Shands Jacksonville

National Labor Relations Board - Board Decisions

Apr 26, 2013

359 N.L.R.B. 918 (N.L.R.B. 2013)

918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 104
Shands Jacksonville Medical Center, Inc. and Ameri-
can Federation of State, County and Municipal
Employees Council 79, AFL–CIO and American
Federation of State, County and Municipal Em-
ployees Council 1328, AFL–CIO and Della Hig-
ginbotham. Cases 12–CA–026649, 12–CA–
027197, and 12–CA–026829
April 26, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On July 3, 2012, Administrative Law Judge Ira San-
dron issued the attached decision. Both the Respondent
and the Acting General Counsel filed exceptions, sup-
porting briefs, and answering briefs, and the Respondent
filed a reply brief.
1

The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,
2
and conclusions and to adopt the recommended
Order.
I.
This case arises out of the Respondent’s discharge of
employee Mishaun Palmer for distributing a union flyer
in a work area on worktime. The Union filed a grievance
challenging the propriety of her discharge under the col-
lective-bargaining agreement between the Union and the
Respondent. The grievance culminated in an arbitration
hearing at which the arbitrator heard evidence concerning
the circumstances surrounding Palmer’s distribution of
the flyer, the Respondent’s subsequent investigation, and

1 In addition, pursuant to Reliant Energy, 339 NLRB 66 (2003), the
Acting General Counsel filed a postbrief letter calling the Board’s
attention to recently issued case authority.
2 For the reasons stated by the judge, we adopt his finding that the
Respondent maintained an overly broad no-distribution rule. In the
absence of exceptions, we also adopt the judge’s dismissal of the alle-
gation that the Respondent unlawfully threatened an employee with the
loss of her nursing license if she filed a grievance over her discharge.
We find no merit to the Acting General Counsel’s argument that the
judge should have found that the Respondent coercively interrogated
employee Mishaun Palmer in violation of Sec. 8(a)(1) of the Act. No
charge or complaint alleging an unlawful interrogation was ever filed.
When counsel for the Acting General Counsel appeared to be eliciting
testimony at the hearing to support an interrogation allegation, the
judge cut off the questioning on the basis that there was no extant alle-
gation in front of him. The Acting General Counsel never attempted to
amend the complaint. In these circumstances, the issue has not been
fully litigated and it is not appropriate to find the violation under Per-
gament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130
(2d Cir. 1990). See, e.g., Bakersfield Californian, 337 NLRB 296, 297
(2001).
the Respondent’s proffered reasons for Palmer’s dis-
charge.
The arbitrator issued an award in which he found that
Palmer’s discharge was not for good cause and ordered
that she be reinstated. He denied Palmer backpay and
credit for time lost for seniority, vacation, and sick leave
purposes, however, because he found that Palmer lied to
Daniel Kurmaskie, director of patient access, during the
Respondent’s investigation of Palmer’s conduct and also
because he found that Palmer lied under oath at the arbi-
tration hearing.
The present case arose because the Union also filed an
unfair labor practice charge regarding Palmer’s dis-
charge, and the Regional Director issued a complaint
alleging that Palmer’s discharge violated Section 8(a)(3)
and (1) of the Act. The judge dismissed the complaint
allegation, finding that deferral to the arbitration award
was appropriate under Spielberg Mfg. Co., 112 NLRB
1080 (1955), and Olin Corp., 268 NLRB 573 (1984).
We agree.
3

II.
The Board defers to an arbitration award when the ar-
bitration proceedings appear to have been fair and regu-
lar, all parties had agreed to be bound, the arbitrator ade-
quately considered the unfair labor practice issue that the
Board is called on to decide, and the decision of the arbi-
trator is not clearly repugnant to the purposes and poli-
cies of the Act. Spielberg, 112 NLRB at 1082; Raytheon
Co., 140 NLRB 883, 884–885 (1963). The Board will
find that an arbitrator has adequately considered the un-
fair labor practice issue if: (1) the contractual issue is
factually parallel to the unfair labor practice issue; and
(2) the arbitrator was presented generally with the facts
relevant to resolving the unfair labor practice. Olin
Corp., 268 NLRB at 574.
Here, no party contends that the arbitration proceed-
ings were not fair and regular or that any party did not
agree to be bound by the arbitrator’s award. We agree
with the judge, moreover, that the contractual issue,
whether the Respondent had good cause to terminate

3 The Acting General Counsel requests that we adopt a new frame-
work for considering postarbitration deferral cases, in accordance with
GC Memorandum 11–05. His proposal focuses on reallocating the
burden of proof to the party urging deferral, as well as modifying as-
pects of the deferral standards themselves. He does not, however,
propose revisiting precedent concerning when an award is “clearly
repugnant” to the Act. That precedent speaks directly to the crux of
this case, where, as described above, the arbitrator actually found in the
grievant’s favor on the merits and ordered her reinstatement, but denied
her backpay on grounds that are not “palpably wrong.” GC Memoran-
dum 11–05 at 11. Given those circumstances, we decline to pass on the
Acting General Counsel’s proposal in this case.
SHANDS JACKSONVILLE MEDICAL CENTER 919

Palmer, is factually parallel to the statutory issue, wheth-
er the Respondent terminated Palmer because of her un-
ion activity. Both inquiries address the question whether
Palmer’s conduct justified the Respondent’s decision to
discharge her. Also, as the judge found, the arbitrator
was presented generally with the facts relevant to resolv-
ing the unfair labor practice issue. The arbitrator was
presented with evidence of the Respondent’s work rules,
the circumstances surrounding Palmer’s distribution of
the flyer and whether that distribution violated the rules,
the Respondent’s investigation of Palmer’s conduct, and
the termination itself. See Texaco, Inc., 279 NLRB
1259, 1259 (1986); Garland Coal & Mining Co., 276
NLRB 963, 964 (1985); Altoona Hospital, 270 NLRB
1179, 1179 (1984).
The only question remaining is whether the award, or-
dering Palmer’s reinstatement without backpay and cred-
it for time lost, is clearly repugnant to the Act. We agree
with the judge that it is not.
As a general matter, the mere fact that an arbitration
award is not coextensive with the Board’s usual remedies
does not, without more, make the award clearly repug-
nant to the Act. See Laborers Local 294 (AGC of Cali-
fornia), 331 NLRB 259, 261–262 (2000); Derr & Grue-
newald Construction, 315 NLRB 266, 267 fn. 7, 273
(1994). More specifically, an award that reinstates an
employee without full backpay and accrued benefits is
not necessarily inconsistent with the Act. Indeed, the
Board itself has, at times, decided not to grant those rem-
edies where doing so would not effectuate the policies of
the Act. For example, the Board has denied employees
remedial relief when they have engaged in conduct that
abused and undermined the integrity of the Board’s pro-
cesses. See, e.g., Precoat Metals, 341 NLRB 1137, 1139
(2004) (no reinstatement or backpay when employee
gave false testimony in his prehearing affidavit and at the
hearing); Toll Mfg. Co., 341 NLRB 832, 835–836 (2004)
(backpay tolled as of first day employee lied under oath);
D.V. Copying & Printing, Inc., 240 NLRB 1276, 1276
fn. 2 (1979) (reinstatement forfeited and backpay tolled
as of date employee suborned perjury).
In the present case, the arbitrator premised his denial
of backpay on two separate grounds: first, that Palmer
lied to Director of Patient Access Kurmaskie during the
Respondent’s investigation of Palmer’s conduct; and,
second, that Palmer lied under oath at the arbitration
hearing. Palmer’s lie to Kurmaskie was arguably pro-
tected because the untruth was related to a protected right
guaranteed by the Act, which Palmer was not obligated
to disclose. See Fresenius USA Mfg., 358 NLRB 1261,
1263–1264 fn. 6 (2012). See also Earle Industries, 315
NLRB 310, 315 (1994) (finding false statements made
during employer’s investigation were protected as a con-
tinuation of employee’s earlier protected conduct), enf.
denied in relevant part 75 F.3d 400 (8th Cir. 1996). By
contrast, Palmer’s lie at the arbitration hearing was not
protected, and the arbitrator could appropriately deny her
backpay for that conduct. See Combustion Engineering,
272 NLRB 215, 217 (1984) (denial of backpay not re-
pugnant when based on conduct unrelated to employee’s
protected activity).
In making the latter observation, we are mindful that
the arbitrator did not state whether he would have denied
Palmer backpay based only on her lie at the arbitration
hearing, and, from the record before us, it is not possible
to say definitively that the arbitrator denied Palmer back-
pay for conduct at the hearing that was completely unre-
lated to her arguably protected conduct.
4
Our established
policy, however, is to defer to arbitration decisions un-
less they are “not susceptible to an interpretation con-
sistent with the Act.” Olin, 268 NLRB at 574. Because
the arbitrator’s award can be interpreted in a way con-
sistent with the Act (i.e., that backpay was denied be-
cause Palmer lied under oath), we find that the arbitra-
tor’s denial of backpay and credit for time lost does not
make the award repugnant to the Act. See Douglas Air-
craft Co. v. NLRB, 609 F.2d 352, 354–355 (9th Cir.
1979). See also Combustion Engineering, 272 NLRB at
217.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Shands Jacksonville Medical
Center, Inc., Jacksonville, Florida, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order.

Rafael Aybar, Esq., for the Acting General Counsel.
Charles P. Roberts, III, and John F. Dickinson, Esqs. (Con-
stangy Brooks & Smith, LLP), of Winston-Salem, North
Carolina, and Jacksonville, Florida, for the Respondent.
Alma R. Gonzalez, Esq. (AFSCME Florida Council 79), of
Tallahassee, Florida, for the Charging Party Unions.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This case arises
out of an order further consolidating cases, consolidated com-
plaint, and notice of hearing issued on November 29, 2011 (the
complaint), stemming from unfair labor practice (ULP) charges
filed against Shands Medical Center (the Respondent or the
Hospital) by American Federation of State, County and Munic-

4 For this reason, we do not rely on the judge’s statement that the de-
nial of backpay is “wholly severable” from Palmer’s protected activity.
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ipal Employees Council 79, AFL–CIO, and American Federa-
tion of State, County and Municipal Employees Local 1328,
AFL–CIO (jointly the Union unless differentiated), and Della
Higginbotham, an individual.
I held a trial in Jacksonville, Florida, on April 23–25, 2012,
at which I afforded the parties full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evi-
dence. On the first day of hearing, I approved a non-Board
settlement agreement executed by the Respondent, the Union,
and Jacqueline Cangro, one of the two discharged employees
named in the complaint.1 It provided, inter alia, for withdrawal
of the charges filed in Case 12–CA–27197, including the alle-
gation relating to her discharge. Accordingly, the legality of
her termination is not now before me. I grant the Acting Gen-
eral Counsel’s unopposed motion to correct the transcript.
Issues
(1) Should I defer to the February 3, 2011 award of Arbitra-
tor Richard H. Potter, who ordered Mishaun Palmer reinstated
without backpay or credit for time lost for seniority, vacation,
or sick leave purposes? The Acting General Counsel argues
that deferral is inappropriate because the arbitrator did not con-
sider the ULP issue, and his award was repugnant to the Act.
The Respondent contends that deferral is proper.
(2) If I reject deferral, did the Respondent violate Section
8(a)(3) and (1) by discharging Palmer on February 12, 2010,2
because of her protected union activity, more specifically, her
activities as union recording secretary and steward and her
distribution of a union flyer? Palmer avers that she distributed
the flyer on February 5 in a nonwork area on nonwork ime,
whereas the Hospital contends that she did so in a work area
(the “Pond”) between 3:30 and 4 p.m. on February 4, without
clocking out for union business.
(3) Did Greg Williams, director of clinical services, on April
7, threaten RN Higginbotham that the Hospital would cause her
to lose her nursing license if she filed a grievance over her dis-
charge, thereby violating Section 8(a)(1)?
(4) Has the Respondent violated Section 8(a)(1) by main-
taining a work rule that “unauthorized distribution of written or
printed materials of any description” is a ground for discipli-
nary action?
Witnesses and Credibility
As to Palmer’s discharge, the following witnesses testified,
with their positions at the time:

(1) Hospital representatives Daniel Kurmaskie, director of pa-
tient access; and Daniel Staifer, director of employment and
employee relations.
(2) Employees Vivian Griffin, Ethel Overstreet, and Sharnee
Thomas, for the Hospital.
(3) Employees Cangro, Palmer, and Rutha Harris, for the Act-
ing General Counsel.

Higginbotham and Williams testified about what was said at

1 R. Exh. 1. The Acting General Counsel objected to my approval of
the agreement but waived the right to file a special appeal to the Board
under Sec. 102.26 of the Board’s Rules and Regulations.
2 All dates hereinafter occurred in 2010, unless otherwise indicated.
the former’s discharge interview on April 7.
Griffin, Overstreet, and Thomas were reasonably consistent
but not identical in their accounts of what transpired on the
afternoon of February 4, and they were substantially consistent
with the testimony that they offered at the November 10 arbi-
tration hearing, as well as in the statements that they gave to the
Hospital in February. For example, Overstreet testified that
Palmer gave her the flyer at between 3:30 and 3:45 p.m.,
Thomas that it was between 3:30 and 4 p.m., and Griffin that
the flyer was left on her chair prior to 3 or 3:30 p.m. This lends
support to the conclusion that they were truthful in relating
what had occurred, rather than attempting to orchestrate their
testimony. Furthermore, all were union members in February,
and none of them appeared to try to slant their versions of the
facts to harm Palmer, either at trial, at the arbitration hearing, or
in their statements to the Hospital. In this regard, Arbitrator
Potts, in finding them credible and crediting their testimony
over Palmer’s, noted that they offered testimony that, in part,
supported Palmer.3 At trial, Overstreet did the same as far as
testifying about the Hospital’s lack of enforcement of its prohi-
bition against unauthorized distribution.
Palmer and Cangro testified that Palmer did not distribute the
flyer on the afternoon of February 4 in the Pond area. Aside
from being contradicted by the three employees named above,
as well as Kurmaskie’s and Staifer’s testimony, Palmer’s testi-
mony that she did not distribute it until the following morning
is undermined by Respondent’s Exhibit 13, showing that man-
agement had the flyer in its possession prior to 5:30 p.m. on
February 4. At the arbitration hearing, she suggested that
someone might have rummaged through the tote bag containing
union business that she kept at her desk, and removed the fly-
er,4 but she did not repeat this far-fetched contention at trial.
Further, Palmer’s testimony about whether she had the com-
pleted flyer in her tote bag during the workday on February 4
was confusing. In this regard, she equivocated, initially testify-
ing that she did not actually have the flyer but “a stack of stuff
where I had been cutting and pasting,”5 then that she did have
the flyer but that it had not been printed or copied. Why she
would have brought to work both the finished document and
prior draft materials remains unexplained. I further note that no
other witnesses corroborated Palmer’s testimony that she dis-
tributed the flyer on the morning of February 5 in a nonwork
area on nonworktime.
I discredit Cangro’s testimony that she was in the Pond be-
tween 3:30 and 4 p.m. on February 4 and did not observe or
hear Palmer distribute anything. Cangro testified at the arbitra-
tion hearing but failed to offer such testimony in support of
Palmer. Moreover, Cangro was present as Palmer’s union rep-
resentative not only at Palmer’s discharge interview but at an
earlier investigatory meeting, yet at no time did she tell man-
agement that she was a corroborating witness for Palmer. I find
this unfathomable.
Harris’ testimony was essentially hearsay because it entailed
statements that Palmer made to her on the mornings of Febru-

3 R. Exh. 30 at 10.
4 R. Exh. 5 at p. 182.
5 Tr. 162.
SHANDS JACKSONVILLE MEDICAL CENTER 921

ary 4 and 5, when they drove to work. I do note that Harris
testified that Palmer stated on the morning of February 4 that
she had not yet finished the flyer, but Palmer testified that she
had the completed flyer in her tote bag that day.
For the above reasons, as did Arbitrator Potts, I credit Grif-
fin, Overstreet, and Thomas over Palmer concerning Palmer’s
activity on the afternoon of February 4 in the Pond.
Both Kurmaskie and Staifer testified that the former made
the decision to discharge Palmer. Kurmaskie was not a credible
witness on this matter, for the following reasons. He was eva-
sive in answering whether Palmer would have been discharged
in the absence of any prior disciplines; or, put another way,
whether the Respondent would have terminated her solely be-
cause of her misconduct on February 4. Despite my repeated
efforts, I could not get Kurmaskie to give a straight answer to
this question. I note that Staifer was also equivocal on this
point.
Kurmaskie testified that Griffin, Overstreet, and Thomas all
expressed to him displeasure over Palmer’s giving them the
flyer. However, none of them testified that they complained in
any way, consistent with their email statements to him and their
testimony at the arbitration hearing. On the contrary, all three
made it clear at trial that they did not complain about Palmer’s
conduct, and Overstreet testified that she merely showed the
flyer to Supervisor Novetta Butler and simply asked whether
Butler had seen it.
To be discussed later on, there were discrepancies between
what Kurmaskie testified were the reasons for the falsification
violation listed on Palmer’s termination paper and what was
expressly stated therein.
Finally, Kurmaskie demonstrated a marked tendency to de-
flect specific questions by answering in generalities rather than
directly responding.
For said reasons, I credit Kurmaskie only where his testimo-
ny was corroborated by more reliable evidence.
Turning to the allegation relating to Higginbotham, Hig-
ginbotham was not a persuasive witness. She had only a vague
recollection of what was stated at the April 7 termination meet-
ing, explaining that “I wasn’t really in the conversation” be-
tween Williams and Manager Carissa Davis.6 On cross-
examination, Higginbotham first testified that at the meeting,
management did not explain that she had improperly restrained
a patient but, rather, that Davis said such in a separate phone
conversation. However, she then testified that she did not re-
member, and she was later impeached by her August 30 affida-
vit, in which she stated that this was explained to her at the
meeting. Her explanation that the event occurred 2 years ago
and she could not recall everything that happened was uncon-
vincing. I also note that she exhibited a lackadaisical attitude,
to the point where she did not seem concerned with making a
genuine effort to be as accurate as possible in relating what
took place.
Williams exhibited a better recall of what was said at the
meeting. The only negative as far as his credibility was that he
first testified on cross-examination that he could not recall a

6 Tr. 109.
grievance meeting over the discharge (adding, however, “I’m
not sure though”),7 but then testified that he did attend the
third-step grievance meeting after being shown General Coun-
sel’s Exhibit 29. This one defect in his testimony paled in
comparison to the weaknesses that Higginbotham demonstrated
as a witness, and I credit his account over hers.
Had Higginbotham been more credible, I would consider
drawing an adverse inference against the Respondent for its
failure to call Davis, as the Acting General Counsel urges (Br.
at 25 fn. 10), but it is well-established Board law that even
uncontroverted testimony of an unreliable witness can be dis-
credited. See, e.g., Pacific Coast M.S. Industries Co., 355
NLRB 1436, 1442 (2010); Jupiter Medical Center Pavilion,
346 NLRB 650, 652 (2006).
Facts
Based on the entire record, including testimony and my ob-
servations of witness demeanor, documents, and stipulations, as
well as the thorough posttrial briefs that the Acting General
Counsel and the Respondent filed, I find the following.
Background
The Respondent operates an acute-care hospital in Jackson-
ville, Florida, and has admitted jurisdiction as alleged in the
complaint.
The Hospital has about 3500 employees, approximately 500
of whom are managers or supervisors. The council represents
about 2000 of the employees, in two units: professionals and
nonprofessionals. Local 1781 services the former; Local
1328 the latter. Both units are encompassed by a collective-
bargaining agreement (the agreement) effective from Septem-
ber 10, 2009—June 30, 2012.8 Pertinent provisions of the
agreement follow.
Article 3, management security, opens with:

Subject to the specific provisions of this Agreement,
the Union and its officers, agents, and members agree that
during the life of this Agreement, they shall have no right
to instigate, promote, sponsor, engage in, or condone any
strike, slowdown, concerted stoppage of work, intentional
interruption of employer operations, or similar activities
during the term of this Agreement for any reason. . . .
Management shall have the right to discharge or otherwise
discipline any or all employees who violate the provisions
of this paragraph.

The article contains a provision on distribution, which the
Acting General Counsel does not allege violates the Act.
Article 7 addresses union activity and provides, inter alia,
that union stewards be allowed reasonable time to conduct un-
ion business during normal working hours provided that they
clock into a union business cost center established under the
Hospital’s payroll system.
Article 8 sets out the grievance procedure, starting with an
oral phase before the filing of a written grievance and going up
to a third step, at which there is review by the Hospital’s human

7 Tr. 253.
8 R. Exh. 35.
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

resources (HR) vice president or his or her designee. If not
resolved at step III, either the Hospital or the Union may re-
quest an arbitrator through the Federal Mediation and Concilia-
tion Service.
The arbitration provision states, inter alia:9

Any decision or award of the arbitrator shall be strictly
limited to the interpretation of specific terms of this
Agreement, and to a determination of (a) whether the
grievance is arbitrable, and (b) whether a specific provi-
sion of this Agreement was violated as alleged in the writ-
ten grievance. . . . The arbitrator shall review the Employ-
er’s action and shall determine whether it is based upon
competent, substantial evidence; if it is, it shall be upheld.
The arbitrator’s decision shall be final and binding upon
all parties.
It is specifically and expressly understood that taking a
grievance to arbitration constitutes an election of remedies
and waiver of any and all other rights by the appealing
party and all persons it represents.

Article 9 concerns discharge and discipline. Article 9.A pro-
vides that suspensions, demotions for cause, and dismissals
may be appealed directly to step III. Article 9.B provides, in
part, that management “shall use progressive disciplinary
methods where appropriate.”10
A hospital policy on corrective actions (CAs) also enunciates
the principle of progressive discipline, stating that it will “nor-
mally be applied,” depending on the seriousness of the of-
fense.11 The policy further provides for four levels of disci-
pline: counseling, written reprimand, suspension without pay
(with the length to be determined after consultation with HR),
and discharge. CA guidelines incorporated into the policy list
three classes of offenses. A class III offense is the most seri-
ous, for which even a first offense may cause termination.
Palmer’s Discharge
I. PALMER’S EMPLOYMENT AND UNION ACTIVITY
Palmer was a financial admissions representative from May
2001 until her discharge on February 10. Her regular duties
were registering patients for inpatient/outpatient service and
verifying insurance. In February, she worked from Monday
through Friday from 7:30 a.m. to 4 p.m.
Palmer had an assigned desk in the clinical admissions front
area and also used a desk in the Pond. Five other financial
admissions representatives worked in the pond and had as-
signed cubicles: Cangro, Kim Covington, Griffin, Overstreet,
and Thomas.12 Their supervisor, Novetta Butler, reported to
Manager Shirley Forbes.
Palmer was Local 1328’s recording secretary since 2009 and
a union steward since 2008. In those capacities, she attended
management-union meetings and represented employees in
grievance proceedings. Before engaging in union business, she
notified management and then clocked out of worktime and

9 Id. at p. 18.
10 Id. at p. 19.
11 R. Exh. 6 at p. 1.
12 See R. Exh. 8, a diagram.
into a union call center number or code.
II. THE FLYER AND ITS DISTRIBUTION
In January, Palmer began composing a flyer concerning em-
ployee’s complaints that their work was not getting done when
they were off on sick leave, and delays in management’s having
other employees relieve them. She did this with the approval of
Nicolas Dix, the Union’s regional director, and with Cangro’s
assistance.
Respondent’s Exhibit 9 is the four-page flyer ultimately pro-
duced. The flyer’s first page asked, “What would happen to the
employees at Shands without a union?” The second page
asked, inter alia, the following:

(1) What would Shands do if all the nurses called out for one
day?
(2) What would Shands do if all the radiology techs decided
to leave at 10:00 a.m.?
(3) What would shands do if all registrars and customer ser-
vice reps decided Friday and Saturday is a good day to stay
home and enjoy?
(4) What would Shands do if all labs called out?
(5) What would Shands do if the OR techs were no show for a
day?

The document proceeded to criticize hospital management
and to encourage employees to voice their complaints and con-
cerns.
There is no dispute that the flyer was finished at some point
on February 4.13 It is also undisputed that Palmer did not clock
out for union business on the afternoon of February 4.14 The
disagreement is whether Palmer distributed the flyer that after-
noon on her and other employees’ worktime.
For reasons previously stated, I credit Griffin, Overstreet,
and Thomas over Palmer and Cangro. Vis-à-vis Griffin and
Thomas, Overstreet offered the most detailed testimony, and I
accord it the most weight.
Griffin, Overstreet, and Thomas were working in the Pond at
between 3:30 and 4 p.m., when Palmer came by. She handed a
flyer to Overstreet and Thomas and left one on Griffin’s chair.
Overstreet asked what it was, and Palmer replied that it was a
flyer for her to ponder. A few minutes later, Palmer came back
to Thomas’ desk and asked if she had any questions. Thomas
replied no. After finding the flyer on her chair, Griffin went
over to Thomas’ cubicle. At that time, Palmer came over and
asked if Griffin understood it. Griffin replied no. Palmer of-
fered an explanation, but Griffin responded that she still did not
understand.15
When Butler later arrived at the Pond, and Overstreet asked
if she had seen the flyer. Butler replied no, and Overstreet gave
it to her. Butler asked how she had received it, and Overstreet
replied that Palmer had passed it out. Butler commented,

13 See Palmer’s testimony at Tr. 157; R. Exh. 13, showing that it was
faxed at 5:30 p.m. that day.
14 See R. Exh. 16.
15 Tr. 304, consistent with her testimony at the arbitration hearing.
R. Exh. 5 at p. 64; her later testimony, id. at 68, that “Sharnee” asked if
she understood it, was apparently an inadvertent error.
SHANDS JACKSONVILLE MEDICAL CENTER 923

“[T]his is awful,” thanked her, and left with the flyer.16
Kurmaskie testified that Butler and Forbes came to his office
with the flyer at about 5 p.m. on February 4, and I credit him on
that point. Significantly, Respondent’s Exhibit 13 shows that
he faxed the flyer to HR at 5:30 p.m. that day, which I also find
as a fact. Kurmaskie testified that they told him employees
were “concerned, offended, and complained,”17 but nothing in
Griffin’s, Overstreet’s, and Thomas’ testimony or their written
statements to management supports this characterization of
their reactions. I therefore find it unnecessary to draw an ad-
verse inference for the Respondent’s failure to call Butler (who
was terminated shortly after Palmer) or Forbes to corroborate
Kurmaskie.
III. THE RESPONDENT’S INVESTIGATION AND DECISION TO
DISCHARGE PALMER
Kurmaskie conducted the subsequent investigation, after
which he decided that Palmer should be discharged.
On about February 5, Kurmaskie met individually with Grif-
fin, Overstreet, and Thomas. He asked them to provide state-
ments of what occurred, and all three subsequently sent him
one-paragraph emails.18 Therein, Griffin and Overstreet made
mention of being confused or not understanding the flyer,
whereas Thomas did not express any reaction.
The Hospital determined by Monday, February 8 that Palmer
had not clocked out for union business on February 4.19 That
afternoon, Kurmaskie and Butler had a meeting with Palmer,
Cangro, and Gale Forest, the Local’s vice president, concerning
Palmer’s distribution of pamphlets on February 4. Kurmaskie
showed Palmer the flyer and asked if she had handed it out on
the morning of February 4; she replied no, that she had done so
on the morning of Friday, February 5.20 He asked her to pro-
vide a written statement, and she did so. 21 Therein, she stated:

This statement is in regards [sic] to an allegation that . . . I
gave two employees a packet and that I disturbed them during
working hours of 3:00 pm and 4:00 pm. on Thursday, Febru-
ary 4, 2010.

During the hours of 3:00 pm and 4:00 pm on Thursday, Feb-
ruary 4, 2010 I was busy working on my scheduled work du-
ties.
Friday, February 5, 2010, I arrived at work early and passed
out some very important information and clocked in on my
normal working hours which are 7:30 am.

Palmer was discharged at a meeting on February 12, attend-
ed by the same individuals who were at the February 8 meeting,
along with Rosemary Mason of HR. Respondent’s Exhibit 2 is
the CA (discharge) that Kurmaskie issued to her.
At the top of the document, six prior CAs (four written coun-

16 Tr. 266.
17 Tr. 326.
18 R. Exhs. 10 (Overstreet, February 10), 11 (Thomas, February 5),
and 12 (Griffin, February 9).
19 See R. Exh. 37.
20 Consistent testimony of Kurmaskie and Palmer at Tr. 174, 342–
343.
21 R. Exh. 15, dated February 9.
selings and two written reprimands) in 2008 and 2009 are listed
for the past 2 years.22 As earlier noted, both Kurmaskie and
Staifer were evasive in answering what role, if any, the prior
CAs played in the decision to discharge Palmer and whether
she would have been terminated solely for the events of Febru-
ary 4.
The incident cited for the CA is described as follows:

On 2–4–10, during work time, Mishaun Palmer distributed
material promoting or instigating a sickout, work slow down,
or work stoppage, to Admissions employees in their work ar-
eas and work time. She did not clock out for Union business
prior to distributing the material on 2-4-10. According to Ms.
Palmer’s signed statement on 2–5–10 [sic], Ms. Palmer
passed the “very important information” in work[sic]areas,
and then clocked in at 7:30 a.m.

As to the rules that Palmer violated, the CA cites class III
26—falsification of attendance, payroll, or other hospital rec-
ords, and class II 4—unauthorized distribution of written or
printed materials of any description and HR 02–019 (the policy
on solicitation and distribution). It also lists violations of arti-
cles 3:3.1, 3.2(a)2, and 3.2 (a)5 of the agreement, without spe-
cific reference to a class of violation.
Kurmaskie testified that the falsification violation included
Palmer’s denial in her written statement to him that she en-
gaged in distribution activity on February 4, which he had de-
termined to be a lie.23 In fact, he testified that in deciding to
discharge Palmer rather than impose a lesser penalty,
“[L]eading off was the fact that she lied and that we had wit-
nesses stating to the contrary.”24 (Emphasis added.) However,
although the incident description mentions Palmer’s signed
statement, thereby implicitly raising this as a reason for dis-
charge, her lying during the investigation is not specifically
stated as a basis for the falsification ground (class III 26), or
otherwise, in the rule violation section. Additionally, the par-
ties stipulated that the Respondent’s position statement submit-
ted to the Region set out the reasons for Palmer’s termination
and referenced the CA but did not expressly cite her making
untruthful statements to management. I find such omissions to
be at odds with Kurmaskie’s testimony above and yet another
factor undermining his overall credibility.
I adopt Arbitrator Potter’s unchallenged conclusion that the
Hospital laxly enforced its prohibition against unauthorized
distribution.25
IV. THE ARBITRATION
On February 15, the Union filed a grievance contending that
Palmer’s discharge was not for just cause.26 Pursuant to the
terms of the agreement, the grievance was advanced to the third
step of the grievance procedure, at which it was denied. By
letter of April 10, the Union notified the Hospital that it was

22 See R. Exhs. 17–22.
23 Tr. 358; see also Tr. 371.
24 Tr. 374.
25 R. Exh. 30 at p. 6.
26 R. Exh. 2 at p. 4.
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

advancing the grievance to arbitration.27
On February 25, the Union filed charges, including the alle-
gation that Palmer’s discharge was in retaliation for her pro-
tected union activities.28 By letter of April 23, the Regional
Director notified the parties of her decision to defer further
proceedings on the matter to the grievance/arbitration process.29
The parties subsequently selected Potter, who conducted an
arbitration hearing on November 10. The parties agreed at the
outset that the issue was whether the Hospital had just cause to
terminate Palmer and whether the level of discipline was ap-
propriate.30 Witnesses included Cangro, Griffin, Kurmaskie,
Overstreet, Palmer, Staifer, and Thomas. At the hearing, Palm-
er’s distribution of the flyer, the Hospital’s policy restricting
distribution and its enforcement, and the Hospital’s reasons for
discharging her were litigated.
Arbitrator Potter issued his award on February 3, 2011.31
Phrasing the issue as whether Palmer was discharged for cause,
he concluded in her favor, determining that (1) the Hospital’s
enforcement of the no-distribution policy was lax; (2) the flyer
did not call for a job action in violation of article 3 of the
agreement; and (3) Palmer’s activity was brief and casual and
did not rise to the level that required her to clock out for union
business.
However, Potter credited Griffin, Overstreet, and Thomas
over Palmer and found that she distributed the literature on the
afternoon of February 4. In this regard, he stated:32

That three union members would lie about a Steward and pos-
sibly get her fired simply because they believed she spent too
much time on Union duties is beyond beliefThe three seemed
credible and provided testimony that, in part, supported the
Grievant.

As to Palmer’s denial that she distributed the flyer on Febru-
ary 4, he concluded:33

[I]t is clear that she misled Kurmaskie by omission when he
questioned her as well as in her written statement and lied un-
der oath at the hearing. . . . [L]ying is a very serious offense.

Based on the above conclusions, he granted the grievance in
part but denied it in part, and ordered Palmer reinstated without
backpay or credit for time lost for seniority, vacation, or sick
leave purposes.
The Hospital, joined by the Union, subsequently requested
clarification from Potter whether he intended to downgrade the
level of discipline that had been imposed. He responded by
letter of February 11, 2011:34

I found that Ms. Palmer did not violate the prohibition
against solicitation and distribution or the prohibition
against inciting or promoting a job action or work stop-

27 Id. at p. 5.
28 GC Exh. 1(a).
29 R. Exh. 4.
30 R. Exh. 5 at pp. 8–9.
31 R. Exh. 30.
32 Id. at pp. 9–10.
33 Id. at 10.
34 R. Exh. 34.
page. However, I did find she lied by omission in a writ-
ten statement and in an interview with her supervisor, as
well as by commission under oath at the hearing.

Although I didn’t uphold the discharge, I believe re-
turning her to work after almost a year without backpay is
a severe penalty. Indeed, although it isn’t explicitly a sus-
pension, it has the same impact. I believe a designation
such as “lost time as a result of discipline” correctly de-
scribes her status.

Pursuant to the terms of the award, Palmer returned to work
on February 21, 2011, at which time she resumed her role as a
union steward. She had continued to serve as recording secre-
tary after her discharge. She currently holds both positions.
V. DISCIPLINE OF OTHER EMPLOYEES
The Acting General Counsel offered a number of CAs in-
volving misrepresentation by employees,35 as follows. All
occurred in 2009 and, with the exception of the first, cited class
III 26, falsification of records.
(1) Written reprimand for class III 6 insubordination, for the
employee’s falsely stating that she had conducted a follow-up
appointment with a patient. No prior CAs.
(2) Three-day suspension for falsification of records, viola-
tion of policy, and failure to follow work instructions. Eight
prior written counselings and one written reprimand.
(3) Three-day suspension for falsification of records, viola-
tion of policy, and failure to follow work instructions. Prior
discipline—one written counseling, two written reprimands,
and one suspension.
(4) Dismissal for falsification of records. One prior written
counseling, reprimand, and suspension.
(5) Two-day suspension for falsification of records and vio-
lating policy. Five prior written counselings.
The Acting General Counsel also offered two other CAs,
both from 2010. The first was a written reprimand issued for a
class III 6 violation (insubordination and disrespect), for using
profanity to a manager.36 The employee had one prior written
reprimand and two written counselings. The second was a
written reprimand issued to a supervisor for soliciting employ-
ees for money to pay for the cost of his making a holiday cake,
a class II violation.37
Supervisor Butler was terminated on February 15, 2010, for
unauthorized distribution and solicitation that month.38 She had
a prior written counseling, written reprimand, and suspension,
all including failure to follow work instructions.
Williams’ Statements to Higginbotham
Crediting Williams, I find that during Higginbotham’s ter-
mination interview on April 7, he explained that she was being
discharged for restraining a patient in violation of Hospital
policy and that this could constitute a reportable offense to the
Florida Board of Nursing or the Joint Commission (an accredit-
ing body) but that he would not be making the determination.

35 GC Exhs. 5, at pp. 15–18.
36 GC Exh. 6.
37 GC Exh. 19.
38 R. Exh. 23.
SHANDS JACKSONVILLE MEDICAL CENTER 925

The Hospital never reported her.
No-Distribution Rule
At all times material, the Hospital’s CA guidelines have in-
cluded the following as a class II offense: “Unauthorized dis-
tribution of written or printed materials of any description.”39
Nothing is stated about the impact of any other hospital policy
or of any provisions in the agreement. Counsels’ statements at
trial and in their briefs suggest that this rule is no longer in
effect, but no evidence was introduced to show that it was for-
mally abrogated or that any superseding rule was ever commu-
nicated to employees.
Also in effect at all times material has been a written policy
specifically on the subject of solicitation and distribution, stat-
ing in relevant part that distribution is not allowed during work-
ing time or in working areas.40 Although the Acting General
Counsel now argues that portions thereof are ambiguous and
would reasonably be construed by employees to prohibit Sec-
tion 7 activity (Br. at 27), the complaint refers only to the above
CA guidelines and was never amended to include this addition-
al allegation, which therefore was not fully litigated. Accord-
ingly, my finding this additional policy to be unlawful would be
inappropriate. See Baptist Hospital of East Tennessee, 351
NLRB 71, 72 fn. 5 (2007); Wal-Mart Stores, 348 NLRB 274,
274 (2006). The Acting General Counsel has not alleged at any
point that the language of article 3 of the agreement relating to
distribution is impermissible.
Analysis and Conclusions
Palmer’s Discharge
The threshold issue is whether I should defer to Arbitrator
Potter’s award, in which event analysis of the legality of her
termination under the Act is unnecessary. The Acting General
Counsel has presented a two-fold argument against deferral:
(1) the arbitrator did not consider the ULP issue; and (2) his
award was repugnant to the Act. To determine the validity of
these contentions, the legal framework must be examined.
As the Board stated in D. R. Horton, Inc., 357 NLRB 2277,
2293 (2012):

[A]rbitration has become a central pillar of Federal labor rela-
tions policy and in many contexts the Board defers to the arbi-
tration process both before and after the arbitrator issues an
award. See United Steelworkers of America v. Warrior &
Gulf Navigation Co., 363 U.S. 574, 578 (1960).

Consistent with this precept, the party seeking to have the
Board reject deferral and consider the merits of the ULP matter
has the burden of showing that the standards for deferral have
not been met. Id. at 574; Kvaerner Philadelphia Shipyard, Inc.,
347 NLRB 390, 391 (2006) (“[W]here parties have agreed to be
bound to an arbitrator’s resolution of an issue, the Board will
defer to that resolution except in those rare cases in which the
arbitrator’s decision is ‘palpably wrong”).
Deferral is appropriate when the (1) the arbitration proceed-
ings were fair and regular; (2) the parties agreed to be bound by

39 R. Exh. 6 at p. 6.
40 R. Exh. 7.
them; and (3) the arbitrator’s decision was not clearly repug-
nant to the Act. Spielberg Mfg. Co., 112 NLRB 1080 (1955);
see IAP World Services, 358 NLRB 33 (2012).
In Olin Corp., 268 NLRB 573 (1985), the Board added the
requirements that (1) the contractual issue was factually parallel
to the ULP issue; and (2) the arbitrator was presented generally
with the facts relevant to resolving the ULP charge. See also
Turner Construction Co., 339 NLRB, 451, 451 fn. 2 (2003).
The arbitrator need not have been presented with the relevant
law relating to the ULP in question, and his or her decision
need not have contained a rationale showing consideration of
the ULP allegation; rather, the test is whether the evidence
before the arbitrator was “essentially the same evidence neces-
sary for a determination of the merits of the unfair labor prac-
tice charge.” Andersen Sand & Gravel Co., 277 NLRB 1204,
1205 (1985); see also Laborers Local 294 (AGC California),
331 NLRB 259, 261 (2000).
The Acting General Counsel contends that background evi-
dence of the Respondent’s animus toward Palmer for her union
activity was not presented to the arbitrator and that deferral is
improper on that basis. However, in United Parcel Service,
274 NLRB 396 (1984), the Board upheld an administrative law
judge’s determination that this kind of evidence was not of such
probative value as to necessitate a conclusion that the arbitra-
tion panel did not have before it the essential facts as to the
issue litigated, and his further conclusion that the General
Counsel had failed to carry his burden of proof to demonstrate
that the arbitrator’s award should be rejected.
See also Hertz Corp., 326 NLRB 1097 (1998). Here, the ar-
bitrator considered all of the circumstances surrounding Palm-
er’s distribution of the flyer, the Respondent’s subsequent in-
vestigation, and the Respondent’s proffered reasons for her
discharge. He concluded that the Respondent had failed to
show good cause for the discharge, in essence, discrediting the
Hospital’s management witnesses.
With regard to the “clearly repugnant” standard, the Board
does not require that the award be totally consistent with Board
precedent. Martin Redi-Mix, 274 NLRB 559, 559 (1985).
Rather, the Board will defer unless the award is “palpably
wrong,” i.e., unless the arbitrator’s decision is not susceptible to
an interpretation consistent with the Act. Laborers, above at
261; Olin Corp., above at 574. This logically follows from the
fact that “[d]eferral recognizes that the parties have accepted
the possibility that an arbitrator might decide a particular set of
facts differently than would the Board.” Andersen Sand &
Gravel Co., above at 1204 fn. 6; see also Specialized Distribu-
tion Management., Inc., 318 NLRB 158, 161 (1995). Thus, the
Board’s disagreement with an arbitrator’s conclusion is an in-
sufficient basis for the Board to decline to defer to the arbitra-
tor’s award. Kvaerner Philadelphia Shipyard, above, at 391;
Smurfit-Stone Container Corp., 344 NLRB 658, 659–660
(2005).
In American Commercial Lines, 291 NLRB 1066, 1074–
1075 (1988), the Board found deferral to arbitration inappropri-
ate because the remedial portion of the award was “arbitrarily
limited.” In that case, the arbitration board limited the remedy
to hiring hall violations occurring during the term of the labor
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

contract and did not address postcontract violations, which
therefore went unremedied. Nonetheless, the Board added that
it would not automatically refuse to defer to arbitration awards
that contain incomplete remedies or remedies otherwise not
fully consistent with Board precedent. Id. at 1089 fn. 44; see
also United Cable Television Corp., 299 NLRB 138, 144 fn. 5
(1990). The Board noted the absence of evidence that unlaw-
fully bypassed hiring hall applicants engaged in an activities or
behavior “warranting a limitation on backpay amounts other-
wise owed.” American Commercial Lines, id. at 1089 fn. 44.
In Cone Mills Corp., 298 NLRB 661 (1990), the arbitrator
had ordered the employee reinstated without backpay, finding
that the discharge was unjust but that she had engaged in insub-
ordination in the course of her protected activity, which merited
punishment. In finding the award clearly repugnant, the Board
emphasized that the arbitrator’s decision was “inherently incon-
sistent” regarding the employee’s alleged insubordination:

[T]he arbitrator’s conclusion that Darr’s refusal to leave the
plant constituted insubordination warranting disciplinary ac-
tion simply cannot be reconciled with his findings that the
conduct was provoked by the Respondent’s own wrongful ac-
tions and was condoned by the Respondent. Given those
findings, the conclusion is inescapable that the refusal to leave
the plant cannot properly be the basis for discipline. Thus, we
find nothing in the arbitrator’s opinion and award that pro-
vides a rational basis for the Respondent’s discharging Darr,
apart from her union activities, or that recounts misconduct
that would justify withholding her backpay. . . . [T]he arbitra-
tor’s refusal to award Darr backpay has the effect of penaliz-
ing Darr for engaging in those protected activities that the ar-
bitrator found precipitated her discharge. [Id. at 666–667; fn.
omitted.]

On the other hand, in Specialized Distribution Management.,
Inc., 318 NLRB 158 (1995), the arbitrator had determined that
the three employees had engaged in misconduct sufficient to
warrant discipline but that their discharge was too severe a
penalty under the collective-bargaining agreement. Therefore,
he ordered the discharges converted to suspensions without
backpay. The Board upheld Judge James Kennedy’s determi-
nation that the award was not repugnant to the Act and that
deferral was appropriate.
Turning to the facts of this case, the crux of the Acting Gen-
eral Counsel’s argument is that Arbitrator Potter’s award was
repugnant to the Act because he denied Palmer backpay and
accrued benefits for the approximately 1-year period that she
was effectively suspended. Potter explicitly imposed this pen-
alty on Palmer not for anything relating to her union activity on
February 4 but because of his finding that she had lied about
when she distributed the flyer, both during the course of the
Hospital’s investigation and, more importantly, before him in
the arbitration hearing. Thus, the portion of the award in ques-
tion is wholly severable from Palmer’s protected activity, as
opposed to the situation in Cone Mills Corp., above.
Perjury is a serious offense. As the Supreme Court stated in
ABF Freight System, Inc. v. NLRB, 510 U.S. 317, 323 (1994):

False testimony in a formal proceeding is intolerable.
We must neither reward nor condone such a “flagrant af-
front” to the truth-seeking function of adversarial proceed-
ings. . . . In any proceeding, whether judicial or adminis-
trative, deliberate falsehoods “well may affect the dearest
concerns of the parties before a tribunal. . . . Perjury
should be severely sanctioned in appropriate cases.

See also U.S. v. Holland, 22 F.3d 1040, 1047 (11th Cir.
1994) (“Perjury, regardless of the setting, is a serious offense
that results in incalculable harm to the functioning and integrity
of the legal system as well as to private individuals.”).
In ABF Freight System, above, the Court expressed its “con-
cern” about the employee’s false claim under oath but conclud-
ed that the Board had not abused its broad discretion by order-
ing the remedy that the employee be reinstated with backpay.
Id. at 325.
In exercising such discretion, the Board may penalize em-
ployees who lie under oath on a central issue in agency pro-
ceedings by denying reinstatement and/or tolling their backpay
from the date of such misconduct. See Precoat Metals, 341
NLRB 1137, 1139 (2004); Toll Mfg. Co., 341 NLRB 832, 835–
836 (2004).
Granted, the deprivation of a year’s backpay and benefits is a
harsh punishment. However, as the above cases reflect, my
role is not to serve as an appellate arbitrator, review the award
de novo, or substitute my judgment of what penalty, if any,
Arbitrator Potter should have imposed on Palmer for what he
deemed her perjury. To do so would undermine the strong
public policy in favor of alternative dispute resolution and the
parties’ agreement to be bound by the decision of the arbitrator
whom they mutually selected.
Based on all of the above circumstances, I conclude that Ar-
bitrator Potters’ award satisfies the required standards for defer-
ral.41 Accordingly, I further conclude that the 8(a)(3) and (1)
allegation pertaining to Palmer should be dismissed.
Alleged Threat to Higginbotham
Because I have credited Williams version over Hig-
ginbotham’s and found that he did not threaten her in any way
if she filed a grievance, I recommend dismissal of this allega-
tion.
The Respondent’s No-Distribution Rule
In 8(a)(1) cases, including work rules, the Board’s task is to
determine how a reasonable employee would interpret the ac-
tion or statement of the employer and whether the conduct
would reasonably tend to interfere with, threaten, or coerce
employees in the exercise of their Section 7 rights, taking into
account the surrounding circumstances. The Roomstore, 357
NLRB 1690, 1690 fn. 2 (2011); Lutheran Heritage Village-
Livonia, 343 NLRB 646, 646 (2004). Thus, the standard is an
objective one. As the board explained in Lutheran Heritage
Village, id. at 647, an employer’s rule contravenes the Act if it
explicitly restricts protected activity, or if (1) employees would
reasonably construe the language to prohibit Section 7 activity;

41 As a matter of dicta only, I would reach the same conclusions as
Potter, to wit, that Palmer, despite her denials before him (and before
me), did distribute the flyer on February 4 on worktime and in a work
area without clocking out for union business, but that the discipline
imposed on her was disproportional to the severity of the offense.
SHANDS JACKSONVILLE MEDICAL CENTER 927

(2) the rule was promulgated in response to union activity; or
(3) the rule has been applied to restrict the exercise of Section 7
rights. The Board further said, id. at 646, that it must give a
rule a reasonable reading, refrain from reading particular
phrases in isolation, and not presume improper interference
with employee rights.
On its face, the provision in the CA guidelines prohibiting
employees from engaging in unauthorized distribution of writ-
ten or printed materials of any description without authorization
impinges on employees’ Section 7 rights in two ways. First, it
is presumptively overly broad in that it covered nonworktime in
nonwork areas. See New York New York Hotel, LLC, 334
NLRB 762, 763 (2001); Santa Fe Hotel, Inc., 331 NLRB 723
(2000). Second, the rule can reasonably be read to require em-
ployees to secure management permission before they engage
in Section 7 activities. See TeleTech Holdings, Inc., 333 NLRB
402, 403 (2001); Brunswick Corp., 282 NLRB 794, 795 (1987).
The Respondent contends (Br. 37–38) that the provision
should not be viewed in isolation but in the context of what it
contends is its lawful formal policy on solicitation and distribu-
tion and, “more importantly,” the pertinent provisions thereon
in the agreement. This argument lacks merit because it places a
far too onerous burden on employees. Nothing in the guideline
in question mentions or even suggests that other Hospital poli-
cies or the agreement affects its application, and employees
cannot reasonably be expected to know their impact, if any.
For the above reasons, I conclude that the Respondent has
violated Section 8(a)(1) by maintaining an overly broad no-
distribution rule requiring employees to obtain permission to
engage in any distribution activity.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by
maintaining an overly broad no-distribution rule that required
employees to obtain permission before engaging in any distri-
bution.
REMEDY
Because I have found that the Respondent has engaged in
certain unfair labor practices, I find that it must be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended42
ORDER
The Respondent, Shands Jacksonville Medical Center, Inc.,
Jacksonville, Florida, its officers, agents, successors, and as-
signs shall
1. Cease and desist from

42 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 adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(a) Maintaining any work rule that unlawfully restricts em-
ployees’ Section 7 rights to engage in distribution activity.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the work rule prohibiting employees from en-
gaging in unauthorized distribution of written or printed mate-
rials of any description.
(b) Within 14 days after service by the Region, post at its fa-
cility in Jacksonville, Florida, copies of the attached notice
marked “Appendix.”43 Copies of the notice, on forms provided
by the Regional Director for Region 12, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places at all facilities where the unlawful policy has
been or is in effect, including all places where notices to em-
ployees are customarily posted. In addition to physical posting
of paper notices, notices should be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since February 25, 2010.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your be-
half

43 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT maintain policies that unlawfully restrict you in
the exercise of the rights listed above, including your ability to
distribute literature on behalf of the American Federation of
State, County, and Municipal Employees on nonworktime and
in nonwork areas.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL rescind the provision in our corrective action guide-
lines prohibiting you from engaging in the distribution of writ-
ten or printed materials of any description without our permis-
sion.
SHANDS JACKSONVILLE MEDICAL CENTER, INC.