Exempla Lutheran Medical Center

National Labor Relations Board - Administrative Judge Opinions

Jul 20, 2007

27-CA-020233 (N.L.R.B. Jul. 20, 2007)

JD(SF)–23-07
Wheat Ridge, CO
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES
EXEMPLA LUTHERAN MEDICAL CENTER
and Case 27-CA-20233
UNITED FOOD & COMMERCIAL
WORKERS UNION, LOCAL NO. 7,
UNITED FOOD & COMMERCIAL WORKERS
INTERNATIONAL UNION
Isabel Acosta, Esq., and Bill Daly, Esq.,
Denver, CO, for the General Counsel.
Jessica Inouye, Esq., and Deangelo Starnes, Esq.,
Wheat Ridge, CO, for the Charging Party.
John M. Husband, Esq., Denver, CO,
for the Respondent.
DECISION
Statement of the Case
Gregory Z. Meyerson, Administative Law Judge. Pursuant to notice, I heard this
case in Denver, Colorado, on April 3-4, and May 8, 2006. United Food & Commercial Workers
Union, Local No. 7, United Food & Commercial Workers International Union (the Union or the
Charging Party) filed an unfair labor practice charge in this case on October 10, 2006. Based
on that charge, the Regional Director for Region 27 of the National Labor Relations Board (the
Board) issued a complaint on January 31, 2007. The complaint alleges that Exempla Lutheran
Medical Center1 (the Respondent, Lutheran, or the Employer) violated Section 8(a)(1) and (3) of
the National Labor Relations Act (the Act). The Respondent filed a timely answer to the
complaint denying the commission of the alleged unfair labor practices and raising a number of
affirmative defenses.2

1 The complaint was amended at the hearing to reflect the correct name for the Respondent.
2 All pleadings reflect the complaint and answer as those documents were finally amended.
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All parties appeared at the hearing, and I provided them with the full opportunity to
participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue
orally and file briefs. Based upon the record, my consideration of the briefs filed by counsel for
the General Counsel and counsel for the Respondent, and my observation of the demeanor of
the witnesses, I now make the following findings of fact and conclusions of law.3
Findings of Fact
I. Jurisdiction
The complaint alleges, the answer admits, and I find that the Respondent is a
corporation with an office and place of business in Wheat Ridge, Colorado, where it has been
engaged in the operation of an acute care hospital (the Respondent’s hospital facility). Further,
I find that during the 12-month period ending January 31, 2007, the Respondent, in the course
and conduct of its business operations, derived gross revenues in excess of $250,000; and that
during the same period, the Respondent purchased and received at its hospital facility goods,
materials, and services valued in excess of $50,000 directly from points and places outside the
State of Colorado.
Accordingly, I conclude that the Respondent is now, and at all times material herein has
been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. Labor Organization
The complaint alleges, the answer admits, and I find that at all times material herein, the
Union has been a labor organization within the meaning of Section 2(5) of the Act.
III. Alleged Unfair Labor Practices
A. The Dispute
The complaint, as amended, alleges that the Respondent rescinded an offer to hire
Kimberly Maddock (Maddock), a registered nurse (RN), because of her previous union activity
and to prevent her from engaging in future union activity with the Respondent’s employees
and/or protected concerted activity with those employees as well as with the employees of a
different employer. The Respondent denies that its decision not to hire Maddock was in any
way motivated by her previous union activity or any concern that she might engage in union or
protected concerted activity in the future. Maddock had previously been employed as a RN by
the Respondent. According to the Respondent, the decision not to rehire Maddock as a RN
was based primarily on her previous employment record with the Respondent, which allegedly
demonstrated certain deficiencies in her performance. It is the contention of the Respondent
that these deficiencies prevented Maddock from meeting certain “service behavior standards”
that the Respondent insisted all of its employees adhere to. Further, the Respondent contends

3 The credibility resolutions made in this decision are based on a review of the testimonial
record and exhibits, with consideration given for reasonably probability and the demeanor of the
witnesses. See NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). Where
witnesses have testified in contradiction to the findings herein, I have discredited their
testimony, as either being in conflict with credited documentary or testimonial evidence, or
because it was inherently incredible and unworthy of belief.
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that it was concerned that Maddock’s concurrent employment as a nurse practitioner (NP) with
another health care provider, some of whose medical personnel worked at the Respondent’s
hospital facility, would potentially create conflicts, malpractice issues, confusion among patients
and medical personnel, as well as “role confusion” on the part of Maddock, assuming she were
to be hired to work at the hospital as a RN.
B. The Facts
For the most part, the background facts in this case are not in dispute. Maddock had
been employed by the Respondent for almost 15 years as a “per diem” or “per random need”
RN in labor and delivery at the Respondent’s hospital facility.4 While working for the
Respondent as a RN, Maddock furthered her education and became a licensed NP. In October
2001, she voluntarily resigned her position as a RN with the Respondent and accepted a
position as a NP with Westside Women’s Care (Westside), where she currently continues to be
employed.
Westside is a private OB-GYN practice. At the time of the hearing, it consisted of nine
physicians, six of whom owned the practice. Also employed at Westside were nurse midwives,
4 nurse practitioners (including Maddock), ultra sound technicians, schedulers, and billing
clerks. The Westside doctors perform approximately 95% of their deliveries at the
Respondent’s hospital facility, as well as performing gynecological surgeries there. Westside is
responsible for approximately 70% of Lutheran’s OB-GYN business. Lutheran “credentials” the
doctors, midwives, and NPs from Westside so that, as appropriate, they are able to deliver
babies, perform surgery, and cover on call shifts at the hospital facility. These credentialed
employees of Westside have “privileges” at Lutheran. In the case of Maddock, a NP, having
privileges means being able to deliver babies, treat the patients of Westside who delivered at
Lutheran, including postpartum care, conduct “rounds” on those patients, assess their
conditions, and ultimately order them discharged.
There are significant differences between the authority and duty exercised by nurse
practitioners and registered nurses. A NP possesses a license from a state authority, and
generally speaking, has much more authority, autonomy and responsibility than a RN. NPs are
allowed to admit patients, access patient medical records, document history, perform physical
exams, request consultations, refer patients to other health care providers, and write orders and
notes on patient care charts. They are supervised by a sponsoring physician. On the other
hand, RNs may admit a patient only with admitting orders from a physician. They have limited
access to patient medical records, and must report an assessment to a physician. They may
not diagnose and a request for a consultation must be made in collaboration with a physician. A
RN can place an order in a patient’s chart, but only at the behest of a physician. The RNs are
licensed under a different state statute, and are supervised by nurse managers at the particular
hospitals where employed. Lutheran does not consider RNs to have “credentials” and they
have no “privileges” at the hospital. The privileged NPs have access to the doctors’ cafeteria,
lounge, and parking lot, while the RNs do not.

4 The terms “per random need” or “per diem” RN are used interchangeably. Such nurses
are considered “part time,” and are supplemental or additional staff used to augment the regular
nursing staff. The record reflects that while such nurses do not receive employment “benefits,”
instead they receive a salary differential.
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Lutheran is a full service, acute care hospital with a four-hundred plus bed capacity. It
serves more than 250,000 patients a year, including 70,000-80,000 emergency department
patients, 17,000 surgeries, and the delivery of more than 2,000 babies. The hospital employs
over 2,500 employees, including 800 physicians.
It is undisputed that during July of 2000, the Union was engaged in an organizing effort
among certain of the Respondent’s employees. It is also undisputed that the Respondent was
aware of that effort, and was aware that Maddock was actively involved with the Union as a
member of its “organizing committee.” (G.C. Ex. 8.) Subsequently, unfair labor practice
charges were filed by the Union against the Respondent. Those charges were ultimately settled
by means of an informal Board Settlement Agreement approved by the Regional Director on
May 3, 2001, which contained a non-admissions clause. (G.C. Ex. 3.) The Notice to
Employees posted by the Respondent pursuant to that settlement contained a paragraph in
which the Respondent agreed to “rescind and expunge from [its] records any reference to the
disciplinary warning[ ] issued to Kimberly Maddock…and to notify [her] in writing that this has
been done and that this discipline will not be used as a basis for future personnel actions
against [her].” (G. C. Ex. 3.)
As noted earlier, Maddock voluntarily resigned her position of employment as a RN with
the Respondent in October of 2001. She was, thereafter, employed full time by Westside as a
NP. Maddock was frequently present at Lutheran in order to care for Westside’s patients who
were receiving OB-GYN treatment at the hospital. As a “credentialed” NP, she had all of the
“privileges” Lutheran awarded such professionals. During July of 2006, Maddock was working
for Westside approximately 30 hours per week, primarily Monday through Wednesdays. She
heard from certain employees of Lutheran that the Respondent’s emergency facilities were
short staffed on RNs, especially on night and weekend shifts. According to Maddock, she
began to consider applying for such part time work at Lutheran in order to supplement her
income, as her daughter would be starting college in the fall and the extra money would help
pay college bills. She thought that such part time RN employment at Lutheran would fit
perfectly into her schedule, as she could continue to work full time at Westside, Monday through
Wednesday, and work at Lutheran as needed, Thursday through Sunday.
Maddock testified that about July 13, 2006,5 she applied for a per diem RN position
through the Respondent’s online website application process. Shortly after submitting her
application, Maddock was at Lutheran and had occasion to speak with Shelly Leavy, the interim
manager for labor and delivery, and Marcia Teague, the interim director of postpartum.
Maddock mentioned to them that she was interested in returning to Lutheran as a per diem RN
and had submitted an application online. Leavy indicated that she would look into the matter,
and get the process moving. It was during this conversation that Robin Schroeder, the
Respondent’s director of women and family services, was introduced to Maddock. Leavy
informed Schroeder that Maddock was interested in returning to work at Lutheran as a per diem
RN. According to Maddock, Schroeder said that was “great,” and she should work it out with
Leavy.6
It is important to note that on her application, Maddock indicated that she was currently
working at Westside as a NP. She also listed her prior work experience at Lutheran as a “staff
nurse/charge nurse” from January 1987 to October 2001. Further, the application form stated

5 All dates are in 2006 unless otherwise indicated.
6 While there are small disparities in the parties’ respective versions of these conversations,
they are insignificant and not material to the resolution of the issues before me.
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that the Employer would conduct drug testing and background checks on the applicant.
Maddock’s application shows her acceptance of theses conditions, and her testimony
established her understanding that drug testing and background checks would be conducted.
(G.C. Ex. 2.)
In early August, Maddock called Leavy and told her that she was definitely interested in
the per diem RN position. Leavy indicated that someone from human resources would be
contacting her. Several days later, Maddock received a call from someone in human resources
who indicated that the Respondent was extending an offer of employment to Maddock as a per
diem RN in labor and delivery. The caller indicated that Maddock would be scheduled for a
physical and orientation session. According to the Respondent, this offer of employment was
“conditional,” pending a reference check and physical exam. However, no witness ever testified
that the word “conditional” was used at the time the offer of employment was extended to
Maddock. Maddock testified that she understood the Respondent could conduct a background
check and drug test on her. Still, she apparently considered that the job offer was final. Leavy,
on the other hand, takes the position that the “conditional” offer meant only that Maddock was
qualified for the position, but would need to pass the drug test and background review before
the offer was final.7
On about August 17, Maddock received a call from someone at Lutheran, presumably in
human resources, informing her that the offer of employment was being “rescinded.” Maddock
asked why, and was told that the offer had been made contingent on a “background check and
references.” Maddock asked the caller who she could speak with regarding the rescission and
was told that the caller would get back to her with that information. When Maddock heard
nothing, she decided to call Scott Day, the vice president of human resources.
According to Maddock, she introduced herself to Day and asked him why her offer of
employment had been rescinded. She testified that he told her every employment offer is
contingent on background checks and reference checks. She questioned the use of references,
stating that she had not been asked to provide any and had not done so. Day mentioned that
as Maddock was a former employee, the Employer could talk to past managers and former
coworkers to get references. According to Day, he told Maddock that the decision to rescind
her “conditional” job offer had been made only after a background check and file review were
conducted. Further, he told her that the final decision had been made by Robin Schroeder.
Maddock brought up the subject of the Union, informing Day that she thought that her
offer of employment had been rescinded because of her previous union activity. She told him
that she was sure that he remembered her, as he was employed at Lutheran during the period
of the union organizational campaign. Maddock reminded Day that as part of the settlement
agreement that resolved the unfair labor practice charges, the disciplinary warning issued to her
had been rescinded. 8 Day assured Maddock that her prior union activity had nothing to do with
the decision to rescind the offer of employment. She in turn assured Day that she did not want

7 The parties spent a considerable amount of time at the hearing arguing over whether the
job offer was “conditional” or not. However, I believe that it is unnecessary to resolve this
dispute, as subsequent events establish that whether conditional or not, the job offer was
rescinded.
8 Day testified that he recalled Maddock’s name when it first came up. He had been the
director of human resources at the time the earlier unfair labor practice charges were settled,
and had been involved with ensuring compliance with that settlement agreement, including
expunging the disciplinary warning from Maddock’s personnel file.
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to come back to work at Lutheran in order to organize any employees, but merely because she
wanted to earn some extra money. The telephone conversation concluded with Day suggesting
that Maddock contact Schroeder in order to find out the specific reasons why the job offer had
been rescinded.
That same day, Maddock contacted Schroeder by telephone and asked her why the job
offer had been rescinded. She expressed her concern as to how the rescission would look to
others. According to Maddock, Schroeder apologized for the situation getting to this point, but
mentioned that all offers of employment are made contingent on background checks and
references. Maddock reminded Schroeder that she had not provided any references, but would
be happy to do so, mentioning a number of doctors who could be contacted.
According to Schroeder, she explained to Maddock that the decision to rescind that been
based on her review of Maddock’s previous personnel file, the internal references she had
contacted, scope of practice issues, and her concerns that Maddock would not be a good
member of the team. Maddock then brought up the subject of her previous union activity,
suggesting that it was for that reason she was not being hired. Schroeder denied any
knowledge of the prior union organizing campaign or Maddock’s involvement with the Union. 9
At about this point in the conversation, Maddock asked Schroeder if she would change
her mind. When she was told no, Maddock responded by telling Schroeder, “I don’t want you to
perceive this as a threat,” but that as she had already told the doctors at Westside with whom
she worked that she would be returning to Lutheran as a per diem RN, “it [would] not look very
good for [Lutheran],” if she failed to return. According to Schroeder, she told Maddock that she
did perceive Maddock’s statement as a threat to damage the relationship between Westside
and Lutheran in order to get Schroeder to change her mind and hire Maddock. Schroeder
informed Maddock that she considered the relationship with Westside to be very important to
Lutheran and she wanted to be sure that no harm or threat came to that relationship. Schroeder
asked Maddock what Maddock would do to make sure that did not happen. Schroeder testified
that Maddock responded that she “couldn’t guarantee anything,” and that she was “going to let
the physicians know” what had happened.
During her testimony, Maddock, for the most part, agreed with Schroeder’s version of
the conversation regarding the “threat” to inform the doctors at Westside about Lutheran’s
decision not to hire her. However, Maddock’s version is not quite as overt, direct, and bold as is
that told by Schroeder. To the extent that the witnesses’ versions of the conversation vary, I
credit the testimony of Schroeder. As to the substance of this conversation, the story told by
Schroeder seems more genuine, realistic, in keeping with the context of the situation, and,
frankly, sounds more in line with the type of direct, forceful statements typically attributed to
Maddock. My observation of Maddock’s testimony and her assertive manner leads me to
conclude that the statements attributed to her by Schroeder were in fact made. Further, I
believe that it would have been reasonable for Schroeder to have considered the statements
made by Maddock to constitute a “threat” to harm the relationship between Westside and
Lutheran because of Schroeder’s decision not to hire Maddock. In any event, the conversation
ended with Maddock asking Schroeder to further consider the decision not to hire her, and
Schroeder agreeing to do so.

9 Schroeder was not employed by the Respondent at the time of the union organizational
campaign, the unfair labor practice charges, or the implementation of the settlement agreement.
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The following week, not having heard from Schroeder, Maddock placed a call to her.
According to Schroeder, she told Maddock that she had not changed her opinion about not
hiring Maddock. Schroeder repeated her reasons as being concerns about scope of practice
issues, reports from the internal references, a review of Maddock’s file, and added the concern
that Maddock had threatened Schroeder with harming the relationship between Lutheran and
Westside. According to Schroeder, Maddock threatened her yet again, saying that, “Once the
physicians find out about this, you’re going to be very sorry. This is not going to look good for
you.” In her testimony, Maddock mentions this telephone conversation with Schroeder, but
does not specifically indicate whether there was another reference to the Westside doctors
being unhappy about Lutheran’s failure to hire her. In any event, I again credit Schroeder’s
version of the conversation for the reasons expressed above, and conclude that Maddock did
again threaten Schroeder with harming Lutheran’s relationship with Westside.
Maddock decided that she wanted to review her personnel file, and she contacted Day
on August 28 with that intention. Day told her that it was not his normal practice to allow
previous employees to review their personnel files, but that because she was privileged and
credentialed as a NP at Lutheran, he would provide her with a courtesy review of her file.
Accordingly, a meeting was scheduled for August 31 for Maddock to review her file. Present for
the meeting were Maddock, Day, and Schroeder.
Apparently, the meeting started off in a friendly fashion. Day began the meeting by
telling Maddock that he had fully reviewed her file and that she had been a great nurse and
patient advocate during the 15 years that she had been at Lutheran.10 However, he proceeded
to say that he had certain concerns with some of the comments found in her file. Specifically,
he indicated to Maddock that he had concerns with references in her yearly appraisals for 1995-
1996, 1997-1998, and 1998-1999. For the 95-96 period, Day commented on a “self appraisal”
where Maddock herself wrote, “I will continue to work on communication skills and maybe
discussing plans of care in a less threatening manner when dealing with ‘odd’ situations.” (G.C.
Ex. 6.) Day referenced a comment in the 97-98 appraisal, as follows: “Continue to work on
communication skills-Look at the times crosses fine line between assertive vs. aggressive
communication.” (G.C. Ex. 4.) For the 98-99 appraisal year, Day was concerned with the
reference that, “At times Kim’s assertiveness is taken as abrasive.” (G.C. Ex. 5.) Day indicated
to Maddock that these comments in her three yearly appraisals showed serious, recurring
problems when communicating with other employees. He characterized her attitude as abusive,
aggressive, and threatening.
Another issue from Maddock’s personnel file that Day pointed out to her was a letter that
she had written on May 3, 1999, to Donna Diaz, a human resources representative. Apparently,
the Respondent had reduced the salaries of certain employees, including Maddock, but having
failed to initiate the pay cut, expected Maddock to repay the overpayment. According to Day,
Diaz took offense to the tone of the letter from Maddock that suggested that Maddock was being
“punished for [Diaz’] mistake”, which letter allegedly reduced Diaz to tears. He characterized
Maddock’s tone as aggressive and disrespectful. (G.C. Ex. 7.)
Further, Day raised the issue of negative comments in several “peer evaluations.” In an
evaluation dated January 27, 1997, a fellow employee commented that Maddock needed “to be
somewhat more patient/tolerant with others who are not quite so perfect…and quit being so

10 The Respondent acknowledges that Maddock was a highly proficient nurse with excellent
technical abilities.
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insolent [with] those M.D.s.”11 (G.C. Ex. 9.) Day also pointed out to Maddock that in a peer
evaluation dated February 13, 1998, someone had written, “fine line between
assertive/aggressive communication, sometimes she crosses it.” (G.C. Ex. 10.)
Day testified that he showed Maddock these various documents from her personnel file
in order to demonstrate to her that she had exercised poor communication skills, including
abusive, aggressive, and threatening language directed towards fellow workers over a
significant period of time when previously employed at Lutheran. Maddock’s response was to
ask Day whether he really thought that a few comments over almost 15 years of work were
sufficient reason not to hire her. She asked the two managers to reconsider their decision and
to hire her.
According to Schroeder, she repeated the reasons for rejecting Maddock’s application,
which included a review of Maddock’s file, contact with internal references, and the threats
Maddock had made to Schroeder about harming the relationship between Lutheran and
Westside. Schroeder testified that after listing those reasons, she told Maddock, “I don’t think
you’re a good fit, and we’re looking for very specific people to bring onto the team, people who
meet our service behaviors, and none of those examples met our service behaviors.” Maddock
testified that after Schroeder mentioned “references,” there was some comment that the two
persons whom Schroeder had contacted were Irene Lindgren and Stephanie Roderick.12
Both Schroeder and Day testified that Maddock again threatened to harm the
relationship between Westside and Lutheran. According to Day, “Kim indicated that the
physicians were going to be very unhappy about [Lutheran’s refusal to hire her], and that Robin
could expect to receive phone calls.” Maddock’s testimony is somewhat different. She
indicated that Schroeder had mentioned not appreciating being threatened, to which Maddock
replied that she did not know what Schroeder was referring to. Once again, I credit Schroeder
and Day over Maddock regarding the statements about the doctors being unhappy. As I stated
earlier in detail, these statements sound convincingly like something Maddock would have said.
Maddock was clearly very upset at this point in the meeting. She does recall Schroeder
saying that as two weeks had passed and no complaints had been received from Westside, that
perhaps Maddock was not as important as she thought she was. This statement certainly fits
into the general context of the conversation, and as the two managers never denied that it was
said, I will conclude that Maddock has accurately reported it.
In any event, both Day and Schroeder testified that the meeting ended with Maddock
getting up, throwing her chair back, grabbing her papers off the desk, and slamming the door on
her way out of the room. According to Day, he then turned to Schroeder and commented, “Well,
I guess that didn’t go very well.”

11 As this comment is accompanied by a “happy face” and several “ha! ha!”s, it is difficult to
know whether it was intended to be serious or not.
12 Stephanie Roderick was at the time of the hearing the director of women’s and children’s
services at Exempla Good Samaritan, a “sister” hospital connected with Lutheran. During at
least some of the time that Maddock was employed by Lutheran, Roderick was also employed
there as a RN and charge nurse. Renie Lindgren was at the time of the hearing a RN case
manager at Lutheran. She had been employed by Lutheran as a RN and later as the RN case
manager during at least some of the time Maddock was also employed there.
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C. The Respondent’s Position
Counsel for the Respondent spent a considerable amount of time at the hearing,
principally through the testimony of Day, describing a program instituted by the Respondent
beginning in 2003 know as the “Best in the Nation” program. This program was instituted
several years after Maddock voluntarily resigned from Lutheran. According to Day, Lutheran
had significant problems with patient, employee, and medical community relations prior to 2003.
In a series of studies contracted for by the Respondent, Lutheran rated poorly in the areas of
patient satisfaction, physician belief that the administration was interested in their concerns, and
among Lutheran employees who felt that teamwork and cooperation were lacking. As a result
of these studies, Exempla Healthcare, Lutheran’s parent company, determined that such low
ratings were unacceptable, and developed the goal of becoming the best and safest hospital in
the nation, with the highest levels of patient, employee, and physician satisfaction. This was the
geneses for the Best in the Nation program.
Over a period of time, there followed a series of numerous meetings and sessions with
employees, physicians, and managers during which feedback was received on ways to
implement the Best in the Nation program. Ultimately, the Respondent developed a regimen of
“service behaviors” that all employees were expected to adhere to, and against which their
performances would be evaluated. These service behaviors were as follows: (1) to act safely,
(2) to communicate effectively, (3) to act respectfully, (4) to project a professional image, and (5)
to promote teamwork. According to Day, the result was nothing less than a “cultural change,” a
new work “way of life,” which positively impacted all areas of the hospital’s operation. Not only
were existing employees expected to work in accordance with the service behaviors, but hiring
decisions would also be made with the object of ensuring that new employees must meet the
service behaviors as well.
In an effort to fully implement the service behaviors, Lutheran invested significant
amounts of money and time in educating its work force and physicians regarding each of the
five enumerated behaviors. Numerous programs were established to explain the service
behaviors to employees, laminated copies of the behaviors were distributed, the service
behaviors were posted throughout the hospital, training was provided in how to implement the
behaviors, and each employee was expected to sign a letter of commitment to patients and
fellow workers to uphold the service behaviors. (R. Ex. 2-11.)
It is the Respondent’s contention that the service behaviors and the Best in the Nation
Program have been an unqualified success. Allegedly, Lutheran’s overall patient satisfaction
has dramatically improved, and the hospital has been nationally recognized for the largest
improvement of any hospital in its category for patient care. This has been reflected in patient
satisfaction surveys. (R. Ex. 12.) Day testified that the Best in the Nation Program and its
service behaviors continue to the present time to be an integral part of the hospital’s operation.
According to Day, the implementation of the service behaviors has significantly changed
the Respondent’s hiring practices. The service behaviors are used as a basis for the qualities
that the Respondent looks for in an applicant for employment. The behaviors are used in all
aspects of the hiring process, including evaluating the application, reference checks, when
interviewing the applicant, and in weighing candidates against each other. He testified that
applicants are rejected “all the time” because they do not meet the service behaviors.
According to Day, it is not enough for an applicant, such as a RN, to be technically proficient.
Unless that applicant also meets the service behaviors, he/she will not be hired.
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In an effort to demonstrate the Respondent’s reliance on the service behaviors in the
hiring process, counsel offered a written summary of the application process for RNs for the
calendar year 2006, during which Maddock applied for work. The summary reveals that in that
calendar year, 117 RNs were hired by Lutheran and 65 applicants were not hired. Of those
applicants not hired, 35 (more than half) were rejected for reasons relating to the service
behaviors. Interestingly, 12 of those RNs rejected were formerly employed by Lutheran, of
which 8 were specifically rejected because they did not meet the service behaviors. This
summary was admitted into evidence without objection from counsel for the General Counsel.
(R. Ex. 14.)
Of course, it is the Respondent’s position that Maddock was not hired, in part, because
she did not meet the service behaviors. As mentioned earlier, after receiving and reviewing
Maddock’s application, Schroeder contacted Renie Lindgren and Stephanie Roderick, both of
whom had previously worked with Maddock. Schroeder testified that her review of Maddock’s
file had raised a number of “red flags” in connection with Maddock’s “communication style, her
aggressiveness, [and] her abrasiveness,” as reflected in Maddock’s yearly evaluations. So,
Schroeder decided to do some “internal reference checks.”
Renie Lindgren testified that she had been employed with Maddock, both as a peer and
for a time as Maddock’s supervisor. She acknowledged that Schroeder had contacted her in
early August of 2006 about Maddock’s desire to return to Lutheran as a per diem RN.
According to Lindgren, she told Schroeder that Maddock would no longer be a “good fit” at
Lutheran, because of the service behaviors that had been instituted. Lindgren felt that Maddock
did not like change and would challenge new ideas and procedures. According to Lindgren,
Maddock was not a team player. She testified that she gave Schroeder examples of Maddock’s
lack of cooperation with management and aggressiveness, specifically Maddock’s displeasure
in cooperating with the Joint Commission for Accreditation of Hospitals (JCAHO), and an
incident where Maddock had been issued a disciplinary letter, after which she “wadded the
paper up, and tossed it….” Further, Lindgren testified that she expressed her concerns to
Schroeder that Maddock would have difficulty switching roles between her duties as a NP with
Westside and those of a RN with Lutheran. During cross-examination by counsel for the
General Counsel, Lindgren acknowledged that Maddock was involved in the union organizing
drive in 2000, but denied that the matter was discussed in her conversation with Schroeder.
Schroeder’s version of her conversation with Lindgren was similar, but not identical.
According to Schroeder, Lindgren told her that Maddock was “very abrasive and intimidating to
her peers” and “crossed the line in communication often with physicians.” Lindgren mentioned
that Maddock spoke of the JCAHO process as being “stupid,” and she felt that Maddock would
not fit the service behaviors that Lutheran was trying to promote. Lindgren also mentioned her
concerns with scope of practice issues with Maddock having to reverse roles between working
as a NP and as a RN. According to Schroeder, Lindgren described Maddock as being “mean
as a snake,” and not someone she would recommend bringing back to Lutheran. Interestingly,
Schroeder did testify that during the conversation Lindgren had raised the subject of union
activity in 2000, but allegedly Lindgren was vague and uncertain as to whether Maddock was
involved and the reference went no further. While there are some differences in their testimony,
for the most part Lindgren and Schroeder corroborated each other. While Schroeder’s version
of the conversation was somewhat more detailed and pointed than Lindgen’s, I believe that was
likely the result of Lindgren’s desire to soften her testimony in the presence of Maddock.
Next, Schroeder contacted Stephanie Roderick, who was at the time the director of
women’s and children’s services at the Respondent’s sister hospital, Exempla Good Samaritan.
Roderick had previously worked with Maddock as a peer. According to Roderick, she was
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surprised to hear that Maddock had applied to return to Lutheran, and she expressed concern
about potential “scope of practice” issues between Maddock’s RN and NP positions. Roderick
informed Schroeder that if Maddock were applying to work for her at Exempla Good Samaritan,
she would not hire Maddock. Roderick testified that she told Schroeder that Maddock was
“aggressive, intimidating, controlling, and it affects teamwork, and it’s not in line with the service
behaviors.” Further, she told Schroeder that Maddock gave favorable treatment to her friends,
was negative about management, and intimidated people. Roderick admits that she mentioned
to Schroeder that Maddock had been involved in the union organizing campaign in 2000, but
she contends that Schroeder asked her no follow up questions.
Schroeder’s testimony about their conversation was very similar to that of Roderick.
According to Schroeder, Roderick said she would not consider Maddock for rehire at Lutheran
nor for hire at Good Samaritan because Maddock was “abrasive… caustic…not a team player,”
and wrote schedules to favor her friends. Roderick also expressed her concerns about scope of
practice issues. The only item Schroeder adds is the contention that Roderick mentioned
Maddock engaging in inappropriate behavior at the nurses’ station, specifically telling jokes and
sitting on physicians’ laps.
According to Schroeder, in addition to her concerns about Maddock not meeting the
Respondent’s service behaviors, she had concerns regarding “scope of practice issues” and
“conflicts of interest.” If hired by Lutheran, Maddock intended to work as a per diem RN tending
to Lutheran’s patients on certain days of the week, while on other days of the week she would
be employed by Westside as a NP performing duties at Westside and also tending to
Westside’s patients who were at Lutheran as either over night patients or day patients.
Schroeder was concerned that this dual status for Maddock might be confusing for the medical
staff at Lutheran and for patients at the hospital who might see Maddock in her role as a NP one
day and the next day in her role as a RN. She was also concerned that Maddock might treat
Westside’s doctors, patients, and nursing personnel more favorably than Lutheran’s employees
and patients, and that Westside’s doctors might become involved in Lutheran’s human
resources practices.
Schroeder stressed that a staff RN’s scope of practice is much more limited than that of
an independent NP. She contends that if Maddock were hired by Lutheran, there was a risk
that Maddock might assume the role of an independent NP, even while serving as a RN for
Lutheran. Such a role reversal allegedly might lead to potential conflicts of interest and even
potential legal–medical liability issues.
It was with these concerns in mind that Schroeder decided not to hire Maddock as a per
diem RN. However, because Maddock was a former employee of the hospital and was a
current employee of Westside, an OB-GYN practice with which Lutheran had a close
relationship, Schroeder discussed the matter with Gillian Sloan, the recruiting manager at
Lutheran. Together, they decided that they needed to further discuss Maddock’s application
with Day, Lutheran’s vice president of human resources.
According to Day, after meeting with Schroeder and hearing of her concerns with hiring
Maddock, he agreed that the issues she raised were valid. However, before a final decision
was conveyed to Maddock, Day wanted to personally review Maddock’s file. He testified that a
number of years earlier, as part of the settlement agreement with the Board, he had personally
removed the disciplinary warning from Maddock’s personnel file. Day testified that despite
having removed the warning himself, he needed to ensure that with the passage of time and
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employees that another copy of the warning had not somehow inadvertently made its way back
into the file. He wanted to make sure that neither the deleted warning nor any of Maddock’s
prior union activity had in any way affected Schroeder’s decision not to rehire Maddock.
In her post-hearing brief, counsel for the General Counsel emphasized that Day
admitted that he was “concerned” with Maddock’s union activity. However, as Day pointed out
in his testimony, this “concern” was related to ensuring that the disciplinary warning had not
somehow made its way back into Maddock’s personnel file, and that her union activity had not
influenced Schroeder’s decision making process. Further, as Maddock was previously involved
in an unfair labor practice case before the Board, Day was “concerned” enough to obtain legal
advice prior to having the final decision conveyed to Maddock.
After reviewing Maddock’s personnel file, Day was satisfied that the disciplinary notice
had not reappeared in her file, and also that Schroeder’s concerns about Maddock were well
founded. He testified that while he agreed with Schroeder’s decision to rescind the offer of
employment made to Maddock, the ultimate personnel decision was made by Schroeder.
D. The General Counsel’s Position
As counsel for General Counsel points out, no one disputes Maddock’s excellent
technical expertise as a RN. This serves as the General Counsel’s foundation for her position
that, therefore, the reasons put forward by the Respondent in order to justify the decision not to
hire Maddock are pretextual. Looking first at the “role confusion” argument, counsel notes that
the Respondent has no rule or policy prohibiting a NP from being employed as a staff RN. A
number of witnesses, including Maddock and Linda Heller, Westside’s practice manager,
testified that role confusion would be unlikely as the two jobs were so very different. Still, the
evidence is clear that Lutheran has never employed a RN who at the same time was a
practicing NP.13 Since none of the Respondent’s managers were able to document an
instance where Maddock specifically, or any RN, had gone outside the “scope of practice,”
counsel for the General Counsel argues that the alleged concern that Maddock might slip into
such a role reversal as would confuse patients and medical personnel is nothing more than
“rank speculation.”14
Regarding the negative comments in Maddock’s personnel file, principally related to
communication issues, counsel for the General Counsel argues in her post-hearing brief that
these relatively few negative comments were usually qualified and “paled in comparison to the
glowing comments made in the same evaluations.” Such an analysis leads counsel to conclude
that this justification by the Respondent is a pretext. Specifically, counsel points to positive
comments in the very same evaluations that the Respondent uses to demonstrate Maddock’s
allegedly poor communication skills.
In Maddock’s evaluation for the 1997-1998 year, the evaluator writes under Summary
Comments, “Kim is seen as an extremely strong patient and staff advocate.…She is incredibly
flexible and a team player. She is a strong communicator with staff and MD’s though some

13 The closest that Lutheran has come to such a situation involves Jayne Meades, a
Lutheran staff RN, who immediately prior to being hired was a practicing NP. However, Meades
testified that she did not actively practice as a NP once she was employed by Lutheran as a RN.
14 It was not unusual for RNs employed at Lutheran to simultaneously hold other jobs, such
as a child birth educator at Westside. However, there was no history of a RN at Lutheran
simultaneously holding a position as a NP.
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think she could tone it down a bit.... Kim is definitely an asset to our unit and contributes an
incredible amount.” (G.C. Ex. 4.) Another evaluation used by the Respondent to demonstrate
Maddock’s allegedly poor communication skills was for the 1998-1999 year, where the evaluator
notes that, “At times Kim’s assertiveness is taken as abrasive.” Yet, as pointed out by counsel
for the General Counsel, in the very next sentence the evaluator writes, “However, when she
realizes it she immediately corrects the situation.” Counsel argues that this demonstrates
Maddock’s ability to correct any harshness in her communication style as soon as she
recognizes it. Further, the evaluator praises Maddock, saying, “[S]he is very committed to the
unit and does go above and beyond. If I could compensate her, I would for exceeding the
expectations of the unit.” (G.C. Ex. 5.)
A third evaluation used by the Respondent to demonstrate Maddock’s allegedly poor
communication skills was the self evaluation for the 1995-1996 year in which Maddock wrote
that she would try and communicate “in a less threatening manner when dealing with ‘odd’
situations.” However, as counsel for the General Counsel points out, Maddock also wrote, “I’m
a good team player, have good communication skills with both fellow staff and physicians….I
have done better with communicating with physicians when upset and held my tongue
(mostly!).” (G.C. Ex. 6.)
Also relied on by the Respondent to support its position that Maddock was a poor
communicator was the letter she wrote to Donna Diaz on May 3, 1999. (G.C. Ex. 7.) Counsel
for the General Counsel argues that while the letter, asking that the hospital take the loss for its
financial mistakes, is “direct,” the letter is not insulting or threatening to Ms Diaz. Counsel
contends that it is “a stretch” for the Respondent to say the letter was aggressive or abusive.
This she argues demonstrates the Respondent’s reliance on minutiae, while ignoring the
overwhelmingly positive evidence in Maddock’s personnel file. Again, counsel contends this
indicates the Respondent’s desire to simply find a pretexual reason to support its allegedly
unlawful conduct.
Arguing in a similar vein, counsel for the General Counsel is dismissive of the
Respondent’s service behaviors defense. While Day testified at length that the service
behaviors were implemented by Lutheran after Maddock voluntarily left the hospital’s employ,
he admitted on cross-examination that the underlying characteristics of the service behaviors
have always been traits expected of employees by all hospital administrators when operating a
hospital. As an example, Day acknowledged that safety is always emphasized by hospital
administrators.
Counsel for the General Counsel further contends that Schroeder did not even attempt
to review Maddock’s application in a neutral manner. Maddock had orally mentioned to
Schroeder that her references were the Westside doctors, whom Maddock suggested should be
contacted. However, the only individuals contacted by Schroeder as “references” were the
Respondent’s two supervisors, Roderick and Lindgren, who had not worked with Maddock in
over five years, and whose names had not been offered by Maddock.
The fact that both Roderick and Lindgren mentioned Maddock’s previous union activity
when being questioned by Schroeder is emphasized by counsel. While not entirely clear to the
undersigned, I assume that counsel for the General Counsel would argue that the references to
Maddock’s union activity by Roderick and Lindgren demonstrate the reason for their bias
against her. However, counsel does not contend that either supervisor was involved in the
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hiring decision making process involving Maddock. Further, no evidence was offered that
Schroeder, who clearly was involved in that process, initiated the subject of Maddock’s prior
union activity, nor asked any follow up questions when the subject was raised by Roderick and
Lindgren.
The General Counsel attempts to support her theory of the case by arguing that a
second former employee, Heather Kempsell, was denied reemployment with the Respondent
because of her prior union activity. Kempsell was a former per diem RN who had been active
in the prior union organizing campaign. She had voluntarily resigned her position at Lutheran,
and subsequently had indicated an interest in returning to the Employer in a supervisory
capacity. In about July of 2006, the Respondent’s human resources department called
Kempsell to determine if she would be interested in a position as a clinical manager in labor and
delivery. She indicated her interest and, thereafter, went through a series of interviews lasting
two days. At the end of her second day of interviews, Kempsell met with Schroeder.
On direct examination by counsel for the General Counsel, Kempsell testified that
Schroeder asked her whether she was familiar with the prior union organizing campaign,
whether she knew that there were new efforts at organizing occurring, and whether if selected
as a supervisor she would be able to terminate a friend if the need arose. However, when
pressed, Kempsell became much less certain. In response to questions from the undersigned,
she indicated Schroeder never specified what type of organizing she was referring to. Also,
when cross examined by Counsel for the Respondent, Kempsell acknowledged that in her
affidavit given during the investigation of the unfair labor practice charge she indicated that she
was not sure that Schroeder had said “organize,” but rather had perhaps said that “people had
tied to get together.” Schroeder denied ever asking Kempsell about organizing. Rather,
according to Schroeder, the discussion simply arose around her question to Kempsell of
whether it would be difficult for Kempsell to discipline subordinates, specifically nurses that she
had previously worked with as peers. Ultimately, Kempsell was not offered the position.15
I found Kempsell’s testimony to be rather nebulous regarding any statements made to
her about “organizing.” Her initial certainty seemed to dissipate in the face of cross-
examination, and her earlier affidavit did not support her testimony. It appeared to me that she
was exaggerating and embellishing the conversation with Schroeder in order to prove her point.
In this regard, I found Schroeder’s testimony much more certain. Schroeder’s version better fits
the context of the conversation. I find Kempsell’s allegations to be inherently implausible.
Accordingly, I conclude that Kempsell is mistaken, and that Schroeder did not mention
“organizing” during her conversation with Kempsell. It is very unlikely that “organizing” was a
concern of Schroeder’s in connection with Kempsell, since it was the Respondent that had
contacted Kempsell and encouraged her to apply for the supervisory position. Correspondingly,
it would not be totally surprising for Kempsell, disappointed at not being hired, to have imagined
a connection with her prior union activity.
Counsel for the General Counsel offers an alternate theory in addition to her primary
theory of discrimination based on union activity. The alternate theory is that the Respondent
refused to hire Maddock because of concerns that she would engage in protected concerted

15 There is no indication from the record that any unfair labor practice charge was filed over
the Respondent’s failure to hire Kempsell or about the statements that she alleges were made
to her by Schroeder.
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activity with the employees of Westside, specifically physicians.16 Westside employs three
physicians who do not posses an ownership interest in the OB-GYN practice. The parties
disagree as to whether these doctors are supervisors as defined in Section 2(11) of the Act, with
the General Counsel taking the position that they are not supervisors. It is the General
Counsel’s contention that Schroeder and Day declined to hire Maddock as a per diem RN
because they were concerned she would potentially involve the non-owner doctors from
Westside in any employment problems that she might have at Lutheran. In her post-hearing
brief, counsel for the General Counsel points out that Section 2(3) of the Act defines “employee”
“as any employee,” not limited to the employees of a particular employer. So, counsel argues
that it would constitute a violation of the Act for Lutheran to discriminate against Maddock to
prevent her, a prospective employee of Lutheran, from engaging in protected concerted activity
with the doctors/employees of Westside.
E. Analysis and Conclusions
Counsel for the General Counsel has alleged in her post-hearing brief that the proper
legal standard under which to analyze this case is FES (A Division of Thermo Power), 331
NLRB 9 (2000). I agree. This is a classic refusal-to-hire case under Section 8(a)(3) of the Act.
I do not believe that the framework for analysis of this case is altered because an offer of
employment was initially tendered to Maddock. Regardless of whether that offer of employment
was conditional and subsequently withdrawn, as alleged by the Respondent, or whether it was a
firm offer subsequently retracted, as alleged by the General Counsel, the ultimate result was the
same, that being a refusal to hire Maddock. In FES the Board cited Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982) for the proper
allocation of burdens, the initial burden resting with the General Counsel to make a prima facie
showing that protected conduct was a “motivating factor” in the decision not to hire. Under this
standard, the General Counsel must show that a motivating factor in Lutheran’s refusal to rehire
Maddock was the result of her union or protected concerted activity. Dole Fresh Vegetables,
Inc., 339 NLRB 785, 795 (2003) (applying Wright Line standard to claim for failure to rehire).
Only if the General Counsel makes a prima facie showing does the burden of proof then shift to
Lutheran to show that it would have taken the same action in regard to Maddock’s application
for employment even in the absence of protected activity. Wright Line, supra.
Under FES, the General Counsel must prove the following elements in a refusal to hire
case: (1) that the employer was hiring, or had concrete plans to hire, at the time of the alleged
unlawful conduct; (2) that the applicant had experience or training relevant to the announced or
generally known requirements of the position for hire, or in the alternative, that the employer has
not adhered uniformly to such requirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimination; and (3) that animus contributed to the
decision not to hire the applicant. In his post-hearing brief, counsel for the Respondent
acknowledges that Lutheran was hiring RNs at the time Maddock submitted her applicant, and
also that Maddock had the experience and training relevant to the RN position. Thus, the
Respondent does not dispute the first two elements in the FES framework. However, counsel
strongly denies that the General Counsel has established element 3, that antiunion animus
contributed in any way to the decision not to hire Maddock.

16 At the hearing, over the objections of counsel for the Respondent, I permitted the General
Counsel to amend the complaint to allege this alternate theory. (G.C. Ex. 18, paragraph 5(e) of
the amended complaint.)
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There is no question that Maddock had engaged in previous union activity at Lutheran
and that the Respondent was aware of that activity. Day was employed at Lutheran as the
director of human resources at the time of the union organizing campaign in July of 2000. In his
position, he was aware that Maddock was a member of the Union’s organizing committee.
(G.C. Ex. 8.) Further, Day was involved with the subsequent settlement of the Union’s unfair
labor practice charges, part of which involved the removal of a disciplinary warning from
Maddock’s personnel file. (G.C. Ex. 3.) Day had personally removed that warning from
Maddock’s file in an effort to comply with the settlement.
In her post-hearing brief, counsel for the General Counsel argues that Day testified that
Maddock’s prior union activity was a “consideration” in deciding to rescind the employment offer.
However, as I noted earlier, Day’s consideration about Maddock’s union activity, as expressed
by him when testifying, was merely that the disciplinary warning that he had personally removed
from her personnel file not have inadvertently been returned to the file. Day also testified that
his consideration about Maddock’s prior union activity was to ensure that the Employer’s legal
position was sound by consulting with legal counsel prior to informing Maddock that the offer of
employment had been rescinded. After a careful review of Day’s testimony, I disagree with
counsel for the General Counsel’s assessment of Day’s use of the word “consideration.” When
placed in the context of his testimony, I believe it is fairly obvious that Day’s use of the term
“consideration” was not meant to infer that he considered Maddock’s prior union activity as a
factor in deciding whether to reemploy her. Thus, his reference to “consideration” does not
establish animus.
The only other references to Maddock’s prior union activity by Lutheran’s managers, as
reflected in the record, were statements made to Schroeder by Renie Lindgren and Stephanie
Roderick. After reviewing Maddock’s personnel file, Schroeder contacted Lindgren and
Roderick, both of whom had previously worked with Maddock. In talking about Maddock, both
managers apparently mentioned Maddock’s name in connection with the union organizing
campaign. However, the record indicates that Schroeder, who had not been employed by
Lutheran at the time of the campaign, did not initiate the subject of the Union, nor did she ask
any follow up questions or pursue the matter of Maddock’s involvement once the subject was
raised. Further, there was no evidence offered that either Lindgren or Roderick had any role in
the decision making process as to whether Maddock should be hired.
The two managers who were obviously involved in deciding whether to hire Maddock
were Schroeder and Day. Both testified that Maddock’s prior union activity was unrelated to
their decision making process. The General Counsel has been unable to point to a single
credible direct example of antiunion animus.17 Instead, the General Counsel is forced to rely on
what she terms the Respondent’s “pretextual” explanation for its failure to hire Maddock.
Counsel argues that as the Respondent’s reasons were pretextual, there should be an
assumption that the Respondent’s true motive was antiunion sentiment. However, the problem
with this argument is that I do not agree that the Respondent’s reasons for not hiring Maddock
were pretextual.

17 As I noted earlier, I did not accept Heather Kempsell’s testimony that in an employment
interview with Schroeder, she was asked questions about “organizing.” Rather, I accepted
Schroeder’s testimony, as more reasonable, that the alleged reference to “organizing” was
never made.
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The Board has repeatedly held that the Act is not intended to authorize the Agency “to
question the reasonableness of any managerial decision nor to substitute its opinion for that of
an employer in the management of a company or business, whether the decision of the
employer is reasonable or unreasonable, too harsh or too lenient. The Board has no authority
to sit in judgment on managerial decisions.” Neptco, Inc., 346 NLRB No. 6, at *4 n.16 (2005)
(quoting NLRB v. Florida Steel Corp., 586 F.2d 436, 444-45 (5th Cir. 1978).
As counsel for the Respondent points out in his brief, the Board has found in numerous
cases that employers may refuse to rehire prior employees based on their earlier job
performances. See, e.g., Dole Fresh Vegetables, 339 NLRB 785, 795 (2003) (employer’s
decision not to rehire based on employee having previously quit and after a review of his file
found lawful); Rahn Sonoma Ltd, 322 NLRB 898, 907 (1997) (lawful refusal to rehire based on
employee’s unsatisfactory previous work history); New York Telephone, 300 NLRB 894, 894-95
(1990) (employee’s “undesirable attitude toward his job” when previously employed sufficient
basis on which to refuse to rehire).
The Respondent’s “Best in the Nation” program was obviously not instituted and
cultivated over a number of years with the object of keeping Maddock from being reemployed.
The creation of this program was a major change in the direction of the Employer both in terms
of time and money invested. The “service behaviors” were instituted as a means of improving
the performance of employees so as to increase patient satisfaction and employees’ moral.
According to the Respondent’s statistics, the program was highly successful.
In my opinion, there was nothing pretextual about Lutheran basing its hiring decisions in
part on those service behaviors. Unfortunately for Maddock, there were a number of criticisms
of her communication skills over extended evaluation periods as found in her personnel file. It
would not be surprising for a reviewer, such as Day or Schroeder, to conclude that Maddock
was frequently abrasive and overly aggressive. While Maddock’s file was also filled with highly
complementary and laudatory comments, the Board is not in the business of weighing the
respective positive and negative comments in personnel files. Certainly it was not unreasonable
for Schroeder and Day to conclude that Maddock’s previous work history did not meet the
Respondent’s service behaviors, specifically the requirement that employees communicate
effectively, act respectfully, and promote teamwork. I see nothing pretextual in the
Respondent’s conclusion that because Maddock did not meet its service behaviors, she should
not be rehired.
Further, I fail to see how the Respondent’s consideration of the negative
recommendations of two of its managers, Lindgren and Roderick, who had previously worked
with Maddock, can be considered pretextual. It may be that it would have more objective for
Schroeder to have also contacted some of the doctors from Westside that Maddock had orally
named as references. Still, it is not surprising that Schroeder relied on two managers, whom
she knew, to evaluate a former coworker of theirs. Again, the Board is not in the business of
deciding which individuals should be interviewed as reference contacts. Unfortunately for
Maddock, Lindgren and Roderick were fairly negative and did not recommend that she be
rehired. However, Schroeder’s reliance on their recommendations was certainly not pretextual.
The Respondent had never employed a RN, who at the same time was employed by
another employer as a NP. That was exactly what would have transpired had the Respondent
reemployed Maddock. The situation was further complicated by the fact that Maddock was
certified and credentialed to work as a NP at Lutheran. In my opinion, there certainly could be a
potential problem with Maddock working at the hospital one day as a RN employee of Lutheran,
and then the very next day working at the hospital as a NP employee of Westside. It would not
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be unreasonable for the Respondent to be concerned that Maddock might over step her
authority as a RN and take on the greater authority and independence of a NP, even on those
days when she was strictly an employee of Lutheran. Similarly, it would not be unreasonable
for the Respondent to be concerned that patients and medical personnel might be equally
confused about Maddock’s role on any given day when having seen her perform both jobs. As I
believe these concerns on the part of the Respondent to have been legitimate, I do not believe
them to be pretextual.
In an effort to establish that there was no pattern of negative action taken against
employees with former union activity, the Respondent offered into evidence a letter dated
August 4, 2000, from the Union to the Respondent listing the names of the16 employees on the
Union’s organizing committee, including Maddock. (Res. Ex. 15.) Also admitted into evidence
at the Respondent’s request was a log of those 16 employees listing their names, titles and
department where employed, date of hire and termination (if applicable), the reason for any
termination, performance rating, promotion information and pay increase granted to the
employee. (Res. Ex. 16.) Day also testified at some length about this log and the preparation
of the information contained therein. This unrebutted evidence demonstrates that only 1 of the
16 employees was involuntarily terminated,18 and 7 of the employees are still employed 7 years
after the precipitating events. Further, 4 of the employees were promoted, and all of the
employees who were evaluated over the years received ratings at one time or another as
“exceeding expectations.” Many of them received the highest rating and all received raises.
It is argued by counsel for the Respondent that the log establishes that there has been
no pattern over the years of harassment or discrimination against the known union supporters.
As the evidence supporting the log is unrebutted, I must conclude that such would appear to be
correct. The total lack of any probative, credible evidence of union animus in conjunction with
the failure by the General Counsel to establish that any of the reasons offered by the
Respondent for not hiring Maddock were pretextual, leads me to the inevitable conclusion that
the General Counsel has failed to meet her burden of proof to establish by a preponderance of
the evidence that union activity was a motivating factor in the Respondent’s conduct.
However, assuming, for the sake of argument, that the General Counsel had established
that union activity was a motivating factor in the Respondent’s decision refusing to hire
Maddock, under Wright Line, supra, a presumption is created that the Respondent’s action
violated the Act. To rebut such a presumption, the Respondent bears the burden of showing
that the same action would have taken place, even in the absence of the protected conduct.
See Mano Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996); Farmer Bros. Co., 303 NLRB 638,
649 (1991). This I believe the Respondent has done.
As I noted above, I have concluded that the reasons proffered by the Respondent for its
decision not to hire Maddock are not pretextual. The Respondent’s conclusion that Maddock’s
personnel file and the negative references from two former coworkers demonstrated an abusive
and aggressive communication style that did not comport with its service behaviors is not
pretextual. The Respondent’s conclusion that Maddock’s position as a NP with Westside could
lead to scope of practice and role confusion issues if she were to be simultaneously employed
by Lutheran as a RN is not pretextual.

18 Meg Powell was involuntarily terminated. However, she waived reinstatement through the
Board Settlement, which contained a non-admissions clause.
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The Respondent has produced unrebutted evidence to demonstrate that its decision not
to hire Maddock was not an anomaly and that she was not treated in a disparate fashion. The
Respondent’s written summary of the application process for RNs for the calendar year 2006,
during which Maddock applied for work, reveals that in that year, 117 RNs were hired by
Lutheran and 65 applicants were not hired. Of those applicants not hired, 35 (more than half)
were rejected for reasons relating to the service behaviors. Significantly, 12 of those RNs
rejected were formerly employed by Lutheran, of which 8 were specifically rejected because
they did not meet the service behaviors. (Res. Ex. 14.) Maddock was merely one of those 8.
Accordingly, I believe that the Respondent has established by a preponderance of the evidence
that it would not have hired Maddock, irrespective of her prior union activity.
In summary, I find and conclude that counsel for the General Counsel has failed to
establish a prima facie case that union activity was a “motivating factor” in the Respondent’s
decision not to hire Maddock. However, even assuming the evidence is viewed as having
established a prima facie case, that evidence still supports a finding that the Respondent would
have refused to hire Maddock, even in the absence of her union activity.
I will now address the General Counsel’s alternate theory, added as an amendment to
the complaint at the hearing, that Maddock was not hired because the Respondent feared that
she would engage in protected concerted activities with certain of the employees employed by
Westside, specifically the doctors. (G.C. Ex. 18.) Counsel for the General Counsel’s post-
hearing brief clearly sets forth this alternate theory of the case. While counsel does not use the
term “alternate theory” to designate this argument, it is so far removed from the General
Counsel’s primary theory, discrimination based on union activity among Lutheran’s employees,
that I believe “alternate theory” best describes it.
As was noted above, Westside Women’s Care (Westside) is a private OB-GYN medical
practice, consisting of nine physicians, six of whom own the practice, as well as midwives, NPs,
(including Maddock) ultra sound technicians, schedulers, and billing clerks. It is important to
understand the close business relationship between Lutheran and Westside. The Westside
doctors perform approximately 95% of their deliveries at Lutheran, as well as performing
gynecological surgeries there. Westside is responsible for approximately 70% of Lutheran’s
OB-GYN business. Three of the Westside doctors are non-owners of the practice, namely Drs.
Kolrud, McCollom, and Cowles. These three doctors are paid a salary by Westside. However,
so far as Lutheran is concerned all the nine Westside doctors are treated equally. All are
“credentialed” by Lutheran so that they are able to deliver babies, perform surgery, and cover all
shifts at the hospital facility. They also all have “privileges” at the hospital such as access to the
medical facilities, equipment, and the doctors’ cafeteria and lounge.
According to the General Counsel’s theory as expressed in her brief, the Respondent
was concerned that if it hired Maddock as a per diem RN, she would enlist the aid of doctors
Kolrud, McCollom, and Cowles, with whom she worked at Westside, in an effort to assist her
“with any employment problems she might have at Lutheran.” For that reason, they allegedly
declined to hire her. However, in my view this is an imaginative, but highly implausible,
convoluted theory.
To begin with, it is important to consider that if hired by Lutheran, Maddock would have
been an employee of both Westside and Lutheran. Westside and Lutheran have a very close
business relationship. That relationship is essential to Lutheran, as 70% of Lutheran’s OB-GYN
business is dependent on Westside. Keeping the doctors at Westside “happy” is a very
practical concern for Lutheran’s managers.
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It was in that environment that Maddock on several occasions threatened Schroeder
with harm to the business relationship between Lutheran and Westside if she were not hired by
Lutheran. I find Maddock’s denial of any intent to threaten Schroeder as disingenuous at best,
and plainly incredible. Simply because Maddock may have prefaced her remarks to Schroeder
with the caveat, “Don’t take this as a threat,” does not lessen the clear intent to do just that.
Maddock is an educated, articulate, intelligent individual who certainly knew that she was
threatening Lutheran with very significant financial harm as “leverage” in order to get Schroeder
to change her mind and hire Maddock. In fact, Schroeder accused Maddock of doing precisely
that.
While the employees of different employers can certainly engage in concerted action
together, which may in fact be protected under the Act,19 that was not what the managers at
Lutheran feared. Their fear was that Maddock may have had the capacity, and apparently the
will, to interfere with the business relationship between Lutheran and Westside. As a coworker
at Westside with doctors Kolrud, McCollom, and Cowles, she had the potential ability to
influence them into supporting whatever position she might take as an employee of Lutheran
adverse to that employer. This was a highly unusual, almost untenable position for Lutheran to
find itself in vis-à-vis its business partner Westside. Of course, the most practical way to avoid
the potential problem was simply to not hire Maddock. That was exactly what Lutheran did.
The Westside doctors, including the three non-owners, were in a unique position to
significantly influence Lutheran’s financial affairs. These doctors were in effect “business
partners” of Lutheran. If they decided to affiliate with another hospital, the financial
consequences for Lutheran could be dramatic and severe. Any concerted action by Maddock
and doctors Kolrud, McCollom, and Cowles, all of whom were Westside employees,20 to assist
Maddock, assuming she were also a Lutheran employee, would not constitute protected activity
in the tradition sense. Maddock would be in a position to sabotage the business relationship
between Lutheran and Westside. Surely, this is not what the Act is intended to protect.
Employees are engaged in protected concerted conduct under Section 7 of the Act when
they act collectively for “mutual aid or protection,” such as in attempting to improve wages,
hours, working conditions or related issues. They are entitled to the Act’s protection. However,

19 Eastex, Inc. v. NLRB, 437 U.S. 556, 564 (1978); see, also, Service Employees,
Washington State Council No. 18, Local 6 (Jill Severn), 188 NLRB 957, (1971); General Electric
Company, 169 NLRB 1101 (1968); NLRB v. Peter Cailler Kohier Swiss Chocolates Co., 130 F.
2d 503 (1942).
20 Counsel for the Respondent and counsel for the General Counsel spent much time and
effort at the hearing and in their respective briefs arguing whether or not the non-owner doctors
at Westside were supervisors. As I have concluded that the Respondent was not concerned
with Maddock engaging in any protected activity with these doctors, their status as either
employees or supervisors need not be decided. However, I will simply note that the Board’s
long established policy is to place the burden of proving supervisory status by a preponderance
of the evidence on the party asserting that such status exists. Oakwood Healthcare, Inc., 348
NLRB No. 37 (2006). I do not believe that the Respondent has met that burden. The
Respondent’s evidence was conclusory and not sufficient to establish that the doctors actually
possessed Section 2(11) supervisory authority. See Golden Crest, 348 NLRB No. 39, slip op. at
5 (2006); Avante at Wilson, Inc., 348 NLRB No. 71, slip op. at 2 (2006);Chevron Shipping Co.,
317 NLRB 379, 381 fn. 6 (1995); Sears Roebuck & Co., 304 NLRB 193 (1991).
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there is no evidence that this is what concerned the Respondent’s managers. Rather, they
were concerned with Maddock interfering with Westside’s business relationship with the
Respondent. Maddock threatened to do this in several conversations with Schroeder, and the
managers of Lutheran were prudent to be concerned.
In conclusion, I do not believe the evidence supports a finding that the Respondent
refused to hire Maddock in order to prevent her from engaging in protected concerted activity
with any of the employees of Westside, including doctors Kolrud, McCollom, and Cowles. The
General Counsel has failed to prove this allegation by a preponderance of the evidence.
Further, even assuming the General Counsel had established such a prima facie case, I find
that the Respondent has met its burden of establishing, for the reasons expressed earlier in this
decision, that it would have declined to hire Maddock, even in the absence of any concerns
about her potential protected concerted activity. Wright Line, supra.
Accordingly, based on the above, and the record as a whole, I shall recommend that the
amended complaint be dismissed in its entirety.
Conclusions of Law
1. The Respondent, Exempla Lutheran Medical Center, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, United Food & Commercial Workers Union, Local No. 7, United Food &
Commercial Workers International Union, is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent did not violate the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended21
ORDER
The complaint is dismissed.
Dated at Washington, D.C. on July 20, 2007
_________________
Gregory Z. Meyerson
Administrative Law Judge

21 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.