Parkview Hospital, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 76 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 13
76
Parkview Hospital, Inc. and Ohio Nurses Association–
United American Nurses. Case 25–CA–28821
September 30, 2004
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
On April 9, 2004, Administrative Law Judge William
G. Kocol issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief and limited exceptions.
The Respondent filed an answering brief to the General
Counsel’s limited exceptions.
The National Labor Relations Board has delegated 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 briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions, and
to adopt the recommended Order as modified.3
We adopt the judge’s findings that the Respondent vio-
lated Section 8(a)(1) by interrogating employees about
their union activities and threatening employees with
reprisal if they continued to engage in those activities,
and violated Section 8(a)(3) and (1) by disciplining em-
ployees and issuing a lower evaluation to staff nurse,
Sheri Mulligan, because she had engaged in union activi-
ties.
Mulligan was among four union organizing committee
members who were disciplined and coercively interro-
gated after they drafted and distributed a flyer advising

1 The Respondent’s request for oral argument is denied as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
3 The General Counsel has excepted to the judge’s failure to provide
for the mailing of the notice to employees. We find no merit to this
exception. The Board provides for the mailing of individual notices
when posting will not adequately inform the employees of the viola-
tions that have occurred and their rights under the Act. See Indian Hills
Care Center, 321 NLRB 144 (1996) (when the record indicates that a
Respondent’s facility has closed, the Board routinely provides for the
mailing of notices to employees). There is no indication here that our
standard notice-posting provision is inadequate.
The judge inadvertently confuses discriminatee Sherri Mulligan with
Kylie Knox. Specifically, in his statement of facts, the judge correctly
identifies Mulligan as the discriminatee who received a lower perform-
ance evaluation, but then in his analysis, conclusions of law, recom-
mended Order, and notice to employees, the judge incorrectly identifies
discriminatee Kylie Knox as the one who received the lower evalua-
tion. We shall modify his Order to rectify these errors. We shall also
substitute a new notice to conform to the Order as modified.
employees on how to participate in the union campaign.
Mulligan was open about her union activity, and it is
undisputed that the Respondent was aware of her union
support. When called into Vice President of Nursing
Services Pamela Bland’s office to justify her signature on
the flyer, Mulligan told Bland that it was her right under
the National Labor Relations Act to gather information
for the purpose of organizing. As found by the judge, the
Respondent informed her that it considered her activities
a breach of the Respondent’s confidentiality policy, and
it disciplined her for it.4
Our dissenting colleague takes issue solely with the
judge’s finding that the Respondent violated the Act by
lowering Mulligan’s evaluation in response to her pro-
tected activity. In our view, the lower evaluation is inex-
tricably intertwined with the unlawful discipline Mulli-
gan received for her involvement with the flyer. As part
of that discipline, Mulligan was required to meet four
times over a period of 2 months with ICU Director Laura
Wegner to discuss the Respondent’s confidentiality pol-
icy. During that 2-month period, Wegner prepared Mul-
ligan’s annual performance evaluation, and she reduced
the ranking that Mulligan had received the prior 2 years
in the category covering confidentiality (dignity/privacy)
from a two to a one, resulting in Mulligan’s receiving a
smaller pay increase.5 In the circumstances, we are satis-
fied that the General Counsel established a causal link
between the unlawful discipline and the evaluation. In
addition, we affirm the judge’s findings that the Respon-
dent’s asserted reasons for lowering Mulligan’s rating
were pretextual. Accordingly, we adopt the judge’s find-
ing that the Respondent thereby violated Section 8(a)(3)
and (1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Parkview Hospital, Inc., Fort
Wayne, Indiana, its officers, agents, successors, and as-

4 Our dissenting colleague contends that the judge’s credibility rul-
ings in this case are questionable in light of the judge’s “mixing up
employees Knox and Mulligan.” Although the judge’s decision reflects
his inadvertent transposition of those names in several places, we are
satisfied, upon review of the record, that the judge knew which witness
he was talking about at all times.
5 Had Mulligan scored a two, as she had received in prior years in
that category, her point total would have increased from 173 to 183,
and she would have received a larger pay increase. Thus, the Respon-
dent’s discriminatory action against Mulligan had a tangible effect on
her pay, and we therefore reject our dissenting colleague’s view that the
effect of Respondent’s action was de minimis. Cf. Assn. of Apartment
Owners, 255 NLRB 127 fn. 2 (1981). We have adopted the judge’s
recommendation of a make-whole remedy for this violation.
PARKVIEW HOSPITAL, INC. 77
signs, shall take the action set forth in the Order as modi-
fied.
1. Delete paragraph 2(a) and substitute the following.
“(a) Within 14 days from the date of the Board’s Or-
der, correct the evaluation given to Sheri Mulligan and
provide her with a corrected copy.”
2. Delete paragraph 2(b) and substitute the following.
“(b) Make Sheri Mulligan whole for any loss of earn-
ings suffered as a result of the discrimination against her
in the manner set forth in the remedy section of the deci-
sion.”
3. Delete paragraph 2(c) and substitute the following.
“(c) Within 14 days from the date of the Board’s Or-
der, remove from its files any reference to the unlawful
disciplines, including the performance improvement
plans, issued to Carrie Price, Stacey Seiler-Brown, Kylie
Knox, and Sheri Mulligan, and within 3 days thereafter
notify these employees in writing that this has been done
and that the disciplines will not be used against them in
any way.”
4. Substitute the attached notice for that of the admin-
istrative law judge.
MEMBER SCHAUMBER, dissenting in part.
Contrary to my colleagues, I find that the General
Counsel failed to prove that Respondent violated Section
8(a)(3) and (1) of the Act by issuing nurse Sheri Mulli-
gan a lower score in one subcategory of her 2003 per-
formance evaluation. Specifically, the General Counsel
failed to satisfy his burden under Wright Line, 251
NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 415 U.S. 989 (1982), of proving that
Section 7 animus was a substantial or motivating factor
in what was effectively a de minimis change in a single
subcategory of an otherwise positive performance ap-
praisal.
First, the judge erred in concluding that the timing of
the appraisal, which followed Mulligan’s Section 7 activ-
ity, demonstrated animus. In fact, the appraisal occurred
when it was supposed to, so its timing suggests no more
than adherence to Respondent’s established procedure.
Second, although Mulligan received a lower score in one
subcategory of her 2003 performance appraisal (dig-
nity/privacy), her total score exceeded her evaluation
scores in the previous 2 years, belying any inference of a
retaliatory intent. Mulligan’s evaluation was not “down-
graded,” as the majority asserts; it was upgraded despite
her participation in protected activities, conduct patently
inconsistent with purported Section 7 animus. Third,
Mulligan’s score on the section of her evaluation of
which dignity/privacy was a subcategory was exactly the
same in 2001, 2002, and 2003—i.e., there was no de-
monstrable detriment. Fourth, the judge offered no ex-
planation (other than a cursory nod to “demeanor”) for
discrediting Supervisor Wenger’s legitimate nondis-
criminatory reasons for the evaluation scores, while cred-
iting Mulligan’s denial that she had done anything in
contravention of Respondent’s patient confidentiality
standards. Unexplained demeanor rulings are of ques-
tionable value in the best of circumstances, but where, as
here, the judge was impressed by the wrong witness’
demeanor (mixing up employees Knox and Mulligan), no
deference is appropriate. Finally, the General Counsel
failed to show a causal nexus between Mulligan’s Sec-
tion 7 activity and the alleged adverse employment ac-
tion. See Shearer’s Foods, Inc., 340 NLRB 1093, 1094
fn. 4 (2003) (in which Member Schaumber states his
belief, shared by a number of reviewing courts, that the
Wright Line causation analysis must include proof of a
causal nexus between the demonstrated union (i.e., Sec.
7) animus and the alleged adverse employment action).
See also Town & Country Supermarkets, 340 NLRB
1410, 1412 fn. 13 (2004). The fact that the same supervi-
sor who issued Mulligan an unlawful written warning
also gave her the performance evaluation hardly estab-
lishes such a nexus because that supervisor, Wenger, was
the person charged with doing Mulligan’s performance
appraisal (exactly as she was in 2002).
My colleagues argue that Mulligan’s “lower” evalua-
tion is “inextricably intertwined” with the unlawful writ-
ten warning she received because Mulligan’s perform-
ance improvement plan required her to meet with
Wenger to discuss Respondent’s confidentiality policy
four times over the next 2 months, a period that coin-
cided with Wenger’s preparation of Mulligan’s evalua-
tion. However, the performance improvement plan actu-
ally only provides that Wegner was “to be available” to
meet with Mulligan, and there is no record evidence that
any such meetings in fact occurred. Moreover, the writ-
ten warning related solely to the disclosure of confiden-
tial material, whereas the “dignity/privacy standards”
section of the performance appraisal covered a far
broader spectrum of patient confidentiality concerns.
Thus, the General Counsel failed to establish any inextri-
cable connection between the evaluation criteria and the
written confidentiality policy Mulligan was disciplined
for violating.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD78
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT interrogate employees about their union
activities.
WE WILL NOT threaten employees with unspecified re-
prisals if the employees continue to engage in union ac-
tivity.
WE WILL NOT discipline employees because they en-
gaged in union activity.
WE WILL NOT issue lower evaluations to employees
because they engaged in union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, correct the evaluation given to Sheri Mulligan and
provide her with a corrected copy.
WE WILL make Sheri Mulligan whole for any loss of
earnings suffered as a result of the discrimination against
her, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful disciplines, including the performance improvement
plans, issued to Carrie Price, Stacy Seiler-Brown, Kylie
Knox, and Sheri Mulligan, and within 3 days thereafter
notify the employees in writing that this has been done
and that the disciplines will not be used against them in
any way.
PARKVIEW HOSPITAL, INC.
Michael T. Beck, Esq., for the General Counsel.
Stephanie L. Dodge and K. Bruce Stickler, Esqs. (Stickler &
Nelson), of Chicago, Illinois, for the Respondent.
Kelly Christian, for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was heard in Columbia City, Indiana, on February 2, 2004. The
charge and first, second, and third amended charges were filed
August 12 and 13, September 23, and October 22, 2003,1 re-
spectively by the Ohio Nurses Association–United American
Nurses (the Union). The complaint was issued November 25.
The complaint alleges that Parkview Hospital, Inc. (Respon-
dent) unlawfully interrogated employees concerning their union
and protected concerted activity, unlawfully threatened em-
ployees with unspecified reprisals because of those activities,
enforced a confidentiality policy to prevent employees from
engaging in those activities by unlawfully issued written warn-
ings to four employees and placing them on work improvement
plans because they engaged in those activities, and issued a
performance evaluation to an employee that resulted in a re-
duced wage increase because that employee engaged in those
activities. Respondent filed a timely answer that, as amended
at the hearing, denied only the allegations that it has committed
unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, operates an acute-care hospital
providing health care services at its facilities in and around Fort
Wayne, Indiana, where it annually derives gross revenues in
excess of $250,000, and purchases and receives goods valued in
excess of $50,000 directly from points located outside the State
of Indiana. Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
As indicated, Respondent operates an acute-care hospital in
Fort Wayne, Indiana, and branches in nearby areas. It employs
about 3200 employees. Duane Erwin is Respondent’s presi-
dent. At relevant time in this case Pamela Bland was vice
president of nursing services and Todd Tallon was director of
the surgical trauma intensive care unit (ICU). Laura Wenger
served as director of the cardiac and medical ICU and EICU.
Respondent prepares work schedules for the nurses and the
schedules are kept in a book that is available in designated loca-
tions such as charge-nurse offices. Nurses examine the sched-
ules and record their work schedules for that time period. If the
nurse is unable to work on a day that he or she is scheduled, it
is the nurse’s responsibility to find a replacement. Typically
under those circumstances the nurse will examine the schedule
and arrange to trade times with another nurse. This is done by
direct contact from one nurse to another.

1 All dates are in 2003 unless otherwise indicated.
PARKVIEW HOSPITAL, INC. 79
The names and telephone numbers of Respondent’s employ-
ees, including nurses, are kept in a book and made available to
employees to facilitate the schedule changing process described
above. Some employees have unlisted numbers or do not want
their telephone number to be given out to nonemployees. For
those employees notations such as unlisted number or do not
give out are placed next to the telephone number. When a non-
employee calls Respondent seeking the telephone number of an
employee, Respondent’s practice is not to provide the number,
but instead, take a message for the employee that the person
wanted their telephone number.
Carrie Price has worked as a nurse for Respondent for about
4 years. In December 2002, she contacted the Union. After
talking with several employees, a meeting with the Union was
held in June. By July Respondent became aware of the union
organizing effort. On July 11, Respondent distributed a memo-
randum to employees indicating that it was aware that two un-
ions were attempting to organize the employees. Respondent
expressed the view that there was no need for a union and gave
reasons why it felt that way.
Sometime in June or July, Tallon approached Price in the
nurses’ unit in the hospital and told her the date, time, and place
of the next union meeting; he asked her if she was familiar with
that information. Price said that she was.2
Price continued to be actively involved in supporting the Un-
ion. She prepared the letter described below after employees
suggested that it would be helpful to have a list of things they
needed to do to support the organizing effort. Price showed the
completed letter to Kylie Knox, another registered nurse, who
agreed to allow her name to be placed on the letter. Knox did
not help write or distribute the letter. Likewise Price asked
Stacey Seiler-Brown and Sheri Mulligan for their permission to
allow their names to appear on the letter and they agreed.
Price distributed the letter to employees who attended a un-
ion meeting and who wanted to help the union organizing ef-
fort.
It read:
What to do. . . .
1. Obtain a list of all of the nurses that work on your
unit including addresses and phone numbers. This needs
to be done as soon as possible, as Parkview will be making
it very difficult for us to obtain this information.
2. Every month until we vote we need a copy of the
schedules to prove which nurses currently work at the time
of the vote.
3. Come to all the meetings you can to keep up with
what is going on with the campaign.
4. Educate the nurses on (sic) your unit about their
rights and benefits of collective bargaining. Inform them
of all of the upcoming meetings.
Please turn in everything you can into Carrie Price . . .
Stac[e]y [S]eiler-Brown . . . Kylie Knox . . . or Sher[]i
Mulligan.
On August 8 or 9, Respondent found a copy of the letter
posted on a bulletin board in a breakroom. Thereafter Price,

2 This conversation is not alleged to be unlawful in the complaint.
Knox, Seiler-Brown, and Mulligan each received a written
warning. Knox, Seiler-Brown, and Mulligan received a first
written warning while Price received a final written warning.
Price received the harsher penalty because Respondent con-
cluded that she authored the letter. As Bland admitted in her
testimony the only reason these employees received the warn-
ings was because of the “what to do” letter. Respondent’s pol-
icy is that whenever an employee receives a written warning
the employee is also placed on a performance improvement
plan. As part of this plan the employee is required to meet with
a designated supervisor periodically for a certain period of
time.
Respondent has a written confidentiality policy that prohibits
employees from disclosing confidential materials. That policy
provides that
[C]onfidential information means patient information, peer
review records, clinical information, medical records, busi-
ness strategies, financial data, strategic and business plans,
computer programs, market research, marker plans, personnel
files, and any other documents designated or deemed confi-
dential or proprietary.
That policy does not specifically identify employee’s telephone
numbers or work schedules as confidential information. The
policy provides that confidential information used at meetings
will be clearly marked as confidential.
Bland testified that it was against policy for an employee to
copy the schedule. She explained that employees have been the
victim of domestic violence and those employees do not want
their schedules to become known. Bland testified that for the
same reason, copying the list of telephone numbers would not
be permissible under Respondent’s confidentiality policy.
Respondent met with each of the four employees to give
them the written warnings. Wenger and Bland met with Price
on August 11 and showed her a copy of the “what to do” letter,
and asked, if she was aware of it. Price stated that she was.
Wenger asked if she had written the letter, and Price replied,
that there were several of them who worked on that project.
Wenger and Bland explained that they were concerned with
items one and two on the letter. They showed Price a copy of
the confidentiality statement that she had signed when she be-
gan working there, and asked, if Price remembered signing it.
Price said that she did. They discussed the telephone list and
Price asked if it was wrong for her to ask the nurses for their
telephone numbers. Wenger answered that if Price was obtain-
ing the numbers to call about a cookout or social gathering it
would be fine, but Price was not planning to use the telephone
numbers for such a purpose.3 They discussed the work sched-
ules and Price explained that she had made a copy of her own
work schedule and asked if that was wrong. Wenger and Bland
did not directly answer. Instead, Bland stated that the schedule
constantly changes, and so, the copy of the schedule could be-
come inaccurate over time. Price answered that the copy of the

3 Jacqueline Doctor, a nurse, accompanied Price to this meeting and
corroborated this testimony. Bland did not deny that this was said.
Based on these facts and on my observation of the relative demeanor of
the witnesses, I do not credit Wenger’s denial.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD80
schedule was a good place to start. Bland and Wenger ex-
plained the warning and performance improvement plan to
Price.
Wenger and Bland also met with Knox on August 11 to give
her the written warning. They showed Knox the confidentiality
agreement that she had signed when she was hired. They told
Knox that items 1 and 2 in the letter breached that agreement.
Knox replied that it was not their intent to breach the confiden-
tiality agreement. Knox explained that they needed a copy of
the work schedule to prove who was actually working for Re-
spondent so as to determine who would be eligible to vote in
the representation election. Bland responded that Knox’s ex-
planation was not what was portrayed in the letter, and that,
Knox needed to be more careful of what she put her name to;
Bland patted Knox on the back and said that they did not want
Knox to get in trouble. Knox asked if the warning would effect
her evaluation and Wenger and Bland assured her that it would
not. During the meeting Wenger and Bland explained that
Knox had the right to engage in the conduct described in items
three and four. Like Price, Knox was also placed on a perform-
ance improvement plan.
Seiler-Brown was called to meet with Wenger and Bland on
August 12. Seiler-Brown often made a copy of the work
schedule for her own use. Wenger and Bland reviewed the
confidentiality statement and showed Seiler-Brown a copy of
the letter; they asked if she had seen it before. Seiler-Brown
asked where they got the letter. They answered that it was
found hanging on the wall in the breakroom. Bland asked for
Seiler-Brown’s interpretation of the first two items of the letter.
Seiler-Brown explained that they needed that information for
the union effort and that they did not intend for anyone to copy
the entire lists but rather of interested employees only. Bland
then suggested that they should have worded the letter differ-
ently if that was their intent. Seiler-Brown received the written
warning and was also placed on a performance improvement
plan.
Mulligan also met with Wenger and Bland on August 12.
Bland asked Mulligan if she had ever seen the letter and Mulli-
gan said that she had. Bland then asked if Mulligan wrote the
letter and Mulligan said that she had not. Bland explained that
she had issues with the first two points of the letter. She said
that they were in breach of the confidentiality agreement. Mul-
ligan replied that she disagreed and said that the National Labor
Relations Act gave her the right to gather information and con-
tact other employees for the union effort. Mulligan explained
that she never took or photocopied any business documents.
Bland or Wenger read the confidentiality agreement and ex-
plained that they thought other employees might interpret the
letter differently. Mulligan again expressed her disagreement.
Mulligan was given the written warning and was place on a
performance improvement plan. Bland advised Mulligan not to
put her name on any more letters.4

4 The facts concerning these four meetings are based on the credible
testimony of Price, Knox, Seiler-Brown, and Mulligan, respectively.
Except as specifically indicated, the content of these meetings is largely
undisputed.
As part of Respondent’s employee appraisal process, em-
ployees are evaluated on their adherence to Respondent’s con-
fidentiality policy. Points are given to specific items in the
appraisal and the points are then added for a total score. The
score is then used to determine the amount of wage increase the
employee will receive.
Mulligan received an annual performance appraisal in Sep-
tember 2003. She received a total score of 173. In the dig-
nity/privacy category Wenger gave Mulligan a one indicating
that Mulligan met and sometimes exceeded expectations. In
the evaluation given to Mulligan there was a line placed next to
the printed item that read, “Do not post customer information in
public areas.” Had she received the higher evaluation of a 2,
her point total would have increased to 183 and she would have
received a bigger wage increase. As part of the appraisal proc-
ess employees do a self-evaluation. Mulligan gave herself a
two in that category. Peer review is also part of the evaluation
process. Two coworkers evaluated Mulligan. One likewise
gave her a two in that category and the other did not do a nu-
merical rating. In both 2001 and 2002, Mulligan received a two
in the same category.
About a week after she received her performance evaluation
Mulligan approached Wenger and asked about her rating in the
privacy category. Wenger raised the matter of Mulligan’s not
logging off of the computer. Mulligan explained that Wenger
is not present when she logs on and off the computer and also
explained that she has special computer access and, therefore,
makes a special point to log off the computer. Wenger also
mentioned Mulligan’s leaving charts in the open where other
people can read them. Mulligan explained that she does all her
charting in a private area. Mulligan told Wenger that neither of
those examples had anything to do with posting information in
public areas, referring to the line appearing on the evaluation
described above.5
III. ANALYSIS
In their briefs both parties agree that the legal analysis in this
case begins with Ridgely Mfg Co., 207 NLRB 193 (1973). In
that case the Board adopted the judge’s decision that stated,
“The applicable rule of thumb seems to be that employees are
entitled to use for organizational purposes information and
knowledge which comes to their attention in the normal course
of their work activity and association but are not entitled to
their Employer’s private or confidential records.” Id. at 196–

5 Wenger denied that the discipline that she had earlier given to Mul-
ligan played any part in her evaluation of Mulligan. She testified that
the line placed next to the “Do not post customer information in public
areas,” meant only that Mulligan met expectations in that area. She
testified that Mulligan’s self-evaluation gave no specific examples of
how she exceeded expectations in the privacy category, and therefore,
she gave Mulligan a one in that category. Based on the entire record
and on my observation of the relative demeanor of the witnesses, I do
not credit Wenger’s testimony. Wenger’s evaluation of Mulligan’s
performance came in the month following the written warning that she
gave to Mulligan; that alone makes it unlikely that the warning would
be so quickly forgotten. I also conclude that the justifications that
Wenger gave to Mulligan during this discussion were created after the
fact and were not the real reasons for the lower rating. Rather, I credit
Mulligan’s rebuttal that she gave to Wenger during this meeting.
PARKVIEW HOSPITAL, INC. 81
197. That case involved an employee who was disciplined for
taking information from employee timecards.
In this case the work schedules and telephone numbers at is-
sue clearly were available to employees in the normal course of
their duties. So the issue is whether that information was con-
fidential. The work schedules and telephone numbers are not
explicitly included in Respondent’s written confidentiality pol-
icy, nor are they similar in nature to those documents specifi-
cally described in Respondent’s definition of confidential in-
formation. Of course, Respondent’s written policy provides
that it may designate or deem other documents as confidential.
However, there is no evidence that Respondent designated the
work schedules and telephone numbers as confidential records
prior to the advent of the union organizing campaign. Gray
Flooring, 212 NLRB 668 (1974). Even after the Respondent
announced to the four employees that it now deemed these
records to be confidential, Respondent nonetheless undermined
that policy by allowing that the documents could be used for
nonwork related matter such as organizing barbeques with
friends from work.
Respondent has established a legitimate interest in assuring
that the telephone numbers and work schedules do not get into
the hands of abusive ex-spouses and like. To that end Respon-
dent and employees have made indications next to certain tele-
phone numbers that were not to be disclosed to nonemployees.
It also established that it had a practice of not giving out the
telephone numbers of employees to nonemployees who re-
quested that information. But Respondent’s action against the
four employees was not narrowly tailored to deal with this le-
gitimate interest. There is no evidence that the four employees
had or even intended to use the information in a manner con-
trary to that concern. Moreover, Respondent banned the use of
all telephone numbers and work schedules; it did not merely
prohibit the use of those numbers that it and the employees had
indicated could cause concern. Under these circumstances I
conclude that Respondent has not established that the telephone
numbers and work schedules are truly confidential documents
for purposes other than described above. It therefore follows
that under Ridgely, the employees are able to use the telephone
numbers and work schedules in the union organizing effort if
the information is not used in a manner that contravenes Re-
spondent’s legitimate interests described in this paragraph.
In its brief, Respondent cites Lafayette Park Hotel, 326
NLRB 824 (1998), and Super K-Mart, 330 NLRB 263 (1999).
Those cases involved challenges to the facial validity of rules
prohibiting the disclosure of confidential information. How-
ever, no such challenge is made in this case. By disciplining
Carrie Price, Stacey Seiler-Brown, Kylie Knox, and Sheri Mul-
ligan because they engaged in union activity, Respondent vio-
lated Section 8(a)(3) and (1).
The complaint also alleges that Respondent unlawfully inter-
rogated these same four employees. I have concluded above
that the letter was union activity protected under the Act. Dur-
ing the discussions that Wenger and Bland had with the four
employees, they asked about the connection they had with the
letter. Whether questioning of an employee concerning union
activity is unlawful depends on whether the questioning rea-
sonably tends to interfere with, restrain, or coerce employees in
the exercise of their Section 7 rights. Emery Worldwide, 309
NLRB 185, 186 (1992). In making that determination the
Board examines the totality of circumstances. Sunnyvale Medi-
cal Clinic, 277 NLRB 1217 (1985). On the one hand, the four
employees were open about the union activity to the extent that
they signed a letter that was circulated to other employees and
that found its way to a bulletin board. Also, Respondent ques-
tioned the employees under color of a concern that the employ-
ees may have violated its confidentiality policy. But those
factors are outweighed by the fact that discipline followed after
the questioning ended, so there was no doubt that the question-
ing was for the purpose of imposing discipline on the employ-
ees. Respondent cites Caesar’s Palace, 336 NLRB 271 (2001),
to justify its questioning of the four employees. In that case the
employer suspected that illegal drug dealing was going on in its
workplace, and, management officials might have been in-
volved in covering up the matter. It therefore required that
employees subject to the investigation keep the matter confi-
dential and thereafter questioned an employee about the matter.
Respondent here has made no showing that it keeps the tele-
phone numbers and work schedules completely confidential,
and therefore, was not justified in questioning the employees.
Under these circumstances I conclude that Respondent violated
Section 8(a)(1) by interrogating employees about their union
activities.
The complaint also alleges that Respondent violated the Act
by unlawfully threatening employees with unspecified reprisals.
I have found above, that Bland told Knox that Knox should be
careful about where she puts her name and that Bland did not
want to see Knox get into any more trouble. This was a clear
indication that if Knox continued to engage in the same type of
protected union activity described in the first two items in the
letter, she would again be in “trouble.” By threatening an em-
ployee with unspecified reprisals if the employee continued to
engage in union activity, Respondent again violated Section
8(a)(1).
Finally, the complaint alleges that Respondent unlawfully is-
sued a performance evaluation to an employee that resulted in a
reduced wage increase because that employee engaged in union
activities. In assessing whether Respondent violated the Act by
giving Knox an unlawful evaluation, I apply the shifting burden
analysis set forth in Wright Line.6 The Board has restated that
analysis as follows:
Under Wright Line, the General Counsel must make a prima
facie showing that the employee’s protected union activity
was a motivating factor in the decision to discharge him.
Once this is established, the burden shifts to the employer to
demonstrate that it would have taken the same action even in
absence of the protected union activity.7/ An employer cannot
simply present a legitimate reason for its actions but must per-
suade by a preponderance of the evidence that the same action
would have taken place even in the absence of the protected
conduct.8/ Furthermore, if an employer does not assert any
business reason, other than one found to be pretextual by the

6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD82
judge, then the employer has not shown that it would have
fired the employee for a lawful, nondiscriminatory reason.9/
7/ NLRB v. Transportation Management Corp., 462 U.S. 393,
400 (1983).
8/ See GSX Corp. v. NLRB, 918 F. 2d 1351, 1357 (8th Cir.
1990)[.] (“By asserting a legitimate reason for its decision and
showing by a preponderance of the evidence that the legiti-
mate reason would have brought about the same result even
without the [i]llegal motivation, an employer can establish an
affirmative defense to the discrimination charge.”)
9/ See Aero Metal Forms, 310 NLRB 397, 399 fn. 14 (1993).
T & J Trucking Co., 316 NLRB 771 (1995). This was further
clarified in Manno Electric, 321 NLRB 278 (1996).
As set forth above, Knox’s evaluation in the area of confi-
dentiality was lower than it had been in the prior 2 years. I
have concluded above, that Knox engaged in union activities
and Respondent knew of those activities. In response to those
activities Respondent unlawfully interrogated and disciplined
Knox and others. The evaluation was given close in time to the
earlier unlawful conduct and by the same supervisor who had
engaged in the unlawful conduct. Having established the ele-
ments of union activity, knowledge, animus, and timing, I con-
clude that the General Counsel has met his initial burden under
Wright Line. I now examine the record to determine whether
Respondent would have given Knox the same evaluation even
absent her union activity. In that regard Respondent relies on
Wenger’s testimony and argues that the lower evaluation was
justified because Knox was careless in logging off her com-
puter and leaving charts. But I have specifically discredited
these assertions and have credited Knox’s testimony instead. It
follows that Respondent has failed to meet its burden. By issu-
ing Knox a lower evaluation because she engaged in union
activity, Respondent violated Section 8(a)(3) and (1).
CONCLUSIONS OF LAW
1. By the following conduct, Respondent has engaged in un-
fair labor practices affecting commerce within the meaning of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
(a) Disciplining Carrie Price, Stacey Seiler-Brown, Kylie
Knox, and Sheri Mulligan because they engaged in union activ-
ity.
(b) Issuing Knox a lower evaluation because she engaged in
union activity.
2. By the following conduct, Respondent has engaged in un-
fair labor practices affecting commerce within the meaning of
Section 8(1) and Section 2(6) and (7) of the Act.
(a) Interrogating employees about their union activities.
(b) Threatening an employee with unspecified reprisals if the
employee continued to engage in union activity.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Having found that Respondent
unlawfully disciplined employees, I order that it must rescind
that discipline and notify the employees that it has done. Hav-
ing found that Respondent unlawfully gave an employee a
lower evaluation, I shall order Respondent to correct the
evaluation, issue it to the employee, and make the employee
whole for the loss of earnings she suffered plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). As part of the remedy the General Counsel asks that
the notice be mailed to all employees, citing Cappricios Res-
taurant, Inc., 249 NLRB 685 (1980). However, in that case it
appears that the employer was purchased by another business
and that business might not be required to post a notice. Here,
it appears that Respondent will be able to post the notice. The
General Counsel also points out that Respondent here, sent a
letter to all employees on August 13 referring to the fact that
charges had been filed concerning its discipline of the employ-
ees and proclaiming itself to be innocent of the charges. But I
conclude that notice posting will nonetheless adequately inform
employees of the violations that have occurred and their rights
under the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The Respondent, Parkview Hospital, Inc., Fort Wayne, Indi-
ana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities.
(b) Threatening an employee with unspecified reprisals if the
employee continued to engage in union activity.
(c) Disciplining employees because they engaged in union
activity.
(d) Issuing a lower evaluation to employees because she en-
gaged in union activity.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, cor-
rect the evaluation given to Kylie Knox and provide her with a
corrected copy.
(b) Make Kylie Knox whole for any loss of earnings suffered
as a result of the discrimination against her in the manner set
forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful disciplines,
including the performance improvement plans issued to Carrie
Price, Stacey Seiler-Brown, Kylie Knox, and Sheri Mulligan,
and within 3 days thereafter notify the employees in writing
that this has been done and that the disciplines will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
PARKVIEW HOSPITAL, INC. 83
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of back pay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities in and around Fort Wayne, Indiana, copies of the at-
tached notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 25, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since August 11, 2003.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.