RT department. When an RT
called in on the morning of their shift and stated that they
would not be reporting to work, coverage had to be arranged
for that RT’s patients and duties, either by obtaining a per diem
or by dividing the work among the other RTs at work that day.
This issue was addressed at several of the RT department week-
ly meetings in December 2010 and February 2011, with various
proposals advanced by the RTs in order to ameliorate the prob-
lem. Connelly spoke at these meetings regarding the ongoing
callout issue and possible incentives for RTs to reduce the
number of callouts. Connelly testified that she repeatedly
raised this issue with Trigilia outside of the weekly meetings,
and Hutson testified that other RTs, including Iosa, Nancy
Grenier, Tammy Maher, Richard MacGillivray, and himself,
spoke to Trigilia regarding scheduling and callouts as well. In
addition, Connelly spoke to Teba on several occasions regard-
ing workload, staffing, and scheduling issues involving the RT
department.
Lunch breaks and floor coverage were also a periodic con-
cern for the RTs. RTs were required to punch out during their
lunch period, which was unpaid. However, if they retained
their beeper during their lunch period, they could not leave the
facility and had to respond to calls regarding patients. This
issue was discussed at a March 21 meeting, with Connelly as-
serting that the current practice violated Labor Department
regulations. Connelly also discussed this issue directly with
Harper. The policy was then clarified at a meeting on April 11,
2011, after Connelly’s discharge, to provide that RTs who left
the building for their lunchbreak would punch out and give
their beeper to a coworker.

5 The General Counsel argues that at this meeting Trigilia denied
that he was aware of a problem with missed medications, and that Con-
nelly’s statements regarding missed medications contradicted him,
embarrassing him in front of Hyatt. The General Counsel argues that
this episode engendered Trigilia’s subsequent hostility toward Connel-
ly. Hyatt testified that she could not recall Connelly being particularly
outspoken at the meeting, or any other incident where Connelly ap-
peared to contradict or embarrass Trigilia. In light of the evidence
regarding Trigilia’s animus toward Connelly, discussed below, I find it
unnecessary to resolve this issue.
There was also a continuing issue in the RT department re-
garding the RTs’ seniority. In particular, one employee, Sophie
Zeil, had been an RT for a number of years and then retired, but
was later rehired as a helper on the day shift, from 6 a.m. to 2
p.m. Harper testified that Respondent’s policy regarding sen-
iority required that Zeil’s previous service be credited after she
returned from retirement. Although only Connelly was actually
denied a vacation period she requested because she had less
seniority than Zeil, Slowenski and Hutson testified that this
issue also affected the other RTs, because vacation scheduling
was determined by seniority order. Connelly spoke about this
issue at meetings, and raised it with Trigilia. The minutes of
the April 5, 2011 RT department meeting indicate that vacation
scheduling was still an issue for the RTs at that time.
D. Trigilia’s Management of the Respiratory
Therapy Department and Evidence of
Animus Toward Connelly
It is evident from the record that a significant amount of ten-
sion existed in the RT department between management, spe-
cifically Trigilia, and the employees. Connelly, Hutson, and
Slowenski all testified that they perceived Trigilia as duplic-
itous, and that, in their opinion, he did not interact with the RTs
in a straightforward manner. Slowenski and Connelly testified
that Trigilia yelled at them in meetings after they raised issues
regarding staffing and, in Slowenski’s case, receiving compen-
sation for precepting other employees. In a December 6, 2010
series of recommendations for action to be taken following the
Connecticut Department of Public Health’s investigation, dis-
cussed in further detail below, Hyatt identified several prob-
lems involving Trigilia’s interactions with the RT staff. Specif-
ically, Hyatt stated that Trigilia did not take “responsibility for
the performance of the department including staff behavior,”
and “tends to deflect responsibility and re-direct issues brought
to his attention.” Hyatt also noted that the RTs “don’t feel safe
bringing issues to management,” and stated that she intended to
meet directly with the RT staff to “explore lack of trust/fear of
retaliation issues,” and “get to the root of” the Department’s
problems. Hyatt’s recommendations also state that Harper
would encourage the RT staff to raise issues with him directly.
A Performance Improvement Plan (PIP) Hyatt imposed upon
Trigilia the next month required that he take responsibility for
decisionmaking in the department, as opposed to deflecting or
redirecting issues and blaming others, enhance his listening
skills in his interactions with staff, and communicate expecta-
tions in a clearer and more direct manner. The PIP also re-
quired that Trigilia schedule the RTs “according to policy and
fairly,” and increase planning to ensure adequate staffing. The
PIP stated that Hyatt would be assessing Trigilia’s interaction
with the RTs by meeting with them directly on a weekly basis.
Whatever the relationship between Trigilia and Connelly
prior to the imposition of the PIP,6 after it was issued Trigilia

6 At the hearing, Connelly testified at length regarding her activities,
and Trigilia’s retaliatory responses, during the period between the fall
2009 meeting (when she purportedly embarrassed him in front of Hy-
att) and the fall 2010 DPH investigation. In brief, Connelly contends
that during this period of time Trigilia threatened to discharge her on
multiple occasions, threatened to discipline her, did not allow her to
GAYLORD HOSPITAL 1269

focused on Connelly as a potential problem for him. Burke
testified that when he was applying for the position of RT su-
pervisor in late January or early February 2011, Trigilia told
him to watch out for Connelly, Charland, and Kim Sadler,7
another RT. Trigilia told Burke that Connelly was “a loud-
mouth, always running her mouth and giving him a hard time.”
Trigilia advised Burke to handle such employees “with kid
gloves,” and “watch your back.” Burke testified that in other
conversations with Trigilia after applying for the supervisory
position, Trigilia told him again that Connelly was “a big trou-
blemaker . . . always running her mouth off and looking to
cause issues in the department.” These conversations took
place in the break room during lunch, and in the hallway of the
Luscomb building after an RT department meeting. Burke was
promoted into the supervisory position, and immediately after-
wards Trigilia told him to “be careful of Jeanine, don’t trust
her,” again referring to Connelly as a “troublemaker” and a
“loudmouth.”8 This conversation took place in the hallway
outside of the RT department. Charland also testified that after
the PIP was issued, Trigilia told her in the hallway of the
Lyman building that Connelly was very vocal, and “was going
to be the death of him.”
In addition, in the fall 2011, Hutson left a subpoena ad tes-
tificandum issued to him by the General Counsel in Burke’s
mailbox, so that Burke would be aware that he needed time off
of work to attend the hearing. Burke, who was still the RT
department supervisor at the time, told Hutson that, “you
shouldn’t be talking about this,” because “Administration’s
going to be upset with you.” Burke testified that he made these
statements to Hutson because he was concerned that Schlette
(then the director of the RT department), Hyatt, and Harper
“would take it the wrong way,” and that Hutson might be “in
trouble” as a result. Burke testified that he held this opinion

assist other RTs with patients and did not allow other RTs to assist her,
did not allow her to speak with Teba, and denied her request for addi-
tional vacation time in conjunction with a medical leave. Trigilia stated
that he did not recall these incidents, with the exception of the denial of
additional vacation time. Slowenski testified that Trigilia would peri-
odically announce his intention to discharge a particular RT, but the
actual termination never took place. In light of the evidence regarding
Connelly’s activities and Trigilia’s statements to Burke and Charland in
early 2011, discussed below, I find it unnecessary to delve into the
evidence regarding Connelly and Trigilia’s interactions prior to that
time.
7 Trigilia was apparently under the impression that Sadler and Char-
land had reported the incident involving Donna Ward, discussed below,
to the DPH.
8 I credit Burke’s testimony regarding these conversations. The sen-
timents Trigilia expressed to him are consistent with those he articulat-
ed to Charland, with the testimony of Slowenski regarding Trigilia’s
attitude toward Connelly, and with evidence establishing Trigilia’s
generally poor relationship with the RTs, as evinced in his PIP. Indeed,
it should be noted that when questioned at the hearing regarding this
statement Trigilia responded that he never made it, “because I would
have felt that about everybody.” Hutson, Burke, Hyatt, and Harper all
testified that a number of RTs were quite vocal regarding the various
issues which arose in the RT department, and that Connelly was not
unusual in this regard.
based upon his experiences while employed at other health care
facilities, and not with Respondent.
E. The Investigation by the Connecticut Department
of Public Health and Gaylord’s Response
In November 2010, the Connecticut Department of Public
Health (DPH) visited Respondent’s facility for at least 3 days to
investigate specific issues which had been raised with them,
and then conducted an exit interview with Respondent’s admin-
istrators on or about November 10, 2010. After the exit inter-
view, Respondent’s managers began investigating the specific
incidents the DPH identified, and formulating responses to the
problems raised. On February 10, 2011, the DPH issued a re-
port finding several violations in the RT department of perti-
nent regulations and statutes. One specific incident involved an
RT (David Girman) who “was alleged to tap [a] patient on the
nose and forehead with a large vial of normal saline.” Another
involved Supervisor Donna Ward, who allegedly retrieved an
inner cannula from the trash and handed it to a doctor to insert
into the patient during a tracheostomy tube change. The DPH
found that the first of these incidents was reported to the direc-
tor of nursing and to Trigilia, neither of whom took any action.
The second incident was not reported to Respondent’s man-
agement. Hyatt and Hostage both testified that no occurrence
reports had been prepared regarding these incidents, and that
Respondent had no knowledge of them prior to the DPH inves-
tigation.
In addition to the specific incidents discussed above, the
DPH identified three other issues involving the RT department.
The DPH identified a recurrent problem with missed medica-
tions, i.e., medications which were prescribed for specific pa-
tients but not administered as directed. The DPH also conclud-
ed that Respondent failed to ensure that RT department staffing
was adequate to meet the requirements of five patients. Finally,
the DPH found that Respondent had failed to revise its perfor-
mance improvement plan after data indicated that there were
compliance problems with missed respiratory therapy medica-
tions.
In response to the issues identified by the DPH in its exit in-
terview, Respondent’s management began investigating the
incidents and concerns raised, preparing reports, and formulat-
ing methods for addressing the various problems. Although
Hostage investigated the incidents and addressed regulatory
compliance matters, ultimately Hyatt determined what specific
disciplinary action would be appropriate. With respect to the
incident involving RT David Girman, Hostage interviewed the
individuals involved and prepared a report including recom-
mendations. Hyatt concluded that the results of the investiga-
tion did not establish that Girman physically hit the patient as
alleged, but did demonstrate that he spoke in a loud, angry
voice. As a result, Girman was issued a written warning on
December 10, 2010, and the nursing supervisor and director of
nursing were disciplined for failing to ensure that the incident
was properly documented and investigated.9 Hostage also in-

9 The nursing supervisor and director of nursing were issued written
warnings, and the director of nursing was also placed on a Performance
Improvement Plan. Girman later resigned.
1270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

terviewed the individuals involved in the tracheostomy tube
change incident, and Hyatt discharged Ward on December 9,
2010, as a result, over Trigilia’s objection.
After considering the missed medications issue, Hostage and
Hyatt concluded that the problem was systemic in nature, and
was not attributable to any one or more particular RTs. Re-
spondent’s management therefore embarked on an effort to
provide education to the RTs as a group, and to improve their
practice with respect to missed medications. To do so, Re-
spondent altered its policy so that “Patient Sleeping” and “De-
ferred” were eliminated as acceptable reasons for missed medi-
cations. Respondent also sought to increase the RTs’ filing of
occurrence reports for missed medications. Hostage testified
that there are several different types of occurrence reports—a
general occurrence report, and specific occurrence reports for
medications, falls, and skin issues. Hostage stated that she
received fewer occurrence reports from the RT department than
she would expect. Following the DPH findings regarding
missed medications, Hyatt and Hostage were specifically inter-
ested in increasing the number of medication occurrence re-
ports filed by RTs.
Finally, as a result of all of the problems identified in the RT
department, on February 3, 2011, Trigilia was placed on the
PIP discussed previously. As part of the PIP, Hyatt gave Trigil-
ia 30 days to effect a “clear turnaround,” or face possible dis-
charge.10
As part of its efforts to educate the RTs regarding missed
medications and filing occurrence reports, Hyatt began attend-
ing more weekly meetings of the RT department. The DPH’s
findings regarding missed medications were first discussed at
the November 17, 2010 meeting, with Trigilia informing the
staff that everything must be documented, and that the reason
for the missed medication or treatment in question must be
clear. Subsequently, missed medications were discussed at the
February 16 and March 28, 2011 meetings, the second of which
Hyatt attended. The minutes of the March 28, 2011 meeting
state as follows:

4. Revising 6–2:30 Responsibilities:
[subparagraphs a through c omitted]
d. Occurrence reports must be done on all missed
treatments and lack of documentation.
e. Forms will be put in the department. Once they are
filled out give them to Mike as he and Paul to give to
Pharmacy. Paul and Mike will be tracking this infor-
mation.

The record establishes that there was initially considerable
confusion among the RTs as to the nature of the occurrence
reports. Connelly and other RTs were concerned that the oc-
currence reports which Respondent was now encouraging them
to complete regarding missed medications would somehow
result in discipline, so that the RTs would in effect be “writing
each other up” in the course of documenting missed medica-
tions. Connelly believed that the occurrence reports the RTs

10 Hyatt stated that Trigilia made significant improvement during the
first 30 days of the PIP. Trigilia eventually left Respondent’s employ
of his own accord in June 2011.
were being asked to fill out were not medication occurrence
reports, but another type of occurrence report which could lead
to discipline or discharge. A March 31, 2011 email from Har-
per to Hyatt refers to a “considerable stir surrounding the new
RT requirement that staff report staff.” Hyatt in reply stated that
existing policy required the completion of an incident report
when an RT discovers that a treatment has not been adminis-
tered. Harper responded that he “could tell from the reaction
by some that this appeared to be new and [they] had questions
about it and concerns.” As a result, Hyatt and Hostage both
attended RT department meetings on April 5 and 11, 2011, to
discuss the nature and purpose of occurrence reporting for
missed medications.
F. Connelly’s Confrontation with Burke on
March 31, 2011
Although Connelly did not attend the March 28, 201111
meeting, other RTs discussed it with her during the days that
followed. According to Charland, she and Connelly, as well as
Slowenski and Maher, discussed the increased emphasis on
occurrence reports while working together. Charland stated
that all of the RTs were apprehensive because of the increased
focus on the RT department and missed medications in the
wake of the DPH investigation. Charland testified that Connel-
ly in particular was concerned that the number of missed medi-
cations could lead to “a lot of trouble with the state,” and that
the problem had to be corrected. Charland, Slowenski, Maher,
and Connelly were all concerned that completing occurrence
reports for missed medications would in fact constitute issuing
one another written warnings. According to Charland, the RTs
felt that further discussion with management was necessary to
determine whether increased occurrence reporting was the best
method for addressing the missed medications problem.
On March 31, Connelly arrived to begin her shift at 7 a.m.,
and went to the RT department documentation room. She re-
trieved her paperwork, and while writing out her assignment
she noticed the minutes of the March 28 RT department meet-
ing posted on the bulletin board. When she read “Occurrence
reports must be done on all missed treatments and lack of doc-
umentation,” she became upset, believing as she did that such
occurrence reports involved the RTs’ writing one another up.
She mentioned the occurrence reports to Hutson and RT Helena
Egolum, who were also present in the room. Hutson and
Egolum were also concerned about requiring the RTs to report
one another’s mistakes, which was what all three apparently
believed was being mandated. After reading that “Mike
[Burke] will be tracking this information,” Connelly decided to
speak with him. Before doing so, however, she looked in her
mailbox, which contained a form indicating that her request for
vacation time had been denied because another RT with more
seniority had requested permission to take vacation during the
same period.12

11 All subsequent dates are in 2011, unless otherwise indicated.
12 Connelly understood this to be Sophie Zeil, who had additional
seniority from her previous full-time employment with Respondent, as
discussed above.
GAYLORD HOSPITAL 1271

Connelly then went to Burke’s office, and stood in the door-
way while speaking to him. Connelly told Burke that she was
concerned for the RTs, given the requirement that they com-
plete occurrence reports for missed medications discussed at
the March 28 meeting. Connelly told Burke that the occurrence
reports were going to cause turmoil in the RT department, be-
cause the RTs would in effect be writing one another up. Con-
nelly told Burke that this was not the direction the department
should be taking. Burke attempted to explain to Connelly that
the RTs would not be writing one another up by completing
missed medication occurrence reports, and contended that the
emphasis on occurrence reports was not his fault. Connelly
testified that she responded that it was just going to cause more
trouble, and Burke testified that Connelly also told him that he
was “trouble.” Burke reiterated that the occurrence report re-
quirement had nothing to do with him, and Connelly stated that
he was involved because, according to the minutes, the reports
had to be submitted to him. Burke said that Hyatt was respon-
sible. Connelly began raising her voice during this discussion,
and Burke raised his voice as well in response. Connelly then
began discussing the denial of her vacation request, saying that
Sophie Zeil should not have more seniority than she did, be-
cause Zeil had retired. Burke tried to explain that he had con-
sulted with human resources, which had provided him with a
seniority list. After reviewing the list and consulting with
Trigilia, Trigilia determined that Zeil had more seniority, and
that as a result Connelly’s vacation request should be denied.
Finally, Egolum approached the office, and told Connelly that
they should begin their work, so that Connelly would not get in
trouble. Connelly and Egolum then left the doorway of Burke’s
office. The entire discussion between Burke and Connelly
lasted for about 3 to 4 minutes.
Burke’s office is in a small suite of offices off a corridor,
which also contains the RT breakroom, the food and nutrition
supervisor’s office, the blood gas lab, the RT administrative
office, the RT documentation room, the inpatient therapy su-
pervisor’s office, and a physician’s office. Although the inpa-
tient therapy supervisor sometimes sees patients in their office,
the suite of offices is not a patient care area, and there were no
patients present at the time of Burke and Connelly’s discussion.
During the discussion, someone may have closed the door of
the physician’s office next door to Burke.
At 7:40 a.m., Burke sent the following email to Trigilia:

Paul at 720 this morning Jeanine came to my door at my of-
fice questioning some of the minutes from Mondays minutes.
In discussing about miss[ed] tx’s13 and writing occurrence re-
ports. She disagreed with writing these on fellow therapist
which is fine she is allowed her thoughts. The[n] she started
to get verbally abusive with me screaming at me that I am
TROUBLE by making people do this. I tried to explain that it
came from upper management and she continued to get loud
with me. Helena heard it from the staff documentation room
and came in and grabbed Jeanine to pull her away. Consider
this a write up I will not tolerate this attitude and she is con-

13 “Tx’s” is intended to mean “treatments.”
tinually walking around here bad mouthing myself as I write
this.

(GC Exh. 29 (emphasis in original).)
G. Connelly’s Error in Performing an Arterial
Blood Gas Analysis on April 1
On April 1, Connelly arrived at the facility at 7 a.m., and was
assigned to work on the second floor of the Milne building.
When Connelly checked the bin for ABG tests she noticed that
there were three such tests which needed to be run.14 Prior to
running these tests, Connelly spoke to Gerstenhaber, who was
dictating at a computer at the Milne 2 nurses’ station, regarding
one of the patients, and explained that the results of their ABG
tests would be late because she was falling behind and in a
rush. Gerstenhaber explained that he had to be at a meeting in
10 minutes, and didn’t have much time. One of the ABG tests
had been ordered by Gerstenhaber to be performed on April 5,
and not on April 1. However, Connelly performed the test
ordered for April 5 on April 1, the day Gerstenhaber entered the
order, instead. When Connelly was putting together the paper-
work after the test had been performed, she noticed that she had
run the test on the wrong day. Connelly stated during her tes-
timony that although she was busy with patients that needed
attention that particular morning, the mistake was her fault,
because she did not pay careful enough attention to the dates on
Gerstenhaber’s order.15
Connelly then went to report the ABG results to Gersten-
haber, and explain that she had performed the test on the wrong
day. Connelly spoke to Gerstenhaber at the nurses’ station on
Milne 2, where he was still dictating.16 Connelly testified that
she told Gerstenhaber that although he had ordered the test for
April 5 she had run it that day. Connelly asked Gerstenhaber
whether he still wanted an ABG test run on the patient on April
5, and Gerstenhaber said that he did. They proceeded to review
the results of the ABG test and discuss the patient’s condition.
Connelly then asked Gerstenhaber whether he could put in an
order for the April 1 ABG test that she had just performed.
According to Connelly, Gerstenhaber said that he didn’t have
time because he was leaving. Connelly testified that she then
asked whether Gerstenhaber wanted her to put a verbal order in
for the test, and Gerstenhaber said OK.
Gerstenhaber testified that he recalled Connelly telling him
on April 1 that she had inadvertently run an ABG test which he
had ordered for April 5 on the morning of April 1 instead.
Gerstenhaber testified that he recalled Connelly then reporting

14 Normally these tests would have been run by the helper on the 6
a.m. to 2 p.m. shift, but the helper was covering for another RT who
was coming in late. Connelly was also delayed in running the test by
the need to stabilize additional patients on her floor. None of the ABG
tests ordered involved a medical emergency.
15 The parties stipulated at the hearing that Connelly’s error in per-
forming the ABG test on April 1, as opposed to April 5, had no adverse
impact on the care or condition of the patient.
16 Hyatt testified that this is not the appropriate procedure for report-
ing the results of an ABG test. Hyatt testified that the RT should in-
stead call or page the physician from the ABG lab, report the results
over the phone, and immediately enter the identity of the physician to
whom the results were reported into the Meditech system.
1272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

the results of the ABG analysis to him. Gerstenhaber could not
recall whether the conversation took place over the phone or in
person. In his affidavit, Gerstenhaber stated that he did not
recall anything else about their conversation, and in his testi-
mony Gerstenhaber stated that he specifically did not recall
Connelly asking him to enter an order covering the ABG test
mistakenly run on April 1, or Connelly asking his permission to
enter a verbal order covering the test.17 Gerstenhaber testified
that he believes that verbal orders are highly susceptible to
misinterpretation and cause confusion, and that as a result he
had never given permission for a verbal order in a nonemergent
situation.18 This is consonant with Respondent’s policy, as
articulated by Teba, that verbal orders are appropriate in emer-
gency situations only.19 As a result, Gerstenhaber testified that
it was “extremely unlikely” that he gave Connelly permission
to enter a verbal order on April 1 to cover the ABG test that
Connelly inadvertently performed that day.
At 8:12 a.m., after her discussion with Gerstenhaber, Con-
nelly entered a verbal order for the April 1 ABG test whose
results she had just reported to Gerstenhaber into the Meditech
system, using the order entry module. However, Connelly
entered the verbal order as an order given to her by, and read
back to, Dr. Sadia Abbasi. I find, for the reasons discussed in
section III,(C),(3), infra, that Connelly entered intentionally
entered Abbasi’s name into the Meditech system when entering
the verbal order for the ABG mistakenly performed on April 1.
On April 1, at 3:50 p.m., Susan Fanning of Respondent’s
medical services sent an email to Abbasi and Trigilia, among
others, indicating that there was an unsigned verbal order in
Abbasi’s sign queue entered by Connelly for the ABG test she
mistakenly performed that morning. Fanning asked Trigilia to
investigate.
H. The Written Warning Issued to Connelly on April 1, Based
Upon Her Confrontation with Burke the Previous Day
After receiving Burke’s email on the morning of March 31
regarding the confrontation with Connelly, Trigilia began in-
vestigating the incident. Trigilia spoke to Burke, who ex-
plained what had happened. Trigilia told Burke that they were
going to have to issue a writeup to Connelly, at one point men-
tioning that the incident might be grounds for discharge, alt-
hough he didn’t believe that would come about. Burke testified
that he felt that some sort of discipline was necessary, and rec-
ommended that Connelly be issued a verbal warning. Trigilia
felt that a written warning would be more appropriate because

17 Gerstenhaber testified that because the medical group to which he
belongs was contractually obligated to provide 4 hours of service a day,
he typically did not leave Respondent’s facility until 10 a.m. Respond-
ent introduced evidence at the hearing that Gerstenhaber’s last patient
note on April 1 was entered at 9:51 a.m. Gerstenhaber was adamant
during his testimony that although it is technologically possible to enter
such patient notes from another location, he does not do so, because he
prefers to enter notes immediately after seeing the particular patient.
18 As discussed in sec. III,(A), infra, the weight of the credible evi-
dence does not establish that Gerstenhaber gave verbal orders between
December 6, 2010, and Connelly’s discharge.
19 As discussed in sec. III,(A), the preponderance of the credible evi-
dence establishes that verbal orders were rarely given outside of emer-
gency situations such as codes.
Connelly had been insubordinate, but did not mention Connel-
ly’s outspokenness. Burke testified that the discussion centered
on Connelly’s behavior and manner of addressing him. In the
course of investigating the incident, Trigilia also spoke to
Egolum.
In the early afternoon of March 31, Trigilia and Burke met
with Connelly in Burke’s office. Trigilia discussed the inci-
dent, telling Connelly that she had been yelling at Burke, which
constituted insubordination. He told Connelly that she would
probably be receiving a written warning. According to Connel-
ly, she then raised the issue of occurrence reports, and said that
the RTs were unhappy with being required to complete them.
Trigilia explained in response that medication occurrence re-
ports were at issue, and they discussed the possibility of receiv-
ing notification from the pharmacy department when missed
medications occurred. Connelly then left the office to return to
work.
Subsequently, Trigilia and Hyatt met to discuss the incident
and the appropriate discipline. Hyatt was concerned because
Burke was new to the supervisory position, and believed that
Connelly had spoken to him in a loud and inappropriate manner
in a relatively open area. Hyatt agreed that a written warning
was appropriate. Trigilia and Hyatt then composed a written
warning together, which states as follows:

I have completed my investigation of what occurred this
morning between you and Michael Burke in the respiratory
staff area. Mike reported that you were screaming at him and
said “you are trouble.” This has been corroborated by a wit-
ness. Speaking to a supervisor in this manner is disrespectful,
insubordinate and will not be tolerated.

The warning also states that if the behavior occurs again, fur-
ther disciplinary action up to and including termination may be
imposed.
On April 1, Trigilia and Burke met with Connelly to issue
the written warning to her. Burke called Connelly while she
was working, and while on her way to Burke’s office, Connelly
asked Slowenski to accompany her as a witness. When they
arrived, Trigilia told Connelly she was being given a written
warning for insubordination because she had screamed at
Burke. Trigilia asked Connelly to sign the written warning, and
Connelly refused to do so, because she believed it to be inaccu-
rate. Connelly then told everyone that she was going to human
resources, and left.
Connelly proceeded to the office of Employment Adminis-
trator Bryana Minor, in human resources. Connelly and Minor
discussed both the written warning and the occurrence reports
issue. Connelly told Minor that she felt the written warning
was inaccurate, and that management had skipped several steps
in the disciplinary process. Connelly also stated that in her
opinion Burke should have been disciplined as well, because he
had also raised his voice. Connelly then told Minor that during
her confrontation with Burke she had been addressing the oc-
currence reports and the turmoil she felt that they would cause
in the department. Minor explained that the medication occur-
rence reports were not intended to be used for disciplinary pur-
poses, but only to obtain accurate information and to allow
situations to be addressed in a timely manner. Minor suggested
GAYLORD HOSPITAL 1273

that Trigilia and Burke be called into the meeting, so that they
could address the issues together and move forward.
Trigilia and Burke arrived, and the discussion continued.
Connelly reiterated her concerns regarding the occurrence re-
ports, and Minor asked Trigilia to explain the issue from a clin-
ical and departmental perspective. Connelly stated that she felt
the writeup was not fair, because Burke had raised his voice as
well and was not receiving any discipline. Burke said that he
had in fact raised his voice, but only to attempt to get Connel-
ly’s attention because Connelly was not listening to him.
Trigilia said that Connelly was still being written up. At that
point, Minor said that because it was getting late in the day the
participants should take a break and reconvene on Monday to
continue the discussion. Before ending the meeting, Minor told
Trigilia, Burke, and Connelly that they should keep the discus-
sion to themselves for now, and resume the conversation on
Monday. After the meeting, Connelly was still upset, and ei-
ther Burke or Trigilia told her that she should go home for the
day.
I. Respondent’s Investigation Regarding the Documentation
of Connelly’s April 1 Error, and Connelly’s Suspension
and Discharge
On the morning of April 4, Trigilia visited Burke in his of-
fice, and said he had received an email from Abbasi that there
was a verbal order in her sign queue from a day that she had not
been working.20 Trigilia asked Burke to investigate and deter-
mine who had created the verbal order, and under what circum-
stances. Hyatt also recalls Trigilia calling her that morning and
informing her of the issue. Hyatt believed that Burke was in-
vestigating as a result.
Burke went to the blood gas laboratory and reviewed its rec-
ords to determine what blood gas was run and who signed it.
He then ran the order trail as well, which revealed Connelly’s
name. When he brought this information to Trigilia, Trigilia
asked him to speak to Connelly about it. Burke approached
Connelly, and asked her what happened and why a verbal order
was entered under Abbasi’s name. Connelly stated that she had
tried to put the order into the Meditech system under Gersten-
haber’s name, but the system did not allow her to do so, and
Abbasi’s was the name that came up.21 Connelly explained that
she did not change Abbasi’s name after it came up in the sys-
tem because Abbasi was the attending physician on the floor

20 The following account is based in large part upon the testimony of
Hyatt and Burke. As discussed in secs. III,(A) and (C), below, of the
witnesses directly involved in Respondent’s investigation of the April 1
verbal order for the ABG test, I find the testimony of Hyatt and Burke
most reliable, with certain exceptions in Burke’s case discussed below.
Trigilia had a generally poor memory of these events, and Harper was
only peripherally involved.
21 Burke initially testified that Connelly told him that the Meditech
system “defaulted” to Abbasi’s name. Later, Burke testified that Con-
nelly did not use the word “default,” and that he surmised on his own
that Abbasi’s name was the “default name” because she was the attend-
ing for that particular patient. Burke later stated that his testimony
regarding a “default” to Abbasi’s name was based on a meeting months
after Connelly’s discharge with Susca, who purportedly informed those
attending that a “glitch” in the Meditech system could result in a “de-
fault” to Abbasi’s name.
that day.22 Connelly said that she was aware that Abbasi, as
opposed to Gerstanhaber, ended up as the physician on the
verbal order. Burke asked Connelly why she did not come and
discuss the matter with him at the time, to see if they could
correct the problem. In Burke’s affidavit provided during the
investigation he stated that Connelly did not respond to this
question, but at the hearing Burke testified that Connelly re-
sponded that she was busy, and Burke informed her that that
was not an acceptable excuse.
Burke then reported his conversation with Connelly to
Trigilia. Trigilia responded that Connelly had intentionally
falsified a medical record, and that disciplinary action, possibly
termination, was necessary. Burke testified that at this point he
believed that although Connelly was aware that the verbal order
was entered under an incorrect physician name, she had not
intentionally falsified a medical record. Trigilia and Burke then
met with Hyatt and explained what they had discovered up to
that point. Hyatt directed them to speak with Gerstenhaber, and
attempt to determine what had happened. There was no rec-
ommendation or discussion of discipline to be imposed at this
meeting.
At some point Trigilia also spoke with Abbasi, who told him
that she would not sign off on the ABG test, because she had
not ordered it and had not been given the results. The April 1
order therefore remained unsigned.23
Burke then went to discuss the ABG test with Gerstenhaber.
Apparently, he first approached Connelly and told her that he
was going to be speaking with Gerstenhaber. Connelly told
him that she wanted to speak with Gerstenhaber as well. They
located Gerstenhaber, and went into the documentation room
on Milne 2. Connelly began the conversation, and asked Ger-
stenhaber whether he remembered giving her a verbal order the
past Friday for a blood gas that was run on the wrong day.
Gerstenhaber responded, “I’ll cover for you this time, but don’t
let it happen again.”24 Gerstenhaber testified that at the time he
made this statement he was not aware that there was already an
order in the Meditech system for the April 1 ABG under Ab-
basi’s name. Gerstenhaber testified that he assumed at the time
that no order for the April 1 ABG test had been entered into the
system. He testified that by his statement, “I’ll cover for you
this time, but don’t let it happen again,” he meant that he was
willing to have an order placed in the system under his name to
cover the April 1 ABG test. Gerstenhaber testified that he
would not have offered to do so had he known that there was
already a verbal order in the system under another physician’s
name.
Burke and Trigilia then met with Hyatt to discuss the new in-
formation they had discovered. Trigilia reported to Hyatt that
Connelly had put the order into Meditech under Abbasi’s name
because Abbasi was the attending physician. Hyatt asked
Trigilia how difficult it would have been to retrieve Gersten-

22 In fact, Abbasi was not the attending for Milne 2 on April 1.
23 The order was never signed, and Respondent eventually voided
any charges for the ABG test.
24 For the reasons discussed in sec. III,(C), I find that Gerstenhaber
did not tell Burke and Connelly that he remembered giving Connelly
the verbal order on April 1.
1274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

haber’s name in the system, and Trigilia said that if the letter
“G” were typed in, all of the doctors whose names began with
“G” would come up. In addition, the RT could always seek
assistance from a supervisor or coworker. Trigilia also related
Burke’s conversation with Gerstenhaber, wherein Gerstenhaber
stated, “I’ll cover for you this time, but don’t let it happen
again,” and they discussed whether Gerstenhaber had in fact
given Connelly a verbal order on April 1. Hyatt believed that if
Gerstenhaber had actually given the verbal order on April 1 he
would have explicitly said as much. She concluded that Ger-
stenhaber meant that he was willing to put in a retroactive order
covering the April 1 ABG test at that time, but had not given
the verbal order to do so on April 1.
Hyatt and Trigilia believed that Connelly’s conduct consti-
tuted falsification of a medical record and was a very serious
offense, because the order was entered under the name of a
physician who had not authorized it and had no knowledge of
it. Hyatt directed Trigilia to determine whether any additional
investigation needed to be conducted, and they decided to sus-
pend Connelly. Hyatt also wanted time to consult with human
resources regarding the matter. Hyatt could not recall whether
she made any recommendation at the meeting as to what disci-
pline would ultimately be appropriate. She testified that Trigil-
ia recommended that Connelly be discharged. According to
Hyatt, Burke did not do anything to indicate disagreement dur-
ing this meeting.
For the reasons discussed in section III,(C), infra, I do not
credit Burke’s testimony that he informed Trigilia prior to
meeting with Hyatt that, in his opinion, Gerstenhaber had in
fact given Connelly a verbal order on April 1 for the ABG test
Connelly had performed on the wrong day. I also do not credit
Burke’s testimony that he informed Hyatt, or anyone else in
Respondent’s management, that he believed that Gerstenhaber
had given Connelly the verbal order on April 1, prior to leaving
his employment with Respondent in December.
Trigilia and Burke then met with Connelly to inform her that
she was being suspended. Trigilia asked Connelly whether she
had put a blood gas under Abbasi’s name, and Connelly asked
Burke whether they were talking about the ABG test they had
just discussed with Gerstenhaber. Burke did not respond, and
Trigilia said that Connelly was being suspended pending fur-
ther investigation of the incident. Trigilia said that he would
call Connelly and let her know the final outcome of the investi-
gation. Connelly asked about her patients and retrieving her
belongings, and Trigilia said that Burke and a security guard
would escort her to the floor so she could pick up her things.
While walking Connelly out of the building, Burke told her not
to worry, because she had Gerstenhaber on her side. Burke
testified that he said this based upon Gerstenhaber’s statement,
“I’ll cover for you this time,” because he wanted to make Con-
nelly feel better about the situation.
During the afternoon of April 4, Connelly saw Harper in
Milne 2 and asked to speak with him; Harper suggested that she
come to his office at 5 p.m. Connelly testified that she dis-
cussed her confrontation with Burke regarding the occurrence
reports, contending that she had not been screaming and that
the warning was inaccurate. According to Connelly, Harper
responded that he had heard about what was going on in the RT
department. Harper said that in the future there would only be
a positive work environment, and that complainers would have
to go. Harper testified that Connelly complained about the
warning she had received regarding the confrontation with
Burke, arguing that although she had been loud with Burke,
Burke had raised his voice toward her as well. Harper testified
that he tried to explain that Connelly and Burke were in differ-
ent positions, and that yelling at a supervisor was not appropri-
ate. Connelly also expressed her concerns regarding the occur-
rence reports. Harper testified that he suggested that she speak
to Burke and Trigilia, and attempt to move past the confronta-
tion to develop more productive working relationships.
During the next several days, Hyatt, Trigilia, and Burke con-
tinued to discuss the incident.25 Trigilia reviewed the audit trail
again, discussed the matter with Hyatt and, together with Har-
per, drafted and edited a letter to Connelly discharging her.
Hyatt testified that she made the ultimate decision to discharge
Connelly, and believed that discharge was appropriate because
Connelly entered a verbal order into the system from a doctor
that she had never spoken to and did not in fact have an order
from. Given the information available at the time, Hyatt be-
lieved that Connelly was attempting to cover up having entered
the order under the name of a physician that had not given it,
and possibly also the fact that she had performed the ABG test
on the wrong day. Trigilia testified that he believed discharge
was appropriate for a number of reasons, including the fact that
the ABG test was an invasive procedure and the entering of the
verbal order under the name of a physician who had not given
it. Respondent’s termination statement, which incorporates
Burke’s activities during the investigation, states as follows:

It was reported to me that you entered a “verbal order” on
4/1/11 without the approval of the doctor. When I looked into
this, I found that you had performed a clinical procedure (Ar-
terial Blood Gas) on the wrong day, not in concert with the
written MD directive. When I asked you about this you ad-
mitted to performing the procedure on the wrong day. When
I asked you why you entered the verbal order for the wrong
day using a different doctor, you said it was because her name
was the first to come up. During a follow up conversation
with you, your supervisor Mike Burke, and me, you admitted
that you entered the “verbal order” order without authoriza-
tion from a doctor. I told you that this was a serious breach of
protocol and you were suspended pending further investiga-
tion.

My further investigation confirmed my earlier findings. The
physician has confirmed that she never spoke to you about
this procedure and did not give a verbal or telephone order to
you for this procedure. She was not even on duty at the time.
Further, falsifying a medical record is an egregious breach of
procedure. Not only does this put the patient at risk, but it al-
so puts the hospital at risk. The “verbal order” entry require-
ment is a well established protocol that requires an actual ver-
bal order from a physician.

25 On April 6, Connelly spoke to Gerstenhaber. Gerstenhaber told
Connelly that he had spoken with Trigilia, and that Connelly had com-
mitted a very serious offense.
GAYLORD HOSPITAL 1275

Therefore, your employment with Gaylord is terminated ef-
fective April 8, 2010 [sic].

Trigilia testified that he made several attempts to call Con-
nelly during this time, in order to inform her that Respondent
had decided to terminate her, but was unsuccessful until April
8. On that day, the termination statement was sent to Connelly,
along with a letter containing her final paycheck and other in-
formation.
III. ANALYSIS AND CONCLUSIONS
A. General Conclusions Involving Witness Credibility
I found the Charging Party, Jeanine Connelly, to be a gener-
ally credible witness with respect to many of the specific events
leading to her written warning on April 1 and her suspension
and discharge on April 5 and 8, respectively. However, I also
found that she exhibited a propensity for exaggeration, and for
making assertions of fact regarding matters of which she knew
little. Perhaps most importantly, Connelly gave several contra-
dictory explanations regarding the manner in which Abbasi’s
name appeared on the verbal order for the April 1 ABG that she
entered, regardless of her purported lack of understanding of
the Meditech system itself. Of course, Connelly is an RT, and
not an information technology specialist, and eventually she
admitted that she had no idea how Abbasi’s name ended up on
the verbal order. But I find her willingness to make repeated
assertions regarding issues about which she knew little, regard-
less of their importance, revealing in assessing the reliability of
her testimony.
Connelly thus engaged in conjecture regarding practices at
the hospital which was contradicted by more reliable evidence.
For example, Connelly testified that Gerstenhaber had given
her “some” verbal orders between December 6, 2010, and the
time of her discharge, and had encouraged her to take verbal
orders in general. However, an analysis of electronic data in
the Meditech system performed by Respondent established that
Gerstenhaber issued no verbal orders at Respondent’s facility
during that time period.26 In fact, the evidence establishes that
verbal orders were strongly discouraged outside of emergency
situations such as codes, and that verbal orders were rarely
given. This policy was established by Teba, Respondent’s
chief medical officer, and reiterated at RT department meetings
beginning on December 6, 2010. Respondent’s analysis of
electronic data established that from December 2010 through
February 2012 only three verbal orders, including Connelly’s
April 1 order, were entered in the RT department.27 Burke,

26 I do not find that the evidence establishes that Gerstenhaber gave
Charland a verbal order on or about February 27, 2011, as the record is
unclear as to whether or not the particular patient was on a protocol
which would allow RTs to enter orders without a physician’s involve-
ment.
27 I do not find the evidence regarding verbal orders placed by em-
ployees in Respondent’s nursing department to be probative. The nurs-
ing department employees have different duties and a different line of
supervision than the RTs, and there is no evidence regarding the verbal
orders they might enter, or the specific circumstances which would be
involved. In addition, the nursing department is almost 10 times the
size of the RT department.
Hutson, and Slowenski all testified that they were aware of
Respondent’s policy that verbal orders were appropriate in
emergencies only, and Hutson and Slowenski both testified that
they would not take verbal orders in nonemergent situations.
Similarly, although Connelly claimed that running a test on
the wrong day was a common mistake, none of the RTs cur-
rently employed by Respondent, or Burke, were able to recall
specific examples of having done so. Indeed, Slowenski testi-
fied that she last made such a mistake in 2006, and Hyatt testi-
fied, based upon research performed by Switajewski, that tests
had been run on the wrong day on only two occasions in the
previous 12 months. Connelly also repeatedly asserted that
occurrence reports involving issues other than missed medica-
tions were completed in triplicate, while Hyatt testified that
Respondent had never used such forms. Connelly claimed that
the opening of the Milne building coincided with a change in
Respondent’s licensure, which Hyatt more credibly testified
had never occurred. Finally, Connelly was argumentative and
unresponsive on cross-examination, and had to be directed by
me to answer the questions posed to her on more than one oc-
casion (Tr. 585, 587, 589).
I found RTs Teresa Charland, William Hutson, and Marlene
Slowenski, all currently employed by Respondent, to be credi-
ble witnesses overall. It is well settled that as current employ-
ees of Respondent, their testimony may be considered particu-
larly reliable in that it is potentially adverse to their own pecu-
niary interests, as the Board has noted. Covanta Bristol, Inc.,
356 NLRB 246, 253 (1995), enfd. 83 F.3d 419 (5th Cir. 1996).
However, I found that they also made assertions regarding is-
sues, such as mistakenly performing a test on the wrong day
and entering an incorrect physician name, which were not
borne out by their recollection of specific incidents, or by Re-
spondent’s investigations using its electronic recordkeeping
systems. As a result, I find these elements of their testimony
less reliable.
I found Michael Burke to be a credible witness with respect
to Trigilia’s statements describing Connelly as a “loudmouth,”
a “troublemaker,” and the like, and regarding much of Re-
spondent’s investigation into the verbal order for the April 1
ABG test. The specific exceptions where I found Burke’s tes-
timony to be less than credible are discussed in detail in section
III,(C), below.
The General Counsel argues that adverse inferences should
be drawn based upon Respondent’s failure to call Helena
Egolum and Tracie Switajewski, who are currently employed
by Respondent, as witnesses. I decline to do so. While an
adverse inference may be drawn from the failure of an employ-
er to call a current manager, supervisor, or agent, current em-
ployees cannot be considered predisposed to testify in one
manner or another, and are equally available to both parties.28

28 While in several cases an ALJ has drawn an adverse inference
from an employer’s failure to call a manager’s secretary as a witness, I
find those cases inapplicable. In Pratt Towers, Inc., the secretary in
question was the sole person that the discriminatee informed regarding
the condition for which he was allegedly discharged, and in the case
cited by the ALJ in support of drawing an adverse inference Respond-
ent’s owner, as opposed to an employee, was not called to testify. 338
1276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Compare International Automated Machines, Inc., 285 NLRB
1122 (1987), enfd. 861 F.2d 720 (6th Cir. 1988); and Torbitt &
Castleman, Inc., 320 NLRB 907, 910 fn. 6 (1996), enfd. in
relevant part 123 F.3d 899, 907 (6th Cir. 1997). There is no
evidence in the record to establish that Egolum and Switajewski
are managers, supervisors, or agents of Respondent, and ad-
verse inferences are therefore not warranted.
With respect to Respondent’s witnesses, I found Charlotte
Hyatt to be generally credible. Hyatt was thoughtful and
straightforward, even when responding to questions which
could have elicited an answer more favorable to Respondent’s
case, and candidly admitted as much when information sought
was beyond her knowledge. I found Walter Harper to be credi-
ble as well regarding his participation in the investigation and
Connelly’s discharge; as he testified, his role was primarily an
advisory and consultative one. I also found Bryana Minor to be
a generally straightforward and credible witness. On the other
hand, I found Trigilia to be a less than reliable witness. His
memory of the events of the investigation regarding the April 1
verbal order was generally poor, and I do not credit his asser-
tion that he never complained about Connelly to Burke. I have
generally viewed his testimony with skepticism unless con-
firmed by another witness, or unless I found another witness’
testimony to the contrary incredible.
B. Respondent Violated Section 8(a)(1) by Issuing a Written
Warning to Connelly on April 1, Based Upon Her March 31
Confrontation with Burke
1. Contentions of the parties and the applicability
of Atlantic Steel
The General Counsel and Respondent make various argu-
ments regarding the appropriate standards for determining
whether Connelly’s April 1 written warning, based upon her
discussion with Burke on March 31, violated Section 8(a)(1) of
the Act, and in particular the applicability of the analysis articu-
lated by the Board in Atlantic Steel Co., 245 NLRB 814, 816
(1979). The General Counsel argues that Respondent violated
Section 8(a)(1) by issuing a written warning to Connelly on
April 1 in retaliation for her protected concerted activity. The
General Counsel contends that the Atlantic Steel analysis is
inapplicable, because the evidence establishes that Connelly did
not scream at Burke or refer to him, as opposed to the medica-

NLRB 61, 98–99 (2002), citing Bay Metal Cabinets, Inc., 302 NLRB
152, 157, 173 (1991), enfd. 940 F.2d 661 (6th Cir. 1991). In Made 4
Film, Inc., the ALJ relied in drawing an adverse inference on Desert
Pines Golf Club, but in that case the Board explicitly declined to rely
upon the adverse inference drawn by the ALJ in affirming the ALJ’s
decision. 337 NLRB 1152, 1159 (2002), citing Desert Pines Golf Club,
334 NLRB 265 fn. 1 (2001). Finally, in AC Electric, the secretary not
called to testify actually signed the Region’s commerce questionnaire
on behalf of respondent, which contended that it was unaware that the
questionnaire existed. 333 NLRB 987, 1000 (2001).
Villa Maria Nursing Home and Food Lion, cited by the General
Counsel, involved, respectively, a labor consultant retained by respond-
ent, and a member of the family owning the property from which the
charging party union had been unlawfully excluded. Villa Maria Nurs-
ing Home, 335 NLRB 1345, 1345 fn. 1, 1355 (2001), enfd. 49 Fed.
Appx. 289 (11th Cir. 2002); Food Lion, 340 NLRB 602, 608 fn. 4
(1991). Both cases are therefore inapposite.
tion occurrence reporting policy, as “trouble.” The General
Counsel further argues that even if the Atlantic Steel analysis is
appropriate, three of its four components support the conclusion
that Connelly’s conduct did not lose the Act’s protection.
Respondent argues that the April 1 written warning was not
unlawful. Respondent contends that the Atlantic Steel analysis
is insufficient to encompass the situation at issue here, given
that its work force is not unionized, there is no organizing cam-
paign involved, and Respondent operates a hospital, as opposed
to an industrial facility such as a factory. Respondent also ar-
gues that the Atlantic Steel analysis is typically applied only in
cases involving discharge, as opposed to other forms of disci-
pline. Respondent further contends that three of the four com-
ponents of the Atlantic Steel test tend to establish that Connel-
ly’s conduct during her confrontation with Burke lost the pro-
tection of the Act.
I find that the Atlantic Steel analysis is appropriate here. As
an initial matter, I find that Connelly was engaged in protected
concerted activity when discussing the medication occurrence
reports and seniority issue with Burke. An employee engages
in protected concerted activity when they “act with or on the
authority of other employees,” and not solely on their own be-
half. Meyers Industries, 268 NLRB 493, 496 (1984) (Meyers
I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985), on remand Meyers Industries, 281 NLRB 882 (1986)
(Meyers II), enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C.
Cir. 1981). Employee activity may be concerted where it arises
out of prior group activity, where the employee acts either for-
mally or informally on behalf of the group, or when the em-
ployee solicits other employees to engage in group action. TM
Group, Inc., 357 NLRB 633, 646, slip op. at 14 (2011), quoting
Asheville School, 347 NLRB 877 (2006). Discussions of disci-
pline which enforces employer policies are protected. See, e.g.,
Kiewit Power Constructors Co., 355 NLRB 708, 708–709
(2010), enfd. 652 F.3d 22 (D.C. Cir. 2011).
Here, the medication occurrence reports issue was clearly of
concern to the entire group of RTs. The evidence establishes
that the RTs had discussed the occurrence reports and the ex-
tent to which they might result in discipline, amongst them-
selves, and were worried that completing the occurrence reports
would constitute disciplining one another, or “writing each
other up.” Indeed, the RT staff’s concern regarding the medi-
cation reports, or, as Harper summarized, “the considerable stir
surrounding the new RT requirement that staff report staff,”
was sufficiently widespread that both Hyatt and Hostage even-
tually addressed this specific topic at several RT department
meetings. Connelly’s confrontation with Burke was immedi-
ately engendered by her reading the minutes of the RT depart-
ment’s March 28 meeting regarding the occurrence reports. As
a result, I find that Connelly was engaged in protected concert-
ed activity during her March 31 discussion with Burke.
I also find that the Atlantic Steel analysis is appropriate, de-
spite Respondent’s argument that Connelly’s discussion with
Burke took place in the context of a nonunionized healthcare
facility with no organizing campaign. The Board has not lim-
ited the Atlantic Steel analysis to manufacturing entities, and
has in previous cases applied the test in the context of
healthcare facilities. See, e.g., Beverly Health & Rehabilitation
GAYLORD HOSPITAL 1277

Services, 346 NLRB 1319, 1322–1323 (2006) (applying Atlan-
tic Steel to conduct occurring at a nursing home); Lee’s Indus-
tries, 355 NLRB 1267 (2010) (Atlantic Steel analysis applied to
outburst by home health aide). Nor is the Atlantic Steel analy-
sis limited to unionized workplaces or traditional labor-
management settings such as grievance meetings or collective-
bargaining negotiations. See Plaza Auto Center, 355 NLRB
493 (2010), enfd. in relevant part 664 F.3d 286 (9th Cir. 2011)
(outburst by car salesman in nonunionized dealership); Dat-
wyler Rubber & Plastics, Inc., 350 NLRB 669 (2007) (state-
ments by employee in nonunion automobile parts plant). Final-
ly, there is no basis for applying the Atlantic Steel analysis
solely in cases of discharge, as opposed to other forms of disci-
pline.29 See Beverly Health & Rehabilitation Services, 346
NLRB at 1322 (applying Atlantic Steel to evaluate an argument
resulting in a 3-day suspension).
The Atlantic Steel analysis requires the consideration of four
factors in order to determine whether an employee’s conduct
during an otherwise protected discussion is sufficiently egre-
gious to obviate the Act’s protection: (i) the place of the dis-
cussion; (ii) the discussion’s subject matter; (iii) the nature of
the outburst on the part of the employee; and (iv) whether the
outburst was provoked by the employer’s unfair labor practices.
See, e.g., Plaza Auto Center, Inc., 355 NLRB at 494, citing
Atlantic Steel, 245 NLRB at 816. The four Atlantic Steel crite-
ria are intended to permit “some latitude for impulsive conduct
by employees” during protected concerted activity, while ac-
knowledging the employer’s “legitimate need to maintain or-
der.” Plaza Auto Center, Inc., supra. As the Board has stated,
the protections of Section 7 must “take into account the realities
of industrial life and the fact that disputes over wages, bonuses,
and working conditions are among the disputes most likely to
engender ill feelings and strong responses.” Consumers Power
Co., 282 NLRB 131, 132 (1986). Therefore, statements during
otherwise protected activity lose the Act’s protection only
where they are “so violent or of such serious character as to
render the employee unfit for further service.” St. Margaret
Mercy Healthcare Centers, 350 NLRB 203, 204–205 (2007),
enfd. 519 F.3d 373 (7th Cir. 2008), quoting Dreis & Krump
Mfg. Co. v. NLRB, 544 F.2d 320, 329 (7th Cir. 1976).
2. The Atlantic Steel analysis
Evaluating the four Atlantic Steel factors, I find that the evi-
dence establishes that Connelly’s conduct during her confronta-
tion with Burke remained protected by the Act. The first com-
ponent of the Atlantic Steel analysis militates only slightly in

29 I also reject General Counsel’s argument that the application of
Atlantic Steel is unnecessary because Connelly never screamed at
Burke or called him “trouble.” The evidence establishes that Connelly
did raise her voice and use the word “trouble.” I reject as incredible
Connelly’s testimony that when she was issued the written warning
regarding her confrontation with Burke, Trigilia told her that the warn-
ing was for “screaming and complaining.” Burke testified that Connel-
ly was never told that the warning encompassed “complaining,” and the
affidavit Connelly provided during the investigation does not state that
she was told that the warning was being issued for this reason. I there-
fore find that Trigilia and Burke did not tell Connelly during this meet-
ing that her complaining was the subject of the written warning.
favor of finding that Connelly’s conduct retained protection and
the fourth component does not favor protection. However, I
find that because the second and third factors strongly support
the conclusion that her conduct remained protected, overall her
activity retained its protected character.
The first component of the Atlantic Steel test requires a con-
sideration of the location of the employee’s outburst. I find that
the evidence pertinent to this factor ultimately weighs slightly
in favor of a finding that Connelly’s conduct remained protect-
ed. Connelly and Burke’s confrontation took place during
worktime, and occurred in a suite of offices used for adminis-
trative work such as charting and morning report. Connelly
initiated the confrontation, and thus its location was not deter-
mined by some act on Respondent’s part.30 See, e.g., Kiewit
Power Constructors Co., 355 NLRB at 709 (employer deter-
mined the location of intemperate remarks by distributing
warnings in a work area during worktime, and in front of other
employees). Egolum and Hutson overheard the argument, so
that the confrontation could have undermined workplace disci-
pline and the authority of a supervisor. DaimlerChrysler Corp.,
344 NLRB 1324, 1329 (2005). However, the evidence also
establishes that the area was not a patient care area, and there is
no evidence that the conversation was overheard by patients or
visitors. Beverly Health & Rehabilitation Services, 346 NLRB
at 1322 fn. 20 1323. In addition, the evidence establishes that
during the confrontation Egolum approached Connelly, sug-
gested that they begin working, and guided her out of the area,
not a course of events which indicates that her respect for
Burke’s supervisory position had been derogated by Connelly’s
outburst. Nor does the evidence establish any disruption to
Respondent’s operations as a result of the confrontation. Alt-
hough someone may have closed the door to an office in the
suite used by physicians, there is no evidence as to why they
did so. There is no other evidence establishing that Respond-
ent’s business, in terms of either patient care or other functions,
was disrupted by the exchange. In addition, the cases dis-
cussed by Respondent in this regard involve “repeated, sus-
tained, ad hominem profanity,” as opposed to a statement that
someone is “trouble.” Aluminum Co. of America, 338 NLRB 1,
3 (2002); see also DaimlerChrysler Corp., 344 NLRB at 1329–
1330.
Because the confrontation did not take place in a patient care
area, and there is no evidence of a negative impact on Burke’s
supervisory authority or a disruption of Respondent’s opera-
tions, I find that the first of the Atlantic Steel factors, the loca-
tion of the conversation, weighs slightly in favor of a finding
that Connelly’s conduct remained protected.
I find that the second Atlantic Steel criterion—the nature of
the discussion—strongly favors a conclusion that Connelly’s

30 In the cases cited by General Counsel, the location of the confron-
tation was ultimately determined by the employer’s conduct in, for
example, calling a meeting of employees and management. Datwyler
Rubber & Plastics, 350 NLRB at 670 (outburst took place during regu-
lar monthly meeting held by Respondent where employees “were free
to raise workplace issues”); Noble Metal Processing, Inc., 346 NLRB
795, 798–800 (2006) (statements made during meeting called by quali-
ty manager).
1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

activity remained protected. The evidence establishes that the
medication occurrence reports were a matter of ongoing con-
cern to the entire RT department, and that the RTs were upset
about what they viewed as a requirement that they “write each
other up.” The record also establishes that the RTs discussed
the issue extensively amongst themselves, and that Connelly’s
reading about the occurrence reports discussion in the minutes
of the March 28 RT department meeting immediately precipi-
tated her confrontation with Burke. Indeed, in an April 2 email
to Hyatt, Harper states that the occurrence reporting issue and
Connelly’s April 1 written warning “are all related,” and that
the RTs were “getting restless” about the occurrence reports
issue. Overall, because the subject matter of the conversation
involved protected concerted activity, this factor strongly mili-
tates in favor of a finding that Connelly’s activity remained
protected under the Act.
I find that the third of the Atlantic Steel factors, the nature of
the outburst, also militates strongly in favor of protection.
Even if Connelly did refer to Burke himself, as opposed to the
occurrence reports policy, as “trouble,” that characterization
would be insufficient to divest Connelly’s activity of the Act’s
protection. In fact, it is positively genteel compared to other
language used in the course of conduct that ultimately remained
protected. See Plaza Auto Center, 355 NLRB 494–497, re-
manded in relevant part 664 F.3d 286 (employee’s activity
remained protected, despite reference to owner as a “fucking
motherfucker,” “fucking crook,” and “asshole,” as “a single
verbal outburst of insulting profanity does not exceed the
bounds of the Act’s protection”); Tampa Tribune, 351 NLRB
1324, 1324–1325 (2007), enf. denied 560 F.3d 181 (4th Cir.
2009) (employee called vice president a “stupid fucking mor-
on”); see also Alcoa, Inc., 352 NLRB 1222, 1225–1226 (2008)
(employee referred to supervisor as an “egotistical fucker”);
Burle Industries, 300 NLRB 498 (1990), enfd. 932 F.2d 958
(3d Cir. 1991) (employee called supervisor a “fucking ass-
hole”). In addition, there is no evidence that Connelly’s out-
burst involved threats or physically intimidating conduct. See
Plaza Auto Center, 355 NLRB at 495–496, remanded in rele-
vant part 664 F.3d 286 (nature of outburst “not so opprobrious”
as to deprive employee of statutory protection where no evi-
dence of physical harm or threatening conduct); Tampa Trib-
une, 351 NLRB at 1326 (employee’s outburst remained pro-
tected where unaccompanied by physical conduct, threats, or
confrontational behavior). As a result, I find that the third
component of the Atlantic Steel analysis strongly favors a find-
ing that Connelly’s activities remained protected.
As to the fourth component of the Atlantic Steel analysis,
General Counsel acknowledges that Connelly’s outburst was
not provoked by any unfair labor practice of Respondent.
Therefore, this factor does not favor protection.
Thus, for the reasons discussed above, I find that the second
and the third of the Atlantic Steel factors strongly support a
finding that Connelly’s conduct remained protected by the Act,
while the first slightly favors protection, and the fourth factor
does not support such a conclusion. As a result, I find that
Connelly’s activity retained the protection of the Act, and that
Respondent’s April 1 written warning based upon Connelly’s
confrontation with Burke was unlawful.
C. Respondent did not Violate Section 8(a)(1) of the
Act by Suspending Connelly on April 5 and
Discharging Her on April 8
1. General legal principles
Under Section 8(a)(1) of the Act, an employer may not “in-
terfere with, restrain, or coerce employees in the exercise of the
rights guaranteed” by Section 7. In order to determine whether
an employee’s discharge violated the Act, the Board utilizes the
analysis articulated in Wright Line, 251 NLRB 1083 (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). To establish an unlawful dis-
charge under Wright Line, the General Counsel must first
prove, by a preponderance of the evidence, that the employee’s
protected conduct was a motivating factor in the employer’s
decision to take action against them. Manno Electric, Inc., 321
NLRB 278, 280 (1996). The General Counsel makes a showing
of discriminatory motivation by proving the employee’s pro-
tected activity, employer knowledge of that activity, and ani-
mus against the employee’s protected conduct. Naomi Knitting
Plant, 328 NLRB 1279, 1281 (1999). If the General Counsel is
successful, the burden of persuasion then shifts to the employer
to show that it would have taken the same action even in the
absence of the protected conduct. Wright Line, 251 NLRB at
1089; Septix Waste, Inc., 346 NLRB 494, 496 (2006); Wil-
liamette Industries, 341 NLRB 560, 563 (2004). Once the Gen-
eral Counsel has met its initial burden under Wright Line, an
employer does not satisfy its burden merely by stating a legiti-
mate reason for the action taken, but instead must persuade by a
preponderance of the credible evidence that it would have taken
the same action in the absence of the protected conduct. T&J
Trucking Co., 316 NLRB 771 (1995); Manno Electric, Inc.,
321 NLRB at 280 fn. 12.
2. The General Counsel has established a
prima facie vase
I find that General Counsel has established a prima facie
case that Respondent suspended and discharged Connelly in
retaliation for her protected concerted activity. The record
establishes that Connelly engaged in protected concerted activi-
ty by discussing workplace issues with other RTs, including
proposed staff reductions, scheduling and call-outs, seniority
issues, and, after the DPH investigation, medication occurrence
reporting. The record establishes that Connelly also raised
these issues with management at RT department meetings at-
tended by Trigilia, Burke, and at times Hyatt, and with Trigilia
and Burke on an individual basis. I also conclude, as discussed
in section III,(B),(1), above, that Connelly was engaged in pro-
tected concerted activity during her March 31 discussion with
Burke. In addition, Trigilia made repeated comments identify-
ing Connelly as a “loudmouth” and a “troublemaker” based
upon her protected concerted activity. The record therefore
establishes that Respondent was aware of Connelly’s protected
concerted activity at the time of her discharge.
I find that animus is established by Respondent’s having is-
sued the April 1 written warning to Connelly for unlawful rea-
sons, as discussed above. I also note that the record establishes
animus on Trigilia’s part toward Connelly, and toward her pro-
GAYLORD HOSPITAL 1279

tected concerted activities. I credit Burke’s testimony that in
early 2011 Trigilia repeatedly referred to Connelly as a “loud-
mouth,” and a “big troublemaker . . . looking to cause issues in
the department,” and advised Burke to “watch your back” when
it came to Connelly, and “don’t trust her.” I credit as well
Charland’s testimony that after he was placed on the PIP,
Trigilia told her that Connelly was very vocal, and “was going
to be the death of him.” These statements evince animus
against Connelly and her protected concerted activity on the
part of Trigilia.
The General Counsel argues that the record contains evi-
dence sufficient to generate an inference that the timing of
Connelly’s discharge was suspect. Trigilia’s statements ex-
pressing hostility toward Connelly’s protected concerted activi-
ties occurred during the 3 months between his being placed on
a PIP and Connelly’s discharge. The discharge also followed
her outspoken concerns with the medication occurrence report-
ing policy, including the confrontation with Burke. For the
reasons discussed below, however, I find that Connelly’s April
1 error in performing the ABG test was an intervening event
which ultimately engendered her discharge. The General
Counsel argues that the evidence establishes that Respondent’s
managers simultaneously discussed the April 1 written warning
based upon Connelly’s March 31 confrontation with Burke and
the incident which resulted in her discharge, so that, as far as
Respondent was concerned, “the two events were intertwined in
real time.” Although the evidence indicates that there was one
meeting on April 5 regarding the written warning where Hyatt
“indicated that there was a new issue that needed attention,” the
testimony and documentary evidence establish that the ABG
error, and the ongoing investigation, were discussed in detail in
a separate meeting without Hyatt later that afternoon. In any
event, the temporal proximity of the two events is insufficient
to establish some sort of causal relationship, given the evidence
overall to the contrary. As a result, I find that the timing of
Connelly’s discharge ultimately does not support an inference
that she was discharged in retaliation for her protected concert-
ed activity.
Although I find that the timing of Connelly’s discharge does
not support an inference that she was terminated for unlawful
reasons, I find, on the basis of her protected activity, Respond-
ent’s knowledge, and the evidence of animus discussed above,
that the General Counsel has established a prima facie case.
3. The preponderance of the credible evidence
establishes that Respondent would have discharged
Connelly absent her protected concerted activity
Respondent contends that it legitimately discharged Connel-
ly based upon a reasonable, good-faith belief that she had inten-
tionally falsified a medical record. I find that the preponder-
ance of the credible evidence substantiates this claim. Specifi-
cally, the evidence establishes that Trigilia did not conduct the
critical aspects of Respondent’s investigation, and was not ul-
timately responsible for the decision to discharge Connelly. As
a result, Respondent’s investigation and decisionmaking pro-
cess was not “tainted” by Trigilia’s animus. The preponder-
ance of the credible evidence also establishes that Burke did not
inform Trigilia, Hyatt, or any of Respondent’s other managers,
that he interpreted Gerstenhaber’s statement, “I’ll cover for you
this time, but don’t let it happen again,” as an acknowledge-
ment that Gerstenhaber had in fact given Connelly a verbal
order on April 1. In addition, the credible evidence establishes
that Respondent’s conclusion that Connelly deliberately entered
Abbasi’s name on the April 1 verbal order was not unreasona-
ble. Finally, the evidence does not substantiate the indicia of
pretext—a cursory investigation, shifting defenses, and dispar-
ate treatment—asserted by the General Counsel. Given these
conclusions, and based upon the evidence overall, I find that
Respondent would have discharged Connelly based upon its
reasonable, good-faith belief that she had intentionally falsified
a medical record, regardless of her protected concerted activity.
a. Trigilia’s involvement in Respondent’s investigation
Although I have found that Trigilia exhibited animus toward
Connelly regarding her protected concerted activity, the evi-
dence overall establishes that Hyatt, as opposed to Trigilia,
made the ultimate decision to discharge her. The evidence
establishes that Hyatt was the manager with the highest level of
authority involved in the decisionmaking process. In addition,
the evidence establishes that Hyatt had in the past overruled
Trigilia with respect to the discharge of RT department em-
ployees, specifically when she discharged RT Department Su-
pervisor Donna Ward over his objection.31 I therefore credit
Hyatt’s testimony that she was ultimately responsible for mak-
ing the decision as to what level of discipline would be appro-
priate. The evidence establishes no animus on the part of Hyatt
toward the RT staff or their protected concerted activities. On
the contrary, Hutson testified that Hyatt was receptive to the
concerns of the RT staff, and after the DPH report Hyatt at-
tended RT department meetings more regularly and made a
specific effort to ensure that RT staff concerns were communi-
cated to management.
In addition, the evidence establishes that Trigilia did not
conduct the investigation into the unsigned verbal order at-
tributed to Abbasi, but directed Burke to do so, even though
Connelly was identified as the staff member who entered the
verbal order in the initial email Trigilia received from Fan-
ning.32 It was then Burke, not Trigilia, who reviewed the blood
gas laboratory’s records and ran the order trail, and who (at
Trigilia’s direction) initially spoke to Connelly to request an
explanation. More importantly, it was Burke, and not Trigilia,
who spoke to Gerstenhaber, and thereby obtained a critical
piece of information which Hyatt ultimately considered in mak-
ing the decision to discharge Connelly. Indeed, at Connelly’s

31 It is worth noting in this respect that part of the reason that Trigilia
opposed Ward’s discharge was that, like Connelly, she had no history
of previous discipline. Hyatt nevertheless determined that discharge
was appropriate, and Ward was terminated.
32 Indeed, if Trigilia were intent on seeing Connelly discharged it
would have been simple enough for him to pursue that end by investi-
gating the April 1 ABG test himself. His foregoing that role tends to
show that he was not in fact interested in acting on his animus. In fact,
Burke testified that despite his previous comments regarding Connelly,
Trigilia was not excited to learn that he had been asked to investigate a
verbal order entered by Connelly which had apparently not been au-
thorized by a physician.
1280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

request Burke allowed her to accompany him when he spoke to
Gerstenhaber, and allowed her to question Gerstenhaber first
about whether he remembered giving her the verbal order for
the April 1 ABG test.33 The interpretation of Gerstenhaber’s
response—which formed a substantial basis for Respondent’s
ultimate understanding that Connelly intentionally falsified the
medical record by entering a verbal order without a physician’s
authorization—originated with Burke, and not Trigilia. This
critical component of Respondent’s investigation was therefore
not tainted by any animus harbored by Trigilia, and there is no
dispute that Burke had no animus toward Connelly or her pro-
tected concerted activities.
For the foregoing reasons, I find that Trigilia did not play a
role in the most significant aspects of Respondent’s investiga-
tion and decisionmaking process. As a result, the most im-
portant elements of its process were not tainted by his animus.
b. Burke’s characterization of Gerstenhaber’s statement
Furthermore, I find that the credible evidence does not estab-
lish that Burke informed Trigilia, Hyatt, or any other member
of Respondent’s management that, in his opinion, Gerstenhaber
indicated that he had in fact given Connelly a verbal order on
April 1 for the ABG test she performed on that date. Burke
modified his account regarding this critical issue in so many
respects over the course of his affidavits and testimony that it
was ultimately unreliable. In Burke’s affidavit dated June 20,
when he was still employed by Respondent, he stated that he
reported, to Trigilia only, Gerstenhaber’s response, “I’ll cover
for you this time, but don’t let it happen again,” without any
interpretive commentary (R.S. Exh. 3, p. 3). However, in his
December 14 affidavit, Burke states that he informed Trigilia
and Hyatt, together, that “Gerstenhaber had said that he gave
the order” (GC Exh. 31, p. 7). During his testimony at the hear-
ing, Burke echoed the statements contained in his December
14, affidavit. However, he also asserted for the first time that
he told Respondent’s managers that Gerstenhaber specifically
said, “Yes, I remember,” giving Connelly a verbal order on
April 1 (Tr. 1220–1221). In addition, he claimed for the first
time that he also conveyed this information to Trigilia while on
the way to Hyatt’s office, prior to their meeting (Tr. 1172–
1173). Later in his testimony, Burke contradicted these conten-
tions, stating that he did not in fact communicate this interpreta-
tion of Gerstenhaber’s remarks to anyone in Respondent’s
management prior to his discharge (Tr. 1297–1298).
Burke altered his testimony regarding his actual discussion
with Connelly and Gerstenhaber in a similar manner. In his
June 20 affidavit, Burke stated that when Connelly asked Ger-
stenhaber whether he remembered giving the verbal order on
April 1, Gerstenhaber responded by saying only, “I’ll cover for
you this time, but don’t let it happen again” (R.S. Exh. 3, p. 3).
However, in his December 14 affidavit, Burke also stated that
he concluded from this remark that, “Gerstenhaber confirmed
that he had given Connelly a verbal order for the ABG per-

33 Based upon Connelly’s spontaneity when testifying at the hearing,
it is entirely plausible to me that she began the conversation with Ger-
stenhaber and immediately asked him whether he remembered giving
her the verbal order.
formed on April 1, 2011” (GC Exh. 31, p. 7). Then, during his
direct testimony, Burke claimed for the first time that Gersten-
haber responded, “Yes, I do remember,” when Connelly asked
whether he remembered giving her the verbal order on April 1
(Tr. 1167). However, when questioned by me, Burke testified
consistently with his June 20 affidavit, asserting that Gersten-
haber indicated that he would “cover” for Connelly by “saying”
that he had given the verbal order, as opposed to having actual-
ly given the verbal order on April 1 (Tr. 1219–1220).34
By contrast, Hyatt’s testimony on the issue was consistent
and plausible. Hyatt testified that prior to Connelly’s dis-
charge, Burke and Trigilia informed her only that Gerstenhaber
had offered to “cover” for Connelly, and not acknowledged that
he had actually given Connelly a verbal order. Hyatt further
testified that after Connelly filed the first charge in the instant
case alleging that she was discharged in retaliation for her pro-
tected concerted activity, she met with Burke, who at that time
was still employed by the hospital, and asked him to review the
investigation with her. Hyatt asked Burke what, in his opinion,
Gerstenhaber meant when he said, “I’ll cover for you this time,
but don’t let it happen again.” Burke responded that he be-
lieved Gerstenhaber meant that he had not given Connelly a
verbal order on April 1. Hyatt testified that Burke responded in
the same manner to questions posed by Respondent’s attorney,
Brian Clemow, during a meeting in connection with the inves-
tigation of the charge. I credit Hyatt’s testimony in this regard,
and find that prior to leaving his employment with the hospital,
Burke never informed any of Respondent’s managers that he
actually interpreted Gerstenhaber’s statement as an admission
that he had in fact given Connelly a verbal order on April 1.
It must also be noted that the circumstances in which Burke
provided his second affidavit raise at least the possibility of
biased testimony. The evidence establishes that on December
9, Burke resigned his position in lieu of termination, after an
RT complained that Burke directed her to report that a particu-
lar medication had not been administered because the “patient
refused,” when the RT actually had not had time to administer
all of the medications as ordered during her shift. Hyatt con-
cluded after interviewing the RT, other RT witnesses to the
conversation, and Burke himself that Burke had placed the RT
involved in a position where she was effectively forced to falsi-
fy the medical record. Hyatt therefore terminated Burke, but
provided him with the opportunity to resign, which he did.
Five days later, Burke provided his second affidavit, contend-
ing for the first time that Gerstenhaber had actually admitted
giving Connelly a verbal order on April 1 for the ABG test, and
that he had communicated as much to Trigilia and Hyatt. This
sequence of events raises the possibility that his change in posi-
tion regarding the critical issues involved in the investigation
preceding Connelly’s discharge is attributable to bias.
For all of the foregoing reasons, I decline to credit Burke’s
testimony that he informed Trigilia, Hyatt, Harper, or any other
manager that Gerstenhaber had in fact acknowledged giving

34 Gerstenhaber testified that to the extent that he recalled being
asked whether he remembered something during the conversation,
Burke asked him whether he had a recollection of the ABG test itself,
and not providing a verbal order to cover it (Tr. 2094–2095).
GAYLORD HOSPITAL 1281

Connelly a verbal order on April 1 for the ABG test, at any
time prior to Burke’s discharge on December 9. Instead, I find
that Hyatt was presented with Gerstenhaber’s statement, “I’ll
cover for you this time, but don’t let it happen again,” and rea-
sonably interpreted that remark to mean that Gerstenhaber had
not given Connelly a verbal order on April 1.35
c. Connelly’s entry of the April 1 verbal order
under Abbasi’s name
Furthermore, I find that Respondent’s conclusion that enter-
ing Abbasi’s name was deliberate, as opposed to a “clerical
data entry error,” on Connelly’s part was not unreasonable. In
fact, the evidence adduced at the hearing overwhelmingly sup-
ports the conclusion that Connelly intentionally selected Ab-
basi’s name, and entered Abbasi into the Meditech system as
the physician which had ordered the ABG mistakenly per-
formed on April 1, and the physician to whom Connelly report-
ed the results. Connelly provided several explanations for the
appearance of Abbasi’s name in the Meditech system. In her
affidavit, she stated that because she failed to hit “F9,” the
Meditech system defaulted to the name of the attending physi-
cian for the building and floor, which was Abbasi.36 She stated
that this explanation was based on what she was told, perhaps
by Donna Ward. At the hearing, she testified that she did in
fact hit the “F9” button, but insisted that she did not type in
Abbasi’s name or choose it from a menu of names. Then she
appeared to contend that the “F9” button did require the selec-
tion of names from a menu, but that sometimes a particular
name “magically appears.” Finally, Connelly testified that she
did not know how Abbasi’s name ended up on the verbal order
she entered, or how the “F9” aspect of the Meditech system
works.
Information Services Supervisor Rena Susca explained the
“F9” function and the entry of physician names through the
order entry module in the Meditech system. After an RT signs
onto the computer and onto the Meditech system, they select
the order entry module and choose the “enter orders” routine.
The first prompt which appears is for the ordering physician, a
mandatory field which cannot be bypassed. There is no default
physician which appears in the order entry module. Instead, the
RT chooses a physician by typing in the physician’s full name
or a mnemonic for each physician’s name. In addition, the RT
can choose a physician by hitting the “F9” key, which will
bring up an entire dictionary of medical providers. The RT can
scroll down the list of physicians, which is organized alphabeti-
cally by mnemonic, with the mouse or arrows, and choose the
specific physician’s name. They can also hit the first letter of
the physician’s last name, which will take them to the first of
the physicians on the list whose last name begins with that let-
ter. Hitting the “F9” key repeatedly results only in beeping.

35 The conclusion that Gerstenhaber had not in fact given Connelly a
verbal order is consistent with Respondent’s policy strongly discourag-
ing verbal orders in nonemergent situations as articulated by Teba, and
actual practice among the RTs, as discussed by Hutson and Slowenski
in their testimony. See sec. III,(A), above. It is also consistent with
Gerstenhaber’s testimony that he did not give permission for verbal
orders in nonemergent situations.
36 In fact, Abbasi was not the attending on Milne 2 on April 1.
Susca prepared “screenshots” of the provider lists which would
be generated by hitting the “F9” key using the current (5.6)
version of Meditech, and when the previous version (5.5) of
Meditech was in use, prior to June 2011. Abbasi’s name was
not the first provider name on the list for either version, indicat-
ing that it would have to be specifically selected from the list of
providers.
It should also be noted that Connelly was aware that Ab-
basi’s name had been entered into the system in connection
with the verbal order April 1 ABG test, regardless of the tech-
nological specifics which brought this result about. When
Burke initially discussed the unsigned verbal order with her,
she was fully aware that she had entered it into the Meditech
system under Abbasi’s name. As noted by Burke during his
investigation, she did not make efforts to correct the medical
record, or bring the error to someone’s attention.
In light of Connelly’s inability to recall the events which re-
sulted in Abbasi’s name being placed on the order for the April
1 ABG, her repeated conjecture about how this occurred, and
Susca’s apparent expertise, I find that the preponderance of the
evidence establishes that Connelly chose Abbasi’s name from
the drop down menu which is produced by hitting the F9 key.
This was the manner in which Trigilia described the operation
of the Meditech system to Hyatt when they met to discuss the
verbal order for the April 1 ABG test attributed to Abbasi. As a
result, Respondent’s conclusion that Connelly’s error was not
an inadvertent mistake was not unreasonable.
d. The General Counsel’s contentions regarding pretext
The General Counsel initially contends, in arguing that Re-
spondent’s asserted reason for Connelly’s discharge was pre-
textual, that Respondent conducted a cursory investigation prior
to discharging Connelly. The Board has held that the failure to
conduct an adequate investigation, and to give the accused
employee an opportunity to explain allegations of misconduct,
demonstrate pretext. ManorCare Health Services–Easton, 356
NLRB 202, 204, 227 (2010), enfd. 661 F.3d 1139 (D.C. Cir.
2001); North Hills Office Services, 344 NLRB 1083, 1097
(2005); New Orleans Cold Storage Co., 326 NLRB 1471, 1477
(1998), enfd. 201 F.3d 592 (5th Cir. 2000).
The evidence here establishes that Respondent conducted an
adequate investigation. The unsigned April 1 verbal order
came to Trigilia’s attention as the result of a routine hospital
recordkeeping procedure, and was not specifically discovered
or sought out by him. After being directed by Trigilia to con-
duct the investigation, Burke reviewed the laboratory’s records
and the audit trail for the unsigned verbal order. He spoke to
Connelly to determine how Abbasi’s name was incorrectly
entered into the Meditech system on the verbal order, and why
she did not request assistance. Hyatt directed Trigilia and
Burke to conduct additional investigation, and to speak with
Gerstenhaber after Connelly identified him as the source of the
verbal order. Burke spoke to Connelly again, and then spoke to
Gerstenhaber regarding whether he had given the verbal order
on April 1. Burke allowed Connelly to participate in his con-
versation with Gerstenhaber, and even permitted her to begin
the discussion by asking Gerstenhaber whether he remembered
1282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

giving her the verbal order on April 1 for the ABG test.37
Burke then reported Gerstenhaber’s response that he would
cover for Connelly to Trigilia and Hyatt, and only at that point
was Connelly suspended pending further investigation. Trigilia
again reviewed the audit trail, and the matter was discussed
between Burke, Trigilia, Hyatt, and Harper. In addition, Trigil-
ia spoke with Abbasi, who confirmed that she had not ordered
the test and had not received the results, and refused as a result
to sign the verbal order.38
The evidence therefore establishes that Respondent in the
course of its investigation spoke with Connelly twice, reviewed
the relevant documents at least twice, and spoke with both phy-
sicians (Abbasi and Gerstenhaber) regarding the unsigned April
1 verbal order before concluding that discharge was appropri-
ate. This is a clearly distinct from investigations which the
Board has found so inadequate that they evince employer pre-
text. See, e.g., Manorcare Health Services–Easton, 356 NLRB
202, 204, 227 (discipline pretextual where employer’s “frenzy
of activity involved zero investigation or interest in the underly-
ing events” of employee’s alleged misconduct); North Hills
Office Services, 344 NLRB at 1097–1098 (manager only inves-
tigated and determined that employee’s alleged misconduct had
been explicitly approved by supervisor after employee’s dis-
charge); New Orleans Cold Storage Co., 326 NLRB at 1477
(manager issued warnings without investigating, and responded
to employee’s explanations by apologizing but refusing to re-
scind them).
The General Counsel also contends that Respondent offered
shifting defenses in articulating its reasons for discharging
Connelly. It is well settled that the assertion of shifting defens-
es for an adverse employment action constitutes evidence of
pretext. See, e.g., Airport 2000 Concessions, 346 NLRB 958,
978 (2006). However, the evidence does not establish that
Respondent asserted differing or contradictory reasons for
Connelly’s suspension and discharge. The General Counsel
bases its argument in this regard on a purported conflict be-
tween the reasons for Connelly’s discharge asserted in Re-
spondent’s position statement and during the testimony of
Trigilia, whom the General Counsel describes as “the decision
maker,” and “Respondent’s primary witness.” As discussed in
further detail above, Trigilia was neither. Hyatt’s description
during her testimony of the reason for Connelly’s discharge—
that Respondent believed that Connelly performed the ABG
test on April 1 without any physician’s order, and falsified a

37 The General Counsel emphasizes Trigilia’s confusion during the
hearing about the importance of consulting with Gerstenhaber, arguing
that this tends to establish that Respondent’s investigation was cursory.
I find Trigilia’s testimony in this regard less significant in light of the
evidence that Burke actually did speak to Gerstenhaber regarding the
April 1 ABG test as part of the investigation, and that his conversation
with Gerstenhaber was reported to Hyatt.
38 The General Counsel makes much of Trigilia’s alleged refusal to
call Connelly after her suspension and discuss the issues with her fur-
ther. The General Counsel argues that documentary evidence under-
mines Trigilia’s contention that he attempted to reach Connelly but was
unable to do so. I find that the evidence discussed above establishes
that Respondent conducted an adequate investigation regardless of any
attempt of Trigilia’s to reach Connelly by phone after her suspension.
medical record by actually entering a physician’s name into the
Meditech system as having issued the order and received the
results—is consistent with the reasons articulated by Respond-
ent in its position statement. That Trigilia had other, additional
concerns with the April 1 ABG test, such as the invasiveness of
the procedure or the fact that it had been performed on the
wrong date, does not constitute a shifting defense.39
Finally, the General Counsel argues that the evidence estab-
lishes disparate treatment, long considered to be indicative of
pretext, which demonstrates that Respondent did not in fact
consider Connelly’s conduct a serious offense warranting dis-
charge. I find that the record supports Respondent’s case in
this regard. In particular, I find that Respondent had previously
discharged an RT for falsifying the medical record, and indicat-
ed that it considered this conduct an offense for which immedi-
ate discharge was appropriate. The evidence establishes that
RT Lulu Irabor was discharged in 2008 for indicating in the
medical record that she had reported the results of an ABG test
to the physician when in fact she had not. Irabor was dis-
charged within 3 days after incorrectly entering that the results
had been reported. Notes indicate that in making the decision
Hyatt “concurred that there is zero tolerance for falsifying med-
ical documentation and [it] is cause for immediate dismissal.”40
There was no evidence contradicting Irabor’s assertion that she
simply forgot to report the results of the ABG test to the physi-
cian, and no suggestion that she entered the name of an entirely
different physician into the medical record. Regardless of these
potentially mitigating factors, Respondent discharged her im-
mediately. This is significant evidence that in discharging
Connelly Respondent acted in accordance with its previous
practice when confronted with this type of offense. It should
also be noted that Hyatt immediately discharged Burke for
placing an RT in a position where they would be forced in prac-
tical terms to falsify a medical record. While Burke was a su-
pervisor and not an RT, I consider this evidence relevant in that
it bears directly on Respondent’s conception of the gravity of
the particular offense which it believed Connelly committed,
and occurred in the RT department. Overall it tends to show
that, with respect to the RT department, Respondent considered
falsification of a medical record to be an offense warranting
immediate discharge.

39 The General Counsel contends that Respondent “falsely claimed”
in its position statement that it “increased the severity of its disciplinary
policy” after the DPH investigation, and decided to discharge Connelly
as a result. What the position statement actually says is that Hyatt and
Harper’s conclusion that discharge was appropriate was, among other
considerations, “influenced” by the DPH citation and “the recent em-
phasis on the importance of accurate documentation in meeting[s] of
the Respiratory Therapy Department” (GC Exh. 49). Respondent does
not claim that it “increased the severity of its disciplinary policy.”
40 The documents pertaining to Irabor do not indicate that she “had a
repeated practice of entering false information into the record, raising
actual harm to patients as a result,” as the General Counsel contends.
Instead, the documents state that the physician involved “recalls this
not being the first time this has happened,” and make no mention of an
adverse outcome to any patient. Because Irabor was discharged in June
2008, she was not included on the list of disciplined employees during
the period August 1, 2008, through June 3, 2011; this omission is not
mendacious in nature.
GAYLORD HOSPITAL 1283

The General Counsel also argues that disparate treatment is
established by evidence that in November RT Anne Marie Iosa
was disciplined, but not discharged, for falsification of a medi-
cal record, despite her previous disciplinary history. On No-
vember 11, Iosa was issued a final written warning after she
entered into a patient’s medical record that a treatment was not
given because the necessary medication was not available. I
credit Hyatt’s testimony that Iosa was given a final written
warning, as opposed to discharged, because prior to September
RTs had been permitted to chart that a medication was not
available, and did so as a common practice. Hyatt explained
that the entire RT staff was given in-service training, and a
revised policy regarding charting on missed medications, pur-
suant to a management decision to approach the problem of
missed medication charting through policy and education, as
opposed to individual disciplinary action. Furthermore, Iosa’s
“falsification” differs from Connelly’s in that Iosa correctly
indicated in the medical record that the medication was missed,
but used a reason which was no longer considered appropriate
pursuant to Respondent’s policies. Ironically, Iosa was identi-
fied by Hyatt and currently employed RTs as one of the most
vocal RTs in the department, and at least one of the currently
employed RTs thought her a likely target for retaliatory disci-
pline. As a result, I do not find that Iosa’s discipline tends to
establish that Respondent’s discharge of Connelly was dispro-
portionate to its treatment of other employees who had commit-
ted similar misconduct.41
The other incidents which the General Counsel contends es-
tablish disparate treatment are simply not relevant. The Gen-
eral Counsel claims that Girman was only issued a written
warning, 4 months after Connelly’s discharge, although he had
“verbally and physically assaulted a patient.” In fact, the evi-
dence establishes that Respondent had concluded based upon
its investigation that Girman was only inappropriately loud in
the patient’s presence. The employee that the General Counsel
claims was only warned for administering medication to a pa-
tient without a doctor’s order was in fact a former patient of
Respondent’s who had been treated for a traumatic brain injury,
and worked for 20 years at a residential rehabilitation facility
not encompassed by Respondent’s license. Contrary to the
General Counsel’s contention, there is no evidence that Re-
spondent “ignored” a patient advocate line complaint regarding
the RT care being provided to the patient; there is no evidence
to establish what happened after the complaint was filed. Final-
ly, the General Counsel argues that Respondent’s failure to
discipline a physician who inadvertently prescribed an incorrect

41 I also do not find that the final written warning issued to Nelysa
Couvertier on May 16, 2010, for falsifying a medical record evinces
disparate treatment of Connelly. Couvertier was a CNA, not an RT,
and there is no evidence as to what specifically constituted her falsifica-
tion of a medical record. Given their different duties, departments, and
lines of supervision, and the discharge of Irabor discussed above, I am
not prepared to conclude that the final written warning issued to Cou-
vertier is probative evidence of disparate treatment. The other employ-
ees who received discipline for “falsification” during the period August
1, 2008, through June 3, 2011, falsified time records, with the exception
of a benefits employee in the outpatient department, whose written
warning for “falsification” would not have involved a medical record.
dosage of insulin evinces disparate treatment of Connelly. I
decline to make such a finding, as there is no evidence that the
physician in question was even Respondent’s employee, as
opposed to an independent contractor, and no evidence to es-
tablish that Respondent’s disciplinary policies for physicians
are identical to those applicable to RTs.
For all of the foregoing reasons, I find that the evidence does
not establish disparate treatment indicative of pretext, or
demonstrating that Respondent did not consider Connelly’s
conduct a serious offense warranting discharge. As a result, for
all of the reasons discussed above, I find that the preponderance
of the credible evidence establishes that Respondent reasonably
concluded that Connelly had falsified a medical record, and
would have discharged her on that basis regardless of her pro-
tected concerted activity. I therefore find that Connelly’s dis-
charge did not violate Section 8(a)(1) of the Act, and recom-
mend that this allegation be dismissed.
D. Respondent Violated Section 8(a)(1) of the Act
by Prohibiting Connelly from Discussing Terms
and Conditions of Employment
The evidence establishes that Respondent violated Section
8(a)(1) when Employment Administrator Bryana Minor prohib-
ited Connelly from discussing her April 1 written warning. As
discussed above, on the afternoon of Friday, April 1, Connelly
met with Minor, Burke, and Trigilia, and discussed the written
warning she had just received, and the occurrence reports issue.
There is no real dispute that during this meeting, Minor told
Connelly, Burke, and Trigilia that they should not discuss these
issues with anyone else over the weekend, and resume their
conversation the following week.
I find that by doing so, Minor effectively imposed a rule
prohibiting Connelly from discussing her discipline and the
ongoing conflict regarding occurrence reports with her cowork-
ers. In order to determine whether such a rule is permissible,
the Board considers whether the employer’s asserted business
justifications outweigh employees’ Section 7 rights to discuss
their terms and conditions of employment. Verizon Wireless,
349 NLRB 640, 658 (2007), citing Caesar’s Palace, 336
NLRB 271, 272 (2001). The Board has repeatedly held that
rules restricting employee discussion of discipline violate Sec-
tion 8(a)(1). Verizon Wireless, 349 NLRB at 658–659; SNE
Enterprises, 347 NLRB 472, 491–493 (2006), enfd. 257 Fed.
Appx. 642 (4th Cir. 2007); Westside Community Mental Health
Center, 327 NLRB 661, 666 (1999). Employees have a pro-
tected interest in discussing the circumstances of discipline, so
that they are aware of “the nature of discipline being imposed,
how they might avoid such discipline, and matters which could
be raised in their own defense.” Verizon Wireless, 349 NLRB
at 658. These considerations are particularly acute here, where
the discipline involved a confrontation regarding the comple-
tion of occurrence reports, itself a controversial issue within the
RT department. In addition, because the meeting took place on
a Friday afternoon, and Minor was suggesting a hiatus in any
discussion until the next week, the interim period encompassed
predominantly nonworktime as far as Connelly was concerned.
I find in these circumstances that Respondent has not ad-
vanced a business justification sufficient to outweigh the em-
1284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ployees’ Section 7 rights. Minor testified that she intended her
remark to establish a “cooling off period,” to give those in-
volved “a chance to discuss it and come to get all the facts out,
and so forth.” Minor’s attempt to provide the individuals in-
volved with a respite from what were clearly difficult and con-
tentious issues and an emotionally charged situation is certainly
understandable. However, the manner in which she went about
doing so impermissibly restricted Connelly’s Section 7 right to
discuss her discipline and working conditions with coworkers.
As a result, I find that Minor’s statement violated Section
8(a)(1) of the Act.42
E. Respondent Did Not Violate Section 8(a)(1)
by Threatening Connelly with Job Loss for Engaging
in Protected Concerted Activity
I find that the record does not establish that Respondent un-
lawfully threatened Connelly with job loss in retaliation for her
protected concerted activity. Connelly testified that during a
meeting with Walter Harper on April 4, Harper told her that “he
had heard about the respiratory department and that there will
be no more complaining, and that there will only be a positive
work environment here, and that complainers will have to go.”
Harper denied making this statement, which would tend to
restrain or coerce an employee in the exercise of their Section 7
rights by raising the distinct possibility of discharge. See, e.g.,
Station Casino, 358 NLRB 637, slip op. at 641, 643 (2012)
(supervisor’s remark that employee would be discharged if he
did not keep quiet and refrain from complaining unlawful);
Swardson Painting Co., 340 NLRB 179, 187 (2003) (rule stat-
ing “Any complaining or causing problems will be reason for
discharge” violates Section 8(a)(1)).
Here, I credit Harper’s testimony over Connelly’s, as it is
more consistent with the weight of the evidence overall. The
evidence establishes that, as he testified, Harper was one of the
human resources officials tasked with making themselves
available to the RTs to address workplace issues in the wake of
the DPH investigation. For example, Hyatt’s recommendations
following the DPH investigation state that Harper was “to meet
with the RT staff” without its supervisor or director, to “assess
the environment,” and “get a closer handle on the issues.” The
problems Hyatt was particularly concerned with were the RT
staff’s “lack of trust/fear of retaliation,” and getting “to the root
of issues in the department.” As a result, Hyatt’s recommenda-
tions specify that Harper was to encourage the RT staff to raise
issues directly with him. The evidence indicates that they did
so, illustrated by, for example, Harper’s March 31 email to
Hyatt describing a “considerable stir” regarding the occurrence
reports, which Harper characterized as “the new RT require-
ment that staff report staff,” clearly the perspective of the RTs
themselves. On April 2, again discussing the occurrence re-
ports, Harper emailed Hyatt, “I could tell from the reaction by
some that this appeared to be new and [they] had questions

42 I do not find, however, that Minor’s remark evinces animus to-
ward Connelly or her protected activity relevant to the Wright Line
analysis regarding her discharge. I find that her statement constituted
more of a technical violation ancillary to her attempt to impose a hiatus
in the conflict between Connelly and Burke and Trigilia, and not an
expression of animus.
about it and concerns,” and stated that the RTs were “getting
restless.” As a result, the documentary evidence from the peri-
od immediately preceding Harper’s April 4 meeting with Con-
nelly establishes, consonant with Harper’s testimony, that he
was directly interacting with the RTs and communicating their
perspective to Hyatt.
Given this context, I find Harper’s testimony and his notes of
the April 4 meeting more probative than Connelly’s assertion
that Harper told her that “complainers will have to go.” The
evidence does establish that Harper and Connelly discussed the
April 1 written warning, and Connelly’s conduct, at the April 4
meeting. I credit Harper’s testimony that Connelly contended
that if she had received a written warning, Burke should have
as well, an argument she also made to Minor. Harper’s notes
and testimony indicate that they discussed the turmoil in the RT
department, and that Connelly said that there was still signifi-
cant disquiet among the RTs. Harper then asked whether Con-
nelly was involved with that, and whether she believed that
complaining to the other RTs regarding her warning was im-
proving or exacerbating the situation. I therefore find it plausi-
ble that Harper and Connelly discussed her warning and the
fact that she had complained about it with the other RTs. How-
ever, in the overall context described above, a statement on
Harper’s part that “complainers will have to go” is not proba-
ble.
Therefore, I find that, although Harper and Connelly dis-
cussed her own conduct, the evidence overall does not establish
that the specific statement Connelly attributes to him, “com-
plainers will have to go,” was in fact made. As a result, I find
that Respondent did not violate Section 8(a)(1) by threatening
employees with the loss of their jobs in retaliation for their
protected concerted activity, and recommend that this allega-
tion be dismissed.
CONCLUSIONS OF LAW
1. At all material times, the Respondent, Gaylord Hospital,
has been an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by issuing
a written warning to Jeanine Connelly on April 1, 2011, in re-
taliation for her protected concerted activities.
3. Respondent violated Section 8(a)(1) of the Act by prohib-
iting employees from discussing terms and conditions of em-
ployment on April 1, 2011.
4. Respondent has not violated the Act in any other manner.
5. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
THE REMEDY
Having found that Respondent has violated the Act, I shall
recommend that it cease and desist therefrom and take certain
affirmative action necessary to effectuate the Act’s purposes.
Having discriminatorily disciplined Jeanine Connelly in re-
taliation for her protected concerted activities, Respondent shall
be required to remove from its files all references to the unlaw-
ful written warning dated April 1, 2011, and to notify Connelly
GAYLORD HOSPITAL 1285

in writing that this has been done and that the discipline shall
not be used against her.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended43
ORDER
The Respondent, Gaylord Hospital, Wallingford, Connecti-
cut, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Disciplining or otherwise discriminating against employ-
ees in retaliation for their protected concerted activities.
(b) Prohibiting employees from discussing their terms and
conditions of employment.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the date of this Order, remove from all
files any reference to the unlawful April 1, 2011 written warn-
ing, and within 3 days thereafter, notify Jeanine Connelly in
writing that this has been done and that the written warning will
not be used against her in any way.
(b) Within 14 days after service by the Region, post at its
facility in Wallingford, Connecticut, copies of the attached
notice marked “Appendix.”44 Copies of the notice, on forms
provided by the Regional Director for Region 34, after being
signed by Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site
and/or other electronic means if Respondent customarily com-
municates with its employees by such means. Reasonable steps

43 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
44 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 1, 2011.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT discipline or otherwise discriminate against
you in retaliation for your protected concerted activities.
WE WILL NOT prohibit you from discussing your terms and
conditions of employment.
WE WILL within 14 days of the date of the Board’s Order,
remove from all files any reference to the unlawful April 1,
2011 written warning issued to Jeanine Connelly, and WE WILL,
within 3 days thereafter, notify Connelly in writing that this has
been done and that the written warning will not be used against
her in any way.

GAYLORD HOSPITAL