Craig Hospital

National Labor Relations Board - Board Decisions

Aug 10, 1992

308 N.L.R.B. 158 (N.L.R.B. 1992)

158
308 NLRB No. 37
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In agreeing with the judge that the Respondent did not violate
Sec. 8(a)(1) by discharging employee Linda J. Todd, we rely solely
on the judge’s finding that the Respondent had a substantial and le-
gitimate business interest in maintaining the confidentiality of its in-
house grievance procedure and his factual finding that Todd affirma-
tively agreed to keep the proceedings of the grievance committee
confidential and that she intentionally violated that agreement.
1 All dates herein refer to 1991 unless otherwise indicated. 2 Errors in the transcript have been noted and corrected.
Craig Hospital and Linda J. Todd. Case 27–CA–
11780
August 10, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 23, 1991, Administrative Law Judge
Michael D. Stevenson issued the attached decision.
The General Counsel filed exceptions and a supporting
brief and the Respondent filed a response to the Gen-
eral Counsel’s exceptions.
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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Donald E. (Gene) Chavez, Esq. and Chet Blue Sky, Esq., for
the General Counsel.
Kenneth R. Stettner and Kate Raabe, Esqs. (Stettner, Miller
& Cohn), of Denver, Colorado, for the Respondent.
Linda J. Todd, pro se, of Morrison, Colorado.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Denver, Colorado, on October
3 and 4, 1991,1 pursuant to a complaint issued by the Re-
gional Director for the National Labor Relations Board for
Region 27 on July 25, and which is based on a charge filed
by Linda J. Todd (Todd or the Charging Party) on June 27.
The complaint alleges that Craig Hospital (Respondent) has
engaged in certain violations of Section 8(a)(1) of the Na-
tional Labor Relations Act (the Act).
Issue
Whether Respondent discharged Todd because she en-
gaged in concerted protected activities for the purpose of col-
lective bargaining or other mutual aid or protection, and in
order to discourage employees from engaging in such con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Briefs, which have
been carefully considered, were filed on behalf of the Gen-
eral Counsel and Respondent.2
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits it is a corporation operating a rehabili-
tative hospital in Englewood, Colorado, and further admits
that annually, its gross volume of business exceeds $250,000
and that annually, it purchases and receives goods, material
and services valued in excess of $50,000 which originated
from points and places outside the State of Colorado. Ac-
cordingly, it admits, and I find, that it is a health care institu-
tion within the meaning of Section 2(14) of the Act and en-
gaged in commerce and in an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
1. Preliminary statement
On January 22, after almost 11 years of employment,
Ruby Gardner, RN, a statutory supervisor, was terminated by
Respondent. Shortly after her termination, Gardner filed an
in-house grievance protesting her discharge. Four persons
were appointed to the grievance committee designated to in-
vestigate and to make findings on the grievance. One of
these persons was Linda Todd, RN, who had worked for Re-
spondent for almost 22 years. On February 22, Todd was ter-
minated for certain activities committed while serving on
Gardner’s grievance committee. After Todd was terminated,
a replacement was appointed to take her place on the griev-
ance committee which for all intents and purposes began its
work anew. To protest her termination, Todd then filed her
own grievance which was heard by a different four-person
committee. Ultimately both grievances were denied and both
terminations were upheld (G.C. Exh. 5).
Gardner subsequently filed a complaint now pending be-
fore the U.S. Equal Employment Opportunity Commission,
alleging both sex and racial discrimination. Although Gard-
ner testified in the instant case, both sides agree that the mer-
its of her discharge are not before me. Yet because Gardner’s
discharge is intertwined with that of Todd, certain back-
ground on both, as well as on the employer and its agents,
is essential.
2. The employer
Respondent, a nonunion employer, operates a not-for-profit
hospital specializing in the medical and rehabilitation treat-
ment of traumatic spinal cord and brain injuries. Containing
60 beds, the hospital employs about 500 full- and part-time
employees of whom 40 to 50 are registered nurses.
159CRAIG HOSPITAL
Respondent’s president is Dennis O’Malley who did not
testify. Vice president is Michael Scott Manley, Ed.D., a
lengthy witness at hearing. Called first by the General Coun-
sel as an adverse witness and then by Respondent, Manley
supervises the general operations of the hospital and is re-
sponsible to O’Malley. Prior to assuming his current duties
in 1980, Manley had served Respondent for 10 years as di-
rector of counseling and psychology.
3. The grievance procedure
Respondent maintains an in-house grievance procedure
which seeks to resolve employee complaints in an informal
nonadversarial manner (G.C. Exhs. 2, 6). Where a dispute
exists, an employee and his/her manager are first expected to
attempt to resolve the matter. If unsuccessful, the employee
and the department director must seek to resolve the matter.
Thereafter, the employee puts the issue into writing including
surrounding details such as expectations for relief, and gives
the written grievance to the department director who must
prepare a written response. If the matter is still not resolved,
a four-person grievance committee is formed. Manley is al-
ways on the grievance committee and is always chairman un-
less the grievance is against him, or he otherwise excuses
himself. The director of human resources is also usually a
member. The other two members are appointed as follows:
an employee named by the grievant, and a nonrelated depart-
ment director selected by the chair. The grievant’s represent-
atives is expected to be sensitive, indeed sympathetic to the
grievant’s position, yet on the other hand cooperate with the
other three members of the committee to reach a fair and eq-
uitable result. Nonemployees of the hospital play no role in
the process and no legal counsel is permitted.
The committee is described as not legal or adversarial in
nature; rather it seeks to collect and review relevant facts and
information by interviewing witnesses, by examining docu-
ments, and by discussions among its members. When the
committee finishes its work, it is empowered only to make
recommendations to the grievant and to his/her department
director. On one occasion in recent years, the committee
voted 3 to 1 on its recommendation. In all other cases, the
grievance committee reached a unanimous decision as to its
findings. Thereafter, if the grievant remains dissatisfied,
he/she has a right to appeal to O’Malley or to his designee,
which is the final step in the process. Since 1985, there have
been eight grievances, of which two were filed by an em-
ployee against Todd, and one was filed by an employee
against Gardner. Four grievances, two from Gardner and two
from Todd, reached the final stage involving appeals to
O’Malley and in all four cases, the committee’s rec-
ommendations were upheld.
4. Ruby Gardner
In May 1988, then Director of Nursing Jan Ferguson left
Respondent’s employ. According to Todd, Ferguson had
been forced to resign for unspecific reasons, by O’Malley
(Tr. 136, 190). After a selection process involving several
different candidates to replace Ferguson, Carol Dannen, RN,
M.S., was hired in February 1989. Apparently Ferguson, who
did not testify, was liked by most employees of the nursing
department, while Dannen, who did testify for Respondent,
was disliked and feared by some members of the nursing de-
partment. Resistance to Dannen’s changes in substance and
style was led by Gardner.
Before her termination, Gardner had been the staffing
nurse manager responsible for scheduling of all nursing de-
partment employees on a daily basis, including holidays and
vacations. In addition, Gardner hired, fired, disciplined, and
counseled the same employees. Before Dannen’s hiring,
Gardner had been supervised by a number of other persons;
all found her performance satisfactory and in some cases ex-
ceptional. During 4 months under Dannen’s supervision, be-
tween September 1990 to January, she was written up about
six times by Dannen for various infractions.
On September 30, 1990, Gardner filed the first of two
grievances against Dannen. Gardner requested Betty
Vielhauer, RN, a nonsupervisor in urology, to be her rep-
resentative on the grievance committee. According to Gard-
ner, Vielhauer, who did not testify, was not permitted by
other committee members to represent Gardner’s interests.
Accordingly, after losing this grievance, Gardner considered
carefully who would best represent her on Gardner’s second
grievance committee formed in response to Gardner’s griev-
ance of January 24, protesting her January 22 termination by
Dannen. The person Gardner chose was Linda Todd.
5. Linda Todd
In 1985, Todd had the first of two grievances filed against
her. At this time, Todd was director of Respondent’s depart-
ment of education, with a staff of eight. A grievance commit-
tee was impaneled and ultimately upheld the grievance and
ruled against Todd.
In 1986, for reasons that do not appear in the record, she
was demoted from her job as a statutory supervisor to a non-
supervisory position as nursing patient education specialist.
In 1986, after her demotion, Todd filed two grievances,
one against the director of personnel, seeking her discharge
and the other against O’Malley, seeking his removal as su-
pervisor over department heads. For technical reason, neither
of these two grievances was ever processed.
In January, Todd filed her third grievance challenging her
1986 demotion and the more recent decision of Dannen to
exclude Todd from the regular nurse manager’s meeting. The
grievance committee decided 3 to 1 with Todd’s representa-
tive dissenting, not to reinstate her position back to manage-
ment.
Finally, after she was terminated, Todd filed her fourth
grievance challenging her discharge. This time Manley did
not serve on the grievance committee as he had terminated
Todd. Todd failed to name a representative so O’Malley ap-
pointed three committee members and the chair, Ronald
Branish, vice president for finance, apparently appointed the
fourth member (R. Exh. 1). In pertinent part, the committee
found with respect to Todd’s discharge as follows:
The ultimate question to this grievance committee was
whether or not the suspension and subsequent termi-
nation of Linda Todd was appropriate in light of the
above circumstances and whether or not Linda should
be reinstated to her former position of Nursing Patient
Education Specialist. It is this committee’s belief that
the accusations made against Linda Todd by Scott
Manley have been substantiated beyond any reasonable
doubt to this committee and we believe that such viola-
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions of breach of confidentiality and an insubordinate,
unprofessional and uncooperative behavior could be
cause for a suspension and/or termination of an em-
ployee. Whether Scott Manley did or should have con-
sidered any extenuating circumstances in his ultimate
decision of whether or not to terminate Linda is an
issue that this committee did not address. We believe
with the given facts uncovered in this fact-finding proc-
ess that his ultimate decision to terminate her became
an individual management choice; one which we be-
lieve he was authorized to make. [G.C. Exh. 9.]
6. Additional facts and circumstances
Prior to Dannen’s employment, O’Malley distributed her
resume and cover letter to certain employees in the nursing
department including Gardner and Todd. Dannen’s cover let-
ter reads as follows:
My nursing administration experience may be of in-
terest as you name a Director of Nursing Service.
I am bringing to a close a three year experience in
a 175 bed regional referral center in a state of growth
relative to technology and specialization. The enclosed
resume highlights strategies directed toward ineffective
first line managers, the need to downsize, a critical RN
shortage, and the cultivation of a consumer-oriented
mindset among employees.
I have a strong track record in the management of
human and fiscal resources and have communicated ef-
fectively at all organizational levels. I am seeking an
administrative position in a larger and geographically
less isolated setting. I am able to relocate.
I would welcome the opportunity to learn of your or-
ganization’s goals and objectives and to explore how I
might contribute to their achievement. [G.C. Exh. 9.]
According to Todd, the alleged forcing out of Ferguson, and
the ultimate hiring of Dannen alarmed some staff members
of the nursing department and led them to develop a percep-
tion that O’Malley had hired Dannen as part of a scheme to
reduce the nursing staff with emphasis on forcing out senior
employees. Todd noted the second paragraph of Dannen’s
cover letter recited above as evidence of her future plans.
Gradually as different senior employees left, Todd and Gard-
ner came to believe that a ‘‘hit list’’ existed of those nursing
employees targeted for removal, either through harassment or
contrived charges.
On June 26, 1990, Todd met with O’Malley and told him
that Dannen was out of control and was using two subordi-
nate managers to devastate people. As a result, Todd was
concerned about staff morale and about the persons allegedly
being forced out. Todd mentioned the names of Dorothy
Richardson and Bonnie Maki as examples of long-term em-
ployees who had been forced out by Dannen. On September
10, 1990, Todd again visited with O’Malley, beginning the
conversation by saying, ‘‘Mr. O’Malley, I’m here to talk
about Ruby Gardner.’’ As Todd tried to explain to O’Malley
that Gardner was afraid that Dannen was trying to get rid of
her, O’Malley threw back his hands and said, ‘‘I don’t want
to hear it.’’ When Todd persisted, O’Malley got up from his
desk, hit the desk with his fist and said, ‘‘Linda, you know
there’s not a hit list.’’ After O’Malley finally agreed to listen
to her, Todd purported to quote unnamed staff persons who
believed a hit list existed; Todd added that the staff thought
the administration was behind it, and that the staff was con-
sidering filing lawsuits or contacting a local media person in
Denver to vocalize their complaints. Finally, O’Malley again
denied all of Todd’s charges and told her never to come to
his office again with accusations, only if she had solutions.
On September 25, 1990, about a year and a half after
Dannen’s arrival in February 1989, Gardner hosted a meeting
at her home attended by four employees including Todd,
sympathetic to Gardner’s pending grievance against Dannen.
According to Gardner, the conversation expanded beyond
Gardner’s immediate problems to a discussion of the
attendee’s concerns generally of being separated from their
jobs by Dannen. Todd discussed a counterstrategy of banding
together to oppose Dannen with a united front, thereby creat-
ing a support group for each other. Persons in attendance in-
cluded both supervisors and employees.
In early October, Gardner and Todd together with about
four or five other employees and supervisors held a second
meeting at lunchtime in Respondent’s cafeteria. Similar dis-
cussions to those in the first meeting occurred.
Meanwhile Dannen was not unaware of the perceptions of
some employees in the nursing department. On October 29,
1990, she held her own meeting at the hospital attended by
about seven or eight persons including all or most of the per-
sons who had been at the prior meetings organized by Gard-
ner. There is some conflict in the accounts of Gardner and
Dannen as to what the latter said. All agree that Dannen dis-
tributed handouts to the persons in attendance. They read as
follows:
YOU CAN EXPECT. . .
1. YOUR NO. ONE PRIORITY
TO GIVE:
Your time
Your attention
Your best effort
TO Your job responsibilities
2. DIFFERENCES
You can expect that I will welcome differences of
opinion during brainstorming and discussion phases.
You can expect that when discussion is closed and a
decision is made, I will hold you accountable to lay
your differences aside and give the effort your whole-
hearted support and cooperation.
3. NURSING AS A SELF-GOVERNED DISCIPLINE
You can expect that I will continue to act upon my
authority and responsibility to organize and direct nurs-
ing service, and that I will be accountable to the CEO
and governing board.
You can expect that I will address attempts to under-
mine me and I will hold you accountable to support
nursing service authority and responsibility within the
hospital organization.
161CRAIG HOSPITAL
4. MEETINGS
You can expect that the total group will routinely
meet monthly.
You can expect that there will be smaller subgroup
meetings and that you will not be a part of every meet-
ing.
5. DIRECTION
You can expect that I will be continually assessing
where we need to go and how we can get there.
You can expect that I will seek out those people who
demonstrate:
a. Understanding and support of ideas I have pur-
sued to date.
b. Attentiveness and creativity toward ideas; think
about them; play with them; look at them from dif-
ferent angles; massage them into different shapes.
c. Evidenced critical thinking and offer insightful
and valuable input.
You can expect that you will have information about
goals and objectives to the extent you need to know.
6. REORGANIZATION
You can expect that I will continue to decentralize
decision-making to the floor managers.
You can expect that I will ask more of those roles
that are ‘‘support’’ (rather than line); that you will
function as a resource and support to the deliver of pa-
tient services.
You can expect that I will continue to assess and
evaluate our nursing organization and will reorganize
further as I identify opportunities to improve how we
operate and function. [G.C. Exh. 8.]
According to Dannen, she asked the persons present to ‘‘lay
down their swords’’ and to come together for the good of
the hospital and its patients. Dannen also discussed the al-
leged attempts by some staff persons to undermine her by
complaining about her to the Colorado Hospital Association,
by contacting an attorney for legal advice, by filing un-
founded grievances and complaints against her with
O’Malley and by persuading a potential employee recruited
by Dannen not to take the job.
Apparently the visits of Todd to O’Malley had been re-
ported to Dannen, thus prompting her references to them
without specifically naming Todd. When Dannen finished her
remarks, she told the assembled employees to keep the con-
tents of the handouts and their remarks confidential.
7. Todd’s activities on the Gardner grievance committee
Prior to the first meeting of the grievance committee on
February 11, Todd contacted four of Gardner’s former super-
visors and asked them to list four positive and four negative
qualities they perceived for Gardner. Then Todd prepared a
four-page document she titled, ‘‘10 Years/10 Months Ratio
of Carol Dannen’s 10 Month Retaliation Ending with 5 Ter-
mination Reasons to Ruby Gardner’s 10 Year Job Perform-
ance Record’’ (G.C. Exh. 7). The document purported to
demonstrate Dannen’s bias and prejudice against Gardner
when compared to Gardner’s treatment by her other former
supervisors.
When Todd attempted to distribute the above-described
document to other committee members, Manley and the oth-
ers became concerned that Todd did not understand her prop-
er role as a member of the committee. They explained to her
that while she could function as Gardner’s representative, she
must do so in a nonadversarial way and keep an open mind.
After discussion, the committee adopted ground rules that
only the committee would interview witnesses, that all dis-
cussions of the committee would remain confidential, and
that Todd would have no contact with any potential witness,
even with Gardner, without the knowledge or consent of the
committee. Manley was designated to contact witnesses only
for the purpose of scheduling, but was to have no substantive
discussions with any person outside the presence of commit-
tee members. I find that Todd, like other committee mem-
bers, understood and expressly agreed to these conditions.
This was the testimony of Manley, of Dr. Whiteneck and the
stipulated testimony of Kevin McVeigh.
On February 12, the grievance committee convened with
all four members present. One witness called before the com-
mittee was Sue Briggs, who did not testify in the instant
case. Todd began her questioning of Briggs by showing her
copies of two written reprimands given to Gardner by
Dannen (R. Exhs. 2, 3). On these documents, Todd had
hand-written numerous annotations or comments apparently
designed to further Gardner’s case. Then Todd asked Briggs
how she would feel, if she had been written up by Dannen.
Todd attempted to ask additional leading questions which
seemed to the committee to be statements of Todd’s opin-
ions, and again Manley and the other committee members
objected. The witness was excused and a lengthy discussion
ensued as to the proper form of questions which committee
members were to ask witnesses.
When Briggs returned, questioning resumed. There is
some insignificant dispute as to what was asked and by
whom. Todd testified that she had been intimidated by other
committee members into abandoning her prior line of ques-
tioning. I find only that if Todd abandoned her line of ques-
tioning, she did so for reasons other than a feeling of intimi-
dation by the committee.
The next meeting of the grievance committee was sched-
uled for February 14. Before the committee convened, Todd
drafted a letter to O’Malley, the final appeal authority for
Gardner’s grievance, with copies designated for other com-
mittee members and for certain employees, some of whom
had been witnesses or were potential witnesses in the Gard-
ner’s grievance. After typing the letter, and preparing the
requisite number of copies, Todd personally delivered the let-
ters to the addresses or left copies with their secretaries or
on their desks. The letter reads as follows:
Dear Denny:
I deeply feel the need to apologize to you and other
members of the Craig Hospital community. I have
lacked courage and wisdom to foresee all the things
that have happened and are happening. Only as I have
been privileged to serve as Ruby’s representative, after
Carol Dannen fired her, have they come to light.
I want to, first of all, say I am sorry that I allowed
you to holler and pound on your desk and intimidate
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
me when I came to your office September 10, 1990 to
make you aware that Carol Dannen was mistreating
Ruby Gardner. I feel badly that I took no further action
until now, as I serve as her representative on her sec-
ond grievance.
I am now convinced that you hired Carol Dannen to
get rid of nurses like Ruby, but I never realized until
now the pain that you caused. As her representative I
have thoroughly gone through her personnel file. She
has ten years of service, and her record is impeccable
until Carol Dannen began to intimidate, harass, and de-
moralize her. I have never been close to Ruby but her
personnel record made me glow inside, because I have
had the privilege of working with her for these years.
Denny, why all the cruelty? You know I went to the
Colorado Nurses Association and talked with Jacqueline
Harris. Remember I told you? At that time she told me
that if a new Director of Nursing wants to terminate ex-
isting staff and hire her own there is no problem in
doing so. But why beat down a beautiful person thor-
oughly trained in nursing and management skills until
she begs you to let her stay as a staff nurse because
of her love and loyalty to her hospital? You have de-
nied her this. (See correspondence to Ruby Gardner
from Dennis O’Malley dated January 28, 1991.) For-
give me, Denny, for being afraid of you and failing her.
I now want to put my job, time, resources, and energy
on the line and do all I can to correct the horrible injus-
tice taking place in an institution in which we all hope
to find love, care, and mercy.
Please, Denny, apologize for me to Scott Manley. I
seem to lack the verbal skills to compete with him.
Apologize for the lack of courage I showed by letting
him call Betty Vielhauer into his office to check if she
said, ‘‘I felt there were three against one . . . . I felt
there was no way to fight back . . . . I felt like a rape
victim.’’ These are the statements I quoted to you in
my letter dated February 11, 1991. And, then Scott did
not have the decency to apologize to her. I will person-
ally apologize to Scott today when Ruby’s grievance
committee meets and inform him that never again will
I allow him to intimidate me. Kevin and Gale may be
afraid of him as their supervisor, but I have grown tired
of Scott’s over verbalizing and will not again be intimi-
dated. Are we not all peers in a grievance committee?
Correct me if I am wrong.
I will apologize to Sue Briggs for letting the ‘‘boys’’
harass me, so that I stopped asking Sue relevant ques-
tions about Ruby’s performance. After asking Sue to
leave the grievance committee room, I was told, for 45
minutes, I could not question her. To my shame I must
confess this.
Apologize for me also to Carol Dannen, for at least
until now, I feared her as I saw Ruby cry in my office.
I understand she cried in many offices including yours.
Why couldn’t anyone have shown her compassion?
I now view Carol as a despicable person. Before she
was hired many of us fought with you to have her
placed on the Board of Directors, only to have her
write up Ruby 8 times in 10 months when Ruby had
not been written up once in 10 previous years under 4
different supervisors.
Before Carol was hired I asked you during one of
our meetings why she was leaving Alpena General Hos-
pital, and you said, ‘‘She has won the battle but lost
the war.’’ I still don’t know what this means. I only
know that at Craig Hospital she is losing both the battle
and also the war. Let me explain. On the one hand, she
gives lip service to empower nurses. On the other hand
she singles out a quality nurse like Ruby and destroys
her professionally and personally. Imagine Ruby, a dig-
nified human being, a highly skilled nurse, crying like
a baby in our offices. Never again will I let a fellow
nurse come to my office and cry out her pain and fear
and not respond. Carol Dannen only quoted Ruby and
did not hear or feel Ruby’s pain when she quoted her
in the fifth write-up dated November 6, 1990: ‘‘You
don’t want anyone with a brain. You assume the worst
in people; you assume they come to work just to slide
by. You just want people who you can control and ma-
nipulate.’’
Denny, thanks for hearing me on this, and in closing
I am certain that before the grievance committee closes
Scott will dictate to us that Ruby can’t be reinstated as
a staff nurse. But, please, reinstate her. Did you know
that after Carol Dannen’s first searing write-up dated
March 29, 1990, Ruby wrote in her performance ap-
praisal dated July 5, 1990:
‘‘I remain as ever a faithful employee of the Nursing
Department at this hospital.
Ruby H. Gardner RN’’
Sincerely,
/s/ Linda Todd
Linda Todd, R.N.
cc: Chairman of the Craig Hospital Board of Directors
S. Manley
K. McVeigh
G. Whiteneck
C. Dannen
R. Pruett
S. Briggs
R. Gardner
B. Vielhauer
Nursing Management Team Members:
D. Reinhard
P. Allison
L. Schaetzle
P. Levinson
A. Herron
M. Armstrong
Personnel file of L. Todd
[G.C. Exh. 4.]
When Manley became aware of this letter, he asked
Whiteneck to give his written reaction to it. It suffices to say
that Whiteneck disapproved of Todd’s letter saying in his
opening paragraph,
This morning, I received a copy of a letter from Linda
Todd to Dennis O’Malley dated February 14, 1991.
This letter raises several questions in my mind with re-
gard to Linda’s comments about the grievance process,
163CRAIG HOSPITAL
the confidentiality of the present grievance procedure
involving Ruby Gardner and Carol Dannen, and the po-
tential impact on that grievance process. [R. Exh. 5.]
Shortly after receiving the letter, Manley met with Todd
and said he was suspending her for 10 days pending further
investigation for breach of ground rules regarding confiden-
tiality.
On February 22, Todd met with Manley and McVeigh
who discussed with Todd her prior actions on the committee
as summarized above. Manley then asked Todd if she had
anything to say. Todd replied, ‘‘I don’t agree with you.’’
Then Manley told Todd she was terminated. Later that day
Manley sent Todd a letter which reads as follows:
Dear Linda:
Re: Meeting on February 22, 1991
As indicated to you in our meeting today, I am pro-
viding you with a summary of the meeting. At the be-
ginning of the meeting, I explained the purpose of the
meeting was to review the process I utilized in gather-
ing information and reviewing documentation related to
your suspension on February 14, 1991.
At the time I met with you on February 14, I indi-
cated I was suspending you for a period up to 10 work-
ing days due to distribution of confidential information
related to Ruby Gardner’s grievance. Specifically, I’m
referring to the letter you wrote to Denny O’Malley and
distributed to staff members who were not directly in-
volved in Ruby Gardner’s grievance.
To assist in my review process, I examined informa-
tion I distributed to the grievance committee: notes that
I prepared as chairperson explaining the purpose and
process of the grievance committee and written docu-
mentation which you provided to the committee and
others. Additionally, after receiving my copy of the let-
ter you sent to Denny O’Malley, I asked Kevin
McVeigh and Gale Whiteneck to comment on your let-
ter in terms of the conduct of the grievance process and
the impact, if any, of the content and distribution of
your letter in terms of continuing with the grievance
process.
As you aware, the committee discussed at length the
need for the information examined in the grievance
committee to remain confidential. Information was not
to be discussed or shared with any other individuals
until the committee agreed upon what information
should be shared and had the opportunity at the conclu-
sion of the process to formulate specific recommenda-
tions.
At the first committee meeting on February 11,
1991, you advised the committee that you had already
contacted four previous supervisors of Ruby Gardner
for the purpose of exploring with them their impres-
sions of her as an employee. The committee discussed
this issue at length and agreed it was inappropriate for
any individual committee member to contact another in-
dividual or employee without the consent of the com-
mittee. The only exception to this process was the com-
mittee’s authorization for me to advise the employees
the committee identified to be interviewed that the
committee wanted to meet with them to review relevant
information related to the grievance process. I was also
asked to contact Carol Dannen and Ruby Gardner to in-
form them of individuals who would be interviewed by
the committee and when the committee would be desir-
ous of meeting with them. Everyone on the committee
including yourself agreed to this process.
The committee next reviewed the purpose and proc-
ess of the grievance committee. A lengthy discussion
took place on the importance of maintaining confiden-
tiality throughout the process. The committee agreed
that we were free to talk among ourselves, but members
of the committee would not share information from the
grievance process with anyone else unless so authorized
by the committee.
At that point, you indicated a concern that you want-
ed to be able to talk with Ruby Gardner throughout the
process since you were her employee representative.
The committee discussed this issue at length. At the
completion of the discussion, everyone agreed not to
discuss or share information with anyone unless so di-
rected by the committee. The purpose was to avoid
tainting or otherwise compromising the grievance proc-
ess.
On February 14, 1991, you submitted a letter to
Denny O’Malley which contained confidential informa-
tion related specifically to the grievance committee and
the grievance process. The letter indicated distribution
to the following individuals: Chairman of the Craig
Hospital Board of Directors, Scott Manley, Kevin
McVeigh, Gale Whiteneck, Carol Dannen, Rebecca
Pruett, Sue Briggs, Ruby Gardner, Betty Vielhauer,
Diane Reinhard, Peggy Allison, Lois Schaetzle, Phyllis
Levinson, Ann Herron, Maureen Armstrong and your
personnel file.
The content of the letter and the distribution to the
various individuals were in direct violation of the
agreement by all members of the committee for main-
taining confidentiality throughout the process. At the
time I suspended you, I asked you the intent of the let-
ter and why you chose to violate our agreement on con-
fidentiality. You indicated the intent was to apologize
to me for allowing me to intimidate you and you felt
it was appropriate to distribute the letter since we were
in the middle of the grievance process.
After reviewing all of the materials and documenta-
tion, I find that your behavior and conduct throughout
the process was uncooperative and unprofessional.
Linda, your actions were insubordinate and in direct
violation of the agreement by all members of the com-
mittee for maintaining confidentiality.
At the conclusion of the meeting, I asked you if you
had any comments regarding my findings. You indi-
cated you disagreed with my findings and that they re-
flected my point of view.
Based upon my review of information received dur-
ing your suspension and the additional information you
provided at our meeting, I informed you of my decision
to terminate your employment at Craig Hospital effec-
tive today, February 22, 1991. My reasons for termi-
nation include the following:
1. Direct violation of the agreement by all mem-
bers of the committee for maintaining confidentiality.
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In light of the disposition of this case, I find without discussion
that deferral of this case is not appropriate under the Board’s deci-
sion in Olin Corp., 268 NLRB 573 (1984).
4 Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985).
5 Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers II).
6 YMCA of Pikes Peak Region, 291 NLRB 998 (1988).
7 As to the element of knowledge, I find that Manley was not spe-
cifically aware of the meetings hosted by Gardner. On the other
hand, Manley, O’Malley, and certainly Dannen were quite aware of
the group activities by Gardner, Todd and others to protest their con-
cerns. (Witness the October 29, 1990 meeting called by Dannen.)
Thus, if Todd were engaging in concerted activities when she joined
the grievance committee, Respondent was aware of them. Thomas
Steel Co., 281 NLRB 389, 393–394 fn. 2 (1986).
2. Insubordination
3. Unprofessional and uncooperative behavior
During the meeting, we also discussed your filing of
a grievance against me for suspending you. I further
shared I was denying your request for resolution of the
suspension grievance. You indicated you also planned
to file a grievance against me for terminating your em-
ployment. I indicated we would deal with your suspen-
sion and termination grievances concurrently.
I indicated you would have five working days from
the receipt of my letter to submit a grievance related to
your suspension and termination.
[G.C. Exh. 3.]
B. Analysis and Conclusions3
1. Were Todd’s activities on the Gardner grievance
committee concerted and protected?
In order to prove a violation of Section 8(a)(1), the Gen-
eral Counsel must establish that (1) the employee’s activity
was concerted; (2) the employer was aware of its concerted
nature; (3) the activity was protected by the Act; and (4) the
discharge or other adverse personnel action was motivated by
the protected activity. NLRB v. Oakes Machine Corp., 897
F.2d 84, 88 (2d Cir. 1990).
a. Concerted activities
In Meyers Industries, 268 NLRB 493, 497 (1984) (Meyers
I), the Board set forth the relevant rule:
In general, to find an employee’s activity to be
‘‘concerted,’’ 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.
On remand from the United States Court of Appeals for the
District of Columbia Circuit,4 the Board further explained:
We reiterate, our definition of concerted activity in
Meyers I encompasses those circumstances where indi-
vidual employees seek to initiate or to induce or to pre-
pare for group action, as well as individual employees
bringing truly group complaints to the attention of man-
agement.5
See also NLRB v. City Disposal Systems, 465 U.S. 822
(1984).
The record in this case shows a concern among certain
employees in the nursing department that their tenure might
be affected by Dannen. In June and September 1990, about
a year and one-half after Dannen’s employment, Todd met
with O’Malley to complain about Dannen, particularly as im-
pacting on Gardner. In September and October of the same
year, employee concern, including both supervisors and em-
ployees, coalesced in two or more meetings held at Gard-
ner’s home or in the hospital cafeteria for the purpose of for-
mulating a group counterstrategy to the alleged objective of
Respondent’s management to reduce staff. It was in the con-
text of this background that Todd became Gardner’s rep-
resentative on the grievance committee.
Thus, up to the time of her appointment to the grievance
committee, the record shows that Todd was engaged in con-
certed activities.6 It is unnecessary to determine whether
Todd’s concerted activities continued when she voluntarily
assumed committee membership, because even if they did, I
find Todd’s activities on the committee were not protected.7
b. Protected activities
In NLRB v. Oakes Machine Corp., supra, 897 F.2d at 89,
the court stated,
Employee action seeking to influence the identity of
management hierarchy is normally unprotected activity
because it lies outside the sphere of legitimate em-
ployee interest. In a narrow category of cases, however,
concerted activity to protest the discharge of a super-
visor (citations omitted), or to effect the discharge or
replacement of a supervisor (citations omitted) may be
’protected’ provided the identity of the supervisor is di-
rectly related to terms and conditions of employment.
Todd’s activities on the grievance committee narrowly
were aimed at rescinding Gardner’s discharge. To achieve
this goal, she had to discredit Dannen and possibly affect
Dannen’s tenure. Accordingly, I turn back to NLRB v. Oakes
Machine Corp., supra at 89, for further guidance in resolving
what the court describes as a factual inquiry, based on the
totality of the circumstances, as to whether Todd’s activities
regarding Gardner and Dannen are activities directly related
to terms and conditions of employment. To answer this ques-
tion, I am instructed by the court to examine several factors
including the reasonableness of the means of protest. I begin
the inquiry with Section 7 of the Act.
Section 7 of the NLRA provides that to be protected, an
activity must be for the purpose of collective bargaining or
other mutual aid or protection. 29 U.S.C. § 157. The ‘‘mu-
tual aid or protection’’ clause of Section 7 protects employ-
ees who ‘‘seek to improve terms and conditions of employ-
ment or otherwise improve their lot as employees through
channels outside the immediate employee-employer relation-
ship.’’ Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).
Contrary to Todd’s testimony, I find that after she accept-
ed appointment to the Gardner grievance committee, Todd
affirmatively agreed to conduct herself on the committee in
a certain manner, then intentionally acted contrary to that
agreement. To determine whether Todd lost the protection of
the Act at this point, I first look to the Board’s decision in
Kinder-Care Learning Centers, 299 NLRB 1171 (1990). In
that case, Respondent maintained a ‘‘parent communica-
165CRAIG HOSPITAL
8 The cases of NLRB v. Knuth Bros., Inc., 537 F.2d 950, 955–957
(7th Cir. 1978); NLRB v. Brookshire Grocery Co., 919 F.2d 359,
362–366 (5th Cir. 1990); and New River Industries v. NLRB, 945
F.2d 1290 (4th Cir. 1991), while tending to support my conclusion
herein, are cases which refused to enforce Board Orders. Since I am
bound by Board precedent, I have not relied on these cases.
9 The fact that Respondent had no specific rule against revealing
confidential material from the grievance committee does not support
General Counsel’s case because Manley had a right to expect Todd
to keep her promise not to reveal confidential information. Bell Fed-
eral Savings & Loan Assn., 214 NLRB 75 (1974).
tions’’ rule in its employee handbook or as a corporate pol-
icy barring employees from discussing terms and conditions
of employment with their colleagues and with third parties.
The Board stated
Under Section 7 of the Act, employees have the right
to engage in activity for their ‘‘mutual aid or protec-
tion,’’ including communicating regarding their terms
and conditions of employment.3 It is well established
that employees do not lose the protection of the Act if
their communications are related to an ongoing labor
dispute and are not so disloyal, reckless, or maliciously
untrue4 as to constitute, for example, ‘‘a disparagement
or vilification of the employer’s product or reputa-
tion.’’5 For example, the Board has found employees’
communications about their working conditions to be
protected when directed to other employees,6 . . .
3 See Eastex, Inc. v. NLRB, 437 U.S. 556 (1978).
4 Cf. NLRB v. Electrical Workers IBEW Local 1229 (Jefferson
Standard), 346 U.S. 464 (1953).
5 See Sahara Datsun, 278 NLRB 1044, 1046 (1986), enfd. 811 F.2d
1317 (9th Cir. 1987), quoting Allied Aviation Service Co. of New Jer-
sey, 248 NLRB 229, 230 (1980), enfd. 636 F.2d 12210 (3d Cir.1980).
6 In addition to Waco, Inc., 273 NLRB 746 (1984), cited by the
judge, see also Heck’s, Inc., 293 NLRB No. 132, slip op. at 23 (May
18, 1989), and Scientific-Atlanta, Inc., 278 NLRB 622, 625 (1986).
General Counsel asserts that the instant case is like many
others decided by the Board, [including Kinder-Care Learn-
ing Center], all of which held that an employer cannot pro-
hibit employee discussion of subjects concerning working
conditions (Br. 14). Many of these cases seem to involve
prohibitions on discussion of wages. See, e.g., Highland
Superstores, 301 NLRB 199 (1991), and the cases cited
therein.
For me, however, the case which is most like the present
case is International Business Machines, 265 NLRB 638
(1982). In that case the Board held that, although employee
rights were adversely affected by the company’s policy pro-
hibiting employees from distributing wage data, which it had
compiled and classified as confidential, that policy was not
unlawful. The issue was whether the Company had substan-
tial and legitimate business interests which supported its pol-
icy and which outweighed the employees’ interests in mak-
ing use of the data compiled by the company. The Board
also noted that employees were not precluded by the com-
pany from discussing their own wages with each other, but
only from having access to or distributing the information
which the company had compiled for its own internal use.
The Board concluded that the company’s business justifica-
tion outweighed the employees’ interest in having free access
to the disputed wage data.
Even more to the point is the case of American Arbitration
Assn., 233 NLRB 71 (1971). There, a person employed by
the Respondent as a ‘‘tribunal administrator’’ violated Re-
spondent’s policy of confidentiality by sending a letter and
questionnaire dealing with the wearing of jeans to the office
as a protest of Respondent’s dress code to a list of the Re-
spondent’s lawyers and arbitrators maintained in confidence
by the Respondent. In affirming dismissal of the complaint,
the Board noted the tone and content of the letter and at-
tached questionnaire and found that the discharged employee
had committed disloyalty to and disparagement of Respond-
ent’s judgment and capacity to effectively perform its work.
Cf. W. R. Grace Co., 240 NLRB 813 (1979); Bullock’s, 251
NLRB 425 (1980).8
In the instant case, I find that Todd violated her agreement
with other members of the grievance committee regarding
confidentiality by sending the February 14 letter to O’Malley
which I have recited in the facts above (G.C. Exh. 4). Un-
doubtedly receipt of this letter by O’Malley and the other ad-
dressees did much to undermine the entire grievance process
by prejudicing or perhaps intimidating potential witnesses.
Moreover, the content of the letters would not reasonably be
limited to the 16 employee-addressees. Many or all if the re-
cipients would in all likelihood discuss the contents of the
letter with other employees undoubtedly adding their own
embellishments. I find that Respondent had a substantial and
legitimate business interest in supporting its policy of con-
fidentiality of the in-house grievance system and this policy
outweighed the interests of Todd and other employees to
make use of the information obtained while Todd served on
the committee. I am particularly persuaded by the fact that
Todd agreed to the procedure, thereby waiving any Section
7 rights Todd may have had to disseminate or discuss the in-
ternal proceedings.
Based on the above discussion, I find that Todd’s actions
make her unfit for further service and recommend that this
case be dismissed.9
2. General Counsel’s prima facie case
As alternative findings, if it be found on appeal that Gen-
eral Counsel has presented a prima facie case that Todd’s
discharge was motivated in part by her concerted protected
activities, I find that Respondent has carried its burden to
show under Wright Line, 251 NLRB 1083 (1980), approved
by the Supreme Court in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983), that Todd’s discharge
would have occurred in any event and for valid reasons. See
D & W Food Centers, 305 NLRB 553 (1991). As support
for this conclusion, I note the facts and circumstances of this
case previously discussed. In addition, I note that all other
persons who have previously served on Respondent’s past
grievance committees are either still employed by Respond-
ent or left of their own volition. Accordingly, under this al-
ternative finding, I would also recommend that the complaint
be dismissed.
CONCLUSIONS OF LAW
1. Respondent Craig Hospital is an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
and in an industry affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2. Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
It is hereby ordered that the complaint be dismissed in its
entirety.