Regional Medical Center at Memphis

National Labor Relations Board - Board Decisions

Oct 27, 2004

343 N.L.R.B. 346 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 48
346
Shelby County Health Care Corporation d/b/a the
Regional Medical Center at Memphis and Ame-
lia Witzleb and Becky Wood. Cases 26–CA–
21173, 26–CA–21244, and 26–CA–21404
October 27, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On March 31, 2004, Administrative Law Judge Marga-
ret G. Brakebusch issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief. The Re-
spondent filed cross-exceptions and a supporting brief,
and the General Counsel filed an answering brief.
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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,2
and to adopt the recommended Order dismissing the
complaint.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Linda Mohns, Esq., for the General Counsel.
David P. Jaqua, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
The original charge in Case 26–CA–21173 was filed on April
7, 2003, and a first amended charge was filed on September 19,
2003, by Amelia Witzleb, an individual (Witzleb). On June 3,
2003, Witzleb filed the original charge in 26–CA–21244 and
later filed a first amended charge on September 19, 2003. The
charge in Case 26–CA–21404 was filed on October 3, 2003, by
Becky Wood, an individual (Wood). Based upon the allega-
tions contained in Cases 26–CA–21173, 26–CA–21244, and
26–CA–21404, the Regional Director for Region 26 of the
National Labor Relations Board (the Board) issued a second
order consolidating cases, amended consolidated complaint and
notice of hearing on November 26, 2003. The complaint al-

1 The parties excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
2 Because we agree with the judge that the Respondent is exempt
from the Board’s jurisdiction because it is a political subdivision, we
find it unnecessary to pass on the judge’s alternative findings with
respect to the alleged unfair labor practices.
leges that the Shelby County Health Care Corporation d/b/a the
Regional Medical Center at Memphis (the Respondent) termi-
nated Witzleb on March 27, 2003, because she joined and sup-
ported Local 205 of the Service Employees International Union
(the Union). The complaint further alleges that Respondent
denied Wood 24 hours of paid sick leave because she gave
testimony to the Board in the form of an affidavit and/or other-
wise cooperated in a Board investigation. The complaint addi-
tionally includes seven other incidents of conduct that are al-
leged to interfere with, restrain, and coerce employees in the
exercise of rights guaranteed in Section 7 of the National Labor
Relations Act (the Act).
This case was tried in Memphis, Tennessee, on January 20,
21, 22, 23, and 30, 2004, at which time all parties had the op-
portunity to present testimony and documentary evidence, to
examine and cross-examine witnesses, and to argue orally.
General Counsel and Respondent filed briefs, which I have
duly considered. On the entire record, including my observa-
tion of the demeanor 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 Tennessee corporation, with an office and
place of business in Memphis, Tennessee, has been engaged in
the operation of a hospital and associated clinics providing
inpatient and outpatient medical care. While Respondent de-
nies that it is an employer within the jurisdiction of the National
Labor Relations Board, Respondent admits that it is engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. Respondent admits that annually it derives gross reve-
nues in excess of $250,000 and purchases and receives at its
Memphis, Tennessee facility goods valued in excess of $5000
directly from points outside the State of Tennessee. Respon-
dent admits, and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. Although Respondent asserts in its answer that it is with-
out knowledge as to whether the Union is a labor organization
within the meaning of Section 2(5) of the Act.1 I find the Un-
ion to be a labor organization.

1 While the record contains no testamentary proof in support of this
issue, the General Counsel submitted into evidence two fliers that were
distributed by the Union to employees soliciting their support for the
Union’s representation of nurses at Respondent’s facility. Sec. 2(5) of
the Act defines “labor organization” as any organization of any kind, or
any agency or employee representation committee or plan, in which
employees participate and which exists for the purpose, in whole or in
part, of dealing with employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions of work. The
Union’s flyer discusses the Union’s intention to seek better benefits,
pay, and grievance procedures for Respondent’s nurses through a col-
lective-bargaining agreement. Based on the Board’s and the Supreme
Court’s liberal interpretation of what constitutes a labor organization,
there is no doubt that the Union is a labor organization within the
meaning of Sec. 2(5) of the Act. NLRB v. Cabot Carbon Co., 360 U.S.
203 (1959); St. Anthony’s Hospital, 292 NLRB 1304 (1989).
REGIONAL MEDICAL CENTER AT MEMPHIS 347
II. JURISDICTION
Certainly, the pivotal issue for determination in this case is
the issue of jurisdiction. Respondent submits that because it is
a political subdivision, it is expressly excluded from the term
“employer” within the meaning of Section 2(2) of the Act.
General Counsel maintains that Respondent is an employer
within the meaning of the Act and that the Board has jurisdic-
tion in this matter.
A. Background and Relevant Facts Related to the
Issue of Jurisdiction
Prior to 1981, the Memphis and Shelby County Hospital Au-
thority existed pursuant to state statute and operated the city of
Memphis Hospital, Oakville Hospital, and the Shelby County
Healthcare Center. Oakville Hospital was a long-term critical
care hospital for the indigent with long-term medical care needs
and the Shelby County Healthcare Center was primarily a nurs-
ing home facility providing residential care for the indigent.
Consistent with the other medical care facilities included in the
Shelby County Hospital Authority; the city of Memphis Hospi-
tal was funded by appropriations as a part of the county budget.
The employees were considered to be county employees with
civil service protection and county employee benefits. The
American Federation of State, County, and Municipal Employ-
ees (AFSCME) represented employees in all three facilities
included in the Memphis and Shelby County authority.
On June 15, 1981, the board of county commissioners of
Shelby County, Tennessee, passed a resolution to dissolve the
Memphis and Shelby County Hospital authority. In its resolu-
tion, the commission further resolved that such action was con-
tingent upon the formation of a not-for-profit corporation to be
named Shelby County Health Care Corporation (Respondent
and also referenced as “The MED”) and the execution of a
contract between the Shelby County Government and Respon-
dent for the operation of the facilities then operated by the
Memphis and Shelby County Hospital authority.2 County At-
torney Brian Kuhn testified that the Shelby County Hospital
authority was dissolved in conjunction with the county’s issu-
ance of 40 million dollars in bonds for the modernization and
the construction of new buildings for the city of Memphis Hos-
pital. The county determined that in order to attract paying
customers and to keep the hospital afloat, the city of Memphis
Hospital needed a new image and needed to look less like a
Government hospital.3 By separate resolution on June 15,
1981, the Shelby County commissioners approved Respon-
dent’s incorporation. The incorporating charter provided for 10
directors who were to be appointed by the mayor of Shelby
County, Tennessee. The charter required the mayor to appoint
the administrator of the hospital as one of the directors who
would be an ex officio director with no vote and counted for
quorum purposes only. The charter was later amended on July

2 Although the Memphis and Shelby County Hospital authority also
included the Shelby County Health Care Center and the Oakville
Health Care Center, these two facilities were not designated for Re-
spondent’s operation.
3 Prior to that time, the hospital primarily treated the indigent of
Memphis in 40 to 50 bed wards.
9, 1981, to provide that 9 of the 10 members recommended by
the mayor were subject to concurrence of the board of county
commissions and to set the voting directors’ terms of office.
By resolution of June 22, 1981, the county approved the ap-
pointment and length of term for those directors who were to be
nominated by the mayor. In 1985, the charter was further
amended to provide for 12 regular voting directors to be ap-
pointed by the mayor and one nonvoting ex officio member.
On March 27, 1986, the charter was further amended to desig-
nate the hospital administrator, hospital medical director, and
the president of the medical staff as ex-officio non-voting direc-
tors.
On July 1, 1981, Respondent and the county entered into a
lease agreement for Respondent to operate a hospital providing
comprehensive health care services to needy Shelby County
residents regardless of their financial status. The lease pro-
vided that for $1 per year and other valuable consideration, the
county would lease to Respondent all of the land and improve-
ments that were known as the city of Memphis Hospital, in-
cluding the new hospital under construction. The lease set forth
the parties’ understanding that Respondent was neither an
agency of the county nor any other Government agency and
that the lease was not made pursuant to the State statute that
had created the Memphis Hospital authority. A condition of the
lease was the requirement that the number and method of selec-
tion of directors conform to the 1981 charter and articles of
amendment. An additional provision gave the county the op-
tion to terminate the lease in the event that the number and
method of selection of directors changed. Pursuant to this
lease, Respondent was required to file with the county an an-
nual operations financial report and a budget for the next year’s
operations including anticipated capital expenditures. Respon-
dent was required to annually submit a copy of a certified audit
to the county. The lease further required: “The annual budget
shall be subject to the approval of the county, and the county
board of commissioners shall determine the amount of appro-
priations to be provided to SCHCC to fund the budget as ap-
proved.” On July 1, 1981, the county mayor signed a resolu-
tion approving the contract between the county and Respon-
dent. The resolution included the proviso that the approval of
the lease was contingent upon the county receiving an agree-
ment from the city of Memphis that the city of Memphis would
continue to make payments to the Shelby County Government
for utilities in lieu of tax payment as had been the practice with
the Memphis and Shelby County Hospital authority. The ap-
proval of the lease was further contingent upon the county’s
ability to use Federal revenue sharing funds for Respondent’s
operation of the city of Memphis Hospital. To date, the county
continues to remain the landowner of Respondent’s facilities.
Respondent is specifically not permitted to sublet the lease and
all of the real and personal property is titled in the name of
Shelby County Government.
The lease agreement, as well as Respondent’s corporate
charter and Respondent’s 1994 revised bylaws, require that the
meetings of Respondent’s board of directors be subject to the
Tennessee open meetings act or (Sunshine Law). The lease
agreement also requires Respondent to make the hospital avail-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD348
able to all Shelby County residents who are in need regardless
of their financial status.
Kuhn testified that each year the county adopts an operations
budget as well as a capital improvement budget. When the
county adopts the operating budget for the upcoming year, the
county also appropriates the necessary funds to accommodate
the budget and to fund Respondent. Kuhn explained that the
operating budget is funded predominantly by “fees, taxes, and
property taxes.” Kuhn testified that the county has continued to
issue bonds and assume the obligation of capital improvements
for the facility leased to Respondent. As an example of the
county’s financial responsibility for the facility, Respondent
submitted into evidence the county’s July 1991 resolution to
appropriate $10 million for Respondent’s capital improvement
needs. In June 1991, the county passed a resolution to amend
the 1990–1991 fiscal year operations budget of $24,566,667 by
an increase of $2,233,333. In 1994, the commission appropri-
ated $16,584,000 from the 1993–1994 fiscal year capital im-
provement budget for the completion of the ambulatory care
facility, the purchase of radiology equipment, and the expan-
sion of the radiology and labor and delivery facilities. Respon-
dent’s June 30, 2003 and 2002 financial statement reflects that
the county appropriated $23 million in 2002 and in 2003 to
partially offset the costs of medical care for indigent residents
of the county. Appropriations from the county for capital im-
provements for 2003 and 2000 were approximately $11.4 mil-
lion and $4.5 million, respectively.
While the county allocates an amount for Respondent’s an-
nual budget, the allocation may be paid monthly if the county’s
cash funds are low. Kuhn recalled previous occasions when the
county commission had issues with Respondent or the Univer-
sity of Tennessee physicians who staff the hospital and the
commission required Respondent to report back to the county
every 2 months. In those instances, the county legislatively
appropriated funding to Respondent on a month-to-month basis
because of the political or public issue with which they were
dealing. While the mayor does not have a line item veto for
specific items in Respondent’s budget, he has a line item veto
over the portion of the Shelby County budget that provides the
funding for Respondent’s budget.
On April 6, 1982, Respondent applied for exemption from
Federal income tax pursuant to Section 501(c)(3) of the internal
revenue code. Section 5 of the application inquires as to
whether the applying organization controls or is controlled by
any other organization. In response, Respondent stated: “The
Shelby County Government in effect controls the organization
through its power to appoint the directors of the organization.
The organization replaces the Memphis and Shelby County
Hospital Authority, Inc. as the operating entity for the City of
Memphis Hospital.” By letter dated August 23, 1982, Respon-
dent was notified of its tax-exempt status for Federal income
tax under 501(c)(3) of the internal revenue code.
On October 3, 1986, County Attorney Kuhn provided a writ-
ten opinion to the county’s chief administrative officer on the
ramification of Respondent’s board in refusing to appear before
the county commission. County attorney Kuhn noted that there
was no duty set out in the instruments creating Respondent that
mandatorily requires Respondent’s board members to appear
before the county commission committee when requested to do
so. He went on to add however, should the board members
refuse to do so, the mayor and the county commission have
three methods of recourse available. The mayor and the com-
mission could limit or decrease the deficit funding to Respon-
dent due to the fact that the appropriation of funds is a discre-
tionary matter. Secondly, the mayor and the county commis-
sion can institute proceedings for the removal of board mem-
bers if this refusal is deemed to be justification for removal for
“cause.” Thirdly, under the terms of the lease agreement, the
county may terminate the lease upon 6 months written notice
without cause and take over the operation of the hospital as a
county entity. In his written opinion, County Attorney Kuhn
pointed out that the provisions in the bylaws and charter that
deal with the creation of Respondent’s board of directors
“clearly indicates that it is a quasi-governmental board.”
Respondent’s revised bylaws of December 11, 1992, reiter-
ated that the board of directors would consist of 12 regular
directors, plus 3 ex-officio directors. The bylaws provided:
“The regular directors shall be appointed by the Mayor of
Shelby County, Tennessee, subject to the approval by the board
of commissioners of Shelby County. A majority of the direc-
tors shall be residents of Shelby County, Tennessee.” The by-
laws further provided that in the event of a board vacancy, the
chairman should submit names of prospective board members
to the mayor based upon the recommendations of the nominat-
ing committee, or the full board. The bylaws provided that the
mayor may consider the candidate but the appointment of the
successor to fill the vacancy shall be made by the mayor of
Shelby County in his sole discretion, subject to the approval of
the board of commissions of Shelby County. Kuhn testified
that he could not recall any instances when the mayor or the
county commission removed a member of the board. He re-
called however, that the mayor and the county commission
have denied reappointment of board members.
In previous years, the county commission has raised staffing
issues with Respondent while approving Respondent’s budget.
Kuhn explained that the county’s approval of Respondent’s
budget was a “pretty big stick” because of the degree of deficit
funding involved. Kuhn recalled that on one occasion during
the mid-1980s, the county sent him to Respondent to review
financial records when the county administration discovered
that there were a large number of uncollected bills that in-
creased the amount of the deficit funding. Occasionally county
administrative officials have appeared at Respondent’s board
meetings to address issues concerning the hospital’s operation.
Kuhn also recalled that at one time, one of the commissioner’s
raised concerns about the length of time that patients were wait-
ing to be seen in one of Respondent’s outpatient clinics. While
Kuhn could not recall all of the details of the county’s response
to their dissatisfaction, he explained that it was not unusual for
the county to pass resolutions directing Respondent to take
certain actions. Although Kuhn could not recall the full details,
the record contains a November 1991 resolution in which the
county commission requested an investigation of excessive
waiting time for patients at Respondent’s Gailor Clinic and the
emergency room. The commission further resolved that the
hospital and health committee be empowered to utilize the ser-
REGIONAL MEDICAL CENTER AT MEMPHIS 349
vices of the county commission’s internal auditor to compile
information needed to complete what the commission described
as “this much needed and long overdue investigation.”
On December 5, 1994, the county commissioner’s session
was attended by AFSCME’s attorney, and its Washington, D.C.
representative, as well as a representative of the Memphis Min-
isters’ Association, a State Representative, and a number of
Respondent’s employees. Both the AFSCME’s attorney and
others present at the meeting asked the county to urge Respon-
dent to hold a fair election to resolve the issue of employee
union representation. After discussion and consideration of the
request, the county commission passed a resolution “urging The
MED to proceed expeditiously to hold an election to resolve the
issue of employee union representation.” In 1995, after a
breakdown in contract negotiations, Respondent withdrew its
recognition of AFSCME’s representation of its non-
professional employees. Mary Whitaker, Respondent’s vice
president of legal affairs, testified that county leadership di-
rected Respondent to mediate the dispute with the Union and to
“get a contract” with the Union. Mayor Jim Rout appointed
Attorney Arnold Pearl to serve as mediator between Respon-
dent and AFSCME. Whitaker, who was corporate legal coun-
sel at the time, testified that the county gave Respondent no
option or discretion as to whether it would enter into a contract
or memorandum of understanding with AFSCME. Respon-
dent’s agreement with the AFSCME remains in effect.
Whitaker testified that Respondent experienced a major fi-
nancial crisis in 1995 when Respondent lost $42 million result-
ing from the State’s conversion from Medicaid to Tenn-Care.
The mayor appointed Nancy Lawhead as his special assistant
for health policy to deal with these issues. Respondent submit-
ted into evidence Respondent’s board meeting minutes for June
4, 1996, March 31 and July 2, 1997, and September 15 and
November 8, 2000 reflecting Lawhead’s attendance. During
the June 4, 1996 board meeting, Board Chairman Lewis Donel-
son expressed some concerns about the viability of Respondent
and stressed the need for possible affiliation with another hospi-
tal or system in order to survive. He also added that the
mayor’s advisory committee had concluded that Respondent is
a major asset to the community and must be preserved. During
the July 2, 1997 board meeting, Board Member Waller re-
minded the board that the Respondent is an active participant in
the planning process initiated by Shelby County Government
supporting the integration of all county-funded providers of
affiliated and direct health care services. The activities were
under the auspices of the mayor’s advisory council on health
policy and chaired by Respondent’s board member Barbara
Holden. During the September 15, 2000 meeting, Chairman
Donelson discussed proposed consolidation with other health
care providers. Donelson assured all present however, that the
board had no intention of implementing any of the proposed
consolidation/moves without the approval of both the mayor
and the county commission.
Respondent’s employees who were previously employed by
the Memphis and Shelby County housing authority have con-
tinued to participate in the county’s pension and benefits plan.
Those employees hired after Respondent’s incorporation are
not covered by the county’s pension and benefits plan. Re-
spondent is not required to follow the county’s purchasing pro-
cedures, bidding guidelines, or the county’s job posting re-
quirements. Kuhn testified that Respondent maintains its own
general liability and medical malpractice insurance policies
separate from the county.
On May 21, 2003, the General Assembly of the State of Ten-
nessee amended Tennessee Code Annotated; Section 29-20-
102, relating to the Tennessee Governmental Tort Liability Act.
Through this amendment, the provisions of the Governmental
Tort Liability Act were extended to Respondent as a nonprofit
public benefit corporation operating a hospital whose voting
board of directors (or governing body) is appointed, designated,
or elected by one or more designated Governmental entities and
which hospital corporation either receives funds appropriated
by a county legislative body or legislative body of a municipal-
ity; or receives or leases hospital real property from a county
and/or municipality. The amendment further provided that
such hospital corporation would be subject to the state’s open
meetings law and the open records law to the extent that other
local Government hospitals and Government hospital authori-
ties are subject to such laws.
Under the lease agreement with the county, Respondent is
required to have a public audit. The independent audit dated
December 1, 2003,44 reflects the audit of “the consolidated
balance sheets of “Shelby County Health Care Corporation, a
component unit of Shelby County, Tennessee (d/b/a The Re-
gional Medical Center at Memphis) and subsidiaries as of June
30, 2003 and 2002 and the related consolidated statements of
operations, changes in net assets, and cash flow for the years
then ended.”
Whitaker testified that the Federal agency that was formerly
known as Health Care Financing Administration (HCFA) and
now known as CMS has treated Respondent as a public entity
by allowing Respondent to make “intergovernmental” transfers
to the State of Tennessee as a transfer from a unit of Govern-
ment within a State. Respondent’s expenditures were counted
as those of the State of Tennessee for purposes of obtaining
Federal matching funds. Whitaker further testified that CMS is
now using what is called “certified public expenditures,” which
permits Respondent’s losses from charity care, bad debt, treat-
ment of medically indigent persons, and losses from Medicaid
to be considered to be State losses and thus entitled to a Federal
match. Whitaker testified that only public entities could have a
certified public expenditure.

4 Respondent’s consolidated financial statements for the years ended
June 30, 2003 and 2002 reference the 1996 clarification and definition
of a Governmental organization for accounting purposes by the Finan-
cial Accounting Standards Board (FASB) and the Governmental Ac-
counting Standards Board (GASB). The document includes the lan-
guage that because the mayor appoints the board members subject to
county commission approval, and the county allocates funds to Re-
spondent for indigent care, Respondent qualifies as a component unit of
the county for accounting purposes and thus Respondent has to apply
accounting principles generally accepted in the United States of Amer-
ica applicable to state and local Government entities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD350
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
As nursing director for all operating rooms at Respondent’s
facility, Linda Duncan is responsible for nursing personnel in
all of Respondent’s operating rooms including those areas
known as Chandler, the burn center, ambulatory surgery, emer-
gency, as well as the trauma operating room (TOR). Susan
Raburn is the nurse manager for the Chandler operating room,
the burn operating room, and the TOR. For the past 3 years,
Linda Pulley has served as the patient care coordinator for the
TOR and supervises all the TOR registered nurses (RN’s).
There are approximately 24 to 28 TOR registered nurses or
RN’s. Unlike other departments in the hospital, RN’s working
in the TOR normally work two 24-hour-shifts per week, fol-
lowed by a 24-hour shift and 12-hour shift the following week.
Respondent’s staffing guidelines require a minimum of six
RN’s for each shift to cover the TOR’s three operational oper-
ating rooms (OR’s). Multiple medical services perform surger-
ies in the TOR. Prior to surgery, the medical specialty surgeon
books the case through the charge nurse and completes a post-
ing card identifying (1) time of the scheduled surgery, (2) the
identity of the staff performing the surgery, and (3) any addi-
tional or specialty instruments that will be needed for the sur-
gery. As Respondent is a teaching hospital, the surgeons are
University of Tennessee Medical School residents. The general
surgery physicians, who are also known as “surgery A” for
each shift, determine whether a case will go to surgery and the
order in which the surgeries will be performed.
Linda Pulley (Pulley) acts as charge nurse when she is pre-
sent at the hospital. She designates a charge nurse in her ab-
sence. On each shift there are three TOR teams normally con-
sisting of two nurses and a nurse anesthetist assigned to each
operating room. One nurse functions as scrub nurse and the
other nurse is designated as the circulating nurse or circulator.
Because the scrub nurse cannot leave the operating room (OR),
only a circulator can be designated as charge nurse in Pulley’s
absence. As each operating team completes a case, the team is
reassigned to the next case designated for surgery. Witzleb
testified that previously the TOR was designated for only
trauma surgery. In recent years however, the TOR has also
performed elective surgeries that were previously handled only
by Chandler OR. While nurses in Chandler OR are given
scheduled breaks and lunch periods, the TOR nurses have no
specified lunch or break periods. If a case continues for longer
than 4 hours, the assigned nursing team has the option of re-
questing relief on that case if there are other nurses available
and not already assigned to cases in the other operating rooms.
Even if a nurse requests relief after 4 hours of surgery, he or
she may be required to immediately begin another case if all
three operating rooms are needed for surgery.
B. Operating Room Stresses and Staff Behavior
Rita Kimmons testified that the TOR is very stressful at
times. In describing the atmosphere, she explained “one minute
the place can be quiet and the next minute they can have three
operating rooms running with three patients on the table and all
dying at the same time.” Unlike the elective surgery OR, the
TOR is “life and death.” Kimmons described the mood of the
OR during the part of the case with the greatest intensity. She
explained:
Everybody is very focused in on what they’re doing. Every-
body’s yelling, you know, you can have anesthesia yelling for
blood, the doctors getting upset because they don’t think the
scrub nurse is passing an instrument fast enough, the poor cir-
culator is in and out of the room trying to take care of anesthe-
sia’s needs, the doctor’s needs, the scrub nurse’s needs. So it
is a very hectic scene going on.
In describing the stressful work situation, Becky Wood ex-
plained:
We may be sitting down to eat in the lounge and within 5
minutes you may be back scrubbed on someone with a knife
in their heart, or a gunshot wound to the heart with their chest
open. I mean that you have to be ready to go at any moment.
Nurse Susan Engel testified that TOR is a very stressful en-
vironment because the TOR receives traumas from all over the
mid-South and the facility runs three operating rooms for 24
hours a day for 365 days a year. Engel explained that in re-
sponse to the stress, voices are sometimes raised, tempers flare,
and individuals may yell. She testified “people get a little hy-
per when somebody’s dying and they’re running back trying to
save them.”
C. Witzleb’s Union Activity and Respondent’s Response
to the Union Activity
In approximately June 2002, Local 205 of the Service Em-
ployees International Union, Tennessee Health Care and Public
Service Workers Union (Union) began organizing efforts
among Respondent’s nurses at Respondent’s Memphis, Ten-
nessee facility. Witzleb not only served as a union committee
member, she also solicited union cards, distributed union litera-
ture, and participated in telephone solicitations for the Union.
During the latter part of August 2002, the Union distributed a
handbill containing the signatures of nurses who supported the
Union. Witzleb’s signature was included on the handbill. In
late August or early September, the Union distributed another
handbill displaying the pictures of five individual nurses and a
statement from each nurse as to why she supported a union.
Witzleb’s picture and testamentary was included in the hand-
bill.
Becky Wood testified that she first became aware of the un-
ion handbill containing the nurses’ signatures when she ob-
served anesthesia employee Kerry Snyder and Dr. Martin A.
Croce, Respondent’s chief of trauma and critical care (Croce),
reading the handbill in the anesthesia workroom. When Snyder
asked Croce what he thought about the handbill, Croce stated,
“These names will be forever emblazoned in my mind.”
On August 22, 2003, Croce issued a memorandum to the
TOR nursing staff. In his memo, Croce acknowledged the
Union’s attempt to “infiltrate” the hospital. He stated: “Al-
though my philosophy is quite liberal, I adamantly oppose
[Emphasis added in text] a union of nurses-arguably the most
important of health care professionals.” Croce implored the
nurses to “ignore propaganda and lies that may be spread by the
REGIONAL MEDICAL CENTER AT MEMPHIS 351
Union advocates.” He assured the nurses that he was continu-
ing to work with hospital administration to help solve existing
problems. In the last paragraph of the memorandum he stated:
Finally, I know that the TOR is a difficult place to work. Pa-
tients are very ill, families can be demanding, and the cases
never seem to end. I know you don’t do it for the money. I
sure don’t. However, the rewards are immeasurable—
remember your feelings the last time a patient who arrived
near death was quickly resuscitated, had a laparotomy with
packing and towel clips and survived? Even when three
rooms were running? That patient would have been dead at
another hospital. Those feelings cannot be put into words.
For those who are not interested in working hard or truly
making a difference in patients’ lives—the MED may not be
the place for you. For all of you who wish to continue your
dream of service to those less fortunate and move forward
with hard work, cooperation, professional attitudes, and loy-
alty to patients—thank you for your support.
Witzleb recalled that on or about August 24, 2002, Dr. Bruce
Steinhauer, Respondent’s president and chief executive officer,
Steinhauer, conducted a meeting with approximately 14 TOR
nurses. The meeting occurred at approximately 6:30 a.m. on a
Saturday and was attended by Gloria Thomas, Respondent’s
vice president of human resources. During the meeting, Stein-
hauer told the nurses that he did not think that they needed a
union and he also asked about their concerns and allowed them
to ask questions. Witzleb recalled that she came to the meeting
with a four-page list of questions to cover with him. On Sep-
tember 19, 2002, Steinhauer, Raburn, Duncan, and Rhonda
Nelson, vice president patient care services, issued a memoran-
dum to the staff of trauma OR and the trauma recovery room.
The memo began with the following:
During the week of August 19, 2002, we had the opportunity
to meet with some of the TOR staff. During that session, we
identified opportunities to improve communication and to
provide feedback related to your concerns. Listed below are
some of the issues you mentioned and the actions that have
been taken.
The memo continued with management’s response concern-
ing six separate issues. While management confirmed that
there was no way in which to provide Shelby County benefits
to employees or to expand the bathroom facilities, management
confirmed that an outside contractor had been obtained to as-
sess the entire air handling system, a TOR/TPACU representa-
tive had been added to the staff nurse advisory council, and a
followup meeting had been held to resolve the staff’s concerns
about the weight and moisture of the metal instrument contain-
ers.
On September 25, 2002, Witzleb sent a letter in followup to
the August 24 meeting. In the letter, Witzleb stated that it had
come to her attention that one of the staff doctors was of the
opinion that she had been “rude” and/or “mean” to Steinhauer
during the August 24 meeting. Witzleb added that it was her
understanding that this particular doctor had labeled her and at
least one other nurse in their department as “troublemakers.”
Witzleb apologized if she had come across as “rude” or if it
appeared that she was trying to be “mean.” She explained that
she had attempted to relate to him some of the current issues
and concerns of the staff nurses. She went on to explain that
she would not apologize for being a “troublemaker” if being a
troublemaker involved refusing “to stand by and watch an in-
justice,” refusing to “back down” when one’s “principles of
truth and human decency are challenged,” and refusing to “stop
complaining until wrong situations are rectified in the work
place.” She also stated: “If a ‘troublemaker’ is someone who is
passionate when it comes to fighting social inequities, then here
I stand.”
In the summer of 2002, Rosemary Loftis worked in Respon-
dent’s burn OR, which is located on the same floor as the TOR.
While she could not identify the exact date, she recalled seeing
pamphlets concerning the Union’s organizing efforts. She also
recalled that she had been asked to sign “a petition for the hos-
pital to say that we didn’t want a union in there.” Loftis re-
called that on an unspecified date during the summer of 2002,
she attended a staff meeting in her work area conducted by
Raburn and Patient Care Coordinator Barbara Patrick. While
the other nurses had already left the meeting area, she and a
fellow employee Melissa Wellborn remained in the recovery
room where the meeting had been held. Raburn and Patrick
returned to the recovery room accompanied by another woman
wearing nursing scrubs. Raburn explained that the woman
wanted to speak with Loftis and Wellborn. Raburn and Patrick
remained in the room. Loftis testified that the woman might
have identified herself as working in the newborn center.
Loftis recalled that the woman stated “they were putting a peti-
tion together for the people that wanted to not have a union in
the hospital and would we like to sign it.” After Wellborn de-
clined to sign the petition, the woman left the area.
Nurse Susan Capozzi-Vazquez testified that in August or
September 2002, there had been “something” posted in the
TOR for employees to sign and to show their support for the
“hospital and not for the Union.” The petition was posted on
Pulley’s door as well as on one of the bulletin boards in the
lounge. While nurse Engel recalled seeing the petition posted
on the bulletin board in the lounge, she could not remember any
of the signatures contained on the petition. Capozzi-Vazquez
testified that because the petition contained names that she did
not recognize, she asked Pulley about the petition. Both Pulley
and Capozzi-Vazquez were in the lounge together at the time of
Capozzi-Vazquez’ inquiry. Pulley responded by stating: “You
need to sign that.” Capozzi-Vazquez recalled that one of the
signatures on the petition was nurse Hester Moore.
Pulley denied having any conversation with Capozzi-
Vazquez about the petition. She admitted however, that the
petition had been posted on her door. Pulley recalled that she
and Raburn were talking in her office when employee LaDorris
Knowles came into the unit. Knowles asked if she could post a
petition for employees to sign: “stating they did not want the
union.” When Knowles asked if she could post it on Pulley’s
door, Raburn stated: “that’s fine.” Pulley asserted that at the
time that the petition was posted on her door, the bulletin board
contained union handbills.
Steinhauer, Nelson, and Chief Operating Officer Brenita
Crawford issued a memorandum to all registered nurses on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD352
November 26, 2002. The memorandum included a resolution
by Respondent’s board of directors that Respondent would not
recognize union representation of registered nurses at Respon-
dent’s facility through informal or any other means. In the
memo, the management representatives explained that this
decision meant that there would be “no counting of cards, elec-
tion process, or recognition of a union for nurses.” Manage-
ment further explained that this decision was based in part upon
the board of directors’ belief that Respondent is not covered by
the National Labor Relations Act and there being no Tennessee
law requiring Respondent to recognize and deal with a union
for registered nurses.
D. Witzleb’s Discharge
As an insulin-dependent diabetic for 4 years, Witzleb must
keep a frequent check on her blood sugar and take insulin to
control her blood sugar. Although she has used an insulin
pump to administer the insulin for the past year, she must still
monitor her blood sugar. If Witzleb takes too much insulin, she
may have an insulin reaction or if she does not take enough
insulin, her elevated blood sugar may cause drowsiness or a
diabetic coma.
Witzleb clocked in prior to 6:45 a.m. on February 15, 2003.
The first case to which she was assigned was a gunshot-head-
wound victim and the patient went into the operating room at
approximately 7:05 a.m. As the surgery was expected to be a
routine craniotomy, the operating room was initially booked for
only 3 hours. Before 9 a.m. however, the projected time for
surgery was extended to 6 to 7 hours. As circulating nurse,
Witzleb informed charge nurse Hester Moore that her team
wanted the 4-hour relief. Although Witzleb’s team anticipated
relief after their first 4 hours, the third operating team began a
procedure around 10 a.m. Around 12:05 p.m., Witzleb spoke
with Charge Nurse Moore. She told Moore that one of the
other teams was getting ready to close their surgery and she
asked if Moore wanted the finishing team to take a lunchbreak
and then relieve Witzleb’s team. Moore agreed but added only
as long as surgery A did not want to continue to keep running
three operating rooms. Witzleb recalled that she responded “I
really don’t give a shit what Surgery A wants to do. I need to
check my blood sugar, take some insulin, and eat something
before I do another elective case or I can go home.” As
Witzleb walked out the door, she heard Moore state: “Well, I
guess you’ll need to talk to Dr. Fabian about that.” Witzleb
testified that Moore’s last statement made her angry and she
came back into the room. Witzleb acknowledged that she was
sure that she raised her voice and she told Moore that she didn’t
have a problem speaking with Dr. Fabian. She added that she
would be more than happy to talk with him. Before walking
out the door, Witzleb added that when she finished talking with
him, he could call her endocrinologist and explain to her why
Witzleb couldn’t get her blood sugar under control. Witzleb
testified that operating team number two finally relieved her
team around 1:30 p.m.
Dr. Linda Hill is an assistant professor and associate pro-
gram director of the nursing and seizure program. She is also
employed by the UT Medical Group in the department of anes-
thesiology as a part-time staff nurse to provide anesthesia ser-
vices at Respondent’s trauma center. Hill estimated that she
normally works anywhere from three to five 24-hour shifts
during the month in the TOR. Hill was working with Moore’s
operating room team on February 15. Hill recalled that Witzleb
came into the operating room and asked Moore something
about taking lunch because she needed to eat. Hill could not
recall the specifics but remembered that there was some discus-
sion about another case that the physicians wanted to start. Hill
testified that Witzleb was extremely upset because she was not
going to be able to get relief and something to eat. Witzleb
talked about her diabetes and her need to eat and to check her
blood sugar. Hill recalled that there was an exchange of words
and there was cursing. Hill never reported the incident to any
of the nurse managers or the physicians. Hill explained that she
had not reported the incident because she had not considered it
to be a “reportable” incident or something that was appropriate
to report. Hill testified that she had previously witnessed oc-
currences when people have been agitated or angry and have
used profanity or acted inappropriately because of the intense
work environment. Hill testified that there had been no nega-
tive impact on the patient care or the surgical procedure. Hill
confirmed that neither she nor the surgeons stopped their pro-
cedure during Witzleb’s conversation with Moore.
Sometime in March, Pulley asked Hill about the incident and
asked her what was said. Hill told Pulley that she remembered
the incident but she could not recall exactly what was ex-
changed. Pulley did not ask Hill to prepare a statement nor did
Hill prepare one on her own.
Following the incident on February 15, Witzleb worked an-
other 24-hour shift and a 12-hour shift the following week.
Although the 12-hour shift was a day shift from 7 a.m. to 7
p.m., no one in management said anything to her about the
events of February 15. Because of her own scheduled surgery,
Witzleb did not return to work again until March 27, 2003.
Before being assigned to her first case that day, she was called
into Duncan’s office to meet with Duncan, Pulley, and Raburn.
Duncan told Witzleb that several people had reported Witzleb’s
using profanity in the operating room. Witzleb responded
“Well, if you’re telling me that I’ve been reported by Hester
Moore for using profanity in the O.R., that would be the pot
calling the kettle black.” Witzleb testified that during the
course of the conversation she looked toward Pulley and then
made the statement to Duncan: “I’ve told her this many times,
and I’ll tell you too, if you’re going to continue to run this op-
erating room5 like an elective OR, you need to staff6 it like
one.”
During the March 27 meeting, Witzleb mentioned that she
had previously documented an employee’s threatening employ-
ees with bodily harm and no action had been taken. Although
Pulley acknowledged Witzleb’s documentation of the previous
incidents, Duncan, Pulley, and Raburn informed Witzleb that
she was being suspended pending suspension. She was re-
minded of Respondent’s confidentiality rule and cautioned not
to discuss this action with any of her coworkers. Witzleb was
informed that she could go to human resources and request a

5 The transcript incorrectly substitutes the word “office.”
6 The transcript incorrectly substitutes the word “stamp.”
REGIONAL MEDICAL CENTER AT MEMPHIS 353
review of her file. When Witzleb did so, she found only her
evaluations over the past 16 years and no reports concerning
the incident. Witzleb testified that during her 16-1/2 years of
employment her prior discipline included only one verbal coun-
seling for tardiness and one written reprimand for mislabeling
specimens.
Duncan later telephoned Witzleb on March 31 and informed
her that she was terminated. Later in the week, Witzleb re-
ceived a written notification of her termination along with cop-
ies of incident reports by Hester, Pulley, and nurse Lynn
Regester. Witzleb later filed a grievance concerning her dis-
charge with Respondent’s internal grievance procedure. The
personnel action review committee that was designated to re-
view Witzleb’s discharge was composed of five management
committee members. Management selected two members and
Witzleb selected two members. The fifth committee member is
selected by management to oversee the hearing and to act as a
tiebreaker if needed. After hearing the evidence presented by
Witzleb and management, the committee determined on July
30, 2003, that termination was too severe a punishment in the
absence of any prior disciplinary warnings. Witzleb’s termina-
tion was reduced to a final warning and Witzleb was reinstated.
E. Respondent’s Evidence on Witzleb’s Termination
Witzleb’s termination notice dated March 31, 2003, includes
the following explanation for her termination as:
Violated Med Care Standards and Standards of Conduct as it
relates to personal demeanor and insubordination, including:
use of discourteous, profane, or loud language; disrespectful
conduct or language toward or relating to a person acting in a
supervisory capacity (Charge Nurse); Argumentative behav-
ior in communicating with a person in a position of authority;
Conduct or language that is derogatory or may undermine au-
thority; or other conduct which signifies intentional disregard
for, or unwillingness to submit to the authority of the hospital.
Hester Moore recalled that around noon on February 15
Witzleb came into the operating room where she was working
as the circulating nurse. Witzleb explained that one of the other
teams was close to finishing and that after eating lunch they
would relieve Witzleb and her team. Moore confirmed that the
arrangement would be fine with her as long as surgery A did
not want to continue to operate three operating rooms. Moore
testified that Witzleb responded that she didn’t give a “shit”
what surgery A said because she was going to eat or go home.
When Moore told Witzleb that she would be glad for Witzleb to
communicate this to Dr. Fabian, Witzleb responded by saying
that she didn’t give a “f—k” what he said and she was going to
eat. Moore testified that Witzleb added that she would let Fa-
bian call her endocrinologist and explain why she could not eat.
Moore maintained that Witzleb declared that she was going to
eat or go home. Moore asserted that during the exchange, eve-
ryone in the operating room looked up to see what was happen-
ing. Moore recalled that while Witzleb mentioned contacting
her endocrinologist during the conversation, Witzleb had not
mentioned anything about checking her blood sugar or about
taking insulin.
Moore acknowledged that she is a personal friend of Pulley
and she telephoned Pulley on Sunday, February 16. Moore
explained that she had not called Pulley with the intention of
“writing up” what occurred. She called Pulley simply to make
her aware of what happened in the event that something was
said to her by one of the surgeons or if complaints were brought
to her. On Monday, February 17, or the first day that both Pul-
ley and Moore were both back at work, Pulley typed a report of
the February 15 incident. Moore testified that Pulley prepared
the report because Moore did not have access to a typewriter.
Nurse Lynn Regester testified on behalf of Respondent con-
cerning Witzleb’s conversation with Moore. As the scrub nurse
working with Moore, Regester was present in the room when
Witzleb came in to talk with Moore. Regester recalled that
Witzleb came into the room and told Moore that she needed
relief and she needed to go to lunch. Moore told her that she
would see to it that she would get lunch as long as surgery A
had no problem. Regester recalled that Witzleb left the room
and then burst back into the room and spoke with Moore in a
loud voice. Regester testified that Witzleb told Moore that she
would go home if she did not get lunch. Regester recalled
Witzleb’s saying that she would call Fabian and see why he had
a problem with her getting lunch and that he could call her
endocrinologist. Regester recalled that Witzleb used profanity
and she recalled that the wording of the profanity was similar to
“I don’t give a shit what he says.” Regester further testified
that the physicians and the nurse anesthetist stopped, looked
around, and commented on the interchange. Regester testified
that on the morning after Moore’s conversation with Witzleb,
Moore wrote up her statement concerning the incident and
asked Regester to prepare a statement as well. Regester de-
clined to prepare a statement but agreed that she would sign
Moore’s if she believed it to be factually correct. She reviewed
Moore’s statement and signed it.
Linda Duncan, Respondent’s director of surgical services,
testified that she personally questioned Witzleb about the Feb-
ruary 15, 2003 incident. While Duncan did not elaborate in her
testimony about others in attendance, her March 27, 2003 meet-
ing with Witzleb is documented in General Counsel’s Exhibit
59 and reflects that Pulley and Rayburn were present with Dun-
can and Witzleb. Duncan testified that during the interview
Witzleb acknowledged that Moore’s comments made her angry
and she had come back into the operating room and began to
question Moore about her comments. Duncan testified that
Witzleb admitted to her that she told Moore that she would not
do another elective case and that she was going to eat her lunch
or go home. Duncan also testified that Witzleb acknowledged
telling Moore that she would call Dr. Fabian if she needed to do
so and he could call her endocrinologist and explain to him why
she couldn’t get her lunchbreak when she needed it and why
she couldn’t keep her blood sugar under control. Duncan fur-
ther testified:
She stated that she could not recall whether or not she had
used profanity. But she stated to me that she told the charge
nurse, I will not do another elective case. I will get my lunch
or I will go home. And then she said to me, I told the charge
nurse that, I told Hester that, and I’d tell you that too.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD354
When asked by Respondent’s counsel how Duncan inter-
preted Witzleb’s statement, she responded:
I considered it to be insubordinate not only toward the charge
nurse, when she said it to her, but also toward me during my
interview with her. It was defiant. It was with disregard for
authority.
Although Duncan confirmed that the decision was made to
terminate Witzleb, she did not identify who made the decision.
Both Pulley and Raburn were called as Respondent’s witnesses.
Neither individual was asked about Witzleb’s alleged admis-
sions during the March 27, 2003 interview.
F. General Counsel’s Evidence of Disparity
Witzleb admitted that she had been angry during her discus-
sion with Moore and that she used the word “shit” and she had
spoken in a raised voice. Witzleb denies that she ever told
Moore that she would not do another elective surgery before
getting lunch. Witzleb testified that she told Moore that she
needed to check her blood sugar, take some insulin, and eat
something before she did another elective surgery. Witzleb
admitted that she made the statement “or I can go home.”
Witzleb acknowledged that while she had been a “smart ass” in
making such a statement, she had not seriously considered go-
ing home. Witzleb explained that she made the statement dur-
ing her March 27 interview with Duncan that “I told her that,
and I’ll tell you the same thing too.” Witzleb maintained, how-
ever, that this statement was a reiteration to Duncan of a previ-
ous statement to Pulley concerning elective surgeries in the
TOR. Witzleb testified that she had simply repeated to Duncan
her previous statement to Pulley that if the TOR continued to
operate as an elective OR, it needed to be staffed like one with
designated lunch and breaktime. In giving this opinion, she had
looked toward Pulley stating: “I’ve told her this, and I’ll tell
you this too.”
G. Profanity in the TOR
Moore testified that profanity does not offend her and that
she uses profanity in the OR. She acknowledged that she has
used the word “[f—k]” and she’s sure that she has probably
used it when a case has been scheduled. She further acknowl-
edged that she has used the term “[f—k]” me with a red hot
poker” and it is possible that she has used this expression in the
presence of the medical residents when they are scheduling
cases. Dr. Derange Boykin is a staff anesthesiologist employed
by the UT Medical Group, Inc. He has worked in Respondent’s
TOR and Chandler OR for 12 years. He is responsible for su-
pervising the nurse anesthetist and the anesthesiology medical
residents in the Chandler O.R. Boykin testified that profanity is
fairly common in the TOR. Boykin estimated that at least
twice a week for the past 2 years, he has heard Moore use pro-
fanity. In front of Pulley, she has stated “We got to draw all of
these ‘[f—kin]’ Chandler cases again today, I guess we’ll just
get ‘[f—ked]’ around again.” Boykin testified that these kinds
of comments are considered to be commonplace in the TOR
and considered to be “venting” because of fatigue.
Boykin recalled an incident in July 2003 involving a nurse
and the orthopedic residents who were doing an elective ortho-
pedic case. The residents did not immediately come into the
operating room after the patient was brought in for surgery.
When they finally entered the room, the nurse told them “they
better get their mother ‘[f—kin]’ asses in the room” if they
wanted to do the cases.
Nurse Jean Ashburn testified that cursing in the OR was
common. When Ashburn has worked as a circulating nurse,
other operating room personnel have said to her “Why are you
still sitting there on your ass, get up and go get what I asked
you for?” On more than one occasion when medical staff has
complained that they need additional staff in the OR, Ashburn
and other nurses have replied: “Well as soon as I can shit an-
other nurse out in the corner, we’ll get you another one in
here.” Ashburn also recalled a 2001 conversation between
Senior Surgery Resident Chris Pollack and Pulley concerning
the order of the cases. After the resident informed Pulley that
he wanted a particular case to go next, he turned and walked
down the hall away from her. Ashburn recalled that Pulley
yelled at him and followed him into the trauma ICU. During
their conversation, Pulley shook her finger in his face and told
him “Well, you know, I’m trying to get these God damn cases
done.” Nurse Kimmons was also present during the conversa-
tion between Pulley and Pollack. Kimmons recalled that during
the conversation, Pulley cursed Pollack, shook her finger in his
face, and became louder and louder. During the interchange,
the patient who was scheduled for surgery was waiting in the
hall and was conscious to overhear the entire conversation.
Nurse Susan Engel recalled that on one occasion, the medi-
cal resident performing surgery began a case before notifying
Croce. When Croce arrived in the TOR, the staff explained that
the surgery had been posted for a specific time. Croce re-
sponded with a raised voice: “Since when does a fucking case
get started on time around here?” Engel testified that his com-
ment was not in jest as he continued by telling them; “You
should have notified me. I didn’t know this case was going
now.”
Nurse Kristina Johnson testified that profanity was used on a
regular basis in the TOR. Johnson has used profanity in Pul-
ley’s presence and she has heard Pulley use profanity as often
as two or three times each day.
Wood testified that it is rare for profanity not to be used in
the operating room. When asked to give an example, she ex-
plained:
[I]f you have a patient who needs blood, and [the] blood bank
says the blood’s not ready, you know anesthesia may scream
at you, “call the ‘[f—kin]’ blood bank and see if the blood’s
ready yet, or tell the ‘[f—kin]’ clerk—call the blood bank and
we need to know what the ‘[f—kin]’, you know it’s just eve-
ryone. The surgeons may [be] screaming for it, using the
same language.
Wood went on to explain that anesthesia may use the same
language and she described it as “just sort of a language be-
tween family members” and not uncommon.
Nurse Sheryl Jones recalled an incident in March or April
2002 when Wood was charge nurse. Jones initially understood
that she was to go into surgery to give the 4-hour relief to Ve-
ronica Castillo and her partner, Becky Lastor. As she was
scrubbing up to go into surgery, she was then told that Castillo
REGIONAL MEDICAL CENTER AT MEMPHIS 355
did not want relief. When Jones was later called into Pulley’s
office to speak with Pulley and Duncan, she learned that Wood
had accused her of refusing to give Castillo relief. When she
denied the refusal to provide relief, Wood was called into the
office. During the conversation, Wood began cursing and stat-
ing that she “didn’t give a [f—k].” Jones recalled that Wood
used the term “[f—k] you” or “[f—k] it” at least two or three
times during the conversation with Pulley and Duncan. Jones
responded by asking Wood if such language was necessary and
then asking Duncan if they had to listen to such language.
Jones testified that she did not recall that Duncan or Pulley ever
asked Wood to restrain her vocabulary at any time during the
meeting.
H. Insubordination in the TOR
In August 2002, Johnson was designated as charge nurse on
her shift. Two operating rooms were being used for surgery
and there was no clerk on duty. As charge nurse, Johnson an-
swered the phones, retrieved blood from the blood bank, and
did whatever was needed to keep the operating rooms function-
ing. Becky Wood and her nursing partner had been assigned to
one of the operating rooms in use and Wood reported that they
wanted their 4-hour relief. When Johnson and her nursing
partner went into the operating room to relieve Wood and her
partner, Johnson told Wood that because there was no clerk,
Wood and her partner would have to answer the phone and be
available at the desk if anyone came in to book a case or to
handle anything else that might be needed. Wood responded
that she was not going to answer the “[f—king]” phones and
she didn’t care if they rang off the “[f—king] hook.” Dr. Tim
Fagan, Respondent’s TOR medical director, was present in the
operating room during Wood’s response to Johnson. Johnson
continued her case until the end of her shift. The following day
Pulley called Johnson at home and asked her about the incident
with Wood. When Johnson returned to work, she was called
into a meeting with Pulley, Duncan, and Wood. Johnson testi-
fied that during the meeting, Wood did not deny what she had
said to Johnson. Pulley and Duncan asked Johnson if she con-
sidered Wood’s remarks to be insubordination and Johnson said
that she did. After leaving the meeting, Johnson spoke with
Nurse Susan Capozzi-Vazquez who had been working with
Johnson on the day of Wood’s refusal to answer the phone.
Capozzi-Vazquez mentioned to Johnson that just prior to John-
son’s conversation with Wood, Wood also told Capozzi-
Vazquez that she was not going to answer the phones when she
received her 4-hour relief. Although Johnson attempted to
speak further with Wood about the incident, Wood refused and
responded rudely. In response to this additional information
from Capozzi-Vazquez and Wood’s response, Johnson wrote a
note to Pulley on August 19, 2002, detailing Wood’s additional
rudeness. Johnson also explained that had she known about
Wood’s earlier attitude and comments to Capozzi-Vazquez, she
would have written up Wood for the incident. In her note to
Pulley, Johnson described Wood’s conduct as unnecessary and
unacceptable.
Becky Wood recalled the incident in which Johnson asked
her to answer the phones. Wood admitted that she told Johnson
“[f—k] that,” adding that she had been in the operating room
for 4 hours and she was going to get something to eat. Wood
recalled that within the next week, she was called into the of-
fice to discuss the incident with Johnson, Pulley, and Duncan.
She admitted to Duncan and Pulley that she had said “[f—k]”
and that she had told Johnson that she had been in the room for
4 hours and that she was going to get something to eat. Wood
confirmed that she neither received discipline for the incident
nor was the incident included in her annual evaluation.
Denise Rowell testified concerning an incident in January
2003, when she had been charge nurse on a 12-hour shift and
one of the nurses on duty was working her last night of orienta-
tion in the TOR. Rowell decided that this would be a good
opportunity for the nurse to be paired with another nurse and to
work autonomously while Rowell could function as backup as
well as charge nurse. Johnson testified that anytime there are
seven nurses present, it is always preferable to have the charge
nurse free of assignment to cases. Rowell recalled that the
nurse came to the main desk and indicated that since she had
been up last for an operating room assignment, she was possi-
bly going to bed. There are facilities for the nurses to rest or
sleep during a 14-hour shift if they are not needed in surgery.
Rowell explained to the nurse that not only was she not up last,
but she was in fact up next for surgery. Rowell continued to
explain to the nurse that her assignment had been changed for
that shift and she would be working on a team with another
nurse. The nurse became visibly angry and demanded to know
what Rowell would be doing all night. Rowell explained that
she would be working as charge nurse. Again the nurse de-
manded to know what Rowell would be doing and Rowell re-
sponded: “I’m going to be in charge.” The nurse then replied:
“So you’re going to sit on your fat ass and [do] nothing while I
work all night.” Rowell asked the nurse twice if she were re-
fusing the assignment and there was no reply. Kristina Johnson
was present during the conversation and she also overheard the
nurse’s comment that Rowell was going to sit on her “fat ass”
all night and the nurse’s refusal to acknowledge whether she
was refusing to take the assignment. Rowell testified that she
telephoned Pulley at home and told her about the situation.
Pulley told Rowell to leave the nurse assigned to work with the
other nurse as planned. Pulley telephoned the unit and spoke
with the nurse. After talking with Pulley, the nurse did not say
anything further about the assignment. Sandra Weir not only
corroborated the nurse’s comments to Rowell, but also corrobo-
rated the nurse’s having been called into the office to take Pul-
ley’s telephone call.
On May 10, 2002, Witzleb prepared an incident report in-
volving a nurse’s conduct on January 25, 2002. In the report,
Witzleb described the nurse’s comments in response to her
assignment to an ophthalmology case involving an elderly pa-
tient with a self-inflicted shotgun wound and terminal cancer.
Witzleb reported that the nurse made the comment in the TOR
that “If those “[f—king] ophthalmology doctors want a “[f—
king] microscope, they had better bring their asses down here
and go to Chandler OR to get one because I’m not foolin’ with
no “[f—king] microscope.” Witzleb testified that in April 2002
she had written another incident report involving this same
nurse. Witzleb included in her April 28, 2002 report that the
nurse came to the front desk and stated in a threatening tone
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD356
“Someone has been in my box again and took my schedules.
This is the second time. I’m gonna have to come up in here and
beat somebody’s ass. I’ll find out who’s [doing] it and I’ll set a
trap for them—they’d better watch out. This is all over some
petty crap that they should have already got over. They better not
mess with me because they don’t know who they are dealing
with.” Witzleb also included in the report that the nurse’s com-
ments had been made in the presence of others and that the
nurse’s threats and hostile manner made her extremely uncom-
fortable. While Witzleb submitted the incident report to Pulley
the next day, she had no further discussion with Pulley about the
incident until Witzleb brought it up after her own suspension.
Dr. Derange Boykin also testified concerning conduct by the
same nurse who had been involved in the April and May 2002
incident reports. Because many of the TOR nurses work 24-hour
shifts, they may only be in the TOR for 8 days a month. A
nurse’s communication book is maintained in the TOR for the
nurses to share information with other staff members. Boykin
testified that he had been present in the nurses’ lounge on Sep-
tember 27, 2003, when the nurse entered the lounge. He recalled
that she stated that someone had stolen her “[f—kin]” baby pic-
tures from her locker. About an hour after her comment, the
nurses’ communication book included an entry with the follow-
ing language:
To the thief that stole the pictures of me and my baby off
my locker, I would appreciate it if you would be woman
enough to return them, and whatever problem you have with
me, bring it to me. Leave my children OUT of IT.7
The nurse included her name in capital letters and added that the
incident had occurred after she left work on September 26.
Cathy Craig testified that when she saw the note in the book
she made a copy of it because she felt personally threatened and
threatened for her coworkers. Approximately a week after the
entry, the page was torn from the communication book. On Oc-
tober 12, 2003, Craig prepared a letter concerning the nurse’s
September 27 entry. The letter that is signed by Craig and eight
other TOR nurses states that those signing the letter are “alarmed
at what is an openly hostile letter directed at us or our cowork-
ers.” The letter further addresses their concern with their safety
and the safety of their patients “due to the confrontational tone
set in the communication.” Craig left a copy of the letter for
Duncan, Rhonda Nelson, and Gloria Thomas in their respective
offices. Craig never received any response from anyone in man-
agement concerning her letter.
Susan Capozzi-Vazquez recalled that after seeing the nurse’s
communication book entry, she told Pulley that the entry was
very disturbing to her. Pulley told her that Raburn and Duncan
had been made aware of the entry and if she had any problems
with it, she could address it to them. In response to Pulley’s
comment, Capozzi-Vazquez wrote a letter to Raburn on October
9. In her letter, Capozzi-Vazquez not only explained that she
perceived the nurse’s entry as an “Attack,” but that she was also
concerned for her own safety and that of her coworkers. Capozzi-
Vazquez gave a copy of the letter to not only Raburn, but also to
Duncan, Nelson, and Thomas. Although Capozzi-Vazquez was

7 The original note contained double underlining.
given an opportunity to discuss her concerns with Nelson, no
other manager spoke with her about her October 9, 2003 letter.
I. Respondent’s Evidence Concerning Alleged
Insubordination by Other Nurses
Pulley acknowledged that Johnson reported Wood’s response
when directed to answer the telephone as “I’m not answering the
fucking phones, I’m going to bed.” Pulley was also aware that
this statement had been made in the presence of Fabian and oth-
ers. Pulley not only asked Johnson to write up the incident, but
she also held a meeting with Wood and Johnson. Pulley testified
that during the meeting Wood denied saying that she was not
going to answer the “[f—king] phone. Pulley also admitted that
she later received Johnson’s second statement concerning the
incident with Wood.
Pulley further testified that Rowell reported to her the incident
involving the nurse’s statement to Rowell about sitting on her
“fat ass.” Pulley testified that she telephoned the nurse and told
her that her comments to Rowell had been “wrong.” Pulley
asked the nurse if she could “go back out, work with Denise,
apologize to her, and straighten things out” without Pulley’s
having to intervene. The nurse stated that she could do so. In
response to questions by counsel for the General Counsel, Pulley
testified that the nurse “questioned” Rowell’s assignment but did
not refuse it. On further cross-examination, Pulley was asked if
the nurse’s statement was insubordinate conduct toward a nurse
in charge. Pulley acknowledged that such conduct was “inappro-
priate” but not insubordinate because the nurse had not refused
the assignment. Raburn testified that the nurse’s statement to
Rowell was inappropriate and “might be” insubordination.
Raburn was unaware of whether any discipline resulted from the
incident. The nurse’s performance evaluation for 2003 includes a
brief reference to the incident involving Rowell. The evaluation
includes: “There was one isolated incident with another em-
ployee where an inappropriate comment was made to this em-
ployee. Sharon was talked with and this kind of problem has
never happened again. Sharon exhibits positive interaction with
fellow employees. A team player and deserves a three in this
category.” A category of three indicates that the employee meets
or slightly exceeds performance expectations in a particular cate-
gory.
Pulley testified that she first learned of the September 2003 en-
try in the communication book from the nurse who made the
entry. Pulley recalled that the nurse paged her and told her that
she had made the entry in the book. The nurse told her that she
wanted her to know because Pulley would probably hear about it
on her next shift back to work. Pulley testified that she told the
nurse that she should not have displayed her anger in that way
however, she could certainly understand how the nurse would
want to make the entry in the communication book. Pulley also
recalled that she and Raburn later spoke with the nurse about her
inappropriate comments.
Susan Raburn testified that she received Witzleb’s May 10,
2002 report concerning this same nurse’s statements in the TOR.
Raburn testified that she gave the report to Duncan and she had
no knowledge as to whether the nurse was counseled or disci-
plined for the incident. Raburn also acknowledged Witzleb’s
April 2002 incident report in which Witzleb reported the nurse’s
REGIONAL MEDICAL CENTER AT MEMPHIS 357
having used “inappropriate language” or having been “argumen-
tative with someone at the hospital.” Raburn recalled that man-
agement counseled with the nurse about her conduct. Raburn
acknowledged that the nurse admitted that she had threatened to
“kick someone’s ass” and Raburn confirmed that such conduct
was a violation of Respondent’s Medcare standards. Raburn
recalled telling the nurse:
We said we understand how frustrating it is to have your
schedule taken out of your mailbox for three months, and
we understand that you feel like this is targeting you, and it
was directed at you, but this is not the appropriate way to
handle this.
Raburn testified that she also told the nurse that management
would take further action if they heard of her doing anything of
this kind again.
Raburn acknowledged that she was unaware of any discipline
in the nurse’s personnel file. Raburn also admitted that the
nurse’s December 2002 annual evaluation contained no reference
to the January 25 or the April 28, 2002 incidents. Additionally,
the evaluation contained no reference to the nurse’s making
threats, inappropriate comments, or insubordination. Raburn
admitted that she received two separate reports from nurses stat-
ing that they felt threatened because of the nurse’s September 27,
2003 entry in the nurses’ communication book. Raburn testified
that she turned the matter over to Duncan and she had no knowl-
edge of any counseling or discipline to the nurse for this incident.
Raburn admitted that the nurse’s December 2003 performance
appraisal contained no reference to misuse or inappropriate
comments in the communication book. The only supervisor’s
comments in the appraisal included a commendation for the em-
ployee’s “handling strife in the unit with professionalism” as well
as the following:
Things directed at her have not prevented her from remain-
ing professional with her co-workers. She has reported dif-
ferences to management for their intervention. She is very
supportive of management decisions in the unit.
J. Becky Wood’s Contact with the NLRB
Wood testified that in early 2003 she received a message on
her answering machine from someone with the NLRB. She did
not recall the name of the individual who left the message. Wood
did not return the call immediately. Within a few weeks of get-
ting the message, she happened to see Pulley in the lounge at
work. She stopped Pulley and asked her if she knew why the
“Labor Board” was trying to contact her. Wood testified that
Pulley told her that she didn’t need to talk with the Labor Board;
she needed to go to administration and speak with the corporate
legal department. When Wood asked Pulley what she thought
the call concerned, Pulley suggested that it probably concerned
Jeanette Blackshear who had been terminated the previous year.
Wood later gave a telephone affidavit to the Board concerning
Blackshear in May 2003.
Later in 2003, Wood went into the NLRB’s Regional Office
and provided an in-person affidavit. It was in that affidavit that
she mentioned her earlier conversation with Pulley about the
telephone message from the NLRB. On May 8, 2003, NLRB
Field Attorney Linda Mohns sent a letter to Respondent’s coun-
sel supplementing an earlier letter and listing additional allega-
tions for which a response was requested in Case 26–CA–21173.
The May 8 letter included the allegation that in February 2003,
Pulley instructed an employee that she was not “under any cir-
cumstances, to talk to the NLRB investigator who had contacted
her.” By letter dated May 28, 2003, Respondent’s counsel re-
sponded to the Region’s request for information. In the nine-
page letter addressing 16 separate allegations, Respondent’s
counsel confirms that Wood sought out Pulley to inform her of
the telephone call from the Board and to ask what she should do
in response. Respondent informed the Region that Pulley sug-
gested that Wood contact human resources or Respondent’s at-
torneys if she was unsure of what to do. Respondent categori-
cally denied that anyone instructed Wood not to talk to the
NLRB.
K. Wood’s Extended Sick Leave
Wood testified that she had a doctor’s appointment on either
May 29 or May 30, 2003. For a reason that she could not recall,
the doctor was unable to see her as scheduled. The doctor cau-
tioned her not to return to work until he was able to examine her
and a second appointment was scheduled for either June 2 or 3.
Wood testified that she telephoned Pulley on the same day that
the doctor rescheduled her. Wood explained to Pulley that the
doctor did not want her to return to work until her next scheduled
appointment that was set for the following week. Wood recalled
that while she telephoned Pulley at the end of the week, she was
not scheduled to work again until the beginning of the following
week. Wood told Pulley that she would call her again as soon as
she was able to see the doctor. Pulley told her to contact human
resources and to find out what paperwork was needed for ex-
tended sick leave. Wood submitted a request for extended leave
dated June 4, 2003. The six-page document included the signa-
ture and certification of her treating physician. Wood later re-
ceived a letter from human resources confirming that the sick
leave was approved. Wood did not return to work until later in
August.
Wood testified that as long as an employee gives 24-hour no-
tice, they could be paid for the entire period of extended sick
leave. When Wood received her first check around the middle of
June, her pay was short for 24 hours. Thinking that this shortage
was a mistake, Wood telephoned Pulley and then Duncan. Dun-
can explained that it was management’s discretion as to whether
she would be paid for the first 24 hours of her absence. If the
absence is deemed to be a hardship on the unit, Respondent has
the option to deny pay for the first 24-hour period. The parties
stipulated that Wood was not paid for the first 24 hours of her
absence that began on June 1, 2003.
Respondent’s personnel manual sets forth the procedure for an
employee taking extended sick leave. The policy provides that
extended sick leave will be paid beginning with the fourth con-
secutive scheduled workday missed due to illness or injury. The
policy further provides that the first 3 days must be paid from the
paid time off (PTO) account. Wood admitted that under Respon-
dent’s PTO policy, PTO may be denied where it would cause
undue hardship. Wood also admitted that Ashburn, Witzleb,
Kimmons, and Sandy Long are active union supporters who have
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD358
been paid for the first 24 hours of sick leave. Wood also ac-
knowledged that while she had worn a union ink pen around her
neck she had neither attended union meetings nor distributed
union handbills. Her picture was not displayed in any of the
union handbills.
Kristina Johnson requested extended sick leave from the sec-
ond week in May 2003 until the second week in June 2003. Al-
though Johnson notified Pulley of her need for extended sick
leave at least 2 days before her next scheduled shift to work, she
was denied pay for the first 48 hours of her absence. When she
asked Pulley why she was not paid, Pulley told her that the unit
was short staffed and it was within Respondent’s discretion to
deny pay. When Johnson later made the same inquiry of Randy
Britton, Respondent’s director of employee relations, she was
again told that the unit was short staffed and Respondent was not
required to pay her.
Ashburn recalled that she telephoned Raburn on May 16,
2003, and told her that she was going to have to take extended
sick leave. Ashburn was next scheduled to work on May 18.
Ashburn later submitted the necessary paperwork and her ex-
tended sick leave was approved. Ashburn’s first 24 hours of her
absence was paid from her PTO bank and the remainder from her
extended sick bank.
III. ANALYSIS AND CONCLUSION
A. Jurisdiction
1. Applicable law
While Section 2(2) of the Act defines an “employer” to in-
clude any person acting as an agent of an employer, directly or
indirectly, the Act specifically excludes any State or political
subdivision thereof. Respondent asserts that it is not subject to
the Board’s jurisdiction because it constitutes a political subdivi-
sion. General Counsel argues that the Board may properly exer-
cise jurisdiction over Respondent because, other than initially
appointing its board of directors, the relevant public officials do
not exercise sufficient control over Respondent’s board to make
it responsible to these public officials.
In NLRB v. Natural Gas Utility District of Hawkins County,
402 U.S. 600, 604–605 (1971), the Supreme Court found that
State law is not controlling on the question of whether an entity is
a political subdivision and that it is to the “actual operations and
characteristics” of the entity that the Board must look in deciding
whether the entity is exempt from the Act’s coverage. Id. at 603–
604. The Court adopted the Board’s test, which limits the ex-
emption to entities that are either (1) created directly by the State,
so as to constitute departments or administrative arms of the
Government, or (2) administered by individuals who are respon-
sible to public officials or to the general electorate. Id. at. 605.
In determining whether the Board will assert jurisdiction or
exempt an employer as a political subdivision, the Board has
considered a number of factors over the past years. In Res-Care,
Inc., 280 NLRB 670 (1986), the Board held that in determining
whether to assert jurisdiction over an employer with close ties to
exempt Governmental entities, it would determine the extent of
the control exerted by the exempt entity over essential terms and
conditions of employment retained by the employer and the ex-
empt entity in order to determine whether the employer was ca-
pable of engaging in meaningful collective bargaining. In a later
case however, the Board rejected the earlier test articulated in
Res-Care, Inc., finding it “unworkable and unrealistic.” In its
decision in Management Training Corp., 317 NLRB 1355, 1358
(1995), the Board decided that in determining whether to assert
jurisdiction, it would only consider whether the employer meets
the definition of “employer” under Section (2) of the Act and
whether the employer meets the applicable monetary jurisdic-
tional standards. The Board further explained that jurisdiction
should no longer be determined on the basis of whether the em-
ployer or the Government controls most of the employees’ terms
and conditions of employment.
In its l989 decision in University of Vermont, 297 NLRB 291
(1989), the Board found the employer exempt from the Board’s
jurisdiction as a political subdivision. Applying the test in Haw-
kins County, the Board took note of the fact that the University
was created by a special act of the Vermont General Assembly.
The legislation was later amended however, to allow the Univer-
sity’s board of trustees full power to use, control, sell, or dispose
of all the real estate and personal property belonging to the Uni-
versity. The board of trustees operated in an autonomous fashion
with independent authority to establish personnel policies, wages,
benefits, and to enter into collective-bargaining agreements and
to ratify such agreements without the approval of the legislature.
In its rationale for finding the University exempt from jurisdic-
tion, the Board specifically noted that because 12 of the 21 trus-
tees were selected by the State, either by legislation or by guber-
natorial appointment, the State clearly exercised control over the
university’s board of trustees. Id. at 295.
In contrast to the facts involved in the University of Vermont
case, there is no dispute that Respondent was not created by the
State of Tennessee. Accordingly, Respondent is exempt under
Hawkins County only if officials who are responsible to public
officials or to the general electorate administer it. Respondent
argues that it meets this second criterion and is thus exempt from
the Board’s jurisdiction.
In its 2002 decision in Research Foundation of the City of New
York,8 the Board did not find the employer exempt from jurisdic-
tion. Similar to the facts of this case, the employer was not sub-
ject to Governmental competitive civil service requirements in-
cluding competitive bidding and purchasing practices. Unlike
Respondent however, the employer received its revenues from
private fees and received no direct tax-levy funds or funds from
any Government appropriating authority. While there was volun-
tary submission of financial information to the Government, the
employer’s budget was not approved by any Government agency.
The appointment and removal of the employer’s board of direc-
tors was grounded solely in the bylaws with removal of board
members determined by the board itself. The Board found that
the 17-member board was not responsible to any public official
or the general electorate. Following Hawkins County, the Board
reiterated that in order to determine whether an entity is “admin-
istered” by individuals responsible to public officials or to the
general electorate, the Board considers whether the individuals
are appointed by, and subject to, removal by public officials. Id.
See also Hawkins County, 402 U.S. at 605.

8 337 NLRB 965 (2002).
REGIONAL MEDICAL CENTER AT MEMPHIS 359
This requirement is consistently evidenced throughout Board
decisions. In Cape Girardeau Care Center, Inc., 278 NLRB
1018, 1020 (1986), the Board did not exempt the employer from
its jurisdiction. The employer’s incorporation as a not-for-profit
corporation occurred a month prior to the county’s resolution
approving its formation and it was found that the employer was
created in order to issue tax-exempt bonds to purchase a nursing
home facility. Of significance was the fact that the county nei-
ther had the authority to appoint the board of directors nor to
remove any board member. The incumbent board members ac-
tually selected their successors subject to county approval. The
Board determined that there was no “direct personal accountabil-
ity” by the board to the county’s public officials and any approval
was simply ministerial. In St. Paul Ramsey Medical Center, 291
NLRB 755 (1988), the employer had at one time been an exempt
political subdivision as it had been managed and operated by a
commission specifically created by an act of the state legislature.
The prior act was repealed and replaced with an act that created
the employer as a nonprofit “public corporation.” In its revised
organization, the employer underwent significant changes in its
management and operation. While the Board found that the em-
ployer was no longer an administrative arm of the Government, it
went on to consider whether the employer met the second prong
of the Hawkins County test. In finding that the employer also
failed this second test of Hawkins County, the Board noted that
there was no requirement that the employer’s board of directors
be Government officials or “appointed” by Government officials.
Additionally, there was no provision for the removal of its board
members by any Government official. Accordingly, the em-
ployer was not an exempt political subdivision as it was neither
an administrative arm of the Government nor did individuals who
were responsible to public officials administer it.
In following Hawkins County, the Board has continued to con-
sider the relationship between the employer’s governing body
and the Governmental agency to which it is linked. The Board
has continued to find it significant if a majority of an employer’s
board of directors is composed of individuals responsible to pub-
lic officials or individuals responsible to the general electorate.
See FiveCAP, Inc., 331 NLRB 1165 (2000). For an entity to be
deemed “administered” by individuals responsible to public offi-
cials or to the electorate, those individuals must constitute a ma-
jority of the board. See Enrichment Services, 325 NLRB 818,
819 (1998). In his brief, counsel for Respondent argues that the
Hawkins County test does not require that the public officials
involve themselves in day-to-day administration or decisions
affecting the employer. Citing Camden-Clark Memorial Hospi-
tal, 221 NLRB 945, 948 (1975), Respondent urges that the re-
quirement that public officials appoint a majority of the govern-
ing board establishes the requisite accountability.
2. Other factors for consideration
There are a number of factors demonstrating that Respondent’s
employees do not share common working conditions with city or
county employees. Respondent’s employees who have been
hired after 1981 are neither eligible for the county’s retirement
program nor are they a part of the county’s other insurance and
benefits programs. There is nothing in the record to indicate that
Government officials are involved in the day-to-day operation of
the hospital. Respondent maintains its own general liability and
medical malpractice insurance policies separate from the county.
In her brief, counsel for General Counsel argues that there are
a number of factors to demonstrate that when Respondent was
created, it was not intended to be an agency of the county Gov-
ernment. Specifically, General Counsel references the minutes
from a 1981 board of directors meeting in which the chairman of
the county board of commissioners stated that Respondent was
not an agency of the county Government. The minutes also in-
clude the statement that a principal reason for dissolving the
Memphis and Shelby County Hospital authority and leasing the
hospital to Respondent was to remove the county Government
from the operation of the hospital except to the “limited extent”
set forth in the lease agreement. Additionally, General Counsel
argues that there are continuing instances when Respondent has
not held itself out as a Government agency. General Counsel
submitted into evidence litigation documents from three prior
lawsuits involving Respondent. In one lawsuit, a discharged em-
ployee sued Respondent seeking a civil service remedy. Respon-
dent defended the suit by taking the position that the employee
ceased to be a civil service employee when Respondent took over
the hospital operations in 1981. The second lawsuit involved
Respondent’s initiation of a Section 301 suit in a 1990 Federal
district court proceeding, seeking to vacate an arbitration award.
In its complaint, Respondent states that it is a private hospital and
is an “employer” within the meaning of the National Labor Rela-
tions Board Act. The third case concerned a 1989 State court
proceeding commenced by a local newspaper. The newspaper
filed a petition in Shelby County Chancery Court for the disclo-
sure of certain records of Respondent under the Tennessee Public
Records Act. Respondent opposed the disclosure and argued that
it was not a Governmental entity or department under the county
Government. The litigation materials reference a 1989 affidavit
by Respondent’s president in which the president asserts that
Respondent is not dependent upon the county and does not de-
pend upon the mayor or the county commission to manage or
operate the hospital. In May 2003, nurse Leann Beasley wrote to
the mayor requesting his assistance with the union organizing
drive. The mayor declined to do so. General Counsel also ar-
gues that it is significant that the mayor responded that it would
be inappropriate for him to take an active role in the unionization
issue. He went on to add that The Med is a separate corporation
and if he were to get involved in its management activities, law-
yers suing the hospital for negligence or for other causes would
be able to contend that the corporation is simply the Shelby
County Government.
3. Summary and conclusion
While there are a number of factors that would otherwise have
been significant under the Board’s previous test in Res-Care, the
applicable standard for determining Respondent’s exempt status
continues to be the test set out Hawkins County. General Coun-
sel’s evidence clearly demonstrates that Respondent has taken a
contrary legal position in prior litigation. While Respondent’s
contradiction in successive legal arguments may indicate that
Respondent’s current argument is disingenuous, I don’t find the
contradiction to be a significant factor. The fact that Respon-
dent’s attorneys have initiated and defended prior lawsuits by
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD360
using contrary legal arguments does not diminish the specific
facts that must be considered for the Hawkins County analysis.
While it is undisputed that there is no specific state statute estab-
lishing Respondent’s existence, individuals who are responsible
to public officials administer Respondent. General Counsel ac-
knowledges that Respondent’s board of directors are appointed
by the county mayor with the approval of the county commission
and likewise they are subject to removal by the mayor and the
commission. While there is no evidence that the mayor or com-
mission have removed a board member while serving their term,
the mayor has denied reappointment to board members.
In Rosenberg Library Assn., 269 NLRB 1173 (1984), the
Board found an employer to be exempt despite the fact that the
employer’s employees did not share the same wages and benefits
with city or county employees. Under the provisions of a bene-
factor’s will, a 20-member board of trustees was established to
select the board of directors. Seventy-five percent of the em-
ployer’s operating budget was derived from county and city
taxes. The employer’s board of directors was required to submit
its budget first to the county judge and then to the county com-
missioners. After a series of hearings, the commissioners deter-
mined the amount of funding that would be allocated to the li-
brary association. In finding that the employer was exempt as a
political subdivision, the Board determined that the employer was
administered by individuals who were responsible to public offi-
cials including the county judge and the county commissioners
who controlled budgetary and operational policies.
In a more recent case, the Board also found the employer to be
exempt under similar circumstances. In Oklahoma Zoological
Trust, 325 NLRB 171 (1997), the employer’s operations were
funded almost exclusively from public funds. The employer’s
meetings were required to be public and the employer’s budget
was placed in the public domain. The employer was required to
annually file its budget with the mayor and city council. More
significantly, the mayor appointed the trustees. In his dissenting
opinion, Chairman Gould placed much significance on the fact
that both the composition of the board of trustees and the ap-
pointment procedure were established by a trust agreement, not
by statute. In his opinion, the trustees were therefore accountable
by choice and not by law. Id. at 173. The Board majority, how-
ever, did not find this to be a limiting factor and found the em-
ployer exempt from jurisdiction. In the present case, I note that it
is the lease agreement and not a State statute that provides the
authority for the appointment of the board of directors. Under the
terms of the lease however, Respondent cannot unilaterally
change the method of selection of its board of directors.
Based on the total record evidence, I find that Respondent is
administered by board members who are responsible to the
mayor and the county commissioners of Shelby County, Tennes-
see. While there is no evidence that any board member has been
removed during his or her term, the mayor and the county com-
mission appoint each board member and have previously exer-
cised their authority to deny reappointment of board members.
Shelby County owns all of the land and improvements that com-
prise the hospital facility. The county commissioners dissolved
the previous Memphis Hospital authority contingent upon Re-
spondent’s formation and the establishment of the contractual
lease agreement between Respondent and the county. The lease
agreement includes the following restrictions and limitations: (1)
Respondent’s annual budget is subject to the approval of the
county; (2) Respondent is required to have a public audit and to
file an annual financial report to the county; (3) Respondent is
required to make the facility available to all Shelby County resi-
dents who are in need regardless of their financial status; (4) the
meetings of Respondent’s board of directors are subject to the
Tennessee open meetings act, and, (5) the number and the selec-
tion of Respondent’s board of directors remains subject to ap-
pointment by the mayor and county commission as set out in
Respondent’s initial charter. The county may terminate the lease
if there is any change in the number or method of selection of the
board of directors.
Respondent’s operating budget is not only approved by the
county commission but is funded by county fees and property
taxes. While Respondent operates its facility independently on a
day-to-day basis, the county commissioners and the mayor have
previously become involved in labor matters and operational
issues. In 1994, after an appeal from AFSCME’s attorney and
representative, the commission issued a resolution urging Re-
spondent to proceed expeditiously to an election. When contract
negotiations broke down in 1995, the county directed Respondent
to mediate the dispute with AFSCME and to “get a contract.”
Whitaker testified that the county gave Respondent no option or
discretion as to whether it would enter into a contract or memo-
randum of understanding with the Union.
Accordingly, the total record evidence supports a finding that
Respondent is exempt from the Board’s jurisdiction as a political
subdivision and I recommend dismissal of the complaint. In the
event that the Board does not find a sufficient basis to affirm my
recommendation, I have also included findings with respect to all
complaint allegations.
B. Whether Respondent Unlawfully
Terminated Amelia Witzleb
General Counsel asserts that Respondent terminated Witzleb
because of her activities in support of the Union. In cases alleg-
ing 8(a)(3) violations that turn on an employer’s motivation, the
Board applies an analysis in which General Counsel bears the
burden of establishing a prima facie showing that (1) Witzleb
engaged in union activity; (2) Respondent had knowledge of that
activity; and (3) Respondent based its discriminatory action on
antiunion animus. Wright Line, 251 NLRB 1083 (1980). Once
the General Counsel has met this burden of persuasion, the bur-
den shifts to Respondent to demonstrate by a preponderance of
the evidence, that it would have taken the same action absent
Witzleb’s protected activities. NLRB v. Transportation Man-
agement, 462 U.S. 393 (1983).
With respect to the employer’s burden under Wright Line, the
Board has said that it is not enough to show that it had a legiti-
mate reason for imposing discipline against an employee; the
employer must demonstrate that the same action would have
been taken even without the protected conduct. Hicks Oils &
Hicksgas, Inc., 293 NLRB 84, 85 (1989).
The evidence in this record clearly establishes that Witzleb en-
gaged in protected activity prior to her discharge. It is undisputed
that Witzleb was one of the most visible and active union sup-
porters. If there had been any question about her support,
REGIONAL MEDICAL CENTER AT MEMPHIS 361
Witzleb’s face and her own words prominently displayed on the
Union’s August 2002 handbill extinguished any possible doubt.
Even after appearing in the Union’s handbill, Witzleb continued
to engage in conduct that brought her to the attention of hospital
management. Witzleb followed Steinhauer’s August 24 em-
ployee meeting with a personal letter to him. In the letter,
Witzleb acknowledged that because of her comments during
Steinhauer’s August 24 meeting, she might have been labeled as
“rude” or a troublemaker. While Witzleb apologized for any
rudeness, she went on to state that she would not apologize for
being a troublemaker if being a troublemaker involved refusing
to stand by and watch an injustice, refusing to back down when
one’s principles of truth and human decency are challenged, and
refusing to stop complaining until wrong situations are rectified
in the workplace. She proudly proclaimed that if a “troublemaker
is someone who is passionate when it comes to fighting social
inequities, then here I stand.” Undeniably, Witzleb could not
have made any clearer her intentions to continue her support for
the Union and to continue her opposition to Respondent’s resis-
tance to unionization. Thus, General Counsel has clearly estab-
lished the first two prongs of the prima facie case.
In order to meet the Wright Line test, General Counsel must
also prove that animus was a substantial or motivating factor
during the employer’s decisionmaking process. Manno Electric,
321 NLRB 278, 280 fn. 12 (1996). In essence, General Counsel
must prove that animus was present during the decisionmaking
process. Sears, Roebuck & Co., 337 NLRB 443, 443 (2002).
Neither the complaint alleges nor the record contains evidence
that any member of management threatened Witzleb or any other
employee because of their union activity.9
While there is no direct evidence that Respondent terminated
Witzleb because of her activities in support of the Union, Board
precedent allows a finding of animus to rest on indirect evidence
in appropriate cases. Montgomery Ward & Co., 316 NLRB
1248, 1253 (1995). It is recognized that since direct evidence of
motivation is seldom available, the motivation required to estab-
lish unlawful discrimination may be shown by less than direct
evidence. Carpenters Health & Welfare Fund, 327 NLRB 262,
265 (1998); NLRB v. Buckhorn Hazard Coal Corp., 472 F.2d 53,
55 (6th Cir. 1973); Shattuck Denn Mining Corp. v. NLRB, 361
F.2d 466, 470 (9th Cir. 1966).
In late summer or early fall of 2002, the Union distributed a
handbill containing Witzleb’s photograph as well as four other
nurses. Each photograph was accompanied by the nurse’s multi-
paragraph statement concerning why the nurses needed union

9 General Counsel witness Sandra Weir testified concerning a state-
ment made by neurosurgeon Michael Mulbauer in December 2003.
The record reflects that Mulbauer is a physician with Semmes Murphy
Clinic; a physician’s group (with the agreement of the University of
Tennessee Medical Group) that contracts to provide neurology profes-
sional services to Respondent’s patients. While Respondent stipulated
that Mulbauer is in practice with one of Respondent’s board members,
the record contains no evidence to establish that Mulbauer was acting
as Respondent’s agent. During the course of the conversation Mul-
bauer told Weir about union organizers passing out handbills at the
Semmes-Murphy Clinic and he included: “You girls are going to get
yourselves in a lot of trouble.” I find no basis to establish that Mul-
bauer was acting as an agent of Respondent.
representation. In a separate handbill in August 2002, Witzleb’s
signature appeared along with other nurses’ signatures demon-
strating their support of the Union. Becky Wood testified that
when Croce read the handbill containing the signatures, he re-
sponded, “These names will be forever emblazoned in my mind.”
In Croce’s August 22, 2002 memorandum to the TOR nursing
staff, Croce explained that he was adamantly opposed to the
nurses’ union representation and he referenced the Union’s at-
tempt to “infiltrate” the hospital. While he did not specifically
threaten nurses for their support of the Union, he included the
statement: “For those who are not interested in working hard or
truly making a difference in patients’ lives—the MED may not
be the place for you.” In a November 26, 2002 memorandum to
all registered nurses, Nelson and Crawford informed the nurses
that Respondent would not recognize the union representation of
registered nurses through informal or any other means. It is un-
disputed that during the period of the Union’s organizing, a peti-
tion for nurses to show that they did not support the Union was
posted on Pulley’s door. Witzleb credibly testified that the peti-
tion remained on the door for several weeks or months.
Croce wrote his August 22 memorandum to the TOR nursing
staff on Respondent’s letterhead and he signed the memorandum
as professor of surgery, medical director of the trauma intensive
care unit, and chief of trauma and intensive care. Respondent,
however, denies that Croce is either a supervisor or an agent of
Respondent. Respondent argues that all of the physicians who
provide services at The MED are independent contractors and
thus not agents of Respondent.
Nurse Leann Beasley testified that she received Croce’s letter
from her nurse manager, Barbara Smith, who commented to
Beasley, “these are my sentiments exactly” as she gave Beasley
the letter. The minutes of TOR staff meetings reflect that nursing
managers convey to the staff nurses the practices and procedure
that Croce requires the nurses to follow. In determining whether
a person is acting as the agent of another, the Board applies the
common law principles of agency. See Allegany Aggregates,
311 NLRB 1165 (1993). Under the doctrine of apparent author-
ity, an agency relationship is established where a principal’s
manifestations to a third party supply a reasonable basis for the
third party to believe that the principal has authorized the alleged
agent to perform the acts in question. Service Employees Local
87 (West Bay Maintenance), 291 NLRB 82, 83 (1988). In de-
termining whether the actions by individuals towards employees
are attributable to the employer, the test is whether “under all the
circumstances, the employees would reasonably believe that the
employee in question was reflecting company policy and speak-
ing and acting for management.” Waterbed World, 286 NLRB
425, 426 (1987). I find that under all the circumstances, the
nurses would reasonably believe that both Croce’s verbal and
written statements about the Union reflected Respondent’s views
and that in making those statements he was acting on behalf of
management.
The record is undisputed that through Respondent’s November
memorandum to employees and its visible support for the “anti-
union petition” Respondent actively opposed the Union’s organ-
izational efforts. It is well established that any employer has a
perfect right to oppose a union and the employer is free to com-
municate to its employees its general view about unionism or any
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD362
specific views about a particular union as long as the communi-
cation does not contain any “threat of reprisal or force or promise
of benefit.” See NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969). While General Counsel alleges that Respondent’s
memorandum is violative of the Act, I have not found the record
to support this allegation and my findings concerning this allega-
tion are discussed in a separate portion of this decision. Conduct
that is not independently found to violate the Act may be used to
shed light on the motive for other conduct that is alleged to be
unlawful. Meritor Automotive, Inc., 328 NLRB 813 (1999);
American Packaging Corp., 311 NLRB 482 fn. 1 (1993). Even
lawful statements of opposition to unionization can serve as a
“backdrop and setting” for evaluating an employer’s motivation.
J.P. Stevens & Co. v. NLRB, 461 F.2d 490, 494 (4th Cir. 1972).
The Board has held that an employer’s expression of antiunion
comments, while not themselves violative of the Act, may never-
theless be considered as background evidence of animus toward
employees’ union activities. Tim Foley Plumbing Services, 337
NLRB 328, 329 (2001); Gencorp, 294 NLRB 717 fn. 1 (1989).
While the record is devoid of direct evidence of animus, I nev-
ertheless find that based upon the totality of the circumstances,
General Counsel has satisfied the burden of demonstrating
unlawful motivation. Among the factors that the Board has
found to support an inference of animus are (1) suspiciousness of
timing; (2) abruptness of the termination; (3) failure to ade-
quately investigate the alleged misconduct; (4) departure from
past practice; (5) disparate treatment of discharged employees;
(6) shifting or inconsistent reasons; and (7) false or pretextual
reasons given to explain Respondent’s action. See Medic One,
Inc., 331 NLRB 464, 475 (2000).
There is neither suspicious timing nor an abrupt discharge to
support the inference of animus. At the time of Witzleb’s dis-
charge, she had actively supported the Union for at least 6
months. Because she was absent from the hospital for sick leave,
her termination occurred approximately 6 weeks after the inci-
dent for which she was allegedly discharged. The more signifi-
cant factor that supports an inference of animus, however, is
Respondent’s departure from past practice.
Witzleb’s termination notice states that Witzleb was termi-
nated for a violation of “MedCare Standards and Standards of
Conduct as it relates to personal demeanor and insubordination,
including use of discourteous, profane, or loud language; disre-
spectful conduct or language toward or relating to a person acting
in a supervisory capacity (Charge Nurse); Argumentative behav-
ior in communicating with a person in a position of authority;
Conduct or language that is derogatory or may undermine author-
ity; or other conduct which signifies intentional disregard for, or
unwillingness to submit to the authority of the hospital.” Funda-
mentally, Respondent alleges that Witzleb was terminated be-
cause of her language and her “insubordination” or argumenta-
tive behavior toward a person in authority. Virtually each wit-
ness for the General Counsel testified that profanity in the TOR
was commonplace and used by both nurses and physicians. Even
Hester Moore admitted that profanity did not offend her and that
she also uses profanity in the operating room. Anesthesiologist
Boykin credibly testified that over the last 2 years he has heard
Moore use profanity at least twice weekly.
Additionally, General Counsel also presented evidence of
nurses’ insubordinate behavior that was not disciplined. Both
Wood and Johnson credibly testified that when Johnson assigned
Wood to answer the phones at the front desk, Wood not only
used profanity but also refused to do so. Both Johnson and
Wood credibly testified that Wood did not deny her behavior
when confronted by Johnson, Pulley, and Duncan. Wood, how-
ever, received no discipline for her behavior. Rowell and John-
son credibly testified that during a nurse’s last night of orienta-
tion in the TOR the nurse accused Rowell of sitting on her “fat
ass” all night when Rowell gave the nurse a new assignment.
Pulley admitted that Rowell telephoned her to report the nurse’s
behavior. Admittedly, Pulley called the nurse and asked if she
could “go back out, work with Denise, apologize to her, and
straighten things out” without Pulley having to intervene further.
No discipline was given to the nurse and her annual performance
appraisal referenced only an “isolated incident” involving an
“inappropriate” comment. Despite the reference to the incident,
she was evaluated as meeting or slightly exceeding performance
expectations.
It is undisputed that another nurse repeatedly engaged in con-
duct that was described by her peers as threatening and unprofes-
sional. Respondent does not deny knowledge of the nurse’s pro-
fanity and refusal to assist with getting necessary equipment for
an ophthalmology procedure in January 2002 or that she threat-
ened other employees in April 2002. In September 2003, the
same nurse wrote an inappropriate and angry note to other nurses
in the nurses’ communication book. Admittedly, management
received letters from nurses expressing concern for their own
safety and the safety of others concerning the communication
book entry. Although Raburn admitted that the nurse’s conduct
was in violation of MedCare standards, the nurse received no
discipline for any of these incidents. Neither her 2002 nor 2003
performance appraisals contained any reference to her profanity,
threats, or inappropriate conduct. On the contrary, her behavior
with coworkers was described as professional and she was
praised for being “very supportive of management decisions in
the unit.”
Pulley attempted to distinguish the behavior of these nurses by
asserting that while their behaviors were inappropriate, they did
not actually refuse assignments. Pulley described the nurse’s
comment to Rowell as “questioning” rather than insubordinate.
While both Raburn and Pulley testified that they spoke with the
nurse who was the subject of Witzleb’s incident reports of April
and May 2002, about making inappropriate comments, it is un-
disputed that the nurse received no discipline. I credit the testi-
mony of Johnson, Wood, and Rowell in finding that nurses have
not only used profanity toward charge nurses but have also re-
fused work assigned to them by charge nurses. Pulley’s attempt
to make a fine distinction of “questioning” rather than “refusing”
simply belies Respondent’s denial that similar conduct was toler-
ated from other employees. The overall record reflects that other
nurses have used far more offensive profanity in the TOR with-
out discipline or even dissuasion. Additionally, Respondent has
tolerated similar or even more insubordinate conduct than that
demonstrated by Witzleb. There is no evidence that any of these
other employees who engaged in similar conduct were active or
vocal union supporters. On the contrary, one of the nurses was
REGIONAL MEDICAL CENTER AT MEMPHIS 363
specifically recognized as an employee who reported fellow em-
ployees and supported management. Wood testified without
contradiction that when Croce read the names of the nurses sup-
porting the Union, he remarked: “These names will be forever
emblazoned in my mind.” Thus, even though there is no direct
evidence of animus, animus may be inferred from all of the cir-
cumstances. Electronic Data Systems Corp., 305 NLRB 219
(1991). Additionally, the Board has found that blatant disparity
is sufficient in itself to support a prima facie case of discrimina-
tion. See New Otari Hotel & Garden, 325 NLRB 928 fn. 2
(1998). The Respondent’s tolerance for similar conduct from
other employees in addition to Respondent’s demonstrated oppo-
sition to the Union supports an inference that Witzleb’s union
support was a motivating factor in Respondent’s decision to ter-
minate her. Accordingly, based upon the record as a whole, I
find that General Counsel has established that union animus was
a motivating factor in her discharge. Sears, Roebuck & Co., 337
NLRB 443 (2002).
Once General Counsel establishes a prima facie case that an
employee is terminated because of his or her protected activity,
the burden shifts to the respondent to establish that the same
action would have taken place in the absence of the employees’
union activities. An employer cannot carry its Wright Line bur-
den simply by showing that it had legitimate reasons for the ac-
tion, but must “persuade” that the action would have taken place
even absent the protected conduct. Centre Property Manage-
ment, 277 NLRB 1376 (1985).
In support of its position, Respondent submitted records to
demonstrate that it has disciplined other employees for similar
conduct. Respondent contends that Respondent’s Exhibits 33
and 34 contain 223 instances of discipline for acts of insubordina-
tion and improper conduct between January 1, 2000, and Decem-
ber 19, 2003. Undeniably, Respondent’s records indicate that it
has previously disciplined other employees for reasons arguably
related to the use of profanity and insubordination. Contrary to
Respondent’s assertion, however, not all of the submitted disci-
pline documents relate to conduct similar to that for which
Witzleb was allegedly terminated. Respondent’s Exhibit 33 also
contains records documenting (1) an employee’s November 2000
termination for loitering in an unauthorized area; (2) an em-
ployee’s first reprimand for cooking sausages on the heating unit
of the coffee maker in the nursing staff office of the patient clini-
cal area; and (3) an employee’s suspension for failing to secure a
confidential document and allowing it to be distributed within the
complex. On first blush, it would appear that Respondent’s re-
cords document instances when it has similarly disciplined other
employees for conduct comparable to that involved in the instant
case. Upon closer examination however, Respondent’s records
also demonstrate Respondent’s past practice of tolerance in simi-
lar circumstances as well as a practice of administering lesser
discipline for similar or more egregious kinds of conduct.
Respondent’s records10 reflect that an employee was termi-
nated in April 2003 for insubordination. The records also reflect
however, that prior to her discharge, the employee received a first
and second reprimand on September 18, 2002, and December 20,
2000, for leaving the hospital without permission. On February

10 R. Exh. 34.
12, 2003, the employee received a 3-day suspension for several
infractions including insubordination and the use of profanity.
On April 2, 2003, the employee took a smoke break rather than
assist the patient to whom she had been assigned. The employee
was found by the manager and escorted to the patient’s room.
While in the patient’s room, the employee in the presence of the
manager, argued with the patient resulting in her removal from
the room. The employee was placed on probation from April 3
to May 3, 2003. The employee was finally terminated on April
30 for non-compliance with the terms of the probation.
Respondent’s records11 also show that an employee was ter-
minated in 2001 for two incidents occurring in December 2000,
for disruptive, disrespectful, and unacceptable behavior under
Respondent’s standards of conduct related to proper personal
demeanor and insubordination. The personnel action review
committee decision prepared by Respondent’s director of em-
ployee relations, Randall Britton, stated that in less than a year
from the employee’s hire date, the employee “had been in trouble
at least four times for Respondent’s records also show that an
employee was suspended and lost only 2 days, pay after an alter-
cation in which she repeatedly pushed a file cart into another
employee. The injured employee was diagnosed with a contu-
sion and back strain, placed on light duty for 2 weeks, and sent
for several sessions of physical therapy due to her injury.
Respondent’s records show that an employee12 was terminated
for insubordination on June 3, 2003. The records also reflect
however, reflect that prior to the insubordinate conduct resulting
in her termination, there had been “numerous incidences” where
the employee was “insubordinate by repeatedly not giving ade-
quate notice when she would be late, failing to timely respond to
pages, and refusing assignments.” Prior to this employee’s dis-
charge, she was given the benefit of the progressive disciplinary
system, receiving a final warning and then a 3-day suspension.
Respondent’s records13 also reflect that an employee was dis-
charged in 2002 for violence and threats of violence and smoking
in an unauthorized area. During the year prior to his discharge,
the employee was verbally counseled for suggesting to his co-
workers that they “gang rape” another employee. In a second
incident, the employee was suspended for 3 days for failing to
complete an assignment and then becoming hostile and belliger-
ent with his supervisor. The employee was later discharged after
swinging hedge clippers at another employee and repeatedly
telling the employee: “I’ll kill you, you m_____ f______.” Inter-
estingly, the employee who was threatened with the hedge clip-
pers was the same employee that had been earlier threatened with
gang rape.
Thus, while Respondent’s records reflect that Respondent has
disciplined and terminated other employees for insubordinate
behavior, the records also support General Counsel’s assertions

11 R. Exh. 34, “being loud and disruptive, using obscene and insult-
ing language, refusing assignments, and arguing with his supervisor.”
In one instance, the employee called some of his coworkers “bitches”
and some of his patients “redneck hillbillies.” On another occasion, the
employee became involved in an argument with a patient and refused to
go back into the patient’s room. In October 2000, the employee refused
a charge nurse’s assignment and was suspended.
12 R. Exh. 34.
13 R. Exh. 34, p. 116.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD364
that Respondent has tolerated similar or worse conduct without
comparable discipline. As indicated by the records discussed
above, employees have repeatedly violated Respondent’s stan-
dards of conduct prior to their discipline. At the time of
Witzleb’s discharge, she had been an employee of The Med for
over 16 years. It is undisputed that she had never received any
prior discipline for the offense for which she was allegedly dis-
charged. In its 1999 decision in Avondale Industries, 329 NLRB
1064 (1999), the Board noted that an employer’s Wright Line
burden is not met simply by showing that examples of consistent
past treatment outnumber the General Counsel’s examples of
disparate treatment. The respondent must prove that the in-
stances of disparate treatment shown by the General Counsel
were so few as to be an anomalous or insignificant departure
from a general consistent past practice. In the instant case as in
Avondale, Respondent has not met the burden of establishing that
it would have taken the challenged disciplinary action even in the
absence of union activity. As in Avondale, the evidence shows
that Respondent may, or may not have similarly disciplined other
employees as the record of disciplinary action is mixed. Even
though Respondent may have disciplined other employees for
similar conduct, Respondent has failed to show that it would have
terminated Witzleb absent her union activity. Pacific FM Inc.,
332 NLRB 771, 772 (2000).
Respondent’s explanation for Witzleb’s discharge was pre-
sented through the testimony of Respondent’s director of surgical
services. Duncan testified that during the March 27, 2003 inter-
view, Witzleb admitted that Moore’s comments made her angry
and she had returned to the OR and questioned Moore about her
comments. Duncan testified that Witzleb admitted that she had
told Moore that she would not do another elective case and that
she was going to eat her lunch or go home. Duncan also testified
that Witzleb went on to say, “that was what she had told the
charge nurse” and what she was also telling Duncan. Duncan
testified that Witzleb was insubordinate to not only Moore but
also to Duncan during the March 27 meeting.
Witzleb testified that when she spoke with Moore on February
15, she told her that she needed to check her blood sugar, take
some insulin, and eat something before she did another elective
surgery. She does not deny that she also added, “Or I can go
home.” In contradiction to Duncan however, Witzleb explained
that when she made the March 27 statement to Duncan, “I’ve told
her this, and I’ll tell you this too,” she had simply repeated to
Duncan her previous statement to Pulley that if the TOR contin-
ued to operate as an elective OR, it needed to be staffed like one
with designated lunch and breaktimes. Both Pulley and Raburn
were present during the March 27 meeting with Duncan and
Witzleb. Neither corroborated Witzleb’s alleged admissions
during the interview or her additional insubordination to Duncan
during the meeting. I find Witzleb to be a more credible witness
than Duncan. She admitted that when she spoke with Moore, she
had added “or I can go home” and she described herself as being
a “smart ass” in making the statement. Her admissions support
her overall credibility. Without corroboration from Raburn and
Pulley, I find Witzleb’s testimony concerning both the February
15 conversation and the March 27 interview to be more credible
than Duncan’s testimony. Duncan’s attempt to expand the extent
of Witzleb’s insubordination is self-serving and suspect. Finding
no credible evidence of Witzleb’s alleged insubordination to
Duncan on March 27, I must infer that the real motive for
Witzleb’s discharge is unlawful, especially when the surrounding
evidence tends to reinforce that inference. Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). The Board
has consistently held that shifting reasons or defenses for an em-
ployee’s termination of an employee establish a pretextual reason
and under such circumstances an employer fails to meet its
Wright Line burden. American Ambulette Corp., 312 NLRB
1166, 1169 (1993).
Based on all of the foregoing, I find that General Counsel’s
prima facie case establishing unlawful motivation stands unrebut-
ted. Accordingly, while Witzleb’s conduct may have been ar-
guably inappropriate with Moore, I nevertheless conclude that
Respondent terminated Witzleb because of her union activity in
violation of Section 8(a)(3) of the Act.
C. Rules Prohibiting Employee Communications
1. Complaint paragraph 9
Complaint paragraph 9 alleges that about March 27, 2003, Re-
spondent, by Linda Duncan, Susan Raburn, and Lynda Pulley
threatened an employee that she was prohibited from discussing
disciplinary matters with nonsupervisory coworkers. Witzleb
testified that when she spoke with Duncan, Raburn, and Pulley
on March 27, Duncan told her that she was held to a confidential-
ity rule that prohibited her from discussing her suspension pend-
ing investigation with any of her coworkers. When Witzleb
questioned the existence of such a rule, Duncan produced the
policy manual and directed her to a specific section. Duncan’s
notes from her meeting with Witzleb include the following: “I
also advised her not to discuss this investigation or any discipli-
nary action with her coworkers, with the exception of HR em-
ployees, members of her management team, and Administra-
tion.” Duncan also testified that when she spoke with Witzleb,
she told her not to talk with others about her suspension pending
investigation. When asked why she did so she explained:
Well, she was being suspended pending an investigation.
And we still needed to conduct an investigation. If she were
to go out into the unit and you know, talk to co-workers and
other people who may or may not have been involved in the
case, had the potential to disrupt our ability to conduct an
adequate investigation.
Duncan further explained that if Witzleb had talked with co-
workers who may have been involved in the investigation, she
could have “clouded their judgment or recollection, or altered
what they might have told us during the course of an investiga-
tion had she gone out and talked about it.”
2. Complaint paragraph 10
Paragraph 10 of the complaint alleges that at all times material,
Respondent, by its written personnel manual, has maintained the
following rules:
obtaining or disclosing information concerning * * * em-
ployees, * * * when not properly authorized by the hospital,
is prohibited. This includes, but not limited to the follow-
ing:
REGIONAL MEDICAL CENTER AT MEMPHIS 365
(a) Information from * * * employee * * * hospital re-
cords and data
(b) Information relating to employee discipline, per-
formance evaluation, or other matters of a personal nature
(c) Personal or professional information concerning
medical staff or other professional staff members
In its answer, Respondent admits that the language included in
paragraph 10 of the complaint is a portion of Respondent’s per-
sonnel manual, form no. 8348.006B(09/93).
3. Complaint paragraph 11
Complaint paragraph 11 alleges that at all material times, Re-
spondent, by publication of its code of conduct-legal compliance
program, has maintained the following rule:
Government investigations: * * * Any employee who re-
ceives an inquiry, subpoena, or other legal document regard-
ing business of The MED from the government, should no-
tify the Compliance Officer or Corporate Counsel prior to
discussing the matter with the government official.
In its answer, Respondent admits that the language included in
complaint paragraph 11 is a portion of Respondent’s code of
conduct-legal compliance program.
4. Complaint paragraphs 12 and 13
Complaint paragraph 12 alleges that at all material times, Re-
spondent has maintained a written confidentiality agreement that
states as follows:
(a) I agree not to disclose or discuss any * * * human re-
sources, payroll, * * * and/or management information with
others, including friends or family, who do not have a need
to know.
(b) I agree not to discuss * * * human resources, payroll,
* * * or management information where others can overhear
the conversations.
Complaint paragraph 13 alleges that since about January 2003,
the precise date being unknown to the General Counsel at this
time, Respondent has required its employees to sign the confi-
dentiality agreement referred to in paragraph 12.
In its answer, Respondent admits that the language included in
complaint paragraph 12 is a portion of the “Shelby County
Health Care Corporation Confidentiality Agreement.” Respon-
dent further admits that it has required persons whom it employs
to sign this agreement.
5. Conclusions concerning Respondent’s
communication rules
It is well settled that Section 7 of the Act extends protection to
employees’ discussions regarding wages, hours, and conditions
of employment. The Loft, 277 NLRB 1444, 1461 (1986). As the
Board stated in Pepsi Cola Bottling Co., 301 NLRB 1008, 1041
(1991), citing Root Carlin, Inc., 92 NLRB 1313, 1314 (1951),
“the guarantees of Section 7 of the Act extend to concerted activ-
ity which in its inception involves only a speaker and a listener,
for such activity is an indispensable preliminary step to employee
self-organization.”
The standard for analyzing workplace rules that prohibit or
limit disclosure is found in Lafayette Park Hotel, 326 NLRB 824,
825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999), where the Board
found that the appropriate inquiry is whether the rules would
“reasonably tend to chill employees in the exercise of their Sec-
tion 7 rights.” The Board found that where the rules are likely to
have a chilling effect on Section 7 rights, the Board may con-
clude that their maintenance is an unfair labor practice, even
absent evidence of enforcement.
It is undisputed that Respondent’s personnel manual prohibits
“obtaining or disclosing information concerning patients, em-
ployees, the hospital, or others, when not properly authorized by
the hospital.” The manual provides that information prohibited
from disclosure includes “Information relating to employee dis-
cipline, performance evaluation, or other matters of a personal
nature.” The manual further prohibits disclosing “Personal or
professional information concerning medical staff or other pro-
fessional staff members” as well as “information from patient,
employee, or other hospital records and data.” Respondent’s
personnel manual also provides that any employee who makes an
unauthorized disclosure of confidential information will be sub-
ject to disciplinary action up to immediate termination. In a re-
cent decision, the Board analyzed an employer’s communication
rules in determining whether the rules in question unlawfully
prohibited employees from engaging in the Section 7 right to
discuss terms and conditions of employment. See Double Eagle
Hotel & Casino, 341 NLRB 112, 116 (2004). The Board revis-
ited its prior decisions in University Medical Center,14 Flamingo
Hilton-Laughlin,15 and IRIS U.S.A., Inc.,16 where the Board de-
termined that the communication rules were so broadly stated
that employees could reasonably construe them to prohibit dis-
cussions of wage and working conditions. In its Double Eagle
Hotel and Casino decision, the Board noted that unlike the previ-
ous cases where the language could be construed to prohibit dis-
cussions of wages and working conditions, the communication
rule specifically prohibited disclosing confidential information
that included “disciplinary information, grievance/complaint
information, performance evaluations, salary information, salary
grade, types of pay increases and termination date of employees”
and included a threat of disciplinary action if the rule were vio-
lated. The Board concluded that the rule on its face and on threat
of discipline expressly prohibits the discussion of wages and
other terms and conditions of employment infringing on Section
7 rights in violation of Section 8(a)(1). In the instant case, Re-
spondent’s confidentiality provision of its personnel manual
equally infringes on employees’ Section 7 rights and is violative
of Section 8(a)(1) of the Act.
It is also without dispute that Respondent enforces the provi-
sions of the confidentiality section of its personnel manual as
evidenced by Duncan’s warning to Witzleb on March 27, 2003.
Duncan’s rationale for imposing the restriction was the alleged
concern that in talking with other employees, Witzleb could in-
terfere with Respondent’s investigation and could “cloud” other
employees’ judgment and recollection. As noted by the judge in

14 335 NLRB 1318 (2001).
15 330 NLRB 287 (1999).
16 336 NLRB 1013 (2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD366
Westside Community Mental Health Center, 327 NLRB 661
(1999), such a prohibition also restricts employees from possibly
obtaining information from their coworkers that might be used in
their defense. Even though there was no explicit penalty for
violating the prohibition against employees’ discussing their own
discipline with other employees, the Board affirmed the judge
and found the instruction sufficient to tend to inhibit employees
from engaging in protected concerted activity.
It is also undisputed that Respondent requires its employees to
sign a confidentiality agreement in which the employee agrees
not to disclose or discuss any patient, human resources, payroll,
financial, research and/or management information with others,
including friends or family, who do not have a need-to-know.
Certainly, an employer that has responsibility for patient care has
a moral and legal responsibility to protect the confidentiality of
its patients. The confidentiality agreement however, does not
limit the prohibited disclosure to the types of information that are
typically considered “confidential” or solely within the purview
of patient or administrative confidentiality, but includes a prohi-
bition against disclosing or discussing information about payroll,
human resources, or other management information. By its very
wording, the prohibition pertains to wages and working condi-
tions. I conclude that employees would reasonably read the con-
fidentiality section of Respondent’s personnel manual as well as
the confidentiality agreement as prohibiting them from disclosing
information concerning terms and conditions of employment.
Accordingly, I find the maintenance of these confidentiality rules
to infringe upon employees’ exercise of their Section 7 rights in
violation of Section 8(a)(1) of the Act.
It is also undisputed that Respondent’s code of conduct-legal
compliance program provides that “any employee who receives
an inquiry, subpoena, or other legal document regarding business
of The MED from the government, should notify the Compliance
Officer or Corporate Counsel prior to discussing the matter with
the government official.” The Board has determined that main-
taining a rule prohibiting employees from providing information
or giving testimony to Governmental agencies without the em-
ployer’s approval is violative on its face. See Jack in the Box
Distribution Center Systems, 339 NLRB 40 (2003).
Accordingly, as discussed above, I find that Respondent’s
communication rules as alleged in complaint paragraphs 9, 10,
11, 12, and 13 are violative of Section 8(a)(1) of the Act.
D. Whether Respondent Denied PTO to Wood Because
of her Contact With the NLRB
General Counsel alleges that Respondent denied Becky Wood
24 hours paid sick leave because she participated in investiga-
tions or gave testimony under the Act. Section 8(a)(4) of the Act
prohibits an employer from discriminating against an employee
because he or she filed charges or for giving testimony under the
Act. The Board has found that the purpose of Section 8(a)(4) is
to “assure an effective administration of the Act by providing
immunity to those who initiate or assist the Board in proceedings
under the Act.” Briggs Mfg. Co., 75 NLRB 569, 571 (1947). In
its decision in NLRB v. AA Electric Co., 405 U.S. 117 (1972), the
Supreme Court found that Section 8(a)(4) applies not only to
filing charges or testifying at a formal hearing, but also to giving
affidavits during an investigation.
The analysis used to determine whether Respondent denied
Wood 24 hours of paid sick leave because of her contact with the
Board in violation of Section 8(a)(4) of the Act is the same as
that used in analyzing potential violations of Section 8(a)(3) of
the Act. Freightway Corp., 299 NLRB 531 fn. 4 (1990). Using
the analysis set forth in Wright Line, 251 NLRB 1093 (1980), the
General Counsel is charged with the responsibility of making a
prima facie showing sufficient to support the inference that
Wood’s protected conduct was a “motivating factor” in Respon-
dent’s decision to deny her 24 hours of paid sick leave. A prima
facie case is made out where the General Counsel establishes
protected activity, employer knowledge, animus, and adverse
action taken against those involved or suspected of involvement,
which has the effect of encouraging or discouraging protected
activity. Farmer Bros. Co., 303 NLRB 638, 649 (1991), enfd.
988 F.2d 120 (9th Cir. 1993). As discussed below, I do not find
that General Counsel has established the requisite prima facie
case as required by the Board in Wright Line.
While Wood testified that she gave a telephone affidavit to the
Board in May 2003, there is no evidence that Respondent had
any knowledge of this affidavit prior to its failure to pay her the
24 hours of sick leave pay. The record does reflect however, that
Wood communicated the Pulley conversation to the Board. By
letter dated May 8, 2003 Field Attorney Mohns informed Re-
spondent of the allegation that Pulley had instructed an employee
that she was not “under any circumstances to talk to the NLRB
investigator who had contacted her.” By letter dated May 28,
2003, Respondent’s counsel informed the Board’s Regional Of-
fice that Wood contacted Pulley to inquire what she should do in
response to the Board’s attempt to contact her. Thus, it is appar-
ent that Respondent knew that Wood was the employee involved
in the allegation concerning Pulley. Based upon the above un-
disputed facts, both the protected activity and Respondent’s
knowledge of that activity is established for purposes of the
Wright Line analysis. It is also undisputed that Wood did not
receive pay for her first 24 hours of sick leave.
It is the absence of an inference of animus or discriminatory
motivation however, that prevents General Counsel from estab-
lishing the requisite prima facie case. In paragraph 8 of the com-
plaint, General Counsel alleges that Respondent, acting through
Pulley, threatened an employee with unspecified reprisal if the
employee responded to an inquiry from the National Labor Rela-
tions Board. The only record evidence of any conversation about
an employee’s contact with the National Labor Relations Board
was Wood’s testimony concerning her conversation with Pulley.
Wood testified that she approached Pulley and asked if Pulley
had any idea why the “Labor Board would be trying to contact”
her. Wood testified: “She said, you don’t need to talk to the La-
bor Board, you need to go across the street to administration and
talk to corporate legal.” As discussed above, Pulley’s statement
appears to be consistent with language in Respondent’s code of
conduct-legal compliance program requiring an employee to
notify Respondent’s compliance officer when the employee re-
ceives an inquiry, subpoena, or other legal document from the
Government prior to discussing the matter with the Government
official. While I find the maintenance of this rule to be violative
of the Act as well as Pulley’s enforcement of the rule, I do not
find Pulley’s statement to be a threat as alleged in the complaint.
REGIONAL MEDICAL CENTER AT MEMPHIS 367
By Wood’s own testimony, Pulley simply reminded Wood of the
existing rule concerning contact with Government officials.
Thus, while the statement may be an enforcement of a violative
rule, it does not support an inference of animus nor do I find it to
be a threat as alleged in paragraph 8 of the complaint.
The most significant evidence that diminishes an inference of
animus is the lack of disparity in Respondent’s actions. Wood
admits that under Respondent’s PTO policy, PTO may be denied
where the absence causes undue hardship. Wood further admits
that Respondent has not denied PTO to Ashburn, Witzleb, Kim-
mons, and Long who are active union supporters. Ashburn,
whose photograph was displayed on the Union’s organizing leaf-
let, testified that the first 24 hours of her May 2003 extended sick
leave was paid from her PTO bank and she lost no pay. Kristina
Johnson took extended sick leave later in May and during the
first part of June. Although she timely notified Respondent in
advance, she was denied pay for the first 48 hours of her absence.
Both Pulley and Britton told her that because she requested leave
during a time of short staffing, she was denied full pay. Thus,
Respondent’s denial of full pay to Wood is consistent with the
actions taken with Johnson. Additionally, the record reflects that
Respondent has not denied full pay to other employees who en-
gaged in as much or more protected activity than Wood. Accord-
ingly, the lack of accompanying animus, the lack of disparate
treatment, and there being no other evidence of a discriminatory
motive leads me to find that General Counsel has not established
a prima facie case under the Wright Line analysis and I find no
violation of Section 8(a)(4) in Respondent’s failure to pay Wood
for 24 hours of her sick leave.
E. Respondent’s November 26, 2002 Memorandum
Complaint paragraph 7 alleges that since about November 26,
2002, Respondent posted at its facility a memorandum accompa-
nied by a resolution of Respondent’s board of directors stating:
“there will be no counting of cards, election process or recogni-
tion of a union for nurses” and stating that Respondent “will not
recognize union representation of registered nurses at The Re-
gional Medical Center at Memphis through informal or any other
means.” General Counsel alleges that Respondent’s posting was
in violation of Section 8(a)(1) of the Act.
Respondent’s memorandum additionally explains that its deci-
sion not to recognize the Union is based upon its belief that it is
not covered by the National Labor Relations Board and the fact
that there is no Tennessee law requiring Respondent to recognize
and deal with a union for registered nurses. Respondent further
stated in its memorandum that its decision not to recognize the
Union did not interfere with employees’ rights to associate with
anyone they wish, including labor unions. I don’t find Respon-
dent’s November 26, 2002 memorandum to contain any threats
or promises and it appears simply to be Respondent’s stated op-
position to unionization and the rationale for its opposition. Ac-
cordingly, I find it to be protected free speech under Section 8(c)
of the Act and I shall recommend dismissal of complaint para-
graph 7. See Hancock, 337 NLRB 1223, 1224 (2002); Mayfair
Midwest, Inc., 148 NLRB 1602, 1603 (1964).
CONCLUSIONS OF LAW
1. Shelby County Health Care Corporation d/b/a The Re-
gional Medical Center at Memphis is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The facts of this case warrant Respondent’s exemption
from Board jurisdiction, as it is a political subdivision.
3. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
4. Respondent’s discharge of Amelia Witzleb is otherwise
violative of Section 8(a)(3) and (1) of the Act.
5. Respondent’s maintenance and enforcement of its rule pro-
hibiting employees from disclosing information about themselves
and other employees is otherwise violative of Section 8(a)(1) of
the Act.
6. Respondent’s maintenance and enforcement of its rule re-
quiring employees to notify its compliance officer or its corporate
counsel prior to discussing a matter with a Government Official
is otherwise violative of Section 8(a)(1) of the Act.
7. Respondent’s maintenance and enforcement of its rule re-
quiring that employees adhere to and sign a written confidential-
ity agreement is otherwise violative of Section 8(a)(1) of the Act.
8. Respondent did not otherwise engage in conduct violative
of the Act as alleged in the complaint.
REMEDY
Having found that the Respondent is exempt from the Board’s
jurisdiction, no remedy is recommended even though certain
conduct as alleged is otherwise violative of Section 8(a)(3) and
(1) of the Act.
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended17
ORDER
The complaint is dismissed.

17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.