Kentucky River Medical Center

National Labor Relations Board - Board Decisions

Jul 10, 2009

354 N.L.R.B. 329 (N.L.R.B. 2009)

354 NLRB No. 42
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Jackson Hospital Corporation d/b/a Kentucky River
Medical Center and United Steelworkers of
America and Anita Turner. Cases 9–CA–37734 ,
9–CA–37796, 9–CA–37795-1, -2, 9–CA–37875,
9–CA–38084-1, –2, 9–CA–38237, and 9–CA–
38468
July 9, 2009
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
At issue in this compliance proceeding are the Re-
spondent’s backpay and reinstatement obligations to dis-
criminatee Melissa Turner.1 The Board previously found
that the Respondent unlawfully discharged Turner on
August 17, 2000, and ordered the Respondent to pay
Turner backpay and offer her reinstatement to her former
position as an X-ray technician.2 To date, the Respon-
dent has neither offered Turner reinstatement nor paid
her any backpay. Citing multiple grounds, the Respon-
dent contends that Turner has forfeited her right to rein-
statement, simultaneously tolling backpay. In the alter-
native, the Respondent claims the judge erred in denying
certain setoffs to its gross backpay liability.3 The Gen-

1 On February 26, 2008, Administrative Law Judge Michael A.
Rosas issued the attached supplemental decision. The General Counsel
and the Respondent each filed exceptions and a supporting brief, as
well as answering briefs and reply briefs. The Respondent further filed
a motion to strike the General Counsel’s answering brief in its entirety,
and the General Counsel filed an opposition to the motion to strike. We
denied the motion to strike on June 30, 2008.
2 340 NLRB 536 (2003), enfd. mem. per curiam Case No. 04-1019
(D.C. Cir. June 3, 2005). The Board found that Turner was discharged
in violation of Sec. 8(a)(3) for engaging in a strike. 340 NLRB at 602–
606.
3 We reject the Respondent’s contention that this proceeding should
be remanded to provide it “a full opportunity to develop a complete
record pursuant to the evidentiary scheme embraced” by the Board in
St. George Warehouse, 351 NLRB 961 (2007), which issued prior to
the final day of the hearing in this case. First, the Respondent does not
identify what “additional evidence” it would have adduced at the hear-
ing had the St. George Warehouse evidentiary framework been Board
law when the hearing opened. Second, even if we were to speculate, it
is difficult to imagine what different or “additional” evidence the Re-
spondent would have put forward given the fact that both before and
after St. George Warehouse the ultimate burden of persuasion on a
discriminatee’s failure to mitigate remained on the discriminating re-
spondent. Finally, the General Counsel actually called Turner to testify
at the hearing concerning her mitigation efforts, which satisfied his
modified burden under St. George Warehouse. Therefore, the Board’s
decision in that case provides no basis for remanding this case to pro-
vide the Respondent an opportunity to put on additional evidence.
eral Counsel excepts to the judge’s finding that a setoff is
warranted for a 6-month period in 2002–2003.4
The National Labor Relations Board5 has considered
the supplemental decision and the record in light of the
exceptions and briefs and has decided to affirm the
judge’s rulings, findings,6 and conclusions as modified
below.
We address three principal issues here: (1) the effect
of Turner’s felony conviction; (2) the effect of Turner’s
quitting an interim job; and (3) the effect of Turner’s
medical leave.
1. Felony Conviction. For the reasons set forth below,
we agree with the judge that Turner’s eligibility for back-
pay and reinstatement is not cut off because of her No-
vember 2002 felony conviction for attempting to solicit a
controlled substance by fraud. Turner’s crime consisted of
seeking a Demerol injection at one hospital to treat an al-

4 In affirming the judge’s 2002–2003 setoff finding, we rely only on
the credited testimony of Sherry Wells, director of radiology at Clark
Regional Medical Center, who testified that, in a March or April 2003
job interview, Turner told her that she had married and moved to West
Virginia in August 2002 and lived there until February 2003. Wells’
testimony is supported by her contemporaneous interview notes, which
Turner reviewed and signed. There is no evidence that Turner sought
work in West Virginia.
Contrary to the General Counsel’s further exceptions, the judge did
not err in not (re)ordering the Respondent to reinstate Turner and in not
expressly providing that backpay continues to accrue beyond the end
date of the instant compliance specification. With regard to reinstate-
ment, this remedy has already been ordered by the Board and enforced
by the court of appeals. Thus, it was unnecessary for the judge to re-
order the remedy. Fluor Daniel, Inc., 350 NLRB 702, 702 fn. 5 (2007);
Bryan Adair Construction Co., 341 NLRB 247, 247 fn. 4 (2004). With
regard to backpay, the Respondent’s liability for backpay beyond the
terminal date of the instant compliance specification is an unresolved
matter to be determined if and when the General Counsel issues a sup-
plemental compliance specification.
5 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, __ F.3d
__, 2009 WL 1676116 (2d Cir. June 17, 2009); New Process Steel v.
NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert. filed __
U.S.L.W. __ (U.S. May 27, 2009) (No. 08-1457); Northeastern Land
Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing denied No.
08-1878 (May 20, 2009). But see Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petitions for re-
hearing denied Nos. 08-1162, 08-1214 (July 1, 2009).
6 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
leged toothache and untruthfully denying having received
a prescription for Percocet for the same ailment earlier in
the day at a different hospital. The judge did not credit
Turner’s testimony that she was seeking Demerol to re-
lieve the pain of a toothache; thus, the judge seems to have
implicitly concluded that Turner was a substance abuser
(and the Respondent appears to agree with this implicit
conclusion). The Respondent contends that Turner’s con-
viction terminates its obligation to offer her reinstatement
and tolls its backpay liability.7
The Respondent bears the burden of proof as to this
assertion. Once the General Counsel has met his burden
of establishing the gross amount of backpay due, the
burden shifts to the employer to prove any defenses in
mitigation of its backpay liability.8 We find that the Re-
spondent failed to prove its assertion that it would have
discharged Turner for her misconduct and resulting fel-
ony conviction. As the judge observed, what to do about
an employee convicted of a felony was not an unprece-
dented situation for the Respondent. Several years ear-
lier, Carol Hudson, a registered nurse employed by the
Respondent, had been convicted of a felony for conceal-
ing her husband’s home-based marijuana-growing and -
selling operation.9 The Respondent continued Hudson’s
employment.10 It also continued to employ a dozen or
more substance-abusing employees who were offered
treatment under the Respondent’s Employee Assistance
Program (the EAP participants). These situations, while
dissimilar in some respects, still constitute evidence of
Respondent’s past practice of dealing with comparable
misconduct.
The Respondent argues that Turner cannot be com-
pared to the EAP participants because they voluntarily
admitted their substance abuse to the Respondent and
sought treatment without first being caught by the Re-
spondent or law enforcement. But Turner was unlaw-

7 The judge discredited the testimony of the Respondent’s former
CEO, David Bevins, that the decision to bar Turner from reinstatement
was based on three more reasons in addition to her felony conviction.
As stated above, we find no basis for reversing the judge’s credibility
findings.
8 Parts Depot, Inc., 348 NLRB 152, 153 (2006), enfd. 260 Fed.
Appx. 607 (4th Cir. 2008); Beverly California Corp., 339 NLRB 776,
777 (2003).
9 Contrary to the Respondent’s contention that Hudson’s situation is
distinguishable because her crime was not a felony, the record contains
ample evidence that she was convicted of a felony, including admis-
sions to that effect by both Hudson herself and the Respondent.
10 To the extent that the Respondent contends that the mere fact of
Turner’s felony conviction without more—i.e., considered apart from
the acts for which Turner was convicted—deprived her of reinstate-
ment, its continued employment of Hudson after her felony conviction
refutes such a contention. See Beverly California, supra (finding that
employer failed to establish that it would have discharged backpay
claimant Adalpe based solely on issuance of a state citation).
fully discharged nearly 2 years before she committed the
crime. We cannot know whether Turner might have
availed herself of the EAP plan had she remained in the
Respondent’s employ. However, we do know that her
unlawful discharge eliminated that treatment possibility.
Similarly, we reject the Respondent’s contention that
Hudson was, reasonably, treated more leniently because
her attorney and probation officer, unlike Turner’s,
communicated with the Respondent about continuing
Hudson’s employment. Turner’s attorney and probation
officer understandably did not contact the Respondent to
have similar discussions about continuing Turner’s em-
ployment, since she had no employment to continue due
to her unlawful discharge 2 years earlier.11
We recognize that Hudson’s felony did not involve an
attempt to obtain a controlled substance for her own use,
and Turner’s did. We also recognize that the nature of
Turner’s violation might reasonably cause the Respon-
dent concern about her future misuse of the controlled
substances found in its hospital. As the judge found,
however, the Respondent closely tracked and monitored
such substances; and it apparently deemed such measures
sufficient to resolve its concerns regarding EAP partici-
pants with a history of drug abuse, including doctors and
nurses having much greater access to controlled sub-
stances subject to abuse than did X-ray technician
Turner, whose access to controlled substances was lim-
ited to ones of no interest whatsoever to a drug abuser,
i.e., contrast dye and nuclear liquid.
In addition, as stated above, the judge discredited
Bevins’ testimony concerning three additional purported
disciplinary violations by Turner justifying denial of re-
instatement. The Respondent’s attempt to bolster its
position with discredited reasons further supports a con-
clusion that the true reason for its decision to deny
Turner reinstatement was one the Respondent wished to
conceal.12

11 We also reject the Respondent’s contention that Turner was per-
missibly treated differently because her crime, unlike Hudson’s, was
“deliberate.” Whatever the legitimacy of an employer’s reliance on
such considerations in exercising its discretion, the evidence here indi-
cates that Bevins had little or no information beyond the title of
Turner’s offense and the fact that it was a felony when he concluded
that Turner’s conviction disqualified her from employment. The Re-
spondent did not obtain a copy of Turner’s court file until about one
week before the start of the backpay hearing. Thus, whether Turner’s
conduct was “deliberate” (a term Bevins found not applicable to Hud-
son’s conduct, even though intent is an indispensable element of any
felony) was something Bevins did not determine until after he had
decided that the conviction disqualified Turner from reinstatement.
12 See Metropolitan Transportation Services, 351 NLRB 657, 659–
660 (2007).
KENTUCKY RIVER MEDICAL CENTER 3
Resolving uncertainties against the Respondent, as
precedent requires,13 we find that the Respondent has
failed to show that it would have discharged Turner for
her misconduct and resulting felony conviction, such that
she would have been disqualified from continued or fu-
ture employment. Thus, we affirm the judge’s finding
that Turner’s felony conviction did not toll her backpay
or terminate the Respondent’s duty to offer her rein-
statement in accordance with the terms of the Board’s
court-enforced Order.
2. Interim Job. We adopt the judge’s finding that
Turner’s departure from her job at Gram Resources in
July 2002 does not affect her eligibility for subsequent
backpay. Crediting Turner’s testimony as to her “per-
sonal reasons for changing jobs during the period leading
up through the second quarter of 2002,” the judge found
that Turner reasonably left that employment because the
work hours became incompatible with her child-care
obligations. We disagree with the Respondent’s asser-
tion that the judge “disregarded” or failed to consider the
testimony of Gram’s administrator, Ken Holbrook, that
Turner quit upon realizing that she was about to be fired.
Instead, we conclude that the judge implicitly discredited
Holbrook’s testimony by finding that Turner quit be-
cause of childcare issues and did not know at the time
that Holbrook intended to fire her.14 Like the judge, we
thus need not determine whether Turner actually engaged
in the alleged misconduct at Gram to which Holbrook
testified.15
3. Medical Leave. Turner was on medical leave from
her interim employment at Clark Regional Medical Cen-
ter—first for pregnancy complications and then for post-
partum recovery—from October 28, 2005, through June
25, 2006. Her job remained open during much of her
leave, but Clark filled her slot on May 22, 2006 (after
Turner had given birth but before she received medical
clearance to return to work). Amending its answer to the
compliance specification on the first day of the hearing,
the Respondent alleged that this medical leave—lasting
well beyond the extent legally protected by the Family
and Medical Leave Act (FMLA)—would have likewise
caused Turner to lose her job with the Respondent, had it
still employed her at the time. Thus, the Respondent
contended at hearing that the medical leave should cut

13 John Cuneo, Inc., 298 NLRB 856, 857 fn. 7 (1990); Wellstream
Corp., 321 NLRB 455, 461 (1996).
14 While it would have been helpful had the judge more directly
stated the basis for his conclusions, his failure to do so does not violate
Board Rules and Regulations § 102.45(a), as the Respondent contends.
15 Thus, we do not rely on Holbrook’s testimony as evidence reflect-
ing on Turner’s tendencies regarding truthfulness or industriousness.
off Turner’s backpay and her eligibility for reinstate-
ment.16
The judge failed to address the Respondent’s medical-
leave defense, and the Respondent now argues that we
must remand the case to the judge for findings on the
defense. The Respondent does not seek to have the hear-
ing reopened for further evidence on the issue, however;
it argues only that the Board should remand the case to
the judge “to prepare a supplemental decision that prop-
erly addresses its maternity leave defense.” Moreover,
the Respondent had a full and fair opportunity to make
its case on its medical leave defense at the hearing. As
the Respondent is therefore not entitled to a remand as a
matter of due process, and mindful that nearly 9 years
have passed since Turner’s unlawful discharge in 2000
without her having yet received any remedy, we turn to
the record to determine whether it permits us to avoid
further delay by deciding the merits of the medical-leave
defense here.
We find that it does. The Respondent presented two
types of evidence regarding its medical leave policy: its
written leave policy and testimony about the policy’s
application by former CEO Bevins. The policy is subject
to interpretation by the Board just as it would be by the
judge, and Bevins’ testimony was not disputed by any
other witness, so no demeanor-based credibility determi-
nations are needed. In these circumstances, we find it
unnecessary to delay resolution of the case by remanding
this issue to the judge.
Assuming the Respondent’s medical-leave defense is
cognizable, we conclude, for the reasons that follow, that
the Respondent failed to meet its burden of proving that
it would have lawfully discharged Turner because of her
8-month medical leave.
The Respondent’s written leave policy provides that
employees are entitled to 12 weeks’ leave pursuant to the
FMLA, and it further specifies how requests for exten-
sions of leave must be submitted. It does not address,
however, how long such extensions may last or what
factors determine an employee’s eligibility for an exten-
sion. The policy, which also covers other types of
leaves, further contains a provision for personal leaves of
absence. This provision states that
[r]equests for personal leave of absence (for individuals
not eligible for FMLA or for reasons not FMLA eligi-
ble) will be considered for a reasonable period of time

16 The General Counsel does not assert that Turner is entitled to
backpay for the period during which she was on medical leave and
unable to work; at issue is her eligibility for backpay and reinstatement
after her medical leave, when the loss of her job at Clark left her unem-
ployed for nearly a year.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
up to 90 days if the facility is able to obtain a satisfac-
tory replacement during the time the employee would
be away from work. The leave may be extended for a
reasonable period of time due to special circumstances,
as determined on an individual basis and approved by
the supervisor and Human Resources Department.
The policy does not specify whether an employee who
has exhausted her FMLA leave for the year may use a
personal leave of absence to extend her leave; however,
such an employee could legally and logically be consid-
ered an “individual[] not eligible for FMLA” as refer-
enced in the personal leave of absence policy.
Bevins testified that employees who exhaust their
FMLA leave are placed on PRN “as needed” status for 2
more months, but if they are unable to work at least three
shifts while on PRN status, they are discharged.17 Bevins
further testified about several employees who had been
placed on PRN status after a medical leave. One such
employee, Michelle Noble, was discharged for failing to
be available for work while on PRN status. Another em-
ployee was retained because she became able to work
(and successfully reapplied for her regular position,
which had been posted for applicants) before her PRN
status expired. Bevins testified that he was not aware of
the Respondent ever retaining an employee after a medi-
cal leave of 8 months.
Turner was unable to work at all for 8 months. Thus,
based on Bevins’ testimony, the Respondent contends
that it would have lawfully discharged Turner no later
than 5 months into her medical leave (approximately 3
months’ FMLA leave plus 2 months’ PRN status), and
thus her backpay and reinstatement right should be cut
off as of the first quarter of 2006.
We find, however, that there are material tensions be-
tween Bevins’ testimony and the Respondent’s written
leave policy. Specifically, the written policy provides
various ways in which an employee may be able to ex-
tend her medical leave beyond the 12 weeks required by
the FMLA: either by the extension of FMLA leave (the
limits and eligibility conditions of which are not detailed
in either the written policy or in Bevins’ testimony) or
perhaps by taking a personal leave of absence (the terms
of which, set forth above, are even more vague) at the
conclusion of her FMLA leave.

17 Bevins testified that employees’ retention after 2 months on PRN
status would be based on three call-ins during that period. Although his
testimony was ambiguous as to whether such employees were required
to respond no later than the third call-in or whether they were required
to work at least three call-in shifts during the 2 months, the Respon-
dent’s brief applies the latter characterization. In either event, Turner,
who was entirely prohibited from working during those months, would
have been unable to comply.
Thus, the Respondent’s written policy could be read to
provide for a leave long enough to cover Turner’s 8-
month medical incapacity, and Bevins’ testimony did not
eliminate this possibility. Bevins testified that the Re-
spondent’s usual practice is to put employees on PRN
status at the end of their 12-week FMLA leave, and he
further testified that Michelle Noble was discharged for
failing to be available for work during this PRN-status
time. The record leaves open the possibility, however,
either that Noble simply had not requested a leave exten-
sion or that she had, but the request had been denied.
Similarly, Bevins’ testimony that he could not name any
employee who had been reinstated after an 8-month
leave does not prove that a request for such an extension
would have been denied, absent evidence that any em-
ployee had ever made such a request.18 Moreover,
Bevins’ testimony entirely fails to address the written
policy’s provision of personal leaves of absence, let
alone the interaction between such leave and exhausted
FMLA leave.19
Because neither the written policy nor Bevins’ testi-
mony clearly addresses the procedures, conditions, or
possible duration of FMLA leave extensions or the use of
personal leaves to supplement FMLA or other leave, the
record does not preclude the possibility that Turner may
have been eligible for an extended leave that could have
lasted as long as her incapacity, and thus for reinstate-
ment upon obtaining medical clearance. Accordingly,
assuming arguendo that the Respondent’s medical leave
defense is cognizable, and resolving uncertainties against
the Respondent, it failed to sustain its burden to prove
that Turner’s medical leave in 2005–2006 would have
resulted in a refusal to reinstate her when she was cleared
to return to work, disqualifying her from reinstatement
and further backpay.
ORDER
The National Labor Relations Board adopts the rec-
ommended supplemental Order of the administrative law
judge and orders that the Respondent, Jackson Hospital
Corporation d/b/a Kentucky River Medical Center, Jack-
son, Kentucky, its officers, agents, successors, and as-

18 Bevins’ testimony implies, but does not expressly state, that
placement on PRN status for 2 months constitutes the extension of
leave provided for in the written policy. Logically, however, an em-
ployee’s placement on “on call” status, with an obligation to respond at
least three times or face discharge, does not seem to constitute an ex-
tension of her “leave.”
19 Nor did the Respondent offer evidence that it had no open posi-
tions into which Turner could have been placed, either at or after the
time she was medically cleared to return to work. Absent such evi-
dence, we cannot conclude that the Respondent would have refused to
reinstate Turner, let alone conclude that, if it had done so, such refusal
would have been based on legitimate considerations.
KENTUCKY RIVER MEDICAL CENTER 5
signs, shall take the action set forth in the supplemental
Order.
Dated, Washington, D.C. July 9, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Julius Emetu, Esq., for the General Counsel.
Don T. Carmody, Esq., of Painted Post, New York, and Bryan
Carmody, Esq., of Stanford, Connecticut, for the Respon-
dent.
Randy Pidcock, of Frankfort, Kentucky, for the Union.
SUPPLEMENTAL DECISION
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Jackson, Kentucky, on July 16, 17, and 18, 2007,
and October 17, 2007. On September 30, 2003, the National
Labor Relations Board (Board) issued its Decision and Order
(340 NLRB 536) requiring, in pertinent part, the Respondent
reinstate and make whole Melissa Turner (Turner),1 for any
loss or earnings she may have suffered as a result of the Re-
spondent’s unfair labor practices in violation of Section 8(a)(3)
and (1) of the National Labor Relations Act. On June 3, 2005,
the United States Court of Appeals for the District of Columbia
Circuit entered its judgment enforcing the Board’s Decision
and Order. On May 25, 2007, the Board’s Regional Director for
Region 9, pursuant to Section 102.54 of the Rules, issued an
amended second compliance specification and notice of hearing
alleging the Respondent refused to reinstate Turner and give
her backpay for the applicable period, beginning August 17,
2000, and continuing through the current time. As of the first
quarter of 2007, the alleged backpay owed Turner was
$100,956, not including interest. In its answer, the Respondent
admits its refusal to reinstate and pay Turner backpay, but as-
serts that backpay is tolled for several reasons.
On the entire record, including my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. TURNER’S INTERIM EARNINGS
Turner, the discriminatee, was employed by the Respondent
as an x-ray technician earning $16.63 per hour. Her home was
located about a mile from the Respondent’s facility. Turner
worked 40-hour weeks, was on-call for nights and weekends,
and occasionally received overtime work. Turner’s shift was
from 7 a.m. to 3:30 p.m., Monday through Friday. In that role,
Turner performed x-rays, CT scans, ultrasound, mammography,

1 Charging Party Anita Turner and discriminate Melissa Turner are
separate individuals.
and general office duties.2 As an x-ray technician, she came in
contact with two controlled substances—contrast dye for CT
patients and radioisotopes, a radioactive liquid used in x-rays.
Both were regulated and released by the Respondent’s phar-
macy only in connection with a specific order by a radiologist.3
In August 2000, Turner participated in a strike held on the
Respondent’s premises. During the strike, Turner worked for
St. Joseph’s Hospital East (St. Joseph’s) in Lexington, Ken-
tucky. On August 17, 2000, the Respondent discharged Turner
on the ground of misconduct.4 In 2000, prior to her discharge,
Turner earned $19,074.59 during her employment by the Re-
spondent.5
After she was discharged, Turner continued her part-time po-
sition with St. Joseph’s, which is located approximately 86.5
miles from Jackson. While employed at St. Joseph’s, Turner
obtained part-time positions with Medical Staffing Network,
Inc. (MSN). She also attended orientation at Clark Regional
Medical Center (Clark) in Winchester, but worked only 3 days.
Clark is located approximately 67.5 miles from Jackson.
Turner continued working for St. Joseph’s until January
2001, when she resigned for a position at Samaritan Medical
Center (Samaritan). Turner’s reason for leaving was that the
long commute made it difficult for her to pick her daughter up
at school on time. The approximate hourly wage was $18. In
2000, Turner earned $14,255.71 with St. Joseph’s, $2,017 with
MSN, and $462.40 from Clark. Turner also received accrued
pay from St. Joseph’s in 2001 totaling $1,153.18.6
Turner, however, changed her mind after attending orienta-
tion and declined the position with Samaritan. The commute to
Samaritan—85.5 miles—was nearly as long as the commute to
St. Joseph’s.7 Child care was a serious consideration for Turner,

2 Turner submitted evidence that she consistently received positive
annual performance evaluations and regularly scheduled wage in-
creases. (Tr. 167.) The Respondent countered with evidence that she
was warned about lateness and disciplined on several occasions. (Tr.
232–233; R. Exh. 9.) Whether Turner was a good or bad employee may
have had some relevance to the underlying case. It did not have any
here.
3 It was clear that the nuclear medicine that Turner came in contact
with as an x-ray technician was closely regulated and tracked for each
patient. It was not something that was lying around in a medicine cabi-
net. (Tr. 463–489.)
4 The termination form was dated August 17, but the personnel ac-
tion form stated August 15. (R. Exh. 9.)
5 These facts are not in dispute. (GC Exh. 8; Tr. 133–136, 143–144,
283.)
6 The wage information contained at GC Exh. 8 conforms to the
summary prepared by Jon Grove, a Board compliance officer, at GC
Exh. 3, Appendix A (revised). The expenses listed on GC Exh. 3, Ap-
pendix A (revised), were appropriately derived from Appendix B (re-
vised) and represent extra miles driven by Turner to her interim em-
ployment, above and beyond the 2-mile round trip distance that she
drove to the Respondent’s facility. Appendix B (revised) lists the “net”
round trip distance to each of Turner’s interim employers. Her expenses
for each quarter of the backpay period were appropriately calculated by
the number of round trip miles per quarter multiplied by the allowable
mileage rate.
7 Mile references to one-way travel to employment locations are
based on half of the “net round trip distance” as listed in GC Exh. 3,
Appendix B (Revised).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
a single parent, whose child would get out of school at 3 p.m.
As a result, Turner accepted employment with Appalachian
Regional Healthcare, Inc. (Appalachian) in January 2001. The
commute to Appalachian was 27.5 miles. However, by the fall
of 2001, a shift in Turner’s schedule from the morning shift to
the afternoon shift again caused her child care complications
and motivated her to seek employment elsewhere. Turner
earned $25,012.71 at Appalachian in 2001.
In October 2001, Turner accepted a position as a radiology
technologist with Gram Resources, Inc. (Gram) in Hazard. The
commute to Gram was the same as that to Appalachian—27.5
miles. The work schedule, however, was consistent with
Turner’s child care situation and paid her an hourly wage of
$17. However, her schedule gradually expanded and she was
required to work late hours and weekends. This made it diffi-
cult for Turner to meet her child care needs. In addition, her
relationship with her supervisor deteriorated.8
Turner’s personal predicament reached its pinnacle on July
6, 2002, when she was arrested on drug and fraud charges.
Earlier that day, Turner was treated for a toothache at the Uni-
versity of Kentucky’s Hospital. She was prescribed Percocet, a
pain medication, and given an appointment for a tooth extrac-
tion the next day. After leaving the hospital, however, Turner
went directly to Central Baptist Hospital and attempted to get
an injection of Demerol, another form of pain medication.
Somehow, the treating doctor learned that Turner was adminis-
tered pain medication earlier that day at the University of Ken-
tucky’s Hospital and asked her about it. Turner denied receiv-
ing the earlier medication and the doctor notified law enforce-
ment. Turner was arrested and charged with attempting to ob-
tain a controlled substance by fraud.9 Shortly after her arrest,
Turner resigned from Gram. While employed by Gram, Turner
earned $8,125.01 in 2001 and $19,939.58 in 2002.10
Around the time that Turner resigned from Gram, in August
2002, Turner married Jon Back. Turner was then living with
Back in Wolverine, Kentucky, a town near Jackson, while Back
would commute to his job for a coal company in West Virginia
and return home on occasion. Turner managed to obtain em-
ployment again with MSN. While the commute to MSN was 89
miles each way, the hourly pay was slightly more than her pay

8 I found Turner’s testimony credible as to her attempts to find work,
as well as the personal reasons for changing jobs during the period
leading up through the second quarter of 2002. (Tr. 133–139, 143–149,
211–225.)
9 Given her guilty plea, I was not impressed by Turner’s explanation.
It is difficult to imagine, if her assertion was true and she was merely
attempting to alleviate a toothache, she would have lied to medical
providers and a security guard as to her treatment at another hospital
earlier that day. (Tr. 291–292; R. Exh. 8.)
10 Through Ken Holbrook, Gram resources’ administrator, the Re-
spondent offered proof that Turner was a terrible employee who once
falsified her timecard and was disciplined for absences, lateness, insub-
ordination, and refusing and denying care to patients. Accordingly, he
was prepared to terminate Turner in July 2002, but did not do so be-
cause she informed him that same month that she was resigning. (Tr.
146, 230, 239–241, 339–342, 347–349, 359–360, 364–367.) The im-
portant fact here, however, is that Turner was not terminated and it was
not established that she knew she was about to be terminated before
leaving to accept another position.
at Gram and the schedule was more flexible. However, Turner
worked at MSN only 10 days over the course of several weeks,
earning $2,919, before resigning that position as well.11
Turner’s decision to resign, as well as her subsequent employ-
ment search efforts over the next 6 months, was clearly affected
by her new marriage. Turner’s child remained in school in
Jackson during the fourth quarter of 2002 and the first quarter
of 2003. However, Turner would go to live with Back for cer-
tain extended periods of time and, as such, did not make serious
efforts to find employment for the next several months.12
Turner resumed her employment search efforts on March 23,
2003, when she completed an online application for a position
at Clark. In her application, she inaccurately stated that she had
not worked previously for Clark. During an initial telephone
interview by Sherry Wells, Clark’s director of radiology,
Turner stated, in pertinent part, that she got married and moved
to West Virginia, where she resided from August 2002 to Feb-
ruary 2003. Wells generated a handwritten note listing Turner’s
employment history in chronological order. When she came in
for the follow-up interview, Turner reviewed, signed the bot-
tom of Wells’ handwritten note, and was hired.13
Turner started her full-time employment with Clark on May
5, 2003. On September 30, 2003, while still employed by Clark,
the Board decided the underlying unfair labor practice case in
Turner’s favor.14 The Respondent refused, however, to reinstate
Turner and, instead, filed an appeal with the United States
Court of Appeals for the District of Columbia Circuit (Court of
Appeals). On June 3, 2005, the Court of Appeals affirmed the
Board’s 2003 Order. That Order required, in pertinent part, that
the Respondent reinstate Turner to her former position. The
Respondent did not, however, contact Turner and reinstate her.
Without contacting her to discuss the circumstances, the Re-
spondent simply concluded that Turner’s arrest and conviction

11 Jon Back did not testify. While it is not disputed that Turner mar-
ried Back and they moved into the same home in Wolverine, I did not
find that he came home as often as every weekend. As discussed, infra
at fn. 13, Turner went to live with Back in West Virginia for certain
periods of time–enough that she would tell someone several months
later that she moved to West Virginia. (Tr. 225–227, 308–309.)
12 This finding is based on the fact that I did not find it credible that
Turner went to live with her husband in West Virginia on only one
occasion and for only a few days before returning to Kentucky. (Tr.
290–291, 666–668.) Turner failed, however, to produce any documen-
tation of her efforts to find employment, as she was advised to do, or
receipt of unemployment compensation, as she claims, during that
period of time. (Tr. 672.) More importantly, as discussed, infra at fn.
13, I find that she told a prospective employer in March 2003 that she
had been living in West Virginia since August 2002.
13 Turner denied telling Wells that she lived in West Virginia for any
significant amount of time in 2002–2003. (Tr. 670.) I did not, however,
credit such testimony and relied on Wells’ version of the interview.
Wells’ testimony was consistent with the note, which was made in the
regular course of business, and contains the indicia of reliability. (R.
Exh. 3, 16; Tr. 227, 288, 331, 649–650, 669–670.) Moreover, Turner
lied on the application as to whether she worked previously at Clark.
(Tr. 323–326.) As such, since Turner was in West Virginia for signifi-
cant periods of time between August 2002 and February 2003, and her
alleged efforts to find work were based in Kentucky, I find that she did
not undertake any serious efforts to find work anywhere.
14 340 NLRB 536.
KENTUCKY RIVER MEDICAL CENTER 7
precluded reinstatement under its “Discipline and Discharge”
policy. Policy B.7 listed dischargeable offenses, which included
a felony conviction. However, falling into the list did not auto-
matically trigger a discharge, as the policy simply stated that
such a violation “may” result in discharge. The policy also
provided a process to be followed during an investigation into
any alleged violation.15
Turner’s employment with Clark continued until March 28,
2004, when she went on leave pursuant to the Family Medical
Leave Act (medical leave) for 5 weeks. She returned to work
on April 26, 2004, and worked continuously until November
2005, when she went on medical leave again. On May 9, 2006,
Turner gave birth to her second child. At that point, however,
Turner’s position was open and she was eligible for rehire.
Turner’s position remained open until May 22, 2006, but she
did not receive medical clearance to return to work until June
25, 2006. At Clark, Turner earned $25,029.32 in 2003,
$46,964.30 in 2004, $54,900.30 in 2005, and $257.18 in
2006.16
For the next year, Turner remained unemployed, collected
unemployment compensation benefits, moved into her parents’
home, and collected child support from Back, whom she di-
vorced in August 2006. In accordance with her responsibilities
as a recipient of unemployment compensation benefits, Turner
made numerous attempts to find employment. Those efforts
included inquiries with her former employer at Clark, Appala-
chian, Gram, University of Kentucky’s Hospital, Jupiter Health
Clinic in Jackson, and medical offices in Winchester, Hazard,
and Jackson. In July 2007, Turner finally obtained employment
as an ultrasound technologist with Ace Clinique in Hazard,
Kentucky. Turner remains employed at Ace Clinique, earning
$17.00 per hour.17

15 I did not find it credible that Bevins based his decision on any cri-
teria other than the fact that Turner was convicted of a felony. He testi-
fied that he took into account the following dischargeable offenses
listed in the disciplinary policy—a felony conviction, the solicitation of
drugs, fraud, and falsifying medical information. Of those listed, how-
ever, only a felony conviction is included as a dischargeable offense.
Furthermore, Bevins testified that he only learned of Turner’s convic-
tion in 2005. That assertion, however, was based on uncorroborated
hearsay from a former employee, and the timing as to when he alleg-
edly learned about Turner’s arrest and conviction was too coinciden-
tally close to the date that the court of appeals reaffirmed the Board’s
Order requiring the Respondent to reinstate Turner. (Tr. 413–416, 419–
420, 428–435, 438, 449–450, 453–454, 476–477, 482–484, 487–488;
R. Exh. 8; GC Exh. 5.)
16 I based this finding on Turner’s credible and unrefuted testimony
regarding her pregnancy and the related complications that kept her out
of work for this period of time. (Tr. 151, 197; GC Exh. 8.)
17 In contrast to her earlier period of unemployment in 2002, Turner
documented her unemployment compensation benefits received in
2006. (GC Exh. 12.) Given her responsibilities under the unemploy-
ment compensation benefits system, as well as the specificity as to the
individuals with whom she spoke at the various hospitals, I found it
credible that Turner made serious efforts to obtain employment during
this period. (Tr. 131–132, 151–152, 155, 197, 242–254, 373–374, 642–
643.) As to the discrepancy between her and Barry Linderman, her
former supervisor at Clark, as to whether she contacted him, I credited
Turner’s version. In contrast to Turner, Linderman hedged as to
whether Turner contacted him after she left his employ (“she may have
II. THE COMPLIANCE SPECIFICATION
The burden is on the General Counsel to show the gross
backpay due, that is, the amount of wages the discriminatee
would have received but for the employer’s illegal conduct.” J.
H. Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223, 230–231 (5th
Cir. 1973), cert. denied 414 U.S. 822 (1973); La Favorita, Inc.,
313 NLRB 902 (1994). The General Counsel has discretion in
selecting a formula that will closely approximate backpay and
need only establish that the gross backpay amounts specified
are reasonable and not an arbitrary approximation. Perform-
ance Friction Corp., 335 NLRB 1117 (2001); Mastell Trailer
Corp., 273 NLRB 1190, 1190 (1984). Once established, it is
the employer’s burden to establish defenses to mitigate its
backpay liability by demonstrating the willful loss of interim
earnings to be deducted from gross backpay. Basin Frozen
Foods, Inc., 320 NLRB 1072 (1996).
Jon Grove, a Board compliance officer, prepared the
amended second compliance specification based on the Order
in the underlying case, Turner’s W-2 forms, payroll records
from the Respondent, Social Security Administration records,
payroll records from interim employers, and mileage calcula-
tions obtained from the well-known Mapquest.com internet
website. The gross backpay calculation was based on Turner’s
prorated earnings from the Respondent during 2000 and con-
verted to an average weekly salary for that year. Grove’s then
calculated backpay through the first quarter of 2007 by apply-
ing wage increases afforded the Respondent’s employees
through the first quarter of 2007.18 Turner’s backpay was either
eliminated or reduced in proportion to the time that she did not
work during the fourth quarter of 2005, the first quarter of
2006, and the period that she was on maternity leave—October
28, 2005, through June 25, 2006. The net interim earnings were
deducted from the gross backpay to yield the net backpay that
Turner is owed through the first quarter of 2007—$100,532,
plus accrued interest.19
The Respondent does not challenge the formula or the calcu-
lations used to arrive at the gross backpay as set forth in the
compliance specification. It does, however, contend that further
offsets are in order. Although extensively explored by the Re-
spondent, Turner’s checking accounts failed to reveal addi-
tional sources of income from interim employers warranting
further offsets to backpay. Turner’s accounts at the Citizen’s
Bank in Jackson, Kentucky, and Central Trust/Winchester Bank
in Lexington, Kentucky, reflected numerous deposits relating to
child support from her ex-husband ($930 deposited on July 13,
2006, $7,868 deposited on September 15, 2005, $900 deposited
on June 28,2005, $700 deposited on February 14, and $300 on
February 21, 2005); a long term insurance disability payment
($3,062.05 deposited on May 24, 2006); income tax refunds
($2,355.05 deposited on February 3, 2001); and a family inheri-

called me”) and his tone conveyed a sense of significant resentment
toward Turner. (Tr. 334.)
18 It is not disputed that the Respondent provided Grove with such
information. (GC Exh. 3, Appendix A.)
19 Grove first met with Turner on November 17, 2003, and advised
her to document all employment search efforts. (GC Exh. 6–26; Tr. 41–
45, 48–51.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
tance ($1,000 deposited on March 27, 2001).20
With the exception of periods for which Grove tolled back-
pay because Turner was either pregnant or suffering from re-
lated complications, there was only one period of time in which
the Respondent demonstrated a willful loss of earnings by
Turner—the last quarter of 2002 and first quarter of 2003.
Grove estimated the gross backpay during each of those quar-
ters at $10,477. During this period of time, Turner essentially
removed herself from the job market by spending significant
periods of time in West Virginia with her husband. Her situa-
tion during this period of time was corroborated by her repre-
sentations during the job interview with Sherry Wells, Clark’s
director of radiology. Since Turner failed to mitigate during this
period of time, backpay is tolled for this portion of the backpay
period. See St. George Warehouse, 351 NLRB 961, 963 (2007).
Accordingly, I have reduced her gross backpay by $20,954.
The gross backpay, as stated in the compliance specification, is
reduced to $237,016.
As to the remainder of the backpay period, the Respondent
failed to establish a willful loss of earnings on the part of
Turner. Simply showing that Turner, at various times during the
backpay period, failed to obtain or retain interim employment,
does not meet this burden. Black Magic Resources, 317 NLRB
721 (1995). Turner did leave several interim jobs for compara-
ble positions at other facilities, but only after the schedules
changed dramatically. The new positions were either located
closer to her home and/or enabled her to pick up her child after
school—not unreasonable considerations on the part of a single
parent attempting to be self-supporting. Flannery Motors, Inc.,
330 NLRB 994, 995 (2000) (“good faith effort requires conduct
consistent with an inclination to work and to be self-supporting
and that such inclination is best evidenced . . . by the sincerity
and reasonableness of the efforts made by an individual in his
circumstances to relieve his unemployment.”). As such, Turner
made a good-faith effort to obtain or retain employment, which
is good enough. Fabi Fashions, 291 NLRB 586, 587 (1988);
Arlington Hotel, 287 NLRB 851 (1987); NLRB v. Madison, 472
F.2d 1307, 1319 (D.C. Cir. 1972); NLRB v. Arduni Mfg. Co.,
394 F.2d 420, 422–423 (1st Cir. 1968). With respect to the
period during and after the third quarter of 2006—after she lost
her position at Clark due to extended medical leave resulting
from her pregnancy—Turner’s job search efforts are further
evidenced by the fact that she applied for and received unem-
ployment compensation benefits during this time. The Board
has found that a discriminatee’s receipt of unemployment bene-
fits is corroborative of reasonable efforts to seek interim em-
ployment. Superior Protection, Inc., 347 NLRB 1197, 1199
(2006); Birch Run Welding, 286 NLRB 1316, 1319 (1987).
III. THE RESPONDENT’S REFUSAL TO REINSTATE TURNER BECAUSE
OF HER FELONY CONVICTION
The Respondent also contends that backpay liability was
tolled on August 27, 2002, when Turner was convicted of a
felony. Specifically, the Respondent contends that it had a pol-
icy precluding the employment or continued employment of
any individual convicted of a felony. That policy, however,

20 (R. Exh. 20–21; Tr. 270, 600–625).
simply lists violations which “may” result in an employee’s
discharge.21
Whether to reinstate Turner after her conviction on a con-
trolled substance-related charge was not an issue of first im-
pression for the Respondent. In 1996, Carol Hudson, a regis-
tered nurse in the Respondent’s medical-surgical department,
was arrested and subsequently convicted of a felony for grow-
ing and selling marijuana from her home. At the time of her
felony drug conviction, the Respondent allegedly had a policy
requiring that employees convicted of a felony be terminated.
Hudson did not report her felony drug arrest to the Respondent
until after she was convicted. After discussing the matter with
Hudson’s attorneys, Bevins investigated the circumstances of
her arrest, spoke with her probation officer, and agreed to retain
Hudson, “with conditions to work by.” Hudson subsequently
resigned in 2002, but that was unrelated to her narcotics arrest
or the related “employment conditions.” Hudson, like Turner,
had been in constant contact with patients. It is noteworthy,
however, while Hudson’s nursing duties included administering
various drugs to patients, Turner’s exposure to controlled sub-
stances as an x-ray technician was limited to administering
contrast dye and a radioactive liquid.22
In addition to Hudson and Turner, during the period of
2000–2007, at least 24 other employees have informed the
Respondent of their abuse of controlled substances. In accor-
dance with its employee assistance policy, the Respondent has
not discharged any of them. Instead, it has provided them with
in-house counseling and, if necessary, drug rehabilitation ser-
vices. Most notably, it is well known that one of the Respon-
dent’s staff physicians is currently enrolled in a drug rehabilita-
tion program, yet continues in the Respondent’s employ and
treats patients on a regular basis.23
Based on the foregoing, the evidence demonstrates that the
Respondent applied its disciplinary policy to Turner in an arbi-
trary and capricious manner. Unlike Hudson’s situation, the
Respondent failed to even consider the circumstances of
Turner’s conviction. Like Hudson, Turner also had an explana-
tion for her dereliction, which she explained to the court in her
plea application. The Respondent, clearly affected by the pend-
ing litigation with Turner, deliberately misconstrued its disci-
plinary policy in order to curtail its backpay liability. Accord-
ingly, there is no legitimate justification for the Respondent’s
refusal to reinstate Turner and provide her with the accrued
backpay.

21 Section 5.0 of policy B.7 became effective on October 1, 1997,
and was apparently still in force as of 2005. (GC Exh. 5.)
22 The versions provided by Hudson and Bevins as to this develop-
ment were consistent. (Tr. 77–87, 119, 479–480; GC Exhs. 4–5, 28.)
23 Given that the Respondent stipulated to these extremely revealing
statistics, I precluded the General Counsel from pursuing unnecessarily
cumulative testimony as to the individual circumstances of each em-
ployee involved. The stipulation also enabled me to avoid inquiry into
the personal circumstances of numerous individuals who approached
the Respondent’s employee assistance program in confidence, while
enabling the General Counsel to establish its point—that the Respon-
dent has a policy of providing its drug-addicted employees with coun-
seling and other rehabilitation services, rather than discharging them.
(Tr. 545–553, 565, 576–581.)
KENTUCKY RIVER MEDICAL CENTER 9
On these findings of fact, conclusions of law, and on the en-
tire record, I issue the following recommended24
ORDER
The Respondent, Jackson Hospital Corporation d/b/a Ken-

24 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
tucky River Medical Center, its officers, agents, successors, and
assigns, shall, consistent with the compliance specification as
modified by the foregoing findings, satisfy the obligation to
make whole Melissa Turner by paying her the amount of
$79,577, together with interest accrued to the date of payment,
as computed in the manner described in New Horizons for the
Retarded, 283 NLRB 1173 (1987), minus tax withholdings
required by Federal and State laws.
Dated, Washington, D.C. February 26, 2008