Oak Ridge Hospital

National Labor Relations Board - Board Decisions

May 25, 1984

270 N.L.R.B. 918 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oak Ridge Hospital of the United Methodist Church
and Dixie R. Hicks and and Service Employees
International Union, Local 150-T, AFL-CIO.
Cases 10-CA-17920 and 10-CA-17639
25 May 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 15 July 1983 Administrative Law Judge
Howard I. Grossman issued the attached decision.
The Respondent and Charging Party Dixie R.
Hicks filed exceptions. The Respondent filed a sup-
porting brief and an answering brief to Charging
Party Hicks' exceptions, and the Union filed a sup-
porting brief and an answering brief to the Re-
spondent's exceptions.
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,2
and conclusions and to adopt the recommended
Order as modified.
We agree with the judge's conclusion that the
Respondent violated Section 8(a)(3) of the Act by
laying off respiratory therapists Ken Provance and
Barbara Coker in retaliation for their union activi-
ties. However, we do so for the reasons set forth
below.
Initially, we note that the Union represents em-
ployees employed at the Respondent's hospital.
The parties' most recent collective-bargaining
agreement is effective from 20 July 1981 through
24 July 1984. On 20 July 1981, certain of the Re-
spondent's Grade 4 respiratory therapists, including
Provance and Coker, filed a grievance requesting
that they be upgraded to a Grade 6 or, alternative-
ly, that their job descriptions be rewritten. In re-
sponse, the Respondent agreed with the Union that
certain respiratory therapists would be provisional-
ly promoted to a Grade 7 subject to their becom-
ing "credentialed" by fulfilling certain educational
criteria within a specific time frame. The Respond-
ent then entered into individual agreements with
I The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
s The Respondent has excepted to some of the judge's credibility find-
ings. 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. However, unlike the judge, we have placed no reliance on
the testimony of Jena Harris.
270 NLRB No. 129
each of the affected respiratory therapists. The
agreements proffered for Coker and Provance each
provided, in pertinent part, that they would be pro-
moted to a Grade 7 but that each must successfully
complete the educational program in which they
were then enrolled no later than 28 February 1982
and that they sit for and pass the first certification
examination for which they were eligible. The
agreement also provided that the failure to fulfill
these requirements would result in a demotion to
Grade 4 assuming an opening then existed. Prior to
signing the agreement, Provance was apprehensive
that he might be signing away his job. The Re-
spondent's manager Stewart3 assured Provance
that this would never happen and that signing was
"strictly a formality" necessary to get everyone up-
graded. The Respondent's personnel director
Vaughn also assured Provance that there would be
no cutback in the work force and that there was
ample work for everyone. Stewart also assured
Coker that nothing would happen to her job and
that the agreement was just a formality. After re-
ceiving these assurances, both Provance and
Coker4 executed their agreements 27 August 1981.
Union President Martha Nelson also cosigned each
of these agreements.
Regarding these employees' union activities, the
record shows that Coker became a union steward
in August 1981. She subsequently filed about 10
grievances and also filed an unfair labor practice
charge in the fall of 1981 which was later with-
drawn. In February 1982 Stewart asked Coker why
she had withdrawn the charge and he told her that
she probably would be going back to the Board in
a couple of weeks because there was a "surprise."
Provance meanwhile had become assistant chief
steward for the Union around September 1981. The
first grievance he filed alleged certain unsafe condi-
tions relative to the Respondent's trash compactor.
In February 1982 a newspaper reported that the
Tennessee Occupational Safety and Health Com-
mission had fined the Respondent for unsafe condi-
tions relative to the compactor. The day after the
newspaper article appeared, Vaughn asked Chief
Steward Wieger whether it was she who was re-
sponsible for it. When Wieger denied responsibility,
Vaughn said "that leaves only Ken [Provance]"
and he told Wieger that the Respondent's vice
president Ralph Lillard was "madder than hell"
about the story.
s In sec. III,C,I of his decision, the judge stated that Stewart became
manager of the Respiratory Therapy Department in July 1980, whereas
the record shows that he assumed that position in July 1981. This inad-
vertent error is insufficient to affect the results of our decision.
4 Coker was then known as Barbara Young.
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OAK RIDGE HOSPITAL
As of 28 February 1982, the date by which
Coker and Provance were to have completed their
schooling, neither admittedly had fulfilled the re-
quirements set forth in the provisional promotion
agreement they had executed. Coker had failed a
required school examination which she then retook
in late February. The test results, however, were
unknown 28 February. Provance had not yet taken
the examination necessary to complete his educa-
tional work, but he was scheduled to take it about
a month later.6
At the end of February, Stewart separately ad-
vised Coker and Provance that there would be a
meeting in Vaughn's office the following Monday,
1 March, and that they would be laid off because
they had failed to fulfill the requirements of their
individual agreements. Provance asked Stewart "if
I was not a union official don't you think this
could be worked out?" Stewart replied, "[Y]es,
probably, but that's it. This is the way it's going to
be." Stewart pointed to a copy of the collective-
bargaining agreement and told Provance, "You
make me stick by this. If I have to live by this you
will live by this [i.e., the promotion agreement]."
In their meeting, Stewart told Coker that if she had
spent more time studying and less time on the
"union shit" she probably would have passed her
test.6 Stewart also told Coker that "you people
have made me live by this little green book [the
collective-bargaining agreement], and I'm going to
make you live by your contract."
At the meeting 1 March, Coker and Provance
were advised that they were being demoted to a
Grade 4 because they had not met the requirements
in their agreements and that they were laid off be-
cause there were no Grade 4 positions available.
Wieger had joined the meeting in progress. She
then was summoned by Vaughn and Stewart into a
separate office where she was offered "a deal," a
"30-day extension." Wieger protested that an exten-
sion would not help anything. Wieger asked them
if they realized what they were doing to the em-
ployees. She told Vaughn and Stewart that Coker
was a good employee even though she had been a
thorn in their side at times. Wieger also told them
that Provance was an excellent employee. Stewart
replied, "I know, but how can I do it to Barbara
without doing it to Ken?" Wieger, Stewart, and
Vaughn then returned to Provance and Coker.
s The judge found that the "examination" which Provance and Coker
had not then successfully completed was the "Certification Examination"
administered by the National Board of Respiratory Therapy. However,
the record shows that the examination in question was that incident to
their course work rather than the national certification exam.
I In sec. III,D,2 of his decision, the judge erroneously attributed these
remarks to Vaughn. This inadvertent error is insufficient to affect the re-
sults of our decision.
Stewart then offered Provance a 30-day extension
of time in which to fulfill his requirements. Pro-
vance rejected this offer because he could not pos-
sibly have fulfilled the requirements within 30 days
and because the Respondent had not made a similar
offer to Coker. Respiratory therapist Dora Bice
also was demoted to a Grade 4 in early 1982 after
she had failed her National Board Test. Bice said
that, in discussing her demotion with Stewart, he
told her that Barbara Coker was a troublemaker
and that he had gotten rid of the troublemaker and
that Bice and Provance "got caught in the
crunch."
In April 1982 the Respondent recalled Provance
to a Grade 4 position and shortly thereafter pro-
moted him to a Grade 7 even though Provance
had not yet received the results of the school test
he had taken earlier. The Respondent offered
Coker a part-time Grade 7 position in August 1982.
She declined because the position offered was out-
side her Grade 4 classification and because it was
part time. Coker subsequently accepted the Re-
spondent's offer of an occasional position.
In these circumstances, we agree with the
judge's conclusion that the General Counsel estab-
lished a prima facie case that the layoffs of Pro-
vance and Coker were motivated by their union
activities and that the Respondent has not rebutted
that case by establishing that they would have been
laid off in the absence of their union activities.
Thus, we note that the Respondent's resentment of
Coker's union activities is evident in Stewart's
characterization of Coker to Bice as a "troublemak-
er." While Provance and Coker appear to have left
themselves vulnerable to being laid off by execut-
ing the individual agreements and then failing to
meet the requirements, we note that Provance and
Coker executed these agreements only after receiv-
ing assurances from Vaughn and Stewart that they
were not jeopardizing their jobs in doing so. More-
over, we note that Stewart virtually admitted to
Provance that something could have been worked
out were Provance not a union official. Since the
Respondent later promoted Provance to a Grade 7
notwithstanding that it was then unknown whether
he had successfully completed his school test, it is
evident that the Respondent attached little impor-
tance to the timely completion of these require-
ments. Rather, the Respondent seized on these
agreements as a means of getting rid of the "trou-
blemaker," Coker, and to retaliate against both her
and Provance's union activities. Thus, we agree
919
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent's layoff of Coker and Pro-
vance was violative of the Act. 7
To more appropriately remedy the violation
found herein, however, we find it necessary to
alter the judge's recommended Order in certain re-
spects. First, we shall not require that the Respond-
ent reinstate Coker to a full-time position at the
Grade 7 level. Rather, we shall require that the Re-
spondent reinstate Coker to a full-time position at
the grade level for which she is qualified. In so
doing, we note that the Respondent, Coker, and
Union President Nelson executed an agreement
stipulating that Coker's employment at the Grade 7
level was contingent on her fulfilling certain re-
quirements. We do not agree that the Respondent
is required to employ Coker at the Grade 7 level
absent her meeting these requirements. We will
leave to the compliance stage of this proceeding
the question of whether Coker is qualified for a po-
sition at the Grade 7 or Grade 4 level.8
The judge also recommended that the Respond-
ent be ordered to delete from its individual promo-
tion agreements with Provance and Coker the re-
quirement that they pass a certification examination
to retain their positions at the Grade 7 level. This
remedy was based on the judge's finding that these
individual agreements were inconsistent with the
general agreement reached with the Union in that
the general agreement did not require the passage
of a certification examination for retention of the
Grade 7. We find it inappropriate to require the
Respondent to alter these agreements. We note
that, while the individual agreements may have
been inconsistent with the general agreement, the
Union apparently had no objection to this since the
Union's president cosigned each of these individual
agreements along with Provance and Coker. More-
over, we note the absence of any allegation here
7 In so doing, we find it unnecessary to rely on the judge's finding that
the Respondent treated more favorably employees Brent, Mitchell, and
Bice than it did Provance and Coker in setting forth the criteria neces-
sary for each of these employees' promotions and retention of their pro-
motions. In this regard, we note that the record shows that Brent, Mitch-
ell, and Bice were not similarly situated with Provance and Coker with
respect to scholastic achievement and experience. Thus, we disagree with
the judge's finding that the evidence is sufficient to establish that the Re-
spondent imposed more stringent criteria on Provance and Coker in set-
ting different requirements for their promotions. However, even absent
evidence of disparate treatment, in this regard, we find ample grounds, as
noted above, to establish that the Respondent seized on the failure of
Coker and Provance to fulfill their requirements as a means of laying
them off in retaliation for their union activities. But, in so concluding, we
also place no reliance on the judge's discussion of the overtime worked
by other respiratory therapists about the time of Coker and Provance's
layoff.
8 Member Dennis agrees that whether Coker should be reinstated as a
respiratory therapist at Grade 7 or Grade 4 should be left to compliance;
she does not agree that Coker's reinstatement at Grade 7 is necessarily
contingent on meeting the requirements of her agreement with the Re-
spondent. The Respondent "attached little importance to the timely com-
pletion of these requirements"; it promoted the other discriminatee, Pro-
vance, before it knew if he had met the same requirements.
that the individual agreements, in and of them-
selves, are unlawful. Rather, the unlawful conduct
found here pertains only to the Respondent's
having seized on these agreements as a means to
lay off Provance and Coker in retaliation for their
union activities. This conduct will be fully reme-
died by requiring the Respondent to reinstate
Coker and to make her and Provance whole for
any losses they may have incurred. In these cir-
cumstances, we find it inappropriate to require the
Respondent to alter these agreements and we shall
delete this requirement from the judge's recom-
mended Order.
Finally, we disagree with the judge's finding that
the Respondent's offer to Provance of a 30-day ex-
tension of time in which to complete his require-
ments was of no benefit to Provance. We note that,
had Provance accepted this offer, he would have
been working and thus earning wages during this
30-day period. Accordingly, Provance's refusal of
the offer may have affected the amount of backpay
required to make him whole for wages lost as a
result of his unlawful layoff. We shall leave to the
compliance stage of this proceeding the determina-
tion of the impact of Provance's refusal to accept
the extension on the amount of backpay to which
he is entitled.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Oak Ridge Hospital of the United Meth-
odist Church, Oak Ridge, Tennessee, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
"(a) Offer Barbara Coker immediate and full re-
instatement to a job at the grade level for which
she qualifies or, if that job no longer exists, to a
substantially equivalent position, without prejudice
to her seniority or any other rights or privileges
previously enjoyed, and make her and Ken Pro-
vance whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against them in the manner set forth in the remedy
section of the decision."
2. Delete paragraph 2(b) and reletter the subse-
quent paragraphs accordingly.
3. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found herein are dismissed.
920
OAK RIDGE HOSPITAL
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT lay off or otherwise discriminate
against any of you for supporting Service Employ-
ees International Union, Local 150-T, AFL-CIO,
or any other union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Barbara Coker reinstatement to
her former position as a full-time employee in our
Respiratory Therapy Department at the grade level
for which she qualifies and make her and Ken Pro-
vance whole for any loss of earnings and other
benefits resulting from our unlawful layoff of them,
with interest added to backpay less any interim
earnings.
WE WILL notify each of them that we removed
from our records all references to their layoffs and
that the layoffs will not be used against them in
any way.
OAK RIDGE HOSPITAL OF THE
UNITED METHODIST CHURCH
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge.
The charge in Case 10-CA-17920 was filed on February
23, 1982, by Dixie R. Hicks (Hicks), and the charge in
Case 10-CA-17639 was filed on March 8, 1982, by Serv-
ice Employees International Union, Local 150-T, AFL-
CIO (the Union). An order consolidating cases and com-
plaint issued on March 28, 1982, alleging that Oak Ridge
Hospital of the United Methodist Church (Respondent),
suspended Hicks on October 28, 1981, discharged her on
December 9, 1981, and laid off employees Ken Provance
and Barbara Coker on March 1, 1982, because of these
employees' union and other concerted activities in viola-
tion of Section 8(aX3) and (1) of the National Labor Re-
lations Act (the Act).
A hearing was held before me on these matters in Oak
Ridge, Tennessee, on November 2 and 3, 1982. On the
entire record, including my observation of the demeanor
of the witnesses and consideration of briefs filed by the
General Counsel, the Union, and Respondent, I make the
following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Tennessee corporation with an office
and place of business located at Oak Ridge, Tennessee,
where it is engaged in the operation of a hospital.
During the calendar year preceding issuance of the com-
plaint, a representative period, Respondent received
gross revenues in excess of $250,000, and, during the
same period, purchased and received at its Oak Ridge,
Tenneessee hospital goods valued in excess of $50,000 di-
rectly from suppliers located outside the State of Tennes-
see. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings establish and I find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union had represented the hospital's employees
for several years. Negotiations for a new contract took
place in early 1981, and a 3-year contract was signed, ef-
fective July 20, 1981 (G.C. Exh. 14). Thereafter, the
Union was placed in trusteeship, and a new chief stew-
ard, Edna Wieger, was appointed in August 1981.
B. Dixie R. Hicks
1. Hicks' employment record
Hicks had been employed for about 10 years. She
started as an occasional employee, working whatever
shift was designated for her, and later became a full-time
licensed practical nurse. She was reprimanded in 1975
for spending too much time with male patients and
drinking too much coffee, and again in 1977 for tardi-
ness. In October 1980, Nursing Supervisor Earline
Brewer reprimanded Hicks for excessive absences from
work and for tardiness without calling the hospital.
Brewer told Hicks that continuation of this conduct
would result in a written reprimand. Hicks agreed with
the accuracy of the charges, but said that tardiness was
common. Brewer again discussed tardiness with Hicks in
January and April 1981.
2. Hicks' union activities
Hicks was made a member of the union negotiating
team in June 1981. She attended about two or three ne-
gotiating sessions. Hicks testified that she was "pretty
verbal" in support of a raise for employees and increased
pay for weekend and holiday work. There were no ne-
gotiating sessions after execution of the contract on July
20.
3. Additional discipline for tardiness
Hicks was late again on June 16. According to a later
performance notice, she was supposed to have been on
921
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duty at 7 a.m., and was called at 7:25 a.m. When Hicks
had not arrived by 8:20 a.m., she was called again, and
she said that she had gone back to sleep. Hicks arrived at
9 a.m. (R. Exh. 6). She was given a written reprimand
and warned that future tardiness would result in suspen-
sion. The employee told Supervisory Nurse Brewer that
she had three alarm clocks and was trying to improve.
On July 1, 1981, Hicks did not arrive at her scheduled
time of 7 a.m. She was called at 7:20 a.m., and she said
that her alarm had not rung because the power was off.
The power company verified this (R. Exh. 6). On July 6,
Hicks called the schedule coordinator and said that she
would not be in the next day without giving a reason.
According to Brewer, Hicks had requested the day off,
and the request had been denied. Brewer called Hicks
the next day, July 7, and the latter said that she had an
upset stomach.
Hicks was scheduled to work on July 26. She testified
that she was too ill to work, and tried to call but could
not get a supervisor. After 15 minutes, she hung up.
Hicks told her daughter to call later in the evening. Su-
pervisory Nurse Brewer testified that a book in the
scheduling office revealed that no call had been re-
ceived. Hicks provided a doctor's excuse from one of the
hospital doctors. It is on a preprinted form with the
heading, "The Oak Ridge Hospital." The form indicates
Hicks as the patient and is dated August 8, 1981. It
reads, "Excuse from work July 26, 27 1981." The origi-
nal dates were July 27 and 28, but these were crossed
out and the indicated dates written in (G.C. Exh. 7).
Nursing Supervisor Brewer testified that she spoke to
the doctor, who said that he had not seen Hicks. The
latter asserted that the doctor denied making the state-
ments attributed to him by Brewer. As a result of this in-
cident, Hicks was suspended for 3 days without pay. She
also acknowledged having been told that she had been
tardy 28 times in the first 21 weeks of the year, on of
such occasions more than 1-1/2 hours late (R. Exh. 6).
Nursing Director Vicki Moore testified that Hicks was
late on October 28 without calling in to the scheduling
coordinator. The unit secretary who initiated the inquiry
was Edna Wieger, the union steward. The scheduling co-
ordinator told Moore that Hicks had been persistently
tardy over a long period of time. Moore pulled Hicks'
timecards, and reviewed Nursing Supervisor Brewer's
previous discipline of Hicks. According to Moore, the
timecards showed that Hicks had been late six times
since the last reprimand and suspension. Moore then di-
cussed the matter with the hospital vice president Eliza-
beth Cantwell, and the decision was made to suspend
Hicks for 2 weeks (10 working days). Accordingly,
Hicks was given a 10-day suspension without pay on Oc-
tober 28 (R. Exh. 8). Hicks said that she did not remem-
ber whether she had been late six times since her last sus-
pension, but agreed that she was 20 minutes late on Oc-
tober 28. This suspension is alleged by the complaint to
have been unlawful.
Nursing Supervisor Brewer testified that Hicks was 22
minutes late her first day of work after the 10-day sus-
pension, and was also late on the third such day. Brewer
had a counseling session with Hicks and union steward
Wieger on November 17, 1981, at which time Hicks was
reprimanded and informed that she would be discharged
if she was late more than once a month. The reprimand
reads, "This action is being taken because you have re-
ceived a verbal reprimand, a written reprimand and two
suspensions for your unacceptable behavior regarding
your promptness on scheduled working days. After the
last suspension you were 22 minutes late the first sched-
uled day back to work and 6 minutes late on the third
day." (R. Exh. 7.) According to Brewer, Hicks replied
that the supervisor was "picking on her." Hicks testified
that she was late the first day after her 10-day suspen-
sion, although she did not recall being late the third day.
She contended that she "agreed" with Brewer that her
lateness was "wrong, totally wrong, and there was no
excuse for it." Nonetheless, Hicks filed grievances alleg-
ing "harassment," and I conclude that she complained
that Brewer was "picking on her."
4. The patient care incidents
a. The paralyzed patient
Nursing Director Vicki Moore testified that she had a
patient who had suffered a stroke, and who was partially
paralyzed. Moore received a complaint from the patient's
family regarding the quality of nursing care which the
patient was receiving, and went to investigate about Oc-
tober 20, 1981. Moore asserted that Hicks was adminis-
tering oral medication with the bed at a 20-degree angle,
thus being in a position which was not conducive to
swallowing. The patient actually coughed, according to
the nursing director. There were some orange slices on
an overbed table, and Hicks asked the patient whether
she wanted any. The patient nodded affirmatively, and
Hicks then pulled the table over the bed, and took the
patient's right arm-the only one she could use-out of
the covers. Hicks then said she was going to lunch. As
she was leaving the room, Moore said that she would
feed the orange slices to the patient. Hicks walked back
into the room and commented that Moore would have to
raise the bed because the patient had difficulty swallow-
ing. Moore assisted the patient with the orange slices.
Moore and Brewer later reprimanded Hicks for adminis-
tration of the medication in an unsafe position, which
might have caused the patient to choke to death, and for
inconsiderate treatment for failing to assist the patient in
eating the orange slices.
Hicks' version of these events is not inconsistent with
Moore's and Brewer's. Although she contended that she
pushed the table with the orange slices over to the pa-
tient because she heard the lunch trays coming down the
hall, she acknowledged that the patient could not feed
herself.
b. The Ollie Henderson case
There are two incidents involving a patient named
Ollie Henderson. Brewer testified that the patient was re-
ceiving an antibiotic medication, but that the dosage re-
quired constant monitoring because it was potentially
dangerous. According to Brewer, the attending physician
changed the medication order on December 3, 1981. The
order was "checked off" by Hicks, but the latter failed
922
OAK RIDGE HOSPITAL
to destroy the old medication card according to custom-
ary practice. Accordingly, Henderson received medica-
tion the following day from another nurse, which was
contrary to the physician's orders.
Hicks' version of this incident is not entirely clear.
Asked whether she had been accused of failing to follow
procedure in tearing up an old medicine card, Hicks tes-
tified as follows:
No, it was my card, really. The R.N.'s do the I.V.
therapy. And I did sign off the order because Mary
Oaks was busy. And she had the old I.V. card. I
don't know where she had it. I pushed the chart to
her, and I said, "Mary, sign this off. It's on Mr.
Henderson." And she was busy doing something.
And I thought "Well, I can sign if off." So I . . .
red lined it and put my name. And then I gave her
the new I.V. card. I had no idea what happened to
the old one. I did not have it because I did not give
that medication.
Hicks first denied and then admitted that the nurse
making up a new medication card has an obligation to
destroy the old card in order to avoid unprescribed
medication. However, she asserted that she did not have
the old card, and did not know where it was. In a later
written reprimand of Hicks, Brewer asserted that she had
talked to "Oaks," and that the latter stated that, since
Hicks had given her the new card, she did not think
about destroying the old one. (G.C. Exh. 6.)
On the basis of this evidence, I infer that it was cus-
tomary practice for the nurse making up a new medica-
tion card to destroy the old one in order to avoid admin-
istering discontinued medication. I also infer that Mary
Oaks was a registered nurse (RN) and was administering
intravenous (IV) medication to Henderson pursuant to a
medication card. Hicks volunteered to prepare a new
card when the revised medication order came down, but
did nothing about destroying the old card, which Oaks
had. The latter also failed to destroy the old card. As a
result, the patient received unprescribed medication from
another nurse the next day.
Brewer also testified that Henderson was depressed,
and that there was a written nursing order stating that he
was to be attended at meals and encouraged to eat. Al-
though meal trays are served by various individuals, it is
the responsibility of the assigned nurse to provide eating
assistance if required. On December 7, a few days after
the medication incident, according to Brewer, she en-
tered Henderson's room shortly after 8 a.m. and found
him flat on his bed with his breakfast tray on the bedside
table away from the bed. Hicks agreed that Henderson
had been assigned to her that day. Brewer assisted Hen-
derson in eating, and then checked with the team leader,
a registered nurse. Brewer determined that Henderson
was Hicks' responsibility and testified that she found
Hicks smoking a cigarette and drinking coffee in the
nurses lounge. Brewer assumed that Hicks was on an
early break, which had been authorized provided that
Hicks had taken care of her duties.
Hicks agreed that she was in the lounge, but denied
that she was on a break or was smoking or drinking
coffee. Instead, she was reading a magazine, waiting for
a telephone call from the laboratory with respect to an-
other patient who was scheduled for surgery. Hicks said
that she went back to Henderson's room, and saw
Brewer preparing him for breakfast. Although Hicks
agreed that it was not normally the function of the nurs-
ing supervisor to feed patients, she asserted that Brewer
did help patients, and that it was not unusual to see her
in the patients' rooms.
Brewer on cross-examination agreed that she did not
know whether Hicks was waiting to prepare another pa-
tient for surgery. However, she denied that there was a
telephone in the nurses lounge, and asserted that it was
in the nursing station. If true, this would make it unlikely
that Hicks was waiting for a call about another patient.
I conclude that a nursing order required that Hender-
son be assisted in eating, that he was assigned to Hicks,
and that it was her responsibility to provide him with
eating assistance. I also conclude that she did not assist
him on the day in question, and did not arrange for an-
other nurse to do so.
5. Hicks' reprimand and discharge
Brewer returned to the lounge and asked Hicks to ex-
plain why she had not fed Henderson. According to
Hicks, she said that she was waiting for a telephone call
about a surgical patient. According to Brewer, Hicks re-
plied that she had not served Henderson his tray.
Brewer then prepared a written reprimand dated De-
cember 7 based on Hicks' failure to destroy the old
medication card and her failure to provide assistance to
Henderson in eating (G.C. Exh. 6). She presented it to
Hicks. The latter had already prepared another griev-
ance based on "harassment," and had it in her purse. Ac-
cording to Hicks, she put the grievance on top of the
reprimand and said, "Well, if you're going to do that,
then I have to do this." "What's that?" Brewer asked.
"It's a bunch of bullshit for you to tell me after all these
years of nursing that I'm not a good nurse," stated
Hicks. She further stated, "I do my work and I work
hard." Brewer then left, according to Hicks. Brewer's
version is simply that Hicks threw the reprimand down
on Brewer's desk and said, "This is a bunch of bullshit,"
and that it was Hicks who left. Hicks said that use of the
word "bullshit" was not uncommon among the nurses.
Brewer reported this incident to Respondent's vice
president Elizabeth Cantwell, who decided to discharge
Hicks. Cantwell testified that she made this decision be-
cause all other methods, including counseling and sus-
pension, had not been successful, and that matters
seemed to be getting worse. Her reaction when Brewer
reported Hicks' "bullshit" remark was that the "word
epitomized how Ms. Hicks felt about her employer and
her work. Judging by her behavior, I thought that that
said it. And I didn't think we needed her on the staff."
Cantwell then discharged Hicks on December 9, 1981,
in the presence of Brewer and chief steward Wieger. Ac-
cording to Brewer, Cantwell told Hicks that her attitude
toward the hospital was that expressed in her remark to
Brewer, and that there had been no improvement in her
behavior. Brewer denied that any of the discipline ad-
923
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ministered to Hicks had been caused by her union activi-
ties.
C. Ken Provance and Barbara Coker
1. Respiratory therapy
Prior to July 1980, respiratory therapy at the hospital
had been performed by an outside contractor.' The hos-
pital started performing the service itself in that month,
and acquired the contractor's staff, including Ken Pro-
vance and Barbara Coker.2 At the same time Michael
Stewart became manager of the Respiratory Therapy
Department.
2. The classification grievance
The hospital too!k over the contractor's employees at
their existing rates of pay. The new contract provided
that employees would be classified in accordance with
their skills and paid accordingly (G.C. Exh. 14, art. 31).
Provance testified that there were three classifications of
respiratory therapists, but that all were required to do
the same work and that they were underclassified. Pro-
vance and others considered this to be unfair and filed a
grievance on July 21, 1981. It argued that noncreden-
tialed O.J.T. (on-the-job training) therapists, then classi-
fied at Grade 4, should be raised to Grade 6, and that the
job classifications should be rewritten (G.C. Exh. 8). In
response, the hospital proposed three classifications-a
Grade 4 respiratory therapy technician-II, who was re-
quired to have a high school diploma (R. Exh. 55); a
Grade 7 respiratory therapy technician-I, who was re-
quired to have completed an accredited school of respi-
ratory therapy or its equivalent (R. Exh. 57); and a
Grade 9 respiratory therapy supervisor (R. Exh. 56).
These were basically upgradings of the prior job classifi-
cations. Stewart testified that the principal change was
the requirement that only "credentialed" therapists be
permitted to handle acute care patients in the intensive
care unit. Since only Grade 7's and above were consid-
ered "credentialed," this meant that Grade 4 employees
could not work alone in that unit without supervision, al-
though they had done so previously. This new policy
was not mandated by any state or Federal regulation.
3. The Provance and Coker promotion agreements
a. Summary of the evidence
On August 25, 1981, Respondent's personnel director
Larry J. Vaughn wrote union official David Jackson a
letter proposing the provisional promotion of employees
Ken Provance, Barbara Young (Coker), Gary Riggs, and
Craig Brent from Grade 4 to Grade 7. The letter reads
in part as follows:
Also attached is the notice of promotion which
gives specific details. It is also agreed that if the
current employees who are provisionally promoted
do not become successfully credentialed within the
' Bu-Edri and Associates.
Coker had remarried by the time of the hearing, and her last name
was then Young.
period of time specified in their notice of promotion
they will be reduced to the position occupied at the
date of this agreement provided it still exists and is
vacant.
The attachment referred to in the letter reads as follows:
In order for current Respiratory Therapy employ-
ees to be promoted to Certified Respiratory Thera-
pist (G 7) they must meet the following criteria:
1. Be an employee of the Respiratory Therapy
Department as of August 24, 1981.
2. Be enrolled in a recognized Respiratory Ther-
apy program as of August 24, 1981 and be actively
pursuing completion of the program. Employees
must complete their program within the time limit
established in their promotion notice.
3. Must sit for and successfully pass the certifica-
tion exam the first time it is offered following com-
pletion of their educational program.
It should be understood that employees who
don't satisfy items I and 2 above will be demoted to
their former position (G 4) if it still exists.
The letter itself is signed by Personnel Director Vaughn,
for the hospital, and Martha Nelson, acting president of
the Union (R. Exh. 47).
A few weeks later Provance and Coker were asked by
Respondent to sign documents reading as follows:
Your promotion from grade 4 to 7 is mutually
agreed to be based on the following criteria:
i. That you continue in the C.C.R.T. program in
which you are currently enrolled and successfully
complete the program no later than February 28,
1982.
2. That you sit and successfully pass the first
N.B.R.T. certification exam in which you are eligi-
ble often [sic] the date in provision one above.
3. In the event provisions 1-2 are not met at the
appropriate time you will be reclassified to grade 4
and assuming an opening is present, with a change
in pay and clinical duties. [G.C. Exhs. 12 and 15.]
Provance testified that he told Department Manager
Stewart that he would not sign the document because of
the way it was worded. As Provance put it, he might be
"signing away [his] job." Further according to Provance,
Stewart assured him that it was "strictly a formality, and
it was just the process that they had to go through to get
us all upgraded." Provance was not satisfied because
Stewart was new on the job, and went to Personnel Di-
rector Vaughn with the same complaint about the lan-
guage of the agreement. According to Provance, he re-
ceived the same assurances from Vaughn-there was
ample work for everybody and there would be no cut-
back in the force. The document was simply a necessary
process in order to promote the employees. Provance
went back to Stewart a second time and received the
same information. The department manager asked Pro-
vance to persuade Coker to execute an agreement be-
cause she also had refused to sign. Provance repeated
924
OAK RIDGE HOSPITAL
these assurances to Coker, and both employees signed
the agreement on August 27, 1981, as did Martha
Nelson. (G.C. Exhs. 12 and 15.) Provance and Coker
were immediately promoted to Grade 7.
Coker testified that she had a similar conversation
with Stewart. She told the department manager that she
would not sign the agreement, and he replied that it was
just a means of upgrading the employees and that noth-
ing would happen to their jobs. Coker finally did sign
because Provance told her he had received assurances
from Vaughn.
Stewart testified on direct examination that Provance
in a group discussion asked him what would happen if he
did not meet the terms of the agreement, and that Stew-
art replied, "Well, you know, you've got six months
here, and I can't predict where we're going to be staffing
wise. I don't know if any grade four's will resign." If
they did not resign, Stewart added, "then that would be
a problem." On cross-examination, Stewart first admitted
that he told Provance that signing the agreement was
"just a formality." He was asked whether he told them
that they would be laid off if they did not meet the con-
tract requirements and no Grade 4 position was avail-
able. "That's what the document says," Stewart an-
swered. Asked the same question, Stewart repeated the
same answer, and finally denied having any conversation
with Provance and Coker other than, "Let's come in
here ... and get this thing signed up."
Vaughn testified that Provance "dropped in" to ex-
press some "concerns" about the contract language. The
personnel director replied that the language "wasn't
really all that uncommon," that it was in the collective-
bargaining agreement, and that there was not much of a
history of layoffs although there had been a few. He said
that Provance should have ample time to complete the
program, and that the hospital would be amenable to an
alternative deadline in the event of an emergency such as
an accident or serious illness. Vaughn denied that there
was any discussion about failure to meet the terms of the
agreement absent an emergency.
b. Factual analysis
The hospital's letter to the Union dated August 25 and
its attachment are ambiguous. The letter states that em-
ployees who do not become "credentialed" within the
time period specified in their notice of promotion will be
reduced to their former position provided that it is still
available. The issue is whether the word "credentialed"
means only passing a course in respiratory therapy, or
also means passing the certification examination conduct-
ed by the National Board of Respiratory Therapy
(NBRT). The attachment tends to clarify this ambigui-
ty-the demotion will take place if the employee fails to
meet conditions I and 2, i.e., continued employment in
the Respiratory Therapy Department and enrollment in a
recognized respiratory therapy program plus completion
by a specified date. Successful passing of the certification
examination is not specified by the attachment as a con-
dition for maintenance of Grade 7.
The attachment is consistent with Respondent's deter-
mination of the Grade 7 criteria in its response to the
classification grievance, which response upgrades former
Grade 6 and merely requires completion of a course in
an accredited school of respiratory therapy (R. Exh. 57).
Under private law principles, ambiguity in a document is
resolved against the individual who prepared it-in this
case Respondent. This precept is all the more applicable
in the field of public law, where the document in ques-
tion is one prepared by an employer and affects the
rights of employees. Accordingly, I find that Respondent
and the Union agreed that employees indicated in the
hospital's letter were to be provisionally promoted to
Grade 7 so long as they remained employed in the de-
partment and successfully completed their schooling
within the time frame set forth in the individual promo-
tion notice. They were not required to have passed an
NBRT examination.
It is clear that the promotion agreements presented to
Provance and Coker were more rigorous than the agree-
ment between the hospital and the Union because failure
to pass an NBRT examination was made a ground for
demotion to Grade 4.
Stewart's testimony is both contradictory and evasive.
After admitting that he said signing the contract was just
a "formality," he denied having any conversation about
it. Vaughn's denial that there was any discussion about
the effect of Provance's failure to meet the terms of the
agreement, absent an emergency, is incredible in light of
the fact that Provance was afraid he would be "signing
his job away." It is also improbable that Provance and
Coker would have signed the agreement without express
assurances. They were credible witnesses, and I accept
their testimonies that the hospital management assured
them that their jobs would not be put in jeopardy if they
signed the agreements.
4. Provance's and Coker's union activities-
Respondent's reactions
Coker had been discharged in August 1980, a month
after the hospital's takeover of the respiratory therapy
program from the contractor. She filed an unfair labor
practice charge and was reinstated pursuant to a settle-
ment agreement. She filed other charges in late 1981, but
these were withdrawn.
Coker became a union steward in August 1981, and
filed about 10 grievances involving contract disputes.
Edna Wieger, who became chief steward in August, tes-
tified that the filing of grievances was new compared to
the absence of such activity under her predecessor as
chief steward. On a few occasions, Wieger testified,
Stewart said that he could not understand why the
Union was starting a new practice of filing grievances.
Employee Dora Bice filed grievances in her own behalf,
and testified that Stewart said the hospital would not
have had any problems if it had not been for the Union.
Provance became assistant chief steward in September
1981. The first grievance which he filed involved porters
in the housekeeping department. They were required to
enter an electrified trash compactor without safety pre-
cautions or protective clothing. Charges were filed
against Respondent by OSHA, Provance stated, and the
hospital was investigated by health authorities. A griev-
ance was filed but was "getting nowhere," according to
925
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Provance. A newspaper story appeared on February 10,
1982, stating that the Tennessee Occupational Safety and
Health Commission had fined the hospital $315 in con-
nection with the incident, and that the hospital had ap-
pealed.
Provance testified that he had nothing to do with the
article. Coker affirmed that Personnel Director Vaughn
asked her whether she knew who had written the article.
Coker denied knowing this. Chief steward Wieger testi-
fied credibly that she had a conversation with Vaughn
the day after the article appeared, and that he asked her
whether she had put it in the paper. Wieger denied it,
and Vaughn said, "That leaves only Ken [Provance]."
Wieger denied that Provance was responsible. Vaughn
stated that Vice President Ralph Lillard was "madder
than hell" about the story, according to Wieger.
Provance filed other grievances pertaining to employ-
ee vacations and holiday time. A few weeks after the
newspaper incident, Stewart called him in and said that
he was being "written up for abuse of sick time." When
Provance said that he did not understand, Stewart ex-
plained that he had examined Provance's records before
the latter became a hospital employee, and that he had
had an excessive number of sick days-more than three
per year. Provance explained that the prior clinical man-
ager had encouraged employees to claim sick time when
"things were slack," but he received a written reprimand
nonetheless. Coker was also reprimanded in September
1981 for abuse of sick leave, although she was actually
hospitalized part of the time.
5. Testimony of Jena Harris
a. Summary of the evidence
Jena Harris was a Grade 9 supervisor in the Respirato-
ry Therapy Department, having been hired by the hospi-
tal in August 1981. She attended about two supervisory
meetings, and testified that Department Manager Stewart
said that Coker and Provance were causing a lot of trou-
ble by filing grievances. Harris also testified that she at-
tended a seminar in Atlanta with Stewart and Supervisor
Debra Cox. There was additional discussion of the
"problems" Coker and Provance were causing the hospi-
tal, and either Stewart or Cox said that the hospital
"needed to get rid of them."
Supervisor Debra Cox testified that she took an auto-
mobile trip to Atlanta during the last weekend in Febru-
ary 1982, together with Stewart and Harris. She denied
hearing Stewart refer to Coker or Provance as trouble-
makers, or saying anything in particular about either em-
ployee. Stewart, however, admitted having conversations
during this trip "involving all department employees."
Asked to specify how the conversations related to Pro-
vance and Coker, Stewart replied: "Just that we've got
people in the department that seem to resist change quite
a bit, and who don't want to seem to see the benefits of
what we're trying to do as. . . a whole."
Respondent attacks Harris' credibility on the ground
that she was biased. Cox became assistant department
manager in March 1982, and testified that she reprimand-
ed Harris. The first such "reprimand" is a memo from
Cox to Harris dated May 18 recording a prior discussion
of Harris' "poor attitude" in response to another memo,
together with Harris' denial thereof and assertion of a
heavy workload (R. Exhs. 38 and 39). Another memo of
the same date asserts that Harris failed to complete an
order, together with Harris' response that another em-
ployee had already completed it but that it had not been
filed (R. Exhs. 40 and 41). Another memo of the same
date complains about the failure to complete a "shift
report," together with Harris' reply (R. Exh. 42).
Respondent introduced a memo written by Stewart
dated September 8 reciting Harris' alleged supervisory
shortcomings, together with a demotion to staff assistant
at Grade 7 or 9 depending on her response (R. Exh. 43).
Cox said that the hospital's action was the result of em-
ployee complaints about Harris as well as her failure to
perform supervisory duties. According to Stewart,
Harris read the memo and told him to "cram it up his
ass." She walked out and slammed the door (R. Exh. 43).
Cox asserted that Harris said she would tear Stewart and
Cox to "shreds," and he could take the writeup and the
job and "cram it up his ass," and that she left and never
came back. Stewart corroborated this evidence stating
that Harris said she would consult with her husband
about "appropriate action."
Harris gave a somewhat different version of her tenure
at the hospital. She testified that she had a conversation
with Cox in which the latter expressed an opinion that
Harris was interested in joining the Union. If Harris did
this, Cox added, "the administration would not look
kindly on her." Thereafter, according to Harris, she was
"harassed and badgered" to the point that she quit. She
denied that she had received any "reprimands," although
she acknowledged two or three "oral discussions" and
the fact that some employees may have made complaints
about her as a supervisor.
Harris' version of the last interview is also different
from that presented by management. According to
Harris, Stewart said that he was dissolving the day-shift
and night-shift supervisors, and offered her a position as
staff therapist. Harris denied being told that she had been
demoted, and was not asked on cross-examination wheth-
er she had ever read Respondent's Exhibit 43 announcing
her demotion, as Stewart asserted was the case. Harris
also denied telling Stewart that she would cause him all
the trouble she could-instead, she averred, she asked
Stewart to specify her "forum of grievance."
b. Factual analysis
Respondent's evidence attacking Harris' credibility
itself presents credibility issues. Harris candidly admitted
the possibility of some shortcomings as a supervisor. Her
denial that she had ever been "reprimanded" is tempered
by her acknowledgment of "oral discussions." The evi-
dence of the final interview is inconclusive, particularly
in light of the fact that Harris was never asked whether
she had read Stewart's memo "demoting" her. Her testi-
mony that Cox expressed concern about Harris' joining
the Union is unrebutted. In sum, Respondent's evidence
is insufficient to establish that Harris was an unreliable
witness.
926
OAK RIDGE HOSPITAL
On the substantive issues, Harris' testimony that Stew-
art said Coker and Provance were causing a lot of trou-
ble by filing grievances is unrebutted, and corroborates
similar testimony from Wieger and Bice. I also credit her
testimony that Stewart or Cox, during an automobile trip
to Atlanta, said that the hospital "needed to get rid of"
Provance and Coker. I note that Respondent's witnesses
gave contradictory versions. Cox denied any conversa-
tion about Coker and Provance whatever, while Stewart
admitted saying that they "resisted change quite a bit."
Harris had the demeanor of a truthful witness, and her
averments have greater probative weight than Respond-
ent's contradictory evidence.
6. Coker's and Provance's status under the
promotion agreements-Coker's conversation with
Stewart in February
Coker had been allowed to take the NBRT certifica-
tion examination, from which fact I infer that she had
completed a course in respiratory therapy-the NBRT
did not allow an applicant to sit for this examination
without having completed a recognized course. Coker
failed the NBRT examination in late 1981, and took it a
second time in early 1982. The results of the second ex-
amination had not been received at the time of her layoff
on March 1. Provance was scheduled to take the exami-
nation for the first time on March 29.
As noted above, Coker filed charges against Respond-
ent in late 1981, which were withdrawn. During Febru-
ary 1982 as she was cleaning equipment, Stewart ap-
proached her and a conversation ensued. According to
Coker, Stewart first asked her why she had dropped her
charges filed with the Board, and Coker replied that she
thought it best after talking to Vaughn. Stewart asked
what she thought would have come of them, and Coker
replied that she did not know.
Coker had had experience with blood gas studies, and
had requested documentary proof of this from the hospi-
tal in order to forward them to the State. This was re-
quired of individuals who did blood analysis work. Ac-
cording to Coker, she asked Stewart for these documents
during this conversation, and he replied that she would
not be needing them. Coker asked for an explanation, but
Stewart gave none. Instead, he returned to the subject of
the withdrawn charges, and finally said, "Well, it's no
matter. You'll probably be going back to the Board in a
couple of weeks." Coker asked, "Why?" and Stewart re-
plied that it was a "surprise."
Stewart acknowledged having a conversation about
this subject with Coker, but gave a different version of
it. According to the department manager, Coker's docu-
ments on blood work were being processed, and he told
her that he would take care of the matter. He denied
telling her that it would not make any difference wheth-
er the documents were forwarded.
Coker's testimony was not completely denied by Stew-
art-in particular, her averment that he inquired about
the withdrawn Labor Board charges, and said that there
would be a "surprise" and that she would be "going
back again." Coker was a more reliable witness, and I
credit her version of this conversation.
7. Stewart's meetings with Provance and Coker on
February 26
a. Summary of the evidence
Provance testified that Stewart called him into the
office on the last weekday of February (Friday, Febru-
ary 26, 1982), and announced that there would be a
meeting the following Monday at which the hospital
would have to lay off Provance. The latter asked the
reason, and Stewart answered that Provance had not
lived up to the terms of the promotion agreement. "Mi-
chael," Provance protested, "you assured me that noth-
ing would ever come of this." Stewart then pointed to a
copy of the union contract and said, "You make me stick
by this. If I have to live by this, you will live by this"
(gesturing toward the promotion agreement). "Michael,"
Provance replied, "if I was not a union official or officer,
don't you think this could be worked out?" "Yes, prob-
ably," Stewart answered, "but that's it. This is the way
it's going to be."
Provance informed Coker about this conversation, and
the latter also had a discussion with Stewart on the same
day. He told her that he was going to lay her off because
she had not fulfilled the requirements of the promotion
agreement. Coker protested, "But you told us that it
wouldn't have anything to do with us being laid off, that
there was always plenty of work for grade 4's. There
was no lack of work around here." According to Coker,
Stewart replied, "I know what I said. You people have
made me live by this little green book [the union con-
tract], and I'm going to make you live by your con-
tract." Stewart added that "one of them [the two agree-
ments] had to go," and told Coker to come to a meeting
the following Monday. During this interview, Coker in-
formed Stewart that she had failed her first examination,
but that she had taken it again.
Stewart agreed that he had similar conversations with
Provance and Coker toward the end of February. Pro-
vance protested about being "caught up in the mess,"
and Stewart replied that he had "this book to live by.
And this agreement [the promotion agreement] is simply
an extension of that book. I honor my end of it. You
have to honor your end of it." Stewart affirmed that he
said maybe something could be worked out at the meet-
ing on Monday.
b. Factual analysis
Stewart's testimony about requiring adherence to the
promotion agreement, because of the requirement that he
abide by the union contract, corroborates the testimonies
of Provance and Coker. Stewart did not deny Provance's
testimony that he said the matter might be adjustable if it
were not for Provance's position as a union official, and
I credit that testimony.
927
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. The layoffs
a. Summary of the evidence
(1) The March I meetings
Provance and Coker attended a meeting in Personnel
Director Vaughn's office at 11 a.m. on March 1. Also
present were Department Manager Stewart, union busi-
ness agent Glenn Girby, and chief steward Edna Wieger.
Vaughn stated that he passed out copies of the classifica-
tion grievance and the settlement which had been agreed
on by the parties. According to Provance, the manage-
ment officials told him and Coker that they would have
to demoted to Grade 4 because they had not complied
with the promotion agreement, and then laid off because
there was no Grade 4 work available. Provance protest-
ed that he had seniority over other Grade 4's.3 Vaughn
became "very upset," according to Provance. "You
don't have any seniority," he said. "What about bumping
rights?" Provance asked. "Well," Vaughn responded,
"I'll tell you about your bumping rights, Mr. Provance.
You're out the door, buddy, and you've got no re-
course." Vaughn corroborated this testimony.
Provance testified that Vaughn, Stewart, and Wieger
left the room, and later returned. Stewart told Provance
that he would like to offer him a 30-day extension on his
contract. Provance (or Wieger) replied that this would
not do him any good because he was not scheduled to
take the examination until March 29, and there was no
possibility that he would receive the results the follow-
ing day. Provance also rejected the offer because it had
not been offered to Coker, and was, therefore, unfair,
and gave this an additional reason to the hospital au-
thorities. He and Coker then got their pink slips laying
them off because there was "no vacancy or work for R.
T. (O.J.T.)," i.e., Grade 4 (R. Exh. 1).
Coker also testified that Vaughn laid her off because
of "lack of work." She affirmed that Stewart told her
she probably would have passed her certification exami-
nation if she had spent more time studying "and less time
on all this 'union shit."' Coker denied that she was of-
fered an extension of time to fulfill the requirements of
the promotion agreement.
According to Stewart, Kirby protested that the hospi-
tal was taking this action against Provance and Coker
because of their union activities. The hospital officials
denied it. Stewart asserted that he persuaded Vaughn to
give both employees an extension of time. According to
the department manager, he and Vaughn then had a sep-
arate meeting in another office with chief steward
Wieger, at which he instructed Wieger to go back and
offer Provance and Coker a 30-day extension in which to
fulfill the promotion agreement requirements. Stewart
contended that Wieger "then proceeded to go into the
room. They closed the door. I don't know what was
I The collective-bargaining agreement provided that in the event of a
reduction in force seniority should have "some weight," but could not be
applied strictly if it would "adversely affect operations." It further pro-
vided, "In the event of layoff, the first consideration will be to maintain
the working force at its most efficient level. If skill and ability are relative-
ly equal, seniority within the classification will govern [emphasis added]."
(G.C. Exh. 14, art. 20.)
said. She [Wieger] came back out. And she said, 'No,'
that they were not going to take the extension." Accord-
ing to Stewart, he and Vaughn then returned to the prin-
cipal meeting room, where Vaughn "looked at Ken" and
said that he did not understand "why you don't want to
do this." Provance replied that he was rejecting the ex-
tension on the advice of business agent Kirby, and could
not complete the requirements within 30 days. Stewart
denied that Provance said anything about the extension
not having been offered to Coker. Stewart asserted that
he told Provance he could "live with the extra few
weeks it's going to take to get your results back." Pro-
vance, however, denied that Stewart gave him any more
time beyond the 30 days.
Vaughn's testimony is similar to Stewart's. The latter
persuaded him to make an offer of a 30-day extension to
Provance and Coker, and Wieger was then called into
the separate meeting. The offer was made twice to the
employees, first by Wieger. She returned to the special
meeting room to inform the hospital authorities that the
offer had been rejected. Stewart and Vaughn then went
to the general meeting room where the personnel direc-
tor expressed his surprise at the rejection. At this time
Provance spoke up. Vaughn contended that Provance
and Coker were sitting side by side, but agreed that he
did not name Coker specifically when making the offer.
Chief steward Wieger gave a version different from
that of the hospital authorities. She arrived 30 minutes
after the general meeting had begun because of hospital
policy which denied her attendance at such meetings
except during her lunch hour. She was informed of the
classification grievance, the settlement, and the fact that
neither Provance nor Coker had yet passed their certifi-
cation examinations. The steward told Vaughn that she
saw no problem-"They're grade four. Is that not
right?" "Well," the personnel director replied, "we have
no openings in grade four, so these people are going to
be laid off." "I can't understand that," Weiger respond-
ed. She continued, "It's 11:30 now, and they were work-
ing up until eleven o'clock in the hospital. They were
functioning. And now, at 11:30, there's no room for them
and they can't function." "We don't need grade four's,"
Vaughn answered, "and there's no room for grade
four's."
Continuing with Wieger's account, Stewart and
Vaughn then left the office, and a few minutes later
called her into another office. They offered her "a deal,
a 30-day extension." Wieger replied that this would not
do any good because Coker's test results were not back
yet, and Provance was not scheduled to take his exami-
nation until the end of March. Provance's status consti-
tuted her principal objection. "Do you realize what
you're doing to these employees?" Wieger asked Stewart
and Vaughn. She continued, "They're both good em-
ployees. Barbara's a good employee. I realize she's been
a thorn in your side at times, but she's a good employee.
And Ken's an excellent employee."
According to Wieger, Stewart replied: "I know, but
how can I do it to Barbara without doing it to Ken?"
Stewart denied at the hearing that he was "that stupid"
to make such a statement.
928
OAK RIDGE HOSPITAL
On cross-examination, Wieger specifically denied that
she made an initial transmission of the offer to the em-
ployees. Instead, she went back to the principal meeting
room followed by the hospital officials. Stewart was the
last one into the office, and he then changed his offer by
making it only to Provance. Stewart "stood directly in
front of Ken Provance," according to Wieger, "and he
looked right at Ken and said, 'Ken, I'm offering a 30-day
extension."' Provance replied, "I won't go for that.
We're in this together. If one goes, we both go. It's not
fair to do one one way and one the other."
Wieger denied hearing Stewart tell Provance he was
willing to wait until the latter's test results were back.
She affirmed that Provance said to Stewart: "Now,
Mike, you know darn right well it's my union involve-
ment and my activities with the union. If I wasn't so
active in the union, this all wouldn't be happening."
Stewart replied, according to Wieger, "You're probably
right." Wieger's testimony on this issue was corroborated
by Coker.
(2) The grievance, the charge, and the newspaper
article
Two days later, on March 3, the Union filed the unfair
labor practice charge and a grievance (G.C. Exh. 1(c);
C.P. Exh. 2).4 On the same date a local newspaper print-
ed a story quoting Provance and Kirby to the effect that
the employees had been laid off because of their union
activities and because of the prior newspaper story about
the trash compactor. Hospital Vice President Lillard was
quoted in a separate article denying the allegations, and
chief steward Wieger in still another article disagreeing
with Lillard (C.P. Exhs. 4(a), (b), and (c)).
On March 8 Stewart submitted a response to the
grievance, asserting that the employees did not fulfill the
requirements of their promotion agreements, that a 30-
day extension had been offered and refused by the
Union, that the hospital did not need any "O.J.T.'s"
(Grade 4's) at the moment, and that the grievants could
return to work when an opening existed or when they
were "qualified under existing standards" (C.P. Exh.
2(a)).
Provance, Wieger, and another union official attended
a grievance session with Stewart on the same date,
March 8. The chief steward agreed on cross-examination
that there was no objection by the Union at this meeting
that the 30-day extension offer had been made only to
Provance. The latter agreed on cross-examination that
Respondent's answer contended that both he and Coker
had been offered a 30-day extension. He did not question
that answer because there was "nothing to question"-he
knew what had transpired. Respondent's actual statement
of position, entitled "Provance/Coker grievance," reads
in paragraph 4 as follows: "A 30-day extension of the
agreement was offered, but refused by the Union" (C.P.
Exh. 2(a)).
On March 19, Vaughn submitted the hospital's addi-
tional position on the grievance-it had not changed
(C.P. Exh. 6).
4 Processing of the grievance has been suspended pending disposition
of the unfair labor practice charge.
(3) The offer to Coker and the Union's response
On March 22, Vaughn wrote Coker a letter stating
that the hospital remained "somewhat surprised that you
declined our prior offer of an extension of our agreement
whereby you would have continued to work full time in
Grade 7." The letter contained an offer of an occasional
job at Grade 4 (G.C. Exh. 16). Coker turned the letter
over to business agent Kirby, who replied by letter on
March 29 as follows:
The letter you sent to Mrs. Coker offering her oc-
casional work as a respiratory therapist is a joke.
You know as well as I that if she is capable of occa-
sional work, she is also capable of a full time posi-
tion. You also stated that you offered her a thirty
day extension. This is not correct. The extension
was offered to Ken Provance not Mrs. Coker and
Mr. Provance was unable to accept this as he will
not take his test for approximately thirty days.
Larry, I feel it is time that you got your facts
straight, as befits a man in your position, and rein-
state these two people to their regular jobs. These
childish games are un unnessarily bad reflection on
Oak Ridge Hospital [G.C. Exh. 17].
Provance also received an offer of an occasional job,
which was declined by Kirby.
A few days later, on April 1, Kirby wrote Vaughn
that the Union had "shown beyond a shadow of a
doubt" that the hospital's actions were "unjust and . . .
without any foundation in fact" (C.P. Exh. 7).
b. Factual analysis
Respondent's position that Wieger transmitted a 30-
day offer of an extension of the agreement to both Pro-
vance and Coker is not supported by any credible evi-
dence. It is improbable that she would have marched
back to the general meeting at the hospital's request to
submit an offer which she personnally opposed. Pro-
vance's and Wieger's testimonies do not contain any ac-
count of a separate offer transmitted by her, and Stewart
frankly admitted that he did not know what Wieger said
during her alleged separate visit with the employees. I
find that no such separate visit or offer ever took place.
I also credit Wieger's testimony that the offer as origi-
nally contemplated in her separate meeting with the hos-
pital authorities was intended for both employees. When
Wieger protested the arrangement, acknowledging that
Coker had been a "thorn" in the hospital's side, Stewart
noted that he could not "do it to Barbara without doing
it to Ken." Although Stewart denied saying this, I credit
Wieger because the response she attributed to Stewart
was a natural one in light of her characterization of
Coker, because of the precise detail which she provided
concerning this separate conversation, and because she
appeared to be a more truthful witness than Stewart.
The testimonies of Wieger, Provance, and Coker also
establish that Stewart did change the offer when the con-
ferees returned to the general meeting, and made it only
to Provance. Clues to the veracity of the General Coun-
sel's witnesses may be found in the statements of the hos-
929
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pital authorities. Thus, Stewart, who claimed that it was
Vaughn who made the offer, admitted that the latter
looked at Ken when he did so, while Vaughn stated that
it was Provance who "spoke up." Respondent's posi-
tion-that Provance and Coker rejected the offer on the
advice of business agent Kirby, without giving any
reason-is improbable. The Union's position-that the
hospital made the offer only to Provance-was not con-
tradicted in susbequent proceedings. Although the sub-
ject was not raised in the March 8 grievance session, the
hospital's statement of position was ambiguous in that it
did not specifically allege that both Provance and Coker
had received an offer of a 30-day extension. When the
hospital did make this specific allegation in its letter to
Coker, the Union promptly denied it. I therefore find
that the hospital on March 1 made an offer only to Pro-
vance of a 30-day extension of his agreement, and that he
rejected it because it had not been offered to Coker, and
because it would not have been beneficial to him in light
of his scheduled examination of March 29. Contrary to
Stewart and crediting Wieger and Provance, I also con-
clude that the hospital did not offer the latter a further
period beyond the 30 days for receipt of test results.
Summarizing the credible evidence, at a meeting on
March 1 Respondent demoted Provance and Coker to
Grade 4 because they had not met the requirements of
their promotion agreements, and simultaneously laid
them off allegedly because there was no "vancancy" for
a Grade 4, in the language of the layoff notices, or be-
cause of "lack of work," according to verbal statements
made to them. An offer of a 30-day extension of the pro-
motion agreement was made to Provance and was reject-
ed because it would have been ineffectual and because it
was not made to Coker. Department Manager Stewart
told Coker-who had failed a prior examination-that
she probably would have passed if she had spent more
time studying and less time on "all this union shit." He
also agreed with Provance that the latter's layoff prob-
ably would not have taken place absent his official union
position and activities.
9. Dora Bice's conversation with Stewart
Dora Bice was promoted from Grade 4 to Grade 7 in
late 1981. In 1982 she was demoted to Grade 4, and had
a conversation with Stewart about the matter. According
to Bice, Stewart told her that Coker was a troublemaker,
that he got rid of the troublemaker, and that Bice and
Provance "got caught in the crunch."
Stewart acknowledged having a conversation with
Bice about her demotion. He said that she had "got
caught up in this new policy" the hospital had instituted
requiring board certification. Stewart asserted that he
told Bice he would not change her pay despite the de-
motion. 5
Stewart did not deny telling Bice that Coker was a
troublemaker. He did agree that Bice had been caught up
in something, which he attempted to explain as the hos-
pital's new policy. His more probable meaning is that
Bice and Provance had been caught in the crunch of get-
s The disparate nature of Respondent's treatment of Bice is considered
infra.
ting rid of Coker, the troublemaker, i.e., that the hospital
could not consistently demote coker for not meeting the
educational requirements without demoting others who
failed to do so. I credit Bice's testimony.
10. The rehiring of Provance and Coker
a. The "occasional"job offers
As described above, Provance and Coker received and
declined offers of occasional jobs about 3 weeks after
having been laid off. The collective-bargaining agree-
ment defines an occasional worker as one who is em-
ployed on a day-to-day basis with no benefits (G.C. Exh.
14, art. 30). Coker testified that an occasional employee
could not belong to the Union or hold union office. This
appears to be borne out by the recognitional clause of
the contract, which describes the unit as one composed
of "full-time nonprofessional employees" and "part-time
nonprofessional employees regularly scheduled for at
least 24 hours per week" (G.C. Exh. 14, art. i).
b. The regular Grade 4 position and Provance's
promotion to Grade 7
(1) Summary of the evidence
On March 19, according to Personnel Director
Vaughn, he attended a third-step grievance meeting with
Provance, Coker, chief steward Wieger, business agent
Kirby, and another union official. According to Vaughn,
Kirby asked that Provance and Coker be allowed to con-
tinue working until they had passed their examinations.
Vaughn rejected this proposal. Ten days later, on March
29, he posted openings for two Grade 4 jobs in the Res-
piratory Therapy Department (C.P. Exh. 8).8 On April
2, chief steward Wieger wrote Vaughn asking him to
consider reinstatement of Provance and Coker (C.P.
Exh. 9). In early April, the hospital notified Provance
and Coker that one regular Grade 4 position was avail-
able on the night shift. Both expressed interest, but the
hospital selected only Provance for employment, despite
its recent posting of two Grade 4 openings.
Provance had been laid off about 5 weeks and began
working again as a Grade 4 employee on April 5, ac-
cording to Assistant Department Manager Cox, testifying
with the aid of hospital records. One night, as Provance
was scheduled to work with another employee, the latter
called in sick, and other employees on the second shift
told Provance that he would be working alone that
night. Provance replied that he could not do this, since
he was only a Grade 4, and therapists at this level were
not permitted to work alone in the intensive care unit
under the hospital's new policy. Provance testified that
a Receipt of C.P. Exh. 8 was opposed by Respondent on the ground
that it was a copy, and did not match any of Respondent's exhibits. Per-
sonnel Director Vaughn testified that he had examined the hospital's files,
and could not find anything resembling this exhibit. However, chief stew-
ard Wieger testified that the document was a copy of another one "on
the board" which itself was a copy, since the originals of job openings
are filed by the hospital and are not seen by employees. Wieger testified
that she asked a hospital secretary to take the document down from the
board and to provide her with a copy. At that point Respondent's coun-
sel stated that he had no further objections to receipt of the document.
930
OAK RIDGE HOSPITAL
he called Stewart and said, "Michael, I can't work by
myself. I'm just a grade four." The department manager
replied, "Well, I'm going to promote you to a grade 7."
Provance testified that his raise was jokingly referred to
in the hospital as a "field promotion" because there was
no one else to work in the intensive care unit at the time.
According to Provance, he had not yet received the re-
sults from the written part of his certification examina-
tion, and had not yet taken the clinical part of the test.
Stewart, on the contrary, testified on direct examina-
tion that Provance told him that he had passed the test.
The department manager wrote a memo to Provance's
supervisor, dated April 15, reclassifying Provance as a
Grade 7 effective April 14, and suggesting that he "bring
a copy of his completed test scores" (R. Exh. 59). On
cross-examination, Stewart admitted that Provance took
the test on March 29, and that the results would not be
known for 6 to 8 weeks. Nonetheless, Stewart contend-
ed, his promotion of Provance on April 14-2 weeks
after the test-was based on Provance's oral assurance to
Stewart that he had passed the test. This was done with-
out documentation despite Stewart's statement that the
absence of same might result in a lawsuit. As for the
clinical practice test, Stewart testified that he simply
waived that requirement because he knew that Provance
could do the clinical work. He acknowledged that Pro-
vance's diploma was dated July 9.
(2) Factual analysis
Stewart's testimony is obviously false, since the period
from March 29 to April 14 does not encompass 6 to 8
weeks, the time required to get the test results. His asser-
tion that Provance told him that he had passed the test
about 2 weeks after taking it is unbelievable in light of
the well-known time frames. I credit Provance's version
of these events.
c. The rehiring of Coker
Coker passed the written part of her examination in
August, but had not yet taken the clinical examination.
In that month the hospital offered her a part-time posi-
tion at Grade 7. Coker called Vaughn and declined on
the ground that she did not meet the requirements for a
Grade 7. On September 7, Coker wrote Vaughn in fur-
ther explantion as follows:
I declined your offer to re-call to a position of
Grade 7 in Respiratory Therapy of which accord-
ing to the Hospital Contract . . . I do not qualify.
The job in which you offered me was not only out
of my classification since I was demoted on March
1, 1982, to Grade 4, but was also not of equal status
to my full-time position but was that of a part-time
employee. I fully expect to remain on your re-call
list for re-employment as a Grade 4 Respiratory
Therapy Tech. since I am forced to remain in a
layed-off [sic] status [G.C. Exh. 18].
Thereafter, the hospital offered Coker an occasional job
on weekends, which she accepted and was occupying at
the time of the hearing.
11. Respondent's "lack of work" defense
Respondent's position, as set forth by Vaughn on
March I during the layoff meetings, was that the hospital
had no openings for Grade 4 personnel, although it did
need the "more qualified" higher grades. On March 1,
the same date as the layoffs, the hospital posted job
openings for two Grade 7 or 9 therapists as replacements
for Provance and Coker (R. Exh. 48).
However, Provance testified that there was an excess
of work for Grade 4 respiratory therapists after the lay-
offs, and that they were required to work overtime for
several weeks. Bice, who had been demoted to Grade 4,
testified that she worked overtime for about 2 weeks
after the layoffs, picking up about I extra day per pay
period. Chief steward Wieger affirmed that the hospital
instituted 12-hour shifts after the layoffs, but stated that
one of the Grade 4 employees objected to this and filed a
grievance. Accordingly, the 12-hour shifts were discon-
tinued by Assistant Department Manager Debra Cox.
This testimony is corroborated by Respondent's time-
cards which, according to Cox's testimony, show over-
time worked by the regular Grade 4 respiratory thera-
pists for the pay period ending March 14 immediately
following the layoffs.7 This is in contrast to the minimal
overtime during the preceding pay period ending Febru-
ary 28.8 Overtime declined in the two pay periods fol-
lowing March 14. 9 However, as affirmed by Wieger, this
was not the result of any dimunition in Grade 4 work,
but, rather, was caused by a grievance against overtime.
The continuing need for such work is shown by the fact
that Respondent posted openings for two Grade 4 posi-
tions on March 29, less than 1 month after it laid off Pro-
vance and Coker. I therefore reject the hospital's reason
that such layoffs were caused by lack of Grade 4 work.
12. The argument that the hospital was taking
necessary action required by the contract and the
promotion agreements
The hospital authorities argued that they were merely
abiding by the terms of the contract and the promotion
agreements in laying off Provance and Coker. There is
no merit to this argument. The contract provides that
employees be classified in accordance with the skills
which they use (G.C. Exh. 14, art. 31); Provance and
Coker were utilizing the skills applicable for their provi-
sional Grade 7 level since they were functioning in the
intensive care unit at the time of the layoffs. Indeed, they
had been working in that unit as Grade 4's both before
and after the hospital took over the Respiratory Therapy
Department from the private contractor.
7 The records, according to Cox, show the following hours of over-
time for the indicated employees: Rhonda Justice, 3.5; Dora Bice, 11.8;
Vicki McCoy, 4.7; and Julia Watson, 5.5. Trina Robinson, an occasional
employee, did not work any overtime.
8 For the period ending February 28, Rhonda Justice worked .9 hours
overtime and Watson 1.9 hours, while neither Bice nor McCoy had any
overtime.
I For the period ending March 28, Bice's overtime dropped slightly to
II hours while none of the other Grade 4 employees had any. The only
overtime worked the succeeding pay period, ending April II., was .9
hours by Bice.
931
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The provisional promotion agreements, with their edu-
cational requirements, were the result of the classification
grievance arising pursuant to the contract, but were not
required by the contract provisions themselves. The edu-
cational requirements were not mandated by any Federal
or state rule. Stewart testified that the "Joint Commis-
sion," which he identified as a body regulating hospital
practice and accrediting hospitals, merely required that
individuals working in special care units have adequate
training in anatomy and physiology, but did not specify
certification below the level of department director. The
hospital was inspected before and after Stewart became
the department manager, and never lost its accreditation.
Respondent argues in its brief that Provance and
Coker "as a matter of law . . . are estopped from at-
tempting to impugn their written obligations by vague
testimony of verbal assurances [against loss of their
jobs]," citing authority on the reformation of instru-
ments. The merit of this argument is suspect because the
testimony was not vague, and the credited evidence es-
tablishes that Provance and Coker, after their refusal to
sign the agreements, were assured that doing so would
not endanger their jobs.
As described above, the promotion agreements which
the hospital presented to Provance and Coker did not
conform to the hospital's agreement with the Union. Al-
though the Union's acting president signed both sets of
documents, the inconsistency clouds Respondent's argu-
ment that it was merely applying the terms of the pro-
motion agreements when it laid off Provance and Coker.
Finally, the hospital did not abide by the terms of its
own agreements. Thus, Vaughn's telling Provance
during the layoff interview that the latter had no bump-
ing rights against other Grade 4's with less seniority was
contrary to the provisions of the contract, since it was
not shown that the other Grade 4's had more skill and
ability than Provance. °1 Conversely, after Provance was
brought back, the hospital's promotion of him to Grade 7
before he had completed the certification requirement
shows that the hospital did not consider itself bound by
the terms of the promotion agreement. I reject as soph-
istry the hospital's arguments that the layoffs were made
pursuant to the collective-bargaining agreement or the
promotion agreements.
13. Evidence of disparate treatment
a. Craig Brent
Craig Brent was one of the Grade 4 employees who
was provisionally promoted to Grade 7. The promotion
agreement required him to complete a college course in
respiratory therapy, at which time he would be promot-
ed to Grade 9, rather than the Grade 7 which was given
to Provance and Coker. Failure to continue in school
would result in reclassification to Grade 4, "assuming a
vacant position exists." However, unlike the Provance
and Coker promotion agareements, the Brent agreement
did not require him to pass an NBRT examination in
order to avoid demotion (R. Exh. 47). When Provance
was laid off, Brent, like Coker, had not yet completed
10 Supra, fn. 3.
his training. He changed shifts and replaced Provance.
The record discloses no valid reason why Brent's agree-
ment and treatment should have been different from that
of Provance and Coker.
b. John Mitchell
The General Counsel and the Union presented evi-
dence to establish disparate treatment of John Mitchell.
The first issue is Mitchell's grade at the time of the filing
of the classification grievance. Provance testified that
Mitchell was a part-time employee who was prompted to
Grade 7 because he signed a provisional promotion
agreement, thus implying that he had been a Grade 4
employee. Mitchell attempted to take the NBRT exami-
nation, but was rejected. Personnel Director Vaughn dis-
puted Mitchell's grade, and contended that he was al-
ready a Grade 7 at the time of the grievance. Depart-
ment Manager Stewart, however, was asked why he
classified Mitchell as a Grade 7. Stewart answered that
the hospital was trying to solve two problems-it wanted
to address the grievance, and at the same time felt the
necessity of staffing the intensive care unit. Stewart de-
scribed some emergencies that had occurred in the unit
during his first week as department manager. Since
Mitchell had had experience in cardio-pulmonary tech-
nology with the Veterans Administration, he was made a
Grade 7. Stewart's testimony suggests that the promotion
came about the same time as the filing of the classifica-
tion grievance.
The grievance, dated July 20, 1981, is signed by
Mitchell. It recites that the signatories are all "OJT's" or
"noncredentialed employees," and that such employees
"have been placed in the number (4) grade." Vaughn dis-
puted this document and pointed to a question mark op-
posite Mitchell's signature which, he asserted, he placed
there (G.C. Exh. 8). It is incredible that Mitchell did not
know his own grade and pay at the time he signed the
classification grievance. I find that he was a Grade 4 at
that time, and was promoted to Grade 7 shortly thereaf-
ter.
The next issue is whether Mitchell signed a provisional
promotion agreement. None is in evidence. As already
noted, Provance testified that Mitchell did sign such an
agreement. Provance further affirmed that he saw the
agreement, and that it required Mitchell to take the first
certification examination which became available. Stew-
art flatly denied that Mitchell signed any agreement.
Bice, however, testified that Mitchell applied to take
the NBRT test and was rejected. The hospital appealed,
and Mitchell was again turned down by the NBRT.
Stewart then had a conversation with Bice about August
1982 and showed her "a piece of paper that he had writ-
ten . . . for John [Mitchell] that he did not have to sit
for those boards." Bice affirmed that she said to Stewart,
"Well, you told me that Johnson would be demoted just
like the rest of us." The department manager answered,
"Well, I may have said it. I said a lot of things back
then. I just don't remember." Stewart did not deny this
testimony, and I credit it. It suggests that Mitchell had
been promoted, and corroborates Provance.
932
OAK RIDGE HOSPITAL
Bice's testimony also shows that Stewart prepared
some kind of paper concerning Mitchell. Since the de-
partment manager's position was that only credentialed
employees be classified at Grade 7, it is unlikely that the
hospital would have permitted Mitchell to work in the
intensive care unit without at least trying to get him to
comply with the same standards that the other Grade 7
employees had to meet. Although Mitchell may have
had extensive cardio-pulmonary experience with the Ve-
trans Administration, Stewart's testimony shows that he
considered this only as a reason for putting Mitchell into
the intensive care unit in an emergency. Tlhose consider-
ations tend to buttress Provance's forthright testimony
that Mitchell signed an agreement requiring him to pass
an NBRT examination. The NBRT, however, found him
ineligible to take the examination. The hospital then
simply eliminated the requirement that Mitchell do so,
and continued him as a Grade 7 employee. The record
does not disclose any valid reason for this different treat-
ment of Mitchell.
c. Dora Bice
Bice received even more favored treatment. She came
to the hospital from the same private respiratory therapy
contractor where Provance and Coker had worked. She
had completed an AMA course and had taken and failed
the NBRT examination. Stewart instituted a policy in
September allowing her to take it again. Thereafter, Bice
was promoted to Grade 7. "I was not aware of any-
thing," she testified, "I just automatically was a grade 7."
Stewart agreed that Bice never signed an agreement.
Asked to explain the reason, he replied, "Because this
screwy job classifications don't fit these people. See, Res-
piratory Therapy really got messed over."
Bice took the examination again in December 1981,
failed it again, and was demoted to Grade 4 because, as
related above, she got "caught in the crunch" of demot-
ing Provance and Coker. Stewart testified that the hospi-
tal had approved three Grade 4 positions in response to
the classification grievance. There were three Grade 4's
already filling these positions, and there was, therefore,
no room for Bice at the time of her demotion. However,
she was not laid off. Stewart solved the problem by cre-
ating an extra "slot" for Bice as a Grade 4. As shown
above, he told her that she would not suffer any reduc-
tion in pay. This is in stark contrast to the treatment
given Provance and Coker.
The hospital again changed policy and offered Bice
another promotion to Grade 7 about August 1982 on
condition that she pass an NBRT examination. She de-
clined because of the possibility that she could be termi-
nated if she failed the examination.
D. Legal Analysis
1. Dixie R. Hicks
The General Counsel submits characterizations of the
discipline administered to Hicks. Thus, he argues that the
hospital had been "very lenient" about her tardiness until
her participation in the contract negotiations and the
filing of grievances over "harassment." However, while
the discipline administered to Hicks was obviously more
severe in the middle of 1982, and ultimately led to dis-
charge, a pattern of increasing severity had begun to
emerge before Hicks' participation in the contract negoti-
ations in June 1981. Thus, prior infractions led to a
warning in October 1980 that future tardiness would
result in a written reprimand, and this was followed by
further discussions of the same subject in January and
April 1981. It is therefore not entirely accurate to state,
as does the General Counsel, that Hicks had not received
a serious reprimand until recently. It is obvious that the
reprimands did not improve her work attendance or
punctuality. Although the General Counsel argues that
Hicks' participation in the contract negotiations caused
her increasingly servere discipline, an alternative expla-
nation may be found in the fact that Hicks' tardiness per-
sisted despite the discipline. In these circumstances, it
would not have been unreasonable for the hospital to
consider increased severity of punishment in order to
effect a change in behavior. This alternate explanation is
not grounded on union animus.
The General Counsel further argues that the repri-
mands based on patient care demonstrate that the hospi-
tal was "out to get Hicks as every determination was
made against her without consideration of the possibility
of finding in her favor." Thus, with respect to the para-
lyzed patient and the orange slices, the General Counsel
points out that it was Nursing Director Vicki Moore
who actually fed the slices to the patient, and argues that
"any indiscretion in such action" is attributable to Moore
rather than to Hicks. This argument misstates the facts.
Hicks was not disciplined for feeding orange slices to the
patient-she was reprimanded for not doing so, and for
administering medication to a partially paralyzed patient
in an unsafe position. Moore simply took over the duties
which Hicks had failed to perform.
With respect to Henderson's medication card, the
General Counsel argues that "the responsibility to
change the medical order was definitely not Hick's.
Medication orders are the province of a registered nurse,
not a LPN as Hicks is." However, as set forth above, I
have concluded that it was the responsibility of the nurse
who made up the new medication card to destroy the
old one-and it was Hicks who made up the new card
because Mary Oaks (the registered nurse) was busy.
Hicks' testimony that she "had no idea what happened to
the old card" is not believable taking into consideration
the fact that she was in the same room with Oaks admin-
istering medication to a patient pursuant to a written
order. Oaks, of course, was also partially responsible
since she "did not think about destroying the old card."
The record does not reveal whether Oaks was repri-
manded, nor does it indicate whether anything was said
to still another nurse who, the next day, gave the discon-
tinued medication to the patient based on the old card. It
was Hicks who initiated this chain of events by making
up the new card without following through and destroy-
ing the old one. The reprimand cannot fairly be charac-
terized as arbitrary.
The General Counsel next argues that Hicks was repri-
manded for "taking an unauthorized break where in re-
ality she was awaiting a phone call from the laboratory
933
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning a patient scheduled for immediate surgery."
This argument also concerns Henderson and again mis-
states the facts. Hicks was not reprimanded for taking an
unauthorized break. An early break had in fact been au-
thorized for her-but only if she had taken care of her
duties which included assisting Henderson in eating. As
set forth above, the evidence is inconclusive on whether
Hicks was really waiting in the nurses lounge for a tele-
phone call about a patient scheduled for surgery. (How
was this possible if there was no phone in the lounge, as
Brewer asserted.) In any event, it is clear that Hicks left
Henderson unattended during breakfast, and did not ar-
range for a substitute to assist him in eating.
Finally, the General Counsel argues that the hospital
arbitrarily discounted a doctor's excuse provided by
Hicks without bothering to check with the doctor, who
would be readily available. This is not true. As more
fully described above, this incident concerned a doctor's
excuse dated August 8 concerning Hicks' alleged illness
about 2 weeks before that date. Supervising Nurse
Brewer asserted and Hicks denied that the doctor au-
thenticated the excuse. This factual dispute is grounded
in hearsay, of course, but it cannot fairly be said on this
evidence that the hospital failed to check with the
doctor. On Brewer's account she did so. I infer that
these preprinted forms are readily available to hospital
personnel. Such availability, plus the fact that the excuse
was dated about 2 weeks after the alleged illness, are fac-
tors which the hospital could reasonably have considered
in assessing the reliability of the excuse. Hicks' discipline
on this occasion-a 3-day suspension-was also based on
the fact that she had failed to call in and report that she
would be asbent from work and, obviously, on her long
record of tardiness.
The General Counsel is therefore incorrect in his argu-
ment that Respondent's discipline of Hicks establishes
animus toward her based on her union activity. There is
nothing else in the record to establish such animus. Al-
though Hicks had been a member of the Union's negoti-
ating team, and had been quite vocal in her arguments
for a pay increase and other benefits, this activity had
taken place in June 1981, and there was no such activity
by Hicks subsequent to the execution of the collective-
bargaining agreement on July 20. Although she subse-
quently filed grievances, they were all made on her own
behalf rather than that of other employees. The absence
of any activity by Hicks in a representative capacity
from about June 1981 until her discharge in December
tends to indicate that the latter was not discriminatorily
motivated. Cherokee Culvert Co., 266 NLRB 290 (1983).
She was repeatedly reprimanded, was warned, and was
twice suspended for a long history of tardiness. Under
almost identical circumstances, the Board has concluded
that the employer's reason for discharging the employee
was lawful. A&TMfg. Co., 265 NLRB 1560 (1982).
Another issue was Hicks' treatment of two patients, a
factor which has also been considered by the Board as
evidence of lawful motive in discharging an employee.
Liberty Pavilion Nursing Home, 254 NLRB 1299 (1981).
Although the patient care incidents in themselves may
not have been sufficient to warrant discharge, the evi-
dence shows that the hospital viewed them as a continu-
ation of unacceptable conduct. Finally, when the last
reprimand was greeted by Hicks with an expletive, the
hospital concluded that she had an unacceptable attitude
toward her employer and her work, and discharged her.
The Board has concluded in like circumstances that an
employee's bad work record and poor attitude estab-
lished the lawfulness of the discharge. Cadiz Convalescent
Center, 258 NLRB 559 (1981).
I therefore conclude that the General Counsel has not
established a prima facie case that Hicks' discharge was
discriminatorily motivated. For similar reasons, I reach
the same conclusion in connection with the complaint al-
legation concerning the 10-day suspension on October
28. Accordingly, I will recommend that these allegations
be dismissed.
2. Ken Provance and Barbara Coker
The case is otherwise with respect to Provance and
Coker. Unlike Hicks, they were union stewards engaged
in continuous activity on behalf of fellow employees.
There is abundant evidence of the hospital's dislike of
their filing of grievances, in comparison with former in-
activity in such matters. Both Provance and coker re-
ceived reprimands for abuse of sick leave under circum-
stances which raise serious doubts about the fairness of
such discipline. The newspaper story about Provance's
grievance concerning the trash compactor made the hos-
pital's vice president "madder than hell." Department
Manager Stewart or Assistant Department Manager Cox
told Supervisor Harris that Provance and Coker were
causing problems, and that the hospital had to get rid of
them. In a discussion which Stewart had with Coker
about previous charges which the latter had filed, Stew-
art prophetically remarked that she would be back (with
more charges) as the result of a "surprise."
On February 26, just before the layoffs, Department
Manager Stewart candidly admitted to Provance that the
action probably would not be taken it it were not for
Provance's status as a union steward. The linkage be-
tween the layoffs and Provance's union activities was
again expressed by Stewart on March 1. The hospital's
animosity toward the grievance machinery in the collec-
tive-bargaining agreement is further displayed in Stew-
art's warning to both Provance and Coker that he would
compel them to live up to the terms of the promotion
agreement if they required him to abide by the terms of
the contract. On March 1, the day of the layoffs, Person-
nel Director Vaughn told Coker, who had failed an ex-
amination, that she probably would have passed if she
had spent less time on "all this union shit." Stewart
asked union steward Wieger, "How can I do it to Bar-
bara without doing it to Ken?" He told Bice, who had
also been demoted, that Coker was a troublemaker, and
that Bice and Provance were caught in the crunch.
These statements clearly show that Respondent was
seeking to justify the discharge of Coker, a "thorn" in
the hospital's side according to Wieger, with discipline
of other employees in similar circumstances, although in
Provance's case there was also animus concerning his
union activities.
934
OAK RIDGE HOSPITAL
The hospital's treatment of the promotion agreements
further demonstrates its unlawful motivation. Provance
and Coker were assured by the hospital that their signa-
tures on the agreements would not affect their jobs.
Nonetheless, this is precisely what happened. The hospi-
tal's offer of a 30-day extension of the agreements was a
sham, since it would not have resulted in any benefit to
Provance, while Coker was excluded. The various rea-
sons advanced by the hospital for the layoffs were pre-
textual as explicated above. The disparate treatment of
other employees constitutes evidence of unlawful motive
under established Board law.
I therefore find that the General Counsel has estab-
lished a strong prima facie case that the layoffs of Pro-
vance and Coker were motivated by their union activi-
ties, and that Respondent has not rebutted that case by
proving that they would have been laid off even if they
had not engaged in such activities. Accordingly, I con-
clude that the layoffs were discriminatorily motivated
and violative of Section 8(a)(3) and (1) of the Act.
Wright Line, 251 NLRB 1083 (1980).
In accordance with my findings above, I make the fol-
lowing
CONCLUSIONS OF LAW
1. Oak Ridge Hospital of the United Methodist
Church is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Service Employees International Union, Local 150-
T, AFL-CIO is a labor organization within the meaning
of Section 2(5) of the Act.
3. By laying off employees Ken Provance and Barbara
Coker on March 1, 1982, because of their union activi-
ties, Respondent thereby violated Section 8(a)(3) and (1)
of the Act.
4. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
5. Respondent has not violated the Act except as spec-
ified herein.
THE REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices, it is recommended that it
be ordered to cease and desist therefrom and to take cer-
tain affirmative actions designed to effectuate the policies
of the Act.
It having been found that Respondent unlawfully laid
off Ken Provance and Barbara Coker on March 1, 1982,
from full-time Grade 7 positions, and that it recalled Pro-
vance to a Grade 4 position and thereafter promoted him
to a Grade 7 position, it is recommended that Respond-
ent be ordered to offer Barbara Coker immediate and full
reinstatement to her former position or, if such position
no longer exists, to a substantially equivalent position,
without any loss of her seniority or other rights and
privileges, discharging if necessary any employee hired
to fill said position. Although Respondent offered Coker
a job at Grade 7, it was only part-time in nature, and,
therefore, did not constitute an offer of substantially
equivalent employment.
It is also recommended that Respondent be ordered to
give Provance written assurances that his layoff shall not
have subjected him to any loss of seniority or other
rights and privileges, and to make him and Coker whole
for any loss of earnings he or she may have suffered by
reason of Respondent's unlawful conduct, by paying
each of them a sum of money equal to the amount he or
she would have earned from the date of his or her un-
lawful layoff to, in the case of Provance, the date of his
promotion to Grade 7, and, in the case of Coker, the
date of an offer of reinstatement, less net earnings during
such periods, with interest thereon to be computed on a
quarterly basis in the manner established by the Board in
F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp., 231 NLRB 651 (1977)."
Inasmuch as Respondent has demonstrated a proclivity
to utilize the terms of the promotion agreements as a pre-
text for discrimination against its employees, and since
said terms are inconsistent with the terms of Respond-
ent's agreement with the Union concerning said matters,
it is further recommended that Respondent, with agree-
ment of the other parties, be ordered to conform said
promotion agreements to its agreement with the Union,
by deleting the requirement of passage of an NBRT ex-
amination as a condition for continued classification at
the Grade 7 level.
I shall also recommend that Respondent be required to
post appropriate notices, to expunge from its personnel
records all references to its unlawful conduct toward
Provance and Coker, and to notify each of them that this
action has been taken and that evidence of their unlawful
layoffs will not be used as a basis for future personnel
action against them.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 2
ORDER
The Respondent, Oak Ridge Hospital of the United
Methodist Church, Oak Ridge, Tennessee, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Service Employees
International Union, Local 150-T, AFL-CIO, or any
other labor organization, by laying off employees be-
cause of their union activities, or by discriminating
against them in any other manner with respect to their
hire, tenure of employment, or terms and conditions of
employment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act.
' See generally Isis Plumbing Co., 138 NLRB 716 (1962).
12 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.
935
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer Barbara Coker reinstatement to her former
position as a full-time employee in its Respiratory Ther-
apy Department at the Grade 7 level or, if such position
no longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights and
privileges, discharging if necessary any employee hired
to replace her, and make her and Ken Provance whole
for any loss of earnings either of them may have suffered
by reason of Respondent's unlawful layoffs of them on
March 1, 1982, in the manner described in the section of
this decision entitled "The Remedy." Respondent shall
also give Ken Provance written assurances that his layoff
shall not cause him any loss of seniority or other rights
and privileges.
(b) With the agreement of the other parties, conform
its promotion agreements with Provance and Coker to its
agreement with the Union covering the same subject, by
deleting the requirement in said promotion agreements
that the employees' continued employment at the Grade
7 level is conditioned on their successfully passing a cer-
tification examination conducted by the National Board
of Respiratory Therapy.
(c) Expunge from its personnel records, or other files,
any reference to its discrimination against the employees
described above, and notify each such employee in writ-
ing that this action has been taken and that evidence of
his or her unlawful layoff will not be used as a basis for
future personnel actions against him or her.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its hospital in Oak Ridge, Tennessee, copies
of the attached notice marked "Appendix."1 3 Copies of
the notice, on forms provided by the Regional Director
for Region 10, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found herein.
Is If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
936