Bethany Medical Center

National Labor Relations Board - Board Decisions

Aug 3, 1999

328 N.L.R.B. 1094 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1094
Bethany Medical Center and Janise Selbe. Case 17–
CA–17927
August 3, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND
LIEBMAN
On April 26, 1996, Administrative Law Judge William
N. Cates issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs1 and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified2 and set
forth in full below.
We agree with the judge that the catheterization labo-
ratory employees were engaged in protected concerted
activity when on March 9, 1995, they walked off their
job for 2 hours in protest of certain terms and conditions
of employment.3 Although they gave notice of their
walkout only 15 minutes prior to the first catheterization
procedure scheduled for the day, the judge correctly
found that the special strike notice requirements of Sec-
tion 8(g) of the Act apply only to labor organizations, not
to groups of employees. Walker Methodist Residence,
227 NLRB 1630 (1977). The courts, as well as the
Board, have read the clear unambiguous language of
Section 8(g) to mean what it says: the notice require-
ments are applicable only if the strike is by a labor or-
ganization. East Chicago Rehabilitation Center, Inc. v.
NLRB, 710 F.2d 397, 403 (7th Cir. 1983); Montefiore
Hospital & Medical Center v. NLRB, 621 F.2d 510 (2d
Cir. 1980), cert. denied 465 U.S. 1065 (1984). Since no
labor organization was involved in the walkout,4 we find,
in agreement with the judge, that the catheterization labo-
ratory employees were not legally required to do any-
thing more than they did to preserve their rights pursuant
to Section 7 of the Act when they walked off the job on
March 9.

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 We shall modify the judge’s recommended order in accordance
with or decision in Indian Hills Care Center, 321 NLRB 144 (1996).
3 The work stoppage at issue lasted from approximately 8 to 10 a.m.
4 We also reject the Respondent’s contention that the notice re-
quirements of Sec. 8(g) apply because the catheterization laboratory
employees’ “activities in meeting with supervisors to address various
concerns made them the functional equivalent of a labor organization.”
If we were to find that any concerted activity by employees was the
activity of a “labor organization,” Sec. 8(g) would require advance
notice of any walkout by two or more employees acting in concert—a
result at odds with the clear language of both Secs. 8(g) and 2(5) (defi-
nition of “labor organization”) of the statute.
The Respondent argues that the catheterization labora-
tory employees forfeited their statutory protection when
they refused to perform the scheduled catheterization
procedures and refused to return to work to perform an
emergency procedure on a patient who was experiencing
chest pains. The Act protects the right of employees to
engage in concerted activities, including the right to
strike without prior notice. NLRB v. Erie Resistor Corp.,
373 U.S. 221 (1963); Montefiore Hospital, supra. Both
the Board and the courts, however, recognize that the
right to strike is not absolute, and Section 7 has been
interpreted not to protect concerted activity that is unlaw-
ful, violent, in breach of contract, or otherwise indefensi-
ble. NLRB v. Washington Aluminum Co., 370 U.S. 9, 17
(1962). There is no claim that the walkout was violent or
in breach of contract.
The sole issue is whether it was somehow “indefensi-
ble.”5 The Board has held concerted activity indefensible
where employees fail to take reasonable precautions to
protect the employer’s plant, equipment, or products
from foreseeable imminent danger due to sudden cessa-
tion of work. Marshall Car Wheel & Foundry Co., 107
NLRB 314 (1953), enf. denied 218 F.2d 409 (5th Cir.
1955). In cases involving health care employees, al-
though the Board has recognized that risk of harm to
patients caused by employees’ concerted activity is a
factor in deciding whether the activity was protected, it
has applied the same standards of conduct to employees
of health care institutions as it does to employees of other
enterprises. Phase Inc., 263 NLRB 1168, 1169 (1982).
Accordingly, the test of whether the catheterization labo-
ratory employees’ work stoppage lost the protection of
the Act is not whether their action resulted in actual in-
jury but whether they failed to prevent such imminent
damage as foreseeably would result from their sudden
cessation of work.
The Respondent contends that the catheterization labo-
ratory employees’ refusal to perform the scheduled pro-
cedures and their refusal to return to perform an emer-
gency procedure was indefensible conduct. Applying the
test set forth above, we disagree. It is undisputed that, at
the time of the walkout, there were no patients in the
catheterization laboratory. Although five patients were
scheduled for procedures that day, all of these cases were
concededly routine. When the walkout occurred, the
procedures were either delayed or the patients were
transferred to one of the approximately 20 other hospitals
capable of performing catheterization procedures in the
near vicinity (including 3 within a 15-minute drive).6
5 The Respondent’s only claim that the walkout was “unlawful” was
based on Sec. 8(g) and we have rejected that claim.
6 The Respondent’s radiology director, Sousley, testified that one of
these patients had already been on the schedule for “one or two days for
a procedure.” Another patient, Mahany, who had been referred for an
328 NLRB No. 161
BETHANY MEDICAL CENTER 1095
Delays of routine procedures were common occurrences
and had resulted in a set policy for “bumping.” The Re-
spondent’s Director of Radiology testified that, under
this policy, when a scheduled procedure could not be
performed due to any number of reasons, including the
cardiologist’s unavailability, the scheduled procedure
would be bumped to another time on the schedule. In
fact, one of the grievances presented by the catheteriza-
tion laboratory employees involved their concern that
cardiologists were often late for scheduled procedures
and, as a result, the schedule for procedures had to be
rearranged. There is no contention, nor is there any evi-
dence, that, at the time of the walkout, there were any
emergency patients requiring immediate treatment.
Further, even emergency cases were also subject to
some delay. As found by the judge, while unscheduled
emergency procedures take precedence over routine pro-
cedures, any procedure in progress must be completed
before the emergency procedure is performed.7 In addi-
tion, the eight cardiologists who utilize the Respondent’s
catheterization laboratory are independent practitioners
who belong to multiple medical staffs. They are able to
direct patients to several of the nearby acute care area
hospitals with similar cardiac catheterization facilities.
These facts support a conclusion that the catheterization
laboratory employees did not forseeably create such a
risk of harm to patients so as to lose the statutory protec-
tion for their walkout.
We further find that the catheterization laboratory em-
ployees’ failure to provide the Respondent with more
than 15 minutes notice of their work stoppage did not
render the walkout indefensible. As noted above, both
routine and emergency procedures were often resched-
uled or delayed without endangering patients’ lives, and
in fact the Respondent successfully rescheduled or trans-
ferred to other nearby hospitals all of the scheduled pro-
cedures and the one unscheduled emergency procedure
that arose during the walkout.
We also find no support in the record for the Respon-
dent’s claim that the catheterization laboratory employ-
ees’ refusal to terminate their work stoppage so endan-
gered a patient’s life as to lose their statutory protection.
First, the parties have not cited, nor are we aware of, any
cases where the Board has required strikers to return

“elective” catheterization procedure approximately 6 days earlier, had
the procedure performed the next day at another hospital. At the time
of the work stoppage, his condition was not deemed an emergency by
his doctor although the catheterization subsequently revealed signifi-
cant blockage of the coronary arteries requiring immediate surgery.
7 Dr. Dulin, a staff cardiologist, testified that how quickly an un-
scheduled emergency procedure is performed depends on whether the
catheterization laboratory is in use. According to Dr. Dulin, if “some-
one [is] performing a test already in the cardiac catheterization labora-
tory, you have to wait until they finish” and the wait depends on
whether the procedure being preformed is a long complicated proce-
dure or a normal procedure. Dr. Dulin further testified that a compli-
cated catheterization procedure could take “a couple of hours.”
once a strike is underway. See Montefiore Hospital &
Medical Center, 243 NLRB 681 at 683(1979). (“Noth-
ing in the Act requires pickets or those responsible for
the picketing to act as an insurer, that is, to take steps to
insure that customers, patients or others obtain the af-
fected services or products elsewhere.”) Even assuming
arguendo that there might be such an obligation in some
circumstances, we find an insufficient basis for imposing
such an obligation here. There were numerous other
hospitals capable of performing catheterization proce-
dures in the near vicinity of the Respondent’s health care
facility and, in fact, the unscheduled emergency that
arose during the walkout was treated at one of them by
the same doctor who would have performed the cathe-
terization procedure at Bethany.8
Under these circumstances, we find that the catheteri-
zation laboratory employees’ work stoppage and refusal
to terminate their work stoppage to perform an emer-
gency catheterization procedure did not forseeably create
such a risk of harm to patients as to justify depriving
these employees of the Act’s protection.9
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Bethany Medical Center, Kansas City, Kan-
sas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they engage in protected concerted
activities.
(b) Requiring employees to waive their right to engage
in protected concerted activities in order to be considered
for rehire.
(c) Telling employees they are being discharged for
engaging in protected concerted activities.
(d) Interrogating employees about their participation in
protected concerted activities.
8 The unscheduled emergency involved a patient who had been ad-
mitted to the hospital prior to March 9 and began experiencing chest
pains that morning. The Respondent arranged for her to be transferred
via a 15-minute ambulance ride to the other hospital.
9 Chairman Truesdale agrees with his colleagues that the catheteriza-
tion laboratory employees’ walkout and failure to return on request was
protected. He finds that this case is more like East Chicago Rehabilita-
tion Center v. NLRB, 710 F.2d 397 (7th Cir. 1983), where the court
upheld the Board’s finding that a spontaneous 2-hour walkout by 17
nurses aides was protected, than NLRB v. Federal Security, 154 F.3d
751 (7th Cir. 1998), where the court agreed with Chairman Truesdale’s
dissent and found a walkout by security guards at a public housing
project unprotected. As the court noted in Federal Security, unlike the
nurses aides in East Chicago, who were “provided cover” by doctors
and nurses, the guards in Federal Security were “front line” and left
behind unattended stations. 154 F.3d at 756. Here, there were other
persons to “provide cover” for the employees by arranging for alterna-
tive care for the patients.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1096
(e) Threatening employees with loss of accrued vaca-
tion benefits in reprisal for the employees having en-
gaged in protected concerted activities.
(f) 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) Within 14 days from the date of this Order, offer
Janise Selbe, Mary Zeller, Margaret Fergus, Jackie
Hoelting, and Deborah Tanner, full reinstatement, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, discharging if necessary
employees hired for the catheterization laboratory after
March 17, 1995, to make room for them.
(b) Make Janise Selbe, Mary Zeller, Margaret Fergus,
Jackie Hoelting, and Deborah Tanner whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and, within 3 days thereafter, notify the employees in
writing that this has been done and that the discharges
will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents, for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
the hospital in Kansas City, Kansas, copies of the at-
tached notice marked “Appendix.”10 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 17, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since March 22,
1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discharge or otherwise discriminate
against our employees because they engage in protected
concerted activities.
WE WILL NOT require that our employees waive their
right to engage in protected concerted activities in order
to be considered for rehire.
WE WILL NOT tell our employees they are being dis-
charged for engaging in protected concerted activities.
WE WILL NOT interrogate our employees concerning
their protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Janise Selbe, Mary Zeller, Margaret Fergus,
Jackie Hoelting, and Deborah Tanner full reinstatement
without prejudice to their seniority or any other rights or
privileges previously enjoyed discharging, if necessary,
employees hired for the catheterization laboratory since
March 17, 1995, to make room for them.
WE WILL make Janise Selbe, Mary Zeller, Margaret
Fergus, Jackie Hoelting, and Deborah Tanner whole for
any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Janise Selbe, Mary Zeller, Margaret
Fergus, Jackie Hoelting, and Deborah Tanner, and WE
WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the discharges
will not be used against them in any way.
BETHANY MEDICAL CENTER

BETHANY MEDICAL CENTER 1097
David A. Nixon, Esq., for the General Counsel.
Henry F. Sonday Jr., Esq. and Reid Holbrook, Esq. (Holbrook,
Heaven & Fay), for the Respondent.
Wayne J. Kutz, Executive Vice President and Chief Operating
Officer, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I heard this
case in trial in Overland Park, Kansas, on January 25 and 26,
1996. The case originates from a charge, filed by Janise Selbe,
an individual (Selbe) on March 22 and amended on June 13,
1995,1 against Bethany Medical Center (the Hospital). The
prosecution of this case was formalized on June 16, when the
Acting Regional Director for Region 17 of the National Labor
Relations Board (the Board), acting in the name of the Board's
General Counsel issued a complaint and notice of hearing (the
complaint)2 against the Hospital.
The complaint alleges the Hospital violated Section 8(a)(1)
of the National Labor Relations Act (the Act) when in March
certain specifically named supervisors and agents of the Hospi-
tal told employees the Hospital would not condone the employ-
ees concerted work stoppage and that employees who engaged
in the concerted work stoppage would be disciplined by dis-
charge, permanent probation, or license removal. It is also al-
leged specifically named supervisors and agents of the Hospital
interrogated employees concerning their protected concerted
activities, threatened employees with loss of accrued vacation
benefits in reprisal for the employees having engaged in pro-
tected concerted activities, told employees orally and in writing
the reason they were being discharged was because they en-
gaged in concerted protected activities, and placed written re-
strictions on employees rehire to discourage its employees from
engaging in protected concerted activities. It is further alleged
the Hospital discharged Selbe, along with Mary Zeller (Zeller),
Margaret Fergus (Fergus), Jackie Hoelting (Hoelting), and
Deborah Tanner (Tanner) on March 17, because they on or
about March 1 concertedly complained to Hospital officials
regarding wages, hours, and working conditions by making a
written demand for change in patient scheduling, excessive
work hours, and other terms and conditions of employment and
by meeting with a Hospital official concerning their written
demands.
The Hospital admits that the Board’s jurisdiction is properly
invoked3 and that Director of Radiology Dennis Sousley (Di-
rector of Radiology Sousley), Director of Patient Care Services
Jim Hawkins (Director of Patient Care Services Hawkins), Vice
President for Patient Care Services Sylvia Maher (Vice Presi-
dent for Patient Care Services Maher), Director of Personnel

1 All dates here after are 1995 unless otherwise indicated.
2 The complaint was amended at trial.
3 The Hospital admits, and I find, it is a not-for-profit corporation
with an office and place of business in Kansas City, Kansas, where it
engages in business as a 426-bed acute care hospital. The Hospital
further admits that during the 12-month period ending March 31, it, in
conducting its business operations, derived gross revenues in excess of
$250,000 and purchased and received at its Kansas City, Kansas hospi-
tal products, goods, and materials valued in excess of $5000 directly
from points outside the State of Kansas. It is alleged in the complaint,
the parties admit, the evidence establishes, and I find that at all times
material the Hospital is an employer engaged in commerce within the
meaning of Sec. 2(2), (6), and (7) of the Act.
Bob Feiger (Director of Personnel Feiger), and Senior Vice
President and Chief Operating Officer Wayne Kutz (Chief Op-
erating Officer Kutz) are supervisors and agents of the Hospital
within the meaning of Section 2(11) and (13) of the Act.
The Hospital denies the discharged employees engaged in
protected concerted activities or that its actions violated Section
8(a)(1) of the Act. The Hospital contends that when the em-
ployees in question walked away from their jobs on March 9
they directly, immediately, and unnecessarily jeopardized the
health, well being, and very lives of patients entrusted to the
care of the Hospital and that the employees actions were totally
indefensible and of such an egregious nature that it was fully
justified in discharging them. Additionally, the Hospital con-
tends Tanner was a supervisor within the meaning of and out-
side the protection of the Act.
I have studied the whole record, the parties briefs, and the
authorities they rely on. Based on more detailed findings and
analyses below, I conclude and find the Hospital violated the
Act substantially as alleged in the complaint, and I conclude
and find Tanner was not at material times a supervisor within
the meaning of the Act.
FINDINGS OF FACT4
I. OVERVIEW
The Hospital, established in 1892, is an acute care full ser-
vice facility that has among other programs, an extensive Car-
diac Care Program. The Cardiac Care Program consists mainly
of a Cardiothoracic and Cardiovascular surgery unit, a Teleme-
try unit, and a Cardiac Catheterization Laboratory (Cath Lab).
The Cath Lab staff and procedures performed there gives rise
to the instant case.
Director of Radiology Sousley described the Cath Lab func-
tions as the fuel that powers the engine of the Cardiac Care
Program. Various diagnostic and interventional procedures are
performed by the Cath Lab staff on patients suspected or diag-
nosed with cardiac diseases or problems. At focus here are the
diagnostic procedures of cardiac catheterization and the inter-
ventional procedure of angioplasty. A cardiac catheterization
patient is placed on a highly technical in nature and sophisti-
cated machine in the Cath Lab for the procedure.5 A cardiolo-
gist and a special procedures laboratory technologist, under
sterile surgical conditions, will insert a needle-type tube into a
patient's femoral artery. A tube, referred to as a catheter, is then
advanced up through the abdominal aorta, the thoracic aorta,
and into the various arteries around the heart that supply blood
to the heart. A contrast media (dye) is injected through the
catheter into the coronary arteries to visualize the blood supply
to the heart so as to evaluate the arteries in order to ascertain if
blood is flowing through the arteries at an acceptable level. If
blockage is discovered in certain arteries of a patient the Cath
Lab staff can perform an interventional procedure known as
angioplasty. This procedure is performed by a cardiologist as-
sisted by Cath Lab personnel. In an angioplasty a specialized
catheter, commonly called a balloon catheter, is inserted into a
4 The essential facts are not significantly disputed. Unless I note oth-
erwise my findings are based on admitted or stipulated facts, documen-
tary exhibits, or on undisputed and credible testimony.
5 For example, by electrodes on the patient information is transferred
to a hemodynamic monitoring system, an EKG reading device, and a
pulse oximetry. There are also visual monitors depicting conditions
inside the arteries.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1098
patient and advanced to the blocked portion of an artery. When
the balloon catheter comes in contact with a blocked portion of
an artery a technologist will, with the aid of visual monitors and
at the direction of the cardiologist, inflate and deflate the bal-
loon. The blocked portion of the artery is examined, and if nec-
essary the procedure is repeated. If the procedure proves effec-
tive and the blockage is corrected a more adequate or more
acceptable level of blood is supplied to the heart muscle.
The procedures performed by the Cath Lab staff are per-
formed on a scheduled as well as an emergency basis.6 If an
emergency occurs during a scheduled procedure, the emer-
gency procedure takes precedence and is performed as soon as
the procedure in progress is completed and the facility is pre-
pared. Other regularly scheduled procedures must be bumped
or rescheduled.
The Cath Lab staff (the alleged discriminatees here) at mate-
rial times were responsible for providing coverage of the Cath
Lab 24 hours a day, 7 days a week. The Cath Lab staff regu-
larly works from 7 a.m. until 3:30 p.m. Monday through Friday
and they are in on-call status, on a rotating basis, at all other
times subject to reporting for duty at the Hospital within ap-
proximately 30 minutes following a call.
II. THE CATH LAB STAFF
At material times the Cath Lab staff members duties were as
follows. Fergus, Hoelting, and Selbe were special procedures
technologists. Zeller is a registered nurse and served the Cath
Lab staff as a cardiovascular nurse specialist. Tanner is a spe-
cial procedures technologist and served with the title Cath Lab
supervisor.7
The cardiovascular nurse specialist (Zeller in this case) job
summary, in part, reflects she is “[u]nder direct supervision of
the Director of Cardiology” to “assist the Cardiologist” and
“performs a variety of nursing procedures in the Cardiac Cath
Lab including administration of medicines and monitoring of
the patients status.” The cardiovascular nurse specialist “works
in cooperation with the Supervisor of the Cath Lab to assure the
communication of necessary information regarding patients
schedules, procedures . . . etc.”
The job summary for the special procedures technologist
(Cath Lab Tech) reflects such employees (Fergus, Hoelting,
and Selbe in the instant case) are “under the supervision of the
Assistant Chief of Cath Lab [and] performs a variety of tasks in
the performance of Cardiac Catheterizations and Special Proce-
dures.”
There are approximately eight cardiologists with staff privi-
leges at the Hospital. The cardiologists, like all staff physicians
at the Hospital, belong to multiple medical staffs and direct
patients to hospitals in which they seem to have the greatest
degree of confidence for each particular patient's medical prob-
lems or situations.
Director of Radiology Sousley described work in the Cath
Lab as “exacting stressful work.” On an average day five or six
scheduled procedures are performed whereas on a high volume
day seven to nine are performed.

6 Chief Operating Officer Kutz stated 40 percent of all patients ad-
mitted to the Hospital come, without advance notice, through the emer-
gency room.
7 Whether Tanner was at material times a supervisor within the
meaning of the Act is contested and her status is addressed elsewhere in
this decision.
III. CATH LAB STAFF'S JOB-RELATED CONCERNS AND ACTIVITIES
A. Early Expressions of Concern
Vice President for Patient Care Services Maher testified she
became aware in the fall (September) of 1994 the Cath Lab
staff (the alleged discriminatees here) had been expressing job-
related concerns to Director of Radiology Sousley,8 Maher
recalled at least three areas of concern raised by the Cath Lab
staff, namely, that the Cath Lab technicians be provided nursing
support for the removal of arterial lines,9 that ground rules be
established regarding how patients are scheduled for the Cath
Lab, and that additional staff be provided based on an increased
volume of cases for the Cath Lab.
B. The March 1 Meeting
The Cath Lab staff continued pursuing what they perceived
to be job-related concerns and, among other things, requested a
meeting with Sousley for March 1. Sousley met with the five
alleged discriminatees and student-trainee Jill Blake on that
date. The meeting took place in the employee lounge area adja-
cent to the Cath Lab. Director of Radiology Sousley testified he
and the employees sat around a table and “talked about the
situations in the Cardiac Cath Lab.” Sousley testified:

The topics in the meeting . . . primarily centered around,
again, scheduling procedures, cardiologists' availability . . . a
bumping procedure . . . after-hours scheduling . . . [and] pull-
ing of art[erial] lines . . . .

Sousley explained:

scheduling . . . centered around . . . how much time should be
allotted to perform a procedure? How many blocks of time
should be allowed in the day to perform procedures? When
should blocks of time be allowed for out-patients versus in-
patients? What should be the procedure for scheduling if an
angioplasty was added on after blocks of time were already
filled?

According to Sousley, the Cath Lab staff very much wanted the
Hospital to limit the number of cases that could be placed on the
schedule for any given day.
Sousley also explained that the Cath Lab staff wanted a pro-
cedure whereby if a cardiologist did not show for a scheduled
procedure within 15 to 20 minutes of the scheduled time the
cardiologist would be “bumped” to the end of the schedule for
that day.
Sousley further explained that the Cath Lab staff wanted the
Hospital to “develop a system to allow scheduling of proce-
dures after hours other than calling of the technologist on-call”
8 Maher testified Sousley told her he had discussed such matters with
the Cath Lab staff.
9 When a procedure has been completed in the Cath Lab a catheter
tube line is left in the patient’s artery after, for example, an angioplasty
has been completed. The line is sterile, coiled up, and may be hooked to
a drip situation. The patient is moved from the Cath Lab to either the
ICU (Intensive Care Unit) or the Telemetry Unit. Later the attending
cardiologist will order the removal of the arterial line which must be
unsecured and literally removed (pulled) from the patient’s body. It is
“a very careful procedure of holding pressure, placing pressure properly
on the groin or the area where the catheter or arterial line is removed so
that the patient does not develop conditions such as hematoma which
can easily lead to infections.” The Cath Lab staff was seeking to have
this procedure performed by staff nurses in ICU or the Telemetry Unit
rather than by a member of the Cath Lab staff.
BETHANY MEDICAL CENTER 1099
at home. The Cath Lab staff was seeking an in-hospital central-
ized scheduling system for all procedures.
C. The Hospital’s Response to the March 1 Meeting
Several meetings of various Hospital management personnel
took place starting on March 1, regarding the Cath Lab staffs'
concerns as outlined above. Director of Radiology Sousley
testified, for example, that he met on March 1 with Chief Oper-
ating Officer Kutz. Kutz told Sousley the Hospital needed to do
something to organize the schedule so cardiologists did not
schedule too many procedures in too short a time frame. Kutz
noted he would “possible be agreeable to adding staff,” but
needed to “review financials.” Kutz told Sousley to work with
Tanner on “an alternative manner of scheduling the after-hours
schedule.” Kutz directed that Sousley work with Vice President
for Patient Care Services Maher regarding the removal of arte-
rial lines.
On or about March 3, Director of Radiology Sousley and
Tanner met with Chief Operating Officer Kutz. The three were
joined by Cardiologist Dr. Hector Rodriguez. The concerns of
the Cath Lab staff were again discussed. Kutz told them he was
planning to authorize additional staff for the Cath Lab.10
D. The March 9 Walkout of the Cath Lab Staff and Related
Matters
On March 9, the Cath Lab staff reported for work at the
Hospital as scheduled. There were five scheduled procedures to
be performed in the Cath Lab that day. The first scheduled
procedure was Cardiologist Dr. Jose Dulin performing a heart
catheterization on patient Carl Mahany11 who had checked into
the Hospital that morning. Dr. Dulin telephoned (from his car at
7:45 a.m.) to inform the Hospital Cath Lab staff he was on his
way and would be at the Hospital in 15 minutes for the first
procedure of the day. Dr. Dulin said he spoke with Tanner who
told him “they [Cath Lab staff] were not happy with their . . .
working conditions and that by the time I [Dr. Dulin] got there
they may not be there.”
The Cath Lab staff walked off the job shortly thereafter and
went to a nearby restaurant.12 Dr. Dulin arrived at the Hospital,
proceeded to the Cath Lab, but found no one there. Dr. Dulin
told Director of Radiology Sousley he was to perform a heart
catheterization that morning but had been told by the Cath Lab
staff they might not be there and the crew was not present. Dr.
Dulin stated he then “waited to see what was going to happen.”
Dr. Dulin fully apprised his patient, Mahany, of the situation.13
10 Sousley testified he later told Tanner he “was happy . . . Mr. Kutz,
was considering adding additional staff,” and added they discussed how
any new staff might be utilized.
11 Mahany had been referred on March 3 to Dr. Dulin. Mahany had
been experiencing progressive angina pectois.
12 It is undisputed that there was no patient in the Cath Lab at the
time the staff walked off the job.
13 Dr. Dulin stated that after approximately 2 hours with no return of
the Cath Lab staff he, after consulting with Mahany, arranged to per-
form Mahany’s catheterization the next morning at 8 a.m. at Shawnee
Mission Medical Center. Dr. Dulin testified that the next day “because
of the severity of the disease [and] after consulting with a cardiovascu-
lar surgeon, [Mahany] went directly from the Cath Lab table to the
operating room to have open heart surgery.” Dr. Dulin was asked if the
24-hour delay in Mahany’s catheterization placed Mahany at greater
risk. Dr. Dulin responded, “retrospectively, because he had severe
disease . . . there is a definite risk that something serious even death,
may occur.” Ms. Mahany testified she, at the time, had no difficulty in
the 1-day delay for her husband to go to Shawnee Mission Medical
Director of Radiology Sousley testified that when he arrived
at the Hospital on March 9 he was informed by Director of
Patient Care Services Hawkins that the Cath Lab staff had been
present at the Hospital but had left the building. Hawkins told
Sousley there were patients scheduled to have procedures per-
formed in the Cath Lab that day. Hawkins asked Sousley what
he planned to do.
Sousley testified he obtained the Hospital provided pager
(beeper) numbers for each of the Cath Lab staff members and
paged all of them at approximately 8:15 a.m. A few minutes
thereafter, Tanner telephoned Sousley. Sousley asked what was
going on, and Tanner responded something to the effect the
Cath Lab staff could not handle the pressures any longer and
“they had walked out.” Sousley asked, “[W]hat does this
mean?” and Tanner replied, “[I]t means we’re not working,
we're not doing any procedures.” Sousley asked if this meant
the Cath Lab staff was not coming back to work, and Tanner
stated they were not coming back. Sousley asked if the staff
was looking for other jobs, and Tanner told him they were talk-
ing about “job options” and job openings that they could apply
for. Sousley told Tanner, “[I]f you are quitting . . . please don't
do it in this manner. Please come back, [and] submit your res-
ignation.” Sousley pointed out the staff had worked many years
for the Hospital and again asked them to come back to work
and give the Hospital a 2-weeks’ notice and then quit. Sousley
testified, “I also made the comment that they had accrued vaca-
tion benefits and many benefits . . . and I said they may be in
jeopardy.”14
The Cath Lab staff did not immediately return to the Hospi-
tal after the first telephone conversation between Sousley and
Tanner.
Director of Radiology Sousley stated that shortly thereafter
he was informed by Director for Patient Care Services Hawkins
that a patient on the Telemetry Unit was “in serve chest pain”
and “not responding to medication.” Sousley concluded the
patient needed immediate care so he again paged Tanner’s
beeper number and Tanner telephoned Sousley. Sousley told
Tanner about the condition of the patient (Ms. Clendenin) and
asked Tanner if the Cath Lab staff would come to the Hospital
and perform this one emergency procedure. According to Sou-
sley, Tanner responded they would not. Sousley told Tanner, “I
cannot believe that you wouldn't take care of a patient. This
patient could die.”15 Sousley testified Tanner said, “[W]e’ve
thought about patients in the past, but right now we have to
think about ourselves.”

Center for the procedure. Ms. Mahany testified the surgery on her hus-
band was as far as she knew successful. Ms. Mahany said her husband
had been referred to Dr. Dulin on Friday (March 3) of the preceding
week.
14 Tanner describes her conversation with Sousley only slightly dif-
ferently. Tanner stated Sousley asked that the Cath Lab staff come back
to work and perform the procedures scheduled that day “and then we
could have a meeting with administration about all our problems that
we were so upset about.” Tanner stated Sousley then said, “If you leave
your job this way you’re at the risk of losing your vacation and bene-
fits.” Tanner said she told Sousley, “Don’t threaten us with our vaca-
tion.” I find either version would require the same conclusion and re-
sults.
15 Tanner recalls Sousley stating in the conversation, “a patient [was]
en route to the hospital and he needed to know if we were going to
come back in and take care of the patient. And if we were not, then the
patient would have to be rerouted.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1100
Tanner testified she and the other members of the Cath Lab
staff knew that if an emergency patient did not receive care the
patient's life and/or health could be jeopardized. Tanner said
that in deciding not to come back to the Hospital in response to
Sousley’s request they believed there was “a distinct possibil-
ity” Sousley would lie about the existence of an emergency.
Tanner stated that whether or not an emergency existed the
Cath Lab staff refused at that time to return to the Hospital.
Tanner did not recall saying anything about the staff thinking
about patients in the past, but only about themselves at the
time.16
Although not a patient of his, Dr. Dulin responded to a “staff
consult”17 involving Ms. Clendenin to assess her medical con-
dition. Dr. Dulin testified Ms. Clendenin, who had been a pa-
tient in the Hospital before being transferred to the Telemetry
Unit, was “having chest pains,” “diaphoretic,” and “short of
breath.” Dr. Dulin concluded Ms. Clendenin needed an emer-
gency heart catheterization and, when he was informed the
Cath Lab staff would not return to the Hospital for Ms. Clende-
nin, he arranged for her to be transferred via ambulance to
Providence Hospital18 where he successful performed a cathe-
terization.19 The procedure at Providence Hospital took Dr.
Dulin approximately 10 minutes to perform.
Director of Radiology Sousley testified he paged Tanner a
third time and when she returned his call he had her speak with
Chief Operating Officer Kutz who asked what was going on. At
Kutz' request the Cath Lab staff (the alleged discriminatees
here) returned to the Hospital around 10 a.m. and met with
Chief Operating Officer Kutz and Sousley. They discussed
scheduling, additional help, who at the Hospital would be re-
sponsible for pulling arterial lines, cardiologist scheduling, and
events leading up to the walkout earlier that morning. Time
lines were established for accomplishing certain changes and,
according to Sousley, “Mr. Kutz stated there would be a meet-
ing set up the very next day to meet with all the cardiologists
and the Cath Lab Technologists and the Nurse to discuss the
whole situation and a fact-finding meeting and to effect some
resolution.”
The Cath Lab staff then returned to the Cath Lab to perform
procedures. “[A]ll the patients had already been transferred or
allowed to eat or procedures were planned to be delayed; [how-
ever], so there weren’t any procedures they could perform right
at that time . . . [and] . . . they checked out and left approxi-
mately at noon.”
The Cath Lab staff returned to work status March 10 through
16. Chief Operating Officer Kutz, Director of Radiology Sou-
sley, and Vice President for Patient Care Services Maher had
several meetings during this period concerning the Hospital's
response to the Cath Lab staff’s absence. For example, Hospital
management met with the staff cardiologists and the Cath Lab

e.

16 I find it unnecessary to resolve any of the apparent minor conflicts
between Sousley’s and Tanner’s accounts of their conversations inas-
much as the outcome here would be the same relying on either version.
17 Dr. Dulin described a “staff consult” as “something like . . . you
need to see right away because the patient seems to be in distress and
threatening to have a heart attack.”
18 Providence Hospital is within approximately 15 minutes via
ambulance from the Hospital her
19 Dr. Dulin said from the time he decided a catherization procedure
needed to be performed on Clendenin until he actually did so at Provi-
dence Hospital approximately 1–1/2 to 2 hours elapsed.
staff to discuss changes to be instituted regarding Cath Lab
working conditions.
E. March 16 Meetings with Each Cath Lab Staff Member
On March 16, Vice President for Patient Care Services
Maher and Director of Radiology Sousley met with each of the
Cath Lab staff members individually. Maher asked each “what
her individual thoughts were at the time of the walk out.”
Maher asked each about the “events leading up to” the walkout
and “what . . . conversations . . . were going on between them”
at the time. Each of the alleged discriminatees was asked by
Maher what would happen if stress arose again in the Cath Lab,
would the staff walk off the job again. Maher elicited a nega-
tive response from each.
IV. THE DISCHARGE OF THE CATH LAB STAFF
A. The Discharge Interviews
A decision was made by Chief Operating Officer Kutz, Vice
President for Patient Care Services Maher, Director of Radiol-
ogy Sousley, and Director of Personnel Feiger to discharge,
effective March 17, all five of the Cath Lab staff members who
participated in the March 9 walkout. Each of the five alleged
discriminatees was advised individually of her termination.
Each was told she was being terminated for “patient abandon-
ment,” “refusal to provide patient care,” and “endangering the
life of patients.” Each was told she could be considered for
reemployment if she submitted a job application and agreed to
certain conditions.20 Each of the Cath Lab staff was provided a
written copy of her termination notice. Each termination notice
in pertinent part reflects:

Intentional failure to perform work assignment, neglect of pa-
tients and conduct detrimental to patient care and medical
center operations, demonstrated by your abandonment of pa-
tients and departure on Thursday morning, March 9, 1995.
B. Conditions for Consideration of Rehire
Each of the Cath Lab staff members was asked on March 17
to agree to the following “conditions for employment” if they
wished to apply for rehire:

Dear Ms. Selbe:1
You may apply for rehire based on the following con-
ditions for employment:
1. Supportive of Bethany Medical Center and its ad-
ministrative decisions.
2. Provides a work environment which is effective and
conducive to employees/patients and physicians.
3. Performs job duties in accordance with the job de-
scription and direction of their supervisor.
4. Maintains the Professional Code of Ethics and per-
forms job functions in accordance to Bethany Medical
Center's Standard of Care.
5. Participates cooperatively and professionally with
department problem solving and is supporting of decisions
to make system improvements.
20 Each of the Cath Lab staff applied for reemployment and two,
Fergus and Hoelting, were rehired as new employees.
BETHANY MEDICAL CENTER 1101
If you can comply with the above and desire to work at
Bethany, your application may be submitted as soon as
Monday, March 20, 1995. Your application will be con-
sidered with all other applications.

Sincerely,
/s/ Sylvia A. Maher
Sylvia A. Maher
Vice President for
Patient Care Services
/s/ Dennis Sousley
Dennis Sousley
Director of Radiology

1 The letter to each of the other alleged discriminatees was identical
to this one.
V. DISCUSSION, ANALYSIS, AND CONCLUSIONS
A. Legal Principles
The parties are in agreement that the key or central issue here
is whether the walkout by the Cath Lab staff on March 9 was
protected concerted activity. The Board in Meyers Industries
(Meyers I), 268 NLRB 493 (1984), noted that the concept of
concerted action has it basis in Section 7 of the Act.21 The
Board pointed out in Meyers I that although the legislative his-
tory of Section 7 of the Act does not specifically define con-
certed activity it does reveal that Congress considered the con-
cept in terms of individuals united in pursuit of a common goal.
The statute requires that the activities under consideration be
“concerted” before they can be “protected.” As the Board ob-
served in Meyers I “I[i]deed, Section 7 does not use the term
‘protected concerted activities’ but only ‘concerted activities.’
It goes without saying that the Act does not protect all con-
certed activity. With the above, as well as other considerations
in mind, the Board in Meyers I set forth the following definition
of concerted activity:22

In general, to find an employee's activity to be “con-
certed,” we shall require that it be engaged in with or on
the authority of other employees, and not solely by and on
behalf of the employee himself.22 Once the activity is
found to be concerted an 8(a)(1) violation will be found if,
in addition, the employer knew of the concerted nature of
the employee's activity, the concerted activity was pro-
tected by the Act, and the adverse employment action at
issue (e.g., discharge) was motivated by the employee's
protected concerted activity.23

22 See Ontario Knife Co. v. NLRB, 637 F.2d 840, 845 (2d Cir.
1980); Pacific Electricord Co. v. NLRB, 361 F.2d 310 (9th Cir. 1966).

21 Sec. 7 of the Act in pertinent parts states:
Employees shall have the right to self-organization to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection . . . . [Em-
phasis added.]
22 In Meyers Industries (Meyers II), 281 NLRB 882 (1986), the
Board made it clear that under the proper circumstances a single em-
ployee could engage in concerted activity within the meaning of Sec. 7
of the Act.
23 See Wright Line, 251 NLRB 1083 (1980), enf. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989, approved in NLRB v. Transpor-
tation Management Corp., 103 S.Ct. 2496, 97 LC 10.164 (1983).
B. Concerted Activity
Applying the principles outlined in the Meyers cases to the
instant facts, it is clear that the Cath Lab staff acted concertedly
when they jointly met with Director of Radiology Sousley on
March 1 to voice their mutual complaints regarding working
conditions in the Cath Lab. They sought redress of job-related
concerns which in part involved terms and conditions of em-
ployment such as scheduling, work tasks to be performed, and
staffing levels for the Cath Lab. The Cath Lab staff continued
to act in concert when they engaged in a work stoppage (strike)
on March 9 in support of their work-related complaints.
The Hospital was fully aware of the concerted nature of the
Cath Lab staff's activities concerning redress of their stated
grievances.
C. No Advance Notice of Walkout
Before addressing the issue of whether the activities of the
Cath Lab staff (walking off the job) on March 9 constituted
conduct protected by Section 7 of the Act, I shall address an
additional concern alluded to by the Hospital. The Hospital
argues the Cath Lab staff gave management no advance notice
of the walkout nor did the Cath Lab staff provide management
with specific reasons for the walkout. First, employees do not
necessarily lose their right to engage in concerted activity under
Section 7 of the Act merely, because they do not present a spe-
cific demand on their employer to remedy a condition they find
objectionable before they take action such as walking off the
job. NLRB v. Washington Aluminum Co., 370 U.S. 9 at 14
(1962). However, the Cath Lab staff had orally, as well as in
writing, made their grievances known to the Hospital on March
1. The Cath Lab staff had in the fall of 1994 put the Hospital on
notice of their job-related concerns. Therefore, when they
walked off the job on March 9 they were not required to do
anything more than they did to preserve their rights pursuant to
Section 7 of the Act. Second, in Walker Methodist Residence,
227 NLRB 1630 (1977), the Board addressed the issue of
whether Section 8(g),23 added to the Act by the 1974 Health
Care Amendments, applies to a work stoppage in which (as was
the case here) no labor organization is involved. The Board
concluded Section 8(g) was applicable only to strikes (or pick-
eting) involving a labor organization. Thus, the Cath Lab staff
was under no statutory obligation to give the Hospital notice of
their intention to walk off the job before they did so on March
9. The Board in Walker Methodist Residence also addressed the
modifications to Section 8(d) of the Act brought about by the
addition of Section 8(g) to the Act. The Board concluded that
the loss of employee status sanction of Section 8(d) applies
only when the notice requirement of Section 8(g) of the Act is
violated. As the 8(g) notice was not violated in the instant case
the loss of employee status sanction of Section 8(d) of the Act
does not apply here.
23 Sec. 8(g) of the Act reads in pertinent part:
A labor organization before engaging in a strike, picketing,
or other concerted refusal to work at any health care institu-
tion shall, not less than ten days prior to such action, notify
the institution in writing and the Federal Mediation and
Conciliation Service of that intention . . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1102
D. “Protected” Concerted Activity and the Related Indefensible
Action Issue
I return to the critical issue regarding the discharge of the
Cath Lab staff, namely, whether the walkout on March 9 was
protected by the Act.24 The U.S. Supreme Court in NLRB v.
Washington Aluminum Co., 370 U.S. 9 at 17 (1962), expressly
recognized, “[I]t is of course true that Section 7 does not pro-
tect all concerted activities” it does not, for example, protect
activities that are “unlawful, violent . . . in breach of contract”
or “indefensible” (footnotes omitted). In the instant case there
is no contention, and no evidence was presented, that the Cath
Lab staff’s conduct was unlawful, violent, or in breach of con-
tract.
The Hospital does, however, contend the Cath Lab staff's
conduct (walking off the job) was indefensible, because it di-
rectly, immediately, and unnecessarily jeopardized the health,
well being, and very lives of patients entrusted to their care. In
NLRB v. Washington Aluminum Co., supra, the Court makes
reference to its decision in NLRB v. Electrical Workers IBEW
Local 1229 (Jefferson Standard), 346 U.S. 464 (1953), in
which the Court denied certain concerted activities the protec-
tion afforded by Section 7 of the Act because the activities were
“indefensible.” The underlying facts in the Jefferson Standard
Broadcasting case shows negotiations had reached an impasse
on the issue of employment discharges being subject to arbitra-
tion. The employees in Jefferson Standard Broadcasting did
not strike in support of their bargaining position but rather
picketed the company during their off-duty hours and continued
to draw full pay. After a period of time, and without warning,
several of the technicians (Jefferson Standard Broadcasting
operated a radio and TV station in Charlotte, North Carolina)
launched a “vitriolic attack on the quality of the Company's
television broadcast.” Thousands of handbills were printed over
the designation “WBT TECHNICIANS.” The handbills were
distributed on the picket line, at a public square blocks from the
company premises, and at various other public places such as
restaurants, barbershops, and local buses. The handbills made
no reference to the union, to a labor controversy, or to collec-
tive bargaining. The company discharged the technicians and
the Board upheld (with the exception of one technician who
had not participated in the questionable handbills) their dis-
charge. The Court in upholding the discharges in Jefferson
Standard Broadcasting found the employees “deliberately un-
dertook to alienate their employer's customers by impugning
the technical quality of his product”; that the employees effec-
tively separated the attack on the company from the labor con-
troversy and treated it solely as one made by the company's
technical experts on the quality of the company's product. The
Court in Jefferson Standard Broadcasting noted (346 U.S. at
476):

Their attack related itself to no labor practice of the company.
It made no reference to wages, hours or working conditions.
The policies attacked were those of finance and public rela-
tions for which management, not technicians, must be respon-
sible. The attack asked for no public sympathy or support. It
was a continuing attack, initiated while off duty, upon the
very interests which the attackers were being paid to conserve
and develop. Nothing could be further from the purpose of the
Act than to require an employer to finance such activities.
Nothing would contribute less to the Act's declared purpose of
promoting industrial peace and stability.12

24 There is no dispute that the Cath Lab staff was discharged, be-
cause they walked off the job on March 9. Stated differently the ad-
verse action taken against the Cath Lab staff was motivated by their
concerted activity.

12 “. . . . An employee can not work and strike at the same time. He
cannot continue in his employment and openly or secretly refuse to do
his work. He can not collect wages for his employment, and, at the
same time, engage in activities to injure or destroy his employer's
business.” Hoover Co. v. N.L.R.B., 191 F.2d 380, 289, and see
N.L.R.B. v. Montgomery Ward & Co., 157 F.2d 486, 496; United Bis-
cuit Co. v. N.L.R.B., 128 F.2d 771.

The Court went on to note that the “fortuity” of the coexistence of a
labor dispute afforded the technicians no substantial defense. The
Court noted the handbills diverted attention from the labor contro-
versy, it attacked public policies of the company which had no
discernible relationship to the labor controversy.
In the instance case, unlike in Jefferson Standard Broadcast-
ing, the concerted activities of the Cath Lab staff were inextri-
cably intertwined with their job-related concerns. The Cath Lab
staff was, by its actions on March 9, attempting to press on the
Hospital perceived grievances related to terms and conditions
of employment. Stated differently the Cath Lab staff was by
their actions on March 9 appealing directly to the Hospital for
relief regarding working conditions. The Cath Lab staff's ac-
tions were not indefensible in purpose or sought after objec-
tives.25
E. Specific Patients and the Indefensible Conduct Contention
I now specifically address the Hospital's contention that pa-
tients scheduled for procedures on March 9 were after the
walkout placed in such jeopardy as to constitute indefensible
conduct on the part of the Cath Lab staff. Stated differently, did
the Cath Lab staff's walking off the job constitute conduct so
indefensible as to justify the Hospital's discharging them? A
careful examination of the facts compels the conclusion the
Hospital was not justified in discharging the Cath Lab staff.
First, Cardiologist Dr. Dulin had scheduled a catheterization at
8 a.m. on March 9 for a patient, Mahany, who had been re-
ferred to Dr. Dulin some 6 days earlier because of progressive
angina pectoris. Dr. Dulin knew as a result of a mobile tele-
phone call that when he arrived at the Hospital the Cath Lab
staff might not be there. Dr. Dulin learned, as soon as he ar-
rived at the Hospital, the Cath Lab staff was not present yet he
“waited to see what was going to happen.” After approximately
2 hours, Dr. Dulin, after consultation with Mahany, arranged
for Mahany’s catheterization to be performed at another local
hospital at 8 a.m. the very next day.26 I am persuaded that if
Dr. Dulin had deemed Mahany's situation to have been an
emergency or life threatening he would have arranged for a
25 In Walker Methodist Residence, supra at 1631, the Board made it
clear that “[i]n enacting Section 8(g), Congress did not make a legisla-
tive finding of fact that all work stoppages against health care institu-
tions are so harmful that they must be forbidden.” The Board noted that
nothing in the 1974 Health Care Amendments restricts concerted activi-
ties by nonorganized employees and also noted the legislative history
does not indicate an attempt to alter the scope of Sec. 7 protection
granted nonorganized employees in the health care industry. The Board
in Walker Methodist Residence specifically restated the clearly estab-
lished principle that a concerted work stoppage for the purpose of pre-
senting job-related grievances is protected Sec. 7 activity.
26 Mahany’s wife testified she had no difficulty with the 24-hour de-
lay for the catheterization procedure for her husband.
BETHANY MEDICAL CENTER 1103
catheterization procedure for him on March 9 on an emergency
basis at another of the many nearby area hospitals. The fact that
Mahany’s situation warranted surgery after the catheterization
procedure was performed the next morning does not alter the
situation as viewed by Dr. Dulin before the catheterization was
performed. I am not persuaded that the Cath Lab staff’s failure
to be present to assist in performing a catheterization on
Mahany on the morning of March 9 constituted conduct so
indefensible as to remove the protection of the Act from the
Cath Lab staff.27
A second patient that was not afforded treatment in the Cath
Lab on March 9 that the Hospital points to as indefensible con-
duct on the part of the Cath Lab staff involved a patient in the
Telemetry Unit, a Ms. Clendenin. Ms. Clendenin, who had for a
period of time been a patient in the Hospital, was on March 9 in
an emergency-type situation. She was “in severe chest pain”
and “not responding to medication.” The Cath Lab staff de-
clined a request28 to return from a nearby restaurant to the Hos-
pital to assist in performing a catheterization procedure on
Clendenin. Dr. Dulin and the Hospital arranged for Clendenin
to be transferred via a 15-minute ambulance ride to a nearby
hospital where Dr. Dulin successfully performed a catheteriza-
tion procedure on Clendenin within 1-1/2 to 2 hours of the time
he first examined Clendenin and determined she needed a
catheterization. If the Cath Lab at the Hospital here had been in
use, as scheduled, it would have taken approximately 1 to 2
hours for the procedure in progress to have been completed and
the Cath Lab prepared for Clendenin. Thus, Clendenin received
treatment (a catheterization) approximately as timely as she
would have had the Cath Lab staff returned to the Hospital to
assist in performing a procedure on her. I am persuaded the
Cath Lab staff’s refusal to return to the Hospital for Clendenin
does not constitute conduct so egregious as to be indefensible
and remove the Cath Lab staff members from the protection
afforded by the Act.
F. The Discharge of the Cath Lab Staff Violated the Act
In summary, I find the Cath Lab staff engaged in concerted
activity on March 1 and 9 that was protected by Section 7 of
the Act and that the Hospital violated Section 8(a)(3) and (1) of
the Act by discharging the Cath Lab staff members for their
participation in protected concerted activities.
G. The Supervisory Issue Related to Tanner
The Hospital contends Cath Lab Supervisor Tanner, at all
times material, was a supervisor within the meaning of Section
2(11) of the Act. The Government contends she was an em-
ployee. The Hospital has the burden of proving Tanner’s super-
visory status by a preponderance of the evidence.
The Board, in Providence Hospital, 320 NLRB 717, 725
(1996), outlined the legal principles related to supervisory is-
sues in the health care field and it is instructive to quote at
length as follows from the Board’s decision:

Section 2(3) of the Act excludes from the definition of
“employee” “any individual employed as a supervisor.”
Section 2(11) defines supervisor as:

27 The Cath Lab staff did not, for example, walkout in the middle of
a procedure.
28 I note the Cath Lab staff had reservations about the existence of an
emergency-type situation at the Hospital that morning.
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of
such authority is not of a routine or clerical nature, but
requires the use of independent judgment.

Section 2(11) is to be interpreted in the disjunctive and “the
possession of any one of the authorities listed in [that section]
places the employee invested with this authority in the super-
visory class.” Ohio Power Co. v. NLRB, 176 F.2d 385, 387
(6th Cir. 1949), cert. denied 338 U.S. 899 (1949).
In enacting Section 2(11) of the Act, Congress distin-
guished between true supervisors who are vested with
“genuine management prerogatives,” and “straw bosses,
lead men, and set-up men ‘who are protected by the Act
even though they perform’ minor supervisory duties.”
NLRB v. Bell Aerospace Co., 416 U.S. 267, 280–281
(1974) (quoting S. Rep. No. 105, 80th Cong., 1st Sess., 4
(1947). Senate Rep. No. 105 also stated that the committee
took “great care” that employees excluded from the cover-
age of the Act “be truly supervisory” and that the amend-
ment exclude only “the supervisor vested with such man-
agement prerogatives as the right to hire or fire, discipline,
or make effective recommendations with respect to such
actions.” NLRB, Legislative History of the Labor Man-
agement Relations Act of 1947, 410. “Responsibly to di-
rect” was added to the Senate bill shortly before its enact-
ment by Senator Flanders, who explained that it was added
to include “essential managerial duties” not otherwise
covered by the other indicia. Leg. Hist. at 1303.

There is no contention in the instant case that Tanner had the
authority to hire, transfer, suspend, layoff, recall, promote, or
discharge employees or to effectively recommend such actions.
The Hospital rather contends that Tanner responsibly di-
rected and assigned employees and that she utilized independ-
ent judgment in the exercise of such authority. The Hospital
also contends that Tanner was able to recommend disciplinary
action and provided direct input into annual evaluations to the
extent that such impacted on the employees’ merit pay in-
creases, thus, Tanner, the Hospital contends, had the authority
to reward employees.
The Board in Providence Hospital, supra at 725, stated with
respect to responsibly directing and assigning employees the
following:

Applying the indicia of assignment and responsibly to
direct to the facts of a specific case is often difficult. There
are no hard and fast rules; instead, each case turns on its
own particular facts. Clearly, not all assignments and di-
rections given by an employee involve the exercise of su-
pervisory authority. As succinctly stated by the Fifth Cir-
cuit in NLRB v. Security Guard Service, 384 F.2d 143, 151
(5th Cir. 1967):

If any authority over someone else, no matter how in-
significant or infrequent, made an employee a supervi-
sor, our industrial composite would be predominantly
supervisory. Every order-giver is not a supervisor.
Even the traffic director tells the president of a com-
pany where to park his car.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1104
Consequently, the Board analyzes each case in order to differ-
entiate between the exercise of independent judgment and the
giving of routine instructions, between effective recommenda-
tion and forceful suggestion, and between the appearance of
supervision and supervision in fact. McCullough Environ-
mental Services, 306 NLRB 565 (1992), enf. denied 5 F.3d
923 (5th Cir. 1993). Where the supervisory issue involves . . .
professional RNs, [technical hospital employees in the instant
case] this analysis is compounded by the difficulty . . . of ex-
plaining the additional authority a charge nurse has without
taking away from the professional responsibility of an RN
[technical hospital employees in the instant case] for the qual-
ity of patient care. An additional compounding factor is that
Section 2(11) requires that a supervisor use independent
judgment in the exercise of any of the listed indicia and that
Section 2(12) of the Act includes in the definition of profes-
sional employee “the consistent exercise of discretion and
judgment.”16

16 The Board defines technical employees, such as licensed practi-
cal nurses (LPNs), as those who also use independent judgment.
Fisher Controls Co., 192 NLRB 514 (1971).

Do the facts establish Tanner was a supervisor within the
meaning of the Act? According to the Hospital's provided job
description, the Cath Lab supervisor reports to the director of
cardiology. The duties of the Cath Lab supervisor are summa-
rized in the job description as “supervises technologist in the
day-to-day functions involving diagnostic procedures, schedul-
ing, supply procurement, and etc.”
The Hospital contends Tanner made work assignments to the
technologists in the Cath Lab. In this regard, the Hospital as-
serts Tanner made assignments to the “technologist responsible
for monitoring a patient's EKG and pressures during various
cardiac procedures,” and to the “technologist responsible for
circulating in the room where the procedure is being con-
ducted.” The Hospital’s provided job description of the Cath
Lab supervisor reflects she “[s]upervises technologists in their
day-to-day functions” and “[w]orks in cooperation with the
cardiac nurse of the Cath Lab29 to assure the communication of
necessary information regarding patients' schedule, procedures
. . . .”
Tanner was, at all times material, a technologist and not a
registered nurse. According to Director of Radiology Sousley,
all the Cath Lab technologists are “highly trained and highly
skilled personnel.” Sousley testified Tanner’s job was to “run
the Cath Lab day-to-day” and “make any decisions necessary as
far as work assignments to the other technologists and nurse.” I
a note there are only four technologist on the Cath Lab staff
including Tanner. Each technologist had long-term experience
with the Hospital. Thus, when Tanner assigned technologists to
specific functions during a catheterization procedure, she was,
in my opinion, merely performing a routine clerical task. I also
note the Cath Lab nurse specialist did not report to, but only
communicated with, Tanner. As the Board and courts have
recognized, not every act of assignment of employees consti-
tutes statutory supervisory authority. Assignments must be
done with independent judgment before the assignments can be
considered supervisory under Section 2(11) of the Act. Routine
assignments, such as those made by Tanner, are not supervisory
in nature. Thus, Tanner’s making work assignments for the
Cath Lab staff does not establish an indicia of supervisory
status on her part.

29 The Hospital-provided job description for the “cardiovascular
nurse specialist” (Zeller in the instant case) reflects that position is
under the “direct supervision of the Director of Cardiology” and not the
Cath Lab supervisor.
There is very limited, if any, evidence to indicate or even
suggest that the skills of the technologists differed significantly.
The Hospital-provided job description for all technologists in
the Cath Lab is the same. The Hospital makes no contention
that anyone of the technologists was more skilled than any
other.
The Hospital contends Tanner’s “managing the call sched-
ule” constituted management of work such as to invest Tanner
with statutory supervisory authority. Director of Radiology
Sousley testified Tanner “was responsible for . . . developing
the rotation” of the Cath Lab staff “to take call[s]” after hours
and on weekends. As is set forth elsewhere in this decision, the
Cath Lab staff all worked the same scheduled daytime 8-hour
shift. Emergency situations, however, arose that required cathe-
terizations to be performed after hours or on weekends. The
Cath Lab staff members rotated being “on-call” to respond to
emergency situations on the weekends and after hours. I am
convinced Tanner’s development and implementation of an on-
call rotation system for after hours and weekends did not in-
volve the independent judgment required of a supervisor.30
The Hospital contends Tanner exercised supervisor authority
when she interacted with cardiologists and made patient sched-
uling decisions based thereon. For Tanner to tell one Cath Lab
staff member to perform a certain function and instruct another
to perform a different function during a procedure where, as
here, all staff members are equally qualified does not require
the exercise of independent judgment. Tanner’s actions in this
regard are nothing more than an exercise of professional expert
judgment, not independent judgment required of one having
statutory supervisory authority.
The Hospital asserts Tanner, as Cath Lab supervisor, evalu-
ated other Cath Lab staff members resulting in whether they
received merit wage increases and/or the amount of such in-
creases. The evidence fails to support the Hospital’s contention
on this point. Director of Radiology Sousley explained that he
and Tanner were, during 1993 and 1994, involved in the
evaluation process of the Cath Lab staff members for merit
wage increases but that he, as the senior person, had the deter-
mining voice in the outcome of the merit pay evaluations. Di-
rector of Radiology Sousley explained that if he and Tanner
disagreed over an evaluation, it was his opinion that prevailed.
Director of Radiology Sousley testified Tanner sought to have
one of the Cath Lab staff member’s merit increase reduced
from 4 percent to 2 percent. Even after Tanner consulted with
Sousley, the increase for that particular Cath Lab staff member,
as well as all other members (including Tanner), remained at 4
percent. The Board, in Ten Broeck Commons, 320 NLRB 806,
813 (1996), noted:

The Board has consistently found that LPNs are super-
visors when they independently perform evaluations of
other employees which lead directly to personnel actions
affecting those employees, such as merit raises. By con-
30 The Board in Providence Hospital, 320 NLRB 717 (1996), noted,
for example, that charge nurses who ask nurses to work over using
“rotational lists” do not exercise the independent judgment required of
a supervisor.
BETHANY MEDICAL CENTER 1105
trast, the Board has consistently declined to find supervi-
sory status when charge nurses perform evaluations that
do not, by themselves, affect other employees' job status.
See Northcrest Nursing Home, supra at 498 fns. 36 & 37
(1993); Bayou Manor Health Center, 311 NLRB 955
(1993).

Where, as here, Tanner's input on Cath Lab staff members merit
wage increase evaluations were reviewed with controlling authority
does not constitute an exercise of statutory supervisory authority on
Tanner’s part.
Director of Radiology Sousley testified that in approximately
January or February, he discussed with Tanner “any authority
she might have to mete out disciplinary action.” He said he did
so because Tanner came to him complaining that a member of
the Cath Lab staff was “belching in the Cath Lab” and “that it
just drove her crazy.” Director of Radiology Sousley testified
he told Tanner:

as I recall in our conversation I brought up the topic that, you
know, if it doesn’t stop there’s always the option of discipli-
nary action, I suppose, if it’s done in front of a patient and
considered unprofessional, and I suppose you would give
them a . . . we have a very defined disciplinary action policy
on the steps in those kinds of behaviors, and she could issue a
counseling session if she chose to deal with that.

The Hospital failed to demonstrate that such disciplinary action
was imposed or recommended by Tanner or, if such was imposed,
that it would, could, or did, have an impact on the employees’ job
status or that future discipline might result against the employee.
Accordingly, I conclude such does not constitute disciplining em-
ployees within the meaning of Section 2(11) of the Act.
In summary, I find the Hospital failed to demonstrate that
Tanner was a supervisor within the meaning of Section 2(11) of
the Act.
H. Accrued Vacation Benefits
It is alleged in the complaint that the Hospital, acting through
Director of Radiology Sousley, by telephone, threatened em-
ployees with loss of accrued vacation benefits in reprisal for the
employees having engaged in protected concerted activities.
As more fully set forth elsewhere in this decision, Director of
Radiology Sousley spoke via telephone with Tanner on March
9 to ascertain if the Cath Lab staff members would return to
work at the Hospital that day. After learning from Tanner that
the Cath Lab staff probably would not return to work that day,
Sousley reminded Tanner the Cath Lab staff members had
worked for the Hospital for many years and told her “they had
accrued vacation benefits and . . . they may be in jeopardy.”
Tanner told Sousley “[d]on't threatened us with our vacation.”
I find Director of Radiology Sousley’s comments constituted
an unlawful threat of the loss of accrued vacation benefits in
reprisal for the Cath Lab staff member's having engaged in
protected concerted activities in violation of Section 8(a)(1) of
the Act. It is quite clear that what Sousley was telling the Cath
Lab staff was that if they persisted in their walkout they ran the
real risk of losing their accrued vacation benefits.
I reject the Hospital's contention Director of Radiology Sou-
sley was simply trying to ensure that the Cath Lab staff mem-
bers received all accrued vacation benefits in the event they
resigned their employment with the Hospital.
I. The March 16 Interviews
It is alleged in the complaint that on or about March 16, Di-
rector of Radiology Sousley and Vice President for Patient Care
Services Maher interrogated employees concerning their pro-
tected concerted activities.
Maher and Sousley interviewed each of the Cath Lab staff
members individually on March 16 regarding their planning
for, and participation in, the March 9 walkout at the Hospital.
Each was asked by Maher what her individual thoughts were at
the time of the walkout, what events lead up to the walkout, and
what conversations were on going at the time. Considered in
the totality of the circumstances, I am convinced Maher’s ques-
tioning violated Section 8(a)(1) of the Act. First, the Cath Lab
staff members had, prior to March 16, both orally and, in writ-
ing, informed the Hospital what their job-related concerns
were. Thus, Maher had no valid reason to make the inquiries
she did. Second, the Hospital, through Director of Radiology
Sousley, had, as discussed elsewhere, threatened the Cath Lab
staff with loss of accrued vacation benefits as a result of their
participation in the protected concerted work stoppage on
March 9. Thus, it appears the questioning was a continuation of
the Hospital's efforts to intimidate and coerce the Cath Lab staff
members for their participation in protected concerted activi-
ties. The lack of justification for the March 16 questioning is
bolstered by the fact the Hospital thereafter unlawfully dis-
charged the Cath Lab staff members and placed restrictions on
their consideration for rehire.
J. Reasons for Discharge
It is alleged in the complaint that on or about March 17, the
Hospital, by Director of Radiology Sousley and Vice President
for Patient Care Services Maher orally and, in writing, told
employees the reason they were being discharged was because
they engaged in protected concerted activities.
At the time of their discharge on March 17, each of the Cath
Lab staff members was told she was being terminated for “pa-
tient abandonment,” “refusal to provide patient care,” and “en-
dangering the life of patients.” It is undisputed that the reason
the Cath Lab staff members refused to provide patient care is
that they were on strike. The action of the Cath Lab staff in
withholding their services was conduct protected by the Act.
Thus, for the Hospital to tell the employees they were being
discharged for engaging in conduct protected by the Act vio-
lates Section 8(a)(1) of the Act, and I so find.31
K. The Rehire Restrictions
It is alleged that the Hospital on March 17 placed written re-
strictions on employees' rehire to discourage its employees
from engaging in protected concerted activity in violation of
Section 8(a)(1) of the Act.
The text of the written restrictions is set forth elsewhere in
this decision and need not be repeated in full here. The restric-
tions placed on the Cath Lab staff members demanded they be
supportive of the Hospital in its administrative decisions. Im-
plicit in such restrictions is that the Cath Lab staff members
could not participate in a walkout in order to change established
Hospital working conditions. Further, the restrictions on rehire
demanded the Cath Lab staff members participate cooperatively

31 I also find the Hospital’s written termination notice containing es-
sentially the same message constitutes unlawful action in violation of
Sec. 8(a)(1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1106
and professionally with Hospital department problem solving
and that anyone being rehired would have to support the deci-
sions of the Hospital with respect to any improvements. Before
being considered for rehire each Cath Lab staff member would
have to agree to comply with all rehire restrictions. To require
that employees who have participated in a protected concerted
walkout waive their right to engage in any such conduct in the
future in order to be considered for rehire violates Section
8(a)(1) of the Act, and I so find.
CONCLUSIONS OF LAW
1. Bethany Medical Center is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By on March 17, 1995, discharging and thereafter failing
and refusing to validly reinstate its employees Janise Selbe,
Mary Zeller, Margaret Fergus, Jackie Hoelting, and Deborah
Tanner, because they engaged in protected concerted activities,
the Hospital engaged in unfair labor practices in violation of
Section 8(a)(1) of the Act.
3. By requiring its employees to waive their right to engage
in protected concerted activities in order to be considered for
rehire, by telling its employees they were being discharged for
engaging in protected concerted activities, by interrogating its
employees concerning their protected concerted activities, and
by threatening its employees with loss of accrued vacation
benefits in reprisal for their having engaged in protected con-
certed activities, the Hospital violated Section 8(a)(1) of the
Act.
4. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
It having been found that the Hospital has engaged in certain
unfair labor practices, it is recommended it be ordered to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the purposes of the Act.
It is recommended the Hospital be required to immediately
offer32 Janise Selbe, Mary Zeller, Margaret Fergus, Jackie
Hoelting, and Deborah Tanner employment in their former jobs
or, if those jobs no longer exist to substantially equivalent posi-
tions without prejudice to their seniority, and other rights and
privileges previously engaged, discharging if necessary, em-
ployees hired for the Cath Lab since March 17 to make room
for them and make them whole for any loss of earnings they
may have suffered due to the discrimination against them, less
net interim earnings as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest thereon computed in accor-
dance with the formula approved in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
I also recommend the Hospital be ordered to post an appro-
priate Notice to Employees copies of which are attached hereto
as “Appendix,” for a period of 60 days in order that employees
may be apprised of their rights under the Act and the Hospital's
obligation to remedy its unfair labor practices.
[Recommended Order omitted from publication.]

32 I leave to compliance whether, under the circumstances Tanner’s
resignation was valid, and what if any impact Fergus’ and Hoelting’s
returning to work under the restrictions noted have on the remedy or-
dered here.