Southern Maryland Hospital Center

National Labor Relations Board - Board Decisions

Jun 8, 1989

294 N.L.R.B. 823 (N.L.R.B. 1989)

SOUTHERN MARYLAND HOSPITAL CENTER
Southern Maryland Hospital Center and Alice R.
Thomas. Case 5-CA-18340
June 8, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, HIGGINS, AND
DEVANEY
On May 3, 1988, Administrative Law Judge
Marion C. Ladwig issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions, a supporting brief, and an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings, 2
i The Respondent contends that the allegation that it violated Sec
8(a)(1) on July 22, 1986, by Dr Francis Chiaramonte's statement to Dr
Dennis Carlini that "the operating room would be a better place if
[Alice Thomas, Betty Banks, and Pat Gentile] were gotten rid of is
barred by Sec 10(b) of the Act because the complaint was first amended
specifically to include this allegation at hearing more than 6 months
beyond July 22, 1986 We reject this contention The allegation is closely
related to a separate complaint allegation, and that related allegation was
based on a timely filed 8(a)(1) charge See NLRB v Dinion Coil Co, 201
F 2d 484, 491 (2d Cir 1952)
In its exceptions, the Respondent alleges bias and prejudice on the part
of the judge and appeals his denial of its motion to disqualify himself It
alleges that the judge preempted December 29, 1987 off-the-record settle-
ment discussions by requiring that the Respondent agree to a Board set-
tlement providing for not less than $6000 in backpay if the Respondent
wished to settle the matter We affirm the judge's ruling denying the
motion The Board's Rules and Regulations Sec 102 35 authorizes admin-
istrative law judges "[t]o hold conferences for the settlement or simplifi-
cation of the issues by consent of the parties, but not to adjust cases" We
find, based on the judge's summary on the record of settlement discus-
sions, during which the parties were given the full opportunity to state
their positions regarding alleged bias on the record, that the judge's par-
ticipation in the discussions is consistent with his authorization under Sec
102 35 We note that the judge at that point in the proceeding had been
informed by counsel for the General Counsel that the Regional Director
was unlikely to withdraw the complaint without either an informal or
formal Board settlement With the prospect of a private adjustment ap-
parently foreclosed, the judge merely indicated to the parties the condi-
tions under which settlement could realistically occur, making reference
to estimations of calculations of backpay the parties had previously dis-
cussed Thus, we reject the Respondent's contention that the judge's
statements amounted to an "adjustment" proscribed by the Board's Rules
and Regulations, We further note that the judge went to some length to
explain to the parties on the record that he did not know then whether
the General Counsel would be able to establish a prima facie case and
therefore, as he stated, he was "not in a position to decide the case at this
point, because [he] ha[d] heard only a part of one side of the case " Ac-
cordingly, we find no basis for concluding that the judge had prejudged
the case or for otherwise finding bias on the part of the judge
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established practice is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We find it unnecessary to pass on the judge's recommended dismissal
of the allegation that the Respondent violated Sec 8(a)(1) when it told an
employee on November 20, 1986, that everything would be ' ok" in the
Respondent's operating room because the Respondent had gotten rid of
823
and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Southern
Maryland Hospital Center, Clinton, Maryland, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
"troublemakers " Any such finding would be cumulative as to remedy
We also find it unnecessary to pass on any implication in the judge's fac-
tual findings that, under the Respondent's categorization of employees in
its employee handbook, employees designated as "Group 3" do not par-
ticipate in the Respondent's retirement plan We deny the General Coun-
sel's exception, however, requesting that the judge's finding in this regard
be reversed or, alternatively, that the matter be left to compliance The
remedy recommended by the judge, which we adopt, requires the Re-
spondent to offer reinstatement to discrimmatee Alice Thomas only to
"Group I" status or, if she so requests, to "Group 2" status As there is
no provision in the remedy for Thomas to be reinstated to "Group 3"
status, we find it unnecessary to decide in this case whether "Group 3"
status employees are entitled to retirement benefits
Stephen C. Bensinger, Esq., for the General Counsel.
Dennis M. Gottesmann, Esq., of Greenbelt, Maryland,
and Warren M. Davison, Esq., of Baltimore, Maryland,
for the Respondent Hospital.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This
case was tried in Washington, D.C., on December 15-16
and 28-31, 1987, and January 11-13, 1988. The charge
was filed September 10, 19861 (amended December 29),
and the complaint was issued July 31, 1987 (amended
Dec. 7, 1987, and at the trial).
On June 27, operating room (OR) nurses and others
threatened a job action because of a negative response to
their May 8 request for an increase in call pay. They
gave notice that effective July 7 at 3:30 p.m. they would
not be available for any further "call." After the Hospital
agreed on July 10 to increase the call pay from $2 to $3
an hour (avoiding the job action), it cut the benefits of
OR nurse Alice Thomas, changed her permanent status
to temporary, denied her more hours, and later dis-
charged her She had prepared the May 8 request and
had been an organizer in the OR during the Union's un-
successful 1983-1984 campaign.
The primary issues are whether (a) Dr. Francis Chiar-
amonte, the chief executive officer, stated that Thomas
and another OR employee were "troublemakers" because
they were trying to get the Union in and he did not
want the Union there, and also stated that the OR would
be a better place without Thomas, a union organizer; (b)
the Hospital discriminated against and discharged
Thomas because of her union and protected concerted
activities, and (c) the personnel director, referring in part
i All dates are in 1986 unless otherwise indicated
294 NLRB No. 70
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to,Thomas, told an employee that everything would be
okay in the operating room because the Hospital had rid
itself of the troublemakers, in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act
On the entire record,2 including my observation of the
demeanor of the witnesses, and after considering the
briefs filed by the General Counsel and the Hospital, I
make the following
FINDINGS OF FACT
1. JURISDICTION
The Hospital, a corporation, is a full-service general
hospital in Clinton, Maryland, and a health care institu-
tion within the meaning of Section 2(14) of the Act. It
annually derives over $250,000 in gross revenues and re-
ceives goods valued over $50,000 directly from outside
the State. The Hospital admits and I find that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Office and
Professional Employees International Union, Local 2,
AFL-CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Dr. Chiaramonte's Decision to Get Rid of Thomas
1. His knowledge of union and concerted activities
Dr. Francis Chiarmonte, the Hospital's chief executive
officer, was personally aware of registered nurse (RN)
Alice Thomas' organizing efforts in the operating room
(OR) during the Union's 1983-1984 organizing campaign
As an organizing committee member she wore a bright
kelly green badge on her OR scrub clothes throughout
the campaign, including the times when Dr. Chiaramonte
was performing the surgery. On one occasion when she
saw him looking toward her badge (which identified the
Union, stated "Organizing Committee," and gave her
name and title), she stood up and let him read the badge
"quite clearly." (Tr. 543-545.) She was one of the union
observers at the election (Tr. 558).
For several weeks in the spring of 1986 Thomas
helped prepare a survey of the area hospitals' on-call
policy, which she attached to the May 8 letter she typed,
addressed to Dr. Chiaramonte, requesting an increase in
the hourly call pay. Although she signed the letter only
as "Operating Room and Recovery Room Staff" (G.C.
Exh. 11), her identity as the author was revealed at a
meeting in which Personnel Director Ray Nieves an-
nounced that Dr. Chiaramonte could not give an in-
crease in call pay at that time . RN Cande Jarboe spoke
up and told Nieves that "it's a shame because Alice
[Thomas] had put so much effort into this letter." (Tr.
158-159, 439-440, 759-763.)
Dr. Chiaramonte soon became aware that concerted
action in the campaign for higher call pay was being fo-
mented, in the context of the Hospital's new trauma call
2 The General Counsel's unopposed motion to correct the transcript,
dated March 28, 1988, is granted and received in evidence as G C Exh
53
requirements discussed below. On June 27 a "follow-up".
letter (G.C. Exh. 29) was addressed to him, again signed
"Operating Room and Recovery Room Staff." The letter
concluded with a threat of action that could jeopardize
the Hospital's essential emergency call and trauma call
assignments.
It is no longer professionally nor financially feasible
for us to take call under the present conditions.
Therefore, effective Monday, July 7, 1986 at 3:30
p.m., we the undersigned will not be available for
any further call.
The names of 40 employees were typed at the bottom of
the letter. All except five of them signed the letter (one
being on vacation and one on sick leave) The signatures
included those of Alice Thomas and OR technician Betty
Banks.
Dr. Chiaramonte then reversed his no-immediate-in-
crease position and the threatened job action did not
occur The Hospital on July 10 negotiated a settlement
that included a 50-percent increase in the call pay, from
$2 to $3 an hour (G.C. Exh. 50). This amicable settle-
ment ended the call-pay dispute, but the Hospital began
taking actions against Thomas, who it knew had au-
thored at least the May 8 letter. On July 21 the Hospital
began reducing her benefits. It later changed her perma-
nent status to temporary, denied her more work and
scheduled hours, and discharged her.
2. Dr Chiarmonte's own statements
Meanwhile Dr. Chiaramonte himself revealed his deci-
sion to rid the operating room of Alice Thomas.
On July 21 (the same day Thomas' benefits were re-
duced), OR technician Betty Banks was waiting, at the
OR desk when Dr. Chiaramonte asked her to go back
and wait in the room "even if it takes all day." Then
when he saw her stopping in the hallway he told her he
did not want "trash" in the hallway and for her to go
back into her room. The next day, July 22, he became
angry with her for not being present when his patient ar-
rived. He called her a "black bitch," upsetting her so
much that she went home. (Tr. 149-152.)
Also on July 22 (I infer this date because of a some-
what similar statement overheard by Killingham that
day), Dr. Chiaramonte told Banks that Alice Thomas,
Patricia Gentile, and she were troublemakers "and he
would like for us to be out of the OR." She asked why
he considered her a troublemaker. He responded that she
and Thomas were trying to get the Union in, "that he
didn't want the union here and he felt we [were] trying
to run his OR and his hospital." (Tr. 152.) (Banks, who
was discharged September 9, appeared on the stand to be
an honest witness. I credit her testimony, which is un-
denied on the record. Without explanation, Dr. Chiara-
monte failed to testify.)
Sometime that same day, July 22, RN Michael Kil-
lingham heard Dr. Chiaramonte make a statement about
the same three employees. This happened when Kil-
lingham went to the OR desk to tell Dr. Chiaramonte
that he was ready for the doctor's patient. As Killingham
(who quit in August) credibly testified, he overheard Dr.
SOUTHERN MARYLAND HOSPITAL CENTER
Chiaramonte tell Dr. Dennis Carlini near the desk
"something to the effect that the operating room would
be a better place or a nicer place if three people were
gotten rid of, and those people were Alice Thomas .. .
a union organizer, and Betty Banks . . . a big mouth,
and the other person was Pat Gentile." (Tr 16-17.)
By their demeanor, Kilhngham impressed me as a
more trustworthy witness than Dr. Carlini, a former
hunting companion of Dr. Chiarmonte's. Dr. Carlini ap-
peared less than candid when he stated on the stand: "I
will testify that any conversations that I have with Dr.
Chiaramonte do not involve his employees. They usually
involve emergency room problems that we have had, or
equipment for the OR. That would be it." (Tr. 568-570.)
(In making this credibility resolution I find it unneces-
sary to rely on Thomas' testimony, to which the Hospi-
tal objects, that Thomas was serving as Dr. Carlini's cir-
culating nurse when he told her "Boy, you've really
been bad again , Alice . Dr. Chiaramonte has once
again stated that you're a real troublemaker in the oper-
ating room, and it would be a lot better off if you were
gone.") (Tr. 769.)
I find that Dr. Chiaramonte's statement to employee
Banks (that he would like three employees out of the
OR, stating that Thomas and Banks were troublemakers
because they were trying to get the Union in) and his un-
guarded statement overheard by employee Killingham in
the course of Killingham's regular duties (that the oper-
ating room would be a better place if Alice Thomas, a
union organizer, was gotten rid of) clearly were coercive
and violated Section 8(a)(1) of the Act. I also find that
the statements-particularly in the context of the first of
the actions being taken against Thomas-revealed that
Dr. Chiaramonte had adopted a policy of getting rid of
her. I infer that he not only knew that she was the
author of the May 8 call-pay request (which she signed
"Operating Room and Recovery Room Staff"), but at
least suspected that she had been fomenting the employ-
ees' concerted action and was the author of the June 27
"follow-up" letter (also signed the same way, "Operating
Room and Recovery Room Staff"), which threatened a
refusal by the staff to accept the essential on-call assign-
ments, I agree with the General Counsel' s argument in
her brief (at 63) that the collective action in the call-pay
matter most likely raised for Dr. Chiaramonte "the spec-
tor of yet another union organizing campaign."
3. Confirming statements
Subsequent statements by Personnel Director Ray
Nieves and OR Head Nurse Louella Eicher (who were
involved in Thomas' discharge in November) confirm
Dr. Chiaramonte's discriminatory motivation.
On November 20 Nieves used the same word "trouble-
makers" when referring to the termination of employee
Banks on September 9 and the upcoming discharge of
Alice Thomas. (As discussed below, this was 2 days after
the incident that the Hospital claims was the basis for
Thomas' discharge.) Nieves called RN Janice German to
the personnel office and was trying to persuade her to
serve as an assistant to Eicher, who had been disabled in
an automobile accident. Nieves informed German that
Dr. Chiaramonte thought she would be the best person
,825
to assist Eicher.- It is undisputed that Nieves then -told
German, "You know we've gotten rid of the troublemak-
ers" so it would be pretty easy going up there." (Tr.
90-91.) Although I infer that Nieves, like Dr. Chiara-
monte 5 months earlier, was referring to employees
Thomas and Banks as troublemakers, I do not find that
this statement alone-without identifying them or men-
tioning their union support-violated Section 8(a)(1).
OR Head Nurse Eicher later went further in revealing
Dr. Chiaramonte's discriminatory motivation for getting
rid of Thomas. About the second or third week of Feb-
ruary 1987, shortly after Mary Garvey was employed as
the OR director (Eicher's superior), Eicher talked with
Garvey about Alice Thomas. As Garvey credibly testi-
fied, Eicher said that "she had to terminate [Thomas] be-
cause [Charge Nurse] Maureen Burns wrote her up on a
case that she refused to do." Garvey asked why Thomas
would be fired over a writeup by a peer (a charge nurse
being nonsupervisory). Eicher answered that Thomas
"had a history of being a troublemaker .. . . she tried to
bring in the union." (Tr. 172, 176-177.) I discredit
Eicher's claim that instead, Garvey "asked me if the
Union was involved, and I told her 'No"' (Tr. 983). (By
her demeanor on the stand, Garvey impressed me most
favorably as an honest, sincere witness whose testimony
was not influenced by her discharge from the Hospital. I
discuss Eicher's credibility below.)
Eicher (as Garvey further testified) gave a fuller expla-
nation when Thomas' name came up again in April 1987
Reminding Garvey who Thomas was, Eicher said, "That
is the one that was the troublemaker and belonged to the
union. She was trying to get the union in ." Garvey re-
sponded, "I really find it hard to believe that we have
such [a] shortage of OR nurses and here we are . . . ter-
minating one that I heard was a very good OR nurse "
Eicher admitted, "Yes, she was a very good OR nurse."
She added, however, "that the doctor [Dr. Chiaramonte]
thought she was a troublemaker and that he said he
owns the hospital and he did not want the union here
. . . . That it was his hospital and he would run it the
way he wanted and the union would not tell him what to
do." (Tr 179-181.) Eicher confided that she had "a
direct line" to "the doctor," that she "socializes with
him," and that she is "very good friends" with Dr
Chiaramonte's executive secretary (Tr. 189).
I find, after weighing all the evidence, that Dr. Chiara-
monte adopted the policy of getting rid of Alice Thomas
because he decided that she had been fomenting the call-
pay job action and that she was rekindling the union or-
ganizing.
B. Shortage of OR Nurses
The Hospital had a continuing shortage of experienced
operating room (OR) registered nurses (RNs). During
1986 it repeatedly placed ads in the Washington Post for
experienced OR RNs to work either full time or part
time (G.C Exh. 20).
From March through the end of August, when Per-
sonnel Director Nieves was refusing to restore some of
Alice Thomas' scheduled hours, the shortage of- experi-
enced OR RNs became worse. Six of them, Irene
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gatton, Mary Ann Gumayan, Michael Killingham,
Laurel Renaud, Sandra Tull, and Anna Windhorst, left
their employment at the Hospital (Tr. 15, 19, 1097; G.C.
Exh. 27D; R. Exh. 6). A seventh, Edith Thaxton, had
been on sick leave and workmen's compensation since
May and never returned (G.C. Exhs. 3, 27A, 35). Mean-
while the need for experienced OR RNs increased be-
cause of the larger number of OR cases (Tr. 1108, 1234).
Also, in May, the Hospital was designated a Level 2
Trauma Center. This accreditation required the Hospital
to have a trauma or call team available on 30-minute
notice, 24 hours a day, to cover such emergencies as
automobile accidents and gunshot wounds. (Tr. 40, 593,
745, 1058.) (This new requirement provided the back-
drop to the employees' threat to withdraw their on-call
availability unless their call pay was increased.) The
trauma call teams supplemented the regular (emergency
surgery) call teams (Tr. 36, 726).
But experienced OR RNs were not available even to
offset the attrition of the staff. In the 6-month period
(March to August) the Hospital hired no experienced
full-time OR RNs and only two experienced part-time
OR RNs. One of the part-tune RNs, Marilyn Sanderson,
was hired June 9 to work only 24 hours a week (48
hours a pay period), and the other was Maureen Burns,
who was hired August 25 to work 20 hours a week.
(G.C. Exhs. 17, 27A & H.)
Personnel Director Nieves admitted that on August 5,
when he submitted a "Staff Update" memorandum to
Dr. Chiaramonte on the Hospital's "recruiting successes"
(G.C. Exh. 16), there was a "critical need" in the staffing
of OR RNs at the Hospital (Tr. 309). The memorandum
(par. 4) listed "OR Nurses" as one of the "remaining
critical needs areas" and referred to the efforts "to carry
out the mandate for the OR training course."
On September 2, as a last resort, the Hospital initiated
an OR training course to train its own OR RNs-al-
though, as Nieves admitted, "We are not a teaching facil-
ity" (Tr. 310). The five trainees (listed as students on the
Sept. 14 to Nov. 8 OR schedule (G.C. Exh. 3, p. 2))
were still in training in February 1987 when OR Direc-
tor Garvey arrived and discussed the reasons for the ex-
perienced Alice Thomas having been discharged when
"we have such a shortage of OR nurses." Garvey credi-
bly testified that "when I got there, we had five inexperi-
enced OR nurses" and the Hospital had signed a year's
contract to instruct and teach them to become experi-
enced OR nurses. It is undisputed, as Garvey further tes-
tified, that the Association of Operating Room Nurses
(AORN) recommends that a nurse who has been in an
operating room less than a year should not be left alone
to do a case. (Tr. 178-180, 182.)
I note that Personnel Director Nieves did not ac-
knowledge this continuing shortage of experienced OR
RNs in his September 12 position letter to the Regional
Director, seeking dismissal of Thomas ' charge against the
Hospital. Nieves claimed instead that all the vacancies
had been filled (G.C. Exh. 24).
In June 1986 . . . Ms. Thomas refused to work
additional scheduled hours. At that time, Ms.
Thomas was informed of the Hospital policy to re-
cruit and fill all existing vacancies. Due to her re-
fusal, we were left with no choice but to hire quali-
fied nurse professionals for the operating room staff-
ing needs... .
It was not until all operating room nurse posi-
tions had been filled that Ms. Thomas then request-
ed [in August] additional hours. . . . Ms. Thomas'
request for increase in hours was, to say the least,
untimely and probably done knowing that all posi-
tions were filled.
Nieves' credibility is discussed below.
If that is what the Hospital is asserting in its brief, I
reject it contention that all the full-time OR RN posi-
tions were filled in the summer of 1986. It argues (at 51):
Certainly , the Hospital cannot be faulted for having
made an effort to fill its full-time positions with em-
ployees during the summer of 1986, with the result
that , as Thomas had been warned, there was no
place for her when she finally deigned to increase
her hours . [Emphasis added.]
As its own records show , the Hospital was not able to
hire a single experienced full-time OR RN in the summer
of 1986.
C. Alice Thomas' Permanent Status
Thomas had been a permanent OR staff nurse about 8
years and had received a "very competent" rating in her
last evaluation in 1985 (Tr. 536, 558).
On February 1 the OR head nurse, Sally Fletcher, ap-
proved Thomas' January 30 written request to go from
permanent full-time to permanent part-time status (Tr.
572-575). Fletcher agreed (G.C. Exh. 40) that effective
June 1 to September 6, Thomas would be scheduled 18
hours a week (one 8-hour and one 10-hour shift) and in
September would be restored her 40-hour weekly sched-
ule (five 8-hour shifts). Thomas wanted more time to
take care of a neck problem, which was not responding
satisfactorily to treatment and therapy (Tr. 562-563).
Before leaving the last week in May (Tr. 602), Fletch-
er showed Thomas a personnel action request (PAR),
changing Thomas' hours from 80 to 40 a pay period.
Fletcher explained that Thomas would be a.5 FTE (full-
time equivalent) employee: "I know you are scheduled
for 18 hours, but the addition of your on-call duties and
overtime would easily give you more than 40 hours per
pay period." (Tr. 578.) This would entitle Thomas as a
group 2 employee to retain more of the benefits she had
received as a group 1 employee than if she were classi-
fied a group 3 employee.
The employee handbook (p. 1) sets out the four em-
ployee categories (R. Exh. 1).
Group 1-Full time, Permanent: An employee
hired to work a normal 40 hours weekly.
Group 2-Part time, Permanent: An employee
hired to work less than 40 hours, but 20 or more
hours weekly.
SOUTHERN MARYLAND HOSPITAL CENTER
Group 3-Part time, Permanent: An employee
hired to work less than 20 hours weekly. -
Group 4-Temporary Employee- (a) When em-
ployment is for a temporary period of time up to a
maximum of six months; (b) On-call or float pool
employees who work on an as-needed basis. Em-
ployees in this category are not eligible for benefits.
The handbook further states that group 2 employees are
entitled to vacations, sick leave, holidays, retirement ben-
efits, and group health, dental, and life insurance. Group
3 employees are entitled to only vacations and sick leave
(R. Exh. 1, pp. 12-13, 18-19, 20-22.)
Before leaving, OR Head Nurse Fletcher issued a new
8-week OR schedule (G.C. Exh. 35, p. 2), effective from
May 25 to July 19. Abiding by her commitment, she
scheduled Thomas to work 18 hours a week (36 hours a
pay period), beginning the first week in June. When OR
Head Nurse Roberta Jean Mackie (who succeeded
Fletcher the first of June) and Personnel Director Nieves
learned about Fletcher's written commitment and were
furnished a copy for the file, they both did their best to
persuade Thomas to increase her scheduled hours.
As Thomas credibly testified, Mackie said , " I am sure
you are aware that by now we are quite short of nurses
in the operating room and I really feel you have an obli-
gation to increase your hours at this time to kind of help
carry this burden." Thomas explained that she needed to,
go part time to take care of.the neck problem and re-
fused to be scheduled any additional hours (besides the
two weekly shifts and the scheduled emergency call and
trauma call assignments). Mackie stated that "unless you
really pick up some extra hours, you are in jeopardy or
there is a possibility that you may lose your benefits or
your benefits may be decreased." Mackie was referring
to Thomas' increasing her scheduled weekly hours to 20
to keep the .5 FTE part-time status in which the PAR
prepared by Fletcher placed her. Mackie also warned
that "You are just going to have to take the conse-
quences whether there will be a position available for
you come September, when you want to come back full
time." (Tr. 603-606, 778.) Mackie did not testify.
During another conversation with Thomas in early
June, Mackie talked to Personnel Director Nieves from
the OR telephone and told Thomas, "Mr. Nieves would
like to speak to you." Nieves said over the telephone,
"Miss Mackie is telling [me] that you are insistent on
staying on those two days a week [despite] the shortage
in the operating room and you tell us you are not going
to be available for anything else." She responded that
she could not provide him any more time. He said that if
she did not increase her schedule to 20 hours, there was
jeopardy of her losing her benefits-explaining that the
policy (to qualify for the group 2 category) states "hired
to work 20 hours." She responded, "I'm not quibbling.
I'm only available 18 hours and I would like to fall into
the category that 18 falls in as a part-timer." (Tr. 607-
608, 778-779.) I discuss I4ieves' testimony below.
Having failed in their efforts to persuade Thomas to
increase her scheduled hours, Nieves and Mackie pro-
ceeded to honor Fletcher's new OR schedule Thomas
continued to work the 18-hour schedule (36 hours a pay
827
period). The evidence also establishes that they also hon-
ored and processed the PAR that Fletcher showed
Thomas before leaving, changing her status from a per-
manent full-time group 1 employee (hired to work 40
hours weekly) to a permanent part-time group 2 employ-
ee (hired to work 20 or more hours weekly).
Thomas' June 16 employee profile (G.C Exh. 26), a
computer printout, shows that the information on the
PAR prepared by Fletcher was placed in the computer
on that date, changing her base hours from 80 to 40
scheduled hours a pay period and leaving her in "P"
(permanent) status. Personnel Assistant Pat Holland cre-
dibly testified (Tr. 455) that when PAR information is
fed into the computer, the PAR and the employee pro-
file are checked for accuracy, stapled together, and then
placed in the employee's file. Yet despite this practice,
Thomas' file, when produced at the trial, contained only
the June 16 employee profile-not the PAR (Tr. 376). (I
discuss below the PAR's disappearance.) In addition,
Thomas' paystubs (G.C. Exh. 41) show that Nieves and
Mackie honored Fletcher's PAR placement of Thomas in
the .5 FTE, group 2 category because the stubs contin-
ued to show a $5.03 "GINS" deduction for group family
dental insurance (a group benefit not available to group 3
employees). Likewise, Thomas received the July 4 holi-
day pay (Tr. 629), another benefit of a permanent part-
time group 2 employee.
Thus in June, before the threatened job action and the
employees' showdown with Dr. Chiaramonte over the
call-pay dispute, the Hospital was treating this experi-
enced OR RN as a valued employee, whose services
were particularly needed during the serious shortage of
OR RNs Despite the warnings Nieves and Mackie gave
in their efforts to persuade Thomas to work more of her
previously scheduled hours-that she was in jeopardy of
losing some of the benefits that Fletcher's PAR provided
her-they proceeded to honor the PAR. As Thomas'
June 16 employee profile shows, the PAR was processed
on that date, changing her base hours from 80 to 40-
placing her in the group 2 category as a 5 FTE (half
full-time) employee. This was abiding by Fletcher's inter-
pretation of the handbook's group 2 requirement, that
being a "hired to work" 20 or more hours meant all
hours to be worked, including overtime and scheduled
call assignments , not merely scheduled shift hours
During this shortage of OR RNs the Hospital was fol-
lowing this same group 2 interpretation for classifying
another OR RN, Sandra Tull. As the General Counsel
points out in her brief (at 40-41), the Hospital continued
to classify Tull as a group 2 employee even though she
was scheduled to work less than 40 hours a pay period
(plus trauma call assignments) from May 18 to July 25,
the date her employment ended. In most of those 10
weeks she was scheduled to work a single shift of 8 or
10 hours. She had previously been scheduled 20 hours a
week (two 10-hour shifts). (Tr. 710-713; G.C Exhs. 3, p.
1, 35.) Her January 27 employee profile shows that she
was scheduled 40 hours a pay period (a group 2, 5 FTE
employee), and she remained in that category until July
25, as shown on her July 29 employee profile (G.C. Exh.
32D)
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
. Thus, • until Dr. Chiaramonte adopted the policy of get-
ting rid of Thomas (sometime between the settlement of
the call-pay issue on July 10 and the date he revealed his
discriminatory motivation on July 22), the Hospital was
keeping two employees (Thomas and Tull) in the group
2 category even though their scheduled shift hours (ex-
cluding overtime and call assignments) had fallen below
20 hours a week. Evidently because of the serious short-
age of experienced OR RNs, the Hospital was seeking to
retain the hours that these employees were willing to
work and not lose their services altogether.
Neither Director Nieves nor anyone else had said any-
thing to Thomas about her being a temporary employee
(Tr. 609, 643).
D. Actions to Get Rid of Thomas
1. The July 21 reduction of benefits
a. Backdated and altered PAR
I find that Personnel Director Nieves was attempting
to carry out Dr. Chiaramonte' s get-rid-of-Thomas policy
when he joined in preparing a backdated personnel
action request (PAR) and later altered it to justify fur-
ther action to encourage Thomas to quit.
The PAR, when Nieves and OR Head Nurse Mackie
prepared it, read (G.C. Exh. 23A):
PRESENT CHANGE TO
Full Time PT [part-time] No Benefits
Part-Time Benefits Less Than 20 Hours
40 Hours Pay Period
REMARKS
Employee was identified as not working a sched-
uled 20 HR week and employee chose to go to
Part-Time No Benefits.
Mackie signed the PAR and Nieves initialed it.
The information on the PAR was obviously incorrect.
First, Personnel Assistant Holland credibly testified: "I
don't understand this [wording in the `Present ' column]
.... this says the, person was full-time and part-time.
You can't be full-time and part- time . You're either one or
the other." (Tr. 461-462.) Second, there was no category
of part-time employees working less than 20 hours with
no benefits. As quoted above, the group 3 category of
part-time employees hired to work less than 20 hours
weekly are entitled to vacations and sick leave. Only the
group 4 category of temporary employees (those em-
ployed for a maximum of 6 months or those serving on
an on-call, as-needed basis) received no benefits. Third,
Nieves knew that his "Remarks" (Tr. 349) were false:
that Thomas had not chosen "to go part-time no bene-
fits."
Moreover the PAR, dated June 16 and effective June
16, was backdated. It was attached in Thomas' file to her
employee profile (G.C. Exh. 23B), which was dated 5
weeks later, July 21 (Tr. 364). This employee profile
shows at the top that Thomas' base hours on July 21
(before the information on the PAR was entered) were
40 hours a pay period. As discussed above, these were
the scheduled hours shown on Thomas' June 16 employ-
ee profile (G.C. Exh. 26) after the information on the
earlier PAR (prepared by Fletcher) was entered into the
computer, reducing Thomas' base hours from 80 to 40. I
infer that the earlier PAR was detached from the June
16 employee profile and removed from Thomas' file pur-
posely.
Although Personnel Assistant Holland - did not recall
entering the information from the July 21 PAR (the
PAR backdated to June 16) into the computer, she be-
lieved that she checked Thomas' scheduled hours before
she wrote the figure "40" in the "Present" column and
the figure "36" in the "Change to" column (Tr. 462,
468). The attached July 21 employee profile shows that
Thomas' base hours were then decreased from 40 to 36
scheduled hours , leaving her in "P" (permanent) status.
Holland testified further about the words, "Position
Chg [changed] to Temp [temporary]," which were
prominently written by Nieves in the space after "Re-
placement of," above his "Remarks." She testified that if
those words had been on the PAR and she had seen
them at he time, Thomas ' status should not have been
shown as "permanent" on the attached employee profile,
but "temporary." (Tr. 481.)
Nieves impressed me as being a knowledgeable person.
I consider it most unlikely that he would have left the
word "part-time" in the "Change to" column (written by
Mackie) and used the same word "part-time" in his own
remarks at the bottom of the PAR if he at that time had
written "Position changed to temporary" in the space
above his remarks. I infer that he inserted "Position
changed to temporary" at some later date. I discuss
below when this probably occurred.
b. Nieves' fabricated testimony
Personnel Director Nieves clearly gave fabricated tes-
timony when he claimed that the PAR (G.C. Exh. 23A),
which was attached to the July 21 employee profile
(G.C. Exh. 23B), was written on June 16 and that he
then added "Position changed to temporary."
Nieves claimed that when the newly hired OR Head
Nurse Mackie brought him the PAR on June 16, chang-
ing Thomas ' status to "Part -time no benefits less than 20
hours," he realized that "that is not a category in our
personnel procedure." He claimed that he therefore cor-
rected the error by writing "Position changed to tempo-
rary," placing Thomas in group 4 as a temporary em-
ployee. (Tr. 354, 362.) He offered no explanation for not
having the PAR rewritten properly instead of leaving
the incorrect "Part-time no benefits" wording under
"Change to" and then himself repeating the incorrect
"Part-time no benefits" wording in his own remarks at
the bottom of the PAR.
When asked why he decided to change "part-time" to
temporary rather than place Thomas in the group 3 part-
time category, enabling her to get benefits the same as
other part-time employees working less than 20 hours a
week, Nieves claimed (Tr. 356-357):
The reason was because she would not allow her
supervisor to schedule her in a routine basis. There-
fore , she was just like an on-call person where she
would work whenever she wanted. to. . . . You
SOUTHERN MARYLAND HOSPITAL CENTER 829
can't have it both ways if you're not being sched-
uled.
But Thomas was scheduled. The May 25 to July 19 OR
schedule (G.C. Exh. 35, p. 2) shows that she was sched-
uled to work one 8-hour and one 10-hour shift every
week beginning the first of June, as the former OR Head
Nurse Fletcher had agreed to schedule her. I discredit
this answer as a fabrication. (By his demeanor on the
stand, Nieves appeared willing to fabricate any testimony
that might help the Hospital's cause.)
I also discredit much of Nieves' other testimony. The
following are examples.
(1) Nieves claimed (Tr. 352) that "My understanding"
is that Thomas "had not agreed to a permanent-type po-
sition" and that she was therefore going into a group 4
temporary position-contrary to Thomas' request for
Fletcher's commitment, which Nieves and Mackie were
honoring, that Thomas would be scheduled as a perma-
nent part-time employee to work 18 hours a week.
(2) Nieves claimed (Tr. 353) that "during the discus-
sion that initated this PAR . . Jean Mackie came to
me, and she said, `I have an employee who refuses . . .
to work in the schedule that's presented"-contrary to
Thomas' agreement with Fletcher to work that schedule,
which Thomas herself had requested.
(3) When asked "Why did you not then place her in
group 3 category that you had in the hospital?" Nieves
answered (Tr. 355), "It was my understanding that she
wouldn't take it at the time"-contrary to Thomas' cred-
ited testimony that she told Nieves "I would like to fall
into the category that 18 [hours a week] falls in as a part-
timer" and contrary to her credited denial (Tr. 779), "I
never selected the on-call status."
(4) Although Nieves admitted "there is no written
reason why she could not have been a [group] 3 employ-
ee had that been what she chose," he claimed (Tr. 358)
that "It is my understanding . . . that is not what she
chose, that she chose a no benefit position of less than 20
hours." I consider it most unlikely that any employee
would prefer to work without benefits.
(5) When questioned by the Hospital's counsel on
being recalled as a defense witness, Nieves claimed (Tr.
1114) that Thomas in June "would not take . . . part-
time work that was scheduled under any circum-
stances"-repeating fabricated testimony he had given
when called as an adverse witness 2 weeks earlier.
c Contentions and concluding findings
The Hospital in its brief (at 49) blames OR Head
Nurse Mackie's "lack of familiarity with Hospital Proce-
dure" for her incorrectly placing Alice Thomas in the
status of "part-time, no benefits, less than 20 hours" on
the PAR (attached to the July 21 employee profile). It
then argues that "when Nieves saw the PAR . . he as-
sumed from Mackie's comments that Thomas was going
to 'no benefit' or temporary status and he so annotated
the PAR" (by then writing, above his remarks, "Position
changed to temporary"). This argument , of course, ig-
nores the wording of Nieves' own remarks on the PAR
that Thomas "chosen to go to part-time no benefits,"
which revealed, his knowledge that she. was still _ part
time.
I find that this false statement in Personnel Director
Nieves' own remarks on the PAR (that Thomas chose
no benefits) indicates that it was he who initiated the
PAR, which was backdated to June 16. I infer that he
did so on July 21 as a means of eliminating all the group
2 benefits that Thomas had been receiving since June 16,
when the previous PAR (prepared by former OR Head
Nurse Fletcher) was processed and attached to the June
16 employee profile. As found, he did not add the "Posi-
tion changed to temporary" until a later date.
I further find that the reason both "Full time" and
"Part time benefits" were written in the "Present"
column on the July 21 PAR (backdated to June 16) was
an attempt to bridge over the 5-week gap between June
16, when Fletcher's PAR was processed (reducing
Thomas' base hours from the full-time 80 to the part-time
40), and July 21, when Nieves and Mackie prepared the
second PAR.
I reject, as unpersuasive, the Hospital's contention in
its brief (at 14) that both the June and July 21 employee
profiles (G.C. Exhs. 23B and 26) "were generated [from]
this single PAR." I infer that Nieves envisioned such a
contention when he helped prepare the July 21 PAR,
after the removal of the earlier PAR from her file But,
as quoted above, the personnel assistant Holland did not
understand this maneuver, testifying that a person "can't
be full-time and part- time." She marked on the PAR the
figure "40" (Thomas' base hours since June 16) and "36"
(which changed Thomas' category from group 2 to
group 3). There is nothing on the PAR to indicate that it
generated the reduction of Thomas' base hours from 80
to 40. Of course if Nieves' insertion, "Position changed
to temporary," had been on the PAR at that time (as
Nieves claims), Thomas' base hours would have been re-
duced from 40 to zero (unless Holland somehow failed
to notice it although, in her words (Tr. 478-479), " I usu-
ally review everything on there").
In summary I find that on July 21 when Personnel Di-
rector Nieves began attempting to carry out Dr Chiara-
monte's get-rid-of-Thomas policy, (1) he joined in pre-
paring the July 21 PAR (G.C. Exh. 23A), (2) the earlier
PAR (prepared by former OR Head Nurse Fletcher) was
then detached from the June 16 employee profile (G.C.
Exh. 26) and removed from Thomas' file, and (3) Nieves
instructed OR Head Nurse Mackie to backdate the July
21 PAR to June 16 for the purpose of concealing the
fact that Thomas' benefits were being eliminated after
Dr. Chiaramonte adopted the discriminatory policy
against Thomas.
Although Nieves intended on July 21 to eliminate all
Thomas' group 2 benefits, this did not happen at that
time. The personnel assistant , after checking and learning
that Thomas was scheduled to work 36 hours a pay
period, wrote the figure "36" under "Changed to" on the
PAR. Not being informed of Nieves' purpose of carrying
out Dr. Chiaramonte's discriminatory policy, the person-
nel office routinely placed Thomas in the group 3 cate-
gory, permitting her to retain the vacation and sick leave
benefits but canceling her other group 2 benefits.
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Thomas ' paystub for the payroll period ending August 9
(G.C. Exh . 41) shows the refund of $20.12 for the
"GINS" deductions (for dental insurance , a group 2 ben-
efit) that had been made since June 16 (the effective date
on the backdated July 21 PAR).
The General Counsel suggests in her brief (at 70) that
the PAR dated June 16 may have been backdated. She
has not , however, moved to amend the allegation in the
complaint (G.C. Exh . 1P) stating that about June 16 the
Hospital "changed Thomas ' position from permanent
part-time with benefits to either part-time with no bene-
fits," violating Section 8 (a)(1) and (3). Having found that
the Hospital did not change Thomas ' position to one
with no benefits either on June 16 (when it processed the
earlier PAR and placed her in the group 2 category) or
on July 21 (when , contrary to Nieves' intentions , her po-
sition was changed to the group 3 category), I dismiss
the allegation . I do not rule on whether the elimination
of certain group 2 benefits on July 21 was unlawful be-
cause of the absence of an appropriate allegation. I dis-
cuss below the elimination of Thomas' group 3 benefits
in September.
2. Denial of increased hours and group 2 status
On August 20 Personnel Director Nieves refused to in-
crease Thomas ' scheduled hours from 36 to 56 a pay
period . The additional 20 hours would have restored her
group 2 status and certain group 2 benefits she lost July
21.
OR Head Nurse Mackie, before resigning in late July
(Tr. 629), issued a new 8-week OR schedule for July 20
to September 13 (Tr. 610 ; G.C. Exh . 3, p. 1). She contin-
ued to schedule Thomas 18 hours a week , honoring the
commitment made by Fletcher, the previous OR head
nurse (Tr. 617-618). She failed in the new schedule,
however , to restore Thomas ' full-time hours after Sep-
tember as Fletcher had agreed to do.
Meanwhile Thomas decided that her neck condition
had not improved enough for her to resume a full-time
schedule in September . On August 12 she made a written
request to the new OR head nurse , Louella Eicher, for a
schedule of 56 hours a pay period beginning September
1. The request read (G.C. Exh. 2):
Please be informed that due to health reasons, I
fmd it necessary to request a continuation of part
time status as Operating Room Staff Nurse.
Effective September 1, 1986 I will be available as
Permanent, Part time employee 4 days and 3 days
respectively per pay period.
If possible , I am requesting the 9:00 A.M.-5:30
P.M. shift as discussed with Sally Fletcher , R.N. in
January 1986.
On August 20 Eicher reported back to Thomas that
Nieves said "they have filled all positions for staff nurses
in the operating room. There [are] no more FTEs avail-
able for you ." Eicher reported that she told Nieves,
"Well, we are still five to six nurses short up there," and
that he had stated , "I failed to tell you that we have al-
ready hired five or six nurses in this interim and that
these are the people that are going to be holding these
FTEs for your department ." Eicher then told Thomas,
"Five of them will be OR trainees that have been hired
for an OR class with no experience at all." Thomas re-
sponded , "Lou, you are very much aware that it is going
to take over a year to train these people . . . . What is
going on?" Eicher answered , "I know , Alice . I do not
understand it either ." (Tr. 637-638.)
The next day , August 21 , 52 employees signed a peti-
tion , which was sent to Nursing Director Ann Kartley
(Tr. 278 ; G.C. Exh . 10). It read:
We the undersigned are petitioning for Alice
Thomas to be installed as permanent part time (or
full time as she wishes) as of Sept. 1.
Due to her years of experience and service to this
institution we feel she should be given preferential
treatment over any newly hired nurses.
Some comments on the petition were "She's an excellent
RN. KEEP HER !" and "Wish we had more like her!"
The first signature was that of Head Nurse Louella
Eicher. (Obviously , Eicher did not become aware of Dr.
Chiaramonte 's policy of ridding the operating room of
Thomas until later .) There was no response to the peti-
tion . I infer that this mass support merely added to Dr.
Chiaramonte 's apprehension that Thomas' influence over
and support among the employees was leading to further
union organizing.
On October 27 Thomas renewed the written request to
Nursing Director Kartley for a schedule of 56 hours a
pay period (Tr. 664-665; G .C. Exh . 42). The Hospital's
only response was a comment by Nieves in a meeting on
November 17 (Tr. 697): "Alice , we do have your letter
.... If a position comes up, we have your notice. At
this time there is nothing else available."
Meanwhile the Hospital continued hiring experienced
OR RNs. Between September and November 28 (the
date Thomas was discharged), the Company was able to
hire three experienced OR RNs on a temporary on-call
basis . They were Betty Jenkins on September 2 (G.C.
Exh. 27D), Amelia Hinton on September 8 (G.C. Exh.
27F), and Barbara Whittaker on November 3 (G.C. Exh.
27G.). One of them , RN Hinton , credibly testified that in
September , shortly after she began working, Head Nurse
Eicher "wanted me to work more days and asked if I
could join their staff full time." (Emphasis added.) She
told Eicher, "No." Eicher then said "I could work any
day I wanted to . ... anytime." (Tr. 257-258.) I infer
that Nieves gave his prior authorization for Eicher to
offer Hinton full-time employment . Because of his refusal
to authorize Eicher in August to give Thomas an in-
crease of only 20 hours , I fmd it most unlikely that
Eicher would have made the offer of full-time employ-
ment on her own.
At the trial the Hospital made little if any effort to
support the position taken by Personnel Director Nieves
in his above-quoted September 12 letter to the Regional
Director that "all operating room nurse positions had
been filled" when Thomas requested the additional hours
in August . As discussed , the Hospital 's own records
show that it had been able to hire no full-time and only
two part -time experienced OR RNs since March, while
SOUTHERN MARYLAND HOSPITAL CENTER
the OR was suffering attrition of seven of its OR nursing
staff. Also as discussed, Eicher informed Nieves at the
time that the OR was short five or six nurses and Nieves
admitted at the trial that there was a "critical need" of
OR RNs. It would be frivolous to contend that the five
OR students (requiring a year of training) filled the va-
cancies.
The Hospital did produce a document (R. Exh. 7)
showing that on July 18 the operating room staff was
16.8 FTEs above the number budgeted for 1986. When
asked why the staff was so far above budget, Nieves an-
swered (Tr. 1108) that "we had to keep the various
rooms going" (acknowledging an increased number of
OR cases) and "we were designated as a trauma center"
and added staff for that. He later admitted (Tr. 1238),
"We were over the 1986 budget complement" for OR
RNs throughout the year (including the time the Hospi-
tal admittedly was searching for experienced OR RNs).
Instead of admitting that the vacancies were not filled
because experienced OR RNs were not available, Nieves
claimed (Tr. 1107-1108) that he did not allow Eicher to
add to her FTEs because of the 16.8 FTE overage. I dis-
credit this claim as another fabrication.
The Hospital also produced a document (R. Exh. 6),
showing the distribution of FTEs in the operating room
in June Nieves admitted, however, that he did not
produce an OR FTE budget for either August or Sep-
tember, testifying, "I think I have produced everything
that was not destroyed or done away with by Person-
nel," although at the time, "I had all current information
available to me" (Tr. 315, 1228, 1239). Thus, this infor-
mation was not retained, even though Thomas' charge
has been pending since September 10.
After weighing all the evidence I find that the reason
Personnel Director Nieves refused to permit Alice
Thomas to be scheduled 56 hours a pay period as a per-
manent part-time group 2 employee beginning September
1 was his determination to carry out Dr. Chiaramonte's
policy of somehow getting rid of her. Even if there had
been a lid on the hiring of OR RNs, I find that in the
absence of this discriminatory motivation, Nieves would
have granted his approval (with authorization from Dr
Chiaramonte if necessary) for Eicher to schedule
Thomas 20 additional hours a pay period I make this
finding particularly in view of Nieves' authorization of
Eicher to make the offer of full-time employment to a
new employee in September.
I therefore find that the Hospital on August 20 discri-
minatorily denied Alice Thomas the requested schedule
change to 56 hours a pay period and the requested status
of a permanent part-time group 2 employee and the ben-
efits available to that category, violating Section 8(a)(1)
and (3).
3. Change from permanent to temporary
On September 3, when Personnel Director Nieves and
Nursing Director Kartley met with Alice Thomas, the
Hospital took the next step in its maneuvers to carry out
Dr. Chiaramonte's policy of ridding the operating room
of her. It stripped her of employment rights by making
her a PRN (pro re nata, or "as needed"), on-call, tempo-
rary employee.
831
Thomas testified (Tr. 640-643):
Mrs. Kartley started [the meeting] by saying,
"Alice, at this time all FTEs for our department are
filled. We are offering you a position of PRN or on
call for the operating room."
She .. . said . . . "At this time, you [have] had a
temporary position for four months and per our
policy, a person can only be temporary for up to a
period of six months. So your choice at this time is
to go PRN or not have a position at all."
A. My response to her was, "What has happened
to my permanent part time status, that I held begin-
ning June 1st .
I told her that, "I am refusing your PRN position.
That I am well aware that PRN is a temporary po-
sition that can be abolished at any time administra-
tion or management choses to abolish it. And I
would never as an employee of eight and half years,
put myself in a position that you could abolish my
position at the drop of a hat." And I said, "At this
time, I am declining your position for PRN. And I
will continue as permanent part time as I have been
from June 1st."
A. . . . I said, "What about this agreement [with
Fletcher]? Or don't you feel you have some obliga-
tion to me as an employee of 81/2 years, that you
would go out and solicit somebody with no experi-
ence over myself?" And at that time Mr. Nieves' re-
sponse was, "We hold no position for nobody. We
do not owe you a thing. And you were apprised of
this back in June, that Mackie said you would have
to take your chances in what is available come Sep-
tember."
Q. Now prior to this meeting, had there ever
been any occasion in the past, when hospital man-
agement had apprised you that you were tempo-
rary?
A. At no time.
Q. Had you received any paperwork or docu-
mentation from the hospital-
A. None whatsoever
Q. Now generally speaking up to about this
point, what, if anything, had been the hospital's
practice of PRN in the OR, generally speaking?
A. There had never been the use of PRN em-
ployees in the operating room during my eight and
a half years there.
When Nieves was asked at the trial if Thomas was of-
fered "either a full-time or a part-time position," he
claimed (Tr. 1213 ): "She was offered a PRN position
that , she was in at the time" (emphasis added). I discredit
this answer as another fabrication . Earlier in the trial
when Nieves was asked "why [Thomas] was not allowed
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
toy remain working 36 hours a week part-time ," he re-
peated the false answer he was giving at that stage of the
trial. He claimed (Tr. 373) that it was because of "these
refusals to work in this schedule , that 's all I can tell
you." (As found, Nieves appeared willing to fabricate
any testimony that might help the Hospital 's cause. Kart-
ley did not testify. By Thomas' demeanor on the stand,
she impressed me most favorably as a forthright and con-
scientious witness , who had a good memory . I credit her
account of the meeting.)
On that same day, September 3, Kartley (with Nieves'
approval) prepared and signed a, PAR showing that
Thomas' biweekly hours were changed from "36" to
zero . The PAR read (G.C. Exh. 25A; Tr. 366-367):
PRESENT CHANGE TO
36 On call (no benefits)
Part-time (no benefits) [Added later:] Temp.
REMARKS
Employee advised all FTEs filled & on-call position
is offered.
Contrary to Nieves' claim that Thomas "was offered a
PRN position that she was in at the time ," this PAR
shows that both Kartley and Nieves were aware that
Thomas was a part-time employee at the time , scheduled
to work 36 hours a pay period.
This time the Hospital did eliminate Thomas' group 3
benefits (as Nieves had intended July 21). The parties
stipulated (G.C. Exh. 15) that on September 6 the Hospi-
tal reduced Thomas' 61.55 hours of sick leave to zero
and that since that date , she has not accumulated any
sick leave or vacation time.
Having found that the Hospital violated Section
8(a)(1) and (3) on August 20 by refusing to restore Alice
Thomas ' group 2 status, I find that it further violated
Section 8(a)(l) and (3) on September 3 by changing her
status from the permanent part-tune group 3 category to
the temporary on-call group 4 category.
Meanwhile, as discussed , the personnel director was
adding the words , "Position changed to . temporary" to
the July 21 PAR (backdated to June 16). I find it most
probable that he did so either (a) about the time of the
September 3 meeting when Nursing Director Kartley
falsely stated that Thomas had "held a temporary posi-
tion for four months" or (b) sometime after September
12 when Nieves wrote the Regional Director the posi-
tion letter . In that letter (G.C. Exh. 24), Nieves included
the following statements:
Ms. Thomas has been an employee of the Hospital
since May 1978 . During her tenure, she has worked
both in part-time and full-time positions. Pursuant to
her request , we placed Ms. Thomas in a part-time,
no benefits position.
When Nieves was asked at the trial why he omitted any
indication in the letter that Thomas was considered tem-
porary, he claimed, "I really don't know why I wrote it
down that way." He theorized that he must have looked
at Thomas' July 21 employee profile (showing that she
was scheduled to work 36 hours a pay period ) rather
than the attached PAR (backdated to June 16), on which
he claimed he had written , "Position changed to tempo-
rary." (Tr. 362-364.) I discredit this explanation as an-
other fabrication.
4. Elimination of scheduled hours
On November 7, 2 months after all Thomas' benefits
had been eliminated and she had been denied more
scheduled hours , she had not resigned and was still em-
ployed . But until then , despite Thomas' new PRN status,
OR Head Nurse Eicher had continued to schedule her
hours. The September 14 to November 8 OR schedule
(G.C. Exh. 3, p. 2), which Eicher prepared and issued,
continued to assign Thomas two shifts every week (as
well as the regular emergency call and trauma call as-
signments). It is undisputed that Thomas had told Eicher
(Tr. 657), "Lou, I really need to be scheduled . I need to
know a little more than an hour in advance that I am
needed here at the hospital," and that Eicher had prom-
ised, "Okay, so be it. I will schedule you."
On November 7, however, Eicher issued a partial
schedule, for the 3-week period from November 9 to 29
(G.C. Exh. 3 p. 3). It listed Thomas as a PRN (as
needed) employee without any scheduled hours (Tr. 671-
674). Thomas asked Eicher (Tr. 667), "Please, could you
explain this schedule to me?" Eicher answered, "Alice, I
am told that if you have any problems with your sched-
ule, you are to see Mr. Nieves . He is handling your
schedule." (I discredit Nieves ' claim (Tr. 1111) that his
involvement in the actual scheduling of the OR nursing
staff was "Absolutely nothing.") Thomas observed, "As
I see it, I am not scheduled to work any days in this
three week period." Eicher responded, "Alice, you' are
PRN." Thomas reminded her, "I said [previously] that I
had to be scheduled . I cannot be on standby call for a
hour [sic] notice to come into work.... You [have] ac-
comodated me so far in the previous schedule , why is it
now that I am no longer scheduled to work any days?"
Eicher answered , "You are PRN, Alice, that is all I can
tell you." (Tr. 668.)
I find that Personnel Director Nieves' refusal to sched-
ule Alice Thomas on the November 9 to 29 OR schedule
was motivated by his determination to carry out Dr.
Chiaramonte's policy of getting rid of Thomas and there-
fore violated Section 8 (a)(1) and (3).
5. Further deprivation of work
The pressure on Alice Thomas to quit had built to' the
point that she met with Personnel Director Nieves,
Nursing Director Kartley , and OR Head Nurse Eicher
and asked about an intention to "Unemploy " her. As she
credibly testified (Tr. 699), she said at the meeting:
The entire reason for my calling this meeting is to
find out why exactly are you keeping me at home
on a PRN status and not allowing me to work? If
your intent is to unemploy me, by all means so ter-
minate me , rif me, do whatever you have [to], so I
can go down and at least collect unemployment.
But, I want to know what the reason is that you are
doing this to me.
SOUTHERN MARYLAND HOSPITAL CENTER
Besides complaining about not being scheduled (Tr.
688, 691-696) she cited instances of Eicher's refusing to
permit her to work as a substitute for three of the OR
RNs (Tr. 689-691, 698). (One of these RNs, Janice
German credibly testified that after Thomas agreed to
work German's November 12 evening shift, Eicher "told
me no, that [Thomas] couldn't do it" because "they
didn't want to give her any more than" two shifts. So
German worked the shift herself. (Tr. 94-95.) I discredit
Eicher's denials (Tr. 39, 981).)
Then the following transpired at the meeting (Tr. 691,
694-695):
Q. Now when you pointed these specific inci-
dents out to Mr. Nieves what, if anything, was his
response?
A. His response to me was, "Alice, if these
people have complaints, let them come down here
and voice them. You do not do their talking for
them " And my response to that was, "Mr. Nieves,
you are' missing the entire point. These incidents all
involve me. . . . I am here to find out what is the
reason why Ms. Eicher is not allowing these people
to have me work for them. I am a PRN employee.
That is what my job is supposed to be."
I said, "By all means, they are all upstairs working
today. Bring them down and let's verify these ac-
counts, so there is no confusion here, as to whether
these people have offered me work and Ms. Eicher
has turned me down or not." Mr. Nieve's response
was that "Time does not permit. We do not have
time to do this."
This meeting was held November 17 (Tr. 803), the day
before the incident that the Hospital claims was the basis
for Thomas' discharge.
E. Discriminatory Discharge
1. Understaffed trauma center
The Hospital's accreditation as a trauma center, as dis-
cussed, required it to have a trauma or call team (with an
OR RN) available on 30-minute notice to handle trauma
emergencies. On November 18 Alice Thomas was as-
signed to the emergency call team. At 3 p.m., because of
a shortage of OR nurses, she was called in to work that
afternoon on nonemergency cases (Tr. 726, 729) that
could not be performed on schedule during the 7-3:30
day shift. There was no trauma team on call that after-
noon from 3:30 to 6 o'clock.
Dr. Neal Green had an add-on elective surgery case
(inserting a K wire in a patient's finger (Tr. 124)). He
testified that the operation "was not an emergency" (Tr.
226) but that it was "supposed to" have been performed
in the early afternoon (Tr. 228). The shortage of OR
nurses prevented the surgery from being performed on
time, and he wanted to perform the operation that
evening at 6 p.m., after the hours of the last day-shift
nurses on duty. Otherwise he would have to reschedule
it "So that the patient could eat" (Tr. 227, 234). The pa-
833
tient, a diabetic, had been NPO (nothing by mouth) all
day and should not go without food beyond that, hour.
There was no scheduled OR RN on duty to assist Dr.
Green at this after-hours time. The 9:30-6 p.m. day nurse
was absent that day RN Cande Jarboe was working the
8:30-5 day shift. Charge Nurse Maureen Burns asked her
if she would stay for Dr. Green's case and she said
"No." (Tr. 428-429.) (Jarboe credibly testified (Tr. 436)
it was an add-on case and she did not know "if anything
had changed within the status of the patient that would
cause it to be an emergency ") Burns, the only nurse on
the 3-11:30 evening shift, had another nonemergency op-
eration scheduled at that time (Tr. 918). That left only
RN Thomas on the emergency call team to assist with
the elective surgery. There "was not at that time a
trauma nurse on call starting at 6 o'clock" (Tr. 432). No
trauma call team was scheduled until the 11:30-7 night
shift (G.C. Exh. 3, p. 3; Tr. 432).
Using the emergency call team to assist with routine
elective surgery, particularly in the evening after 6
o'clock when no trauma team is available or on call,
would leave the Hospital with no trauma or call team
available on 30-minute notice as required by the Hospi-
tal's accreditation as a trauma center. It would also vio-
late the Hospital's written policies.
The Hospital's "OR & Recovery Policies and Proce-
dures" state (in policy 30) that the "on call" system was
designed to provide "personnel coverage for medical
emergencies [emphasis added] occurring at times which
are not within the normal operating hours of these de-
partments" (G.C. Exh. 49). Also the Hospital's "Call
Policy for Initiating Emergency Call teams" stated the
"Purpose" was to provide "coverage for emergency sur-
gery [emphasis added] occurring at times which are not
within the normal operting hours" (G.C. Exh. 4). It
specifies that the "Usual call hours" (outside the 7-3:30
weekday "normal operating hours") are 3:30 p.m. to 7
a.m. and on weekends.
Despite these written policies, OR Head Nurse Eicher
in September began calling in the emergency call team
to work in the afternoon on nonemergency cases. Be-
cause of the continuing shortage of OR RNs she was
faced with having too few scheduled nurses to assist
with all the surgery scheduled "within the normal oper-
ating hours," the 7-3:30 day shift. She used the emergen-
cy call team in the afternoon after 3:30 to help finish the
runover cases. (Tr. 646, 749.) This practice left the Hos-
pital with neither the emergency call team nor a trauma
call team available on 30-minute notice during the after-
noon hours from 3:30 to 6 o'clock. I assume that the
Hospital did not consider this practice to be a particular
risk to its trauma-center accreditation on the theory that
one of its other OR nurses on duty in the afternoon (the
8:30-5 or 9:30-6 day nurse or the 3-11:30 evening charge
nurse) could be available to cover a trauma emergency.
2. Rescheduled surgery
On this occasion, November 18, as RN Thomas was
finishing the last of the 7-3:30 cases she was assigned to
work on that afternoon, Charge Nurse Maureen Burns
spoke to her about staying and waiting for Dr. Green's
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
case . As Thomas credibly testified , Burns told her that
Dr. Green has "this little case" and "wants to go on
around 6 o 'clock ." (Tr. 732.) Thomas responded:
Maureen , at 6 o 'clock there will be nobody here
except you doing your case and me to be available
for [an] emergency . If Dr . Green so deems his case
an emergency and thinks he has to go , then let him
declare it and I'll be glad to stay, otherwise I do
not see it as my role or my responsibility as the on-
call nurse for the OR to stay , and do an elective
case after 6 o'clock.
A. Okay, she said , and she turned and walked
out.
(If Dr. Green had declared his finger surgery to be an
emergency and if Thomas had been occupied with that
surgery at 6 p.m., that would also have left the hospital
with no trauma or call nurse . The shortage of sufficient
trauma-center personnel , however , would have been the
Hospital's responsibility , not Thomas '. Under the Hospi-
tal's call policies , her responsibility as an on-call nurse
was to accept any emergency assignment.)
Complaining about the poor staffing , Dr. Green gave
RN Burns a "hard time" over the telephone , insisting
that his elective surgery case be done . Burns returned to
the operating room and told Thomas that "this guy is
really giving me a hard time ." Thomas told her to "pin
Dr. Green down [and] if he says his case is an emergen-
cy, I will be more than glad to do his case ." Otherwise,
Thomas said, she was going to an AORN meeting.
(Thomas was the president of the local chapter of the
Association of Operating Room Nurses .) (Tr. 733-734.)
Again Burns returned and said , "Alice, I'm really in a
bind . Won't you reconsider and do this case? Dr. Green
is really driving me crazy ." Thomas gave her the same
answer and asked : "Who exactly is going to be available
if something comes through the door and you're tied up
doing a [knee] arthroscopy and I'm tied up doing a hand
case?" Burns "shrugged her shoulders" and left. (Tr.
734-735.) As Thomas credibly testified , she had no con-
versation with Dr. Green and Burns did not tell her to
stay , did not state the case was an emergency, and did
not say the patient was a diabetic (Tr. 742-743).
About 5 : 15 p.m., when Thomas finished her case, she
deposited her circulating records at the OR desk and
overheard Burns tell Dr . Green over the telephone that
the call team was refusing to stay and that she did not
have anybody else available . She heard Burns end the
conversation by telling him : "I don 't have to take this
from you and you can go to hell too ." (Tr. 635-736.)
A few minutes later Bums told surgical technician
Cordelia Fenwick (the other member of the emergency
call team) that she could go home because Dr. Green
canceled his case . As Fenwick was leaving she saw Dr.
Green behind the nurses ' station. He was smiling. Fen-
wick overheard him tell Burns , "Oh, and by the way I
canceled my case." Burns responded, "I know you did.
I'm the one you bombed out on the telephone." (Tr.
125.)
Thomas also left, after calling the night supervisor, As-
sociate Director of Nursing June Gardner (the AD), and
telling her "that I was going to be at the AORN meeting
in Waldorf, 20 minutes away, that there was nothing else
going on of the emergency nature, Dr. Green's case had
been put on for two days later, and if for some reason
Dr. Green changed his mind and deemed his case an
emergency and needs a call member, that I would be
glad to respond, and gave my number where I could be
reached" (Tr. 740). (Gardner had no specific recollection
of that evening (Tr. 894). Neither Thomas nor Charge
Nurse Burns reported any problem to her that evening
(Tr. 890; G.C. Exh. 28 p. 2), and she was not consulted
about Thomas' discharge (Tr. 892). The Hospital did not
produce the call slips showing messages such as Thomas
gave Gardner that evening (Tr. 868, 892-893).)
Dr. Green had the case rescheduled. He performed the
operation on an in -and-out basis 2 days later . (Tr. 249.)
That evening, after this incident, Charge Nurse Bums
found no fault with the 8-5:30 RN Jarboe (for refusing
to remain for the elective surgery) or with Thomas (for
likewise refusing and keeping herself available for an
emergency). She did not report the incident to the super-
visor and did not write an incident report that evening
against either Jarboe or Thomas.
Following this evening the Hospital said nothing to
Jarboe about refusing to assist Dr. Green with the case.
Ten days later, however, it discharged Thomas for her
refusal.
3. Decision to discharge Thomas
As found , Personnel Director Nieves since July 21 had
been taking actions against Alice Thomas designed to
carry out Dr. Chiaramonte's policy of ridding the oper-
ating room of her. Also as found, several months after
the November 18 incident OR Head. Nurse Eicher re-
vealed to the new OR director that the actual reasons
Thomas was discharged were (a) she "had a history of
being a troublemaker," trying "to bring in the union,"
and (b) Dr. Chiaramonte "thought she was a troublemak-
er . . . and did not want the union here" and that "it
was his hospital and he would run it the way he wanted
and the union would not tell him what to do."
After considering all the conflicting testimony about
the investigation of the November 18 incident and the
decision to discharge Thomas, I find-contrary to
Nieves' claim (Tr. 384) that he "was not, involved in the
decision"-that he played a decisive role.
First, without knowing that Dr. Green had declared
the finger operation to be an emergency, Nieves instruct-
ed Eicher to seek support from two officials for taking
action if a nurse refused to assist a surgeon in performing
an emergency operation. He instructed her (Tr. 1037-
1040) to consult Dr. Frank Milone (chief of orthopedics)
and Dr. Samuel Mazella (chief of the department of sur-
gery). I agree with the General Counsel in her brief (at
54) that Eicher spoke to Drs. Milone and Mazella "only
with the goal of buttressing a pretextual discharge' al-
ready predetermined."
Thus, as Dr. Milone credibly testified (Tr. 345), Eicher
asked him if a surgeon "had a case posted that he
SOUTHERN MARYLAND HOSPITAL CENTER
deemed an emergency [emphasis added] because the pa-
tient was a diabetic . . . what was my feeling if a nurse
. . . refused to do the case?" Dr. Mazella, when called as
a defense witness, credibly testified (Tr 443-444) that
Eicher "asked me whether I would back up a surgeon if
he claimed a case was an emergency [emphasis added]"
because "the patient being a diabetic," the surgeon
"thought it would be detrimental to the health of the pa-
tient if the operation wasn't performed." The answers
were predictable. Dr. Milone answered that it was the
nurse's obligation to assist the physician if he deemed the
case "an emergency [emphasis added] under those condi-
tions" and Dr. Mazella answered that "the only person
that can determine whether a case was an emergency
[emphasis added]" was the attending surgeon. These
were indisputably correct answers to the questions as
asked But Dr. Green was unwilling to declare the elec-
tive surgery to be an emergency. He did not believe a
delay would be detrimental to the patient's health, the
delay would merely require that the diabetic patient have
something to eat, for the first time that day.
Dr. Milone, who was not told who was involved and
who did not know that Thomas was discharged, credibly
denied that he made any recommendation concerning the
employment of the nurse (Tr. 345-346). I discredit
Eicher's claim (Tr. 57) that Dr. Milone "expressly rec-
ommended discharging Ms. Thomas" and her later testi-
mony (Tr. 986) that Dr. Milone, without being given any
names, answered "Get rid of her."
Second, Nieves was present during the only investiga-
tion that the Hospital conducted before the discharge.
Both he and Eicher were present at the nurses' station
on November 20 when Dr. Green and Charge Nurse
Burns were writing their reports of the incident (Tr. 78,
127-129). OR technician Fenwick (the other member of
the emergency call team on Nov 18) saw Nieves there,
"pacing back and forth "
Third, Eicher reported back to Nieves and his assist-
ant, Cathy Amonett (now Gregory), after talking to Drs.
Milone and Mazella. As Assistant Personnel Director
Amonett credibly testified (Tr. 393), Eicher made this
report before Nieves met and talked with Thomas on No-
vember 21 about the incident.
Fourth, on November 20 Nieves revealed to RN
German that arrangements had already been made for
Thomas to be discharged, as discussed above, stating that
they "gotten rid of the troublemakers" (Thomas and em-
ployee Banks).
Fifth, contrary to Nieves' claim (Tr. 1118) that he
"didn't have any recommendation" regarding discharg-
ing Thomas, I find that he made it clear to his assistant
Amonett that Thomas should be discharged. Amonett
admitted that she relied in substantial part on Eicher's
and Nieves' recommendations in deciding to discharge
Thomas, and that Nieves told her "to go ahead" with
the discharge if she felt the termination was justifiable
after reviewing the file. (Tr. 392.) Amonett credibly testi-
fied (Tr. 391) that Eicher told her that Charge Nurse
Burns "said that she made [it] very clear to Ms. Thomas"
that Dr. Green's case was "changed from an add-on to
[an] emergency case." When Amonett was asked why
she did not interview Burns directly "to get a more de-
835
tailed account of what transpired" in resolving the credi-
bility issue between Burns' November 20 incident report
and Thomas' version in the November 21 meeting, she
answered (Tr. 396): "I believe Mr Nieves in his investi-
gation that he interviewed Ms Burns."
Sixth, although Nieves, after hearing the conflicting
versions at the November 21 meeting, "instructed Loe
Eicher to conduct an investigation" (Tr. 1117), Eicher
had already completed all the investigation she ever con-
ducted (talking to Dr. Green and Burns and getting their
written reports-in Nieves' presence-as well as consult-
ing Drs. Milone and Mazella). Eicher testified (Tr. 990)
that she interviewed "No one else" about this incident
"Because I had enough documentation."
Seventh, further contrary to Nieves' claim (Tr. 1117)
that the November 21 meeting with Thomas was his
"only involvement' with the investigation of the incident,
his assistant Amonett admitted (Tr. 403-404) that she
again consulted with him about 2 or 3 days before she
discharged Thomas on November 28 (i.e., 4 or 5 days
after the November 21 meeting).
Thus, Nieves instructed Eicher to consult with Drs.
Milone and Mazella to get their support for the dis-
charge; he was present during Eicher's investigation; he
met with Amonett and Eicher, discussing the doctor's
opinions, before meeting with Thomas; Amonett consult-
ed with him about the discharge several days after the
November 21 meeting, before discharging Thomas; and
meanwhile Nieves revealed his intentions to both RN
German and his assistant Amonett that Thomas was to
be discharged.
Furthermore, I infer from OR Head Nurse Eicher's
conflicting testimony that she was attempting to conceal
the fact that Personnel Director Nieves was the person
who decided that Alice Thomas was to be discharged.
She gave the following testimony (Tr. 50-51, 61):
A. I had the incident investigated, and I had
talked to chief of surgery, Dr. Mazella, the chief of
orthopedics, Dr. Milone.
A. I compiled the information and I gave it to
Mr. Nieves.
A. I made no recommendations.
Q Did Mr. Nieves apprise you of what action he
would take?
A. I'm not-I can 't really-I don't remember. I
can't really honestly answer that.
Q. . . . do you have any idea at all who it is that
decided to discharge Ms. Thomas?
A. I believe that was on patient refusal policy
and procedure manual.
Q. . . . Do you have any idea what individual or
individuals made the decision to discharge Ms.
Thomas?
A. I believe-no, I don't. [Emphasis added.]
Later when asked what individual decided to dis-
charge Thomas, she first gave two evasive answers (Tr.
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
65): (a) "I don't think any one individual decided. It was
against hospital policy and procedure. 'Refusal to give
patient care." (b) "I-it was just on the facts." Then
when asked, "But who decided that on the facts she was
to be discharged," she gave the answer-omitting Nieves
(Tr. 65-66): "Well the-if that's the way the question's
asked, then it was [Nursing Director] Ann Kartley,
Cathy Amonett and myself." (By her demeanor on the
stand , Eicher impressed me most unfavorably as a wit-
ness. Like Nieves, she appeared willing to fabricate any
testimony that might help the Hospital' s cause.)
4. Contentions of the parties
The General Counsel, citing Dr. Chiaramonte's knowl-
edge of Alice Thomas' being an OR union adherent,
argues in her brief (at 65-66) that the Hospital "engaged
upon a series of actions to force her out; and when
Thomas proved more tenacious than anticipated, [the
Hospital] seized upon the events of November 18 to fash-
ion the pretext for the termination of her employment."
She also argues (at 58) that the Hospital "never truly
considered Dr. Green's case to be an emergency" and (at
66) that "Nieves was in the midst of the pretextual inves-
tigation leading up to Thomas' discharge." -
The Hospital contends in its brief (at 55) that it "was
clearly acting reasonably when it approached its analysis
of the situation as one in which an on-call nurse had re-
fused to perform emergency surgery." It defines the issue
(at 53) as "simply whether the Hospital had a reasonably
based belief that Maureen Burns' account of her conver-
sations with Thomas was essentially accurate." It con-
cludes (at 59) that "What Thomas did on November 18,
1986, constituted a willful and reckless abandonment of
her responsibilities. That no one suffered more than a se-
rious inconvenience-to Dr. Green and his patient-is no
thanks to Thomas."
The Hospital argues in its brief (at 52) that "The credi-
ble evidence establishes that the Hospital reasonably
thought Thomas had refused to perform a case she knew
to be of an emergency nature." To the contrary, I agree
with the General Counsel that the Hospital "never truly
considered Dr. Green' s case to be an emergency."
If Dr. Green had declared the operation to be an
emergency and both RN Jarboe (the 8-5.30 day nurse)
and RN Thomas (the emergency call nurse) had commit-
ted the serious offense of refusing to assist a surgeon
with an emergency operation, I infer that Charge Nurse
Burns would have (a) notified the AD on duty (Gard-
ner), (b) prepared an incident report that evening against
both Jarboe and Thomas, and (c) reported their refusals
to assist in the emergency to OR Head Nurse Eicher that
evening when she spoke to Eicher over the telephone.
Burns conceded (Tr. 226) that she would normally docu-
ment an incident if she thought it important and also
conceded (Tr. 228) that she knew that Gardner was the
night supervisor whom she could call to report a prob-
lem.
I discredit Eicher' s denial (Tr. 1055) that she and
Burns talked on the telephone that evening. The Hospital
acknowledges in its brief (at 25) that Eicher did: that
after another employee had a conversation with Eicher
that evening about another matter, Burns spoke to
Eicher about the incident; that " Burns told Eicher that
Green would probably be calling Eicher to complain be-
cause he was not able to perform his add-on [emphasis
added, not emergency] surgery as requested," and that
"Eicher suggested that Burns document the matter" and
"Burns declined." Burns had testified (Tr. 924) that in
the telephone conversation with Eicher she referred to
Dr. Green's "add-on case" and when Eicher told her to
document the incident, she declined. Burns also testified
(Tr. 924) that about 10:30 that evening (as confirmed by
Thomas' testimony (Tr. 749-751)), she telephoned
Thomas at home about the conversation with Eicher that
evening-further establishing, despite Eicher's denial,
that Eicher did talk to Burns that evening.
Moreover, Personnel Director Nieves had reason for
questioning whether Dr. Green had declared the oper-
ation to be an emergency. In his meeting with Thomas
on November 21, as shown by the notes taken by his as-
sistant Amonett (G.C. Exh. 28),
Ms. Thomas commented that Ms. Burns ap-
proached her and asked if she would like to earn
some extra money by staying to assist with another
case. Alice stated that she told Ms. Burns that "add
on cases" were not a responsibility of the on-call
staff and since it was not an emergency case, she
would not stay. . . . She also said that she told Ms.
Burns that if it was later determined to be an emer-
gency, then to call her at home and she would
come back. She says the last she heard, Dr. Green
had rescheduled the surgery for 2 days later.
In addition, Alice added that Maureen [Burns]
never indicated what type of case it was or even
that it was an emergency.
Lou Eicher commented that in the past, the on-
call team has been used in similar situations where
on-call personnel have stayed to complete cases
which always left the trauma available. Alice claims
that no RN was available. Lou said there was'the
AD.
(Concerning the AD being available to assist with the
operation, Burns testified (Tr. 933) that she did not call
Gardner down because "It's not her responsibility" and
that "It would be very unusual for her. to come down.")
As found, Nieves instructed Eicher to conduct an in-
vestigation to resolve the conflicting versions (about
whether there had been an emergency declared), but no
further investigation was made. As Eicher testified, "I
had enough documentation."
In arguing its belief that Thomas knew the case was an
emergency, the Hospital contends in its brief (at 54) that
it is clear "that Thomas was reasonably believed by the
Hospital to have committed the offense charged by
Green and Burns." But neither Dr. Green's report nor
Burns' incident report (both given November 20) asserts
that Thomas was told that Dr. Green had declared the
finger operation to be an emergency.
Dr. Green's report read (G.C. Exh. 9; Tr. 225):
SOUTHERN MARYLAND HOSPITAL CENTER 837
Patient scheduled for elective [emphasis added]
hand surgery; multiple postponements to "indeter-
minate time." Patient is diabetic and was NPO
[nothing by mouth] from AM. "On call team
wouldn't stay."
(INCIDENT DUE TO) Poor staffing.
Concerning the indeterminate time, Burns' incident
report (R. Exh. 5) quotes Dr. Green as saying that "he
didn't want to go to 10 pm" when she told him "he
could follow" her arthroscopy case.)
Burns' incident report gives a long account of her ver-
sion of her conversations with Thomas, but it says noth-
ing about Dr. Green declaring the case to be an emer-
gency or about her informing Thomas that he had done
so The only reference to an emergency is at the top of
the report where she asserts: "Dr. Green had an emer-
gency case to do. I first spoke with Dr Green at ap-
proximately 3 pm when I came in. . .." At the trial she
gave the obviously false testimony (Tr. 906) that "when
I came on [duty at 3 o'clock], I was told on report that
Dr. Green had an emergency case to do." Undoubtedly
if the placing of the K wire in the patient's finger had
been declared an emergency surgery at that time, the op-
eration would have been scheduled ahead of nonemer-
gency cases Head Nurse Eicher testified (Tr. 43) that if
the doctor deems the case an emergency, "He bumps an-
other surgeon." Burns conceded (Tr. 922) that emergen-
cy cases could bump nonemergency cases, but Dr. Green
never asked her to bump another case that evening or
the following morning. I discredit Burns' claim that she
was told at the beginning of the shift that the case was
an emergency I also discredit her claim (Tr. 939) that
Eicher gave her the "option" 2 days later whether or not
to write the incident report. (When testifying, Burns ap-
peared to be more concerned with protecting her job
than testifying candidly.)
_Furthermore, the Hospital's discharge document pre-
pared after 10 days of consultations shows that the Hos-
pital did not believe at the time that Dr. Green's case
was an emergency. This document, Thomas' employee
corrective action report dated November 28 (G C. Exh.
7), makes no reference to the case being an emergency.
Instead it states that "Dr. Green was very upset because
the patient was a diabetic, had been NPO all day, there-
fore because the on call RN would not stay the case was
cancelled. After investigating the situation and consulting
the chiefs of surgery and orthopedics, and the seriousness
of the situation, Alice Thomas will no longer be utilized
in the operating room."
I conclude from the wording of this employee correc-
tive action report that what little investigating the Hospi-
tal did do before discharging Thomas, revealed clearly
that Dr. Green had not declared the surgery to be an
emergency.
5. Concluding findings
Of course, if a hospital were not discriminatorily moti-
vated, it could lawfully discharge a nurse for refusing to
assist a surgeon in performing either an emergency or a
nonemergency operation. But here, the General Counsel
has made a strong prima facie case that the Hospital dis-
charged Alice Thomas for a different reason: that it did
so because Dr. Chiaramonte, the Hospital's chief execu-
tive officer, had adopted a policy of getting rid of
Thomas after deciding that she had fomented the call-
pay job action in June and was rekindling the union or-
ganizing.
As found, Personnel Director Nieves, in carrying out
this discriminatory policy, began by stripping Thomas of
all her employee benefits and refusing to increase her
scheduled hours. Despite the continuing shortage of ex-
perienced OR nurses- causing the understaffing of the
Hospital's trauma center-Nieves forced this senior nurse
with a "very competent" evaluation to work as a tempo-
rary, as-needed employee. When she did not resign,
Nieves decided to have her discharged. Then, several
months after the November discharge and after a new
OR director Garvey arrived, Head Nurse Eicher re-
vealed to Garvey that Thomas was discharged because
Dr. Chiaramonte thought she was a troublemaker, trying
to bring the Union in.
The Hospital defends the discharge, contending that it
acted reasonably when "it approached its analysis of the
situation as one in which an on-call nurse refused to per-
form emergency surgery." I find instead, in agreement
with the General Counsel, that the Hospital knew that
the elective surgery had not been declared to be an
emergency and that the evidence shows that this pur-
ported analysis was merely a pretext for Thomas' dis-
criminatory discharge.
I find that the Hospital has failed to rebut the General
Counsel's prima facie case by carrying its burden to dem-
onstrate that it would have discharged Alice Thomas in
the absence of her protected conduct Wright Line, 251
NLRB 1083, 1089 (1980). I therefore find that the Hospi-
tal discharged her for engaging in union and protected
concerted activities, in violation of Section 8(a)(1) and
(3).
CONCLUSIONS OF LAW
1. By discriminatorily discharging Alice Thomas on
November 28, 1986, because,of her union and protected
concerted activities, the Hospital engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
2. By discriminating against Thomas (a) on August 20,
1986, when it denied her a requested increase in sched-
uled hours and group 2 benefits, (b) on September 3
when it changed her status from permanent to temporary
and withdrew her accumulated group 3 benefits, and (c)
on November'9 when it denied her any scheduled hours
on the OR schedule, the Hospital further violated Sec-
tion 8(a)(1) and (3)
3. By Dr. Francis Chiaramonte's stating that he would
like Thomas and another employee out of the operating
room because they were troublemakers, trying to get the
Union in and by his stating that the operating room
would be a better place if Thomas, a union organizer,
was gotten rid of, the Hospital coerced employees in vio-
lation of Section 8(a)(1).
4. The Hospital did not commit other alleged viola-
tions
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
REMEDY
Having found that the Hospital, the Respondent, has
engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain
affirmative action designed to effectuate the policies of
the Act.
The Respondent having discriminatorily denied Alice
Thomas the scheduled hours she requested, changed her
status from permanent to temporary, removed her bene-
fits, and discharged her, it must offer her reinstatement
to her former job as a permanent full-time group 1 em-
ployee as previously promised or, if she requests, to the
permanent part-time group 2 position she requested
August 12, 1986, and make her whole for all lost earn-
ings and benefits, computed on a quarterly basis from the
dates of the discrimination to the date of a proper offer
of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retard-
ed, 283 NLRB 1173 (1987).3
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, Southern Maryland Hospital Center,
Clinton, Maryland, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging any employee for engaging in protect-
ed concerted activities or for supporting Office and Pro-
fessional Employees International Union, Local 2, AFL-
CIO or any other union.
(b) Deny any employee a requested increase in sched-
uled hours, change the employee's status from permanent
to temporary, remove the employee's benefits, or refuse
to schedule the employee because of the employee's
union or other protected concerted activities.
(c) Telling any employee that it would like certain em-
ployees out of the operating room because they are trou-
blemakers, trying to get the Union in, or that the operat-
ing room would be a better place if a union organizer
was gotten rid of.
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Alice Thomas immediate and full reinstate-
ment to her former job as permanent full-time group 1
employee or, if she requests, to the permanent part-time
group 2 position she requested August 12, 1986, or, if the
3 Under New Horizons, interest is computed at the "short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before January 1, 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp, 231
NLRB 651 (1977)
4 If no exceptions are filed as provided in Sec . 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any other
rights or privileges previously enjoyed, and make her
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against her, in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
demotion of her from permanent to temporary status, re-
moval of her benefits, denial of her requested increase in
scheduled hours, and discharge and notify her in writing
that this has been done'and that these actions will not be
used against her in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility in Clinton, Maryland, copies of
the attached notice marked "Appendix."g Copies of the
notice, on forms provided by the Regional Director of
Region 5, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge any of you for engaging in
protected concerted activities or for supporting Office
and Professional Employees International Union, Local
2, AFL-CIO or any other union.
WE WILL NOT deny any of you a requested increase in
scheduled hours, change your status from permanent to
temporary, remove your benefits, or refuse to schedule
you because of your union or protected concerted activi-
ties.
SOUTHERN MARYLAND HOSPITAL CENTER
WE WILL NOT tell any of you that we would like cer-
tain employees out of the operating room because they
are troublemakers, trying to get the Union in, or that the
OR would be a better place if a union organizer was
gotten rid of.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Alice Thomas immediate and full rein-
statement to her former job as permanent full-time group
1 employee or, is she requests, permanent part-time
group 2 employees or, if the job no longer exists, to a
839
substantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously en-
joyed, and WE WILL make her whole for any loss of
earnings and other benefits, less any net interim earnings,
plus interest.
WE WILL notify her that we have removed from our
files any reference of her demotion from permanent to
temporary status, removed benefits, denial of requested
increase in scheduled hours, and discharge and that these
actions will not be used against her in any way.
SOUTHERN MARYLAND HOSPITAL CENTER