Kentucky River Medical CenterDownload PDFNational Labor Relations Board - Board DecisionsAug 26, 2010355 N.L.R.B. 643 (N.L.R.B. 2010) Copy Citation KENTUCKY RIVER MEDICAL CENTER 355 NLRB No. 129 643 Jackson Hospital Corporation d/b/a Kentucky River Medical Center and United Steel, Paper & For- estry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Un- ion, AFL–CIO–CLC. Cases 9–CA–42249, 9– CA–43128, 9–CA–43165, and 9–CA–43397 August 27, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND PEARCE On July 29, 2008, Administrative Law Judge Paul Buxbaum 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. Additionally, the General Counsel filed limited cross-exceptions and a supporting brief, and the Respondent filed an answering 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,1 cross-exceptions, and briefs, and has decided to affirm the judge’s rulings, findings,2 and conclusions as modified, and to adopt the recom- mended Order as modified and set in forth in full below. We shall modify the judge’s remedy and recom- mended Order and substitute a new notice to more closely reflect the circumstances of this case and the vio- lation found. For the reasons set forth below, we agree with the judge’s finding that the Respondent violated Section 8(a)(3) and (1) of the Act by placing employee Frances Lynn Combs on an indefinite investigatory suspension. We disagree, however, with the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by suspend- ing and discharging employee Louise Gross because of her union activities. I. LOUISE GROSS The judge, applying Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), found that the General Counsel proved that Gross’ union activities were a motivating 1 No exceptions were filed to the judge’s dismissal of allegations that the Respondent violated Sec. 8(a)(3) and (1) by suspending and dis- charging employees Shirley White and James Fields. 2 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. factor in the decision to suspend and discharge her and that the Respondent failed to satisfy its rebuttal burden of proving that it would have taken those actions, even ab- sent Gross’ union activities. We disagree. For the rea- sons set forth below, we find that the Respondent dem- onstrated that it would have suspended and discharged Gross, even absent her union activities, because of her role in an erroneous blood transfusion. A. Facts The Respondent operates an acute-care hospital in Jackson, Kentucky. In 1998, the Union was certified in a bargaining unit that included registered nurses and li- censed practical nurses, among other employees. Louise Gross, a registered nurse in the intensive care unit (ICU), worked for the Respondent from 1993 until October 2006, when the Respondent discharged her.3 The Respondent was aware, at the time of the discharge, that Gross had picketed during a strike in 2000 and had served on the Union’s bargaining committee from ap- proximately late 2002 until her discharge. Registered nurse Shirley White, who also worked in the ICU, simi- larly engaged in strike activity and served on the Union’s bargaining committee. The Respondent maintains a detailed written policy governing the handling and checking of blood prior to administering transfusions. Pursuant to that policy, a nurse who picks up blood from the blood bank must pre- sent a copy of the physician’s signed order. The nurse and a laboratory technician must then examine the unit of blood and the paperwork to ensure that the following information matches: patient name, medical record number, unit number, ABO and RH of the blood and patient, antibody screen, cross-match results, and expira- tion date of both the cross-match and the unit. The Respondent’s blood handling policy also requires that two nurses perform a second check “at the patient’s bedside,” where they compare the label on the blood bag with both the transfusion record and the patient’s ID band to ensure the proper match. Only after completion of the check and double check is the blood to be trans- fused into the patient. Compliance with this transfusion policy is documented through use of a three-part form requiring signatures by laboratory employees and nursing staff at each step of the process. The form contains the following paragraph to be signed by two nurses prior to any transfusion: We certify that prior to blood administration we have examined the blood component label, information on this form and all patient ID bands. The intended recipi- 3 All dates are in 2006, unless otherwise noted. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644 ent of this blood product is the same person named on this form and the blood component. This detailed policy is maintained because transfusing the wrong blood can potentially do great harm to the patient. See fn. 8, infra. On September 14, a doctor ordered nurse Shirley White to give a blood transfusion to patient “Oakley T.”4 White went to the blood lab, where she placed the re- quest with laboratory technician (and statutory supervi- sor) Cheri Vires. Vires returned with a package of blood meant for another patient, “Oakey B,” who had a similar first name. Although White and Vires performed the re- quired cross-check of information, and Vires signed a certification that she had verified the patient’s informa- tion, White left with the wrong blood, the blood intended for Oakey B. White took the blood to the nurses’ station in the ICU. White asked nurse Gross to check the blood and the ac- companying paperwork with her. They checked the in- formation together at the nurses’ station, rather than at the patient’s bedside as required by the policy, with Gross merely glancing at the name. White told Gross to sign the verification. Gross said, “This is for Oakley T, right?” White looked at the blood bag again and said “yes.” White and Gross signed the verification stating that they had checked information on the patient’s wrist- band, even though they had not. White proceeded alone to Oakley T’s room, where she failed to compare the information on Oakley T’s wrist- band to the information on the blood package before starting the transfusion. Because the mismatch went undetected, Oakley T was transfused with blood meant for Oakey B. Approximately an hour into the blood transfusion, an- other nurse discovered the error and reported it to White. White immediately stopped the transfusion. Oakley T was not harmed by the erroneous transfusion because, coincidentally, he and Oakey B shared the same blood type and characteristics. Gross and White worked their scheduled shifts over the next 3 days, and they provided additional blood trans- fusions to Oakley T. On September 18, CEO O. David Bevins returned from vacation and learned of the transfu- sion error. On September 19, the Respondent placed Gross and White on investigatory suspensions. Shortly thereafter, the Respondent terminated Gross, White, and Vires because of their roles in the erroneous blood trans- fusion. 4 The order also included the patient’s last name, which was partially redacted in this proceeding for privacy reasons. B. Analysis Under Wright Line, supra at 1083, the General Counsel bears an initial burden of establishing that an employee’s union activity was a motivating factor in the Respon- dent’s decision to discharge her.5 The burden then shifts to the Respondent to establish by a preponderance of the evidence that it would have taken the same action even in the absence of the employee’s union activity. Id. We shall assume for argument’s sake that the General Counsel satisfied his initial burden of proving that Gross’ union activity was a motivating factor in the decision to suspend and discharge her. Contrary to the judge, how- ever, we find that the Respondent demonstrated that it would have suspended and discharged Gross, even ab- sent her union activities, because of her role in the erro- neous blood transfusion. The Respondent’s witnesses testified that, because of the danger of fatality from an erroneous blood transfu- sion, the Respondent maintains a strict blood handling policy. As described above, nurses and lab technicians must twice verify that a patient will receive compatible blood, using multiple items of identifying information. Nurses who perform the second check must sign a verifi- cation form stating that they have examined the informa- tion and that the particular blood is meant for the patient. It is undisputed that Gross and White performed the sec- ond check in a deficient manner. Gross merely glanced at the information, relying on White’s statement that the blood was intended for Oakley T. The Respondent suspended and discharged nurse White and laboratory technician Vires for their roles in the erroneous blood transfusion. Like Gross, both White and Vires failed to adequately verify that the information on the blood bag matched the patient’s identifying in- formation on the accompanying paperwork. Moreover, like Gross, White failed to verify that the information on 5 The judge found that, under Wright Line, the General Counsel must meet a 4-prong evidentiary standard. 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 concerted 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 Schaumber notes that the Board and the circuit courts of appeal have variously described the evidentiary elements of the General Counsel’s initial burden of proof under Wright Line, sometimes adding as an independent fourth element the necessity for there to be a causal nexus between the union animus and the ad- verse employment action. See, e.g., American Gardens Mgt. 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 standard, Member Schaumber agrees with this addition to the formulation, which the judge applied here. KENTUCKY RIVER MEDICAL CENTER 645 the blood bag matched the information on Oakley T’s wristband. The judge found, and no party now disputes, that the Respondent lawfully discharged nurse White for her role in the blood transfusion error. Moreover, the General Counsel did not allege that the discharge of lab techni- cian Vires, a statutory supervisor, was an attempt to con- ceal an unlawful discharge of Gross. Under these cir- cumstances, we find that the Respondent’s treatment of White and Vires is highly relevant in determining how the Respondent would have treated Gross absent her un- ion activities.6 We disagree with the judge that Gross was signifi- cantly less culpable than White and Vires. The judge emphasized that Oakley T was White’s patient, and con- trasted Gross’ single failure to detect the blood mismatch at the nurses’ station with White’s failures to detect it at the laboratory, the nurses’ station, and the patient’s bed- side. Similarly, the judge found Vires more culpable than White because she set the events in motion by re- trieving the incorrect blood from the refrigerator and then failing to detect the mismatch during the first check. Unlike the judge, we find that the important point is that all three employees were required to examine identifying information listed on various sources and that each failed to perform her duty. Absent each of their failures, Oak- ley T would not have been transfused with blood in- tended for another patient. In this important respect, the three employees engaged in comparable conduct. Ac- cordingly, it is not suspect that the Respondent disci- plined them in the same manner. Finally, unlike the judge, we find that the Respon- dent’s rebuttal case is not undermined by the fact that the Respondent did not suspend or discharge several nurses who had administered incorrect medicines to patients or administered the correct medicine in an incorrect dosage. For example, the Respondent merely orally counseled two nurses, one who administered Coumadin to the wrong patient and another who gave 10 extra doses of an unspecified medication to a second patient. The record demonstrates that, while medication errors can be very serious, blood transfusion errors carry an unusually high 6 The judge refused to rely on the Respondent’s treatment of Vires because she was a statutory supervisor, speculating that the Respondent might have held supervisors to a higher standard of conduct. We de- cline to so speculate, particularly given the gravity and nature of the offense. The judge further found that the Respondent’s treatment of Vires had limited probative value because the record lacked evidence of her length of tenure and disciplinary history, two factors considered in disciplinary decisions. Because the record demonstrates that the Re- spondent’s main consideration in the disciplines was the gravity of the errors committed, we find the suspension and discharge of Vires consti- tutes relevant rebuttal evidence. risk of catastrophic consequences.7 Because of the dif- ferent risks posed, the Respondent maintains separate policies for handling blood and for handling medicine. The policy governing medicine does not require several nurses to perform two separate checks or to memorialize any check with a signed verification. In short, the record shows that the Respondent treats the administration of blood and medicine differently. None of the incidents of lesser discipline cited by the General Counsel involved a nurse whose errors resulted in a patient receiving a trans- fusion of blood not intended for him. For the reasons set forth above, we find that the Re- spondent satisfied its Wright Line rebuttal burden. Ac- cordingly, we dismiss the complaint’s allegation that the Respondent violated the Act by suspending and discharg- ing Gross. II. FRANCES LYNN COMBS The judge found that the Respondent violated Section 8(a)(3) and (1) by indefinitely suspending employee Combs, a registered nurse. The judge reached that result applying both an Atlantic Steel and a Wright Line analy- sis.8 We agree with the judge that the suspension was unlawful, but we do so for the following reasons only. The Board has stated that Wright Line is the appropri- ate analysis in cases involving discipline imposed in connection with the assertion of Weingarten rights.9 See Barnard College, 340 NLRB 934, 936 (2003), citing T.N.T. Red Star Express, 299 NLRB 894, 895 fn. 6 (1990); see also Wal-Mart, 351 NLRB 130, 133 (2007). Applying Wright Line here, we find that Combs’ indefi- nite suspension violated the Act. Under Wright Line, the General Counsel must show that an employee’s protected conduct was a motivating factor in the employer’s adverse action. Rood Trucking Co., 342 NLRB 895, 897 (2004). Motive may be dem- onstrated by circumstantial evidence, and a pretextual explanation of the employer’s action will support an in- ference of discriminatory motivation. See All Pro Vend- ing, 350 NLRB 503, 508 (2007); Rood Trucking, supra at 897; Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 230 (D.C. Cir. 1995) (when a factfinder concludes that the employer’s proffered basis for its actions is pretextual, “the factfinder may not only properly infer that there is some other motive, but ‘that the motive is one that the employer desires to conceal—an unlawful motive—at least where . . . the surrounding facts tend to reinforce 7 Dr. William Bowles testified without contradiction that in the event of an incompatibility between a blood donor and a recipient, there is a 10-percent chance that the transfusion will result in the recipient’s death. 8 Atlantic Steel Co., 245 NLRB 814 (1979); Wright Line, supra. 9 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646 that inference.’”) (quoting Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966)). We find that the General Counsel met his initial bur- den of establishing that Combs’ union activity was a mo- tivating factor in the Respondent’s decision to indefi- nitely suspend her. First, there is no dispute that the elements of union activity and employer knowledge have been established. As the judge found, Debbie Linkous, the Respondent’s chief nursing officer and the official who suspended Combs, admitted that she was aware of Combs’ active participation in contract negotiations and that Combs was “strong in the Union” at the time Linkous suspended her. Second, we infer animus from the circumstances sur- rounding Combs’ indefinite suspension. The judge found that the conduct of management before, during, and after the meeting with Combs at which she was in- definitely suspended demonstrates that management set up Combs by provoking her into insisting on a Weingar- ten right that she did not in fact have. We agree.10 Before meeting with Combs, three members of man- agement discussed among themselves the possibility that Combs would refuse to participate in the meeting without union representation. Linkous testified that she planned to suspend Combs in that eventuality. The judge noted, however, that Combs had never before in the course of her employment refused to meet with management and, indeed, that no other employee had done so in the prior 10 years. The judge further noted that neither the Re- spondent nor any of its witnesses offered any explanation for the conversation. In the absence of one, the judge reasonably discerned an unlawful motivation. At the meeting where Combs requested union repre- sentation, Human Resources Director Naomi Mitchell, who was present, maintained what the judge described as a “strange and disturbing silence” after Linkous told Combs that she had no right to a representative. Mitchell, as the authoritative representative of the human resources department, could have explained Combs’ rights to her, and possibly averted Combs’ walkout. Later in the meeting, Mitchell explained to Combs her backpay rights in the event she was suspended but later 10 Though he considers it a close case, Member Schaumber agrees with his colleagues’ conclusion that Combs’ union activity rather than her refusal to meet with management was the true reason for her “atypical” indefinite suspension. In so finding, he relies solely on the Respondent’s conduct, or lack thereof, during the course of the investi- gatory suspension and the unprecedented length of that suspension, which appears to reflect disparate treatment. He finds it unnecessary to rely upon the theory that “management set up Combs by provoking her into insisting on a Weingarten right she did not in fact have.” Further, he does not agree that the fact that managers met to discuss what steps to take if Combs invoked a Weingarten right. found justified in her conduct. The judge reasonably found that Mitchell’s silence regarding Combs’ Weingar- ten rights “suggest[ed] a peculiar lack of interest” in heading off “the unfortunate outcome that followed on Combs’ mistaken assertion of a right to representation” and, ultimately, that Mitchell’s conduct supports a find- ing that management acted with an “intention to provoke Combs into a misstep.” The judge considered the Respondent’s behavior during the lengthy period following the imposition of the “inves- tigatory suspension,” and concluded that it, too, supported an inference of unlawful motive. The judge correctly de- scribed an investigatory suspension as “an interim action waiting the outcome of an investigation or review by man- agement or court action.” The Respondent suspended Combs on January 18, 2007. So far as the record shows, however, the Respondent has never concluded an investi- gation or altered Combs’ status. The judge found that the Respondent’s explanation for Combs’ suspension “does not begin to account” for the length of the suspension, which even Donald Rentfro, the Respondent’s chief ex- ecutive officer, conceded was “[v]ery atypical.”11 The judge reasonably found that the “contrast between the in- tended length of investigatory suspensions under the Hos- pital’s policies and the interminable length of Combs’ suspension,” coupled with the “disparity between Combs’ protracted suspension and the treatment of other employ- ees” placed on investigatory suspension, supports a finding of animus directed against Combs for her participation in protected union activities.12 Although the Respondent maintains that the delay in resolving Combs’ situation was caused by the inaction of the Union, the judge found, and we agree, that this “ob- vious attempt to shift blame” for maintaining Combs in limbo is further evidence of animus. There is no hospital policy or practice that authorizes the use of an investiga- tory suspension as punishment for a rules infraction. In its letter to Combs formally advising her of the investiga- tory suspension, the Respondent committed itself to “communicate further with [Combs] as the investigation progresses.” As the judge found “[n]o action or inaction by the Union could alter the obligation owed by man- agement to comply with its own rules and its direct promise to Combs.” 11 The record shows that prior investigative suspensions at the facil- ity typically took anywhere from 3 days to 2 weeks. 12 The judge observed that the investigatory suspension of James Fields, another alleged discriminatee in this case, led to a careful inves- tigation to determine the facts and consultation with medical experts, yet lasted only 3 weeks. By contrast, there was little or nothing to investigate regarding Combs. Her alleged misconduct occurred during a face-to-face meeting with three management officials. KENTUCKY RIVER MEDICAL CENTER 647 Considering all of the circumstances, the judge rea- sonably concluded that the Respondent did not place Combs on investigatory suspension, much less maintain her in that status for over a year, for refusing to meet with management without union representation. We agree, and infer an unlawful motive from the Respon- dent’s actions. Accordingly, we also agree with the judge that the General Counsel met his Wright Line bur- den of showing that Combs’ union activity was a moti- vating factor in Combs’ “investigative suspension.” At this juncture, the burden would normally shift to the employer to show that it would have taken the same ac- tion against its employee in the absence of her union ac- tivities. In the circumstances of this case, however, the Respondent cannot carry that burden. Where “the evi- dence establishes that the reasons given for the Respon- dent’s action are pretextual—that is, either false or not in fact relied upon—the Respondent fails by definition to show that it would have taken the same action for those reasons, absent the protected conduct, and thus there is no need to perform the second part of the Wright Line analysis.” Rood Trucking Co., supra at 898, quoting Golden State Foods Corp., 340 NLRB 382, 385 (2003); Limestone Apparel Corp., 255 NLRB 722, 722 (1981) (“a finding of pretext necessarily means that the reasons advanced by the employer either did not exist or were not in fact relied upon, thereby leaving intact the inference of wrongful motive established by the General Counsel”), enfd. 705 F.2d 799 (6th Cir. 1982). In the absence of a lawful reason for the Respondent’s treatment of Combs, we find that the real reason for her indefinite suspension was her union activity. Accord- ingly, we agree with the judge that Combs’ suspension violated Section 8(a)(3) and (1) of the Act. AMENDED REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully sus- pended Francis Lynn Combs, we shall order the Respon- dent to rescind the suspension and offer Combs rein- statement to her former position, or if that position no longer exists, to a substantially equivalent position, and to make her whole for any loss of earnings or other bene- fits suffered as a result of the discrimination against her. Backpay shall be computed on a quarterly basis, from the date of the suspension to the date of a proper offer of reinstatement, less any interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).13 In addition, the Respondent shall be required to remove from its files any references to the unlawful suspension, and to notify Combs in writing that this has been done and that the suspension will not be used against her in any way. ORDER The National Labor Relations Board orders that the Respondent, Jackson Hospital Corporation d/b/a Ken- tucky River Medical Center, Jackson, Kentucky, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Suspending or otherwise discriminating against Frances Lynn Combs or any of its other employees for supporting United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL–CIO–CLC or any other labor organization. (b) 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, rescind Frances Lynn Combs’ suspension and offer her full rein- statement to her former job or, if that job no longer ex- ists, to a substantially equivalent position, without preju- dice to her seniority or any other rights or privileges pre- viously enjoyed. (b) Make Frances Lynn Combs whole for any loss of earnings and other benefits suffered as a result of the discrimination against her, in the manner set forth in the amended remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files any reference to Frances Lynn Combs’ unlawful suspension, and within 3 days thereafter notify Combs in writing that this has been done and that the sus- pension will not be used against her in any way. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an 13 On May 14, 2010, the Board invited all interested parties to file briefs in this and two other cases regarding the question of whether the Board should routinely order compound interest on back pay and other monetary awards in unfair labor practice cases, and if so, what the standard period should be for compounding. The Board has decided to sever this issue and retain it for further consideration in order to expe- dite the issuance of this decision regarding the remaining issues in this case. The Board will issue a supplemental decision regarding com- pound interest at a later date. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648 electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in Jackson, Kentucky, copies of the attached notice marked “Appendix.”14 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate 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 January 18, 2007. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. 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 suspend or otherwise discriminate against Frances Lynn Combs or any other employee for 14 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.” supporting United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL–CIO–CLC or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, rescind Frances Lynn Combs’ suspension and offer her full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or any other rights or privileges previously enjoyed. WE WILL make Frances Lynn Combs whole for any loss of earnings and other benefits resulting from her suspension, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful suspension of Frances Lynn Combs, and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the suspension will not be used against her in any way. KENTUCKY RIVER MEDICAL CENTER David L. Ness, Esq., for the General Counsel. Don T. Carmody, Esq., and Bryan Carmody, Esq., of Painted Post, New York, for the Respondent. Randy Pidcock, of Frankfort, Kentucky, for the Charging Party. DECISION STATEMENT OF THE CASE PAUL BUXBAUM, Administrative Law Judge. This case was tried in Jackson, Kentucky, over a period of 7 days commenc- ing on November 27, 2007, and concluding on April 9, 2008. The original charge was filed on August 11, 2005, with an amendment filed September 23. Additional charges were filed on September 21 and October 10, 2006, and January 19, 2007. The Regional Director issued a consolidated complaint on March 29, 2007. The parties entered into an informal settle- ment agreement on August 22, 2007. On October 16, 2007, the Regional Director issued an order vacating and setting aside that settlement agreement.1 This included an amended consoli- dated complaint and order rescheduling the matter for hearing.2 1 It is undisputed that the Respondent failed to comply with the terms of the parties’ settlement agreement. See Respondent’s answer to amended consolidated complaint, par. 7 (“Respondent has not complied with the informal settlement agreement . . . having informed the Re- gional Director that the Respondent was withdrawing from the settle- ment agreement.”). 2 During the trial, counsel for the General Counsel moved to further amend the complaint in two respects, changing the date of alleged discriminatee James Fields’ discharge from September 9, 2005, to August 31, 2005, and withdrawing the allegation that June Abadilla, M.D., was an agent of the Respondent within the meaning of the Act. KENTUCKY RIVER MEDICAL CENTER 649 The amended complaint alleges that Jackson Hospital Corpo- ration d/b/a Kentucky River Medical Center (the Hospital) unlawfully disciplined certain of its employees during each of 3 successive years commencing in 2005. It contends that James Fields was suspended on August 9 and discharged August 31 of that year. It next alleges that Shirley White and Louise Gross were suspended on September 19 and discharged October 2, 2006. Finally, it alleges that Frances Lynn Combs was sus- pended on January 18, 2007.3 Each of these disciplinary ac- tions are asserted to have been discriminatorily motivated by the employees’ protected union activities in violation of Section 8(a)(1) and (3) of the Act. The Hospital has filed an answer to the amended consolidated complaint denying the material alle- gations made against it. For the reasons set forth in detail in this decision, I find that the Hospital disciplined Gross and Combs in an unlawfully discriminatory manner. I further conclude that the General Counsel has failed to prove that the discipline imposed on Fields and White was similarly unlawful. On the entire record,4 including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Hospital, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation, operates a full service hospi- tal at its facility in Jackson, Kentucky, where it annually de- rives gross revenues in excess of $250,000 and purchases and receives at its Jackson, Kentucky facility goods and services valued in excess of $50,000 directly from points outside the Commonwealth of Kentucky. The Respondent admits5 and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act. I also find that the Union is a labor organization within the meaning of Section 2(5) of the Act. (Tr. 252, 476.) Both amendments were unopposed, and I authorized them. 3 It is undisputed that the Hospital has not offered employment to Combs since her so-called suspension more than a year ago. As a result, her suspension is the functional equivalent of a termination of her employment. 4 The transcript of the trial is generally accurate. During the final phase of the proceedings, with the participation of counsel, I clarified and corrected various errors in the transcription up to that point. I also noted that the indices delineating the portions of the transcript relating to the examination of each witness are inaccurate and should not be relied on. (See Tr. 1015–1023.) As to the final section of the tran- script, three errors require correction: at p. 1355, l. 12, “munch housing syndrome” should be “Munchausen syndrome,” at p. 1439, l. 12, “rela- tive” should be “relevant,” and at p. 1729, l. 22, “wrist” should be “risk.” All other errors are not significant or material. Finally, as agreed during the course of the trial, counsel for the Hospital has sub- mitted redacted copies of R. Exhs. 9, 12, 16, 17, 29, and 32. I have substituted these for the previously admitted versions in order to protect patients’ privacy. I have also directed that the unredacted versions be retained under seal. 5 See the Hospital’s answer to amended consolidated complaint, par. 2. (GC Exh. 1(z).) II. ALLEGED UNFAIR LABOR PRACTICES A. Introduction Community Health Systems, Inc., a corporation based in Tennessee, operates acute care hospitals in non-urban markets, primarily in the southeastern and southwestern regions of the United States. Its subsidiary, Jackson Hospital Corporation, maintains such a hospital in Jackson, Kentucky, under the name of the Kentucky River Medical Center. This is a 55-bed acute care facility and full service hospital with both inpatient and outpatient components. It employs approximately 275 to 300 persons. The United Steelworkers of America (the Union) began an organizing campaign among certain employees of the Hospital, culminating in a Board-conducted election. Based on the re- sults of that election, on June 8, 1998, the Board certified the Union as the collective-bargaining representative of various categories of employees including registered nurses and medi- cal lab technicians. One year later, during the course of con- tract negotiations, a unit member filed a decertification petition. This resulted in another election, after which the Board again certified the Union as collective-bargaining representative of those employees on August 2, 2000.6 At the same time, unit employees engaged in a strike against the Hospital from July 8 until August 15, 2000. The course of the parties’ labor relations included the filing of a number of unfair labor practice charges against the Hospi- tal during the period from June 16, 2000, through May 9, 2001. The General Counsel issued a consolidated complaint and a trial was held on various dates in 2001 before Administrative Law Judge David L. Evans. On February 20, 2002, Judge Ev- ans issued a decision finding that the Hospital had engaged in a variety of unlawful activities, including a refusal to bargain with the Union, imposition of unilateral changes in terms and conditions of employment for bargaining unit members, threat- ening employees with discharge or other forms of discrimina- tion due to their support for the Union, and issuing warnings and suspensions to employees because of their involvement in protected activities. Most significantly, Judge Evans found that the Hospital discriminatorily discharged eight bargaining unit members in August and September 2000, due to their involve- ment with the Union.7 As a result, he imposed a variety of remedial measures including the reinstatement of the dis- charged employees. In addition, “[b]ecause of the Respon- dent’s egregious misconduct, demonstrating a general disregard for the employees’ fundamental rights,” Judge Evans recom- mended that the Board issue a broad cease-and-desist order enjoining the Hospital from infringing the rights of its employ- ees in any manner. Kentucky River Medical Center, 340 NLRB 6 The Regional Director’s certification of the Union was approved by the Board and enforced by the Circuit Court in Jackson Hospital Corp., 333 NLRB No. 29 (2001) (not reported in Board volumes), enf. 33 Fed. Appx. 735 (6th Cir. 2002). 7 Judge Evans Also recommended dismissal of a number of the complaint allegations, including several alleged discriminatory disci- plinary actions. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650 536, 607 (2003), enfd. No. 04–1019 (unpublished) (D.C. Cir. 2005). On September 30, 2003, the Board adopted Judge Evans’ de- cision with minor modifications. In evaluating the propriety of the judge’s findings of unlawful discrimination against union members, the Board observed that the record “contains abun- dant evidence of threats, including multiple threats of dis- charge, supporting the judge’s finding of antiunion animus.” Above at 536. In addition to the order reinstating the eight discharged employees, the Board adopted the broad cease-and- desist remedy. By an unpublished opinion, the D.C. Circuit enforced the Board’s order on June 3, 2005.8 In the ensuing years, the parties’ relationship has remained contentious. In this case, the General Counsel asserts that the Hospital has continued to engage in unlawful conduct. In addi- tion, on January 25, 2007, the Board filed a petition with the D.C. Circuit seeking an adjudication of civil contempt against the Hospital for multiple alleged violations of the Board’s re- medial order entered in the prior proceeding. (GC Exh. 6.) The Hospital has filed a response denying the material allegations of that petition. (GC Exh. 7.) As of the conclusion of the trial in the present case, that matter is unresolved. As a result, I draw no conclusions regarding the General Counsel’s allegations of contumacious conduct by the Hospital’s management. It is undisputed that the Hospital and the Union have never succeeded in reaching agreement as to a contract. They have attended collective-bargaining sessions at which Don Carmody, the Hospital’s labor law attorney, has been the Employer’s lead negotiator. The Union has been represented at the sessions by its negotiating committee led by Randall Pidcock, its district organizing coordinator. Among the bargaining unit members who have attended collective-bargaining sessions as members of the Union’s committee were Shirley White, Louise Gross, and Frances Lynn Combs. In the present case, the General Counsel contends that the Hospital committed three distinct sets of unlawful disciplinary actions. Each set of alleged violations involves different cir- cumstances and personnel and they are separated in time. As a result, for purposes of clarity I will address the allegations indi- vidually by year of occurrence. For each such set of events, I will describe my factual conclusions and legal analysis in con- secutive fashion. Naturally, my discussion will begin with the earliest set of allegations. B. The Suspension and Discharge of James Fields in 2005 The Facts In his amended complaint, the General Counsel’s first allega- tion of unlawful discrimination by the Hospital is the conten- tion that it suspended James Fields on August 9, 2005, 8 The case has continued to spawn litigation. In Kentucky River Medical Center, 352 NLRB 194 (2008), the Board adopted Administra- tive Law Judge Margaret G. Brakebusch’s determinations as to the backpay owed to four of the unlawfully discharged employees. Admin- istrative Law Judge Michael A. Rosas has recommended a determina- tion as to the backpay owed to yet another of these discharged employ- ees in Kentucky River Medical Center, 2008 WL 593776 (2008). and terminated him on August 31, due to his union activities.9 Fields was hired by the Hospital in October 2000 for a position as a medical laboratory technician.10 He continued to serve in that position until the adverse actions taken against him in Au- gust 2005. His job duties consisted of drawing blood from patients and running laboratory tests on samples of blood and urine to aid in the diagnosis and treatment of those patients. Fields testified that he joined the Union in 2001 and mani- fested his decision by signing a union card given to him by another laboratory employee. He further reported that he de- cided to escalate his involvement in the Union in February or March 2005. He testified that he had a meeting with Randy Pidcock, the Union’s district organizing coordinator. He de- scribed their conversation as follows: FIELDS: I told him then, you know, I . . . wanted to get involved in any way I could, and . . . Randy mentioned maybe the Negotiating Committee or . . . one of the other committees of the Union. COUNSEl: And what did you say? FIELDS: I said I’d like to be a part of the Negotiating Committee. (Tr. 214.) While his testimony on direct examination indicated that Fields approached Pidcock to volunteer his services, it was significantly undercut on further inspection. Counsel for the Hospital confronted Fields with an affidavit he provided shortly after his suspension. In that document, Fields stated that, “Pid- cock asked me if I would join the Union’s Negotiating Com- mittee. I accepted the invitation.” (Tr. 293.) Counsel pressed the point by asking Fields if it was “a case of Mr. Pidcock ask- ing you to join the committee, or is it a case of you saying you wanted to join the committee?” (Tr. 293–294.) Fields replied that he didn’t “really recall.” (Tr. 294.) Fields continued his account by indicating that a couple of days after his discussion with Pidcock, he approached his su- pervisor, Diane Blankenship. The circumstances of their con- versation were a bit unusual as Fields was not on duty at that time.11 Instead, he traveled to the office after visiting a nearby clinic for a medical appointment. Upon meeting Blankenship at the lab, Fields testified that he told her that he “was going to be on the Negotiating Committee.” (Tr. 217.) He reported that her only response was to say, “well.” (Tr. 217.) 9 All dates in this portion of the decision are in 2005 unless other- wise indicated. 10 Fields reported that he became a so-called phlebotomy supervisor in 2004. Although the Hospital did not allege that he possessed super- visory status under the Act in its pleadings, counsel did tentatively raise this issue once Fields provided this testimony. Subsequently, counsel withdrew any defense based on Fields’ purported supervisory status. See Tr. 1024. Counsel’s action in this regard is entirely consistent with the testimony of the Hospital’s director of human resources who stated that she was “unaware” of any supervisory authority on the part of Fields. (Tr. 941.) 11 This would make sense as Blankenship’s shift ended at 4:30 p.m. Fields’ work hours were from 10 p.m. until 6:30 a.m. As a result, ab- sent something unusual, it would be impossible for them to have a face- to-face conversation at the lab. KENTUCKY RIVER MEDICAL CENTER 651 Approximately a month after his initial asserted conservation with Blankenship about his committee membership, Fields claimed to have had a second discussion of the matter with her. During a telephone conversation, he advised her that a negotiat- ing session was planned for the following day. He noted that he was scheduled to work and informed her, “that I’d work that night, you know, because I was supposed to get time off for negotiations. And I told her that I was already on the schedule, that I’d work that night and—but in the future, that nights be- fore negotiations that I’d need off.” (Tr. 218.) Fields testified that he was later informed by Pidcock that the bargaining ses- sion had been cancelled. In his testimony, Fields was clear that he never actually at- tended any bargaining sessions or performed any other duties on behalf of the Union’s negotiating committee. He also agreed that the only evidence that the Hospital was aware of his membership on the committee consisted of his two conversa- tions with Blankenship.12 By contrast, Blankenship testified unequivocally that she was entirely unaware of Fields’ union activities and that they never had any discussion of his in- volvement. In particular, she specifically denied any conversa- tion regarding a need to accommodate Fields’ work schedule so that he could attend collective-bargaining sessions. It is now necessary to examine the events that immediately preceded the suspension and discharge of Fields. On the night of August 1–2, Fields was at work in the laboratory. He testi- fied that he was experiencing “severe abdominal pain” and nausea. (Tr. 222.) He interpreted this as a recurrence of pan- creatitis, a condition for which he had been diagnosed in 2001.13 At approximately 2 or 3 a.m. on August 2, he decided to test his blood for signs of this illness. He testified that he drew his own blood and proceeded to perform the steps neces- sary to analyze the sample. In particular, he reported that he performed an analysis of his levels of two important blood enzymes, amylase and lipase.14 The printed report of the re- 12 Fields did make a passing reference to telling Sharon Noble of his membership on the committee. He indicated that she was “a Blood Bank supervisor.” (Tr. 296.) I discussed the significance of this matter with both counsel. As there was no agreement regarding Noble’s pos- session of supervisory status, I observed that, if counsel for the General Counsel were to rely on Fields’ reported discussion with Noble, it was his burden to prove such status or other type of agency or managerial relationship with the Hospital. See, NLRB v. Kentucky River Commu- nity Care, Inc., 532 U.S. 706, 711 (2001). (This is the same river in Kentucky, but a different employer.) No such proof was offered. As a result, any knowledge allegedly acquired by Noble cannot be imputed to the Hospital. 13 In an effort to support Fields’ testimony, the General Counsel in- troduced his medical records from an admission to the Hospital during the preceding month of June. (GC Exh. 34.) Counsel argued that these records showed that he had been treated for pancreatitis on that occa- sion, “just two months earlier.” (Tr. 262.) Actually, those records show that he was diagnosed with a “[n]onspecific systemic viral ill- ness.” (GC Exh. 34, p. 2.) While the records do note a past history of pancreatitis, they also report that, on this occasion, his “amylase and lipase were within normal limits and this effectively rules out any is- sues of pancreatitis.” (GC Exh. 34, p. 7.) 14 A well-known medical reference manual, in pertinent part, notes that, “laboratory tests cannot confirm a diagnosis of acute pancreatitis but can support the clinical impression. Serum amylase and lipase sults shows that his amylase was 425, a level well above the normal range of 27 to 131. (GC Exh. 35.) After obtaining the results of his self-administered blood tests, Fields reported that he discarded the tube containing his blood sample. When asked why he did so, he testified that, “we were always told that any blood that didn’t have a label on it, to make sure we disposed of it.” (Tr. 225.) When further asked why he could not have labeled his tube, he responded that the printer only provided labels for a “registered patient.”15 (Tr. 225.) Fields continued to work for the remainder of his shift. He also reported for work on the night of August 2-3. He testified that he was still suffering from abdominal pain and nausea. He decided to perform another analysis of his blood. Once again, he drew his own sample and ran tests of his amylase and lipase levels. The results were printed from the machine at 10:42 p.m. on August 2 and show his amylase at 646. (GC Exh. 36.) Fields reported that he again discarded the tube containing his blood sample. He resumed working until sometime between 4 to 5 a.m. on August 3. At that time, he spoke to his family doctor, Edward Burnette, M.D. Their conversation took place in a hallway at the Hospital. Fields testified that he informed Dr. Burnette that his amylase was high and was instructed to “come on over to the [Emergency Room] and that he’d proba- bly just go ahead and direct admit me.” (Tr. 235.) At approximately 5:15 a.m., Fields went to the emergency room.16 Burnette instructed him to speak with a medical stu- dent on duty at that time. He showed the student the two labo- ratory reports from his self-administered blood tests. The stu- dent told him to keep the reports until he was admitted. He was admitted as an in-patient at approximately 6:15 a.m. One hour later, Lab Assistant Amanda Turner came into his room with orders to draw a blood sample from Fields. Fields told her that he had already performed the tests on his own blood and gave her his lab reports. She accepted these in lieu of taking a sam- ple of his blood. Turner confirmed Fields’ account, adding that she had never before experienced such a situation. When she returned to the lab with Fields’ self-administered test results, the lab techni- cians refused to accept them. She testified that they explained that, “We had to have his actual blood work, you know, that we concentrations increase on the first day of acute pancreatitis and return to normal in 3 to 7 days.” The Merck Manual, Merck & Co., Inc., p. 271, 17th ed. 1999. The quotation is from the edition in effect during the events at issue. The current edition contains essentially identical language. 15 This would seem to raise the issue of the propriety of a laboratory employee using the facility to obtain test results outside the regular course of medical diagnosis and treatment. Indeed, the Hospital’s disciplinary manual lists “examples of unacceptable behavior,” includ- ing, “[u]se of hospital or facility material, time or equipment for the manufacture or production of any article for unauthorized purposes or for personal use.” (GC Exh. 8, p. 20.) Nevertheless, testimony from witnesses for both sides established that the Hospital condoned the practice of lab employees obtaining analysis of personal samples. As a result, counsel for the Hospital stipulated that the employer does not rely on any violation of the quoted policy as supporting its discipline of Fields. (Tr. 1024.) 16 This would have been during the latter part of his work shift which ran from 10 p.m. to 6:30 a.m. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652 drew on him to make sure that it was his.” (Tr. 1477.) Another lab assistant, Kim Johnson, was present in the lab on this occa- sion. She also reported that the lab technicians refused to ac- cept Fields’ results because, “they just said they didn’t feel comfortable releasing something that they didn’t see one of us draw.” (Tr. 1463.) As a result, Johnson agreed to go to Fields’ room to draw a blood sample. She did so with some trepida- tion, asking Turner to accompany her since she thought “he might have hard feelings thinking I didn’t trust him or some- thing.” (Tr. 1465.) Turner agreed to go with Johnson, observ- ing that she did so because she “didn’t want him to get mad.” (Tr. 1478.) Fields testified that within an hour after he provided his own test results to Turner, Johnson came to his room and drew a blood sample from him. He reported that he was told that, “Dr. Burnette wanted it redrawn.” (Tr. 367.) The medical records reflect that the laboratory tests on the blood sample drawn by Johnson were performed at 8:40 a.m. on August 3. The amy- lase level was recorded at 75, well within the normal range of 27 to 131. (R. Exh. 3, p. 20.) At 12:03 a.m. on August 4, the laboratory performed another set of tests on a new sample of Fields’ blood. The results for the blood enzymes were entirely normal, with the amylase be- ing recorded at 48. (GC Exh. 33, p. 2.) Fields received a visit from Dr. Burnette later that morning. He testified that he told his physician that, “I really wanted to be discharged, because, you know, I was feeling better and that I really didn’t want to miss any work. And he said he’d discharge me.” (Tr. 242.) He indicated that Burnette told him that his amylase “was back down to normal” and he did not see any problem with Fields’ being discharged. (Tr. 244.) Burnette asked him if he desired any pain medications and Fields declined, noting that he al- ready had some from a prior prescription. Burnette referred him to a specialist located in Lexington. Fields testified that Burnette never discussed the test result numbers from his self- administered blood tests. Fields was discharged from the Hospital in the late morning of August 4. He returned to his job at the laboratory at 10 p.m. that day. Dr. Burnette, Fields’ treating physician, testified in detail re- garding the circumstances of Fields’ admission and course of treatment. He noted that Fields had approached him and told him that “he had drawn his own blood and had run some tests and that he had pancreas—flare up of his pancreas. The labs were abnormal and we admitted him to the hospital.” (Tr. 1344.) Those lab results showed Fields’ amylase at 646, well above 150, the upper limit of the normal range. Given his pa- tient’s prior history of pancreatitis and this test result, Burnette decided that hospitalization was appropriate. Approximately 3 hours later, Burnette ordered additional lab testing to check Fields’ condition and the amylase results were normal at 75.17 Another followup test showed the amylase level to be 48. This constituted an unusual pattern of results that Burnette considered to be a “discrepancy.” (Tr. 1351.) 17 Burnette testified that he ordered the repeat testing because “it just seemed so strange” that Fields had drawn his own blood and performed his own analysis. (Tr. 1381.) Specifically, the nature of the discrepancy was that it typically was a slow process to bring down an abnormally high amylase level, taking a “good three days.” (Tr. 1361.) Burnette testified that this caused him to reevaluate the entire episode. In so do- ing, he noted that, “The thing that impressed me was that he, he didn’t appear to be acutely ill as I would expect.” (Tr. 1351.) This was striking to Burnette because pancreatitis is a “very painful thing and it just didn’t strike me that he was in acute distress.” (Tr. 1378.) In addition, Fields had a normal white blood count and an absence of fever. Burnette articulated his thought process as follows: [H]ow can that be, could [amylase] go down that quick and it couldn’t, it just couldn’t do it that quickly . . . . I thought well how can this be and the fact that he drew—it just, it just was a red flag to me that this man draws his own blood, which to me was unusual. I mean I’ve never heard of somebody doing that. Draw your own blood. Run your own test and then bring it to the doctor and say, here I am. I’m sick. Put me in. And, [he] just didn’t seem to me to be acutely ill like someone with pancreatitis. They’re usually pretty sick and they’re hurting petty bad. So I repeated the labs and they weren’t[,] they were normal. (Tr. 1352.) Having proceeded this far in his thought process, Burnette decided to ask the laboratory to retest Fields’ self-drawn blood sample. As Lab Director Blankenship confirmed, this was the “usual process when we have lab values that are inconsistent.” (Tr. 1195.) Indeed, she noted that the lab retains serum sam- ples for 48 hours for precisely this eventuality. Despite this usual practice, Burnette was advised that the sample was un- available for further testing. Upon learning this, his concerns were amplified. As he put it, I thought perhaps this man is manipulating. He’s got an ulte- rior motive for being in the Hospital. If you draw your own blood, you run your own test and now you can’t find the blood sample that you had, that’s unusual. That’s just—that’s a lot of coincidences on one admission. (Tr. 1354.) Confronted with this dilemma involving potential conflict among his professional obligations toward his patient, his em- ployer, and the protection of the integrity of the laboratory for the benefit of all patients, Burnette took steps to meet his re- sponsibilities. Regarding his patient, he testified that he de- cided to give Fields “the benefit of the doubt,” by discharging him with a diagnosis of recurrent pancreatitis and a prescription for pain medications. (Tr. 1357.) As to his other perceived obligations, he reported his concerns to Denise Asher, the act- ing supervisor of the laboratory during an absence by Blankenship. Fields’ medical records document Burnette’s struggle to un- derstand what he had observed. Burnette’s discharge summary notes, He [Fields] had his lab work done by himself on the morning of admission, which revealed an amylase of over 600. Three hours later, we had techs to draw blood on the patient and his KENTUCKY RIVER MEDICAL CENTER 653 amylase is 75. This morning, his amylase is normal at 48 and his lipase is 34. From a medical point of view, I cannot ex- plain this drop and will address this with the patient. (GC Exh. 33, p. 2.) Upon being informed by Asher of Burnette’s concerns, Blankenship commenced an investigation. She spoke with Burnette and then scheduled a meeting with Fields. That meet- ing was held on August 9. The Hospital’s human resources director, Naomi Mitchell, was present, along with Blankenship and Fields. Fields reported that he confirmed to Blankenship that he had twice taken his own blood samples and performed tests for amylase. He indicated that she asked him if the blood samples could have been mixed up with anyone else’s and he told her that he “knew that the blood was mine.” (Tr. 246.) Blankenship reported that she confronted Fields with the in- ability to locate his blood samples for retesting. She testified that, “she asked him if he had any idea why they couldn’t find it, and he said no, he didn’t have any idea.” (Tr. 1217.) Her account was corroborated by Mitchell who testified that Fields told Blankenship that he could not explain the discrepancy cited by Dr. Burnette. When asked about the location of the blood sample, he stated that he “didn’t know where it was” and “didn’t know what happened to it.” (Tr. 1580, 1585.) When recalled as a rebuttal witness, Fields disputed these accounts, contending that he told Blankenship that “I threw it away be- cause it wasn’t labeled.” (Tr. 1745.) At the conclusion of this meeting, Fields was informed that he was being placed on an investigatory suspension. This was documented in a letter sent to him on August 10. (GC Exh. 15.) During the course of the investigation, Blankenship re- ported her recommendation to the Hospital’s chief executive officer, O. David Bevins. That recommendation was for termi- nation of Fields’ employment because, as she described it, she was convinced that Fields’ test results had been “adulterated,” and she was unwilling to take responsibility for the continued employment of a laboratory technician who would adulterate test results. (Tr. 1231.) Bevins testified that he decided to approve the termination decision based on Blankenship’s rec- ommendation and Dr. Burnette’s assertion that “there’s no way these reports could have differed in such a short period of time.” (Tr. 1659.) On August 31, Fields was sent a letter terminating his em- ployment due to his “behavior in connection with your prepara- tion of lab tests regarding yourself, and your subsequent [pres- entation] in the Hospital’s Emergency Room.” (GC Exh. 16.) Fields has not been employed by the Hospital at any time since. Legal Analysis of Fields’ Suspension and Discharge The General Counsel alleges that the disciplinary actions taken against Fields were fatally tainted by discriminatory mo- tivation arising from his protected union activities. In assessing such a claim, I must apply the analytical framework devised by the Board in Wright Line.18 A comprehensive exposition of 18 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Mgt. Corp., 462 U.S. 393, 399–403 (1983). that test was provided by the Board in American Gardens Man- agement Co., 338 NLRB 644, 645 (2002): Wright Line is premised on the legal principle that an employer’s unlawful motivation must be established as a precondition to finding an 8(a)(3) violation. In Wright Line, the Board set forth the causation test it would hence- forth employ in all cases alleging violations of Section 8(a)(3). The Board stated that it would, first, require the General Counsel to make an initial showing sufficient to support the inference that protected conduct was a moti- vating factor in the employer’s decision. If the General Counsel makes that showing, the burden would then shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected con- duct. The ultimate burden remains, however, with the General Counsel. To establish his initial burden under Wright Line, the General Counsel must establish four elements by a pre- ponderance of the evidence. First, the General Counsel must show the existence of activity protected by the Act. Second, the General Counsel must prove that the respon- dent was aware that the employee had engaged in such ac- tivity. Third, the General Counsel must show that the al- leged discriminate suffered an adverse employment action. Fourth, the General Counsel must establish a motivational link, or nexus, between the employee’s protected activity and the adverse employment action. If, after considering all of the relevant evidence, the General Counsel has sustained his burden of proving each of these four elements by a preponderance of the evidence, such proof warrants at least an inference that the em- ployee’s protected conduct was a motivating factor in the adverse employment action and creates a rebuttable pre- sumption that a violation of the Act has occurred. Under Wright Line the burden then shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. (Internal quotation marks, citations, footnotes, and language not relevant to this case have been omitted.) See also the Board’s discussion of this quoted language and Chairman Schaumber’s additional commentary in Frye Elec- tric, Inc., 352 NLRB 345 fn. 2 (2008). In applying this test, the first steps are the determinations as to whether Fields participated in protected union activities and whether the Hospital knew of his involvement in such activi- ties. Because these matters are intimately intertwined in this case, I will evaluate them together. Fields testified that he joined the Union in 2001. More sig- nificantly, he reported that he became a member of the Union’s negotiating committee in “February or March of ’05.” (Tr. 213.) The impact of this testimony was substantially undercut by Fields’ imprecision in explaining how he became a member of the committee. In one version, he solicited an invitation to such membership, while in another he contended that he was recruited by Pidcock. When asked to reconcile these accounts, he was unable to say more than that he did not “really recall” how his membership on the committee came about. (Tr. 294.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 654 As to other committee members, Gross supported Fields’ ac- count that he joined the committee in 2005, but was unable to recall whether he attended any meetings. White merely re- called that Fields “was going to be on the negotiating commit- tee.” (Tr. 591.) Neither witness provided any indication that his participation ever came to the attention of management. It is entirely undisputed that Fields never attended any actual bargaining sessions. As a result, management never had occa- sion to observe his presence as a member of the Union’s nego- tiating team. Nor was there any evidence that Fields engaged in other committee activities that would bring his membership to management’s attention. It is fundamental that an employer cannot be found to have engaged in unlawful discrimination based on an employee’s protected activities unless that employer has been shown to have knowledge of those activities. The Hospital vigorously asserts that it lacked any such knowledge regarding Fields. In its leading case on the subject, the Board has held that the trier of fact must make a wide ranging inquiry on the issue of knowledge, taking into account both direct evidence and “cir- cumstantial evidence from which a reasonable inference of knowledge may be drawn.” Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enf. 97 F.3d 1448 (4th Cir. 1996). I will now examine both forms of evidence on this question. It is noteworthy that the direct evidence of the Hospital’s knowledge of Fields’ membership on the committee consisted entirely of his own assertion that he twice discussed the matter with his supervisor, Blankenship. On the other hand, she flatly denied the existence of either conversation. Faced with this stark conflict, I must necessarily turn to an examination of the surrounding circumstances. As the Board has observed, “[w]here demeanor is not determinative, an administrative law judge properly may base credibility determinations on the weight of the respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences which may be drawn from the record as a whole.” Daikichi Sushi, 335 NLRB 622, 623 (2001), enf. 56 Fed. Appx. 516 (D.C. Cir. 2003) (In- ternal quotation marks and citation omitted.) In examining the record as a whole, I am struck by the utter lack of corroboration in circumstances that cry out for such supporting evidence. It will be recalled that Fields explained that a key reason for his discussions of the matter with Blankenship involved the need to accommodate his work schedule to the parties’ bargaining plans. He reported that he took pains to explain to Blankenship that, “I was supposed to get time off for negotiations.” (Tr. 218.) This certainly raises an expectation that the Union would inform management of any changes to the composition of its negotiating committee so as to facilitate this scheduling process. No evidence of any such communication from the Union was provided. In particular, it was noteworthy that Pidcock, although present throughout vir- tually the entire trial, was not called as a witness to shed light on this key aspect of Fields’ case. I conclude that the failure to elicit testimony from Pidcock regarding Fields’ membership on the negotiating committee and, what, if any, steps he took to notify the Hospital that Fields had joined the committee requires the drawing of an adverse inference. In reaching this conclusion, I have followed the Board’s instructions that, Normally, it is within an administrative law judge’s discretion to draw an adverse inference based on a party’s failure to call a witness who may reasonably be assumed to be favorably disposed to the party and who could reasonably be expected to corroborate its version of events, particularly when that witness is the party’s agent and thus within its authority or control. It is usually fair to assume that the party failed to call such a witness because it believed that the witness would have testified adversely to the party. Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022 (2006). See also Martin Luther King, Sr., Nursing Center, 231 NLRB 15, fn. 1 (1977) (failure to produce testimony from su- pervisory employees justified adverse inference against em- ployer), and NLRB v. Iron Workers, 124 F.3d 1094, 1101 (9th Cir. 1997) (Board’s “well established” use of adverse inference was properly applied where union officials failed to testify in support of the union’s position). The significance of the failure to produce documentary evi- dence of Fields’ membership on the committee and any notifi- cation by the Union to management regarding his membership was highlighted by testimony from Combs. When discussing her own participation on the same committee, she was asked whether there had been any communication to the Hospital, “that you had joined the bargaining committee.” (Tr. 101.) She answered affirmatively, adding that, “Mr. Pidcock said that he would be sending a letter to the facility making them aware that I was now serving on the bargaining committee.”19 (Tr. 101.) She also testified that she had seen a “flyer information sheet” that listed her as a member of the committee. (Tr. 102.) In evaluating the inherent probabilities regarding Fields’ al- leged participation on the negotiating committee and his em- ployer’s awareness of his role on that committee, I place great weight on the absence of the sort of evidence alluded to by Combs when relating her own experience on the committee. It makes sense that the Union would announce the addition of a new member on such an important committee. Such an an- nouncement would alert fellow unit members regarding the identity of their new representative in collective-bargaining negotiations. Similarly, a communication from the Union to the Hospital’s management would appear to be a logical man- ner of providing formal notification of Fields’ status. In par- ticular, it would enable management to accommodate his work schedule to the needs of the bargaining process. Thus, the fail- ure to provide any evidence whatsoever that the Union took these common sense measures constitutes compelling circum- stantial evidence indicating that Fields’ account of his member- ship on the committee and discussion of such membership with his supervisor are not reliable. 19 I note that Combs’ testimony on this point is consistent with her claims in a lawsuit that she has filed against the Hospital. In that com- plaint, filed in Kentucky’s Circuit Court, she stated, “Randy Pidcock, the Union’s top negotiator, sent a letter to [Kentucky River Medical Center] indicating that Combs was on the Bargaining Committee.” (R. Exh. 2, p. 2.) KENTUCKY RIVER MEDICAL CENTER 655 Before reaching a final determination on the issues of the na- ture of Fields’ protected activities and the employer’s knowl- edge of those activities, I have also carefully considered the employer’s stated reasons for deciding to suspend and dis- charge Fields. In Montgomery Ward, supra, the Board specifi- cally approved the practice of examining the employer’s expla- nations of the rationale for its disciplinary decisions to deter- mine what light they may shed on the issue of knowledge of protected activities. Thus, the Board noted that it has inferred the element of knowledge where the stated reasons for disci- pline are “baseless, unreasonable, or contrived.” 316 NLRB at 1253. Beyond this, an inference of knowledge may be appro- priate where the employer’s asserted reasons for discipline, while not “patently contrived,” are nevertheless weak justifica- tions for the adverse actions. 316 NLRB at 1253. See also, State Plaza, Inc., 347 NLRB 755, 757 (2006) (pretextual rea- sons for discipline of employee used to establish the element of knowledge). While in the cited cases the employers’ unpersuasive expla- nations contradicted a claim of lack of knowledge of union activities, in this case the strength of the Hospital’s rationale for dismissing Fields supports its contention that it was unaware of his alleged involvement on the negotiating committee. In reaching this conclusion, I accord significant weight to the testimony of Dr. Burnette. It will be recalled that Burnette made the initial request to management to conduct an investiga- tion of Field’s behavior. He took this action based on his ob- servation that Field’s self-administered blood test showed his amylase to be 646 while a test conducted on a sample of Fields’ blood drawn just hours later showed an amylase level of only 75. Additional testing showed the level to be 48. Burnette’s uncontroverted expert opinion was that this pattern of test re- sults was medically anomalous because it would require a pe- riod of at least 3 days for a pancreatitis patient’s amylase level to decline to such a degree.20 Beyond this, Burnette reported that he assessed other pertinent signs and symptoms that further aroused his suspicions. In particular, he testified that Fields’ clinical presentation was inconsistent with what one would expect in a patient who was acutely ill with pancreatitis. He noted that this condition is extremely painful, yet Fields did not appear to be in acute distress when he approached Burnette for treatment. In addition, Fields’ clinical picture contained other inconsistencies with a diagnosis of acute pancreatitis. Specifi- cally, he had a normal white blood count and an absence of 20 Counsel for the General Counsel contends that Burnette’s conclu- sions were “contradicted” by Dr. June Abadilla. (GC Br. at p. 10.) This is inaccurate. Her testimony on this issue was largely confined to her assessment of the medical records regarding Fields’ lipase levels. Regarding the amylase results, she observed that, “Amylase stays longer in the blood when you have pancreatitis . . . it takes longer to come down to normal.” (Tr. 495.) She also took great pains to empha- size that blood tests should not be considered in isolation from other findings, including the results of the clinical examination. As she suc- cinctly explained, “You’re not going to treat a lab result, you’re going to treat a patient.” (Tr. 493.) She stressed that it was vital to observe the patient’s “clinical condition.” (Tr. 493.) This is a mirror image of Dr. Burnette’s thought processes. In sum, her testimony was essen- tially consistent with, and corroborative of, Burnette’s account. fever. Finally, Burnette testified that his concerns were ampli- fied when he contacted the laboratory to request retesting of Fields’ self-drawn blood sample and was told that it was un- available. It was this combination of factors that led to his decision to request an investigation of Fields’ behavior. Burnette’s demeanor and presentation as a witness provided powerful support to his testimony that Fields’ behavior in seek- ing admission to the Hospital was both extraordinary and suspi- cious. Through his tone of voice and body movements, he conveyed a sense of genuine surprise and shock that a labora- tory employee would draw his own blood and present his phy- sician with self-administered test results in an effort to support a case for hospitalization.21 In addition, I found his evident struggle to balance his conflicting duties to his patient and the Hospital to be credible. The fact that, despite grave doubts, he continued to provide treatment for Fields’ asserted condition, underscores his attempt to fulfill his professional obligations toward all of the parties, including his patient. It is entirely consistent with his prompt notification of the laboratory regard- ing his fears about the integrity of the lab results. In other words, viewed in relation to each other, Burnette’s actions to- ward his patient and his employer were logical and appropriate. They do not suggest any animus against Fields personally or as a union supporter.22 Assessing the Hospital’s conduct with respect to Fields, I have looked beyond the propriety of Burnette’s initial referral of Fields’ unusual conduct to management for investigation. In particular, I have focused on the manner in which the ensuing investigation was conducted and on the reasonableness of the conclusions that management derived from that investigation, including their evaluation of statements made by Fields during that process. In examining the quality of the Hospital’s investigation, I have been mindful that the Board considers the failure to con- duct a thorough and fair inquiry into an employee’s alleged misconduct to be potentially powerful evidence of unlawful motivation. For example, in Midnight Rose Hotel & Casino, 21 I had the same impression when a number of other witnesses testi- fied regarding the highly unusual nature of a person drawing his own blood. The witnesses, all of whom were experienced hospital employ- ees, appeared surprised and perhaps a bit disgusted by this behavior. This came across not merely in their words, but in their tone, facial expressions, and body language. 22 I recognize that Judge Evans found that, in 2000, Dr. Burnette had threatened that employees who participated in the strike against the Hospital should be fired. Jackson Hospital Corp., 340 NLRB 536, 550 (2003). In making this finding, the judge noted that Burnette had not been called to testify. As a result, he did not have the opportunity to evaluate Burnette’s reliability as a witness. While I do not doubt that Burnette may harbor some animus against the Union, I found no evi- dence that his actions with regard to Fields were in any way motivated by such views. As I have indicated, those actions represented an effort to delicately balance his obligations as both a member of the Hospital’s professional staff and a treating physician for this particular patient. This is an example of an instance when there is a failure to prove a nexus between any antiunion animus and the adverse action taken against a unit member. Instead, the evidence demonstrated that the crucial link in the motivational chain was Burnette’s concern for the integrity of the laboratory. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 656 Inc., 343 NLRB 1003 (2004), affd. 198 Fed. Appx. 752 (10th Cir. 2006), the employer’s lack of investigation and failure to give the employee an opportunity to explain her conduct were deemed significant indicators of discriminatory motivation. Conversely, in Caesars Atlantic City, 344 NLRB 984 (2005), rev. denied 196 Fed. Appx. 59 (3d Cir. 2006), the Board adopted my reasoning that the employer’s careful and complete investigation of alleged misconduct supported a conclusion that the ensuing adverse action was lawful. In this case, the investigation was conducted by Blankenship with assistance from Naomi Mitchell, the Hospital’s human resources director. Blankenship testified that she began her inquiry by discussing the matter with Burnette. She testified that she learned that Burnette “was certain that [the test results] had been falsified in some way.” (Tr. 1186.) She then exam- ined the medical records and interviewed laboratory employees in an effort to learn why Fields’ self-administered tests had not been checked by rerunning the tests on another portion of the original blood sample. She testified that this was the usual procedure employed when lab values were inconsistent, noting that, “We keep samples for at least 48 hours for that purpose, for retesting, serum samples.” (Tr. 1196.) In speaking to the employees, she learned that the original samples were missing. She also confirmed that Fields had declined to permit Turner to draw a new sample, giving her his own test results instead.23 On August 9, Blankenship and Mitchell met with Fields. There was a complete discussion of the incident at issue. Fields was asked if there was any chance that his blood could have been mixed up with someone else’s sample. He testified that he responded by telling Blankenship that, “I knew that the blood was mine.” (Tr. 246.) The content of one key aspect of their further discussion was disputed during the testimony at trial. The meeting participants all agree that Blankenship asked Fields about the inability to locate his blood sample. Fields reported that he told her that he had thrown it away because of the lab’s policy against retaining unlabeled blood samples. Blankenship and Mitchell both stated that Fields made no men- tion of discarding the sample, instead claiming that “he didn’t know where it was” and “didn’t know what happened to it.” (Tr. 1580, 1585.) In resolving this conflict, I have again looked to the inherent logic of the situation. Fields supports his claimed explanation that he threw away his sample by noting that it was not labeled and that policy prohibited retention of such unidentified blood. It is readily understandable that the laboratory procedures would prohibit storage of unidentified blood samples. The difficulty with this rationale is Fields’ further contention that he was unable to label his sample because the printer would only print labels for admitted patients. I credit Blankenship’s testi- mony that samples were given handwritten labels for a variety of reasons including cases where blood was drawn on an emer- gency basis or at a patient’s residence by a home health aide, as 23 Fields’ attempt to avoid having another blood sample taken under- cuts counsel for the General Counsel’s argument that “Fields had nothing to hide by presenting the tests that he ran because he assumed that he would be re-tested when he was admitted as a patient.” (GC Br., at p. 8.) To the contrary, Fields actively tried to avoid such retesting. well as, instances when a lab employee’s own blood was being tested. That testimony was corroborated by lab employees, Johnson and Turner. Equally importantly, it is supported by common sense and everyday experience in the age of com- puters.24 It defies belief to expect that a hospital’s laboratory would lack a procedure to label samples during periods when its computer and printer might be inoperative. After speaking with Burnette, examining the medical re- cords, interviewing laboratory employees, and giving Fields an opportunity to present his side of the story, Blankenship con- cluded that she would recommend termination of Fields’ em- ployment. She testified persuasively and in detail regarding her thought process. She readily agreed that it was common prac- tice for laboratory employees to have tests performed on their blood. Nevertheless, she was struck by the fact that Fields had also drawn his own sample, noting that the drawing of blood was a “two-handed procedure” and that it would be both “un- usual” and “very difficult” for someone to do it alone. (Tr. 1196–1197.) This conduct was inexplicable since the ordinary practice was for the employee to ask a coworker to perform this service for them. As she put it, during her long experience in medical laboratories, “I’ve never heard of anyone drawing blood from themselves.” (Tr. 1242.) The next troublesome aspect of Fields’ conduct cited by Blankenship was the fact that he only obtained test results for lipase and amylase. She noted that the usual way to perform blood tests was to produce a complete set of results. As she put it, “you only have to hit one key and you’ll get the whole panel.” (Tr. 1211.) She concluded that the reason that Fields took care to isolate the amylase and lipase results was as fol- lows: If you are going to adulterate or falsify, if you wanted to make your amylase appear higher than it should, you don’t want to make the rest of your lab work very inconsistent with what it would normally be, because then that would be an obvious— obvious falsification. (Tr. 1211.) Blankenship also considered whether a laboratory technician would be able to produce false readings for amylase. In that regard, she noted that there were “many ways” to do so, and that the simplest way would be to use a “pinprick of saliva [that] would make the amylase read ‘very high.’”25 Of course, the central aspect of Blankenship’s reasoning process was her consideration of the trajectory of the test re- sults. Once again, she provided clear and cogent insight into her reasoning: [J]ust in looking directly at the numbers, they don’t make any sense. If you have an insult to an—an organ system, the pan- 24 In fact, Fields himself confirmed that the lab’s printer broke down “[a]ll the time,” and that they would then “just get a roll of blank . . . labels and write their name, birth date.” (Tr. 1747, 1748.) 25 Interestingly, Fields confirmed that one could use “spit” to create a falsely elevated amylase reading. (Tr. 384.) He also noted that this would throw off other lab values as well. All of this tends to confirm the validity of Blankenship’s analysis. In fairness, I also note that Fields testified that he did not use saliva to alter his test results. KENTUCKY RIVER MEDICAL CENTER 657 creas, or whatever, there—there’s a response, an acute pan- creatitis[.] [T]he amylase usually will elevate as long as the insult’s present, the infection’s present, or the blockage is pre- sent, the amylase will rise or—and continue to stay elevated as long as that process is ongoing. And once it resolves, the amylase slowly is cleared from the system over a period of 24, 48, even 72 hours, depending on how—how high it was initially. It does not make sense for amylase to be signifi- cantly elevated several times above normal at three o’clock in the morning, and then five hours later be completely normal. That just does not make any sense clinically, and that was Dr. Burnette’s stance. (Tr. 1230.) Based on these considerations, Blankenship testified that she was “satisfied” that Fields’ self-obtained test results had been “adulterated.”26 (Tr. 1231, 1232.) Because she felt that she could not tolerate the responsibility of retaining a laboratory employee who was willing to adulterate test results, she rec- ommended that Chief Executive Officer Bevins discharge Fields. Bevins testified both that he was unaware of any union activ- ity by Fields and that he concurred with Blankenship’s reason- ing and recommendation. As a result, Fields was terminated as of August 31. In sum, I find that the Hospital conducted a full, fair, and ap- propriate investigation and that the results of that inquiry sup- ported the decision to terminate Fields’ employment because his retention would pose a danger to the integrity of the labora- tory’s procedures.27 The reasonableness of management’s con- duct constitutes meaningful circumstantial evidence supporting its assertion that it lacked knowledge of Fields’ union activities and, as a result, did not take action against Fields because of those activities. Based on the totality of the evidence, I conclude that Bur- nette, Blankenship, and Bevins’ accounts of the events involved in Fields’ discharge are credible and that Fields’ contrary asser- tions are not supported by the record when considered as a 26 At trial, Fields offered his own explanation of how his amylase level had dropped so precipitously. He explained that this came about because he had been administered intravenous fluids in the period between his self-administered test and the ones obtained through the normal procedures. Both Drs. Burnette and Abadilla rejected this ex- planation. As Abadilla put it, “If you ask me whether giving fluids alone will, you know, bring down the level . . . I don’t think this alone will do it.” (Tr. 498.) This compounds the difficulty that I experienced in attempting to credit Fields’ account of these events and underscores his unreliability. 27 To be clear, I am not saying that there is conclusive proof that Fields adulterated his tests in order to gain admission to the Hospital. That is not the level of certainty required under the Act. As the Board has recently noted, “In order to meet its burden under Wright Line, the Respondent must show that it had a reasonable belief that [the em- ployee engaged in serious misconduct], and that it acted on that belief when it discharged him.” J.J. Cassone Bakery, Inc., 350 NLRB 86, 87 (2007). (Citations and footnote omitted.) I conclude that the Hospital possessed such a reasonable belief and acted on that conclusion. whole.28 It follows that the General Counsel has failed to meet his burden of demonstrating that Fields engaged in protected activities which came to the attention of management and formed a material part of the motivation leading to his suspen- sion and discharge.29 For these reasons, I recommend that the allegations concerning Fields be dismissed. C. The Suspension and Discharge of Shirley White and Louise Gross in 2006 The Facts Registered Nurses Shirley White and Louise Gross were both hired by the Hospital on the same day in August 1993. For approximately 10 years, they served together as the entire complement of nurses for the intensive care unit (ICU) on one of the day-shift schedules. At the time of the events in ques- tion, they were two of the most senior members of the Hospi- tal’s nursing staff. In conjunction with their long tenure at the Hospital, White and Gross also had long and prominent service for the Union. During the strike in 2000, both of them served as pickets and were observed in this role by CEO Bevins. Shortly after the strike ended, White joined the Union’s bargaining committee and continued to attend negotiating sessions on behalf of the Union throughout her remaining tenure at the Hospital. For instance, she reported that she attended approximately 20 such meetings with management during 2005 and 2006. Similarly, Gross joined the committee in late 2002 or early 2003 and at- tended five or six sessions during the period immediately prior to her discharge. In the years before their discharge from employment, both White and Gross had compiled a strong record of performance. White’s personnel file reveals that, while she received a verbal 28 Counsel for the General Counsel urges me to discount the reliabil- ity of Blankenship’s testimony because Judge Evans had “discredited” her testimony in his prior decision. (GC Br., at p. 11.) This is not entirely accurate. Judge Evans did reject several portions of Blankenship’s testimony while expressly finding other aspects to be credible. Compare Jackson Hospital Corp., supra at 584, 588 with 566. The Board often explains this phenomenon by citing Judge Learned Hand’s recognition that, “nothing is more common in all kinds of judi- cial decisions than to believe some and not all of a witness’ testimony.” See, for example, Parts Depot, Inc., 348 NLRB 152 fn. 7 (2006), enf. 260 Fed. Appx. 607 (4th Cir. 2008) (internal quotation marks omitted.), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474 (1951). In any event, being mindful of what went on in the past, I have carefully evaluated all of the testimony in this case with an eye on the long history of mutual (and mutually destructive) antipathy between some persons in man- agement and some on the labor side of the issues. Because Blankenship’s testimony about the Fields discharge was logical, consis- tent, and persuasive, I have credited it. 29 It also follows from my discussion of the reasonableness of the Hospital’s decision making in this situation that, assuming for sake of argument that the General Counsel had met his burden of establishing protected activity, knowledge, and animus, the Hospital still demon- strated that it would have discharged Fields in any event. I accept the credibility of the Hospital’s assertion that it could not and would not have retained an employee that it reasonably believed had altered labo- ratory test results. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 658 warning in 2002 for excessive absences, she had no other disci- plinary history.30 Gross’ file is completely devoid of discipli- nary problems. Insight into the quality of their work may be gained from their yearly performance evaluations. White’s 2006 evaluation was summarized by a written notation indicat- ing that she, “[p]rovides exceptional nursing care to all pa- tients.” (GC Exh. 27, p. 5.) Earlier evaluations were to the same effect. For example, in 2004, it was reported that she was a “[v]ery good clinician, caring and compassionate about pa- tient care.” (GC Exh. 29, p. 5.) I have already noted that Gross maintained an unblemished disciplinary record. In addition, her yearly evaluations were also reflective of a very high level of performance. Her 2006 evaluation summarized this by observing that she “[p]rovides exceptional care to patients.” (GC Exh. 21, p. 5.) The 2005 evaluation was similar and, in 2004, it was noted that Gross was a “[v]ery good clinician, often performs as house supervi- sor. Compassionate about her patient care.” (GC Exh. 23, p. 5.) The reference to Gross’ supervisory responsibilities relates to her assignment during a period in 2004–2005 to serve on an occasional basis as supervisor of the entire hospital staff. The fact that these nurses were held in high esteem was also illustrated by the testimony of several witnesses. Debbie Linkous, the Hospital’s chief nursing officer, testified that they were both good nurses.31 CEO Bevins confirmed that, in the words of counsel for the General Counsel, he had been told that they were both “good and conscientious nurses.” (Tr. 1723.) After the two women were discharged, Dr. Abadilla was moved to write letters on their behalf. She testified that she had been the physician who had worked with them “more closely than any other doctor in—in that hospital.” (Tr. 463.) She wrote that they were “very competent, caring and conscientious nurses” and that she knew them to be “exceptional ICU nurses in whom I have the highest confidence.”32 (GC Exh. 19.) With this background showing that White and Gross were veteran members of the Hospital’s professional staff with ex- cellent records of performance and were also active and vocal members of the Union, I will now turn to an examination of the events that culminated in their discharge from employment. This discussion will focus on their behavior in administering the wrong blood transfusion to a patient. As a result, it is first necessary to gain a detailed understanding of the Hospital’s policies and procedures regarding the administration of such 30 White testified that her absenteeism during this period arose due to her pregnancy and childbirth and the death of her father. 31 Her exact words illustrate the pressures that affect witnesses in hotly contested litigation. Under cross-examination, she was asked to give her opinion about White and Gross. She responded, “They were good. I—you know, they were okay, I would think.” (Tr. 1112.) Such are the travails of life on the witness stand. Of course, I credit her initial response as being the accurate reflection of her opinion, free from the urge to testify in a manner that pleased her employer. 32 I have considered Abadilla’s letters solely as to the past job per- formances of White and Gross. I have not given them weight on the question of their behavior on the day at issue since it became clear on cross-examination that Abadilla’s understanding of the events of that day was based on limited information. When presented with further information on the witness stand, she retreated from any effort to de- fend their conduct in the incident under discussion. transfusions in order to assess the propriety of management’s decisions to terminate their employment. For purposes of providing background about blood transfu- sions, the Hospital produced the testimony of William Bowles, M.D., a Board-certified surgeon who serves as the Hospital’s medical advisor. He explained that there is a high degree of potential peril in administering blood and, as a consequence, “a very high standard [is] placed on blood transfusions.” (Tr. 1154.) This is required since there is a one-third possibility of incompatibility between any donor and recipient. In the event of an incompatibility, there is a 10 percent possibility of the recipient’s death. The problem is compounded because, unlike the case with medications, all blood looks alike. In conse- quence, blood administration procedures are “far more strin- gent” than medication administration procedures. (Tr. 1559.) In particular, they involve “a lot of double checks.” (Tr. 1554.) This expert medical testimony was confirmed by Blankenship who approached the issue from the laboratory perspective. It will be recalled that she was the supervisor of the Hospital’s lab and she is currently responsible for laboratory procedures in all 130 of the parent company’s hospitals. As she described it, “Blood bank is such a problem prone and significantly dangerous process that we have redundancies built into the system, checks, rechecks, and double checks.”33 (Tr. 1281.) Consistent with the level of risk, the Hospital maintained de- tailed written procedures governing the entire transfusion proc- ess. The policy document in effect at the time of these events was entitled, “Blood and Blood Component Transfusion Ther- apy.” (R. Exh. 25.) It had been revised as of March 2004 and provided 13 specific steps required when a registered nurse administered a blood transfusion. Steps designed to prevent patient identification problems included requirements that the nurse carry a copy of the signed physician’s order when pro- ceeding to the lab to pick up the blood. Once at the lab, the nurse was directed to engage in a checking procedure with the lab staff that included the following items: Patient name Medical record number Unit number ABO and RH of the unit and the patient Antibody Screen Cross-match results Expiration date of the cross-match and the unit (R. Exh. 25, p. 1.) The policy required a second set of identification procedures once the nurse returned to the unit with the blood. This speci- fied that, 33 There were many occasions throughout the trial when hospital staff members provided confirmation about the nature of the transfu- sion process. Somewhat ironically, the other alleged discriminatees in this case, Fields and Combs, gave such testimony. Thus, Fields noted, “I’m so scared of blood bank, you know, of killing someone, that I always usually triple checked everything just to be safe.” (Tr. 403.) Combs also underscored the need for “double-checking” during her extensive testimony about blood procedures. (Tr. 165.) KENTUCKY RIVER MEDICAL CENTER 659 Two RN’s must recheck the label on the blood bag, the blood or blood component transfusion record, and the patient’s ID band to verify: patient’s name, medical record number, donor and recipient ABO and RH types, unit number, and expiration dates. This must be done at the patient’s bedside. (R. Exh. 25, p. 2.) Only after completion of these checks and double-checks was the blood to be transfused to the patient. Compliance with this transfusion policy was documented through use of a three-part form that requires signatures by both laboratory employees and nursing staff at each step of the proc- ess. The form contains the following paragraph that is to be signed by two nurses prior to administration of any transfusion: Pre-transfusion Verification: We certify that prior to blood administration we have exam- ined the blood component label, information on this form and all patient ID bands. The intended recipient of this blood product is the same person named on this form and the blood component. (R. Exh. 10.) (Boldface in the original.) The Hospital presented evidence that it provided training to all of its nurses regarding these procedures. In particular, Nurse Peggy Allen, the operating room manager, testified that she conducted such mandatory training for all nurses at a so- called “health fair” held by the Hospital in December 2005. During this event, she went over the policy and the verification form with all of the nursing staff. She reported that she read the policy to the nurses, “word for word.” (Tr. 1548.) The focus must turn now to the events of September 14, 2006.34 On that day, White and Gross filled their customary positions as the nursing staff in the intensive care unit. The unit can accommodate up to four patients. As is indicated by the name of the unit, all of the patients are gravely ill. On this day, there were two admitted patients and a third arrived during the shift. White and Gross testified that the workday was hectic. In addition, this was the first day of operation for a new system of telemetry monitors. These monitors reported on the status of patients outside the unit. Although these patients were not under the direct care of White and Gross, they were responsible for the oversight of this diagnostic equipment. While White contended that the busy work atmosphere and the presence of the new equipment “contributed” to the mistakes made that day, Gross forthrightly denied this, testifying that her error “did not occur because I was busy.” (Tr. 694, 862.) I have considered the impact of the working conditions on that day as a factor in the transfusion error that occurred. I conclude that Gross is correct in declining to place substantial weight on this explanation. At the outset, these nurses were highly experienced and competent in dealing with the chal- lenges involved in providing intensive care to patients suffering the most serious health impairments. While the working envi- ronment was hectic, Gross reported that, “the workload in ICU was always, it was always heavy.” (Tr. 827.) In fact, the unit was not at its full capacity of patients on this day. Finally, the 34 All dates in this portion of the decision are in 2006 unless other- wise indicated. presence of the new monitors may have been a complication to the work environment, but this did not represent a dramatic departure from past experience. As long ago as 2002, Judge Evans observed that “[t]he vital signs of patients throughout the Hospital who are ‘on telemetry’ are transmitted for reading to a central location that is located in the intensive care unit.” 340 NLRB 536, 598. Nothing in the working conditions on the day in question would explain or excuse the transfusion error. The chain of events began at 9 a.m., when White received an order from Dr. Abadilla directing her to provide a blood trans- fusion for one of her patients. The patient was a gentleman who had multiple previous admissions and was well known to White. His name was Oakley T.35 White testified that she proceeded to transcribe the order and make a computer entry to notify the laboratory. Between 12 and 1 p.m., the lab notified White that the blood was ready. Taking a copy of the transfu- sion order, White proceeded to the lab where she met Cheri Vires, a lab employee. White showed Vires the transfusion order and was told to “put it up on the shelf, where they keep the orders.” (Tr. 636.) Vires proceeded to go into the refrigera- tor where the blood is stored. She returned with a package of blood. Vires did not testify in this trial. Nevertheless, the over- whelming weight of the circumstantial evidence demonstrates that she made the grave error of selecting the wrong package of blood from the storage unit. Instead of picking the blood that was ready for Oakley T, she chose blood that was awaiting transfusion into a female patient on the medical/surgical unit of the Hospital, Oakey B. Just as a dislodged boulder may pre- cipitate an avalanche, this unfortunate mistake began a chain of events that could have culminated in tragedy. White testified that when Vires returned with the blood the two women performed the required cross-checks to verify that it was the correct package. In particular, she testified that they checked the patient’s name and medical record number and the unit number of the blood. In prior testimony in another pro- ceeding just 3 months after these events, White provided greater detail about her interaction with Vires. She testified that Vires “read off the patient’s name, and I read off on the blood. She had the blood slip, she had the blood—she had the blood slip, I had the blood.” (R. Exh. 9, p. 50.) At 12:45 p.m., Vires signed the transfusion verification form, certifying, “I have inspected the blood for abnormal color and appearance, 35 The parties stipulated that the names of the two patients involved in the transfusion error would be partially redacted in order to protect their privacy. They will be referred to as Oakley T and Oakey B. White and Gross contend that their names were confusingly similar. Clearly, the first names are very close to each other, although the pa- tients were of opposite genders. As to the surnames, they are both of English origin and end with the same two letters. Nevertheless, I do not find them to be confusingly close to each other. Certainly, anyone hearing the names being spoken would have no difficulty differentiat- ing between them. As a result, I do not conclude that, considering the complete names of the patients, any similarities were a determinative explanation for the confusion of their identities by the nurses. I have placed various unredacted exhibits under seal in the event that any reviewing authority wishes to form an independent conclusion regard- ing the similarities and differences in these patients’ full names. See the sealed copies of R. Exhs. 9, 12, 16, 17, 29, and 32. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 660 verified patient information and physicians [sic] order to trans- fuse and release component to nursing personnel.” (R. Exh. 10.) Although White contended that the two employees had per- formed the required verifications, the fact remains that she returned to the intensive care unit with the wrong patient’s blood. Once back at the unit, White encountered Gross at the nurses’ station. As Gross explained, “[S]he asked me to check off the blood with her.” (Tr. 832.) Gross took the actual bag of blood, while White retained the paperwork. White read off the patient’s name, medical record number, unit number of the blood bag, and type of blood. Gross testified that, “everything matched on the bag of blood.” (Tr. 834.) White confirmed that, “We checked the—we was at the nurses’ station. We checked the name, MR [medical record] number, Unit Number, blood type, the date it expired on the blood.” (Tr. 637.) Gross’ testimony about what happened next underscores the bizarre nature of this entire chain of events. She reported that White tendered the transfusion verification form and instructed her to “[s]ign your name here.” (Tr. 834.) This seems an un- usually explicit way to accomplish the verification given that both nurses had performed the same procedure and completed the same certification form many times together over the past years. Beyond this, Gross continued her account, testifying that she responded to this direction by asking White, “This is for Oakley T, right?” (Tr. 834.) She then indicated that White took another look at the bag of blood and said, “Yes, it is.” (Tr. 834.) All of this suggests to me that Gross was making only a superficial check, choosing instead to place her trust in her colleague’s performance of her primary responsibility in verify- ing that the blood belonged to her patient. I have carefully analyzed the extensive and frankly some- what mysterious testimony about these events in an effort to understand what actually happened. Ultimately, I conclude that the best explanation of Gross’ conduct was provided by Gross during her testimony given slightly less than 3 months after the events. In that hearing, she explained, “It was busy, and we checked it off at the nurses’ station . . . . I glanced at it, and it looked like it was for Oakley T, the writing on it.” (R. Exh. 12, p. 34.) She repeated this description under cross-examination, again explaining, “I glanced at the name.” (R. Exh. 12, p. 44.) By contrast, I cannot begin to explain White’s numerous er- rors and omissions. She never conceded that she had per- formed her responsibilities in a negligent or careless fashion, nor did she provide any alternative explanation for her inability to discern the obvious error despite repeated attempts at verifi- cation. The best she could offer as a justification for her behav- ior was encapsulated during the following colloquy that took place during the prior administrative proceeding: COUNSEL FOR THE HOSPITAL: [D]o you believe it is justified to not follow the verification procedure simply because it’s busy in the ICU? WHITE: I think you take priority. You do what you have to do. (R. Exh. 9, p. 64.) This betrays a cavalier attitude toward the Employer’s carefully designed system of safeguards intended to prevent the sort of potentially tragic mistake made by White in this case. Returning to the account of the events, at this juncture both White and Gross signed the transfusion verification form at the nurses’ station. White took the blood into the patient’s room. Gross did not accompany her.36 Once inside the patient’s room, White had a final opportunity to avert a potential catas- trophe. Regrettably for all concerned, she testified that she did not examine the patient’s ID band to verify that the information it contained matched that on the unit of blood. She testified that she chose not to perform this step because she knew the patient “personally.” (Tr. 639.) She did address him, telling him, “Oakley, I’m giving you a unit of blood.” (Tr. 640.) He responded, “Yeah, I know.” (Tr. 640.) Of course, the difficulty with White’s choice of procedure at this last stage of the matter is that a final verification was not merely for the purpose of determining the identity of the patient. Instead, a final bedside verification served the function of confirming that this particu- lar blood was actually intended for administration to that spe- cific patient. In her testimony at the earlier hearing, Gross was particularly forthright and clear about the value of a bedside confirmation procedure. With the benefit of hindsight, she testified as fol- lows: HEARING OFFICER: If you had checked the blood at the bedside nd compared the wristband with the ID number— GROSS: Then it would have showed me that it was wrong. (R. Exh. 12, pp. 38, 40.) Of course, the primary responsibility for performing this final bedside check in this case rested with White because Oakley T was her patient. Tellingly, the remaining alleged discriminatee in this case, Nurse Combs, was also questioned about the importance of the final bedside verification in blood transfusion procedures. Her compelling testimony clearly underscores everything that went awry in this case. Combs explained that when she is charged with administering a blood transfusion, I personally lay [the blood bag] on the bedside table. I match my form to my blood . . . . Then I take that blood form and the bag itself has already been matched to my form and I match my name and MR number either with the form or the bag to the patient’s ID bracelet. I will tell you that for me every day when I go to work and especially here in Jackson where we have an awful lot of family members 36 It is true that the Hospital’s policy mandates that the verification be performed at bedside, not at the nurses’ station. There was conflict- ing testimony about the actual practice in this regard. Management nurses reported that the policy was enforced. Line nurses testified that it was ignored and that management knew about and participated in the practice of doing the verification at the nurses’ station. On this record, I do not find that the Hospital has shown that the location of the verifi- cation violated the condoned practice. Even if I were to find otherwise, a violation of the rule in this regard would not have resulted in serious discipline. For instance, Unit Manager Kathy Thacker testified that when she was a line nurse she was observed performing a verification at the nurses’ station. Her supervisor merely told her not to do so in the future. There was no sanction imposed. KENTUCKY RIVER MEDICAL CENTER 661 with the [same] last names and I’m not from here, I would take and look at every ID bracelet I had and make sure I had a face with a patient . . . . It was a verification that had to be done but I already knew who this person was, I’m just dou- ble-checking that I still know who that patient is. (Tr. 164–165.) Alas, White chose to forego this simple step and administered the transfusion of blood intended for Oakey B to Oakley T. Inevitably, a nurse from Oakey B’s unit eventually reported to the laboratory to pick up the blood intended for her transfu- sion. As a result, the error was uncovered. White was in- formed of the error. She halted the transfusion and returned the blood to the laboratory. By the greatest of good fortune, it turned out that Oakley T and Oakey B shared the same blood type and characteristics. Because of this stroke of luck, Dr. Abadilla was able to report that Oakley T suffered no ill effects from the erroneous transfusion. Shortly after these events came to light, White had a conver- sation with her supervisor, Alice Robinson. She asked Robin- son if she thought the nurses would be fired in response to the incident. Although White observed that “we’ll probably get fired over this,” Robinson reassured her that this would not happen and that they would “work through this.” (Tr. 645, 646.) She instructed White to prepare a variance report, a form used to document unusual occurrences and errors. White did as instructed. At approximately 4 p.m., White and Gross were present at the nurses’ station. Blankenship arrived and asked White, “Did you go to the bedside and check the blood?” (Tr. 647.) White reported that she had not done so, adding that it was “standard practice to check it at the nurses’ station. We knew the pa- tient.” (Tr. 648.) Gross also informed Blankenship that they had not checked the patient’s ID band. Shortly after Blankenship’s visit, White and Gross met with Janelle Cude, the Hospital’s risk manager. Cude instructed them to keep the incident, “hush/hush.” (Tr. 649.) Over the next 3 days, both nurses continued to perform their usual duties at the Hospital. Indeed, they participated in provid- ing additional blood transfusions to Oakley T. As one would now expect, they performed the verification procedure at his bedside, noting that Robinson had instructed them that “[i]n the future, just go to the bedside to check the armband.” (Tr. 879.) On September 18, CEO Bevins returned from a vacation. Blankenship and Linkous met with him to advise him about the transfusion incident. He testified that Blankenship informed him that, “upon the three [pre-transfusion verification] checks, the laboratory, both Shirley [White] and Cheri Vires had signed that it was appropriate but it was not.” (Tr. 1675.) He noted that he was also informed that White and Gross had readily admitted the failure to check the armband and that the patient had not suffered any apparent harm. On the following day, Bevins had a meeting regarding the transfusion incident with the Hospital’s attorney and chief ne- gotiator with the Union, Don Carmody. Noting that a bargain- ing session was scheduled with the Union for later that day, the two men decided to “forego the negotiating session to spend time to deal with this personnel matter.” (Tr. 1682.) Carmody then contacted Pidcock and advised him that White and Gross were being suspended and that the bargaining session was can- celled. At approximately 2 p.m. on September 19, Pidcock tele- phoned Gross to tell her of her suspension. This was her first notice of the adverse personnel action. Over 90 minutes later, she received a call from Mitchell, the Hospital’s human re- sources director, confirming that she had been suspended in- definitely. White received a similar call from Mitchell. On September 25, Bevins wrote letters to White and Gross confirming their suspensions. He followed this with a second set of letters on October 2. In those communications, he in- formed White and Gross that they were being terminated, “due to unsatisfactory performance of your assigned duties on Sep- tember 14th, relative to the blood transfusion of which you are aware, including your failure to follow prevailing Kentucky River Medical Center policy, and your falsification of the ‘Pre- Transfusion Verification.’” (GC Exhs. 18 and 25.) Neither nurse has been offered employment by the Hospital since that date. Legal Analysis of White’s Suspension and Discharge Determination of the legality of White’s suspension and dis- charge turns on an appraisal of the motivation of the Em- ployer’s managers. As a result, it requires application of the same Wright Line analytical framework discussed earlier in connection with Fields. Unlike the situation involved in Fields’ case, there is no dispute regarding the first steps of the process. The Hospital readily concedes that White was an active union supporter who served an important role as a negotiator for the Union during the collective-bargaining process. Furthermore, Bevins testified that at the time he decided to fire White he was well aware of her participation on the bargaining committee. Because there is no question that White participated in pro- tected activities and that her employer was aware of her role in those activities when it decided to suspend and terminate her employment, the inquiry next focuses on whether the Em- ployer’s decisions were motivated to a substantial degree by unlawful antiunion animus. If I find that such animus existed, I must finally determine whether it was a decisive factor in the disciplinary decision. In considering these questions, I cannot limit my analysis to direct evidence of unlawful intent. Instead, I note that, “motive may be inferred from the total circum- stances proved. Under certain circumstances the Board will infer animus in the absence of direct evidence. That finding may be inferred from the record as a whole.” Fluor Daniel, Inc., 304 NLRB 970, 970 (1991), enf. 976 F.2d 744 (11th Cir. 1992). Thus, it is important to undertake an examination that considers the entire context, including reasonable inferences to be drawn from circumstantial evidence. While the factfinder must be careful to make a broad and penetrating inquiry into the employer’s reasoning process, it must also be understood that there are important limitations on the scope of this undertaking that stem from the limited nature of the regulatory policies underlying the Act. In this connec- tion, it is essential to avoid unnecessary intrusion on the free- dom of economic action that forms a bedrock feature of our system of liberties. For this reason, in a case involving the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 662 motivation behind an employer’s choice of which employees to select for a layoff, the Board observed: We emphasize that it is not our objective to determine whether the Respondent’s choice . . . was the correct decision or that the Respondent used the best decision-making process. The Respondent may make its layoff decision on any basis it chooses, good, bad, or indifferent—as long as it is not an unlawful basis . . . .The wisdom of the Respondent’s decision is immaterial. We are concerned only with discerning the sincerity of the Respondent’s contention that the decision was not motivated by union animus. Children’s Services International, 347 NLRB 67, 70 (2006). With these parameters in mind, I have assessed the Em- ployer’s state of mind. For the following reasons, I conclude that unlawful animus against the Union did play a substantial role in the Employer’s motivation. Nevertheless, I also find that, regardless of the impact of such animus, the Employer would have terminated White due to the grave and extensive nature of her negligence in performing her duties in connection with the transfusion that she administered to the patient under her care. Turning first to the question of unlawful animus, I have ex- amined the Employer’s conduct before the events at issue, the precise manner in which management chose to effectuate the decision to discipline White, and the evidence regarding the Employer’s subsequent behavior toward another union member who engaged in the same form of protected activity. Based on the totality of the picture presented by that evidence, I conclude that the General Counsel has met his burden of demonstrating that antipathy towards White’s role as an active member of the Union’s negotiating team formed a substantial factor in the decision to fire her. My consideration of the Employer’s attitudes toward union activists must necessarily begin with the events described in Judge Evans’ decision. It will be recalled that the Board adopted Judge Evans’ conclusion that the Hospital, under the direction of CEO Bevins, engaged in “egregious misconduct, demonstrating a general disregard for the employees’ funda- mental rights.” Kentucky River Medical Center, supra, at 607. Of particular importance, Judge Evans found that management had terminated the employment of eight bargaining unit mem- bers due to their active involvement with the Union. I have given careful consideration to the weight to be as- signed to this evidence of prior misconduct. In his opening statement at the trial, counsel for the General Counsel argued that, “the most important thing to keep in mind at the outset is that Respondent is a recidivist violator of the Act.” (Tr. 31– 32.) As someone who cut his teeth in our profession in the realm of criminal law, this assertion struck me as highly dis- turbing.37 It had the same effect on counsel for the Hospital, 37 Of course, it must be recalled that the general prohibition against the admission of a defendant’s criminal history in a criminal trial is not based on a lack of relevance. Rather, such evidence is excluded pre- cisely because its obvious probative value may be outweighed by its potentially prejudicial impact. In evaluating this type of evidence in who summarized his objection by rather eloquently observing in his brief that it would be necessary for me “to analyze the case based upon the evidence presented to Your Honor person- ally, as opposed to that which lies in the cobwebs of a case decided 5 years ago.” (R. Br., p. 23.) On balance, I conclude that, while counsel for the General Counsel clearly engaged in some lawyerly hyperbole, he is correct in urging that the Hospital’s prior behavior is probative on the issues before me. By the same token, while counsel for the Hospital is on target in warning me against deciding this case by the simple expedient of imputing malice based on the findings in the earlier case, he also properly acknowledged that prior unfair labor practice findings, “may be admissible on the question of an employer’s animus, but only in the ‘appropriate circumstances.’” (R. Br., p. 21.) (Footnote and citation omit- ted.) This is an accurate statement of the Board’s standards. See, for example, Overnite Transportation Co., 336 NLRB 387 fn. 2 (2001) (evidence of prior violations may be used “for other purposes, such as showing an unlawful motive for an employee’s discharge”). I find that there are appropriate circumstances in this case to impute prior unlawful animus as manifested toward the eight discharged union supporters to the managers who decided to terminate White. Two powerful factors lead to this conclusion, the fact that the events in White’s case are of precisely the same sort of misconduct as that exposed in Judge Evans’ decision and the fact that the Hospital’s chief executive at all relevant times was the same person, Bevins. This linkage in identity and conduct is too potent to ignore. I have also considered counsel for the Hospital’s counter ar- gument that this evidence is “overly stale.” (R. Br., p. 21.) Bevins discharged the eight activists in August and September 2000. He suspended White and Gross in September 2006 and discharged them in October of that year. This is a significant span of years, raising the question of whether the passage of time has so eroded the probative value of this evidence as to render it useless in shedding light on the employer’s motives. By somewhat odd but perhaps fortunate coincidence, the Board has recently had occasion to instruct me on the principles involved in resolving this question. In Electrical Workers Lo- cal 98 (TRI-M Group, LLC), 350 NLRB 1104 (2007), I was required to evaluate the impact of a respondent’s prior history of unfair labor practices in deciding whether the respondent had a proclivity to violate the act so as to justify the grant of the General Counsel’s request for enhanced remedies. The most recent instance of prior misconduct had occurred 4-1/2 years before the events at issue. Based on my review of prior Board decisions, I opined that the passage of such a period of time insulated the respondent from a finding of proclivity based solely on prior misconduct.38 I had concluded that passage of a 4-year period appeared to have vitiated the impact of such prior misconduct in previous cases. In its decision adopting my rec- ommendation in TRI-M Group, the Board took pains to reject this case, I have been mindful that it cannot be used as a substitute for careful analysis of the totality of circumstances. 38 I did, however, find that other factors justified the request for the enhanced measures. KENTUCKY RIVER MEDICAL CENTER 663 my attempt to divine a bright-line rule on this question, noting that, “Rather, we will assess the totality of circumstances in each case, including the applicable dates of misconduct and prior Board and court orders.” Id. at fn. 2. In applying the Board’s totality test to the facts of this case, I conclude that the prior misconduct retains significant probative value in judging the employer’s motivation. I note that the unlawful activity in the prior case was widespread and egre- gious. It did not represent an isolated instance of technical law violations by an unsophisticated employer. Instead, it consisted of an extensive pattern of rather depraved behavior, including multiple decisions to deprive persons of their means of liveli- hood simply to advance an unlawful agenda. The severity of the misconduct provides a clue as to the likelihood that the underlying attitudes may persist and continue to influence the employer’s behavior. This, coupled with the presence of the same chief executive, leads me to conclude that the employer’s past manifestations of unlawful animus in considering termina- tion decisions provides valuable insight into the thought proc- esses under examination in this case. See, for example, St. George Warehouse, Inc., 349 NLRB 870, 878 (2007) (animus found where prior misconduct 3 years earlier involved same manager and same type of retaliation against employees). In addition to a history of possessing a mindset that would be willing to make disciplinary decisions that are motivated to a substantial degree by unlawful considerations, I find that the employer manifested this sort of intent in the strikingly peculiar way that it chose to effectuate its decision to initiate the disci- plinary process regarding these two nurses. Under the Hospi- tal’s disciplinary procedures, the final authority was held by Chief Executive Officer Bevins. On the date of the improper transfusion, he was on vacation. He returned to work on Sep- tember 18 and was immediately informed of the event by the supervisors of the nursing and laboratory staffs. Bevins testi- fied that he spoke by telephone with the Hospital’s labor coun- sel, Carmody, that afternoon. On the following day, September 19, Carmody was sched- uled to be in Jackson for purposes of attending a collective- bargaining session with the Union. Prior to the time for this session, Bevins and Carmody conferred. Bevins testified that they decided “to forego the negotiating session to spend time to deal with this personnel matter.” (Tr. 1682.) Carmody pro- ceeded to meet with the Union’s organizing director, Pidcock. Bevins was asked to describe the content of this meeting as follows: COUNSEL [DON CARMODY]: And do you know how was it, how was it that Shirley [White] and Louise [Gross] were informed of the decision to suspend them? BEVINS: You informed Mr. Pidcock at your meeting with him that they would be suspended. COUNSEL: And did the Hospital itself inform them di- rectly also at some point? BEVINS: We informed them on the 19th by phone. Naomi Mitchell did that and we followed with a letter on September 25th. (Tr. 1682.) Gross confirmed this chronology of events. She reported that at 2 p.m. she received a telephone call from Pid- cock advising her of the suspension decision. Approximately 90 minutes later, she received a call from Mitchell telling her the same thing. I find this procedure to be entirely and strikingly extraordi- nary for several reasons. First, no explanation was offered as to why the disciplinary situation regarding White and Gross ne- cessitated the cancellation of the scheduled collective- bargaining session. It is clear that management felt no particu- lar urgency in resolving the problem presented by the transfu- sion incident. The incident was discovered on September 14. No action to suspend the nurses was taken until September 19. In the interim, they performed their customary duties, even to the extent of providing additional blood transfusions to Oakley T. There was simply no emergency need to cancel the bargain- ing session in order to deal with the transfusion issue. I conclude that the decision to cancel the scheduled bargain- ing session was motivated by animus. It was a crude attempt to drive a wedge between bargaining unit members by suggesting that misconduct by the two bargaining committee members had stymied the ongoing and lengthy effort to obtain a contract for the unit employees. The asserted need to cancel the session to address the transfusion issue served as a convenient pretext to delay the negotiations for a collective-bargaining agreement and place the blame on the Union’s committee members. Beyond this, it is equally bizarre for the Hospital’s leader- ship to choose to inform the affected employees of their sus- pensions by the means of citing this personnel action to their union representative as an excuse for the cancellation of a bar- gaining session. The fact that management used this method of communication instead of the obvious and forthright means of contacting the employees directly further demonstrates a high level of hostility and animus. It thrust Pidcock into the role of messenger of the bad news and conveyed a callous lack of re- spect for two longtime professional employees who had com- piled a good record of performance. In sum, the manner in which Bevins and Carmody handled the suspension decision betrayed a deliberate attempt to under- mine the Union by converting the disciplinary process into a wedge to divide the bargaining unit and humiliate the two nurses. In discussing the degree of unlawful motivation by the Hospital’s management, Judge Evans characterized it as an “extreme level” of hostility toward employees who engaged in protected activities. Kentucky River Medical Center, supra, at 557. I reach the same conclusion regarding the events just described. Finally, I have considered the events involved in the remain- ing portion of this case as part of the totality of circumstances that shed light on the issue of unlawful animus. I have con- cluded that the use of the disciplinary process against White and Gross was, in part, designed to frustrate the bargaining process with the Union. To that extent, it reflects animus par- ticularly directed against members of the bargaining committee. It is, therefore, significant that the Hospital’s management en- gaged in similar misconduct directed toward another long term member of that committee, Combs. I will discuss in detail the nature of that misconduct in the section of this decision devoted to analysis of Combs’ so-called indefinite investigative suspen- sion. Suffice it to say at this point that the evidence revealed DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 664 that management appears to have set a trap for Combs, using her misunderstanding of the rules of labor law as a convenient vehicle to remove her from employment, and, hence, from the bargaining committee as well. In so doing, it demonstrated a particularly cynical disregard for her by twisting the concept of an investigatory suspension into a sub rosa termination of her employment. The retention of Combs in this state of perpetual employment purgatory persists to the present time. I recognize that Combs was initially suspended in January 2007, approximately 3 months after White and Gross were discharged. Nevertheless, it is appropriate to consider her treatment as probative of unlawful animus as to White and Gross because it reflects a similar malicious use of the discipli- nary process to target members of the bargaining committee. See K.W. Electric, Inc., 342 NLRB 1231, fn. 5 (2004) (subse- quent statements found relevant on the issue of animus where they revealed “a strong and generalized antiunion sentiment”). Considering the course of conduct of the Hospital’s manage- ment from the initial certification of the Union as representative of the bargaining unit through the present day, I find that the General Counsel has met his burden of proving that manage- ment remains willing to engage in, using Judge Evans’ choice of words, “egregious misconduct, demonstrating a general dis- regard for the employees’ fundamental rights.” Kentucky River Medical Center, supra, at 607. More specifically, I conclude that the decisions to suspend and terminate White and Gross were motivated to a substantial degree by unlawful animus directed toward them due to their active participation on the Union’s bargaining committee. Because I have determined that the General Counsel has pre- sented a prima facie case of unlawful antiunion discrimination, the burden under Wright Line now shifts to the Hospital to show that it would have discharged White regardless of her protected activities. Upon careful reflection, I conclude that it has met this burden. Initially, it must be recognized that this is not a case where an employer has fabricated or contrived an allegation of em- ployee misbehavior to rid itself of a union activist. There can be no doubt whatsoever that White engaged in serious miscon- duct of a type that could have resulted in tragedy. To my mind, the record clearly establishes that the Employer suspended and discharged White for two reasons, animus against her involve- ment on the bargaining committee and grave concern regarding her grossly negligent care for her patient, Oakley T. As a con- sequence, this is a classic example of a mixed motive situation calling for careful application of the Wright Line analysis. In particular, I am mindful of the Board’s admonition that: Under Wright Line, an employer cannot simply present a le- gitimate reason for its action but must persuade by a prepon- derance of the evidence that the same action would have taken place even in the absence of the protected activity. Nor is a judge’s personal belief that the employer’s legitimate reason was sufficient to warrant the action taken . . . a substitute for evidence that the employer would have relied on this reason alone. Ingramo Enterprise, Inc., 351 NLRB 1337, 1338 fn. 10 (2007). (Internal quotation marks and citations omitted.) In addressing this question, I begin with consideration of the employer’s existing disciplinary standards and policies. While the employer has a progressive system of discipline, credible and consistent testimony from managers established that, in appropriate circumstances, an employee may be discharged for a first offense. As Human Resources Director Mitchell de- scribed, the “severity” of the offense would be the determina- tive factor. (Tr. 927.) This testimony also tracks the language of the Kentucky River Medical Center employee handbook which states: If your performance, work habits, overall attitude, conduct, or demeanor become unsatisfactory in the judgment of the hos- pital, based on violations of any of the hospital’s policies, rules or regulations, you will be subject to disciplinary action, up to and including dismissal. (GC Exh. 8, p. 21.) Among the specific examples of “unac- ceptable behavior” cited in the Handbook is, “[d]isregarding safety or security regulation.” (GC Exh. 8, p. 21.) The question then becomes whether White’s disregard of the safety provisions of the Hospital’s transfusion policy convinced her supervisors that her performance, work habits, and conduct were deficient to such a degree as to require her termination from employment. In assessing this question, it is not enough to simply say that White made a transfusion error. Rather, it is necessary to track her conduct through each step of the transfu- sion administration process for Oakley T. Of course, it is ap- parent that the initial error was made by Vires, who returned from the blood storage unit with the wrong bag of blood. Un- der the policy, however, this error should have been immedi- ately ascertained and corrected by Vires and White. Current Laboratory Director Karla White described the pro- cedures then in effect in revealing detail. She testified that both the lab technician and the nurse were required to sign the labo- ratory’s logbook, indicating that, the unit number has been checked, double checked, by both tech and the nurse. The patient identifiers have been checked, the name, the medical record number and I think even on their form it has the date of birth . . . . and then both the nurse and the tech are to sign it, to sign the log book as well as requisi- tion before it leaves. . . . . They both go through it and they sign that requisition as well as this log book. So it’s like—it takes a while to sign out a unit of blood. (Tr. 1640, 1642.) Although White testified that she followed this procedure, it remains a fact that the error should certainly have been revealed if she had done so with any reasonable de- gree of care.39 It will be recalled that while the patients’ first names were similar, their surnames were readily distinguish- able, they were of opposite genders, bore different medical 39 In what is perhaps an indication of White’s haste, she did not actu- ally sign the log book. Instead, she wrote her initials. Of the 17 entries on the relevant page of the log book, White’s was the only one that was initialed instead of signed. Furthermore, her initials are placed on the entry showing that the blood was for Oakey B. (R. Exh. 29.) KENTUCKY RIVER MEDICAL CENTER 665 identification numbers, had different birthdates, and were on different wards of the facility. It can only be concluded that, to the extent that Vires and White made any effort to verify the blood, that effort was grossly negligent. Having failed to properly verify that she had received the correct blood, White now compounded her error by the manner in which she conducted the second required verification proce- dure with Gross. Once again, White testified that she and Gross, “checked the name, M[edical] R[ecord] number, Unit Number, blood type—uh, the date it expired on the blood.” (Tr. 637.) Had any reasonable degree of care been exercised during this process, the obvious mistake would have been iden- tified and readily corrected. This did not happen. Finally, White proceeded to Oakley T’s bedside. Hospital policy required that she verify the accuracy of the transfusion by checking the patient’s wrist identification band.40 The evi- dence clearly established that this band contained the patient’s name and medical record number. For a third time, it is obvi- ous that a comparison of the wristband with the bag of blood would have shown that a potentially tragic error was about to occur. In this instance, White did not claim that she conducted such a comparison. Rather, she conceded that she failed to do so. Her reason for failing to do so, that she knew the patient personally, demonstrates a complete incomprehension of, or indifference to, the reasons for the required verifications. The uncontroverted evidence demonstrates that in the space of approximately an hour, White performed two transfusion verification checks in a grossly deficient and negligent manner and failed to perform a third such verification at all. As a re- sult, her patient received an incorrect blood transfusion, an error that put him at risk of his life. All of this is reflected in the explanation presented in the tes- timony of the official who made the decision to discharge White. Bevins explained that White was discharged because, Following our investigation of the facts we found that the blood [that] was received from the laboratory was the wrong blood, it’d been checked by Shirley [White] as being the ap- propriate blood for that particular patient. In the ICU it was checked by both Shirleyand Louise [Gross] and then signed as being the right blood, which it was not, and at the bedside it was signed as being the appropriate, the right unit for that pa- tient and it was not. (Tr. 1671.) Thus, Bevin’s analysis reflects his recognition that White had failed to properly conduct the three separate verifica- tion procedures required by the Hospital’s transfusion policy. This rationale for White’s discharge is entirely accurate and well within the Hospital’s disciplinary policies. I conclude that this was the predominant, actual reason for Bevin’s decision to suspend and terminate White.41 40 Counsel for the General Counsel concedes that there was a great deal of testimony establishing that the nurse who administered a trans- fusion was required to, “actually check[ ] the ID band at the bedside.” (GC Br., at p. 20, including the transcript citations listed therein.) 41 I recognize that the General Counsel argues that Bevins’ reliance on an additional reason is suspicious. Bevins did claim that he also considered White’s signatures on the verification forms to be a falsifi- cation of hospital records. In his testimony, he always added this justi- Finally, I have also evaluated the General Counsel’s argu- ment that the Hospital has failed to show that White’s discharge was consistent with other disciplinary actions. Bevins testified that he was unaware of any other instances of administration of the wrong blood transfusion to a patient. No records of any such prior error were produced despite the General Counsel’s diligent and commendable efforts to develop a complete docu- mentary record. That documentary record does contain a re- grettably large number of events involving errors in the admini- stration of medications. Apart from the Hospital’s claim that blood transfusion errors are distinguishable from, and more serious than, medication errors, I find that none of the em- ployee misconduct shown in those medication errors ap- proaches the level of negligence and inattention demonstrated by White in her care of Oakley T.42 As counsel for the Hospital aptly asserts, “[T]he evidence strongly suggests that Ms. White had not performed any of the required verifications or, alterna- tively, performed the verifications with such reckless lack of care that she effectively did not perform the verifications at all.” (R. Br., at p. 51.) (Emphasis in the original.) In all of the remotely comparable cases, either the employees did not dem- onstrate the repeated negligence and deliberate omission re- vealed in White’s case, or the potential consequences of the error were considerably less severe, or both. The Board has placed carefully calibrated limits on the use of comparative discipline as insight into an employer’s motiva- tion. In Elko General Hospital, 347 NLRB 1425, 1427 (2006), it held: We recognize that the Respondent has not shown a practice of disciplining similar misconduct. However, the circumstances confronting the Respondent . . . were unprecedented. To say that an employer must show a prior instance of similar mis- conduct would preclude an employer from disciplining an un- precedented wrong, irrespective of how egregious that wrong might be. We reject that approach. (Footnote omitted.) White engaged in a pattern of grossly negligent behavior that could have caused the gravest consequences for her patient and her employer. Bevins provided a detailed and credible explana- tion that it was his consideration of this pattern of events that caused him to discharge her. While the record also revealed that he bore animus against her for her protected activities, I conclude that the Hospital has met its burden of establishing that he would have suspended and discharged White for her unprecedented and severe degree of poor performance of her fication as an afterthought, usually based on leading questions from his counsel. I agree with counsel for the General Counsel’s contention that this, standing alone, was not a significant reason for the decision to discharge White. In fact, Bevins readily agreed that White and Gross had not engaged in any intentional misconduct and did not possess any ulterior motives. I infer that this asserted justification was a lawyerly afterthought, not a significant factor in the actual decision. While its use at the trial is a ground for legitimate concern, the overwhelming evidence supporting Bevins’ actual decision-making process satisfies me that it was primarily and fundamentally legitimate. 42 I will describe these medication errors when discussing the propri- ety of Gross’ termination later in this decision. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 666 duties, regardless of her role in the Union’s affairs.43 As a re- sult, I recommend that this allegation against the Hospital be dismissed. Legal Analysis of Gross’ Suspension and Discharge Because there is no doubt that Gross was involved in the transfusion error that led to White’s lawful termination, it is necessary to apply the dual motive analysis of Wright Line in order to assess her situation. As with White, it is undisputed that Gross was active on the Union’s bargaining committee. Bevins readily conceded that he was well aware of Gross’ role on that committee when he decided to suspend and terminate her employment. As to the issue of animus, once again, White and Gross are similarly situated. Having already concluded that the General Counsel has shown the existence of a significant degree of unlawful animus as a motivating component in the employer’s decision-making process, I find that this element of the General Counsel’s case is also met. In making this finding, I rely on the analysis described in detail in the preceding section of this de- cision, including the Employer’s history of the same type of discriminatory decision making, the unusual and disturbing manner in which the discipline was effectuated and communi- cated, and the subsequent unlawful targeting of a remaining member of the negotiating committee. Since the General Counsel has proven a prima facie case of discrimination, the burden shifts to the Hospital to demonstrate that it would have discharged Gross regardless of her participa- tion on the negotiating committee. At first blush, it would seem that my answer to this question as to White would extend to Gross as well. Upon individualized analysis, I conclude that this would conflate conduct that consisted of a pattern of gross negligence and willful disregard of the transfusion verification requirements with a simple and isolated error. The vast degree of differentiation in culpability underscores the discriminatory nature of the identically severe discipline meted out to Gross. As counsel for the Hospital acknowledges, “In the case of blood, the Hospital clearly treats errors as serious, and routinely imposes discipline. Still, even with blood, there are degrees of error.” (R. Br., at p. 48.) I find that there was a vast degree of difference between White’s pattern of culpable negligence and Gross’ simple verification error. The Hospital’s failure to dif- ferentiate between the two employees requires careful assess- ment in the context of established unlawful antiunion animus. I will now explain my reasoning in detail. At the outset, it will be recalled that Oakley T was White’s patient. Gross’ only role in these events was to participate in the second stage verification of the transfusion information. There is no question that she performed this role in a deficient 43 As the Board has explained, “[I]n mixed-motive cases like this one, to sustain its defense under Wright Line, an employer must show that it would have taken the same adverse action regardless of the em- ployee’s protected activities. It does not have to prove that the adverse action was based solely on legitimate grounds, to the exclusion of any unlawful motivation.” North American Dismantling Corp., 341 NLRB 665, 666 (2004). Such is the case regarding White’s termination. manner.44 She forthrightly testified that she merely “glanced” at the information. (R. Exh. 12, p. 34.) Implicitly placing her faith in White and believing that the blood was for Oakley T, she signed the transfusion verification form. This was miscon- duct, but the question remains whether the Employer sincerely believed that the degree of the misconduct was such that it re- quired termination of her employment. This is particularly true because Gross had lengthy tenure with the Hospital and an impressive record of past performance.45 In concluding that the Employer has failed to establish that it possessed such a sincere belief that Gross’ misconduct required her discharge, I have applied the analytical tests traditionally employed by the Board. These were summarized in Embassy Vacation Resorts, 340 NLRB 846, 848 (2003), rev. dismissed 2004 WL 210675 (D.C. Cir. 2004): Proof of discriminatory motivation can be based on direct evidence or can be inferred from circumstantial evidence based on the record as a whole. . . .To support an inference of unlawful motivation, the Board looks to such factors as incon- sistencies between the proffered reason for the discipline and other actions of the employer, disparate treatment of certain employees compared to other employees with similar work records or offenses, deviation from past practice, and prox- imity in time of discipline to the union activity. (Citations omitted.) Many of these factors and related concepts support a conclusion that Gross was terminated for her pro- tected activity rather than for her simple verification error. At the outset of the inquiry, I note that the Hospital is com- mitted to a system of progressive discipline. The corporate disciplinary policy provides that “[t]he hospital will follow a progressive approach to employee discipline.”46 (GC Exh. 9, p. 1.) It further provides that, “[i]n general,” the progressive ap- proach moves from verbal warning to written warning. (GC 44 The Hospital also contends that Gross’ misconduct included inten- tional falsification of the verification form. As with White, I reject this attempt to add to the justifications advanced for her termination. Gross erred in the performance of her verification procedure. She had no intent to falsify any records. While the Hospital introduced personnel records showing that it fires employees who intentionally falsify re- cords, I agree with counsel for the General Counsel’s observation that, “these incidents are not comparable because they involved either falsi- fication of an employee’s time cards or medical excuses for absences, or an obviously intentional falsification of a patient’s medical records.” (GC Br., at p. 42.) For an example of a truly intentional falsification of records, see the Hospital’s discharge of X-ray Technician Norman who reused old X-rays to hide the poor quality of the studies she had just taken. (GC Exh. 73.) The contention that Gross engaged in the same sort of fraud is a flagrant exaggeration of the seriousness of her mis- conduct. 45 This is another distinguishing factor between the cases of White and Gross. White had a prior disciplinary history for admitted exces- sive absenteeism. Gross had an unblemished disciplinary history and had been trusted with supervisory responsibilities in the recent past. If there were ever an employee whom one would expect to be given some sort of first-offender treatment, it was Gross. 46 It goes on to explain that “occasionally” misconduct may be so se- vere as to require immediate termination. I have found that White’s repeated failures and omissions toward her patient represent an exam- ple of this situation. KENTUCKY RIVER MEDICAL CENTER 667 Exh. 9, p. 1.) If these steps do not obtain the required result, further infractions may be addressed through disciplinary sus- pensions and ultimately discharge. Significantly, the policy explains that a verbal warning is the appropriate response to “initial performance problems.” (GC Exh. 9, p. 1.) Beyond this, the employee handbook advises that application of the progressive disciplinary methodology will involve considera- tion of both “the circumstances of the situation and an em- ployee’s overall work record.” (GC Exh. 8, p. 20.) Certain things about the application of this policy to Gross stand out immediately. The imposition of the ultimate sanction on a 13-year veteran with no prior infractions of any type cer- tainly suggests a failure to consider Gross’ overall work record as a mitigating factor. No management witness provided any reasonable explanation for the failure to assess this factor. Furthermore, no witness explained whether a conscious deci- sion had been made that Gross’ “initial performance problem” merited treatment beyond that ordinarily specified in the policy. Certainly, no witness justified the decision to move from the level of a verbal warning all the way to a sanction of termina- tion as the appropriate response for Gross’ first work infraction in well over a decade of service. The Hospital’s unexplained deviations from its corporate disciplinary policies in the treat- ment of a veteran employee with a fine record constitute potent circumstantial evidence of a primary unlawful motivation. See Tubular Corp.of America, 337 NLRB 99, 99 (2001) (discrimi- nation inferred where employer’s behavior was “inconsistent with its progressive discipline system”). In Tubular Corp., infra., the Board also noted the importance of a comparison between the discipline under analysis and the employer’s past practices. I have already observed that there was no evidence of any prior transfusion errors at the Hospital. However, there were ample records regarding past medication errors that were similar in nature and extent to the error made by Gross in this case. Examination of those records under- scores that Gross was given “atypically strict treatment.” Pub- lix Supermarkets, 347 NLRB 1434, 1439 (2006). I will now provide a brief description of each of these incidents and the nature of management’s responses. These will be presented in chronological order, commencing with the more remote and ending with those very close in time to Gross’ discipline. On March 31, 2002, Nurse Phyllis Gibbs was given a verbal reprimand for the offense of substandard work due to the ad- ministration of an injection to a patient “without proper identi- fication.” (GC Exh. 65.) In another incident that clearly seems of equivalent severity to Gross’ mistake, on May 26, 2004, a Nurse Neac was given a counseling session with her depart- ment manager for failing to check a patient’s armband before administering a dose of Heparin. (GC Exh. 37.) In May 2005, Nurse Pat Lutes removed medications from the storage drawer for room 375 and administered them to the pa- tient in room 385. The record does not reveal the manage- ment’s response. However, using the scoring system contained on the record, it would appear that the expected response was a counseling session with the department manager. (GC Exh. 42, p. 2.) In any event, it is certain that the Hospital does not con- tend that the offender was discharged from employment.47 Later that year, on December 12, Nurse Angie Willett adminis- tered Lasix to the wrong patient. Once again, the documents of record do not show the precise nature of the Hospital’s re- sponse but the computation on the form indicates that the re- sponse should be a counseling session. (GC Exh. 41, p. 2.) And, once again, the Hospital does not contend that Nurse Willett was fired for her mistake. It will be recalled that Nurse Gross committed her error on September 14, 2006. That year was a dismal year so far as the staff’s performance in the area of medication administration. On April 6, Nurse Christy Brewer gave Coumadin to the wrong patient. The record explains that she “was in a hurry to pass meds & apparently pulled the wrong MAR for the wrong pt.” (GC Exh. 38, p. 3.) Was she fired? On the contrary, the record blandly suggests that it was necessary to “[d]iscuss with the nurse the importance of matching the pt’s ID band with the name on the MAR.” (GC Exh. 38, p. 3.) Linkous testified about this incident and confirmed that Brewer was simply given a counseling session.48 Another startling example of the disparate treatment of Gross occurred on May 22, 2006. Nurse Sonya Combs administered the wrong antibiotic to a patient. The records show the re- quired follow up to have been a “talk with nurse about checking the meds better.” (R. Exh. 16, p. 4.) Linkous was also asked about this episode. Indeed, counsel for the Hospital asked her, “[W]ould this kind of mistake and error, should it have led to a suspension or a termination of the nurse on account of what happened?” Linkous responded in the negative, explaining that “there was no negative outcome.” (Tr. 1091.) Once again, this explains nothing since Oakley T also failed to suffer any nega- tive outcome. In fact, Oakley T happened to have been given a bag of blood that was entirely compatible with his profile. In that sense, he was not really given anything erroneous at all. By contrast, Nurse Combs’ patient received a drug different from the one that the physician had prescribed. In the month prior to the transfusion incident, Nurse Kathy Brandenburg gave a patient 10 extra doses of medication be- cause a pharmacy employee wrote down the wrong amount and the nurse “didn’t do chart check right.” (GC Exh. 48, p. 6.) While Gross was fired, Brandenburg was counseled to “look at charts better during chart checks.” (GC Exh. 48, p. 6.) Just a few weeks later, Nurse Judy Chadwell wrongly administered insulin to a patient because, in the words of the form, she “failed to check the medication label for accuracy.” (GC Exh. 40.) There is no indication of the nature of Nurse Chadwell’s punishment. Once again, it would have been a simple matter 47 Indeed, it is reasonable to draw an adverse inference on this point since it would be a simple matter for the Hospital to have explained what happened to Nurse Lutes as a result of her negligent administra- tion of three medications to the wrong patient. 48 In an effort to justify the obvious disparity between the treatment of Brewer and Gross, Linkous noted that Brewer’s patient was not harmed. The difficulty with this explanation is that, fortunately, Oak- ley T was not harmed either. The fact remains that both patients were placed in danger of potential harm, yet one nurse was fired and the other was given verbal counseling. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668 for the Hospital to provide records or testimony indicating that she was terminated from employment for her negligence. Finally, we come to an event on September 11, less than a week before Gross’ transfusion mistake. Nurse Kassandra Combs administered an adult dose of Heparin to a child. The Hospital’s recommended response to this error was that “nurses need to check and recheck orders against MARS.” (R. Exh. 17, p. 4.) Linkous was again asked whether this incident had justi- fied suspension or termination. She replied that it did not since it was the correct medication, merely “a different dose or a—a bigger dose.” (Tr. 1097.) Different indeed, as the record estab- lishes that it was exactly double the prescribed dose. (R. Exh. 17, p. 1.) Once again, the reasoning defies any concept of logic. Oakley T received exactly what his physician ordered (albeit only through the greatest of good fortune). Nurse Combs’ pediatric patient received double the dose ordered by the doctor. Neither patient suffered any apparent harm, yet one nurse was counseled and one was fired. The Hospital’s disciplinary policy promises its employees that “[e]ach facility will administer disciplinary practices in a fair and consistent manner.” (GC Exh. 9, p. 1.) Comparison of the treatment of Gross with that afforded to her colleagues on the nursing staff shows this promise to be a hollow mockery. Her grotesquely unfair and inconsistent treatment is compelling evidence of unlawful discrimination against a veteran employee with a perfect prior record.49 As just described, there is abundant evidence showing that the Hospital failed to follow its established disciplinary policies or provide a convincing explanation of its decision to deviate from them in the case of Gross. Even more clearly, the evi- dence demands a conclusion that the Hospital treated Gross in a vastly more strict fashion than many other nurses who engaged in similar degrees of misconduct. The last of the factors cited by the Board in Embassy Vacation Resorts, supra, is the prox- imity of the discipline to the union activity. Even here, there is reason to draw an inference against the Employer. While it is certainly true that the Hospital did not pick the day on which White and Gross made their transfusion error, the decision to sweep Gross out with the same broom as White came conven- iently timed to enable management to use it as a justification for the cancellation of a collective-bargaining session. 49 I recognize that the Hospital points to the discharge of lab em- ployee Vires as proof of consistent disciplinary treatment. There are several problems with this argument. First, the Hospital asserts that Vires was not a member of the bargaining unit because she was a statu- tory supervisor. It presented no evidence regarding the disciplinary standards for supervisory personnel. Certainly, it is possible that an employer would hold such personnel to a higher standard of conduct. Absent evidence on the issue, I cannot evaluate the propriety of her discharge. In addition, I have no evidence regarding her length of service and past disciplinary history. Finally, and most importantly, her level of misconduct toward Oakley T was much higher than that of Gross. It will be recalled that Vires set the whole chain of events in motion by negligently removing the wrong blood bag from the storage facility. She then proceeded to compound her error through her com- plete failure to identify her mistake during the detailed verification check that White claimed the two women performed. In my view, her culpability is roughly equal to that of White and clearly greater than that of Gross. Analysis of the circumstantial evidence on the question of the sincerity of the Employer’s claimed motive for Gross’ dis- charge convinces me that she is entitled to relief under the Act. Based on the totality of the evidence, I find that, but for her participation on the negotiating committee, Gross would have received a verbal counseling for her isolated error in verifica- tion of Oakley T’s transfusion. The decision to suspend and terminate her employment after well over a decade of unblem- ished service was a direct product of an unlawful desire to pun- ish her protected activities and thwart the Union.50 I will rec- ommend that unfair labor practices be found as to Gross’ sus- pension and termination. D. The Suspension of Frances Lynn Combs in 2007 The Facts The remaining allegation in this case concerns the propriety of the investigatory suspension imposed on Frances Lynn Combs51 on January 18, 2007, and maintained in effect as of the current time.52 Combs is a 37-year veteran of the nursing profession. The Hospital hired her in January 2003 to serve as a nurse in the medical/surgical unit. At the time of these events, Unit Manager Kathy Thacker was Combs’ direct super- visor. In turn, Thacker reported to Chief Nursing Officer Linkous. A few months after Combs was hired, she was offered a new position. Linkous testified that the Hospital was planning to open a swing bed unit. She learned that Combs had significant prior experience with this sort of unit. As a result, it was in- tended that Combs would be appointed to the position of swing bed unit coordinator. Combs testified that she did some pre- liminary work regarding the new unit. In early April 2006, Combs joined the Union’s bargaining committee and attended two collective-bargaining sessions on the Union’s behalf. Union Organizing Coordinator Pidcock testified that a third session was scheduled for later that month. This was cancelled by Carmody who informed Pidcock that, “we wouldn’t be going forward that day because I had reason to believe that you had a member of a management person on your side of the table.”53 (Tr. 1510.) Subsequently, Combs sent a letter to Linkous indicating that she was unaware that she was being considered as part of management. She specifically declined any such position in management. In her letter, she 50 Regarding the decision to suspend Gross, I note that the record does not show that any of the similarly situated nurses were subject to investigatory suspension for their various medication errors. In addi- tion, the suspension was fatally tainted by its use as a weapon against the Union and by the hostile manner in which management conveyed it to Gross through Pidcock. 51 Combs goes by the name of “Lynn.” 52 All dates in this portion of the decision are in 2007 unless other- wise indicated. 53 The Hospital’s last-minute cancellation of a bargaining session due to an allegation concerning the situation of a member of the Un- ion’s negotiating committee foreshadows the employer’s conduct in canceling a subsequent session due to the newly-announced suspen- sions of White and Gross. This is a troubling pattern of last-minute disruption of scheduled negotiations using the status of union commit- tee members as a purported excuse. KENTUCKY RIVER MEDICAL CENTER 669 expressed evident surprise about the characterization of her status, noting that she had not “received compensatory pay for any management role.” (R. Exh. 15.) In the months following the resolution of this so-called management issue, Combs con- tinued to attend bargaining sessions on behalf of the Union. Toward the end of 2006, the Hospital decided to make changes in its policies governing the method for administration of medications to patients. On December 12, 2006, the new policy was distributed to the nursing staff and the nurses were required to sign it. Combs testified that she felt that the new policy “would be difficult to implement.” (Tr. 119.) She took her concerns to Donald Rentfro, the recently appointed re- placement for Bevins as chief executive officer of the Hospital. She presented Rentfro with a document that set forth her con- cerns about the medication policy. He promised to refer it to Linkous. He testified that he did make this referral later that day. Thacker reported that based on Combs’ concerns a change was made to the policy regarding the labeling of syringes. On the next day, Linkous and Thacker met with three nurses, including Combs. They discussed the new policy and Combs signed the form containing it. She testified that, based on these discussions, she believed that the policy “was going to be re- vised” in order to make it “easy to implement it.” (Tr. 120, 122.) She conceded, however, that when she signed the form there was no mention of revisions on it. On January 10, Combs administered medications to a patient in a manner that was inconsistent with the new policy. Imme- diately thereafter, Thacker spoke to her about this. Combs agreed that she had not complied with the policy, observing that, “We don’t need to be fools. We need to use common sense.” (Tr. 63.) Combs told Thacker that she would take the matter up with Linkous. Five minutes later, she and a col- league, Nurse Debra Adams, proceeded to Linkous’ office to raise the issue. In her testimony, Combs admitted that she was concerned that Thacker was going to discipline her for violating the policy and wished to seek a resolution from Linkous. She indicated that Linkous told her that “maybe the policy might need to be made a little more user friendly.” (Tr. 67.) Combs responded by observing that if she or anyone else were to be disciplined, “the policy should at least make sense.” (Tr. 67.) Linkous noted that she had not heard from Thacker regarding the incident, but she would review the policy and “get back with her as soon as I could.” (Tr. 1045.) Approximately a week later, Linkous spoke to Thacker about the incident. Thacker confirmed that she had observed Combs violate the new medication policy. Linkous testified that they concluded it would be appropriate to issue a verbal warning to Combs for this violation. Thacker confirmed that this was the decision reached by the two supervisors regarding the response to Combs’ misconduct. Because Combs was ill, it was neces- sary to wait approximately a week in order to effectuate this decision. January 18 was selected as the date on which Linkous and Thacker would issue the verbal warning to Combs. Linkous, Thacker, and Human Resources Director Mitchell convened in Linkous’ office for this purpose. Prior to the meeting with Combs, they engaged in a very peculiar and highly probative discussion. This came to light during counsel for the General Counsel’s cross-examination of Linkous as follows: COUNSEL: Now, before—before you called Ms. Combs into this meeting, did you tell Ms. Mitchell and Ms. Thacker that if Ms. Combs refused to meet with you all, that you would have to place her on an indefinite sus- pension? LINKOUS: I probably—yeah, I probably did. I’m not sure, but, well, I think I did. COUNSEL: I’m sorry, you said I really think I did? LINKOUS: Yes, I think I did, yes. (Tr. 1129–1130.) Any lingering doubt about this conversation was dispelled by Mitchell who was asked the following: COUNSEL: [B]efore Lynn Combs actually came into the room, did Debbie Linkous tell you that if Lynn Combs refused to go ahead with the meeting you all would proba- bly have to suspend her? MITCHELL: That’s what she said she would probably do. COUNSEL: And that’s before Lynn Combs came into the room— MITCHELL: Yes. (Tr. 1604–1605.) This testimony left me incredulous. I pursued the matter with Mitchell by asking JUDGE: Does this happen often that an employee re- fuses to proceed with a meeting? MITCHELL: No, no.54 JUDGE: So why would they have been thinking that that might happen with Ms. Combs? MITCHELL: I don’t know, sir. I can’t answer that. (Tr. 1605–1606.) During the legal analysis portion of this dis- cussion, I will address in detail my interpretation of the import of this strange and revealing preliminary conversation among the supervisors who had gathered for the purpose of disciplin- ing Combs. At 5 p.m., Linkous instructed Combs to come to her office. Combs testified that Linkous explained that she “had made a decision regarding the January 10th incident and that she wanted to talk to me about it.” (Tr. 69.) Combs invited Nurse Adams to attend the meeting with her. They proceeded to Linkous’ office. Linkous, Thacker, and Human Resources Director Mitchell were waiting for her arrival.55 With the exception of Adams, all of the participants in the meeting testified regarding its content. While there were shades of difference among the accounts, the broad outlines are not in dispute. I will observe, however, that the account of the management witnesses was a bit too perfect. By this I mean 54 In fact, Bevins testified that the last time an employee refused to attend a disciplinary meeting was in 1998. 55 Combs acknowledged that the presence of Mitchell struck her as significant. Thus, in her court complaint, it is alleged that, “[b]ecause Naomi Mitchell was present in the meeting, this signaled to Combs that a write-up or some type of employment action was about to occur.” (R. Exh. 2, p. 5.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 670 that it was couched in precisely the sort of legalistic conclu- sions that would advance the Hospital’s case. To the extent that these nuances matter, I credit Combs’ more unvarnished version. In any event, it is clear that the first thing that happened was that Linkous informed Adams that she was not permitted to attend the meeting. Combs testified that, once Adams departed, she asked Linkous, if I wasn’t allowed to have Ms. Adams there—uh, because I’m a union member would it—you know, would it be pos— would it be possible to have a union representative there and that I could call Randy Pidcock to come in. (Tr. 72–73.) When Linkous rejected this suggestion, Combs explained that it was my understanding, having been part of the union[,] that representation for anything to do with a disciplinary discus- sion I had a right to representation for that and that I did not understand why she was telling me no. (Tr. 73.) Mitchell testified that, upon hearing this, Linkous asked Combs, “[A]re you refusing to go ahead with the meeting and Lynn said yes.” (Tr. 1589.) Combs then observed that, while she had a lot to learn about labor relations, she really believed that she had a right to union representation at the meeting. Whereupon, Linkous explained to Combs that she was being placed on investigatory suspension. At this juncture, Combs asked if she would receive compen- sation for the time spent on suspension if it turned out that she had been correct in her belief regarding her right to representa- tion. Mitchell said this would be the normal practice in situa- tions where it was determined that the employee had done noth- ing wrong. As the abortive meeting drew to a close, Combs spoke to Linkous as follows, “I have no personal issues with you. You all have treated me fairly. I just believe this is a matter of em- ployee rights.” (Tr. 74.) With that, she asked if Linkous wanted her to turn her patients over to another nurse and clock out. Linkous responded in the affirmative. Combs did as in- structed and departed the Hospital. On the next day, Combs telephoned Pidcock to inform him of her suspension. He promised to take appropriate action. That action consisted of a letter addressed to Rentfro. In it, Pidcock noted that Combs had been suspended “when she was called in to a disciplinary meeting and insisted on Union repre- sentation.” (R. Exh. 24.) Pidcock requested an opportunity to meet with Combs and Rentfro to discuss the matter “at your earliest convenience . . . preferably late today or early next week.” (R. Exh. 24.) Rentfro testified that, while he could not locate his copy, he responded to Pidcock by letter on the same day, advising Pid- cock that he would have a meeting and asking for an opportu- nity to have counsel present during it. In fact, Rentfro’s recol- lection was in error. Once the Union produced its copy of the response, it became apparent that it was actually dated January 22. In it, Rentfro noted that the Hospital would “communicate with Ms. Combs further as our investigation proceeds.” (R. Exh. 26, p. 1.) He also agreed to meet with Pidcock, but only “after I have had an opportunity to gather the facts underlying Ms. Combs’ suspension, and consult with counsel.” (R. Exh. 26, p. 1.) He promised that he would notify Pidcock once he was ready to proceed with such a meeting. He ended by indi- cating that he would defer making a final decision on the matter “until after you have been afforded an opportunity to meet as you have requested, unless you advise me to the contrary.” (R. Exh. 26, p. 1.) Subsequently, the parties planned to have this meeting in conjunction with a previously scheduled bargaining session. That session and a succeeding one were both postponed due to illness in a union committee member’s family. After the can- cellation of the second of these scheduled meetings, there has never been another bargaining session nor any meeting to dis- cuss Combs’ suspension. Also on January 22, Linkous addressed a letter to Combs confirming that she had been placed on “unpaid investigatory suspension” on January 18, “after you expressly refused to meet with me without being accompanied by Debra Adams, or, if not Debra Adams, then Randall Pidcock.” (R. Exh. 26, p. 2.) The letter ended with the promise that, “We will communicate further with you as the investigation progresses.” (R. Exh. 26, p. 2.) Although it has been well over a year since that promise, Combs testified that she has never received a further communi- cation from the Hospital and has never been offered a resump- tion of her employment. In his testimony, Rentfro confirmed that Combs has remained on investigatory suspension and has been in that status since January 18, 2007. Legal Analysis of Combs’ Investigatory Suspension As the record was developed regarding the circumstances of Combs’ suspension, I began to realize that the Hospital’s action could be viewed in two ways. By one interpretation, Combs was suspended because she made a demand for representation by her union. From the other point of view, she was suspended because, once her demand was denied, she engaged in an act of insubordination by insisting on a postponement of the meeting so that she could investigate her entitlement to representation. Under the first interpretation, it is necessary to determine whether the Hospital’s imposition of Combs’ suspension was lawful because her conduct was of a character that took it out- side the protections of the Act. Under the second view, the analysis would focus on the Employer’s motivation and it would become necessary to determine whether Combs was suspended for insubordination or in retaliation for her union activities. Different analytical models are employed in assess- ing these two types of issues. Quite recently, in Register Guard, 351 NLRB 1110, 1120 (2007), the Board explained, “Wright Line is appropriately used in cases turning on employer motivation. A Wright Line analysis is not appropriate where the conduct for which the employer claims to have disciplined the employee was union or other protected activity.” [Citations and internal quotation marks omitted.] Because I found that neither of these ways of looking at this situation is obviously unreasonable, I asked counsel to address the choice of methodology in their posttrial briefs. Perhaps not surprisingly, counsel for the General Counsel urged me to em- KENTUCKY RIVER MEDICAL CENTER 671 ploy the test for cases involving a single motive, while counsel for the Employer urged assessment using a dual motive ap- proach. I continue to find that both ways of looking at this situation are productive. As a result, I will assess the conduct of the parties using both analytical tests.56 Turning first to the method urged by the General Counsel, the Board employs a four-part test set forth in its leading case of Atlantic Steel Co., 235 NLRB 814, 816 (1979). Thus, the Board has explained, When an employee is discharged for conduct that is part of the res gestae of protected concerted activities, the pertinent question is whether the conduct is sufficiently egregious to remove it from the protection of the Act. . . . In making this determination, the Board examines the following factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice. Stanford Hotel, 344 NLRB 558, 558 (2005). (Citations, including one to Atlantic Steel, omitted.) As to the first factor, Combs made her initial demand for representation and subsequent demand for a postponement of the meeting while at Linkous’ office. This was a private venue and there is no evidence whatsoever that Combs’ statements were overheard by any other employee, a patient of the Hospi- tal, or any member of the public. As a result, this factor favors a finding that Combs’ behavior was protected. The second factor concerns the subject matter involved in Combs’ statements. There is no dispute that Combs invoked a supposed right to the presence of a union representative at the meeting. In response to my question, Human Resources Direc- tor Mitchell confirmed that the Hospital’s policy on this matter, “is going to track labor law.” (Tr. 1596.) It is, however, note- worthy that the Hospital’s longtime chief executive officer until shortly before these events, Bevins, testified that this policy was not reduced to writing and had not been posted or sent to the employees. Combs informed Linkous, Thacker, and Mitchell that, while she was not an expert in labor law, she believed that she had a right to union representation in disciplinary meetings. Of course, Combs was referring to a right articulated by the Board and subsequently affirmed by the Supreme Court in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). In Weingarten, the Court approved the Board’s conclusion that the Act “guarantees an employee’s right to the presence of a union representative at an investigatory interview in which the risk of discipline rea- sonably inheres.” 420 U.S. at 262. Without doubt, it was this right that Combs was invoking. Unfortunately, Combs was unaware that the Board had sub- sequently placed a limitation on the Weingarten right, holding that: [A]s long as the employer has reached a final, binding deci- sion to impose certain discipline on the employee prior to the 56 The Board employed a similar methodology involving assessment under both the Atlantic Steel and Wright Line tests in Waste Manage- ment of Arizona, 345 NLRB 1339, 1340–1341 (2005). interview, based on facts and evidence obtained prior to the interview, no Section 7 right to union representation exists under Weingarten when the employer meets with the em- ployee simply to inform him of, or impose, that previously de- termined discipline. Baton Rouge Water Works Co., 246 NLRB 995, 997 (1979). See also Barmet of Indiana, 284 NLRB 1024, 1025 (1989) (“this protection does not extend to situations where an em- ployer merely informs an employee of a decision previously arrived at by the employer”). The evidence establishes that the meeting convened by Linkous was of the type described in Baton Rouge Water Works. I credit the testimony of the supervisors that they had previously conferred and decided to issue a verbal warning to Combs. Prior to the meeting, they had also prepared the re- quired employee verbal documentation form showing that Combs was being warned for substandard work due to her “not following the medication administration policy.” (R. Exh. 23.) Combs testified that her “understanding” was that the meeting “was called to give a result of the discussions that we had had prior on what to do around this medication policy.” (Tr. 107.) Furthermore, I have already noted that Combs’ court complaint is even more forthright on this point, stating that Mitchell’s presence in Linkous’ office “signaled . . . that a write-up or some type of employment action was about to occur.” (R. Exh. 2, p. 5.) The Employer had already conducted its investigation and it is clear that the meeting under examination was for the limited purpose described in Baton Rouge Water Works. While Combs was asserting entitlement to a right that she did not possess, there was nothing unreasonable about her be- havior in this regard. The Hospital’s policy had not been pub- lished and the Board’s decision to place this limitation on Weingarten certainly does not render a contrary viewpoint un- reasonable. Indeed, in Baton Rouge Water Works, then Chair- man Fanning issued a strikingly vehement dissent deploring the majority’s holding as “totally unrealistic,” an abdication of the Board’s responsibilities, and a “pity.” 246 NLRB at 999. The point is that it is obvious that reasonable persons may disagree about whether a right to representation should be afforded in the situation that Combs encountered.57 Nothing in the nature of the subject matter raised by Combs can serve to deprive her of the protection of the Act. The third factor cited in Atlantic Steel is the nature of the employee’s conduct. I find that Combs was not uncondition- ally refusing to participate in the meeting. It is apparent that she was seeking a postponement of the meeting for the pur- poses of enabling the supervisors to confirm or modify their position that she was not entitled to representation and to afford her an opportunity to consult Pidcock for advice on the same 57 In any event, the Board and the Supreme Court have long es- chewed any attempt to impose a requirement of reasonableness. As the Court observed almost 50 years ago, “It has long been settled that the reasonableness of workers’ decisions to engage in concerted activity is irrelevant.” NLRB v. Washington Aluminum Co., 370 U.S. 9, 16 (1962). See also QSI, Inc., 346 NLRB 1117, 1117 (2006), where the Board “reaffirm[ed]” its position that the reasonableness of an em- ployee’s means of protest is irrelevant. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 672 question. This is underscored by Mitchell’s testimony that Combs was not agitated or upset and that her demeanor throughout the incident was “just normal.” (Tr. 1606.) Combs’ mistaken assertion of a right to representation, coupled with her calm insistence on a postponement of the meeting in order to effectuate that right, was not the sort of conduct that would deprive her of the protection of the Act. In this regard, I also note that Combs’ conduct did not involve any violation of her professional nursing responsibilities and she, herself, raised the need for her to give the nurse who would be assigned to cover her duties a full report on her patients before leaving the Hospi- tal. The final factor is whether the employee’s conduct was “provoked by an employer’s unfair labor practice.” Atlantic Steel Co., supra, at 816. As I will discuss in connection with the dual motive analysis, I have grave concerns about the em- ployer’s motives and intentions regarding this disciplinary meeting. Nevertheless, I do not find that Combs’ behavior was provoked by some prior unfair labor practice. It may well be that the decision to issue a verbal warning to Combs was de- signed, to some degree, to provoke Combs into some misstep. However, that is something apart from what is meant by the language of Atlantic Steel and is best discussed in connection with the Wright Line analysis. In consequence, I conclude that this factor favors the Employer’s position. Three of the four Atlantic Steel factors support a determina- tion that Combs’ conduct did not remove her from the protec- tion of the Act. Of course, my ultimate conclusion that Combs is entitled to the Act’s protection is not derived from an arith- metical computation, but rather a comprehensive appraisal of the context combined with a full consideration of the policies underlying the Act. Very recently, the Board undertook the same analysis in another health care case. In that case, an off- duty employee was suspended for refusing to comply with an order to leave the premises. The Board noted that the incident occurred in a recreation room and did not affect any work. The subject matter was a dispute over the employee’s assertion of a right to be on the premises while off duty. The employee’s conduct, “involved no profanity and no threatening conduct.” Bloomfield Health Care Center, 352 NLRB 252, 254 (2008). In these circumstances,58 the Board held that the employee’s protest “was not sufficiently egregious to remove it from the protection of the Act.” Id. I conclude that, under a single- motive analysis, the Hospital’s indefinite investigatory suspen- sion of Combs for engaging in union activity was a violation of the Act.59 I will now conduct the dual-motive analysis using the stan- dards mandated by Wright Line as described earlier in this deci- sion. Like White and Gross, there is no dispute that Combs 58 The Board also found that the employer had provoked the miscon- duct by engaging in the unfair labor practice of excluding only off-duty union supporters from the premises. In my view, this does not mean- ingfully distinguish the case from the facts established here. 59 In connection with my dual-motive analysis, I will discuss the re- lated issue of the significance of the Employer’s decision to keep Combs on a so called investigative suspension for well over a year and until the present time. This egregious misconduct sheds retrospective light on the propriety of the Hospital’s conduct throughout this case. was an active member of the Union’s negotiating committee and had been attending bargaining sessions in that capacity. In addition, Linkous readily admitted that she was aware of Combs’ role on the committee at the time that she suspended her.60 As a result, the focus of the inquiry turns to the issue of unlawful animus against Combs arising from her participation on the Union’s committee. To begin, it is important to delineate what is not at issue. In this connection, I asked the following: JUDGE: [L]et me raise with both counsels something here. My understanding thus far, Mr. Carmody, is that the Hospital’s stated reason for the suspension of Ms. Combs was not some misconduct regarding a medication policy or administration of medications, but rather a refusal to at- tend a disciplinary meeting? MR. BRYAN CARMODY: That’s true Your Honor. . . . . JUDGE: Mr. Ness, what’s your view of this? . . . . MR. NESS: Right, we’re not alleging that as a viola- tion. We’re not trying prove that the verbal warning . . . was a violation rather just the suspension. (Tr. 1399–1402.) Consistently with the nature of this discus- sion, the General Counsel does not contend that the Hospital engaged in any impropriety by deciding to issue a warning to Combs regarding her violation of the medication policy. By the same token, the Hospital does not assert that Combs’ violation of that policy formed any portion of its rationale for imposition of her investigatory suspension. With the confines of the issue understood, I will address the presence of unlawful animus. For reasons previously discussed in detail, I have concluded that the Hospital’s history of prior discriminatory discharges for union activities constituted proba- tive evidence of animus against White and Gross. The events here took place approximately 3 months later. That span of time does not attenuate the importance of this evidence of past mindset and the misconduct it produced to any material degree. To the contrary, my determination that the adverse actions taken against White and Gross were, in part, motivated by the same sort of animus demonstrates the tenacious nature of the set of attitudes uncovered in the prior case. Beyond that, my determination that such attitudes were the dispositive factor in the unlawful decision to fire Gross is powerful evidence of identical animus against Combs arising out of the similar nature of both nurses’ participation on the negotiating committee. Beyond this history, I find manifestations of animus from the conduct of management in the moments immediately preceding the fateful meeting, in Mitchell’s conduct during the meeting, and from the behavior of the management of the Hospital throughout the lengthy period after the meeting. It will be recalled that the three managers, Linkous, Thacker, and Mitchell, had gathered in Linkous’ office preparatory to giving Combs her verbal warning. Both Linkous and Mitchell confirmed that they discussed the possibility that Combs would 60 Indeed, Linkous testified that she knew that Combs was “strong in the Union.” (Tr. 1041.) KENTUCKY RIVER MEDICAL CENTER 673 refuse to participate in the meeting. Linkous stated that, in that eventuality, she would suspend Combs’ employment. As coun- sel for the General Counsel observes, “This is certainly odd because Linkous was not aware of any previous occasions when Combs had allegedly refused to attend a meeting with management.” (GC Br. at pp. 31–32.) Indeed, Bevins reported that such behavior was so rare that the last time any employee had done so was almost a decade earlier. This raises the ques- tion of whether the supervisors were attempting to provoke Combs into making a misstep that would justify her suspen- sion.61 During the trial, I expressed surprise and puzzlement about this conversation. Despite this, neither Linkous, Mitchell, nor counsel for the Hospital have offered any expla- nation of the reason for this conversation and I cannot discern any reason other than an unlawfully motivated one. Just as I infer animus from the occurrence of a conversation that I very much doubt would have taken place absent unlawful motivation, I find additional evidence of animus regarding a conversation that one would reasonably have expected to occur during the meeting, but did not. I refer here to Mitchell’s strange and disturbing silence in the face of Combs’ request for representation. Mitchell has worked for the Hospital’s human resources department since 1988 and has served as the director of human resources since 1998. It is evident that she partici- pated in the meeting with Combs as the authoritative represen- tative of that department. Indeed, Combs indicated that Mitchell’s presence conveyed a strong message to her about the purpose of the meeting. At the meeting, Combs asked if it would be “possible to have a union representative.” (Tr. 72–73.) Linkous responded by denying the request. They discussed the matter further, with Combs indicating that she thought she had right to representa- tion “for anything to do with a disciplinary discussion.” (Tr. 73.) I simply cannot understand why the authoritative spokes- person for the Employer’s personnel system did not intervene and explain the Hospital’s policy regarding representation at meetings that did not involve an investigatory aspect. Mitchell readily conceded that she was aware of the policy. Yet, she chose not to make any effort to avert the unfortunate outcome that followed on Combs’ mistaken assertion of a right to repre- sentation. At the trial, I asked Mitchell why she was silent in the face of Combs’ obvious misunderstanding of the situation. The best she could offer was to respond that, “I wasn’t the one doing the meeting.” (Tr. 1597.) Of course, this merely begs the question of her presence at the meeting. I pressed for more explanation and Mitchell replied, “[Combs] said she knew her rights what she could and couldn’t do. She didn’t know everything but she said she knew her rights. So I didn’t say anything if she—you know.” (Tr. 1602.) Ironically, Mitchell’s attempt to be self-effacing about her limited status at the meeting was thoroughly undermined by the conversation that followed Linkous’ suspension of Combs. At 61 It is clear that Linkous was aware that Combs had a somewhat volatile nature when displeased by actions taken by her supervisors. In 2005, Combs made an impulsive decision to quit during a dispute. Linkous calmed her down and persuaded her to return to work. that point, Combs asked if she would receive backpay in the event it was determined that she had not been mistaken about her rights. Linkous referred this inquiry to Mitchell. When asked why she did so, she testified that, “I’m not HR [Human Resources], so I couldn’t truthfully answer that question, so I directed her to Ms. Mitchell, the HR person.” (Tr. 1135.) Ab- sent an intention to provoke Combs into a misstep, I cannot conceive of a reason why the managers did not similarly turn to Mitchell for an authoritative expression of the Hospital’s rules regarding union representation in an effort to avert all that has now followed.62 I recognize that the Hospital takes the viewpoint that it was not incumbent on Mitchell to explain an employee’s Weingar- ten rights to her. I have no quarrel with this proposition. The point, however, is that Mitchell failed to explain the Hospital’s Baton Rouge Water Works rights to Combs. That is entirely another matter and Mitchell’s silence in circumstances where one would have expected her to act authoritatively suggests a peculiar lack of interest in averting an ongoing disciplinary problem. The Hospital’s past set of attitudes and actions, coupled with the strange behavior of the managers immediately preceding and during the meeting all point to an unlawful motivation as the best explanation for what occurred. Beyond this, manage- ment’s behavior in the period of well over a year since the im- position of the investigatory suspension is even more striking. Chief Executive Officer Rentfro testified that Combs was placed on investigatory suspension on January 18, 2007, and remained in that status as of the date of his testimony, April 8, 2008.63 Similarly, Combs testified that, since her suspension on January 18, she has heard nothing further from her em- ployer. I have already noted in connection with the discharges of White and Gross that the Board looks to circumstantial evi- dence of animus that may include, “inconsistencies between the proffered reason for the discipline and other actions of the em- ployer, disparate treatment . . . [and] deviation from past prac- tice.” Embassy Vacation Resorts supra, 340 NLRB at 847. It is, therefore, important to examine the evidence regarding the Hospital’s theory and practice in the use of the investigatory suspension. The Hospital’s written disciplinary policies clearly differen- tiate between a disciplinary suspension and an investigatory suspension. A disciplinary suspension is a punishment consist- ing of an unpaid leave of absence for a term not to exceed 10 days. By contrast, an investigatory suspension is described as 62 Mitchell has not always been so shy. As long ago as 1997 when she was merely an administrative assistant in the human resources department, she participated in what was a difficult and emotional disciplinary meeting. Given how distraught that employee became upon learning that she was being discharged for misconduct, Mitchell took the initiative. As a documentary account notes, “Naomi Mitchell explained the procedure of filing a grievance report and went to get the proper papers for [the employee].” (R. Exh. 28, p. 3.) One may only regret that Mitchell failed to show a similar type of initiative in this situation. 63 In his posttrial brief, counsel for the Hospital confirms that, “to this day, Ms. Combs remains on investigatory suspension.” (R. Br. at p. 14.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674 “an interim action waiting the outcome of an investigation or review by management or court action, etc.” (GC Exh. 9, p. 2.) Rentfro confirmed that Combs’ suspension by Linkous was “to allow time to further investigate the situation and get appropri- ate counsel as to the next steps.” (Tr. 1499.) Rentfro’s explanation is clearly plausible and I certainly comprehend his desire to confer with counsel before making any final decision as to how to resolve Combs’ situation. How- ever, this explanation does not begin to account for the length of Combs’ investigatory suspension. There was certainly noth- ing complex about the events under analysis by management. Since all of the alleged misconduct by Combs took place in the direct presence of three managers, there was hardly a need for detective work. Furthermore, all of the evidence from man- agement established that the Hospital had a longstanding policy regarding the issue of representation and, in fact, the managers had already discussed and decided what to do before Combs appeared at Linkous’ office. I conclude that the only possible remaining matter that could have taken any amount of time at all was the desire to get an opinion from legal counsel. Rentfro testified that the length of Combs’ investigatory sus- pension was “[v]ery atypical.” (Tr. 1504.) He conceded that a typical length for a relatively uncomplicated case would be between 3 to 10 days. Mitchell reported that such an investiga- tive suspension should take, “maybe a couple weeks, maybe not even that, that long; a week or two weeks.” (Tr. 1595.) She confirmed that this was consistent with good management and personnel practices. She endorsed the logic that an innocent employee should be returned to productive work as soon as possible and an employee guilty of serious misconduct should be gotten off the rolls with the same speed. All of this under- scores the bizarre contrast between the intended length of in- vestigatory suspensions under the Hospital’s policies and the interminable length of Combs’ suspension. A review of the record also reveals the startling disparity be- tween Combs’ protracted suspension and the treatment of other employees who found themselves under such interim measures. In particular, it is worthwhile to examine the timing for other employees involved in this case. Fields was suspended on Au- gust 9 and discharged by letter dated August 31. This is an entirely rational use of the investigatory suspension. The mis- conduct alleged against Fields required careful investigation to determine the facts, consultation with medical experts to assess the complex meaning of the events, and referrals to the highest levels of management and to legal counsel before the selection of a final sanction. Given the complexities involved, Fields’ 3- week investigatory suspension appears entirely appropriate. Nurse White was suspended on September 18. She was ter- minated by letter dated October 2. Once again, the matter in- volved a clear need for thorough investigation, legal consulta- tion, and decision making at the highest levels. All things be- ing equal, White’s suspension for a little more than 2 weeks was reasonable in length.64 64 I have already explained that, in the case of Gross, all things were not equal since the Hospital never suspended other nurses for errors similar to the one she made. Thus, while the length of Gross’ suspen- sion may have been reasonable for an investigatory suspension, the The fact that complex disciplinary problems like those repre- sented by the situations of the other employees involved in this case could be brought to final resolution in a matter of weeks stands in stunning contrast to the decision to maintain Combs on what has become a permanent deprivation of her means of employment, rather than an interim measure to allow reasoned and deliberate decision making. It reeks of animus directed against her for her participation in protected union activities. In his posttrial brief, counsel for the Hospital makes only a perfunctory effort to explain that which cannot be innocently explained. By footnote, he blandly observes: Ms. Combs has remained on investigatory suspension be- cause the Hospital agreed to postpone further action until a meeting could take place with the Union and, despite the Hospital’s efforts, the Union failed to convene a meeting.65 (R. Br., at fn. 14.) Examination of this claim uncovers additional evidence of animus against both Combs and the Union. Counsel bases this claim on the fact that Pidcock wrote to Rentfro to request a meeting to discuss Combs’ behavior. As to scheduling, he suggested, “preferably late today or early next week.” (R. Exh. 24.) Several days later, Rentfro responded to Pidcock, advising that he would prefer that the meeting occur after the investiga- tion and an opportunity to confer with counsel. He promised to notify Pidcock once he was ready for the meeting. Although he had not been faced with any request by the Union on this sub- ject, he also volunteered that he would “defer” making any final decision regarding Combs “until after you have been afforded an opportunity to meet as you have requested, unless you ad- vise me to the contrary.” (R. Exh. 26.) While two meetings were scheduled, they never took place. The Hospital hides behind this history as an excuse for the maintenance of Combs’ interminable investigatory suspension. In so doing, it is attempting to drive another wedge between the bargaining unit members and their representative. This obvious attempt to shift blame for the decision to maintain Combs in limbo in a manner clearly contrary to past policy and practice demonstrates similar animus to that displayed in the decision to announce to Pidcock that White and Gross were being sus- pended and that this required the last-minute cancellation of a bargaining session. I recognize that the Hospital’s purported justification is an attempt to copy a strategy that it employed with some success in Judge Evans’ case. In that case, the Board affirmed the imposition of any suspension at all was based on unlawful considera- tions. 65 This version of events is misleading. To say that the Hospital “agreed to postpone further action until a meeting could take place” suggests that the Union negotiated this outcome. Actually, the Union never demanded that management postpone any action. Furthermore, the Hospital’s unilateral commitment was only to delay action until the Union had been “afforded an opportunity to meet.” (R. Exh. 26, p. 1.) It is clear that the Union had been offered such an opportunity and it twice chose to postpone the scheduled meetings. There was nothing in the parties’ correspondence that precluded the Hospital from making its disciplinary decision regarding Combs. The only thing that stood in the way was animus directed against her and the Union. KENTUCKY RIVER MEDICAL CENTER 675 judge’s conclusion that Pidcock’s failure to submit a proposal that he had promised to prepare served to excuse a refusal to meet with the Union for a period of over 3 months. As a result, a charge alleging a violation of Section 8(a)(5) was dismissed. In no way are the situations comparable. Pidcock never re- quested a delay in reaching a decision as to Combs’ discipline. Indeed, he made it clear that he wanted any meeting to be held immediately so as to avoid such delay for his union member who was suspended without pay. He certainly never requested or demanded that the Hospital defer action on its disciplinary process in order to await a meeting with the Union. Beyond this, the alleged bargaining violation in the prior case was part of the maneuvering between two institutional antagonists and it certainly made sense to hold the Union to its promise to provide a proposal. Here, the conflict is between the Hospital and one of its employees. As clearly explained by the Hospital’s written policy and history of past practice, manage- ment’s duty was to conduct its investigation, make a decision, and inform the affected employee of the outcome. This prom- ise was rendered all the more specific in Linkous’ formal letter advising Combs of her investigative suspension. She ended the letter by making a firm commitment to “communicate further with you as the investigation progresses.” (R. Exh. 26, p. 2.) No action or inaction by the Union could alter the obligation owed by management to comply with its own rules and its di- rect promise to Combs. The attempt to place blame for the unfair treatment of Combs since she was placed on investiga- tory suspension on her union representative is both baseless and indicative of the type of animus displayed by management throughout this course of events. Upon examination of all the circumstances involved in Combs’ endless investigative suspension, I conclude that it was primarily motivated by animus against her due to her protected activities and also by animus against the Union itself. Apart from the unpersuasive smokescreen about Pidcock’s failure to reschedule a meeting, the Hospital has never explained why it refused to reach a decision regarding Combs’ status. Nor has it suggested any reason why it did not terminate the investigatory suspension and offer Combs a second opportunity to receive the verbal warning once she had conferred with Pidcock and pre- sumably learned that she had no right to his representation at such a meeting. Finally, at the last step of the Wright Line process, I must de- cide whether the employer would have maintained Combs on permanent investigatory suspension regardless of its animus against her protected union activities. To simply pose the ques- tion serves to answer it. There is no hospital policy or practice that authorizes the use of the investigatory suspension as a pun- ishment for any infraction, including insubordination. Based on the totality of the evidence, it is clear that the Hospital did not actually base its decision to treat Combs in this fashion on any theory of punishment for insubordination arising from her conduct. The Board’s treatment of such a problem was out- lined in La Gloria Oil & Gas Co., 337 NLRB 1120, 1124 (2002), affd. 71 Fed. Appx. 441 (5th Cir. 2003): Having found that the General Counsel has met his ini- tial burden of persuasion, we now examine the Respon- dent’s argument that it would have taken the same action in the absence of that protected activity. In doing so, we must distinguish between a “pretextual” and a “dual mo- tive” case. If the Respondent’s evidence shows that the proffered lawful reason for the discharge did not exist, or was not, in fact relied upon, then the Respondent’s reason is pretextual. If no legitimate business justification for the discharge exists, there is no dual motive, only pretext. See also Rood Trucking Co., 342 NLRB 895, 898 (2004) (“finding of pretext defeats any attempt by the Respondent to show that it would have discharged the discriminatees absent their union activities”). Here, the Hospital’s conduct compels me to conclude that its managers did not rely on any insubordi- nation by Combs in deciding to place her on investigatory sus- pension and maintain her in that status for over a year. I conclude that the Hospital placed and maintained Combs on investigative suspension solely because of her involvement in protected union activities, including her active participation on the bargaining committee and her invocation of a supposed right to union representation at a disciplinary meeting. In con- sequence, the Hospital violated Section 8(a)(3) and (1) of the Act in its discriminatory treatment of Combs. CONCLUSIONS OF LAW 1. By discriminatorily suspending and discharging its em- ployee, Louise Gross, the Hospital has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. By discriminatorily suspending its employee, Frances Lynn Combs, the Hospital has engaged in an unfair labor prac- tice affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 3. The Hospital did not violate the Act in any other manner alleged in the amended consolidated complaint. REMEDY Having found that the Hospital has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. I will also recommend that the Hospital be required to post a notice in the usual manner.66 As to affirmative relief, the Hospital, having discriminatorily suspended and discharged two of its employees, it must offer them reinstatement and make them whole for any loss of earn- 66 Neither the General Counsel nor the Union has requested a broad cease-and-desist order or other extraordinary measures such as a re- quirement that a member of management read the notice to unit mem- bers. In the present posture of this case, I will not recommend such measures absent a request for them. I note, however, that the General Counsel’s petition seeking an adjudication of contempt against the Hospital remains pending before the Circuit Court. Once it has been resolved, it may become appropriate to reconsider the need for addi- tional forms of relief. See Five Star Mfg., 348 NLRB 1301 (2006) (totality of circumstances must be assessed to determine severity of a respondent’s attitude of opposition to the purposes of the Act in order to gauge the need for a broad cease-and-desist order) and Homer D. Bronson Co., 349 NLRB 512, 515 (2007), enf. 2008 WL 1699205 (2d Cir. 2008) (reading of notice required to dissipate effects of serious and widespread unfair labor practices). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676 ings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Hori- zons for the Retarded, 283 NLRB 1173 (1987). It must also be ordered to expunge from its records any references to the unlawful disciplinary actions taken against them and notify them that those actions will not be used against them in any way. Both sides in this case have made unusual requests regarding the remedy portion of the litigation. Neither request merits relief. Turning first to the Hospital’s request, it urges that I add a gloss to the Board’s jurisprudence by heightening the stan- dard required to order reinstatement of health care personnel who have been victims of unlawful discrimination. Of course, one must begin examination of this question by noting that “reinstatement and backpay are the usual remedies when an employee has been unlawfully discharged.” Precoat Metals, 341 NLRB 1137, 1138 (2004). While the Board recognizes certain very limited exceptions to this remedial policy, it has not adopted any exception based on the nature of an employer’s type of business enterprise. Rather, such rare exceptions relate to the conduct of the employee whose reinstatement is under consideration.67 See, for example, Precoat Metals, infra., in- volving an employee who lied to the Board agent and perjured himself at trial, and Anheuser-Busch, Inc., 342 NLRB 560 (2004), involving an employer’s use of video surveillance that captured various forms of employee misconduct, such as smok- ing marijuana at work. Counsel urges me to deny reinstatement to Nurse Gross be- cause “she admittedly failed to follow blood transfusion poli- cies, resulting in the transfusion of the wrong blood to a pa- tient.”68 (R. Br., at p. 68.) He urges this departure from the Board’s normal remedial approach because of the unique con- siderations affecting an employer in the healthcare field.69 The primary difficulty with this argument is that it is an at- tempt to gain through the back door that which was properly denied at the front gate. By this I mean that Wright Line has already required me to determine whether the Hospital truly and sincerely believed that Gross’ misconduct posed such a danger to its patients that she had to be fired.70 As a circuit 67 The Board has rejected an argument for imposition of a lesser remedy based on a contention that the employer did not engage in pervasive or flagrant misconduct. In declining this invitation to change its policy, the majority observed that the respondent had discharged multiple employees and that, “[e]ach discharge represents one of the most serious forms of employer misconduct, and each one warrants the normal remedial response.” First Transit, Inc., 350 NLRB 825, 829 (2000). 68 Counsel makes no argument for denial of reinstatement to Combs on this basis since her conduct had nothing to do with patient care. 69 Actually, there is nothing particularly unique about the fact that employees’ misconduct in healthcare institutions may lead to serious injury and death. The same is true for many types of employers such as automobile manufacturers or construction contractors. Any exception to reinstatement based on the dangerousness of an occupation would threaten to swallow the rule. 70 For the same reason, the Board has rejected an employer’s attempt to argue that it should not have to provide backpay for an unlawful court explained long ago, the “crucial factor” in the assessment of an employer’s liability for acts of discrimination, “is not whether the business reason cited by [the employer was] good or bad, but whether [it was] honestly invoked and [was], in fact, the cause of the [employer’s decision].” NLRB v. Savoy Laun- dry, Inc., 327 F. 2d 370, 371 (2d Cir. 1964), cited with approval by the Board in Framan Mechanical, Inc., 343 NLRB 408, 411–412.71 Having carefully considered this question, I con- cluded that the Hospital did not believe that Gross’ failure to properly perform the transfusion verification required her dis- charge. Instead, I found that Gross’ active role on the Union’s negotiating committee constituted the dispositive motive for her termination. Interestingly, Judge Evans addressed the same point quite eloquently and forcefully in the prior case involving this hospi- tal. He found that the employer had discharged Operating Room Technician Eileene Jewell because of her participation in protected union activities. The Hospital had contended that Jewell was discharged because she failed to properly clean and sterilize surgical instruments, a form of substandard work that could endanger the lives of patients. Judge Evans agreed that this misconduct may have endangered patients. He went on to explain that: There are, however, innumerable opportunities in the daily workings of a hospital for life threatening endangerments of patients by simple failures by employees to do their routine jobs according to the standards of their employers. Common logic, as well as the existence of the Respondent’s published progressive disciplinary system, indicates that the Respondent would not necessarily discharge an employee for noninten- tional mistakes about which that employee had not received warnings, even if the life of a patient is endangered by those mistakes. This is especially true for long-service employees such as Jewell who had worked for the Respondent almost from its opening in 1987. Kentucky River Medical Center, supra, at 582. (Footnotes, in- cluding one observing that Jewell had no prior history of disci- plinary violations, omitted.) The Board adopted Judge Evans’ order reinstating Jewell to her position with the Hospital. Turning to Gross, another long-service employee with an unblemished disciplinary history, I examined the totality of the evidence, including comparable instances of discipline for simi- lar misconduct, and concluded that the employer would not have terminated Gross for her mistake absent her union activ- ity. As a result, reinstatement does not in any way infringe the right of the Hospital to make personnel decisions that protect termination since the employee had been discharged for good cause. As the Board put it, “This argument is another attempt by the Respon- dent to assert its rebuttal defense under Wright Line, which we reject.” Joseph Chevrolet, Inc., 343 NLRB 7, fn. 9 (2004), enf. 162 Fed. Appx. 541 (6th Cir. 2006). 71 Indeed, the Board’s Wright Line test was crafted to meet the Act’s injunction that, “[n]o order of the Board shall require the reinstatement of any individual as an employee who has been suspended or dis- charged . . . if such individual was suspended or discharged for cause.” Sec. 10(c). KENTUCKY RIVER MEDICAL CENTER 677 the lives and welfare of its patients.72 I shall order the custom- ary remedy of reinstatement for Nurse Gross. The General Counsel also asks me to depart from the Board’s established remedial policies. He argues that I should order that interest on the monetary award be compounded quarterly. He acknowledges that such an award would run counter to the Board’s “current practice.” (GC Br. at p. 46.) I have seen this argument before. For example, roughly a year ago, the General Counsel made the same argument to me in Frye Electric, Inc., 352 NLRB 345 (2008). Although I did not grant the request at that time, I gave it serious consideration at page 358. In the meanwhile, the Board has spoken on this issue. Al- though I have not compiled an exhaustive list of the cases in which it has so spoken, I will cite three instances from the pe- riod immediately preceding the filing of the General Counsel’s brief in this case: National Fabco Mfg., 352 NLRB No. 37, slip op. at fn. 4 (2008) (“Having duly considered the matter, we are not prepared at this time to deviate from our current practice of assessing simple interest.”) (not reported in Board volume); ABS Heating & Cooling, 352 NLRB No. 50 (2008) (not re- ported in Board volume); and Mays Electric Co., 352 NLRB No. 49 (2008) (not reported in Board volume). The key word here is “duly.” Webster defines this term as, “in a proper man- ner.”73 Thus, the Board has signaled that it has considered the issue and made its decision regarding it.74 72 Reductio ad absurdum is also a useful analytical tool to employ regarding counsel’s argument. If one accepted his premises in cases of antiunion discrimination, there could be no reason not to apply them as well to cases involving discrimination based on race, religion, gender, or ethnicity. If evidence showed that a health care employer had fired a nurse because of her race, it would hardly be argued that reinstatement should be denied because it would “interfere[ ] with the Hospital’s exercise of its core healthcare judgment.” (R. Br., at pp. 68–69.) It is no less repugnant to make such an argument regarding any other form of unlawful discrimination. 73 Webster's II New Riverside University Dictionary, Riverside Pub- lishing Co., 1994, at p. 409. See also (“duly” defined as “in a due manner” and “properly”). 74 The fact that the Board has stated that it has considered the merits of the request for compound interest distinguishes this situation from others where the Board declines to address a proposed change in its remedial policies. See, for example, Ishikawa Gasket America, Inc., 337 NLRB 175, 176 (2001), affd. 354 F.3d 534 (6th Cir. 2004) (Board declines to alter policy regarding reimbursement for taxes because the issue “should be resolved after a full briefing by the affected parties”). As I noted in Frye Electric, supra, there is nothing wrong with General Counsel seeking modification of existing Board policies.75 As a young lawyer, however, I was taught that it was bad form to lead a judge into error. Here, the General Counsel spends more than 10 pages on his argument regarding the need for compound interest. Nowhere in those pages does he advise me that the Board has recently and repeatedly given due consideration to this argument and rejected it.76 Even the sturdiest boilerplate must be returned to the blacksmith’s forge for revision when circumstances dictate. Such circumstances have now arisen regarding the General Counsel’s attempt to induce administrative law judges to order compound interest in the face of the Board’s recent and repeated refusals to do so.77 As to both of the requests that I depart from established precedent, I will follow the Board’s admonition that: [I]t remains the [judge’s] duty to apply established Board precedent which the Supreme Court has not reversed. Only by such a recognition of the legal authority of Board prece- dent, will a uniform and orderly administration of a national act, such as the National Labor Relations Act, be achieved. Pathmark Stores, Inc., 342 NLRB 378 fn. 1 (2004). (Citations omitted.) [Recommended omitted from publication.] 75 The degree of acceptable persistence is a matter for the Board to decide. 76 Nor does the General Counsel inform me that the Board reversed a judge’s recommendation to calculate interest on a daily compounded basis in Rogers Corp., 344 NLRB 544 (2005). 77 My criticism of the General Counsel on this topic is not meant to refer to trial counsel in this case. His request for compound interest is presumably made pursuant General Counsel’s Memorandum GC 07-07 (May 2, 2007), entitled “Seeking Compound Interest on Board Mone- tary Remedies.” That memorandum requires inclusion of model lan- guage regarding compounding of interest in briefs filed by the individ- ual regions. It is this model language that I respectfully suggest re- quires modification. Copy with citationCopy as parenthetical citation
