Desert Springs Hospital Medical Center

National Labor Relations Board - Board Decisions

Feb 19, 2008

352 N.L.R.B. 112 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 16
112
Valley Health System, LLC d/b/a Desert Springs
Hospital Medical Center and Nevada Service
Employees Union, Local 1107, affiliated with
Service Employees International Union. Cases
28–CA–20805, 28–CA–20806, 28–CA–20807, 28–
CA–20808, 28–CA–20854, 28–CA–20861, 28–
CA–20877, 28–CA–21014, and 28–CA–21115
February 19, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On July 12, 2007, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Re-
spondent filed exceptions and a supporting brief; the
General Counsel filed an answering brief, a limited
cross-exception, and a brief in support; and the Charging
Party filed an answering brief, exceptions, and a brief in
support.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the recommended
Order as modified below.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In sec. III of his decision, the judge incorrectly stated the date that a
decertification petition was filed. The petition, which was pending at
the time of the hearing, was filed on March 22, 2007.
2 In adopting the judge’s conclusions, we find it unnecessary to rely
on labor consultant Yessin’s conduct toward Christina Schofield to
support the finding of animus, as Yessin’s agency status was not liti-
gated.
Although the judge did not specifically analyze the Respondent’s
warnings to Schofield under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
we find that the record also supports the conclusion that the warnings
were unlawful under a Wright Line standard. Further, the Respondent
asserts that it treated Schofield as it had treated other similarly situated
employees in the past. We note that the Respondent failed to comply
with the General Counsel’s subpoena of documents describing such
past disciplinary action.
To establish a violation under Wright Line, the General Counsel
bears the burden of showing that union animus was a motivating or
substantial factor for the adverse employment action. The elements
commonly required to support such a showing are union or protected
activity by the employee, employer knowledge of that activity, and
union animus on the part of the employer. See, e.g., Consolidated Bus
Transit, Inc., 350 NLRB 1064, 1065–1066 (2007). Member Schaum-
ber notes that the Board and circuit courts of appeals have variously
described the evidentiary elements of the General Counsel’s initial
burden of proof under Wright Line, sometimes adding as an independ-
ent fourth element the necessity for there to be a causal nexus between
the union animus and the adverse employment action. See, e.g., Ameri-
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Valley Health System, LLC
d/b/a Desert Springs Hospital Medical Center, Las Ve-
gas, Nevada, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
“(a) Within 14 days from the date of this Order, re-
scind the warnings issued to Registered Nurse Christina
Schofield and the discharge of Schofield and offer her
full reinstatement to her former job, or, if that job no
longer exists, to a substantially equivalent job without
prejudice to her seniority or any other rights or privileges
previously enjoyed; remove from its files any reference
to the warnings and discharge, and within 3 days thereaf-
ter notify Christina Schofield in writing that this has been
done and that the warnings and discharge will not be
used against her in any way.”
2. Substitute the following for paragraph 2(b).
“(b) Make whole Christina Schofield for any loss of
earnings and other benefits suffered as a result of the

can Gardens Management Co., 338 NLRB 644, 645 (2002). As stated
in Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4 (2003), since Wright
Line is a causation analysis, Member Schaumber agrees with this addi-
tion to the formulation, which the judge applied in analyzing the cir-
cumstances of Schofield’s discharge.
Member Schaumber disagrees with the judge’s statement that “an
employer’s failure to conduct a meaningful investigation of the alleged
wrongdoing of the employee who is under scrutiny and the failure to
give the employee an opportunity to explain his conduct is an indica-
tion of discriminatory intent [emphasis added].” In Member Schaum-
ber’s view, that is not the law. Such a failure may be evidence of dis-
criminatory intent if it reflects disparate treatment of the individual at
issue. If the employer regularly fails to engage in what the Board con-
siders to be a “meaningful” investigation of employee wrongdoing,
then its failure to engage in such an investigation in a particular in-
stance reveals little about discriminatory motive. As the courts have
frequently reminded us, “employers are not obligated to ‘investigate’
[employee misconduct] in any particular way,” and it is not the Board’s
province to “function as a ubiquitous ‘personnel manager,’ supplanting
its judgment on how to respond to [employee misconduct] for those of
an employer.” Detroit Newspaper Agency v. NLRB, 435 F.3d 302, 310
(D.C. Cir. 2006) (internal citations omitted). Notwithstanding that, the
record evidence here amply supports the judge’s finding that the disci-
pline and discharge of Schofield violated the Act.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
DESERT SPRINGS HOSPITAL MEDICAL CENTER 113
discrimination against her, in the manner set forth in the
remedy section of the decision.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT issue unlawful verbal and written warn-
ings to our employees because of their engagement in
protected concerted activities.
WE WILL NOT discharge our employees because of their
engagement in protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights under Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the unlawful warnings and discharge of
Christina Schofield and offer her full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Christina Schofield whole for any loss
of earnings and other benefits as a result of the discrimi-
nation against her, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warnings issued to Christina Schofield and the dis-
charge of Christina Schofield, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the unlawful actions will not be used
against her in any way.
VALLEY HEALTH SYSTEM, LLC D/B/A DESERT
SPRINGS HOSPITAL MEDICAL CENTER
Joel C. Schochet, Esq., for the General Counsel.
Raymond J. Carey, Esq., for the Respondent.
Glenn Rothner, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me in Las Vegas, Nevada, on April 17
and 18, 2007. The complaint is based on charges filed by Local
108, affiliated with Service Employees International Union (the
Charging Party or the Union), in Cases 28–CA–20805, 28–CA–
20806, 28–CA–20807, 28–CA–20808, 28–CA–20854, 28–CA–
20861, 28–CA–20877, 28–CA–21014, and 28–CA–21115,
against Desert Springs Hospital Medical Center, herein de-
scribed by its correct name, Valley Health System, LLC d/b/a
Desert Springs Hospital Medical Center (the Respondent or the
Hospital). The complaint alleges violations of the National
Labor Relations Act (the Act). The complaint is joined by the
answer filed by the Respondent wherein it denies the commis-
sion of any violations of the Act.
After due consideration of the testimony and evidence re-
ceived at the hearing and the briefs filed by the parties, I make
the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges, Respondent admits, and I find, that at
all times material the Respondent has been a Delaware limited
liability company, with an office and place of business in Las
Vegas, Nevada, engaged in the operation of a hospital provid-
ing inpatient and outpatient medical care, that during the 12-
month period ending May 4, 2006, the Respondent in conduct-
ing its aforesaid business operations derived gross revenues in
excess of $250,000, and purchased and received at its facility
goods valued in excess of $5000 directly from points outside
the State of Nevada and has been engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and has
been a health care institution within the meaning of Section
2(14) of the Act.
II. THE LABOR ORGANIZATION1
The complaint alleges, Respondent admits, and I find, that at
all times material the Union has been a labor organization
within the meaning of Section 2(5) of the Act.

1 The following employees of the Respondent (the RN unit) consti-
tute a unit appropriate for the purposes of collective bargaining within
the meaning of Sec. 9(b) of the Act:
All Registered Nurses employed by the Respondent, including all re-
lief charge nurses; excluding all other employees, guards and supervi-
sors, including charge nurses as defined in the Act.
On or about October 3, 1994, the Union was certified as the exclu-
sive collective-bargaining representative of the RN unit and has since
then been recognized as such representative by the Respondent. This
recognition has been embodied in successive collective-bargaining
agreements, the most recent of which became effective on February 22,
2007, and is currently in force.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD114
III. THE ALLEGED UNFAIR LABOR PRACTICES
A substantial part of the allegations in this consolidated com-
plaint have been resolved by settlement and dismissed leaving
for resolution only the various allegations of 8(a)(1) and (3)
violations concerning Registered Nurse Christina Schofield.
These remaining allegations concerning Schofield are as fol-
lows:
1. On or about May 1, 2006, Respondent revoked its per-
mission for Schofield to park in the physicians’ parking lot at
the Respondent’s facility.
2. On or about May 30, 2006, the Respondent issued
Schofield an unwarranted verbal warning.
3. On or about July 3, 2006, the Respondent issued
Schofield an unwarranted written warning.
4. On or about September 29, 2006, the Respondent dis-
charged Schofield.
In early April 2006, the Union and the Respondent com-
menced bargaining for a successor collective-bargaining
agreement (c/b/a) to the existing agreement which was set to
expire by its terms on April 30, 2006. In April 2006, Cristina
Schofield became a member of the Union’s negotiating com-
mittee. She also was a member of the Union and management
committee under the existing c/b/a. The bargaining for a suc-
cessor agreement was contentious and Schofield was a sup-
porter of the Union during the bargaining. She was one of five
nurses who called themselves the “truth squad” whose photo-
graphs and comments appeared in the Union’s literature.
Schofield was active in distributing the union literature which
she caused to be distributed to the registered nurses by placing
it on union bulletin boards with the approval of Respondent’s
management. Her role as a union advocate did not go unno-
ticed. She was told by her supervisor, Matthew Grimes, that he
had been told by Respondent’s management to watch her and
that he would write her up for any infractions. The General
Counsel contends that although Schofield had an unblemished
record since becoming a regular employee in June 2004, that
she became the recipient of discipline from the Hospital man-
agement that occurred in less than a 5-month period after she
became more active on behalf of the Union’s position on the
contract negotiations in April 2006. She received verbal and
written warnings and was discharged on September 29, 2006,
for alleged “insubordination.” The General Counsel asserts that
the timing of the disciplinary actions taken against Schofield
supports a finding that these actions taken against Schofield
were in retaliation for her support of the Union. The General
Counsel also notes comments made by Respondent after certain
of the nurses filed a petition to decertify the Union on February
22, 2007. On April 3, 2007, the Respondent directed a letter to
the nurses’ bargaining unit employees proclaiming that “the
future arrived at Desert Springs” on March 22, 2006, when
certain of the unit employees filed a petition to decertify the
Union.
Schofield testified that for almost 2 years she had parked in a
parking lot referred to as the physicians’ parking lot and that
other nonphysicians also parked in the lot as well. In its brief,
the General Counsel contends that unit employees parked in
this lot as well. However, there is little support in the record
for this contention. The physicians’ parking lot is described in
the record as being the northwest lot. Schofield testified that
the parking lot was on the northwestern side of the hospital and
was not designated for physicians and that she and Chief Ex-
ecutive Officer (CEO) Sam Kaufman, had routinely seen each
other park on this lot which operates with a cardkey entry to
open the gate and that she used her employee badge card to
open the gate as any type of card would open the gate. She
testified that this was related to her by Dr. Mohammed Amad, a
doctor on the Hospital’s staff with whom she has a relationship.
She testified that she had not been previously told that she
could not park in the lot. However, in early May 2006, Kauf-
man barred her from the use of the parking lot. Kaufman testi-
fied that there are three parking lots which are limited to physi-
cian parking. There are signs stating, “No Parking, Doctors
Only.” This prohibition of the use of the parking lot by
Schofield occurred shortly after she had become a member of
the Union’s bargaining committee in April 2006. Kaufman
testified that parking on the physicians’ parking lot is limited to
doctors and members of the Hospital’s executive team.
The General Counsel contends that the revocation of the
parking lot privilege is a violation of the Act. I find, however,
that the Respondent did not violate the Act by advising
Schofield that she could not park on the lot. As noted above,
the record does not support the General Counsel’s contention
that unit employees were permitted to park on the lot. I find as
contended by the Respondent that it had designated this lot for
physician parking and for executive department heads as testi-
fied to by Kaufman. Although Schofield testified she saw other
unit employees park on this parking lot, I find that the evidence
is insufficient to support a finding that Schofield had somehow
acquired permission to park in the parking lot which was desig-
nated for physician parking. Accordingly, I find that Respon-
dent did not violate the Act when it ordered Schofield to refrain
from parking on the lot.
As noted above in April 2006, the Union and the Respondent
were negotiating a successor labor agreement to replace the
existing labor agreement which was to expire on April 30,
2006. Schofield, a registered nurse, became a member of the
Union after she had assumed a full-time staff position with the
Respondent in June 2004. Schofield also became a union rep-
resentative on the Union’s negotiating team and on its collec-
tive-bargaining agreement labor management committee.
Schofield worked in the special procedures unit and the gastro-
intestinal (GI) unit of the Hospital. The Union has represented
the registered nurses (RNs) since 1994. It also represents a
separate unit for the technical employees at the Hospital. On
April 13, 2006, the parties began negotiations for a successor
labor agreement but did not reach agreement until March 22,
2007, several months after the labor agreement had expired.
According to a letter sent by Respondent to the RN unit em-
ployees on April 2, 2007, negotiations were difficult and con-
tentious. On March 22, 2007, a decertification petition was
filed. In its letter of April 2, 2007, to the employees in the
nurses’ bargaining unit, which was signed by Chief Executive
Officer (CEO) Sam Kaufman, Chief Nursing Officer (CNO)
Marcey Jorgenson, and Chief Operating Officer (COO) Mark
Crawford, Respondent hailed the filing of the decertification
petition on February 22, 2007, as the day “the future arrived” at
DESERT SPRINGS HOSPITAL MEDICAL CENTER 115
Respondent. Respondent also hired a labor consultant. During
this period the parties were campaigning for their respective
positions with Respondent in favor of the decertification of the
Union and the Union opposing it. Commencing in April 2006,
Schofield became more active on behalf of the Union and was
one of five nurses who labeled themselves as the “truth squad”
and prepared and circulated literature on behalf of the Union’s
position on the ongoing contract bargaining. The literature
contained their photographs as well as their statements in favor
of the Union’s position. It is undisputed and I find significant
that prior to April 2006, Schofield had an unblemished record
as an employee of Respondent and had never been disciplined.
However, she soon received discipline in the form of written
and verbal warnings and ultimately was discharged allegedly
for insubordination because of her refusal to take responsibility
for a patient.
In early May 2006, when Schofield arrived at the GI lab, she
encountered recovery nurse Cathy Ruis and admitting nurse
Georgene Kreger, who were upset that a doctor’s office had not
been getting his schedules in on time which was causing sched-
uling problems in the GI lab. Schofield and technician Tony
Robinson, using separate telephone handsets, called the physi-
cian’s office and talked to his scheduler and explained the prob-
lem. The scheduler transferred the telephone call to the office
manager who listened to the explanation of the problem and
said, “OK.” Schofield testified that no harsh words or rudeness
were exchanged. I credit her testimony which was unrebutted
as neither Robinson nor the scheduler nor the office manager
were called to testify. It was almost a month later that
Schofield received a warning for this incident from Matt
Grimes (who was, then the head of ancillary services and risk
management which includes special procedures and the GI lab)
for failing to follow the chain of command in contacting the
doctor’s office. This warning was issued to Schofield the same
time as a written verbal warning for an incident which occurred
in the late half of May for the alleged failure of Schofield to
inform the director of biomedical engineering that a part had
arrived. Schofield testified she had signed for the box contain-
ing the part while she was in the GI lab and that normally it was
the responsibility of the radiology techs to go through the pack-
ages and deliver them. Grimes issued the written verbal warn-
ing to her for both incidents. He told Schofield that it was her
responsibility to know what she was signing for. Grimes was
not called to testify in this proceeding.
Subsequently in June, Schofield’s wallet was missing and
she was required to change bank accounts and file a new direct
deposit form. She went to Respondent’s human resources of-
fice and spoke to a clerical employee named “Romina.”
Schofield testified she tried to explain what she needed but
Romina spoke over her and would not look at the letter she had
brought from the bank. She also testified that Romina was
rude. Schofield then went to the office of Human Resource
Representative Angie Davidson and explained the situation and
complained about the rude treatment she had received from
Romina. Davidson explained what was needed for the direct
deposit and apologized to Schofield for Romina’s conduct.
However, Grimes issued a written warning to Schofield on July
3, 2006. He told Schofield that he had received an e-mail from
human resources ordering him to discipline Schofield. He did
not tell her who had ordered the discipline. Schofield explained
what had happened and Grimes told her she could issue a rebut-
tal. She did but the discipline was not changed. As noted
above, Grimes was not called to testify in this proceeding.
On July 6, 2006, Schofield poured a soda from the soda ma-
chine near the emergency department (ED). CEO Kaufman
was present in the ED kitchen and saw this. Shortly thereafter
Grimes called Schofield to his office and issued her a verbal
warning dated July 7, 2006, and told her that Kaufman did not
want her to get soda from the ED diet kitchen. Grimes also
gave Schofield a memo dated July 7, 2006, from Jane Nash, the
radiology manager, which advised employees, “the ER fountain
drink machine is for use by EMT personnel and available for
the patients and the patient families.” Schofield testified she
told Grimes that he was “kidding” her. She testified that em-
ployees from radiology, special procedures, and the ED use
soda from that machine daily. I credit Schofield’s testimony in
this regard which was unrebutted as Grimes did not testify.
The record supports a finding that the Hospital had never pre-
viously disciplined either Schofield or other employees for
using the soda machine.
Analysis
Disparate treatment may be inferred from the circumstances.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir.
1966). Unlawful motivation may be inferred from the evidence
in the absence of direct evidence of animus. New Otani Hotel
& Garden, 325 NLRB 928 (1998). It is well settled that an
employer’s failure to conduct a meaningful investigation of the
alleged wrongdoing of the employee who is under scrutiny and
the failure to give the employee an opportunity to explain his
conduct is an indication of discriminatory intent. New Orleans
Cold Storage & Warehouse Co., 326 NLRB 1471 (1998). If
the reasons for the decision advanced by the employer are
shown to be pretextual, the Board may infer that the true moti-
vation for the discipline was unlawful. Bardaville Electric,
Inc., 309 NLRB 337 (1992). Timing alone may suggest anti-
union animus as the motivation for discharge. Masland Indus-
tries, 311 NLRB 184 (1993). The discipline of an employee
violates Section 8(a)(3) of the Act when there is evidence that
the employer has seized upon union activity to justify changing
its previous tolerant policy toward the employee. Gravure
Packaging, Inc., 321 NLRB 1296 (1996).
I find the foregoing instances of discipline support the unre-
butted testimony of Schofield and the conclusion that Respon-
dent was seizing on any opportunity to discipline Schofield. It
is significant that in each instance there was little or no investi-
gation of the incident but rather Respondent issued the disci-
pline to Schofield without giving her an opportunity to answer
these charges before imposing discipline. I also find significant
Schofield’s testimony that Grimes told her the management of
Respondent had told him to watch her. I credit Schofield’s
testimony which was unrebutted as Grimes was not called to
testify. I thus conclude that the issuances of the foregoing dis-
ciplines were motivated by Respondent’s determination to rid
itself of a leading union advocate who had become a source of
irritation for Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD116
The Termination of Christina Schofield
On September 27, 2006, Schofield was assigned to work in
the gastrointestinal (GI) lab as the procedure nurse along with
Georgene Kreger who served as the admissions nurse and
Kathy Ruis who served as the recovery room nurse. She ar-
rived at the lab around 7:30 a.m. and assisted in a procedure
which was concluded about 8:45 a.m. Recovery room nurse
Ruis then took over the responsibility for the patient. Schofield
then went to the cafeteria for coffee and returned to the GI lab
about 9:15 or 9:20 a.m. Upon her return she was met by nurse
Ruis who told her that Nursing Supervisor Alice Kelly had
come by the GI lab and said that there was an emergency de-
partment (ED) patient that Kelly wanted taken report on. To
“take report” is to accept primary responsibility for the patient.
Schofield testified that she said, “Oh No,” and that she could
not take the patient because she was to assist in a procedure at
10 a.m. that morning. Schofield testified that ED nurse Traci
Cornelison then came in with the patient’s chart and asked
Schofield where the patient would be put. Schofield told Cor-
nelison that she could not take report on the patient as she had
to assist with procedures in the GI lab. Cornelison said, OK
and then left. Schofield testified that Ruis did not say anything.
Schofield then went to the area where nurse Kreger was and
told her that the management was going to assign an ED patient
to the GI lab. Kreger said she could not and would not take the
patient because she lacked ED skills. Schofield testified that
she did not at any time tell Ruis or Kreger to refuse to take the
patient. Kreger testified she told Schofield she would not take
the patient. Ruis was not called to testify.
Schofield returned to the GI lab and met Kelly there who
told her she (Schofield) must take the patient. Schofield told
Kelly she could not take the patient as she could not do proce-
dures and be responsible for primary care of an ED patient.
Kelly repeated that Schofield must take report for the ED pa-
tient and Schofield said she would not do so. Kelly also in-
formed Schofield that the patient was scheduled for a procedure
later that day in the GI lab for the removal of a foreign sub-
stance. Schofield testified that she was concerned that the pa-
tient might choke in another room while she was assisting in a
procedure. At that point Kelly told Schofield she was in
“charge.” Schofield asked when this had happened. A charge
nurse is a supervisory employee outside of the bargaining unit
and receives a higher rate of pay than a registered nurse in the
bargaining unit. Schofield had never been told she was a
charge nurse and had never received charge nurse pay. Kelly
again said that Schofield was in charge and that Schofield must
take responsibility for the patient. Schofield said she would not
risk the patient’s life and her nursing license. Kelly left but
returned shortly thereafter with Chief Nursing Officer
Jorgenson. This was about 20 minutes prior to the next proce-
dure scheduled for 10 a.m. Jorgenson asked what Schofield
was doing. Schofield said she was preparing for the procedure.
Jorgenson said she (Schofield) was not doing anything.
Schofield said she was getting ready for the procedure.
Jorgenson told Schofield she must take the patient. Schofield
said she could not do so for the good of the patient as she
would be assisting with the 10 a.m. procedure. Jorgenson told
Schofield she must take report on the patient or go home.
Schofield said she would go home. According to Schofield,
neither Jorgenson nor Kelly asked Kreger or Ruis to take the
patient. When Jorgenson returned shortly thereafter, Schofield
told her she would not set a precedent of taking on another
patient while running the GI lab as this would risk the patient’s
safety. On Thursday, September 28, 2006, Respondent called
Schofield and told her there would be a meeting on September
29 to discuss her situation.
Jorgenson testified that she was informed by Supervisor Al-
ice Kelly that Ruis had already agreed to take report on the
patient in the ED. Schofield testified that Kelly and Jorgenson
had asked her to take report for the patient in the ED.
Jorgenson testified that Schofield, herself, was not asked to take
report on the ED patient but was preventing Ruis from taking
report. Jorgenson testified that Schofield was in charge of the
procedure department. However, Schofield was not a charge
nurse, did not receive charge nurse pay, and consequently did
not have the authority to order either Ruis or nurse Kreger not
to take report for the ED patient. Schofield testified that she
herself was asked to take report for the patient and told both
Kelly and Jorgenson that she could not take report for the ED
patient because she was the procedure nurse and was scheduled
to assist in a procedure at 10 a.m. that morning in approxi-
mately 20 minutes. Upon Schofield’s refusal to take the ED
patient, Jorgenson sent her home. Jorgenson assigned two
nurses to assist with the 10 a.m. procedure, and the ED patient
was not transferred to the procedure department until shortly
prior to her scheduled time for a procedure. On September 28,
2006 (the very next day), Respondent’s recovery supervisor,
Ramona J. Chatman, created an e-mail in which she contended
that Schofield was a charge nurse although she had never re-
ceived charge nurse pay. I find the creation of this was de-
signed to bolster Respondent’s contention that Schofield was a
charge nurse who had ordered nurse Ruis not to take report
although Ruis had agreed to do so on the request of Supervisor
Alice Kelly. Neither Ruis nor Kelly were called to testify in
this proceeding.
Respondent introduced into evidence, statements taken by
Respondent on its behalf with respect to the events of Septem-
ber 27, 2006. To this end statements were taken from recovery
nurse Ruis, admitting nurse Kreger, ED nurse Traci Cornelison,
and house nurse Kelly by Respondent’s director of human re-
sources, Robert Taylor, and from CNO Jorgenson. However,
Respondent did not call Cornelison, Kelly, or Ruis to testify.
While the statements of these individuals tended to support
Respondent’s position with respect to the events of September
27 when Schofield refused to take the ED patient, they were not
conclusive and these individual’s credibility was not tested by
cross-examination by the General Counsel and the Charging
Party’s counsel. Thus, there remains doubt as to which version
is the accurate one. If in fact Schofield was truly under the
impression that she was being asked or ordered to personally
undertake the case of the ED patient in addition to performing
as the procedure nurse, for a procedure that was expected to
start in 20 minutes, this does clearly appear unreasonable.
With respect to Respondent’s contention that it was only or-
dering Schofield to permit nurse Ruis to take the ED patient
and that Schofield was exercising her authority as a charge
DESERT SPRINGS HOSPITAL MEDICAL CENTER 117
nurse, I find this contention is implausible as the evidence is
overwhelming that she was not a charge nurse and did not re-
ceive any increment in pay as a charge nurse. Consequently,
Schofield had no authority to direct nurse Ruis to refrain from
taking the ED patient. Clearly, Kelly and Jorgenson had the
authority to order Ruis to take report for the ED patient while
Schofield was left to attend the patient who was scheduled to
undergo a procedure at 10 a.m.
In evaluating the testimony of Schofield and Jorgenson con-
cerning precisely what was said during the discussion concern-
ing whether the ED patient could be brought into the procedure
department, I find it unlikely that Schofield was acting as a
charge nurse refusing to let the other nurses take the ED pa-
tient. I find it was significant that Respondent did not call Ruis
as a witness if her testimony would have supported Respon-
dent’s position that she had agreed to take the ED patient but
had been ordered by Schofield not to do so. Moreover, even if
Schofield had ordered Ruis not to take the ED patient, either
Kelly or Jorgenson had the authority to overrule Schofield’s
order and to order Ruis to take report for the ED patient.
Jorgenson and Human Resource Director Robert Taylor met
with Schofield and Union Representative Ann Wagner on Sep-
tember 29. Jorgenson opened the meeting and asked Schofield
who had ordered her to assume the care of the ED patient.
Schofield said that Jorgenson had done this. Jorgenson asked
why she had concluded this. Schofield said it was Jorgenson’s
statement that she must take the patient for the good of the
Hospital. Jorgenson then told Schofield that Ruis had agreed to
take the ED patient but that Schofield had told her not to do so.
Schofield denied this. At this point Jorgenson and Taylor left
the room to caucus. They returned and told Schofield that the
Respondent was “severing relations” with her. She was thus
discharged at this time.
Analysis
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Gen-
eral Counsel has the initial burden to establish that:
1. The employee engaged in protected concerted activities.
2. The employer had knowledge or at least suspicion of the
employee’s protected activities.
3. The employer took adverse action against the employee.
4. A nexus or link between the protected activities and the
adverse action underlying motive.
Once these four elements have been established, the burden
shifts to the Respondent to prove, by a preponderance of the
evidence that it took the action for a legitimate non-
discriminatory business reason. In Fluor Daniel, Inc., 304
NLRB 970 (1991), the Board said that once the General Coun-
sel makes a prima facie case that protected conduct was a moti-
vating factor in the employer’s decision, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct.
In the instant case, it is clear, and I find, that Christina
Schofield was engaged in protected concerted activity. She
was a known active union adherent who had incurred the dis-
pleasure of Respondent and had been punished for her support
of the Union by the unlawful warnings issued to her and was
discharged in September 2006. She served on the Union’s
bargaining team upon her appointment to it in April 2006. She
had appeared in photographs and in print on union literature
which she distributed to employees by placing it on union bul-
letin boards after obtaining permission from Respondent to do
so. CEO Kaufman and CNO Jorgenson were both aware of
Schofield’s engagement in protected union activity. I find Re-
spondent’s antiunion animus was the motivating reason for the
discipline and discharge of Schofield.
Not only was Schofield subjected to unwarranted discipline
after April 2006, she was also excluded from attending hospital
retreats for medical personnel and management which she had
previously attended as a guest of Dr. Mohammed Amad who
was on the staff. She was warned by Manager Matt Grimes
that he had been told to watch her. Schofield also testified that
Respondent’s outside labor consultant, Brent Yessen, followed
her on the premises and would attempt to engage her in conver-
sations about the Union. The timing of all of the above within
the April to September 29, 2006 period, supports the inference
of Respondent’s unlawful motivation in its discipline and dis-
charge of Schofield.
See Hialeah Hospital, 343 NLRB 391, 394 (2004), regarding
retaliatory discharge. See Cox Communications Gulf Coast,
L.L.C., 343 NLRB 164, 164 (2004), finding that the reason for
a discharge was pretextual and supported an inference that the
discharge was in retaliation for the employees’ union activity,
citing Shattuck Denn Mining Corp., supra, and Limestone Ap-
parel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th
Cir. 1982).
I conclude that the General Counsel has established a prima
facie case of a violation of Section 8(a)(3) and (1) of the Act.
Schofield was engaged in protected concerted activities on
behalf of the Union; the Respondent had knowledge of her
protected activities; the Respondent had antiunion animus and
took adverse actions against Schofield. A nexus or link has
been established between Schofield’s protected concerted ac-
tivities and Respondent’s knowledge thereof and the adverse
action taken against Schofield by her discharge allegedly for
“insubordination.” I find that Respondent has failed to rebut
the prima facie case by the preponderance of the evidence and
has failed to demonstrate that it would have disciplined and
discharged Schofield in the absence of her engagement in the
protected concerted activities, Wright Line, supra.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section
2(2), (6), and (7), and (14) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the Act by
the issuance of the above warnings issued to Christina
Schofield.
4. Respondent violated Section 8(a)(3) and (1) of the Act by
its discharge of Christina Schofield.
THE REMEDY
Having found that the Respondent has engaged in the above
violations of the Act, it shall be recommended that Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD118
cease and desist therefrom and take certain affirmative actions
designed to effectuate the policies and purposes of the Act and
post the appropriate notice. It is recommended that Respondent
cease the issuance of the unlawful warnings and discipline and
rescind the warnings and the discharge of Christina Schofield
and offer immediate reinstatement to Schofield. Schofield shall
be reinstated to her prior position or to a substantially equiva-
lent one if her prior position no longer exists. She shall be
made whole for all loss of backpay and benefits sustained by
her as a result of the Respondent’s unfair labor practices. All of
the backpay amounts shall be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987), at the “short term federal rate” for the
underpayment of taxes as set out in the 1986 amendment to 26
U.S.C. § 6621.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Valley Health System, LLC d/b/a Desert
Springs Hospital Medical Center, Las Vegas, Nevada, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing unlawful verbal and written warnings to its em-
ployees because of their engagement in protected concerted
activities.
(b) Discharging its employees because of their engagement
in protected concerted activities.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative actions to effectuate the
policies of the Act.
(a) Within 14 days from the date of this Order rescind the
warnings issued to registered nurse Christina Schofield and the
discharge of Schofield and offer her full reinstatement to her
former job or if that job no longer exists, to a substantially
equivalent job without prejudice to her seniority or any other

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
rights or privileges previously enjoyed, and expunge from its
files the unlawful warnings and discharge issued to Schofield.
(b) Make whole Schofield for any loss of earnings and other
benefits suffered as a result of the discrimination against her,
with interest.
(c) Preserve and within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of the records if stored in
electronic form, necessary to analyze the amount of backpay
due under the terms of this Order
(d) Within 14 days after service by the Region, post copies
of the attached notice marked “Appendix”3 at its facility in Las
Vegas, Nevada. Copies of the notice, on forms provided by the
Regional Director for Region 28, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
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 facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since April 2006.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

3 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.”