HCA/Portsmouth Regional Hospital

National Labor Relations Board - Board Decisions

Mar 29, 1995

316 N.L.R.B. 919 (N.L.R.B. 1995)

919
316 NLRB No. 138
HCA/PORTSMOUTH REGIONAL HOSPITAL
1 On March 28, 1994, Administrative Law Judge Wallace H. Na-
tions issued the attached decision. The General Counsel filed excep-
tions and a supporting brief. The Respondent filed cross-exceptions
and a supporting brief. Both the Respondent and the General Coun-
sel filed answering briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all relevant evidence convinces us that they are in-
correct. 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.
3 The judge erroneously stated that Twitty’s rumors about Kuhn in-
volved events which took place while Agnes Rockett, the alleged
source of the rumors, was still working as Kuhn’s supervisor at Mas-
sachusetts General Hospital. Rockett quit working with Kuhn in
1986, however, and that the alleged firing and grievance occurred in
1987. Contrary to the General Counsel, we find that this mistake of
fact does not warrant reversal of the judge’s finding that the rumors
about Kuhn were false.
4 The judge stated his belief that Twitty had an obligation to verify
the rumor before using it in an attempt to discredit Kuhn. If Twitty
had reasonably believed that the rumor was true, she would not have
forfeited the Act’s protection by good-faith repetition of the rumor
even if she failed to investigate its accuracy. See, e.g., KBO, Inc.,
315 NLRB 570, 511 fn. 6 (1994). On the other hand, in the cir-
cumstances of this case, where Twitty already either knew or reason-
ably should have known that the rumor was false, the failure to ver-
ify the rumor is further evidence of the bad-faith, personal, and un-
protected nature of her activity.
HCA Health Services of New Hampshire, Inc. d/b/a
HCA/Portsmouth Regional Hospital and
Madelon M. Twitty. Case 1–CA–29691
March 29, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
This case1 presents the issue of whether the judge
correctly found that the Respondent did not violate
Section 8(a)(1) of the Act by interrogating, suspending,
and discharging Charging Party Madelon Twitty. The
Board has considered the decision and the record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions,
as further discussed below, and to adopt the rec-
ommended Order.
We agree with the judge that the Respondent law-
fully discharged Twitty for maliciously spreading false
rumors about Polly Kuhn, Twitty’s supervisor, in an
effort to have Kuhn removed from her position or
fired. In exceptions, the General Counsel contends that
the judge erroneously found that Twitty’s conduct re-
moved the Act’s protection from her attempts to initi-
ate concerted activities with fellow nurses about
Kuhn’s supervision.
The credited evidence shows that Twitty had two
problems with Kuhn. One problem was at least poten-
tially a matter of mutual concern with other employees
about Kuhn’s management style. The other problem
was purely personal. Kuhn had discontinued her prede-
cessor’s individual preferential treatment of Twitty.
Kuhn had also warned Twitty about excessive absen-
teeism and about antagonistic behavior towards co-
workers. Under the circumstances, Twitty had good
reason to suspect that her continued employment de-
pended on Kuhn’s removal or firing.
The judge correctly summarized Board precedent
which holds that the Act protects employees who initi-
ate or engage in concerted activities to protest a com-
mon aspect of their supervision. When seeking to en-
list other employees in protests against Kuhn’s man-
agement style, Twitty was at least initially engaged in
protected concerted activities. It does not matter that
other employees were not very receptive to her pro-
tests.
On July 23, 1992, however, Twitty told several em-
ployees rumors about Kuhn’s past employment history
with Massachusetts General Hospital. For the reasons
fully set forth in the judge’s decision, the rumors were
false and potentially quite damaging to Kuhn’s profes-
sional reputation.3 Furthermore, Twitty knew or rea-
sonably should have known this.4 Nevertheless, she re-
peated these rumors to at least four nurses during three
separate conversations.
A defamatory statement is so opprobrious as to lose
the protection of the Act if it is made ‘‘with knowl-
edge of its falsity, or with reckless disregard of wheth-
er it was true or false.’’ KBO, Inc., supra, citing Linn
v. United Plant Guard Workers, 383 U.S. 53, 61
(1966); also see Pizza Crust Co., 286 NLRB 490, 507
(1987). As previously discussed, Twitty’s conduct was
of this egregious nature. Moreover, Twitty has essen-
tially admitted that she used the false rumors to rally
support for her effort to get rid of Kuhn. As found by
the judge, Twitty’s single-minded effort no longer had
anything to do with resolution of the alleged mutual
concerns about employees’ working conditions. In-
stead, Twitty recklessly spread false rumors in a mali-
cious attempt to resolve the personal threat posed by
Kuhn’s continued supervision. Accordingly, the Re-
spondent did not violate the Act either by interrogating
Twitty about her rumor-mongering or by suspending
and firing her for it.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Robert J. DeBonis, Esq., for the General Counsel.
Ralph Woodman and Francis Quinn, Esqs., of Portsmouth,
New Hampshire, for the Respondent.
Jeanne Thomas and Mark Edwards, Esqs., of Nashville, Ten-
nessee, for the Respondent.
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1992 unless otherwise noted.
2 The evidence also indicates that Rockett accorded Twitty with
more favorable treatment vis-a-vis the other members of the staff.
This practice stopped with the hiring of Kuhn. For example, fellow
nurse Beth Delcambre testified that Twitty had many occurances or
absences over the years. She was often out on Mondays and Fridays,
was slow in the rooms, and did not help the other nurses. When
Rockett was OR manager, Twitty seemed to get away with such be-
havior. When Kuhn came on board, however, she was taken to task
in a serious way for her absenteeism and behavior.
Paul McEachern, Esq., of Portsmouth, New Hampshire, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Based
on a charge filed by Madelon Twitty, an individual (Twitty
or the Charging Party) on September 2, 1992,1 and an
amended charge filed October 7, the Regional Director for
Region 1 issued a complaint and notice of hearing on No-
vember 6, alleging that HCA Health Services of New Hamp-
shire, Inc. d/b/a HCA/Portsmouth Regional Hospital (PRH,
the Hospital, or Respondent) unlawfully interrogated Twitty
and then unlawfully suspended and discharged her in viola-
tion of Section 8(a)(1) of the National Labor Relations Act
(the Act). Respondent filed a timely answer in which it ad-
mits the factual jurisdictional allegations of the complaint,
and denies having committed any unfair labor practices.
Hearing was held in these matters in Portsmouth, New
Hampshire, on December 13–15, 1993. Briefs were received
from the parties on February 17, 1994. Based on the entire
record, including my observation of the demeanor of the wit-
nesses, and after consideration of the briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
At all times material to this decision, Respondent has been
engaged in the operation of an acute care hospital in Ports-
mouth, New Hampshire. It has admitted the factual allega-
tions of the complaint with respect to jurisdiction and I find
that it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events Leading to the Alleged Unlawful Activity
1. Background and issues presented
Respondent, Portsmouth Regional Hospital, operates a
large acute care hospital in Portsmouth, New Hampshire. It
employs about 300 nurses, including full-time, per diem, and
part-time staff. The department of the Hospital directly in-
volved in this proceeding is the operating room (OR), which
employs about 29 nurses and technicians. The chain of com-
mand of the Hospital, as pertinent, begins with William
Schuler, president and CEO. Next in authority is Stan
Plodzik Jr., assistant administrator for patient services; then
Patricia Henschke, associate director of nursing; then Polly
Kuhn, OR manager; and her assistant, Patricia Alandydy.
The Charging Party, Madelon Twitty, was employed at the
Hospital as a registered nurse in the operating room from
September 1986 until her suspension and ultimate discharge
on July 29. The complaint alleges that Twitty began engag-
ing in concerted protected activity on July 13, and thereafter
Respondent, acting through Kuhn, unlawfully interrogated
her, restricted her in the exercise of her right to engage in
protected activities, suspended her on July 24, and then dis-
charged her on July 29.
The OR manager, Kuhn, is responsible for managing the
OR, which at the time here involved included preparing the
annual budget for the OR and preparing the OR for a major
inspection by a regulatory body, JACHO.
The duty of the assistant operating room manager,
Alandydy, was to ‘‘run the schedule,’’ which involved co-
ordinating the schedule of surgical procedures to avoid prob-
lems and generally overseeing the operation of the operating
room area. Her specific duties include supporting the nurse
manager in running the OR, scheduling nurses for work in
6-week blocks of time, scheduling OR cases on a daily basis,
assigning staff to the cases, and acting as a liaison between
the OR and other departments in the Hospital. She also inter-
acts with the physicians practicing in the OR.
There are five operating rooms at the Hospital and about
29 full-time and part-time employees are assigned to this
function of the Hospital. The employees are either nurses or
surgical technicians. Nurses ‘‘circulate’’ and ‘‘scrub,’’
whereas surgical technicians only scrub. Twitty testified that
the ‘‘circular’’ is in charge of the procedure in the operating
room, is the patient advocate, handles making sure the equip-
ment the surgeon needs is available, fills out necessary pa-
perwork, and is responsible for taking care of any needs that
arise during the surgical procedure. The ‘‘scrub nurse’’ puts
on a sterile gown and gloves, and handles the passing of in-
struments to the surgeon during the procedure. There was
one housekeeping employee assigned to the OR who
changed beds and mopped floors between cases. There were
central supply personnel who washed and reset instruments.
At the time of Twitty’s discharge, Kuhn had been her su-
pervisor for about 5 months, having replaced the former op-
erating room manager, Agnes Rockett, who had retired after
several years of service to the Hospital. Twitty testified that
there was a vast difference in the managerial styles of Kuhn
and Rockett. Rockett was a very ‘‘hands on’’ manager, and
was very involved in the day-to-day operation of the OR.
She was very visible and was very concerned about staff.
According to Twitty, Kuhn’s style was totally uninvolved,
and she stayed in her office all day. She did not come back
in to the operating rooms and in Twitty’s opinion did not
seem concerned about the staff or what the staff did. Rockett
would run the schedule whereas Kuhn would not. Similarly,
Rockett would occasionally perform the nursing duties of cir-
culating or scrubbing, whereas Kuhn would not.2
The General Counsel introduced Twitty’s employee per-
formance evaluations prepared annually by Respondent, cov-
ering the period 1987–1991, and signed by Rockett. These
evaluations generally reflect adequate or better performance
by Twitty, but note an ongoing absentee problem related to
her health. Also placed in evidence were several disciplinary
records from Twitty’s personnel file. These include (1) a
921HCA/PORTSMOUTH REGIONAL HOSPITAL
warning given her in May 1987 for excessive absenteeism;
(2) a warning given her in May 1990 for absenteeism and
inappropriate attitude and comments toward other employees;
(3) a warning given in August 1990 for absenteeism; and (4)
a warning given in June 1992 for absenteeism. The last
warning was given by Kuhn and the others were given by
Rockett. Twitty was suspended on July 24, and the Respond-
ent’s written documentation reflect the suspension was for
disruptive behavior and lack of professionalism.
2. The hiring of Polly Kuhn as OR manager
Kuhn’s supervisor, Plodzik, generally agreed with Twitty’s
assessment of Kuhn’s managerial style as opposed to
Rockett’s. He also testified that he was primarily looking for
someone with computer skills and an analytical mind when
he hired Kuhn. The Hospital was going into computerization
and such skills would be important. According to him, Kuhn
was abundantly qualified on these counts, but was not
blessed with an outgoing personality. Kuhn was hired when
Rockett announced in 1991 that she was going to retire. The
Hospital conducted a search for her replacement, finally nar-
rowing the field to four candidates, including Kuhn. These
candidates were interviewed by a selection committee, of
which Twitty was a member. She, however, did not attend
the meeting at which Kuhn was interviewed. Kuhn had pre-
viously worked with Rockett at Massachusetts General Hos-
pital (MGH or Mass General) in Boston.
Rockett graded the four candidates and gave Kuhn the
highest mark. She submitted a memorandum of her assess-
ment of the candidates to Plodzik on December 31, 1991.
With respect to Kuhn, she wrote:
As she has stated, I worked with Polly Kuhn from
1974 to mid 1986. Since that time she has acquired a
BSN, a MSN and a diploma from a computer school.
She is a person of great determination who seems fo-
cused on what she has to do to reach her objectives.
She has had management and computer experience and
is absolutely not intimidated by anyone. She did file a
grievance against MGH in 1987 or 1988.
Plodzik testified that at the time of her interview, Kuhn
explained that she had been laid off by MGH and her job
abolished in a reorganization. She grieved the elimination of
her job and won, being given a continuing position as a per
diem employee. Plodzik did not question this explanation as
he was aware of the major upheaval at MGH at the time of
the grievance. When he checked Kuhn’s references with
MGH, that hospital gave only very general and limited infor-
mation about Kuhn’s employment as was its standard prac-
tice. He did not look into the matter of the grievance further.
Kuhn was hired as OR manager and began working in that
capacity in early 1992.
3. Kuhn’s dealings with Twitty in the spring and
problems with her performance as a nurse
One of Kuhn’s first duties, insofar as dealing with person-
nel was concerned, involved Twitty. Twitty had been out of
work on a medical leave of absence and returned in April.
According to Plodzik, in April, Twitty came to him with a
grave concern. She had come back from a leave of absence
and was adjusting to her new supervisor, Kuhn. According
to Plodzik, she had real concerns about her continued em-
ployment. The two talked about the different management
styles of Kuhn and Rockett. Twitty expressed concern over
the demands being made of her by Kuhn over her attend-
ance, attitude, and behavior in the OR. Plodzik told Twitty
she was going to be held to the same standards as the other
OR employees. He felt that in the past, Twitty had had pref-
erential treatment. The staff had come to him on a number
of occasions, complaining about this preferential treatment by
Rockett and asking that she be treated equally.
Plodzik told her that her relationship with Kuhn was most
critical and she had to work closely with her. He suggested
that an action plan be worked out so she could meet the
needs she was looking for from a manager. He offered to
help make the communications happen, but that ‘‘the ball
was in her court.’’
Plodzik testified that he met with Kuhn about Twitty. He
suggested that Kuhn work out a plan with respect to Twitty
and the two meet on a weekly basis to monitor Twitty’s per-
formance. He testified that he was shocked to find that
Twitty was undergoing psychiatric care and that Rockett had
had no formal record of her capability of working under
these circumstances. He was concerned about putting her in
jeopardy as well as patients.
At an April meeting between Kuhn and Twitty, Twitty
gave Kuhn a letter from her therapist, which indicated that
Twitty had shown symptoms of major depression over the
past 6–8 months and been placed on medication for this con-
dition. The therapist pointed out that with continued therapy
and medication, Twitty would be able to return to her normal
duties. Following the meeting, Kuhn prepared a report of the
meeting, which states:
I met with Madelon today to discuss her absence, 4–
13 through 4–20–92 and received a letter from her ther-
apist stating that she is able to return to work after her
emotional crises during which she was placed on
Prozac. I discussed at length her absences (12) since
Jan. 1, 92 and the excessive number the previous year
and my concerns that she perform up to standards. I
discussed her need to improve rapport with all staff,
avoid making sarcastic remarks and assist others during
surgery and in turning over cases.
The report details Kuhn’s plan to improve Twitty’s per-
formance as follows:
The plan discussed with Madelon is:
She will continue her weekly meetings with her ther-
apist and monthly appointments with her psychiatrist
who prescribed Prozac.
She will show an immediate, sustained improvement
in absenteeism.
She will avoid sarcastic remarks and show an imme-
diate, consistent improvement in work performance,
particularly in working with other staff during surgery
and to assist with case turnover.
She can come to me at anytime to discuss how she
is doing or ask for assistance.
We will meet on Friday, April 24, to evaluate her
performance this week and to discuss whether or not
she feels she needs additional assistance.
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 To the extent that a credibility gap exists on this point, that is,
Twitty’s continued employment being in question, I credit Plodzik,
based not only his testimony, but the contemporaneous records of
Kuhn set out above.
4 This evidence regarding complaints about Twitty’s performance
is set out to demonstrate that when it made the decision to discharge
Twitty, it was not dealing with a perfect employee. As will be dis-
cussed later, Plodzik testified that Twitty’s overall performance was
taken into account when the decision was made to discharge her. I
believe this recitation of complaints is sufficient to give the reader
an idea of the problems Twitty was having with the other staff mem-
bers and the physicians practicing in the OR. I believe such com-
plaints may have led to Twitty’s ultimate discharge. The discharge,
however, was entirely based on Twitty’s actions on July 23. Had she
not taken the action she did, she would not have been discharged,
at least not at the time Respondent took this action. Therefore, I find
it unnecessary to detail the numerous other examples of problems
with Twitty given by several doctors and nurses who testified in this
proceeding.
Kuhn’s report of the April 24 meeting reads:
I met with Madelon . . . to discuss her performance
this past week stating that she had shown improvement
in her work performance, rapport with staff and sur-
geons, and that these efforts need to be displayed on a
consistent basis. I reiterated the need for her to show
continued improvement in attendance and that her
record to date is excessive.
Twitty testified that she did meet with Plodzik in April
and told him she felt, after her meetings with Kuhn that
week, that she was being harassed by Alandydy. According
to Twitty, Alandydy had criticized her for taking too much
time to perform a certain task. She stated that ‘‘every time
I turned around she would be looking in the window at me,
and you know, it was perceived by me that she was just try-
ing to rattle me.’’ Alandydy had told her her criticism was
based on a report given her by another nurse. Twitty con-
fronted this nurse, who professed no knowledge about the
matter. She also gave Plodzik her medical history which in-
cluded a period of depression. Plodzik suggested she take the
matter up with Kuhn. Twitty then told Kuhn what she had
told Plodzik and Kuhn said she would speak with Alandydy.
After that, Twitty said she had no problems with Alandydy.
Twitty did not remember Plodzik discussing her continued
employment being in question in the April meeting.3
It appears that Alandydy was keeping an eye on Twitty at
about this time. Alandydy kept some daily notes, and from
these she testified about some complaints she received about
Twitty. There was a complaint in March from a surgeon
about Twitty being slow in turning over cases in the OR. As
I understand it, turning over rooms or cases involves moving
a patient from an operating room after an operation and pre-
paring the room for another operation. According to
Alandydy, this should take about 15 minutes. Twitty was de-
scribed as taking considerably longer to accomplish this task.
Alandydy described a meeting in March between Kuhn
and the staff surgical technicians. The technicians believed
that their functions were being taken away from them and
they had complaints about Twitty, primarily that she was
rude and condescending toward them. She noted a complaint
from a doctor in April that Twitty was on the phone when
she should have been in the OR. She noted a complaint from
another doctor in April that Twitty took an excessive time
to prepare a patient for surgery. Twitty became very angry
when Alandydy confronted her about this matter.
In late April or early May, a nurse anesthetist complained
that Twitty was slow in turning over the OR. A surgeon in-
volved in the incident was very angry as well. Again, Twitty
was angry with Alandydy when confronted about the inci-
dent. Alandydy told Twitty that she was getting slower with
the passage of time. She believed it was because of Twitty’s
depression.
Alandydy noted on May 28 that Twitty took an exces-
sively long lunchbreak. This could be a problem as it might
affect afternoon scheduling of operations. This was reported
to Alandydy. In June, Twitty was late for work on 3 con-
secutive days, June 16–18. She noted that Twitty was very
rude on June 29 or 30.
Alandydy testified that several doctors, including a Dr.
Looser and a Dr. DiAngelo complained that Twitty was
slow. An anesthesiologist, Dr. Andelman, complained that
Twitty’s behavior was passive aggressive. Most of the com-
plaints came in the latter part of 1991 and the first part of
1992. Twitty was virtually the only nurse about whom she
received complaints.4
Kuhn gave her a warning for absenteeism on June 12.
Kuhn told her that she had a problem with absenteeism and
that if the situation did not show immediate improvement,
Twitty’s continued employment would be in question. Twitty
replied that she would continue to do her best and would
continue with the treatment she was receiving. Twitty had
been out with a sinus infection. She testified that she had no
additional absences between that date and the date of her dis-
charge.
4. Twitty’s concerns about Kuhn’s manner of
supervision and her actions in response
Twitty testified about a meeting with Kuhn in May. In at-
tendance at the meeting were fellow nurses Nancy Eastman
and Sheila Jeter. The meeting concerned vacation scheduling,
because all three wanted vacation at the same time and the
policy was that only two RNs are allowed vacation at the
same time. Kuhn asked which of the three would be willing
to change her plans, all three indicated their plans were firm.
They discussed ways to cover if all three were to be out at
the same time, mentioning increasing the hours of the per
diem and part-time employees. Jeter asked Kuhn that consid-
ering that many of the major projects that Kuhn was then
handling, including preparing the OR budget and preparing
for a major inspection, would be completed by the date of
the nurses’ vacation, would she run the schedule while they
were out, thus allowing the assistant OR manager, Pat
Alandydy, to perform nursing duties. Kuhn declined.
Twitty testified that in early July, the OR was short
staffed. One staff member resigned, one had a broken leg,
and another was undergoing treatment for cancer. Another
staff member was on medical leave and a fifth, a part-time
staffer, was on maternity leave. This situation increased the
amount of call hours of the remaining staff. The hours of
routine staffing for the OR is the day shift, from 7 a.m. to
3 p.m. One team worked an overlapping shift, from 12 noon
to 8 p.m. The rest of the 24 hours was covered by oncall
personnel. The call was broken into weekdays and weekends.
923HCA/PORTSMOUTH REGIONAL HOSPITAL
5 Although this is an amusing name to give Kuhn, I cannot find
in the rest of the testimony that anyone other than Twitty used it.
6 Alandydy testified about this meeting and though her version dif-
fered slightly, she evidently encouraged Twitty to bring the matter
up at a staff meeting. Alandydy also testified, and I believe credibly,
that members of the staff had no hesitation in approaching her and
other members of management with complaints, problems, or issues
of concerns. Henschke also offered similar credible testimony about
her willingness to address employee concerns and the lack of hesi-
tation of the staff to bring such concerns to her. Moreover, other
than Twitty, no witness testifying indicated that there existed any
problem with approaching Kuhn with problems.
7 This report is dated July 14, 1992, but the other evidence indi-
cates that only one scheduled staff meeting was held in July and it
was held July 21. The meeting as described in this report comports
with the testimony describing the meeting of July 21.
A nurse would be oncall about 1 day a week and one week-
end in five. A nurse oncall had to remain reachable and
available to work within 20 minutes of being called. The
understaffed situation in July increased stress and hardship
for the employees. As an example of this, Twitty testified
that Jeter one day worked her regular day shift and was
called back in that night. She had to work, running the
schedule, the following day because Alandydy had taken a
vacation day. Twitty asked Jeter, who was looking stressed,
if she had asked Kuhn to run the schedule. Jeter said she had
not asked.
Twitty said the staffing problem was a matter of constant
comment among the staff. She said that the staff had given
Kuhn the nickname, ‘‘Phantom of the OR.’’5 Twitty objected
to Kuhn staying in her office, because it made Twitty have
to work more hours. Twitty brought up the staffing matter
with Alandydy on July 12. She told Alandydy that there was
a lot of discussion among the staff about Kuhn’s lack of visi-
bility and her unwillingness to support the staff during the
period of short staffing. According to Twitty, Alandydy re-
plied that she had talked with Kuhn about the matter to no
avail, and that Kuhn needed to hear about it from the staff,
encouraging Twitty to bring the matter up at the next staff
meeting which was scheduled for the following week.6
A report of the staff meeting chaired by Kuhn and held
on July 217 states:
Staff have requested more time for discussion. Due
to all that must be done prior to JACHO review, we
have been focusing on this. Today’s meeting will be an
Open Forum for discussion of staff concerns, and we
will have more meetings like this when we can work
them in.
Staff raised the issue of staff assignments; some staff
feel that they are assigned the more difficult cases, and
others are never assigned these cases, as in ortho. What
are your expectations of staff assignments?
Polly stated that she expected assignments to be fair
and equal and if anyone felt that this was not being
done to see her.
Discussion ensued regarding the staff’s desire to ro-
tate vs being assigned to the same services all the time.
Polly agreed with this idea; in a small hospital where
staff are on vacation, out ill etc. and taking call, it is
important to maintain one’s skills in as many areas as
possible, to maintain the department.
. . . The question of whether Polly planned to work
in the rooms was raised by Madelon Twitty. Polly stat-
ed that at the present time with the staffing shortage,
it was most important to continue with the interviewing
in order to fill open positions and alleviate the situation.
In terms of the future, Polly said that although she
would like to be able to work in the rooms periodically,
it would depend on future expectations of her as a man-
ager and requirements managing the department, which
would have to be weighed on a daily basis.
Kuhn was addressing the problem of short staffing. She
was advertising in local papers for part-time and per diem
nurses to fill the temporary vacancies. She, together with
Henschke, was working to find additional babysitters for a
current part-time nurse so that nurse could work more hours.
A written report prepared by Alandydy, states:
On July 21, 1992, 0700–0800, the Operating Room had
its monthly nursing staff meeting. At the end of the
meeting, Madelon asked Polly Kuhn, OR Nurse Man-
ager, if it was her intention to work either at the desk
or out back due to our present staff shortage. Polly stat-
ed that most probably that would not be happening and
cited several reasons why.
Twitty also testified about this meeting. With respect to
the staffing issue, she remembered Kuhn telling the employ-
ees she was advertising to fill the openings in the OR, but
had not received applications from any qualified nurses.
Kuhn said she intended to continue to seek applicants for
these positions. Twitty at this point told Kuhn that there was
a lot of discussion among the staff about Kuhn’s visibility
and support and asked that Kuhn run the schedule on busy
days. Kuhn declined, saying her time was better spent trying
to fill the positions. After the meeting, in Twitty’s opinion,
the staff appeared to be resigned to Kuhn’s position.
Later in the day of July 21, Twitty spoke with Patty
Henschke, Kuhn’s superior. Henschke asked Twitty how she
was doing and Twitty said she had been better. Henschke in-
quired what the problem was and Twitty said, ‘‘It’s the new
Nurse Manager we have. She spends eight hours a day in her
office and is not responsive to any of our problems.’’
Henschke asked if Twitty had tried to discuss the problem
with Kuhn and Twitty replied, ‘‘It wouldn’t do any good
anyway.’’
Henschke remembered the conversation as well. She re-
members Twitty bringing up Kuhn’s answers to questions
that had been raised at the staff meeting. These related to
support of staff versus physicians and the matter of helping
in the OR because of short staffing. After a brief discussion
of the physician abuse issue, they discussed Kuhn’s re-
sponses to the staffing issue. Henschke explained to Twitty
that she believed that Kuhn was doing everything possible at
that point. She told Twitty that Kuhn had met with her and
discussed advertising and was helping a part-time nurse get
babysitting help so she could work more. Henschke was sat-
isfied with Kuhn’s actions and pointed out that the staffing
situation in the OR was not unusual.
Alandydy had a conversation with Twitty at the end of this
day as they left the OR. According to Alandydy, ‘‘Madelon
stated to me that it was ‘time to get a new search committee
together,’ and that ‘Polly was not what she represented her-
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 G.C. Exh. 22.
9 Neither Rockett nor Kuhn testified in this proceeding. There is
no confirmation therefore that Rockett was indeed the source of the
information nor was there any examination of her about the veracity
of the information. The General Counsel would have me draw an
adverse inference in the matter because of Kuhn’s nonappearance. I
decline to do so. First, the evidence offered by Twitty on this point
is clealy hearsay. No reason was given on the record for the General
Counsel’s decision not to call Rockett to testify. To offer, as he did,
this hearsay evidence merely as explaining Twitty’s state of mind
and as reason for her subsequent actions, in my opinion, precludes
him from asserting the truthfulness of the information without fur-
ther proof of its truthfullness. Based on the testimony that I heard,
I do not believe that the information is true. Several of the witnesses,
including Twitty, testified that abandoning a patient is the worst and
most serious offense with which a nurse can be charged. Plodzik
credibly testified that by law such charges must be reported to the
State and investigated, and such a matter would be a major matter.
As noted earlier, Rockett herself recommended Kuhn for the job of
PRH OR manager, and I consider it inconceivable that she would
have done so if she possessed information that Kuhn had been ac-
cused of abandoning a patient and destroying MGH computer
records. Henschke appeared to me to be a credible witness and she
testified that she spoke to Rockett shortly after the events in question
and Rockett did not tell her anything about these allegations against
Kuhn, even though the conversation was heated and involved com-
plaints from Rockett about the current operation of the OR. Twitty
admitted that she made no attempt to verify the information, and at
one point in the record admitted questioning Rockett’s motives in
giving it to her. There is evidence in the record that Rockett passed
the same information on to another nurse in the OR, Carla Decker,
and she kept the information to herself. Decker evidently told this
to Alandydy and to Twitty. For all I really know, Decker may have
been the true source of the information. Decker, like Kuhn and
Rockett, did not testify. 10 Plodzik testified that there was no probationary period for Kuhn.
self to be.’ In addition, Madelon made several comments re-
garding our instrument budget and money constraints, and
that ‘Agnes [Rockett] would have devoured Dick Senger.’ I
told Madelon I thought she was being rather harsh and went
to my car.’’8
5. The actions of Twitty that lead to her discharge
The next day, Twitty was off duty and drove to visit
Rockett, who ran a consignment shop in New Hampshire.
Twitty complained about Kuhn, and, according to Twitty,
Rockett told her that she had supervised Kuhn when they
both worked at Massachusetts General Hospital in Boston.
She went on to tell Twitty that Kuhn had been fired for
abandoning a patient, that Kuhn had filed a grievance over
the termination and won before the grievance board, and had
been reinstated. Twitty testified that Rockett also told her
that Kuhn had been involved in loss of some computer data
when she left Mass General. She further testified that
Rockett told her that Kuhn did not get along well with her
peers, and that she, Rockett, had spent a lot of time ‘‘bailing
Polly out’’ of situations she had gotten herself into. Twitty
claims that Rockett told her that if she planned on sharing
this information with other employees at the Hospital to say
she had heard the information from another source and had
gone to Rockett to confirm it.9
That evening, Twitty tried to call fellow nurses Carla
Decker, Beth Delcambre, and Sheila Jeter to share the infor-
mation about Kuhn. However, they were not home. The next
morning, on arriving for work at the Hospital, she walked in
from the parking lot with Delcambre and another nurse, Lau-
rel Pritchard. According to Twitty, she told them what
Rockett had told her about Kuhn, and added that ‘‘things
were not going to get any better, unless we got together and
tried to present some kind of united front to Polly of what
we thought were the problems and how to handle them.’’
At breaktime that morning she met Decker in the cafeteria
and relayed to her the same message she had given the other
nurses in the parking lot. Twitty told Decker that she was
upset that the committee had not been given this information.
The committee she refers to was the selection committee that
had conducted the search for Rockett’s replacement. Twitty
testified that Decker said she had been told all of this 6
months before and that the past was not important, the only
thing that mattered was the present. Twitty said that the past
is affecting the present and history is repeating itself. Ac-
cording to Twitty, Decker said that Twitty should drop the
issue, that she had made herself visible, and there was noth-
ing to be gained by pursuing it. Twitty said it was too impor-
tant to drop.
Later that day, she was involved in a conversation with
Jeter, Delcambre, and Pritchard, and reiterated what she had
said to them in the parking lot. Alandydy came into the room
where the nurses were talking and said that Kuhn wanted to
see her. As Twitty left the room, she told the other nurses,
‘‘Agnes [Rockett] also told me that Polly was on a six month
probationary period and that maybe we should think about
going to see Stan [Plodzik] to see if we could have the pro-
bation extended until we could work these problems out.’’10
Laurel Pritchard testified that she had a conversation with
Twitty on July 23 on the way into the Hospital from the
parking lot and another one in the afternoon of that day. In
the morning conversation, Twitty expressed concerns about
Kuhn and her supervising the OR. The second conversation
was with Twitty, Delcambre, and Jeter. Twitty said that there
were issues they needed to discuss, Kuhn’s past history and
her managerial style. Pritchard testified that Twitty said
Kuhn had abandoned a patient while working at Mass Gen-
eral and had dumped some computer information. Twitty
said that Rockett was the source of this information. Accord-
ing to Pritchard, Twitty said nothing about Kuhn grieving the
matter at Mass General.
Beth Delcambre had been with Pritchard in the morning
and remembered Twitty telling them that Rockett had given
her some information about Kuhn the night before. She re-
membered being told that Kuhn had been fired from Mass
General for abandoning a patient, had filed a grievance, and
that the Hospital had had to hire her back for 1 day a year.
She also said that Kuhn was on a probationary period and
something had to be done about the matter before August 1.
Delcambre’s reaction was that Twitty was a ‘‘loose cannon.’’
It was Delcambre’s opinion that Twitty was out to get Kuhn
fired and in that regard was just out for herself. Twitty had
told Delcambre that she was angry with Kuhn about her
treatment by Kuhn.
In the afternoon meeting with Jeter, Pritchard, Twitty, and
Delcambre, Jeter tried to explain to Twitty that they did not
know if Rockett was correct in what she had told Twitty, and
that Plodzik had checked her background and the things were
925HCA/PORTSMOUTH REGIONAL HOSPITAL
unfounded. She considered the effect of Twitty’s statements
to be negative on the OR staff.
6. Management learns of Twitty’s actions and responds
A contemporaneous written statement describing the
events of July 23 and the day following from Kuhn’s stand-
point is part of Twitty’s suspension documentation. This
statement appears to me to be a reasonably, concise, and ac-
curate account of these events. I have quoted the material
from the report and have added testimony from other sources
where I felt it important to tell the whole story.
July 23, 1992 Incident regarding Madelon Twitty
AM—I was informed by Patty Henschke that a staff
member had told her that Madelon Twitty was trying
to organize the staff regarding issues of my perform-
ance, and had made derogatory statements about me.
Henschke testified that on July 23, Carla Decker came to
her in the morning and said she was concerned about the
welfare of the OR. She went on to say that Twitty had been
calling a number of nurses and telling them statements that
were untrue or believed to be untrue about Kuhn, to the ef-
fect that Kuhn had been fired for abandoning a patient. After
being fired and grieving, she went back to Mass General and
worked per diem. In the per diem capacity at some point,
Kuhn dumped some computer programs that she had put into
place so that they were useless to the Hospital.
Henschke testified that she had never heard this allegation
before. She added that abandoning a patient is probably the
worst thing that a nurse can do. At her hiring interview,
Kuhn had indicated that she had been laid off in a reduction-
in-force at Mass General.
Henschke considered the statements about Kuhn so mali-
cious that she went to Kuhn. She asked Kuhn about any
issues with the staff and Kuhn mentioned things that had
been brought up at the staff meeting. She then told Kuhn that
a staff member had told her that Kuhn had been fired. Kuhn
denied it and said she had been laid off in a reduction-in-
force. She then directed Kuhn to speak with Twitty as soon
as possible and find out what was going on. Kuhn sent
Alandydy to find Twitty. Alandydy found her meeting with
Delcambre, Jeter, and Pritchard and told her to go meet with
Kuhn.
1:15pm—I met with Madelon in the present of Pat
Alandydy. In answer to my question, ‘‘I have been told
that you are trying to organize the staff regarding my
‘performance’—is this or is this not true?’’ Madelon
stated, ‘‘yes, it’s true.’’
I stated that I had been told that she had made state-
ments to the staff that were derogatory to me both per-
sonally and professionally, and asked whether or not
this was true, she answered that it was. I asked where
she had heard such information and she stated that she
would not divulge her source.
I asked Madelon why she was doing this, why she
had not come to me if she had any issues or concerns;
she stated that she did not like the answer that I gave
at the last staff meeting regarding what my plans were
regarding my working in the rooms, and that she did
not feel I was ‘‘pro staff.’’
I reiterated the innumerable times that I had asked
her to come to talk to me if she was having any prob-
lems or if there was anything that she wanted to dis-
cuss, and that she had not once done so, unless I initi-
ated the meeting. She stated ‘‘you did not give me any
warm and fuzzies after I came back from being sick,’’
and that I was ‘‘unapproachable.’’ She also stated that
the entire staff felt the same way, and that she wasn’t
the original person to come up with the idea of organiz-
ing the staff to meet [contrary to her original admission
that she was organizing the staff].
I told Madelon that I could provide emotional and
professional support for her but that I could not satisfy
all of her emotional support needs, that other people
and events outside the workplace needed to be a source
for her.
After Madelon reiterated that I was unapproachable
and that the entire staff felt this way and that they also
felt there were many issues regarding my performance,
I told her that I believed I needed to go to the staff im-
mediately to discuss these issues. I asked Pat to call the
staff together for a meeting.
Delcambre testified that the meeting began with Kuhn tell-
ing the assembled staff that there were rumors flying around
that were not true.
1:30pm—In Madelon’s presence, I addressed the
staff with the issues that she had raised; that she had
stated that the entire staff felt I was unapproachable and
that they could not come to me with their concerns, and
that they were organizing to bring out issues about my
performance.
I asked for their comments regarding any of their
concerns; the two concerns that were raised were that
they wanted to see me more (be more visible) and that
they wanted to know if I would support them, particu-
larly in situations such as ‘‘abuse’’ from surgeons
and/or the anesthesia staff.
I responded that I would like to be in the rooms
more, but that I had to prioritize and make that decision
on a daily basis. I explained that I believed my respon-
sibilities at this time with such extremely short staffing
was to address the problem and use my time to gaining
administrative approval for temporary help, running
ads, calling part-time and per diem staff. I had also
tried to assist one of the per diem staff who could work
but was having a problem with babysitters, and had
been able to find several possible resources. All of this
takes time and I believed I was taking an approach to
alleviate the problem, rather than spend time in the
rooms and not be able to address the problem.
Regarding the ‘‘abuse’’ issues, I stated that as a new
manager, I had to have more of an historical perspec-
tive on the issues—whether it was the entire surgical
and anesthesia staff or a few isolated persons. I ad-
dressed strategies that have been used in other hos-
pitals, and that I believed that I needed to know the
level of support I had on the issue and approach it with
a plan that would include all of us—that to jump into
the issue knowing so little and without a well thought
out approach would not resolve the issue, and would re-
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
duce my efforts the next time an issue arose. I assured
them that I would be addressing this issue.
2:30pm—After talking to Patty Henschke regarding
what had transpired, I returned to my office, one of the
staff nurses came in to tell me that what Madelon had
said did not represent what the staff and that some of
the staff had ‘‘sat her down on the couch’’ and verbal-
ized their anger that she had said these things. This
nurse stated she herself did not feel that I was
unapproachable and she didn’t know of anyone on the
staff who did. She also stated Madelon had called sev-
eral of the staff at home to try to get them to organize
regarding my performance. She said ‘‘Madelon is just
Madelon, she has an unhappy life and we don’t pay any
attention to her because we know how she is.’’ She
stated she did not know of any staff who were agreeing
with Madelon.
Several staff members came to me, each individ-
ually, to state that they did not agree with Madelon and
that they did not know of any staff who agreed with
her, and extended their support of me.
July 24 7:00 am—Two other staff members came to
speak to me in my office to express their anger that
Madelon had misrepresented the staff in making here
concerns representational of the entire staff. One stated
that in her position as coordinator she knew everything
that was going on and that no one was organizing
against me. ‘‘It’s only Madelon.’
Pat Alandydy told me another staff member had
called her at 10:00pm last night to say that just before
she [Pat] had called the staff together for the meeting,
Madelon was talking to 3 staff members about how
they had to organize right away because ‘‘Polly’s pro-
bation is up August 1 and we have to get organized
about all these issues.’’ According to Pat, this staff per-
son also stated that the things Madelon is saying about
me were ‘‘blasphemous.’’
Five other staff members have come since then, all
stating that they did not agree with Madelon, and offer-
ing their support of me.
Alandydy made some contemporaneous notes (G.C. Exh.
22) of the these events and they read as follows:
On July 23, 1992, following Polly’s meeting with the
OR staff at 1315, the following RN’s approached me
and stated that in no way did either Madelon speak for
them or represent them: Kathy Morris, Sheila Jeter,
Beth Delcambre, Laurel Pritchard. There was consider-
able anger and resentment expressed toward Madelon
by Nancy Lamonagne and Beth Miller. Jane Steiner
stated she told Madelon to think about what she was
doing. The staff in general stated they were very upset
over ‘‘being used by Madelon to grind a person
grudge’’ against Polly Kuhn. Beth Miller came to me
and stated that, in no way, would she be part of orga-
nizing against Polly. Both Laurel Pritchard and Beth
Delcambre stated that on the AM of July 21st, upon ar-
rival at work, Madelon was waiting for them outside
the Hospital and said they had to organize right away,
and that she had tried to call them the evening prior in
this regard. Madelon stated same to Sheila Jeter.
Sheila Jeter, RN, called me at home July 23, 1992,
at 10PM very distressed regarding this situation. Sheila
relayed to me that Madelon entered OR #4 where she,
Laurel and Beth were doing an Ortho project. Madelon
stated that they must organize right away, and that
Polly misrepresented herself. Madelon informed them
that she had spoken with Agnes Rockett, and that
Agnes told her following:
(1) Polly was on probation at PRH until August 1,
1992;
(2) Polly was fired from the Massachusetts General
Hospital for abandoning a patient;
(3) Polly was allowed to file a grievance or appeal,
and she was put on per diem status and allowed to
work one day a year in order not to have it on her
record that she was fired.
This upset everyone in the OR, and Sheila asked
Madelon when this happened, did she have any written
proof of it and that no one knew what management ex-
pected of Polly, that was between Stan and Patty. Shei-
la further went on to diffuse this conversation stating
that Polly was still new and only here 4 months, having
tackled the budget and JACHO. At that point, I inter-
rupted them looking for Madelon, per Polly’s request.
This information was also told to Jane Steiner, RN, the
same day.
I feel it is necessary to also mention that Carla Deck-
er, RN, approached me at approximately 1500 hour the
same day [July 23, 1992] and stated to me that it was
she who went to Patty Henschke because she had
known of this situation with Madelon, and saw where
it was leading, and was concerned for the welfare of
the OR. Carla also stated to me, at this time, that this
‘‘information’’ regarding Polly Kuhn [and she repeated
the same information as above] had been told to her by
Agnes Rockett 6 months ago, and that it was something
she never told anyone, due to it being so harmful.
Henschke testified that, on the afternoon of July 23, she
learned from Kuhn that she had confronted Twitty about
making the statements and Twitty confirmed that she had and
that she was trying to get her fired. She added that Twitty
stated that she represented the staff. She related to Henschke
what happened at the meeting she called. Henschke was ex-
tremely concerned and had Twitty’s personnel records made
available to her.
She was aware that Plodzik had met with Twitty and told
her that if she had any issues that he would work with her
in discussing any problems with Kuhn. She was aware that
Kuhn was pursuing a plan of action with Twitty. She was
aware of problems expressed by staff and physicians about
working with Twitty. She looked through the file and saw
the warnings given Twitty and looked up the Hospital’s dis-
ciplinary policy to see what options were available.
The next morning she met again with Kuhn and reviewed
everything. She then met with Bob Carey, the Hospital’s per-
sonnel director. He agreed that suspension would be appro-
priate at the time, so that an investigation could take place.
She also spoke with her boss, Plodzik, by phone, as he was
out of town. He agreed with the decision to suspend Twitty.
Kuhn’s written statement continues:
927HCA/PORTSMOUTH REGIONAL HOSPITAL
11 The two sources of these rather self-serving remarks, Decker
and Jeter, did not testify.
July 24, PM—I met with Madelon in Pat Alandydy’s
presence to state that I had a problem with her lack of
professionalism and disruption of the unit, as was ex-
hibited by her calling staff at home to organize about
my performance ‘‘before my probationary period’’ was
up. I also stated that her statements misrepresented the
staff and addressed the staff’s anger that she had done
so. I reiterated that her statements about me were injuri-
ous at both a personal and professional level and under-
mined my professional credibility. I told her I was sus-
pending her until further investigation of the incident
could be completed. Madelon refused to sign the Em-
ployee Warning notice.
I told her I would call her sometime the following
week to come in and discuss her future employment.
She stated ‘‘Well, I guess I’ll go to get a lawyer.’’
Twitty described the meeting with Kuhn and the other
events of July 23 in her testimony:
Polly asked me if it was true that I was trying to or-
ganize the Staff nurses on issues of her performance.
And I said, ‘‘Yes, it is true.’’ And, she wanted to know
who had told me all those lies about her. And, I told
her I didn’t feel comfortable in giving her that informa-
tion. And, then she sent Pat Alandydy out to—but I
also said that I felt that she was unapproachable, and
that other staff members also felt the same way. So, she
said, ‘‘Well, I think we need to get this resolved right
now.’’ And, she sent Pan Alandydy out to gather up the
staff members for an impromptu meeting. After Pat
Alandydy left the room Polly Kuhn started yelling at
me that she could sue me for defamation of character.
Pat came back to the office and said that the available
was assembling in one of the Operating Rooms, and so
we walked down the hallway to the operating room.
Polly just started off by saying that it had been brought
to her attention that I was trying to organize the staff
on issues of her performance, and that I had implied
that I represented the staff on this issue. And, that she
just wanted to clear the air, and asked if anybody had
any comments to make. Sheila Jeter just made the com-
ment that there had been discussion among the staff
about her visibility, and Beth Delcambre said that tem-
pers have been high, and the situation was very stress-
ful. And, there was concern about whether she would
support her staff in issues where conflict, you know,
the surgeons or whatever were involved. And, I’m not
sure who brought up a hypothetical situation of one of
the staff members being verbally abused by a surgeon.
And, Polly thought about it for a minute and then she
said, ‘‘Well, since I’m new, the first thing I’d have to
do is find out the history of the people involved, and
then I’d have to get some history on the incident in
question. And, then I’d have to find out if my super-
visor supported me. And, then I’d have to find out how
much revenue the Surgeon brought into the hospital.’’
. . . After those statements were made, Pat Alandydy
interjected that the issue had been addressed with Mr.
Schuler in the past, because there had been a real inci-
dent of one of the surgeons verbally abusing some staff
members, and that Mr. Schuler supported the staff a
hundred percent.
Twitty testified that after the meeting adjourned, Carla
Decker came up to her and said that she was the one who
had gone to Patty Henschke to tell her what was going on
in the OR. She told Twitty that she should drop the matter
and start worrying about self preservation.
That evening Twitty received a call from Jeter who told
her that she had made herself very visible and that Twitty
should drop the matter. Twitty asked if Jeter thought any-
thing had been resolved and Jeter said, ‘‘[N]o, but there is
nothing that can be done.’’ ‘‘They have the power.’’ Twitty
then said, ‘‘If nobody is willing to support me, then I guess
I’ll just have to drop it.’’11
7. Twitty meets with Plodzik and is discharged
On July 29, Twitty attended a meeting in the office of
Stan Plodzik, the Respondent’s assistant administrator and di-
rector of nursing services. In attendance at the meeting were
Twitty, Plodzik, and Kuhn. Plodzik prepared a report of the
meeting and subsequent events which reads:
Meeting was held on July 29, 1992 at 11 am with
P. Kuhn, S. Plodzik and M. Twitty present. M. Twitty
was placed on immediate suspension on July 24, 1992
by P. Henschke, P. Kuhn in the absence of S. Plodzik
for a Class II Violation—‘‘Acts/omissions and defi-
ciencies of serious nature that continued employment
would be detrimental to Hospital.’’
During her suspension, the following facts were obtained
and presented to M. Twitty by me at this hearing:
1. M. Twitty attempted to call/organize number of RNs to
solicit support for the intent of removing Operating Room
Nurse Manager Polly Kuhn, RN.
2. M. Twitty implied that a large number of staff were
represented by her viewpoint (on cross, Twitty denied she
implied this).
3. M. Twitty used false, vicious, or malicious statements
about P. Kuhn as a means of soliciting support for her re-
moval.
4. M. Twitty failed to apply the known chain of command
for voicing disagreements within the division.
5. A number of written warnings already exist in M.
Twitty’s record relative to her attendance, lack of support
with staff, sarcastic remarks, and poor work performance,
causing low morale among the operating room staff.
6. In addition, I reiterated our meeting in April, when I
met with Madelon, following her return from a severe psy-
chological crisis, regarding her initial impressions of new
Operating Room Nurse Manager Polly Kuhn. I redirected
concerns regarding M. Twitty’s work record and need to
continue with her psychiatric therapy etc. and ways to deal
positively with her interactions with P. Kuhn. In addition, it
was clear to Madelon that her continued employment was in
question unless she took steps to correct issues that P. Kuhn
identified as longstanding concerns that were creating a very
negative atmosphere within the operating room department.
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 None of these names were placed in the record nor were any
such persons called to testify.
13 In her affidavit given to the Board in the investigation of this
matter, she swore: ‘‘I commented that maybe I did use bad judg-
ment, that maybe Rockett did have an ulterior motive in telling me
what she did.’’ I credit this version over her testimony at the hearing
because, inter alia, it was given much closer to the time of the meet-
ing than was the hearing.
Following the presentation of these facts, M. Twitty relat-
ed her impressions of her behavior and admitted that she
used poor judgment and the malicious statements she made
regarding P. Kuhn were not validated, and that she regretted
her behavior. Considerable time was spent in discussing the
impact that her behaviors, both present and past, have had
on the operating room department. I stated that the feeling
of P. Kuhn and myself was that regardless of the attempts
Madelon might make to correct this incident, it was in our
minds of such a serious nature as to preclude her return to
the operating room. I therefore stated that she would be ter-
minated for just cause (class II violation) effective imme-
diately, and that we would call her on July 31, 1992, to have
her pick up her final paycheck and personal belongings in
her locker.
At the hearing, Plodzik in a rather wandering way ampli-
fied on his thinking behind the matters set forth in the report.
This testimony appeared to me to be something of an attempt
to rationalize or expand on the reasons for Twitty’s dis-
charge. As Twitty’s discharge was internally appealed to the
Hospital’s CEO and as he upheld the discharge based on the
written report set out above and Twitty’s statements during
an interview with him, I do not give weight to Plodzik’s am-
plification.
Plodzik testified that he believed that the statements
Twitty was making about Kuhn were false, and he did not
know her source for the information. He cannot remember
Twitty telling him it was Rockett. Whether Twitty told him
this in their meeting or not, I do not accept his professed
lack of knowledge about Rockett being the source.
Alandydy’s written statement, which was part of Twitty’s
personnel file clearly states this to be the case.
Plodzik also testified that in the meeting Twitty admitted
not knowing that the information about Kuhn was factual and
that Twitty further admitted that she wanted to get Kuhn
fired. He asked Kuhn what she thought should be done and
Kuhn felt that Twitty could not return to the OR, that dam-
age had been extreme, that there would be constant turmoil,
and it required her termination.
Regarding this meeting, Twitty testified:
I believe it started out that Stan said they had con-
ducted an investigation into the incidents of the pre-
vious week, that numerous staff members had come to
them on their own, and had said they did not agree
with me. That I was being terminated for a class II vio-
lation, that he was shocked that I would make unsub-
stantiated statements about my supervisor. At that time,
I informed him that I gotten names from people that
worked at Mass General that could substantiate the
statements.12 They brought up the absenteeism issue,
and I asked them if the staff member with the broken
leg, and cancer treatments were going to be treated the
same way. I know that towards the end of the meeting
I—oh, he did ask me what motivation Agnes could
have had in telling me the things that she told me. And,
I said I couldn’t think of anything other than concern
for the people that she had managed for five years.
And, then I said that—I admitted to using bad judge-
ment in handling the situation and that in the future that
I would be willing to support my manager.13 He stated
that the damage was irreparable, and that it would be
in everybody’s best interest if I just started over some-
place else.
In response to a question of Plodzik’s suggestion of her
motivation, she testified, ‘‘Well, he said ‘organizing to oust
Polly Kuhn,’ and I said that my intention in talking to the
other nurses was trying to get a consensus or platform so that
we could go to her as a group, and try to solve the problems,
within the Department, and that yes, if we didn’t get any res-
olution that way, then possibly looking for a new Nurse
Manager would be the best option.’’
Following this meeting, Plodzik evidently did not further
investigate the matter of the truthfulness of the information
about Kuhn. He did give his opinion that Rockett would not
have recommended Kuhn for the job if she possessed the in-
formation involved. Plodzik testified that he dismissed the al-
legations about Kuhn because in his professional position he
knew that such charges are so serious that they are required
to be referred to regulatory bodies for nurses and they were
not.
8. Twitty’s appeal of the termination
Twitty pursued a grievance over the matter, which resulted
in a letter to her from the Hospital’s president and CEO,
William Schuler. The letter, dated August 18, 1992, reads:
I have considered the information you presented me
with on August 13, 1992, together with the following
documents from your personnel file in my investigation
of your grievance appeal submitted to me: (a) Summa-
tion of Hearing Following 3 Day suspension dated July
29, 1992, (b) Employee Warning Notice dated July 24,
1992, (c) Employee Warning Notice dated June 12,
1992, (d) constructive Review form dated May 23,
1990, (e) Employee Warning Notice dated September
21, 1990.
Based upon the material I have reviewed, together
with the statements you made to me during our meet-
ing, I have concluded that the factual allegations made
in paragraphs number 1 through 6 of Stan Plodzik’s
Summation of Hearing Following 3 Day Suspension
were both justified and correct. I also note that you ad-
mitted to many of these allegations in our meeting.
The result of the foregoing is that I find that I must
deny your appeal of Stan Plodzik’s decision dated July
29, 1992, and reaffirm that your actions amount to
gross misconduct which are also grossly in violation of
Hospital policy (discipline Policy B-2, including Rep-
resentative Causes 1, 19, 33, and 43). As such you are
discharged for cause from your employment at [Re-
spondent].
929HCA/PORTSMOUTH REGIONAL HOSPITAL
14 Meyers Industries, 281 NLRB 882, 887 (1986), enfd. 835 F.2d
1481 (D.C. Cir. 1987).
15 Mushroom Transporation Co. v. NLRB, 330 F.2d 683, 685 (3d
Cir. 1964).
Schuler testified about the meeting with Twitty. He re-
membered Twitty mentioning issues in the OR involved
short staffing and Kuhn’s refusal to work in the OR to re-
solve the problem, and further, Kuhn’s lack of empathy for
Twitty’s problems. Schuler asked her about the statements
she had made about Kuhn and Twitty admitted she did not
know them to be true. She admitted she had used the normal
chain of command to solve problems in the past and had no
problem using it. He asked about Twitty’s attendance prob-
lems and whether they were making the short staffing worse.
Twitty then gave him some information about her medical
problems.
Schuler testified that from the interview and the docu-
mentation, he believed that Twitty had not been dealing with
an issue or issues, but with Kuhn with whom he felt Twitty
had a bad relationship. He testified he asked her if she used
the rumors to ‘‘get’’ Kuhn, and Twitty said yes. In her testi-
mony, Twitty could ‘‘not recall’’ whether she admitted to
him that she used the rumor about Kuhn to ‘‘get her.’’
Twitty described the August 13 meeting with Schuler thus-
ly:
I had the documentation for—my medical docu-
mentation that I presented to Mr. Schuler. By that time,
I had received the copy of the suspension notice, and
the termination notice, as I refer to them. I don’t know
if that’s the correct name, but—so I started to go over,
point by point the issues in the suspension notice, and
basically he didn’t want to hear any of that. So then,
I presented him with the medical information that I had
given to Polly Kuhn earlier, and he said that my medi-
cal history had nothing to do with this situation. Then
I presented some other documentation that I had
worked with at Portsmouth Hospital, sort of like ref-
erence letters, as far as my work performance and so
forth goes. And, he accepted those and basically said
that they were just references for another job. They
really didn’t have any relative concern to this proceed-
ing. And he asked me if I had anything else to say, and
I just said, ‘‘I don’t understand how somebody can be
fired for trying to make things better.’’ And, he said
that he would get back in touch and let me know his
decision later.
I credit Schuler’s version of this meeting. He had contem-
poraneous notes which tend to confirm his testimony. I also
find it difficult to believe that he would not have addressed
the matter of the rumors and Twitty’s motivation.
After her termination, Twitty filed for unemployment com-
pensation. Her claim form shows that she wrote:
Terminated on 7/29/92 after suspension on 7/24/92
for ‘‘disruptive behavior, unprofessionalism.’’ Severe
personality conflict with new manager of five months.
Five years of excellent clinical evaluations from pre-
vious manager. Attending SLL one even per week
5:30–9:00 to acquire credits for RN to BSN program at
UNH. Receive accrued leave time in final check from
hospital $891.94.
Respondent’s reasons given for the termination on the re-
port are:
Conflict w/new Head Nurse in Operating Room. Was
a very good nurse, no problems with work. Was not
happy w/new supervisor. Still making decisions the way
she did with old supervisor. Thought she was trying to
get rid of new head nurse.
B. Did Respondent Violate the Act in its Interrogation
and Discipline of Twitty?
I find, based upon the credited evidence set forth above,
that Respondent interrogated Twitty, suspended her, and dis-
charged her for her actions on July 23 and for no other rea-
son. The whole thrust of the alleged unlawful interrogation
of Twitty dealt with her use of defamatory rumors or infor-
mation about Kuhn in an attempt to organize the nurses to
oust Kuhn from her position. Regardless of whose version of
the meeting of July 29 one accepts, it begins and ends with
Twitty being fired for spreading the rumors or information
about Kuhn in an attempt to have Kuhn removed or dis-
charged. Therefore, I do not believe it necessary to discuss
whether Respondent would have taken the action it did in the
absence of Twitty’s conduct on July 23. I believe it abun-
dantly clear that Twitty would not have been interrogated,
suspended, or discharged absent this conduct, at least not at
the time of the alleged unlawful acts of Respondent.
In deciding whether Respondent violated the Act as al-
leged, I believe it must first be determined whether Twitty
was engaged in concerted protected activity. Clearly the ac-
tivity for which she was interrogated, suspended, and dis-
charged was her use of the defamatory information about
Kuhn with other staff nurses to get them to join her in an
attempt to oust Kuhn. Although she was apparently the only
employee in the OR who wanted to get rid of Kuhn, I find
based on Board law, that her activity was concerted.
In the recent case of Circle K Corp., 305 NLRB 932, 933
(1991), the Board held:
We have previously adopted14 the Third Circuit’s com-
ments in Mushroom Transportation15 defining the scope
of ‘‘concerted’’ activity:
[A] conversation may constitute a concerted activity
although it involves only a speaker and a listener
. . . [when] . . . it was engaged in with the object
of initiating or inducing or preparing for group ac-
tion or had some relation to group action in the inter-
est of the employees.
Twitty’s action with respect to her conversations with
Pritchard and Delcambre on the morning of July 23 and her
later conversations with those two nurses and Sheila Jeter
meets this test. Although I do not believe her motivation was
as stated by her, the evidence reflects that she told them the
information about Kuhn and asked them to join with her in
an attempt to change Kuhn’s management style or failing
that, to have her removed. Trying to get a supervisor fired,
provided that the supervisor affects the employee’s terms and
conditions of employment, is protected. Oakes Machine
Corp., 288 NLRB 456 (1988) (employees complained about
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
supervisor’s ‘‘attitude’’ toward them in effort to have super-
visor discharged); Puerto Rico Sheraton Hotel, 248 NLRB
867 (1980) (letter from employees seeking corporate parent
to discharge hotel manager for being a ‘‘dictator’’ who
talked down to employees, rejected suggestions, and was in-
accessible).
On the other hand, such activity may lose its protection
under circumstances when such conduct includes defamatory
statements, bad-faith conduct, or deliberate and malicious
falsehoods. Puerto Rico Sheraton Hotel, supra at 874; Amer-
ican Hospital Assn., 230 NLRB 54 (1977). As I believe that
Twitty’s actions can be said to be all of these things, I find
that they lost the protection of the Act.
First, there is no question but that the statements she made
about Kuhn were malicious and defamatory. Twitty, and all
other nurses asked about the seriousness of charging a nurse
with abandoning a patient, without hesitation said it was the
most serious offense with which a nurse can be charged. As
it strikes to the very core of the nurses’ professional respon-
sibility and reason for being a nurse, such a charge seriously
attacks a nurses basic integrity and credibility. Plodzik testi-
fied that such a charge left unchallenged would have de-
stroyed Kuhn’s ability to lead the OR. I agree.
Second, I believe the statements relayed by Twitty to the
other nurses about Kuhn are untrue. Twitty had no proof that
what she said was factual. She accepted Rockett’s alleged
statements without taking any action to checking their verac-
ity. Kuhn denied them in their meeting, calling them lies and
threatening that they could form the basis for a defamation
lawsuit. Kuhn also denied the truthfulness of them to
Henschke. As I stated earlier, I do not draw an adverse infer-
ence in this regard because Kuhn did not testify in this pro-
ceeding. Rockett, the alleged source of the information did
not testify. If such information was true, she was possessed
of such knowledge at the time she recommended Kuhn as
her replacement. The supposed firing and grievance took
place at a time when Kuhn was working at Mass General
under Rockett’s supervision. She noted the fact of a griev-
ance being filed in her memorandum to Plodzik recommend-
ing Kuhn. Surely, if the grievance had been over the matter
of her abandoning a patient, she would have mentioned that
very important point to Plodzik. Further, the Hospital was
looking for someone with computer skills. Would Rockett
recommend a person accused of dumping computer data at
Mass General for a similar position at PRH? Kuhn’s expla-
nation that the grievance was over the abolishment of her po-
sition makes far greater sense. Twitty also claimed in her tes-
timony that she knew of persons who could substantiate her
claim, but no such person testified in this proceeding. Thus,
I believe and find that Twitty not only spread a defamatory
and malicious statement, but one that was also false.
On the other hand, even if the information was true, I be-
lieve that Twitty’s motivation in using the information had
nothing to do with her fellow employees’ working conditions
and everything to do with her own survival at the Hospital
and her personal relationship, or lack thereof, with Kuhn.
The only basis for Twitty believing that the information was
true was that she obtained it from Rockett. She admitted that
she, at least after the fact of disseminating the information,
questioned Rockett’s motive in divulging the information to
her. Given the serious and personally damaging nature of the
information, I believe she had an obligation to verify it inde-
pendently, assuming that she was really attempting to use it
to better the working conditions in the OR. However, I be-
lieve that Twitty was acting in bad faith, and I do not believe
that on July 23, she was trying to solve anyone’s problems
but her own.
I agree with the numerous witnesses who believed that
Twitty was trying to get Kuhn fired for own personal rea-
sons. I cannot be sure of Twitty’s motivation as one can
never be entirely sure why a person takes any given action.
However the evidence certainly supports the finding that she
was concerned about her continued employment as she did
not share the rapport with Kuhn that she had with Rockett.
I believe she did not like Kuhn and did not feel that Kuhn
supported her, or gave her the ‘‘warm and fuzzies’’ as had
Rockett. Certainly, her action could not have rationally been
motivated by any sincere attempt to solve the perceived
problems or issues she raised in the July 21 staff meeting.
Twitty’s asserted reasons for her spreading the rumor
about Kuhn was that it would force Kuhn to face the issues
she championed, making Kuhn more approachable, more
visible in the OR and more willing to fill in to help out the
temporary staff shortage. Would spreading an extremely
damaging and personal rumor about Kuhn make her more ac-
cessible to the staff? Would it likely make her become more
visible in the OR? The only logical answer to these questions
is no. As the Hospital points out, if the rumors had any
basis, and leaving Twitty in place after spreading the rumors
would give them at least some validity, Kuhn would have
such a diminished credibility with the staff it is unlikely she
would ever show her face there. Looking at the situation
from Twitty’s point of view, did she ever expect Kuhn to be
more accessible to her in particular once Kuhn learned that
she started the rumor. I think not. If Twitty was trying to
solve the staff shortage problem by having Kuhn work in the
OR, how would having her fired help. The immediate staff-
ing problem was temporary, and Kuhn was trying to solve
it both on a temporary basis by helping with the babysitting
problems of an existing employee, and in the long run, by
advertising for new employees. If Kuhn was fired, she clear-
ly could not have filled in. Moreover, until a replacement for
her was found, there would have been a further staff short-
age. I simply do not believe that Twitty was trying to orga-
nize support to force some changes in Kuhn’s management
style or have her fired if that failed. I believe that she was
trying to get Kuhn fired, period. There is no relationship be-
tween the information Twitty was spreading and the prob-
lems of accessibility or short staffing.
This is not a case where an employer is shown to reject
employee input on issues of working conditions or to instill
fear in its employees that raising issues or rocking the boat
will result in adverse consequences. On the contrary, this
Hospital seemed to genuinely invite its employees to raise
issues with any level of management. They were encouraged
to do so in staff meetings and in one on one meetings with
supervisors. It is noteworthy that when Twitty raised con-
cerns about working conditions with Henschke, Alandydy,
and at the staff meeting with Kuhn, her concerns were ad-
dressed fully and without any sense of rancor or upset at
their being raised. Clearly she did not like the answers, but
the willingness of this management to address issues and be
open to the staff is demonstrated.
931HCA/PORTSMOUTH REGIONAL HOSPITAL
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
The Hospital also demonstrated that it has no objection to
staff seeking the removal of a supervisor, so long as it is
done with some relationship to working conditions and in a
manner that does not damage the operation of a department.
Henschke noted that in 1990, the Hospital had just hired a
new person to be nurse manager for the critical care unit.
Shortly thereafter, a number of staff from the unit got to-
gether to discuss the new manager’s performance. They de-
cided the person was not qualified for the job and presented
this position to Henschke. Henschke looked into the matter,
agreed with the staff’s assessment and eventually terminated
the manager. She contrasted this situation with that involving
Twitty by saying that the employees involved in the earlier
attempt to remove their supervisor were not saying malicious
and vindictive things about the manager and acting from ul-
terior motives.
I do not believe that it would effectuate the policies of the
Act to reward an employee for trying to destroy the reputa-
tion and end the employment of another employee simply to
serve her own ends. Having found that activity for which
Twitty was suspended and discharged was not protected by
Act, I will recommend that the complaint allegations in these
regards be dismissed.
I similarly find that the meeting or interrogation involved
was not violative of the Act under the circumstances. I be-
lieve Kuhn, on learning of the spreading of the rumor by
Twitty with the obvious purpose of stirring up support to get
Kuhn fired, reasonably wanted to verify what was happening.
In the absence of the rumor aspect of Twitty’s actions, I
would find the interrogation unlawful. However, one cannot
divorce the spreading of the rumor from any other action
taken by Twitty. The rumor was so damaging I believe Kuhn
was forced to take immediate action or the situation would
get out of hand. I do not find that Kuhn’s suggestion that
Twitty should have come to her rather than spreading the
rumor to be unlawful. I believe that Twitty had some obliga-
tion to verify the rumor, either by confronting Kuhn with it
or by passing it on to one of Kuhn’s supervisors, before
using it in an attempt to discredit Kuhn. As the conduct
about which the interrogation took place was not protected,
I do not find the interrogation violated the Act as alleged in
the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by interro-
gating, restricting the activities of, suspending or discharging
Madelon Twitty for engaging in conduct protected by the
Act.
3. The conduct about which Madelon Twitty was interro-
gated, and for which she was restricted, suspended, and dis-
charged, was not conduct protected by the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
It is ordered that the complaint be dismissed.