Shands Jacksonville

National Labor Relations Board - Administrative Judge Opinions

Jul 3, 2012

12-CA-026649 (N.L.R.B. Jul. 3, 2012)

JD–35–12
Jacksonville, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SHANDS JACKSONVILLE MEDICAL CENTER, INC.
Cases 12-CA-026649
and 12-CA-027197
12-CA-026829
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES
COUNCIL 79, AFL-CIO
and
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES
LOCAL 1328, AFL-CIO
and
DELLA HIGGINBOTHAM, An Individual
Rafael Aybar, Esq., for the Acting General Counsel.
Charles P. Roberts, III, and John F. Dickinson, Esqs.
(Constangy Brooks & Smith, LLP), of Winston-Salem,
North Carolina, and Jacksonville, Florida, for the
Respondent.
Alma R. Gonzalez, Esq. (AFSCME Florida Council 79),
of Tallahassee, Florida, for the Charging Party Unions.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This case arises out of an order further
consolidating cases, consolidated complaint and notice of hearing issued on November 29, 2011
(the complaint), stemming from unfair labor practice (ULP) charges filed against Shands
Medical Center (the Respondent or the Hospital) by American Federation of State, County and
Municipal Employees Council 79, AFL–CIO, and American Federation of State, County and
Municipal Employees Local 1328, AFL–CIO (jointly the Union unless differentiated), and Della
Higginbotham, an individual.
JD–35–12
2
I held a trial in Jacksonville, Florida, on April 23–25, 2012, at which I afforded the
parties full opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence. On the first day of hearing, I approved a non-Board settlement agreement executed by
the Respondent, the Union, and Jacqueline Cangro, one of the two discharged employees named
in the complaint.1 It provided, inter alia, for withdrawal of the charges filed in Case5
12–CA–27197, including the allegation relating to her discharge. Accordingly, the legality of her
termination is not now before me. I grant the Acting General Counsel’s unopposed motion to
correct the transcript.
Issues10
(1) Should I defer to the February 3, 2011 award of Arbitrator Richard H. Potter, who
ordered Mischaun Palmer reinstated without backpay or credit for time lost for
seniority, vacation, or sick leave purposes? The Acting General Counsel argues that
deferral is inappropriate because the arbitrator did not consider the ULP issue, and 15
his award was repugnant to the Act. The Respondent contends that deferral is
proper.
(2) If I reject deferral, did the Respondent violate Section 8(a)(3) and (1) by discharging
Palmer on February 12, 2010,2 because of her protected union activity, more 20
specifically, her activities as union recording secretary and steward and her
distribution of a union flyer? Palmer avers that she distributed the flyer on
February 5 in a nonwork area on nonwork time, whereas the Hospital contends that
she did so in a work area (the “Pond”) between 3:30 and 4 p.m. on February 4,
without clocking out for union business.25
(3) Did Greg Williams, director of clinical services, on April 7, threaten RN
Higginbotham that the Hospital would cause her to lose her nursing license if she
filed a grievance over her discharge, thereby violating Section 8(a)(1)?
30
(4) Has the Respondent violated Section 8(a)(1) by maintaining a work rule that
“unauthorized distribution of written or printed materials of any description” is a
ground for disciplinary action?
Witnesses and Credibility35
As to Palmer’s discharge, the following witnesses testified, with their positions at the
time:
(1) Hospital representatives Daniel Kurmaskie, director of patient access; and Daniel 40
Staifer, director of employment and employee relations.
(2) Employees Vivian Griffin, Ethel Overstreet, and Sharnee Thomas, for the Hospital.

1 R. Exh. 1. The Acting General Counsel objected to my approval of the agreement but waived the right
to file a special appeal to the Board under Sec. 102.26 of the Board’s Rules and Regulations.
2 All dates hereinafter occurred in 2010 unless otherwise indicated.
JD–35–12
3
(3) Employees Cangro, Palmer, and Rutha Harris, for the Acting General Counsel.
Higginbotham and Williams testified about what was said at the former’s discharge
interview on April 7.
5
Griffin, Overstreet, and Thomas were reasonably consistent but not identical in their
accounts of what transpired on the afternoon of February 4, and they were substantially
consistent with the testimony that they offered at the November 10 arbitration hearing, as well as
in the statements that they gave to the Hospital in February. For example, Overstreet testified
that Palmer gave her the flyer at between 3:30 and 3:45 p.m., Thomas that it was between 3:30 10
and 4 p.m., and Griffin that the flyer was left on her chair prior to 3 or 3:30 p.m. This lends
support to the conclusion that they were truthful in relating what had occurred, rather than
attempting to orchestrate their testimony. Furthermore, all were union members in February, and
none of them appeared to try to slant their versions of the facts to harm Palmer, either at trial, at
the arbitration hearing, or in their statements to the Hospital. In this regard, Arbitrator Potts, in 15
finding them credible and crediting their testimony over Palmer’s, noted that they offered
testimony that, in part, supported Palmer.3 At trial, Overstreet did the same as far as testifying
about the Hospital’s lack of enforcement of its prohibition against unauthorized distribution.
Palmer and Cangro testified that Palmer did not distribute the flyer on the afternoon of 20
February 4 in the Pond area. Aside from being contradicted by the three employees named
above, as well as Kurmaskie’s and Staifer’s testimony, Palmer’s testimony that she did not
distribute it until the following morning is undermined by Respondent’s Exhibit 13, showing that
management had the flyer in its possession prior to 5:30 p.m. on February 4. At the arbitration
hearing, she suggested that someone might have rummaged through the tote bag containing 25
union business that she kept at her desk, and removed the flyer,4 but she did not repeat this far-
fetched contention at trial. Further, Palmer’s testimony about whether she had the completed
flyer in her tote bag during the workday on February 4 was confusing. In this regard, she
equivocated, initially testifying that she did not actually have the flyer but “a stack of stuff where
I had been cutting and pasting,”5 then that she did have the flyer but that it had not been printed 30
or copied. Why she would have brought to work both the finished document and prior draft
materials remains unexplained. I further note that no other witnesses corroborated Palmer’s
testimony that she distributed the flyer on the morning of February 5 in a nonwork area on
nonworktime.
35
I discredit Cangro’s testimony that she was in the Pond between 3:30 and 4 p.m. on
February 4 and did not observe or hear Palmer distribute anything. Cangro testified at the
arbitration hearing but failed to offer such testimony in support of Palmer. Moreover, Cangro
was present as Palmer’s union representative not only at Palmer’s discharge interview but at an
earlier investigatory meeting, yet at no time did she tell management that she was a corroborating 40
witness for Palmer. I find this unfathomable.
Harris’ testimony was essentially hearsay because it entailed statements that Palmer made
to her on the mornings of February 4 and 5, when they drove to work. I do note that Harris

3 R. Exh. 30 at 10.
4 R. Exh. 5 at p. 182.
5 Tr. 162.
JD–35–12
4
testified that Palmer stated on the morning of February 4 that she had not yet finished the flyer,
but Palmer testified that she had the completed flyer in her tote bag that day.
For the above reasons, as did Arbitrator Potts, I credit Griffin, Overstreet, and Thomas
over Palmer concerning Palmer’s activity on the afternoon of February 4 in the Pond.5
Both Kurmaskie and Staifer testified that the former made the decision to discharge
Palmer. Kurmaskie was not a credible witness on this matter, for the following reasons. He was
evasive in answering whether Palmer would have been discharged in the absence of any prior
disciplines; or, put another way, whether the Respondent would have terminated her solely 10
because of her misconduct on February 4. Despite my repeated efforts, I could not get
Kurmaskie to give a straight answer to this question. I note that Staifer was also equivocal on
this point.
Kurmaskie testified that Griffin, Overstreet, and Thomas all expressed to him displeasure 15
over Palmer’s giving them the flyer. However, none of them testified that they complained in
any way, consistent with their email statements to him and their testimony at the arbitration
hearing. On the contrary, all three made it clear at trial that they did not complain about
Palmer’s conduct, and Overstreet testified that she merely showed the flyer to Supervisor Natalie
Butler and simply asked whether Butler had seen it.20
To be discussed later on, there were discrepancies between what Kurmaskie testified
were the reasons for the falsification violation listed on Palmer’s termination paper and what was
expressly stated therein.
25
Finally, Kurmaskie demonstrated a marked tendency to deflect specific questions by
answering in generalities rather than directly responding.
For said reasons, I credit Kurmaskie only where his testimony was corroborated by more
reliable evidence.30
Turning to the allegation relating to Higginbotham, Higginbotham was not a persuasive
witness. She had only a vague recollection of what was stated at the April 7 termination
meeting, explaining that “I wasn’t really in the conversation” between Williams and Manager
Carissa Davis.6 On cross-examination, Higginbotham first testified that at the meeting, 35
management did not explain that she had improperly restrained a patient but, rather, that Davis
said such in a separate phone conversation. However, she then testified that she did not
remember, and she was later impeached by her August 30 affidavit, in which she stated that this
was explained to her at the meeting. Her explanation that the event occurred 2 years ago and she
could not recall everything that happened was unconvincing. I also note that she exhibited a 40
lackadaisical attitude, to the point where she did not seem concerned with making a genuine
effort to be as accurate as possible in relating what took place.
Williams exhibited a better recall of what was said at the meeting. The only negative as
far as his credibility was that he first testified on cross-examination that he could not recall a 45

6 Tr. 109.
JD–35–12
5
grievance meeting over the discharge (adding, however, “I’m not sure though”) 7, but then
testified that he did attend the third-step grievance meeting after being shown General Counsel’s
Exhibit 29. This one defect in his testimony paled in comparison to the weaknesses that
Higginbotham demonstrated as a witness, and I credit his account over hers.
5
Had Higginbotham been more credible, I would consider drawing an adverse inference
against the Respondent for its failure to call Davis, as the Acting General Counsel urges (Br. at
25 fn. 10), but it is well-established Board law that even uncontroverted testimony of an
unreliable witness can be discredited. See, e.g., Pacific Coast M.S. Industries Co., 355 NLRB
1436, 1442 (2010); Jupiter Medical Center Pavilion, 346 NLRB 650, 652 (2006). 10
Facts
Based on the entire record, including testimony and my observations of witness
demeanor, documents, and stipulations, as well as the thorough posttrial briefs that the Acting 15
General Counsel and the Respondent filed, I find the following.
Background
The Respondent operates an acute-care hospital in Jacksonville, Florida, and has admitted 20
jurisdiction as alleged in the complaint.
The Hospital has about 3500 employees, approximately 500 of whom are managers or
supervisors. The Council represents about 2000 of the employees, in two units: professionals
and nonprofessionals. Local 1781 services the former; Local 328 the latter. Both units are 25
encompassed by a collective-bargaining agreement (the agreement) effective from September 10,
2009 through June 30, 2012.8 Pertinent provisions of the agreement follow.
Article 3, management security, opens with:
30
Subject to the specific provisions of this Agreement, the Union and its officers,
agents, and members agree that during the life of this Agreement, they shall have no right
to instigate, promote, sponsor, engage in, or condone any strike, slowdown, concerted
stoppage of work, intentional interruption of employer operations, or similar activities
during the term of this Agreement for any reason. . . . Management shall have the right to 35
discharge or otherwise discipline any or all employees who violate the provisions of this
paragraph. . . .
The article contains a provision on distribution, which the Acting General Counsel does not
allege violates the Act.40
Article 7 addresses union activity and provides, inter alia, that union stewards be allowed
reasonable time to conduct union business during normal working hours provided that they clock
into a union business cost center established under the Hospital’s payroll system.
45

7 Tr. 253.
8 R. Exh. 35.
JD–35–12
6
Article 8 sets out the grievance procedure, starting with an oral phase before the filing of
a written grievance and going up to a third step, at which there is review by the Hospital’s human
resources (HR) vice president or his or her designee. If not resolved at step III, either the
Hospital or the Union may request an arbitrator through the Federal Mediation and Conciliation
Service.5
The arbitration provision states, inter alia:9
Any decision or award of the arbitrator shall be strictly limited to the
interpretation of specific terms of this Agreement, and to a determination of (a) whether 10
the grievance is arbitrable, and (b) whether a specific provision of this Agreement was
violated as alleged in the written grievance. . . . The arbitrator shall review the
Employer’s action and shall determine whether it is based upon competent, substantial
evidence; if it is, it shall be upheld. The arbitrator’s decision shall be final and binding
upon all parties. . . .15
It is specifically and expressly understood that taking a grievance to arbitration
constitutes an election of remedies and waiver of any and all other rights by the appealing
party and all persons it represents. . . .
20
Article 9 concerns discharge and discipline. Article 9.A provides that suspensions,
demotions for cause, and dismissals may be appealed directly to step III. Article 9.B provides, in
part, that management “shall use progressive disciplinary methods where appropriate. . . .”10
A Hospital policy on corrective actions (CA’s) also enunciates the principle of 25
progressive discipline, stating that it will “normally be applied,” depending on the seriousness of
the offense.11 The policy further provides for four levels of discipline: counseling, written
reprimand, suspension without pay (with the length to be determined after consultation with
HR), and discharge. CA guidelines incorporated into the policy list three classes of offenses. A
class III offense is the most serious, for which even a first offense may cause termination.30
Palmer’s Discharge
I. Palmer’s Employment and Union Activity
35
Palmer was a financial admissions representative from May 2001 until her discharge on
February 10. Her regular duties were registering patients for inpatient/outpatient service and
verifying insurance. In February, she worked from Monday through Friday from 7:30 a.m. to 4
p.m.
40
Palmer had an assigned desk in the clinical admissions front area and also used a desk in
the Pond. Five other financial admissions representatives worked in the pond and had assigned

9 Id. at p. 18.
10 Id. at p. 19.
11 R. Exh. 6 at p.1.
JD–35–12
7
cubicles: Cangro, Kim Covington, Griffin, Overstreet, and Thomas.12 Their supervisor, Novetta
Butler, reported to Manager Shirley Forbes.
Palmer was Local 1328’s recording secretary since 2009 and a union steward since 2008.
In those capacities, she attended management-union meetings and represented employees in 5
grievance proceedings. Before engaging in union business, she notified management and then
clocked out of worktime and into a union call center number or code.
II. The Flyer and its Distribution
10
In January, Palmer began composing a flyer concerning employee’s complaints that their
work was not getting done when they were off on sick leave, and delays in management’s having
other employees relieve them. She did this with the approval of Nicolas Dix, the Union’s
regional director, and with Cangro’s assistance.
15
Respondent’s Exhibit 9 is the four-page flyer ultimately produced. The flyer’s first page
asked, “What would happen to the employees at Shands without a union?” The second page
asked, inter alia, the following:
(1) What would Shands do if all the nurses called out for one day?20
(2) What would Shands do if all the radiology techs decided to leave at 10:00 a.m.?
(3) What would shands do if all registrars and customer service reps decided Friday and
Saturday is a good day to stay home and enjoy?
(4) What would Shands do if all labs called out?
(5) What would Shands do if the OR techs were no show for a day? 25
The document proceeded to criticize Hospital management and to encourage employees to voice
their complaints and concerns.
There is no dispute that the flyer was finished at some point on February 4.13 It is also 30
undisputed that Palmer did not clock out for union business on the afternoon of February 4.14
The disagreement is whether Palmer distributed the flyer that afternoon on her and other
employees’ worktime.
For reasons previously stated, I credit Griffin, Overstreet, and Thomas over Palmer and 35
Cangro. Vis-à-vis Griffin and Thomas, Overstreet offered the most detailed testimony, and I
accord it the most weight.
Griffin, Overstreet, and Thomas were working in the Pond at between 3:30 and 4 p.m.,
when Palmer came by. She handed a flyer to Overstreet and Thomas and left one on Griffin’s 40
chair. Overstreet asked what it was, and Palmer replied that it was a flyer for her to ponder. A
few minutes later, Palmer came back to Thomas’ desk and asked if she had any questions.
Thomas replied no. After finding the flyer on her chair, Griffin went over to Thomas’ cubicle.

12 See R. Exh. 8, a diagram.
13 See Palmer’s testimony at Tr. 157; R. Exh. 13, showing that it was faxed at 5:30 p.m. that day.
14 See R. Exh. 16.
JD–35–12
8
At that time, Palmer came over and asked if Griffin understood it. Griffin replied no. Palmer
offered an explanation, but Griffin responded that she still did not understand.15
When Butler later arrived at the Pond, and Overstreet asked if she had seen the flyer.
Butler replied no, and Overstreet gave it to her. Butler asked how she had received it, and 5
Overstreet replied that Palmer had passed it out. Butler commented, “[T]his is awful,” thanked
her, and left with the flyer.16
Kurmaskie testified that Butler and Forbes came to his office with the flyer at about 5
p.m. on February 4, and I credit him on that point. Significantly, Respondent’s Exhibit 13 shows 10
that he faxed the flyer to HR at 5:30 p.m. that day, which I also find as a fact. Kurmaskie
testified that they told him employees were “concerned, offended, and complained,”17 but
nothing in Griffin’s, Overstreet’s, and Thomas’ testimony or their written statements to
management supports this characterization of their reactions. I therefore find it unnecessary to
draw an adverse inference for the Respondent’s failure to call Butler (who was terminated 15
shortly after Palmer) or Forbes to corroborate Kurmaskie.
III. The Respondent’s Investigation and Decision to Discharge Palmer
Kurmaskie conducted the subsequent investigation, after which he decided that Palmer 20
should be discharged.
On about February 5, Kurmaskie met individually with Griffin, Overstreet, and Thomas.
He asked them to provide statements of what occurred, and all three subsequently sent him
one-paragraph emails.18 Therein, Griffin and Overstreet made mention of being confused or not 25
understanding the flyer, whereas Thomas did not express any reaction.
The Hospital determined by Monday, February 8 that Palmer had not clocked out for
union business on February 4.19 That afternoon, Kurmaskie and Butler had a meeting with
Palmer, Cangro, and Gale Forest, the Local’s vice president, concerning Palmer’s distribution of 30
pamphlets on February 4. Kurmaskie showed Palmer the flyer and asked if she had handed it out
on the morning of February 4; she replied no, that she had done so on the morning of Friday,
February 5.20 He asked her to provide a written statement, and she did so. 21 Therein, she stated:
This statement is in regards[sic] to an allegation that . . . I gave two employees a packet 35
and that I disturbed them during working hours of 3:00 pm and 4:00 pm. on Thursday,
February 4, 2010.

15 Tr. 304, consistent with her testimony at the arbitration hearing. R. Exh. 5 at p. 64; her later testimony,
id. at 68, that “Sharnee” asked if she understood it, was apparently an inadvertent error.
16 Tr. 266.
17 Tr. 326.
18 R. Exhs. 10 (Overstreet, February 10), 11 (Thomas, February 5), and 12 (Griffin, February 9).
19 See R. Exh. 37.
20 Consistent testimony of Kurmaskie and Palmer at Tr. 174, 342–343.
21 R. Exh. 15, dated February 9.
JD–35–12
9
During the hours of 3:00 pm and 4:00 pm on Thursday, February 4, 2010 I was busy
working on my scheduled work duties.
Friday, February 5, 2010, I arrived at work early and passed out some very important
information and clocked in on my normal working hours which are 7:30 am.5
Palmer was discharged at a meeting on February 12, attended by the same individuals
who were at the February 8 meeting, along with Rosemary Mason of HR. Respondent’s Exhibit
2 is the CA (discharge) that Kurmaskie issued to her.
10
At the top of the document, six prior CA's (four written counselings and two written
reprimands) in 2008 and 2009 are listed for the past 2 years.22 As earlier noted, both Kurmaskie
and Staifer were evasive in answering what role, if any, the prior CA’s played in the decision to
discharge Palmer and whether she would have been terminated solely for the events of
February 4.15
The incident cited for the CA is described as follows:
On 2-4-10, during work time, Mishaun Palmer distributed material promoting or
instigation a sickout, work slow down, or work stoppage, to Admissions employees in 20
their work areas and work time. She did not clock out for Union business prior to
distributing the material on 2-4-10. According to Ms. Palmer’s signed statement on
2-5-10[sic], Ms. Palmer passed the “very important information” in work[sic]areas, and
then clocked in at 7:30 a.m.
25
As to the rules that Palmer violated, the CA cites Class III #26 – falsification of
attendance, payroll or other hospital records, and Class II # 4 – unauthorized distribution of
written or printed materials of any description and HR 02-019 (the policy on solicitation and
distribution). It also lists violations of articles 3:3.1, 3.2(a)2, and 3.2 (a)5 of the agreement,
without specific reference to a class of violation.30
Kurmaskie testified that the falsification violation included Palmer’s denial in her written
statement to him that she engaged in distribution activity on February 4, which he had
determined to be a lie.23 In fact, he testified that in deciding to discharge Palmer rather than
impose a lesser penalty, “[L]eading off was the fact that she lied and that we had witnesses 35
stating to the contrary.”24 (Emphasis added). However, although the incident description
mentions Palmer’s signed statement, thereby implicitly raising this as a reason for discharge, her
lying during the investigation is not specifically stated as a basis for the falsification ground
(Class III #26), or otherwise, in the rule violation section. Additionally, the parties stipulated
that the Respondent’s position statement submitted to the Region set out the reasons for Palmer’s 40
termination and referenced the CA but did not expressly cite her making untruthful statements to
management. I find such omissions to be at odds with Kurmaskie’s testimony above and yet
another factor undermining his overall credibility.

22 See R. Exhs. 17–22.
23 Tr. 358; see also Tr.371.
24 Tr. 374.
JD–35–12
10
I adopt Arbitrator Potter’s unchallenged conclusion that the Hospital laxly enforced its
prohibition against unauthorized distribution.25
IV. The Arbitration
5
On February 15, the Union filed a grievance contending that Palmer’s discharge was not
for just cause.26 Pursuant to the terms of the agreement, the grievance was advanced to the third
step of the grievance procedure, at which it was denied. By letter of April 10, the Union notified
the Hospital that it was advancing the grievance to arbitration.27
10
On February 25, the Union filed charges, including the allegation that Palmer’s discharge
was in retaliation for her protected union activities.28 By letter of April 23, the Regional Director
notified the parties of her decision to defer further proceedings on the matter to the grievance/
arbitration process.29
15
The parties subsequently selected Potter, who conducted an arbitration hearing on
November 10. The parties agreed at the outset that the issue was whether the Hospital had just
cause to terminate Palmer and whether the level of discipline was appropriate.30 Witnesses
included Cangro, Griffin, Kurmaskie, Overstreet, Palmer, Staifer, and Thomas. At the hearing,
Palmer’s distribution of the flyer, the Hospital’s policy restricting distribution and its 20
enforcement, and the Hospital’s reasons for discharging her were litigated.
Arbitrator Potter issued his award on February 3, 2011.31 Phrasing the issue as whether
Palmer was discharged for cause, he concluded in her favor, determining that (1) the Hospital’s
enforcement of the no-distribution policy was lax; (2) the flyer did not call for a job action in 25
violation of article 3 of the agreement; and (3) Palmer’s activity was brief and casual and did not
rise to the level that required her to clock out for union business.
However, Potter credited Griffin, Overstreet, and Thomas over Palmer and found that she
distributed the literature on the afternoon of February 4. In this regard, he stated:3230
That three union members would lie about a Steward and possibly get her fired
simply because they believed she spent too much time on Union duties is beyond belief
The three seemed credible and provided testimony that, in part, supported the
Grievant. . . .35
As to Palmer’s denial that she distributed the flyer on February 4, he concluded:33

25 R. Exh. 30 at p. 6.
26 R. Exh. 2 at p. 4.
27 Id. at p. 5.
28 GC Exh. 1(a).
29 R. Exh. 4.
30 R. Exh. 5 at pp. 8–9.
31 R. Exh. 30.
32 Id. at pp. 9–10.
33 Id. at 10.
JD–35–12
11
[I]t is clear that she misled Kurmaskie by omission when he questioned her as
well as in her written statement and lied under oath at the hearing. . . . [L]ying is a very
severe offense. . . .
Based on the above conclusions, he granted the grievance in part but denied it in part, and 5
ordered Palmer reinstated without backpay or credit for time lost for seniority, vacation, or sick
leave purposes.
The Hospital, joined by the Union, subsequently requested clarification from Potter
whether he intended to downgrade the level of discipline that had been imposed. He responded10
by letter of February 11, 2011:34
I found that Ms. Palmer did not violate the prohibition against solicitation and
distribution or the prohibition against inciting or promoting a job action or work
stoppage. However, I did find she lied by omission in a written statement and in an 15
interview with her supervisor, as well as by commission under oath at the hearing.
Although I didn’t uphold the discharge, I believe returning her to work after almost a year
without backpay is a severe penalty. Indeed, although it isn’t explicitly a suspension, it
has the same impact. I believe a designation such as “lost time as a result of discipline” 20
correctly describes her status.
Pursuant to the terms of the award, Palmer returned to work on February 21, 2011, at
which time she resumed her role as a union steward. She had continued to serve as recording
secretary after her discharge. She currently holds both positions.25
V. Discipline of Other Employees
The Acting General Counsel offered a number of CA’s involving misrepresentation by
employees,35 as follows. All occurred in 2009 and, with the exception of the first, cited class III 30
#26, falsification of records.
(1) Written reprimand for Class III #6 insubordination, for the employee’s falsely stating
that she had conducted a follow-up appointment with a patient. No prior CA’s.
35
(2) Three-day suspension for falsification of records, violation of policy, and failure to
follow work instructions. Eight prior written counselings and one written reprimand.
(3) Three-day suspension for falsification of records, violation of policy, and failure to
follow work instructions. Prior discipline – one written counseling, two written 40
reprimands, and one suspension.
(4) Dismissal for falsification of records. One prior written counseling, reprimand, and
suspension.
45

34 R. Exh. 34.
35 GC Exhs. 5, 15–18.
JD–35–12
12
(5) Two-day suspension for falsification of records and violating policy. Five prior
written counselings.
The Acting General Counsel also offered two other CA’s, both from 2010. The first was
a written reprimand issued for a class III #6 violation (insubordination and disrespect), for using 5
profanity to a manager.36 The employee had one prior written reprimand and two written
counselings. The second was a written reprimand issued to a supervisor for soliciting employees
for money to pay for the cost of his making a holiday cake, a class II violation.37
Supervisor Butler was terminated on February 15, 2010, for unauthorized distribution and 10
solicitation that month.38 She had a prior written counseling, written reprimand, and suspension,
all including failure to follow work instructions.
Williams’ Statements to Higginbotham
15
Crediting Williams, I find that during Higginbotham’s termination interview on April 7,
he explained that she was being discharged for restraining a patient in violation of Hospital
policy and that this could constitute a reportable offense to the Florida Board of Nursing or the
Joint Commission (an accrediting body) but that he would not be making the determination. The
Hospital never reported her.20
No-Distribution Rule
At all times material, the Hospital’s CA guidelines have included the following as a class
II offense: “Unauthorized distribution of written or printed materials of any description.”3925
Nothing is stated about the impact of any other Hospital policy or of any provisions in the
agreement. Counsels’ statements at trial and in their briefs suggest that this rule is no longer in
effect, but no evidence was introduced to show that it was formally abrogated or that any
superseding rule was ever communicated to employees.
30
Also in effect at all times material has been a written policy specifically on the subject of
solicitation and distribution, stating in relevant part that distribution is not allowed during
working time or in working areas.40 Although the Acting General Counsel now argues that
portions thereof are ambiguous and would reasonably be construed by employees to prohibit
Section 7 activity (Br. at 27), the complaint refers only to the above CA guidelines and was 35
never amended to include this additional allegation, which therefore was not fully litigated.
Accordingly, my finding this additional policy to be unlawful would be inappropriate. See
Baptist Hospital of East Tennessee, 351 NLRB 71, 72 fn. 5 (2007); Wal-Mart Stores, 348 NLRB
274, 274 (2006). The Acting General Counsel has not alleged at any point that the language of
article 3 of the agreement relating to distribution is impermissible.40

36 GC Exh. 6.
37 GC Exh. 19.
38 R. Exh. 23.
39 R. Exh. 6 at p. 6.
40 R. Exh. 7.
JD–35–12
13
Analysis and Conclusions
Palmer’s Discharge
The threshold issue is whether I should defer to Arbitrator Potter’s award, in which event 5
analysis of the legality of her termination under the Act is unnecessary. The Acting General
Counsel has presented a two-fold argument against deferral: (1) the arbitrator did not consider
the ULP issue; and (2) his award was repugnant to the Act. To determine the validity of these
contentions, the legal framework must be examined.
10
As the Board stated in D. R. Horton, Inc., 357 NLRB No. 184, slip op. at 17 (2012):
[A]rbitration has become a central pillar of Federal labor relations policy and in
many contexts the Board defers to the arbitration process both before and after the
arbitrator issues an award. See United Steelworkers of America v. Warrior & Gulf 15
Navigation Co., 363 U.S. 574, 578 (1960).
Consistent with this precept, the party seeking to have the Board reject deferral and consider the
merits of the ULP matter has the burden of showing that the standards for deferral have not been
met. Id. at 574; Kvaerner Philadelphia Shipyard, Inc., 347 NLRB 390, 391 (2006) (“[W]here 20
parties have agreed to be bound to an arbitrator’s resolution of an issue, the Board will defer to
that resolution except in those rare cases in which the arbitrator’s decision is ‘palpably
wrong . . .”).
Deferral is appropriate when the (1) the arbitration proceedings were fair and regular; (2) 25
the parties agreed to be bound by them; and (3) the arbitrator’s decision was not clearly
repugnant to the Act. Spielberg Mfg. Co., 112 NLRB 1080 (1955); see IAP World Services, 358
NLRB No. 10 (2012).
In Olin Corp., 268 NLRB 573 (1985), the Board added the requirements that (1) the 30
contractual issue was factually parallel to the ULP issue; and (2) the arbitrator was presented
generally with the facts relevant to resolving the ULP charge. See also Turner Construction Co.,
339 NLRB, 451, 451 fn. 2 (2003). The arbitrator need not have been presented with the relevant
law relating to the ULP in question, and his or her decision need not have contained a rationale
showing consideration of the ULP allegation; rather, the test is whether the evidence before the 35
arbitrator was “essentially the same evidence necessary for a determination of the merits of the
unfair labor practice charge.” Andersen Sand & Gravel Co., 277 NLRB 1204, 1205 (1985); see
also Laborers Local 294, 331 NLRB 259, 261 (2000).
The Acting General Counsel contends that background evidence of the Respondent’s 40
animus toward Palmer for her union activity was not presented to the arbitrator and that deferral
is improper on that basis. However, in United Parcel Service, 274 NLRB 396 (1984), the Board
upheld an administrative law judge’s determination that this kind of evidence was not of such
probative value as to necessitate a conclusion that the arbitration panel did not have before it the
essential facts as to the issue litigated, and his further conclusion that the General Counsel had 45
failed to carry his burden of proof to demonstrate that the arbitrator’s award should be rejected.
See also Hertz Corp., 326 NLRB 1097 (1998). Here, the arbitrator considered all of the
JD–35–12
14
circumstances surrounding Palmer’s distribution of the flyer, the Respondent’s subsequent
investigation, and the Respondent’s proffered reasons for her discharge. He concluded that the
Respondent had failed to show good cause for the discharge, in essence, discrediting the
Hospital’s management witnesses.
5
With regard to the “clearly repugnant” standard, the Board does not require that the
award be totally consistent with Board precedent. Martin Redi-Mix, 274 NLRB 559, 559 (1985).
Rather, the Board will defer unless the award is “palpably wrong,” i.e., unless the arbitrator’s
decision is not susceptible to an interpretation consistent with the Act. Laborers, above at 261;
Olin Corp., above at 574. This logically follows from the fact that “[d]eferral recognizes that the 10
parties have accepted the possibility that an arbitrator might decide a particular set of facts
differently than would the Board.” Andersen Sand & Gravel Co., above at 1204 fn. 6; see also
Specialized Distribution Mangement, Inc., 318 NLRB 158, 161 (1995). Thus, the Board’s
disagreement with an arbitrator’s conclusion is an insufficient basis for the Board to decline to
defer to the arbitrator’s award. Kvaerner Philadelphia Shipyard, above, at 391; Smurfit-Stone 15
Container Corp., 344 NLRB 658, 659–660 (2005).
In American Commercial Lines, 291 NLRB 1066, 1074–1075 (1988), the Board found
deferral to arbitration inappropriate because the remedial portion of the award was “arbitrarily
limited.” In that case, the arbitration board limited the remedy to hiring hall violations occurring 20
during the term of the labor contract and did not address postcontract violations, which therefore
went remedied. Nonetheless, the Board added that it would not automatically refuse to defer to
arbitration awards that contain incomplete remedies or remedies otherwise not fully consistent
with Board precedent. Id. at 1089 fn. 44; see also United Cable Television Corp., 299 NLRB
138, 144 fn. 5 (1990). The Board noted the absence of evidence that unlawfully bypassed hiring 25
hall applicants engaged in an activities or behavior “warranting a limitation on backpay amounts
otherwise owed.” American Commercial Lines, id. at 1089 fn.44.
In Cone Mills Corp., 298 NLRB 661 (1990), the arbitrator had ordered the employee
reinstated without backpay, finding that the discharge was unjust but that she had engaged in 30
insubordination in the course of her protected activity, which merited punishment. In finding the
award clearly repugnant, the Board emphasized that the arbitrator’s decision was “inherently
inconsistent” regarding the employee’s alleged insubordination:
[T]he arbitrator’s conclusion that Darr’s refusal to leave the plant constituted 35
insubordination warranting disciplinary action simply cannot be reconciled with his
findings that the conduct was provoked by the Respondent’s own wrongful actions and
was condoned by the Respondent. Given those findings, the conclusion is inescapable
that the refusal to leave the plant cannot properly be the basis for discipline. Thus, we
find nothing in the arbitrator’s opinion and award that provides a rational basis for the 40
Respondent’s discharging Darr, apart from her union activities, or that recounts
misconduct that would justify withholding her backpay. . . . [T]he arbitrator’s refusal to
award Darr backpay has the effect of penalizing Darr for engaging in those protected
activities that the arbitrator found precipitated her discharge. . . . (Id. at 666–667; fn.
omitted.)45
On the other hand, in Specialized Distribution Management, Inc., 318 NLRB 158 (1995),
the arbitrator had determined that the three employees had engaged in misconduct sufficient to
JD–35–12
15
warrant discipline but that their discharge was too severe a penalty under the collective-
bargaining agreement. Therefore, he ordered the discharges converted to suspensions without
backpay. The Board upheld Judge James Kennedy’s determination that the award was not
repugnant to the Act and that deferral was appropriate.
5
Turning to the facts of this case, the crux of the Acting General Counsel’s argument is
that Arbitrator Potter’s award was repugnant to the Act because he denied Palmer backpay and
accrued benefits for the approximately 1-year period that she was effectively suspended. Potter
explicitly imposed this penalty on Palmer not for anything relating to her union activity on
February 4 but because of his finding that she had lied about when she distributed the flyer, both 10
during the course of the Hospital’s investigation and, more importantly, before him in the
arbitration hearing. Thus, the portion of the award in question is wholly severable from Palmer’s
protected activity, as opposed to the situation in Cone Mills Corp., above.
Perjury is a serious offense. As the Supreme Court stated in ABF Freight System, Inc. v. 15
NLRB, 510 U.S. 317, 323 (1994):
False testimony in a formal proceeding is intolerable. We must neither reward
nor condone such a “flagrant affront” to the truth-seeking function of adversarial
proceedings. . . . In any proceeding, whether judicial or administrative, deliberate 20
falsehoods “well may affect the dearest concerns of the parties before a tribunal. . . .
Perjury should be severely sanctioned in appropriate cases. . . .
See also U.S. v. Holland, 22 F.3d 1040, 1047 (11th Cir. 1994) (“Perjury, regardless of the
setting, is a serious offense that results in incalculable harm to the functioning and integrity of 25
the legal system as well as to private individuals.”).
In ABF Freight System, above, the Court expressed its “concern” about the employee’s
false claim under oath but concluded that the Board had not abused its broad discretion by
ordering the remedy that the employee be reinstated with backpay. Id. at 325. 30
In exercising such discretion, the Board may penalize employees who lie under oath on a
central issue in agency proceedings by denying reinstatement and/or tolling their backpay from
the date of such misconduct. See Precoat Metals, 341 NLRB 1137, 1139 (2004); Toll Mfg. Co.,
341 NLRB 832, 835–836 (2004). 35
Granted, the deprivation of a year’s backpay and benefits is a harsh punishment.
However, as the above cases reflect, my role is not to serve as an appellate arbitrator, review the
award de novo, or substitute my judgment of what penalty, if any, Arbitrator Potter should have
imposed on Palmer for what he deemed her perjury. To do so would undermine the strong 40
public policy in favor of alternative dispute resolution and the parties’ agreement to be bound by
the decision of the arbitrator whom they mutually selected.
Based on all of the above circumstances, I conclude that Arbitrator Potters’ award
satisfies the required standards for deferral.41 Accordingly, I further conclude that the 8(a)(3) 45
and (1) allegation pertaining to Palmer should be dismissed.

41 As a matter of dicta only, I would reach the same conclusions as Potter, to wit, that Palmer, despite her
JD–35–12
16
Alleged Threat to Higginbotham
Because I have credited Mitchell’s version over Higginbotham’s and found that he did
not threaten her in any way if she filed a grievance, I recommend dismissal of this allegation.
5
The Respondent’s No-distribution Rule
In 8(a)(1) cases, including work rules, the Board’s task is to determine how a reasonable
employee would interpret the action or statement of the employer and whether the conduct would
reasonably tend to interfere with, threaten, or coerce employees in the exercise of their Section 7 10
rights, taking into account the surrounding circumstances. The Roomstore, 357 NLRB No. 143,
slip op. at 1 fn. 2 (2011); Lutheran Heritage Village-Livonia, 343 NLRB 646, 646 (2004). Thus,
the standard is an objective one. As the board explained in Lutheran Heritage Village, id. at 647,
an employer’s rule contravenes the Act if it explicitly restricts protected activity, or if (1)
employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule 15
was promulgated in response to union activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights. The Board further said, id. at 646, that it must give a rule a
reasonable reading, refrain from reading particular phrases in isolation, and not presume
improper interference with employee rights.
20
On its face, the provision in the CA guidelines prohibiting employees from engaging in
unauthorized distribution of written or printed materials of any description without authorization
impinges on employees’ Section 7 rights in two ways. First, it is presumptively overly broad in
that it covered nonworktime in nonwork areas. See New York New York Hotel, LLC, 334 NLRB
762, 763 (2001); Santa Fe Hotel, Inc., 331 NLRB 723 (2000). Second, the rule can reasonably 25
be read to require employees to secure management permission before they engage in Section 7
activities. See TeleTech Holdings, Inc., 333 NLRB 402, 403 (2001); Brunswick Corp., 282
NLRB 794, 795 (1987).
The Respondent contends (Br. 37–38) that the provision should not be viewed in isolation 30
but in the context of what it contends is its lawful formal policy on solicitation and distribution
and, “more importantly,” the pertinent provisions thereon in the agreement. This argument
lacks merit because it places a far too onerous burden on employees. Nothing in the guideline in
question mentions or even suggests that other Hospital policies or the agreement affects its
application, and employees cannot reasonably be expected to know their impact, if any. 35
For the above reasons, I conclude that the Respondent has violated Section 8(a)(1) by
maintaining an overly broad no-distribution rule requiring employees to obtain permission to
engage in any distribution activity .
40

denials before him (and before me), did distribute the flyer on February 4 on worktime and in a
work area without clocking out for union business, but that the discipline imposed on her was
disproportional to the severity of the offense.
JD–35–12
17
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by maintaining an overly broad 5
no-distribution rule that required employees to obtain permission before engaging in any
distribution.
REMEDY
10
Because I have found that the Respondent 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.
On these findings of fact and conclusions of law and on the entire record, I issue the 15
following recommended42
ORDER
The Respondent, Shands Jacksonville Medical Center, Inc., Jacksonville, Florida, shall20
1. Cease and desist from
(a) Maintaining any work rule that unlawfully restricts employees’ Section 7 rights to
engage in distribution activity.25
(b) In any like or related manner interfering with, restraining, 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.30
(a) Rescind the work rule prohibiting employees from engaging in unauthorized
distribution of written or printed materials of any description.
(b) Within 14 days after service by the Region, post at its facility in Jacksonville, Florida35
copies of the attached notice marked “Appendix.”43 Copies of the notice, on forms provided by
the Regional Director for Region 12, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places at all facilities where the unlawful policy has been or is in effect, including
all places where notices to employees are customarily posted. In addition to physical posting of 40

42 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
43 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–35–12
18
paper notices, notices should be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. 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 Respondent has gone out of 5
business or closed the facility involved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since February 25, 2010.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn 10
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of
the Act not specifically found.15
Dated, Washington, D.C. July 3, 2012.

____________________
Ira Sandron 20
Administrative Law Judge
JD–35-12
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 violated 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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain policies that unlawfully restrict your in the exercise of the rights listed
above, including your ability to distribute literature on behalf of the American Federation of
State, County, and Municipal Employees on nonwork time and in nonwork areas.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of
the rights listed above.
WE WILL rescind the provision in our corrective action guidelines prohibiting you from engaging
in the distribution of written or printed materials of any description without our permission.
SHANDS JACKSONVILLE
MEDICAL CENTER, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
South Trust Plaza, 201 East Kennedy Boulevard, Tampa, FL 33602-5824
(813) 228-2641, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (813) 228-2455.