Humana Hospital-Brandon

National Labor Relations Board - Board Decisions

Feb 10, 1987

282 N.L.R.B. 1184 (N.L.R.B. 1987)

1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Humhosco , Inc., d/b/a Humana Hospital-Brandon
and Glenda F. Smith . Case 12-CA-11441
10 February 1987
DECISION AND ORDER
BY MEMBERS JOHANSON, BABSON, AND
STEPHENS
On 7 March 1986 Administrative Law Judge
Robert A. Gritta issued the attached decision. The
Charging Party filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The Respondent also filed limited cross-exceptions
and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i The Charging Party has excepted to the judge's finding that the 20
April 1984 changed timesheet incident was not protected concerted activ-
ity. We find that even if the timesheet incident were protected concerted
activity, the Charging Party would have been disciplined 28 November
1984 even in the absence of that activity. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F 2d 899 (1st Cir 1981), cent denied 455 U& 989
(1982), approved in NLRB v. Transportation Management Corp, 462 U S
393 (1983).
2 In view of the dismissal of the complaint in its entirety, we find it
unnecessary to pass on the Respondent's cross-exceptions
Marvin P. Jackson, Esq., for the General Counsel.
Peter Zinober, Esq. and Richard C. McCrea Jr., Esq.
(Carlton, Fields, Ward, Emmanuel, Smith & Cutler,
P.A.), of Tampa, Florida, for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge. This
case was tried before me on 24, 25, and 26 July and 7, 8,
and 9 August 1985 in Tampa, Florida, based on a charge
filed by Glenda F. Smith, on 6 December 1984, and a
complaint issued by the Acting Regional Director of
Region 12 of the National Labor Relations Board on 24
May 1985.1 The complaint alleged that Humhosco, Inc.
d/b/a Humana Hospital-Brandon (Respondent) violated
Section 8(a)(1) of the Act by discharging Glenda F.
Smith on 3 December for engaging in protected concert-
' All dates are in 1984 unless otherwise specified.
ed activities. Respondent's timely answer denied the
commission of any unfair labor practices.
All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evi-
dence, and to argue orally. Briefs were submitted by the
General Counsel and Respondent. Both briefs were duly
considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor on the witness
stand, and on substantive, reliable evidence considered
along with the consistency and inherent probability of
testimony, I make the following
FINDINGS OF FACT
I. JURISDICTION AND PRELIMINARY CONCLUSIONS OF
LAW
The complaint alleges, Respondent admits, and I find
that Humhosco, Inc. d/b/a Humana Hospital-Brandon is
a proprietary hospital with its principal place of business
in Brandon, Florida. Jurisdiction is not an issue. Hum-
hosco, Inc. d/b/a Humana Hospital-Brandon, in the past
12 months, in the course and conduct of its business op-
erations, derived gross revenues in excess of $250,000
and purchased and received at its Brandon, Florida facil-
ity goods and materials valued in excess of $5000 direct-
ly from points located outside the State of Florida. I
conclude and find that Humhosco, Inc. d/b/a Humana
Hospital-Brandon, a health care institution within the
meaning of Section 2(14), is an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. BACKGROUND
Humana Hospital-Brandon opened for public use in
June 1976. Glenda Smith, the Charging Party, and sever-
al other nurses were hired before the hospital opened.
Their preopening tasks were to ready the hospital for
servicing patients. Smith, along with others, set up the
recordkeeping processes for surgical services and patient
files. Jane Robb, one of the original hires, became charge
nurse of the operating room (OR) a year after the hospi-
tal opened. Iraida Torres, a Humana nurse since 1976,
transferred to the Brandon hospital in 1979 as manager
of the surgical services department. In 1981 Carol Glad-
ders became associate executive director of nursing,
heading the six departments of nursing at Brandon. One
such department, the surgical services, headed by Torres,
includes the OR. The OR staff of nurses numbers 25.
The OR staff has regularly scheduled "bitch sessions"
every Thursday for nurses to air complaints to supervi-
sion. The specifics of this case deals with the OR staff
and the several supervisors to which they are responsi-
ble.
III. ISSUE
Whether Glenda Smith, OR nurse, was discharged for
engaging in protected concerted activities.
282 NLRB No. 163
HUMANA HOSPITAL-BRANDON - 1185
IV. THE ALLEGED UNFAIR LABOR -PRACTICE
Chronology of Factual Events2
The OR nurses have, at least since Gladders became
director of nursing, by way of signed petitions, brought
complaints to the attention of management. The com-
plaints are affirmed by varying numbers of nurses and
are initiated by whatever individual is moved at the time.
Complaints have covered policies, suspension, work
rules, and behavior of surgeons, vis-a-vis, the OR nurses
and patients. A recent complaint about a surgeon's be-
havior arose in November 1983 and was directed to
Torres and chief of surgery, Dr. Worthington. Although
no immediate action was taken by supervision, the com-
plaint was acknowledged. The hospital's application of
the call-back rules created confusion among the nurses.
During December 1983 nurse Cole was not paid for a
call back. She and several nurses requested that the call-
back rules be reduced to writing. Supervision agreed and
did supply the nurses in OR a set of written call back
rules. On 5 January a group of nurses signed a letter to
supervision noting lack of clarity in the compensation for
call-back and requesting a meeting to discuss the rules.
On 12 January, in response to the nurses' letter, a meet-
ing was held in the OR lounge. Personnel Director Wil-
liam Wheeler, Gladders, and Torres met with the nurses.
Lloyd Westbrook took the lead in this meeting by read-
ing the nurses ' specific complaints. Several nurses, in-
cluding Glenda Smith, also voiced complaints about the
rules. One such complaint dealt with the changing inter-
pretations of the call-back rules depending on circum-
stances at the time. The OR nurses felt that Torres was
responsible for the lack of uniformity in the application
of the rules. The meeting ended with supervision agree-
ing not to change any of the rules without notifying the
effected employees first.
In early April, the surgeon previously complained of
became more intolerable in the OR. Torres decided to
resubmit the letter of complaint but, with additional sig-
natures of nurses missing from the original submission.
Torres then resubmitted the letter to the chief of surgery
at the hospital. A meeting between the surgeon, Torres,
and Gladders was set up. In preparation for the meeting
the surgeon requested that nurses Barbara Reed and
Glenda Smith be present. Gladders, on suspicion that the
meeting could produce a conflict between nurse and sur-
geon and that may result in retaliation in the OR at a
later date, decided that Smith and Reed should not
attend. Gladders had Torres inform Smith and Reed not
to attend. Several days after the meeting, nurse Smith
spoke with Dr. Worthington, chief of surgery, who said
he resolved the, dispute by insisting that the surgeon
behave himself or have his privileges at the hospital sus-
pended.
Within a short period of time a new rule was issued
concerning endoscopic procedures resulting in only one
nurse in attendance. The OR staff immediately felt that
2 The incidents leading to the discharge are substantially undisputed.
The evaluation of these incidents, however, are in dispute Of the 18 wit-
nesses who testified, most characterized by opinion each of the incidents
Those personal characterizations were not helpful to my determinations
the representation made in January (no changes in rules
without prior discussion) was violated and the new rule
could jeopardize patient care and a nurse's professional
responsibility. On 13 April Lloyd Westbrook, the nurse
who usually drafted memos for the group, authored a
letter concerning the new rule. Glenda Smith made revi-
sions and circulated the memo for' signatures. After all
signed the document, Smith made copies and distributed
it to Gladders, Wheeler, and Torres. No immediate re-
sponse was made by supervision, but at a later date the
subject procedures were modified to conform to the
complaint made by the nurses.
The following week Glenda Smith worked the regular
shift, 7 a.m. to 3 p.m., and was on call for the 3 to 11
p.m. shift. In the past when nurses had call for a follow-
ing shift, they were allowed to leave the hospital before
their regular shift ended if their work was caught up and
they were not needed otherwise. Smith requested permis-
sion to leave at 2 p.m., but was denied the early depar-
ture. Smith continued on duty working the OR until
around 5:30 p.m. At that time the anesthesiologist on
duty with Smith for scheduled surgery decided to leave
the hospital for an hour because the surgery' was being
delayed. Smith informed the 3 to 11 p.m. charge nurse
that she also was leaving the hospital and would return
in time to conduct the scheduled surgery. Smith signed
out at 5:25 p.m. and returned signing in at 6 p.m. Smith
worked the OR that night until 11:45 p.m. Smith entered
hours on the timesheet reflecting time-and-one-half pay
for the work performed after 6 p.m. The following
Monday Torres was processing the timesheets and called
Smith stating , "I don't know if this is acceptable," refer-
ring to the call-back entries made by Smith of 6 to 11:45
p.m. "I'm. going to have to'ask Carol [Gladders] if this is
acceptable." Smith replied, "I did leave and I came back
and signed in." Several days later, without hearing any
more from Torres, Smith noticed that her' timesheet had
been corrected to reflect straight time rather than time-
and-one-half. Smith consulted with an attorney who in-
formed her that the change in her timesheet was an ille-
gal, act. On 1 May Smith wrote a cursive note complain-
ing of the illegal change in her timesheet. A copy of the
changed timesheet was attached and both were distribut-
ed to Gladders, Wheeler, and Torres. On 8 May Torres
called Smith to the office insisting that they both go to
Gladders' office. At first, Smith resisted seeing no reason
for her to go to Gladders' office, but because 'Torres
continued insisting , Smith finally consented to go. When
Smith entered the office, Gladders said, "I want to know
the meaning of these letters, I'm sick and tired of getting
these letters from the OR and if they don't stop some-
body's going to get fired." 'Smith remained in the office
1-1/2 to 2 hours discussing the note and the change in
her timesheet. Torres acknowledged, that she had
changed the timesheet, and said as the supervisor she had
the authority to, make such changes. Gladders and
Torres denied that anything illegal had been done in
changing the timesheet.
On 11 May Gladders initiated a survey of the nursing
staff to ascertain the area of confusion in the call-back
rules. Eleven OR nurses responded to the survey with
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seven indicating a desire for more exact rules regarding
call-back pay and clarification of the call-back policies.
In early August the nurses received a notice that a meet-
ing would be held to discuss the results of the survey.
Shortly thereafter, the meeting was held after shift hours.
Gladders chaired the meeting composed of nurses and
technicians from several departments. The nurses from
other departments did not seem to have any problems
with their call-back rules and the OR nurses did not air
their particular problems in the presence of the other de-
partments. After the meeting ended the OR nurses re-
mained seated and Gladders discussed their specific call-
back rules with them. Gladders said the OR survey
showed the OR to be the worst area in the hospital. She
explained that Etheridge, the hospital administrator, was
a personal friend of Torres and her husband. Therefore,
Gladders could do very little about the interpretation
problem up to now. With the impending transfer of Eth-
eridge implemented , maybe something could be done
about the call-back procedures. Heburn, the new admin-
istrator, was installed in early August and, on 15 August,
Smith wrote another letter concerning the change in her
timesheet and the lack of uniform application of the call-
back rules by Torres. The letter was delivered to
Heburn, the new administrator. In early September
Gladders notified Smith that a meeting would be held to
discuss the problem and wrote a memo to Wheeler sug-
gesting that a grievance may be in order to resolve
Smith 's timesheet complaints . Smith asked nurses West-
brook and Cole to accompany her as witnesses. On 12
September the meeting was held between nurses Smith,
Westbrook, Cole, and Supervisors Gladders, Torres, and
Wheeler. 'Gladders began the meeting with a discussion
of a microwave oven and other subjects not pertaining to
the timesheet. Smith interjected that the only subject to
discuss was her changed timesheet. The witnesses were
silent but Wheeler stated that the timesheet change could
only be handled by a formal grievance and asked Smith
if she wanted to file a formal grievance. Smith replied af-
firmatively and `Wheeler then ended the meeting. Wheel-
er invited Smith, Cole, and Westbrook to his office. The
ensuing discussion of problems prompted Wheeler to
suggest to the nurses group grievance encompassing all
the OR problems. The nurses left Wheeler's office to
consider an expanded grievance, telling Wheeler they
would get back to him. Smith, Cole, and Westbrook then
went to the parking lot where the grievance was dis-
cussed. Smith suggested that ideas be collected from
other nurses but ' only Smith would sign the grievance.
Most of the individual input came from Cole and West-
brook but Smith did talk to other nurses about their
problems. Smith would ask nurses if they had problems
in specific circumstances, but she did not disclose that
the problems were to become part of a grievance. Smith
drafted the grievance and presented it in mid-September
to Wheeler for typing in accord with Wheeler's offer to
reduce the grievance to typed form. After several weeks,
the typing was not done so' Smith typed it herself and
presented it to Wheeler on Wednesday, 17 October.3
3 The main points of the grievance were the change in Smith's time-
sheet by Torres, the lack of good communication with Manager Torres,
Smith requested that Wheeler wait until late Friday to
present it to Torres since the employee manual requires a
response within 3 working days. Smith also requested
that Wheeler give it to Torres at 3:45 p.m. when the day
shift would be ended. Wheeler later acknowledged to
Smith that he did as she requested.
About noon that same Friday, while several operating
rooms were being prepared for surgery, Torres and
Smith had a verbal altercation over the use of a surgical
machine. Due to the large number of different special-
ized surgical machines, each OR cannot be stocked with
one of each. It is common for nurses to borrow a ma-
chine from one OR to be used in another. An OR nurse
will sometimes try to stock her assigned OR with all ma-
chines needed for surgical procedures,on that day; how-
,ever, machines are borrowed between ORs on a daily
basis. Torres was seeking a particular machine for a spe-
cific doctor's use for surgery in progress. She found the
machine in Smith's OR in preparation for, surgery not
scheduled to start for 45 minutes. Rather than give up
the machine, Smith suggested several alternatives to
Torres. After an argument of several minutes, Smith told
Torres she could have the machine if she wanted it. The
following Monday, Smith was reprimanded by Torres
for refusing to release the machine when requested.
Smith accepted the reprimand, but within a week pre-
pared a written response to the reprimand that she pre-
sented to Personnel Director Wheeler.
On 24 October Wheeler notified Smith that Torres had
responded to the grievance. Wheeler set a meeting for
that day. Smith and Westbrook attended the meeting in
Wheeler's office with Tories present. Wheeler gave
Torres' written response to Smith. After reading the re-
sponse, Smith was asked' what she wanted to do. 'Smith
replied that she wanted the grievance to continue and
the meeting ended. Pursuant to the grievance procedure,
Gladders' responded in writing to Smith's grievance on
31 October. On 6 November Smith, pursuant to Glad-
ders' response to her grievance, circulated a question-
naire to nurses for input on written call-back rules. Be-
cause Wheeler was out of town, a meeting on Gladders'
response was not held until 12 November. Smith and
Westbrook attended the meeting with Wheeler and
Gladders. Smith agreed to submit a' rewrite of the call-
back rules but requested additional time to allow input
from 'other nurses, which was allowed. Smith suggested
that, Torres' office might be moved to a distant location
from the OR so she would not have constant supervision
of the OR staff, but Gladders said that was not feasible.
Smith in'turn did not accept the offer to transfer, to an-
other department to assume a 32-hour week as she had
requested because she was trained for the OR and
wanted to stay there. Smith also'stated that Gladders' re-
sponse to her grievance was based on a single employ-
ee's problems with the supervisor, whereas in reality the
the failure of Torres to install an "inservice position" for Smith as prom-
ised; Torres' failure to allow Smith to reduce to a 32-hour week, and
Smith's view of confusion in the responsibility of the department manager
and the charge nurse positions Less personal points involved advance-
ment of educational funds to all nurses and the continuing lack of clarity
in call-back rules
HUMANA HOSPITAL -BRANDON
problems applied to the entire OR staff. The meeting
ended with Gladders asking Smith to consider removing
some of the points directed personally at Torres. Smith
stated that she would think about it for a couple of days
and get back to her. Several days later Smith told
Wheeler that she consulted with her attorney who ad-
vised that removing the points might reflect on their
credibility in the first instance, so Smith told Wheeler
she wanted the grievance to remain intact. On 14 No-
vember Smith submitted a letter to Gladders stating that
she did not think it was appropriate for her to write a
job description for the inservice position (part of the
grievance) because the position was not in existence.
Smith received five responses to her questionnaire on
call-back rules and drafted rules in accord with those re-
sponses. ' At the next Thursday morning staff meeting
(bitch session) of 15 November, she submitted them to
the nurses for review. No changes were made, so Smith
gave the written call-back rule suggestions to Wheeler.
The same day Smith gave a copy of the written call-back
rules to Gladders. The following-Tuesday, 20 November,
Torres resigned her position as manager to be effective
21 December.
On 27 November, the day-shift charge nurse, Robb,
was escorting a new nurse employee through the facili-
ties. AsRobb approached Smith, she introduced the new
nurse to Smith and then continued on her way. Smith
called Robb at home that evening. Her version of the
conversation is as follows:
I called her at 6:00, she told me at that time that
she was eating dinner and she would call me back
later and she did return the call a little bit after
8:00. I said, "I was wondering why you did not in-
troduce me as an orientation person to the new float
pool girl?" and she told me that Idy had decided,
Ms. Torres, that several people would do that from
now on and I responded by saying, "Why is Ms.
Torres making so many changes when she's only
going to be in the hospital about two more weeks,"
and Jane did not have an answer. She just didn't
answer at all. And in the course of the conversation
I brought up the fact that many of the staff were,
unhappy with Bargara Bertels on the desk. That her
being on the desk was creating a great deal of con-
troversy because it had become the subject of the
entire conversation at the lounge. I had not had any
personal problem with it. Then I went back to the
reason that I had called her and I said, "You realize
that the problem of orientation is listed as one of
the parts of the grievance." She denied knowing
anything about the grievance and I said, "Are you
saying that you don't recall the phone call of the
previous week when you and 'I discussed in detail
parts of the grievance?" She denied that. I said,
"Are you also going to deny that you had initiated
a conversation on the fact that you had never been
down to see Carol Gladders but you had wanted to
go very many times, you had asked my opinion if I
thought you should go talk to Carol Gladders first
because Ms. Torres was creating so many problems
in the OR." She denied that and I said, "Are you
1187
denying that you stated that I could ask Bill that if
you didn't come home many afternoons considering
turning in your resignation, crying, that he would
be able to tell me that that was the truth that that
was your reaction," and she denied that.
Then some conversation went back to Barbara
Bertels on the desk. She told me that Barbara Ber-
tels was the best person that she ever had on the
desk including herself and I told her that was a
dumb statement, stupid or something and she insist-
ed and I said, "Jane, if you can't carry on a civil
conversation there really isn't any necessity to keep
on with this conversation." One part I missed,
during the discussion on whether she had been un-
happy with Ms. Torres,. at any time. Jane stated "I
love Idy, I have always loved Idy, Idy has been
good to me," and of course that statement being the
exact opposite of everything she had said to me to
upset me a little bit and I did raise my voice and I
said, "If you can't carry on a sensible conversation
then I'm .not going to talk any longer and we will
continue this conversation some other time, good
bye," and I hung up.
Q. Now, how long was the conversation?
A. About ten minutes I think.
Robb became upset over the conversation and after it
ended made notes of the conversation. The next morn-
ing, 28 November, Robb informed Torres of the phone
call from Smith, and Torres told Robb to, report the inci-
dent to Gladders. Robb went to Gladders and reported
the incident showing Gladders ' the notes of the call.
Gladders told Robb to make a more legible copy of the
notes an&Robb did so.
Smith testified that approximately 10 a.m., 28 Novem-
ber, she was working in OR No. 6 with two other
nurses. One of the nurses had .worked the night before
and was tired. She sought relief so she could go home.
The patient was elderly and under local anesthesia which
meant the patient was awake and had to be watched. At'
this point in time Nurse Bertels, acting charge nurse,
came into the OR and told Smith that the patient in the
adjoining OR had a history of malignant hypothermia.
Malignant hypothermia is such ,a serious emergency that
speed is the utmost consideration in treating a patient.
Bertels asked Smith to keep an ear on the malignant
hypothermia patient and to help check the room in case
anything went wrong with the patient. Smith replied that
she was assigned to the patient in her OR who was
awake under local anesthesia and would nol be able to
leave the OR. Smith told Bertels' that she could not be
responsible to listen for any kind of a signal and that the
charge nurse is the person who should be responsible for
an emergency situation in another OR. Bertels said noth-
ing and left Smith's OR.
Bertels' testimony of the same incident: On 28 Novem-
ber, between 7 and 9 a.m., Nurse Bertels was acting
charge nurse in the OR. A patient with a history of ma-
lignant hypothermia was being prepared for surgery in a
back OR next to Smith's OR. Bertels was circulating the
ORs requesting several nurses to be inserviced (trained)
on the special IV apparatus to be used on the malignant
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hypothermia patient if a crisis arose . The time required
to be inserviced on the apparatus is between 1 and 2
minutes and is done in the-recovery room adjoining the
ORs. When Bertels approached Smith in the OR request-
ing Smith to be alert to the adjoining OR and to be in-
serviced on the apparatus , Smith refused . Smith told Ber-
tels that to service that patient was the task of the charge
nurse, either Bertels or Robb . Bertels repeated the re-
quest and Smith repeated that it was the charge nurse's
job. Bertels then told Smith that the setup was in the re-
covery room and left . The patient did in fact go into a
malignant hypothermia crisis and the scheduled surgery
had to be canceled . Of the nurses requested , Smith was
the only one that refused to be inserviced. Bertels report-
ed the incident to her supervisor immediately following
the incident . Bertels began acting as charge nurse in
August but was told specifically by Torres not to write
up any nurses for infractions . All such infractions were
only to be reported to Torres or Robb.
At shift's end that day Robb came into Smith's OR to
relieve her and informed Smith that Gladders wanted to
see her . Smith asked Westbrook to accompany her and
they both went to Gladders' office with Wheeler. Glad-
ders told Smith that she was concerned about the report-
ed disruptive behavior including the prior reprimand; the
phone call to Robb; and the inservice incident with Ber-
tels. Gladders also was concerned about the continuing
changed timesheet incident. Gladders said she had to
make a decision based on patient care and in view of the
strange behavior displayed, had to do something about it.
She said she was afraid somebody might get hurt, a pa-
tient, or perhaps Smith would cause somebody else to
hurt a patient so she was giving Smith some options.
Gladders said that Smith was expressing stress and frus-
tration and needed some rest and time to get herself to-
gether. Gladders suggested that Smith take a 90-day
leave of absence or resign her position . Smith told Glad-
ders that she could not take that much time off and, fol-
lowing a discussion , Gladders reduced the leave time to
30 days. Smith told Gladders that the options were a
shock and that she could not immediately make that kind
of judgment . Smith also told Gladders that the options
were harassment for filing the grievance . Gladders
denied that the grievance had anything to do with the
options, explaining that her decision was based on re-
ports and complaints about Smith 's disruptive outburst of
temper and strange actions. Gladders agreed to give
Smith 3 days to consider the options, but insisted that
Smith leave the hospital , particularly the surgery unit,
and not return until 3 December under threat of immedi-
ate 'discharge . Gladders also handed Smith her latest
evaluation remarking ' that Smith 's work in the last year
had shown a serious decline. Smith went to her locker
for her personal things but did not sign the timesheet.
Before leaving the hospital Smith spoke with an attor-
ney who advised her to get copies of any documentation
the hospital had to support the disciplinary options.
Smith attempted to get such copies from Wheeler, but he
declined to give them to her.
On Monday , 3 December, Smith went to the hospital
at 5:30 a.m., but stayed in the hall. She requested an em-
ployee on duty to hand her the timebooks and she signed
the book for Thursday and Friday, 29 and 30 November,
"Unofficial suspension ." That same day at 5:30 p.m.,
Smith returned to the hospital with Westbrook as a wit-
ness and met with Wheeler and Gladders . The meeting
opened with Smith being given an additional option of
two parts. One, she could take paid sick leave through
17 December, chargeable to her accrued sick leave of
212 hours, during which time she would be removed
from stressful surroundings and could recover emotional
stability . Two, she could obtain a full psychiatric evalua-
tion from a staff psychiatrist of her choice at hospital ex-
pense and, on being released by the psychiatrist , return
to work . Smith declined all the options . Smith stated that
she was not sick and saw no reason to waste her sick
leave because someone thinks she is sick and needs a
rest. Smith also repeated that the options were presented
as harassment for her having filed the grievance. Smith
was then told she was discharged . Gladders executed a
discharge slip and gave it to Smith . Smith and West-
brook then went to Wheeler's office to finalize the pa-
perwork , but with the late hour Smith asked Wheeler if
she could return the next morning to finish what had to
be done. Wheeler agreed and Smith returned the follow-
ing morning . Wheeler informed Smith that she would be
paid for 29 and 30 November pursuant to her entries on
the timesheet "unofficial suspension." The termination
papers were then finalized and Smith left the hospital.4
Analysis and Conclusions
The General Counsel contends that Smith was con-
tinuously engaged in protected concerted activity when
she protested the change in her timesheet and when she
filed the October grievance . He further contends that she
was discharged for her protected concerted activity, par-
ticularly the 27 November phone call to Charge Nurse
Robb.
Respondent argues that Smith was not engaged in con-
certed activity, but even if she was, Gladders, the person
responsible for Smith 's discipline , had no knowledge that
the activity was concerted. Additionally , Respondent
argues that Smith was not discharged, but terminated
herself by ,not accepting one of the several options.
The General Counsel has the burden to prove that
Smith 's activity , for which she was terminated, was in
fact protected and concerted and that Respondent was
thereby motivated to discipline her.
My determination is that Smith was not discharged for
protected concerted activity, but rather for cause unre-
lated to her concerted activity.
The Board 's most recent pronouncement of what con-
stitutes concerted activity which is remedial under the
Act is Meyers Industries, 268 NLRB 493 (1984). Therein
the Board formed the following standard:
To find an employee's activity to be "concerted,"
we shall require that it be engaged in with or on the
authority of other employees, and not solely by and
on behalf of the employee himself. Once the activi-
4 The testimony shows a dispute over emotions exhibited at the various
meetings and in the several conversations between the principals Resolu-
tions of these expressed emotions were not relevant to my determination
HUMANA HOSPITAL-BRANDON
ty is found to be concerted, an`8(,a)(l) violation will
be found if, in addition, the employer knew of the
concerted nature of the employee's activity, the
concerted activity was protected by the Act, and
the adverse employment action at issue (e.g., dis-
charge) was motivated by the employee's protected
concerted activity.
The General Counsel must further satisfy his burden of
proof under the Wright Line motivational test to establish
a prima facie case of unlawful discharge.5
The record evidence shows that much of the activity
engaged in by Smith was conceited. The several com-
plaints about call-back rules originating in late 1983
clearly were group concerns joined by Smith and other
nurses. Gladders, Wheeler, and Torres treated them as
such, meeting with assembled nurses on several occasions
in an attempt to reach a resolution. Indeed, Respondent
admits that the nurses' joint activity over the conflicting
call-back rules was concerted activity. However, Smith's
changed timesheet incident, although within the call-
back procedures, is not within the concerted activity of
the nurses' group complaint. Notwithstanding Smith's
representation that she followed the rules and was denied
the time-and-one-half pay (and notwithstanding she ulti-
mately prevailed in her personal grievance over such
denial) because'of the conflicting application of the rules
which formed the basis for the group complaint, her
timesheet entries were contrary to the practice. The
record clearly shows that nurses on call would only re-
ceive the premium pay if they were called back to the
hospital after having been relieved of duty or had no
duty scheduled which would require their continued
presence at the hospital after their shift was completed.
Albeit, the rules allowing early departure when no work
was scheduled may have been subject to different inter-
pretations and thus the basis for a group' complaint, that
was not the situation with Smith. She was denied an
early departure by her supervisor and did have surgery
scheduled which' required her presence at the hospital.
Smith's subsequent departure due to the delayed surgery
was at her request to run a personal errand and therefore
her return to the hospital was not the result of a call-
back. Accordingly, the time worked is not premium pay
of call-back regardless of the requirement that nurses
must sign out and in on the timesheet. The sign-out-and-
in requirement is to establish the actual time worked for
a nurse called back for duty." Smith's legal advice that
the change in her timesheet by her supervisor was illegal
does not change the application of the call-back pay rule.
The premium 'pay rule only comes into play if the
nurses' absence from the hospital is authorized and fur-
ther only if she is summoned back to the hospital for
duty. Smith did properly grieve the change in her time-
sheet in accord with the grievance procedure established
at the hospital.
Smith's grievance of 17,October was a hybrid, but that
is partially explained, by Wheeler's suggestion to Smith,
Westbrook, and Cole to include all complaints in a single
5 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir.
1981)
1189
grievance. The bulk of the grievance dealt with the
changed timesheet incident and Smith's appraisal of
Torres' personal reaction to an "inservice position" and a
32-hour week for Smith based on past discussions. Smith
further personally appraised the manager and charge
nurse responsibilities as supervisors of the OR. Thus, the
bulk of the grievance was' not "concerted" and therefore
not protected by the Act. A lesser portion of the griev-
ance was concerned with favoritism by supervision in in-
terpreting the call-back rules and advancement of funds
for continued education in specialized nursing fields.
Smith did pursue with Westbrook and Cole the sub-
stance of the planned grievance, but it was Smith's sug-
gestion that she alone sign the grievance. As Smith and
other witnesses recognized, Smith was a standup person
for her rights and obligations of others. Smith's individ-
ualism was also 'evidenced by the fact that when she
sought input for the grievance from other staff members,
she did so without disclosing to them her intent to incor-
porate their views into the grievance she meant to file.
The grievance was, at least in part, a continuation of
concerted activity by the nurses' group including Smith,
e.g., the eligibility for educational funds; the missing of
lunch and break periods, and the utilization of "float
pool" personnel equitably, In view of the dual nature of
the grievance filed by Smith, she was engaged in con-
certed activity by filing the grievance. Additionally, it is
not subject to dispute that the substance of the concerted
activity engaged in by Smith and others is protected by
the Act. Clearly the group concerns dealt with working
conditions of the OR staff.
Respondent argues that Gladders had no knowledge of
the concerted nature of any of Smith's complaints thus
removing Smith's termination from under the protective
mantle of the Act. Respondent relies heavily on the indi-
vidualized portion of the'grievance and Smith's several
personal complaints to support its lack of knowledge of
concert. Respondent's argument is flawed because both
Wheeler and Gladders were involved with the group
complaints from their inception and made! several at-
tempts to resolve them to the satisfaction of the com-
plaining nurses. Clearly, Wheeler, at the behest or Glad-
ders, suggested the grievance procedure in an effort to
assimilate the complaints into a single vehicle. Where the
subject matter of the grievance is concerned, neither
Wheeler nor Gladders were operating, in a vacuum. Al-
though Gladders did rightfully,respond to the individual-
ized portion of the grievance as personal to Smith, she
cannot thereby change the character of its entire sub-
stance. Nor can she deny the concerted nature of the
grievance by relying on Respondent's interpretation of
the grievance procedure as relating to individual com-
plaints only. Indeed, Respondent's personnel director,
the responsible official for implementing the grievance
procedure, not only recognized the availability of the
procedure for group complaints, but sanctioned such use
for the complaints voiced by Smith, Westbrook, and
Cole. In addition, Wheeler had an integral part in the de-
termination to discipline Smith at the behest of Gladders.
It would strain credulity to presume that Smith's griev-
ance was not discussed while the determination to disci-
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pline Smith was under consideration. I therefore con-
clude and find that Smith was engaged in protected con-
certed activity with other OR nurses and that Gladders,
the director of nursing, was aware of the concerted
nature of the complaints , including those contained in
Smith 's grievance of 17 October. Therefore, The General
Counsel's case has survived the Meyers test of protected
concerted activity.
To ultimately prevail, the General Counsel must also
satisfy the motivational test of Wright Line. Respondent
argues that Smith was disciplined as the result of several
accumulative incidents of 19 October and 27 and 28 No-
vember, unrelated to her grievance of 17 October. The
discipline took the form of options to Smith or be termi-
nated. Respondent, alternatively argues that Smith was
not discharged because she was given the several options
to continue her employment with qualifications. Clearly,
her rejection of the options was to, and did, result in her
termination. That termination was a disciplinary dis-
charge by any definition.
The General Counsel, in turn, argues that the discipli-
nary options were given to Smith in response to the
grievance'and that the 28 November incident with Nurse
Bertels occurred after Gladders had made the decision to
discipline Smith with the options. The record evidence
does not support the General Counsel's arguments. The
response to the grievance had already occurred when the
incidents precipitating the disciplinary options arose and
the incidents were based on Smith's individual conduct
and unrelated to the prior grievance. Further, the record
evidence shows that the incident with Nurse Bertels was
reported to Gladders proximate to the report to Glad-
ders of the 27 November phone call to Robb and prior
to Gladders' determination to offer the disciplinary op-
tions to Smith.
The record as a whole shows that the circumstances
involved herein occur frequently and are normal out-
growths of the ORs, but not all the nurses individualized
the circumstances as Smith did. Smith evinced a proclivi-
ty to protract the circumstances into incidents rather
than attempt an accommodation or resolution. Smith
took normal everyday occurrences and made them into
conflicts with her reactions. It was obviously her desire
to fuel and perpetuate an upsetting circumstance for rea-
sons known only to her. In addition, she went out of her
way to embroil other management in her continuing dis-
pute with Manager Torres. In my view, Smith made a
contest of her personal conflict with Torres. The two in-
cidents 'subject to scrutiny: the 19 October incident with
Torres over OR apparatus and the 28 November incident
with Bertels over inservicing on the IV apparatus arose
from what all witnesses say occur everyday-borrowing
of equipment from one OR to use in another and the ne-
cessity to overlap duties between nurses to ensure good
quality patient care. As the General Counsel's witness,
Nurse Troop explained when equipment is sought by a
nurse from another OR, "if you need it, most times
people give it to you. What can they say, that you can't
have it? . . if they have an immediate need for that
piece of equipment or that supply and you are not using
it right at the time." Although all the nurses in OR
would rather work in an environment free of borrowing
and an overlap of duties, they make the most of it and go
about their task. Each recognizes that the manager,
charge nurse, or any nurse working the desk has the re-
sponsibility to see that surgery procedures are covered
by sufficient staff and equipment, including requesting
nurses to become inserviced on IV equipment in readi-
ness for a patient crisis. From this record, the lone ex-
ception is Smith. Smith's self-appraisal of her conflicts
with Torres was to brand them harassment. Such self-ap-
praisal as harassment can only lead to' confrontation, for
no one can be expected to accommodate harassment,
whether real or imagined. My understanding of the
record testimony leads me to conclude that the nurses in
OR must daily tighten their belt and, more particularly,
bite their tongue to perform at a level that ensures safe
and adequate patient care. However, safe and adequate
patient care is not simply measured by a nurse's personal
performance for patients assigned to her. The measure
must necessarily include performances of fellow nurses
who, through their accommodations and extra duties,
can affect the safety and care of other patients . To put it
another way, an OR nurse's job is hard enough without
making it harder with emotional confrontations or actual
performance conflicts. Excess emotions can erode an
otherwise stable working relationship. Although Smith
recognized this vice when she opined in her written re-
sponse to the reprimand from Torres that the harassment
was impairing her desire and ability to function in her
professional capacity, she did little to attempt to over-
come it. In fact, Smith did just the opposite. She contin-
ued to protract and contest "incidents" to a point where
her reactions provoked concern of management. More-
over, the harassment as defined by Smith is not shown to
be other than related to surgical procedures and/or
nurses' performances for which Torres or the charge
nurse were responsible. Albeit Smith's OR skills were
never questioned, her reactions to actions of management
when supervising the OR were on the increase. The late
night phone call to Charge Nurse Robb is instructive to
an understanding of Smith's activity. Contrary to the
General Counsel's contention, the phone call was not an
extension of Smith's prior concerted activity. It was,
however, an extension of Smith's personal conflict with
Torres over an unkept promise of an inservice position
for orientation of new personnel. The phone call also in-
cluded a discussion of Bertels' performance on the
"desk," which Smith stated was the concern of several
nurses, although Smith further stated that she personally
had no problem with Bertels' performance on the desk.
Bertels' performance was not a concerted complaint as
expressed by Smith. Although neither witness could
recall the conversation exactly, there was sufficient recall
by both to show that the conversation was pointless and
became heated. The incidents relied on by Gladders did
in fact occur and stand uncontroverted. The General
Counsel, however, argues that the form of discipline, the
options, were instituted only to deal with Smith. The
fact that the options given to Smith had not been used
before as discipline is of little consequence, particularly
because the conduct of Smith involved in the enumer-
ated incidents had not occurred before. It is not argued
HUMANA HOSPITAL-BRANDON
nor is it shown in this record that the substance of the
options given to Smith were designed to cause her to
reject them and thus terminate herself. To the contrary,
the options reflect a genuine attempt to allow Smith to
temporarily remove herself from an environment that
was producing conflict. Particularly, the immediate OR
environment influenced by the continued presence of
Manager Torres. I conclude and find that Gladders' de-
termination to discipline Smith was based on the enumer-
ated incidents involving' Smith's conduct in the OR, and
further that these incidents precipitating the discipline
were unrelated to the filing of the grievance or the sub-
stance of the grievance as filed.
One fact that predominates in this record is that
Torres, the source of much consternation for many
nurses and surely including Smith, was scheduled to
resign her position and leave the hospital as early as 20
November. Contrary to protestations of some witnesses,
I find that Torres' departure was common knowledge in
the OR, and particularly it was known to Smith. Yet,
Smith continued unabashed to react detrimentally to
normal supervisory functions in the OR setting.6
s The record includes testimony of witness Ralph Crabbe. Albeit the
substance of his testimony is not material to any issue raised by the plead-
ings or relevant to any fact necessary to be proven, it does evince a will-
ful disregard by Smith for instructions from'whatever source if it suits
her purpose Smith, who was present throughout the trial, learned from
hearing testimony of a particular conversation involving a statement pre-
viously made by her to employee Crabbe In spite of the several admoni-
tions from myself to all witnesses subsequent to invocation of the rule to
sequester witnesses, Smith, during a nightly recess, confronted the pro
spective witness Crabbe directly. She engaged Crabbe in a discussion in-
volving the substance of his testimony Smith focused on Crabbe's recall
of the statement by suggesting what she actually meant by the statement
In my view, Smith was attempting to change the testimony to be offered
by witness Crabbe Even if the sequestration rule had not been invoked,
Smith's conduct would be suspect. But, here, with witnesses under the
rule, I find her conduct completely reprehensible I do not, however,
suggest that any sanctions be taken against her as a party to the case. I
1191
In view of the above and my interpretation of the
record evidence as a whole, I conclude 'and fiend that the
General Counsel has not presented a prima facie case of
illegal motivation in Gladders' determination to disci-
pline Smith by offering her several options in lieu of dis-
charge. I further conclude and find that Gladders' deter-
mination to discipline Smith was based on conduct that
was neither protected nor concerted, to wit: the 20 April
changed timesheet incident; the 19 October apparatus
dispute with Torres; the 27 November phone call to
Charge Nurse Robb, and the 28 November inservicing
incident with Acting Charge Nurse Bertels. Accordingly,
I shall dismiss,the complaint in its entirety.
ADDITIONAL CONCLUSION OF LAw
The General Counsel has failed to sustain his burden
of proof that Respondent discharged Glenda F. Smith on
3 December 1984 because of -protected concerted activi-
ties.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7
ORDER
It is ordered that the complaint be dismissed in its en-
tirety.
do suggest that parties be placed on notice Once witnesses are placed
under the rule, the parties to the case are obligated to observe the restric-
tions thus imposed, failure to do so can, and should, operate procedurally
against the respective party
7 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses