Shelby County Health Care Corp.

National Labor Relations Board - Administrative Judge Opinions

Mar 31, 2004

26-CA-021173 (N.L.R.B. Mar. 31, 2004)

JD(ATL)–16–04
Memphis, TN

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

SHELBY COUNTY HEALTH CARE
CORPORATION d/b/a THE REGIONAL
MEDICAL CENTER AT MEMPHIS

and CASES 26-CA-21173
26-CA-21244
AMELIA WITZLEB, an Individual 26-CA-21404

and

BECKY WOOD, an Individual

Linda Mohns, Esq., for the General Counsel.
David P. Jaqua, Esq., for 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 (herein 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 (herein Wood). Based upon the allegations 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 (herein the Board) issued a Second Order Consolidating
Cases, Amended Consolidated Complaint and Notice of Hearing on November 26, 2003.
The complaint alleges that the Shelby County Health Care Corporation, d/b/a the Regional
Medical Center at Memphis (Respondent) terminated Witzleb on March 27, 2003 because
she joined and supported Local 205 of the Service Employees International Union (herein 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 otherwise
cooperated in a Board investigation. The complaint additionally includes seven other
incidents of conduct that are alleged to interfere with, restrain, and coerce employees in the
exercise of rights guaranteed in Section 7 of the National Labor Relations Act (herein the
Act).

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This case was tried in Memphis, Tennessee, on January 20, 21, 22, 23, and 30,
2004, at which all parties had the opportunity 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 observation 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 denies 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 revenues in excess of $250,000 and
purchases and receives at its Memphis, Tennessee facility, goods valued in excess of
$5,000 directly from points outside the State of Tennessee. Respondent admits, and I find
that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act. Although Respondent asserts in its answer that it is without knowledge as to
whether the Union is a labor organization within the meaning of Section 2(5) of the Act,1 I find
the Union to be a labor organization.

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 jurisdiction in this matter.

A. Background and Relevant Facts Related to the Issue of Jurisdiction

Prior to 1981, the Memphis and Shelby County Hospital Authority 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
1 While the record contains no testamentary proof in support of this issue, General Counsel
submitted into evidence two fliers that were distributed by the Union to employees soliciting
support their for the Union’s representation of nurses at Respondent’s facility. Section 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 collective bargaining agreement. Based upon 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 mean of Section 2(5) of the Act. NLRB
v. Cabot Carbon Co., 360 U.S. 203 (1959); St. Anthony’s Hospital, 292 NLRB 1304 (1989).
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indigent with long-term medical care needs and the Shelby County Healthcare Center was
primarily a nursing 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 Hospital 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 Employees
(herein 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 resolution, the Commission further resolved that such action was contingent
upon the formation of a not-for-profit corporation to be named Shelby County Health Care
Corporation (herein Respondent and also referenced as “The MED”) and the execution of a
contract between the Shelby County Government and Respondent for the operation of the
facilities then operated by the Memphis and Shelby County Hospital Authority.2 County
Attorney Brian Kuhn testified that the Shelby County Hospital Authority was dissolved in
conjunction with the County’s issuance of 40 million dollars in bonds for the modernization
and the construction of new buildings for the City of Memphis Hospital. 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 Respondent’s incorporation. The incorporating charter provided for ten (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 9, 1981, to provide that nine 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 appointment 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 twelve (12)
regular voting directors to be appointed by the Mayor and one (1) non-voting ex officio
member. On March 27, 1986, the charter was further amended to designate the hospital
administrator, hospital medical director, and the president of the medical staff as ex-officio
non-voting directors.

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 provided that for one
dollar ($1.00) per year and other valuable consideration, the County would lease to
Respondent all of the land and improvements that were known as the City of Memphis
Hospital, including 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
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 Respondent’s operation.
3 Prior to that time, the hospital primarily treated the indigent of Memphis in 40 to 50 bed wards.
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created the Memphis Hospital Authority. A condition of the lease was the requirement that
the number and method of selection of directors conform to the 1981 charter and articles of
amendment. An additional provision gave the County the option 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 annual operations financial report and a
budget for the next year’s operations including anticipated capital expenditures. Respondent
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 appropriations to be provided to
SCHCC to fund the budget as approved.” On July 1, 1981, the County Mayor signed a
resolution approving the contract between the County and Respondent. The resolution
included the proviso that the approval of the lease was contingent upon the County receiving
an agreement 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 approval 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 by-laws, 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 available 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
$10,000,000.00 for Respondent’s capital improvement needs. In June 1991 the County
passed a resolution to amend the 1990-1991 Fiscal Year Operations Budget of
$24,566,667.00 by an increase of $2,233,333.00. In 1994, the Commission appropriated
$16,584,000.00 from the 1993-1994 Fiscal Year Capital Improvement Budget for the
completion of the ambulatory care facility, the purchase of radiology equipment, and the
expansion of the radiology and labor and delivery facilities. Respondent’s June 30, 2003 and
2002 Financial Statement reflects that the County appropriated $23 million dollars 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 improvements for 2003 and 2000 were
approximately $11.4 million and $4.5 million, respectively.

While the County allocates an amount for Respondent’s annual 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 University of Tennessee
physicians who staff the hospital and the Commission required Respondent to report back to
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the County every two 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,
Respondent 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 written 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
Commission could limit or decrease the deficit funding to Respondent due to the fact that the
appropriation of funds is a discretionary matter. Secondly, the Mayor and the County
Commission can institute proceedings for the removal of board members 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 six (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 By-Laws 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 By-Laws of December 11, 1992, reiterated that the board of
directors would consist of twelve (12) regular directors, plus three ex-officio directors. The
by-laws 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 directors 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
nominating committee, or the full board. The by-laws 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 recalled
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
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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-1980’s, 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 increased 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 waiting 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 services 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 Ministers’ 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 Respondent 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 directed 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 Respondent and AFSCME. Whitaker, who was corporate legal
counsel 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.
Respondent’s agreement with the AFSCME remains in effect.

Whitaker testified that Respondent experienced a major financial crisis in 1995 when
Respondent lost 42 million dollars resulting 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 submitted into evidence Respondent’s board meeting
minutes for June 4, 1996, March 31, 1997, July 2, 1997, September 15, 2000, and November
8, 2000 reflecting Lawhead’s attendance. During the June 4, 1996 board meeting, Board
Chairman Lewis Donelson expressed some concerns about the viability of Respondent and
stressed the need for possible affiliation with another hospital 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 reminded 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,
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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 continued 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. Respondent is not required to follow the County’s
purchasing procedures, bidding guidelines, or the County’s job posting requirements. 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 Tennessee 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
municipality; 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 authorities 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, 2003,4 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 Regional 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 government 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, treatment of medically indigent persons, and losses from Medicaid to be considered to
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 Financial Accounting Standards Board (FASB) and the
Governmental Accounting Standards Board (GASB). The document include the language that
because the Mayor appoints the Board members subject to County Commission approval, and
the County allocates funds to Respondent 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 America applicable to state
and local government entities.
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be State losses and thus entitled to a Federal match. Whitaker testified that only public
entities could have a certified public expenditure.

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, Emergency, as well as the
Trauma Operating Room (herein TOR). Susan Raburn is the Nurse Manager for the
Chandler Operating Room, the Burn Operating Room, and the TOR. For the past three
years, Linda Pulley has served as the Patient Care Coordinator for the TOR and supervises
all the TOR Registered Nurses (herein 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, followed by a 24-hour shift and 12-hour shift the following week. Respondent’s
staffing guidelines require a minimum of 6 RN’s for each shift to cover the TOR’s three
operational operating rooms (OR’s). Multiple medical services perform surgeries in the TOR.
Prior to surgery, the medical specialty surgeon books the case through the charge nurse and
completes a posting card identifying (a) time of the scheduled surgery, (2) the identity of the
staff performing the surgery, and (3) any additional or specialty instruments that will be
needed for the surgery. 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, herein Pulley, acts as charge nurse when she is present at the hospital.
She designates a charge nurse in her absence. On each shift there are three TOR teams
normally consisting 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 four hours, the assigned nursing team has the option of requesting 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 four 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
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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. Everybody’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 circulator is in and out of the room trying to take care of
anesthesia’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 explained:

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 environment 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 response to the
stress, voices are sometimes raised, tempers flare, and individuals may yell. She testified
“people get a little hyper 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 Employees International Union,
Tennessee Health Care and Public Service Workers Union (herein the Union) began
organizing efforts among Respondent’s nurses at Respondent’s Memphis, Tennessee
facility. Witzleb not only served as a Union committee member, she also solicited Union
cards, distributed Union literature, 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 handbill.

Becky Wood testified that she first became aware of the Union handbill containing the
nurses’ signatures when she observed anesthesia employee Kerry Snyder and Dr. Martin A.
Croce, Respondent’s Chief of Trauma and Critical Care (herein 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:
“Although 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 Union advocates.” He
assured the nurses that he was continuing to work with hospital administration to help solve
existing problems. In the last paragraph of the memorandum he stated:
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Finally, I know that the TOR is a difficult place to work. Patients 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 loyalty
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, (here Steinhauer), conducted a meeting
with approximately 14 TOR nurses. The meeting occurred at approximately 6:30 a.m. on a
Saturday morning and was attended by Gloria Thomas, Respondent’s Vice President of
Human Resources. During the meeting, Steinhauer 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 September 19, 2002, Steinhauer, Raburn, Duncan, and Rhonda Nelson,
Vice-President Patient Care Services, issued a memorandum 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 concerning 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 assess the entire air handling system, an
TOR/TPACU representative had been added to the staff nurse advisory council, and a
follow-up meeting had been held to resolve the staff’s concerns about the weight and
moisture of the metal instrument containers.

On September 25, 2002, Witzleb sent a letter in follow-up 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 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 work place.” She
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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 Respondent’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 hospital to say that we didn’t want a union in
there.” Loftis recalled 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 petition together for the people that wanted to not have a union in the
hospital and would we like to sign it.” After Wellborn declined to sign the petition, the woman
left the area.

Nurse Susan Capozzi-Vazquez testified that in August or September of 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’s 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’s.

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 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 Respondent’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, election process, or recognition of a union for
nurses.” Management 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.

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D. Witzleb’s Discharge

As an insulin-dependent diabetic for four 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 three hours. Before 9:00 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 four-hour relief. Although
Witzleb’s team anticipated relief after their first four hours, the third operating team began a
procedure around 10:00 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 lunch break 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 Program Director of the Nursing
and Seizure Program. She is also employed by the UT Medical Group in the Department of
Anesthesiology as a part-time staff nurse to provide anesthesia services 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 discussion 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 occurrences 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 negative impact on the patient care or the
surgical procedure. Hill confirmed that neither she nor the surgeons stopped their procedure
during Witzleb’s conversation with Moore.
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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 exchanged. 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 another 24-hour shift and a
12-hour shift the following week. Although the 12-hour shift was a day shift from 7:00 a.m. to
7:00 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 operating
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 employees 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 reminded of Respondent’s confidentiality rule and cautioned not to
discuss this action with any of her co-workers. Witzleb was informed that she could go to
Human Resources and request a 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 and one-half years of employment, her prior disciplie included only one
verbal counseling 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 received a written notification of her termination along
with copies of incident reports by Hester, Pulley, and nurse Lynn Regester. Witzleb later
filed a grievance concerning her discharge with Respondent’s internal grievance procedure.
The Personnel Action Review Committee that was designated to review 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 termination 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:
5 The transcript incorrectly substitutes the word “office.”
6 The transcript incorrectly substitutes the word “stamp.”
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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 behavior in communicating with a person in a position of
authority; Conduct or language that is derogatory or may undermine authority;
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 “fuck”
what he said and she was going to eat. Moore testified that Witzleb added that she would let
Fabian 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, everyone in the operating room looked up to see what was happening. 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 Pulley and Moore
were both back at work, Pulley typed a report of the February 15 incident. Moore testified
that Pulley prepared the report because she (Moore) did not have access to a typewriter.

Nurse Lynn Regester testified on behalf of Respondent concerning 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 declined 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.
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Linda Duncan, Respondent’s Director of Surgical Services, testified that she
personally questioned Witzleb about the February 15, 2003 incident. While Duncan did not
elaborate in her testimony about others in attendance, her March 27, 2003, meeting with
Witzleb is documented in General Counsel’s Exhibit No. 59 and reflects that Pulley and
Rayburn were present with Duncan 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 lunch break when
she needed it and why she couldn’t keep her blood sugar under control. Duncan further
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.

When asked by Respondent’s counsel how Duncan interpreted 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 admissions during the
March 27, 2003, interview.

F. General Counsel’s Evidence of Disparity

Witzleb admitted that she had been angry during her discussion 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 going home. Witzleb
explained that she made the statement during her March 27 interview with Duncan that “I told
her that, and I’ll tell you the same thing too.” Witzleb maintained however, that this statement
was a reiteration to Duncan of a previous 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 break time. In giving this opinion, she had looked toward
Pulley stating: “I’ve told her this, and I’ll tell you this too.”

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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 “fuck” and she’s sure that she has
probably used it when a case has been scheduled. She further acknowledged that she has
used the term “fuck 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
supervising 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 two years, he has heard Moore use profanity. In front of
Pulley, she has stated “We got to draw all of these ‘fuckin’ Chandler cases again today, I
guess we’ll just get ‘fucked’ 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 orthopedic 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 ‘fuckin’ 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 another 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 conversation 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 medical 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 responded with a
raised voice: “Since when does a fucking case get started on time around here?” Engel
testified that his comment 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 Pulley’s presence and she has heard Pulley use
profanity as often as two or three times each day.

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Wood testified that it is rare for profanity not to be used in the operating room. When
asked to give an example, she explained:

if 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 ‘fuckin’ blood
bank and see if the blood’s ready yet, or tell the ‘fuckin’ clerk - - call the blood
bank and we need to know what the ‘fuckin’, you know it’s just everyone. 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 between family members” and not uncommon.

Nurse Sheryl Jones recalled an incident in March or April of 2002 when Wood was
charge nurse. Jones initially understood that she was to go into surgery to give the four-hour
relief to Veronica Castillo and her partner, Becky Lastor. As she was scrubbing up to go into
surgery, she was then told that Castillo 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 stating that she
“didn’t give a fuck.” Jones recalled that Wood used the term “fuck you” or “fuck 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 answered the phones, retrieved blood from the blood bank, and did whatever
was needed to keep the operating rooms functioning. Becky Wood and her nursing partner
had been assigned to one of the operating rooms in use and Wood reported that they wanted
their four-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 “fucking” phones and she didn’t care if they rang off the
“fucking 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 testified that during the meeting, Wood did not deny
what she had said to Johnson. Pulley and Duncan asked Johnson if she considered 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 Johnson’s conversation with Wood, Wood also told Capozzi-Vazquez that
she was not going to answer the phones when she received her four-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
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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 “fuck that,” adding that she had been in the operating
room for four hours and she was going to get something to eat. Wood recalled that within
the next week, she was called into the office to discuss the incident with Johnson, Pulley,
and Duncan. She admitted to Duncan and Pulley that she had said “fuck” and that she had
told Johnson that she had been in the room for four 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
orientation 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 possibly 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 demanded to know what
Rowell would be doing and Rowell responded: “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 refusing 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
corroborated the nurse’s having been called into the office to take Pulley’s telephone call.

On May 10, 2002, Witzleb prepared an incident report involving 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 patient with a self-inflicted shotgun
wound and terminal cancer. Witzleb reported that the nurse made the comment in the TOR
that “If those fucking ophthalmology doctors want a fucking microscope, they had better bring
their asses down here and go to Chandler OR to get one because I’m not foolin with no
fucking 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 “Someone has been in my box again
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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 dong 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 comments had been made in the presence of others
and that the nurse’s threats and hostile manner made her extremely uncomfortable. 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
September 27, 2003, when the nurse entered the lounge. He recalled that she stated that
someone had stolen her “fuckin” baby pictures from her locker. About an hour after her
comment, the nurses’ communication book included an entry with the following 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 IT7

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 October 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 coworkers.” 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
management 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 given an
opportunity to discuss her concerns with Nelson, no other manager spoke with her about her
October 9, 2003 letter.

7 The original note contained double underlining.
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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 others.
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 “fucking” 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 “inappropriate” 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 employee where an inappropriate comment was made to this
employee. 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 3
in this category.” A category of three indicates that the employee meets or slightly exceeds
performance expectations in a particular category.

Pulley testified that she first learned of the September 2003 entry 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 she (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 disciplined for
the incident. Raburn also acknowledged Witzleb’s April 2002 incident report in which Witzleb
reported the nurse’s having used “inappropriate language” or having been “argumentative
with someone at the hospital.” Raburn recalled that management 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
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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, 2002 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 stating 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 knowledge 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 employee’s
“handling strife in the unit with professionalism” as well as the following:

Things directed at her have not prevented her from remaining professional
with her co-workers. She has reported differences 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 getting 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 counsel supplementing an earlier letter and listing additional
allegations for which a response was requested in Case No. 26-CA-21173. The May 8 letter
included the allegation that in February 2003, Pulley 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 responded 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 suggested that Wood contact Human Resources or Respondent’s attorneys if she was
unsure of what to do. Respondent categorically denied that anyone instructed Wood not to
talk to the NLRB.
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K. Wood’s Extended Sick Leave

Wood testified that she had a doctor’s appointment on either May 29, 2003, or May
30, 2003. For a reason that she could not recall, the doctor was unable to see her as
scheduled. The doctor cautioned 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 extended sick leave. Wood submitted a Request for Extended Leave dated June
4, 2003. The six-page document included the signature and certification of her treating
physician. Wood later received 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 notice, 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. Duncan 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 consecutive scheduled workday missed due to illness or injury. The policy further
provides that the first three (3) days must be paid from the Paid Time Off (PTO) account.
Wood admitted that under Respondent’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 been paid for the first 24 hours of sick leave.
Wood also acknowledged 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 second week in May 2003
until the second week in June of 2003. Although Johnson notified Pulley of her need for
extended sick leave at least two 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 extended sick leave was
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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 include 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 subdivision. General Counsel argues that the
Board may properly exercise 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 exemption 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
responsible 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 exempt entity in order to
determine whether the employer was capable 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
jurisdictional standards. The Board further explained that jurisdiction should no longer be
determined on the basis of whether the employer 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 Hawkins 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 University’s board of trustees full power to use, control, sell, or dispose of all the
real estate and personal property belonging to the University. 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
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such agreements without the approval of the legislature. In its rationale for finding the
University exempt from jurisdiction, the Board specifically noted that because 12 of the 21
trustees were selected by the State, either by legislation or by gubernatorial 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 jurisdiction. Similar to the facts of this case, the employer
was not subject to governmental competitive civil service requirements including 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 voluntary 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 directors 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 “administered” 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 at 7. See also Hawkins County, 402 U.S. at 605.

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 neither had the authority to appoint
the board of directors nor to remove any board member. The incumbent board members
actually selected their successors subject to county approval. The Board determined that
there was no “direct personal accountability” 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 non-profit “public corporation.” In its revised organization, the employer underwent
significant changes in its management and operation. While the Board found that the
employer 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 employer was not an exempt political
8 337 NLRB No. 152 (2002).
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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 consider 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 public officials or individuals responsible to the
general electorate. See Five Cap, Inc., 331 NLRB No. 157 (2000). For an entity to be
deemed “administered” by individuals responsible to public officials or to the electorate, those
individuals must constitute a majority of the board. See Enrichment Services, 325 NLRB 818,
819 (1998). In his brief, Counsel for Respondent argues that the Hawkins County test dos
not require that the public officials involve themselves in day-to-day administration or
decisions affecting the employer. Citing Camden-Clark Memorial Hospital, 221 NLRB 945,
948 (1975), Respondent urges that the requirement that public officials appoint a majority of
the governing 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 the 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 government. 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 include 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 employee sued Respondent seeking a civil
service remedy. Respondent 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 Relations 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 disclosure 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 depend upon the Mayor or
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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 argues 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, lawyers 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 Counsel’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 Respondent’s attorneys have initiated and defended prior
lawsuits by 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 establishing Respondent’s existence, individuals who are responsible to public
officials administer Respondent. General Counsel acknowledges 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 Commission have removed a board member while serving
their term, the Mayor has denied reappointment to board members.

In Rosenberg Library Association, 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
benefactor’s will, a 20-member board of trustees was established to select the board of
directors. Seventy-five percent of the employer’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 Commissioners. After a series of hearings, the
Commissioners determined the amount of funding that would be allocated to the Library
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 officials 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 appointment 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 however, did not find this to be a limiting factor and found the employer
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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 upon 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, Tennessee. While there is no evidence that any board member has been removed
during his or her term, the Mayor and the County Commission appoint each board member
and have previously exercised their authority to deny reappointment of board members.
Shelby County owns all of the land and improvements that comprise the hospital facility. The
County Commissioners dissolved the previous Memphis Hospital Authority contingent upon
Respondent’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
residents 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 selection of Respondent’s board of directors remains subject to
appointment 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
Respondent 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 memorandum 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 alleging an 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 1093 (1980). Once the General
Counsel has met this burden of persuasion, the burden 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 Management, 462 U.S. 393 (1983).
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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 legitimate 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 engaged in protected
activity prior to her discharge. It is undisputed that Witzleb was one of the most visible and
active Union supporters. If there had been any question about her support, 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 employee 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 work place. 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 resistance to unionization. Thus, General Counsel has clearly established 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 decision-making process.
Manno Electric, 321 NLRB 278, 280 at fn. 12 (1996). In essence, General Counsel must
prove that animus was present during the decision-making process. Sears Roebuck
Company, 337 NLRB No. 65, slip op. at 1 (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 establish unlawful discrimination may be shown by less than direct
evidence. Carpenters Health and 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.
9 General Counsel witness Sandra Weir testified concerning a statement 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 professional
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 Mulbauer
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 Mulbauer was acting as an agent of Respondent.
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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
representation. In a separate handbill in August 2002, Witzleb’s signature appeared along
with other nurses’ signatures demonstrating their support of the Union. Becky Wood testified
that when Croce read the handbill containing the signatures, he responded, “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 attempt 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 undisputed that during the period of the Union’s organizing, a petition for nurses to show
that they did not support the Union was posted on Pulley’s door. Witzleb credibly testified
that the petition 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 authority, 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 determining 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 speaking 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 organizational efforts. It is well established that any employer has a perfect right
to oppose a union and the employer is free to communicate to its employees its general view
about unionism or any specific views about a particular union as long as the communication
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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 allegation 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., Inc. 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 nevertheless be considered as background evidence of
animus toward employees’ union activities. Tim Foley Plumbing Services, 337 NLRB No. 45,
slip op. at 2 (2001); Gencorp, 294 NLRB 717 fn. 1 (1989).

While the record is devoid of direct evidence of animus, I nevertheless 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 adequately investigate the alleged misconduct (4) departure from past practice (5)
disparate treatment of discharged employees (6) shifting or inconsistent reasons (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 discharge, she had actively supported the Union for at least
six months. Because she was absent from the hospital for sick leave, her termination
occurred approximately six weeks after the incident for which she was allegedly discharged.
The more significant factor that supports an inference of animus however, is Respondent’s
departure from past practice.

Witzleb’s termination notice states that Witzleb was terminated 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; disrespectful
conduct or language toward or relating to a person acting in a supervisory capacity (Charge
Nurse); Argumentative behavior in communicating with a person in a position of authority;
Conduct or language that is derogatory or may undermine authority; or other conduct which
signifies intentional disregard for, or unwillingness to submit to the authority of the hospital.”
Fundamentally, Respondent alleges that Witzleb was terminated because of her language
and her “insubordination” or argumentative behavior toward a person in authority. Virtually
each witness 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 two 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 however,
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received no discipline for her behavior. Rowell and Johnson credibly testified that during a
nurse’s last night of orientation 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 conduct that was described
by her peers as threatening and unprofessional. Respondent does not deny knowledge of
the nurse’s profanity and refusal to assist with getting necessary equipment for an
Ophthalmology procedure in January 2002 or that she threatened 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 co-workers 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
undisputed that the nurse received no discipline. I credit the testimony of Johnson, Wood,
and Rowell in finding that nurses have not only used profanity toward charge nurses but
have also refused 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 tolerated from other employees. The overall record reflects that other
nurses have used far more offensive profanity in the TOR without 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 specifically recognized as an employee who reported fellow
employees and supported management. Wood testified without contradiction that when
Croce read the names of the nurses supporting 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 circumstances. Electronics Data Corp., 305
NLRB 219, 219 (1991). Additionally, the Board has found that blatant disparity is sufficient in
itself to support a prima facie case of discrimination. 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 opposition to the Union supports an
inference that Witzleb’s Union support was a motivating factor in Respondent’s decision to
terminate 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
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and Company, 337 NLRB No. 65, slip op. at 1 (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 burden simply by showing that it had legitimate
reasons for the action, but must “persuade” that the action would have taken place even
absent the protected conduct. Centre Property Management, 277 NLRB 1376, 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
Exhibits 33 and 34 contain 223 instances of discipline for acts of insubordination and
improper conduct between January 1, 2000 and December 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 discipline documents relate to conduct similar to
that for which Witzleb was allegedly terminated. Respondent’s Exhibit No. 33 also contains
records documenting (1) an employee’s November 2000 termination for loitering in an
unauthorized area; (2) an employee’s first reprimand for cooking sausages on the heating
unit of the coffee maker in the nursing staff office of the patient clinical 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 records
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 similar
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 terminated 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 12, 2003, the employee received a
three-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 terminated 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 Employee 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
10 Respondent’s Exhibit No. 34.
11 Respondent Exhibit No. 34.
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being loud and disruptive, using obscene and insulting 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.

Respondent’s records also show that an employee was suspended and lost only two
days pay after an altercation in which she repeatedly pushed a file cart into another
employee. The injured employee was diagnosed with a contusion and back strain, placed on
light duty for two 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 adequate notice when she would be
late, failing to timely respond to pages, and refusing assignments.” Prior to this employee’s
discharge, she was given the benefit of the progressive disciplinary system, receiving a final
warning and then a three-day suspension.

Respondent’s records13 also reflect that an employee was discharged 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 coworkers that
they “gang rape” another employee. In a second incident, the employee was suspended for
three days for failing to complete an assignment and then becoming hostile and belligerent
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______.”
Interestingly, the employee who was threatened with the hedge clippers 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 that Respondent has tolerated similar or worse conduct without
comparable discipline. As indicated by the records discussed above, employees have
repeatedly violated Respondent’s Standards 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 discharged. In its 1999 decision in Avondale Industries, Inc., 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 instances 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
12 Respondent Exhibit No. 34.
13 Respondent’s Exhibit No. 34, page 116.
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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 No. 67, slip op. at 2 (2000).

Respondent’s explanation for Witzleb’s discharge was presented through the
testimony of Respondent’s Director of Surgical Services. Duncan testified that during the
March 27, 2003 interview, 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 her (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 continued to operate as an elective
O.R., it needed to be staffed like one with designated lunch and break time. 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 employee’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 upon all of the foregoing, I find that General Counsel’s prima facie case
establishing unlawful motivation stands unrebutted. Accordingly, while Witzleb’s conduct
may have been arguably 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, Respondent, by Linda
Duncan, Susan Raburn, and Lynda Pulley threatened an employee that she was prohibited
from discussing disciplinary matters with non-supervisory co-workers. Witzleb testified that
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when she spoke with Duncan, Raburn, and Pulley on March 27, Duncan told her that she
was held to a confidentiality rule that prohibited her from discussing her suspension pending
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 disciplinary action with her co-workers, with the exception of HR
employees, members of her management team, and Administration.” 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 investigation 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 * * * employees, * * * when not
properly authorized by the hospital, is prohibited. This includes, but not limited
to the following:

(a) Information from * * * employee * * * hospital records and data
(b) Information relating to employee discipline, performance 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 Personnel Manual, Form No. 8348.006B(09/93).

3. Complaint Paragraph 11

Complaint paragraph 11 alleges that at all material times, Respondent, by publication
of its Code of Conduct-Legal Compliance Program, has maintained the following rule:

Government investigations: * * * 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.

In its Answer, Respondent admits that the language included in Complaint Paragraph
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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, Respondent has
maintained a written confidentiality agreement that states as follows:

(a) I agree not to disclose or discuss any * * * human resources, 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 confidentiality 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.”
Respondent 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 activity 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 Section 7 rights.” The Board found that where the
rules are likely to have a chilling effect on Section 7 rights, the Board may conclude 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, employees, the hospital, or others, when not properly
authorized by the hospital.” The manual provides that information prohibited from disclosure
includes “Information relating to employee discipline, performance evaluation, or other
matters of a personal nature.” The manual further prohibits disclosing “Personal or
professional information concerning medical staff or other professional 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 subject to disciplinary action up to
immediate termination. In a recent 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
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employment. See Double Eagle Hotel & Casino, 341 NLRB No. 17, slip op. at 4 (2004). The
Board revisited its prior decisions in University Medical Center,14 Flamingo Hilton-Laughlin,15
and IRIS U.S.A., Inc.,16 where the Board determined that the communication rules were so
broadly stated that employees could reasonably construe them to prohibit discussions of
wage and working conditions. In its Double Eagle Hotel and Casino decision, the Board
noted that unlike the previous cases where the language could be construed to prohibit
discussions 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 violated. 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 upon Section 7 rights in violation of Section 8 (a)(1). In the instant
case, Respondent’s confidentiality provision of its Personnel Manual equally infringes upon
employees’ Section 7 rights and is violative of Section 8(a)(1) of the Act.

It is also without dispute that Respondent enforces the provisions 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 interfere with Respondent’s investigation and could
“cloud” other employees’ judgment and recollection. As noted by the judge in Westside
Community Mental Health Center, Inc., 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 prohibition
against disclosing or discussing information about payroll, human resources, or other
management information. By its very wording, the prohibition pertains to wages and working
conditions. I conclude that employees would reasonably read the confidentiality 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
14 335 NLRB 1318 (2001).
15 330 NLRB 287 (1999).
16 336 NLRB 1013 (2001).
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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 maintaining a rule prohibiting employees from providing information or
giving testimony to governmental agencies without the employer’s approval is violative on its
face. See Jack in the Box Distribution Center, 339 NLRB No. 5, slip op. at 1 (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 twenty-four (24) hours
paid sick leave because she participated in investigations 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 Manufacturing Company, 75 NLRB 569, 571 (1947). In its decision in NLRB v. Robert
Scrivener d/b/a AA Electric Co., 405 U.S. 117 (1972), the Supreme Court found that 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 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 Respondent’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 Respondent 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 Office that Wood contacted Pulley to inquire what she should do in
response to the Board’s attempt to contact her. Thus, it is apparent that Respondent knew
that Wood was the employee involved in the allegation concerning Pulley. Based upon the
above undisputed 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
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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 establishing the requisite prima facie case. In paragraph 8 of
the Complaint, 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 Relations 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 Labor 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 receives 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. 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, Kimmons, and Long who are active
Union supporters. Ashburn, whose photograph was displayed on the Union’s organizing
leaflet, testified that the first 24 hours of her May 2003 extended sick 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 engaged in
as much or more protected activity than Wood. Accordingly, 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 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 accompanied by a resolution of Respondent’s Board of
Directors stating: “there will be no counting of cards, election process or recognition of a
union for nurses” and stating that Respondent “will not recognize union representation of
registered nurses at The Regional 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.

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Respondent’s memorandum additionally explains that its decision 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 Respondent’s November 26, 2002
memorandum to contain any threats or promises and it appears simply to be Respondent’s
stated opposition to unionization and the rationale for its opposition. Accordingly, I find it to
be protected free speech under Section 8(c) of the Act and I shall recommend dismissal of
complaint paragraph 7. See Hancock, 337 NLRB No. 183 slip op. at 2 (2002), Mayfair
Midwest, Inc., 148 NLRB 1602, 1603 (1964).

Conclusions of Law

1. Shelby County Health Care Corporation, d/b/a The Regional 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 prohibiting 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 requiring 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 requiring that
employees adhere to and sign a written confidentiality 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 Sections
8(a)(3) and (1) of the Act.

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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:17

ORDER
The complaint is dismissed.

Dated, Washington, D.C.

Margaret G. Brakebusch
Administrative Law Judge

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