NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.

Cayuga Medical Center at Ithaca, Inc., and 1199
SEIU United Healthcare Workers East. Cases
03–CA–156375, 03–CA–159354, 03–CA–162848,
03–CA–165167, and 03–CA–167194
December 16, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On October 28, 2016, Administrative Law Judge David I. Goldman issued the attached decision. The Respondent filed exceptions with supporting argument, and
the General Counsel filed an answering brief. The General Counsel filed cross-exceptions with supporting argument.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s finding that the General Counsel made an initial showing that the Respondent suspended Anne Marshall in retaliation for union activity, we rely on Dish Network, LLC, 363 NLRB No.
141, slip op. at 1 fn. 1 (2016), instead of Adams & Associates, Inc., 363
NLRB No. 193, slip op. at 6 (2016). In adopting the judge’s finding
that the Respondent fabricated the allegation that Marshall “flipped off”
Beasley, we do not rely on the judge’s speculative remarks about the
Respondent’s reasons for the fabrication. We also do not pass on the
judge’s finding that the Respondent disciplined Scott Marsland pursuant to an unlawful work rule when it issued him a verbal written warning on October 5, 2015.
Chairman Miscimarra agrees with his colleagues that the record evidence supports an inference that animus against union activity was a
motivating factor in the Respondent’s decisions to impose discipline on
employee Anne Marshall. In this regard, Chairman Miscimarra finds
that the evidence satisfies the General Counsel’s burden to prove the
existence of a link or nexus between Marshall’s union activities and the
Respondent’s decisions to discipline her, and the Respondent did not
show that it would have disciplined Marshall in the absence of her
union activities. See, e.g., Grand Canyon University, 362 NLRB No.
13, slip op. at 3 (2015) (Member Miscimarra, concurring in part and
dissenting in part). Contrary to the Chairman, it is settled Board law
that “proving that an employee’s protected activity was a motivating
factor in the employer’s action does not require the General Counsel
. . . to further demonstrate some additional, undefined ‘nexus’ between
the employee’s protected activity and the adverse action.” See Libertyville Toyota, 360 NLRB 1298, 1301 fn. 10 (2014) (collecting cases),

365 NLRB No. 170

except as set forth below, to amend the remedy, and to
adopt the recommended Order as modified and set forth
in full below.3
The complaint alleges that the Respondent is violating
Section 8(a)(1) of the Act by maintaining several provisions in its Nursing Code of Conduct that employees
would reasonably construe to prohibit Section 7 activity.
See Lutheran Heritage Village-Livonia, 343 NLRB 646,
647 (2004). We find that it will effectuate the policies of
the Act to sever these allegations and retain them for
further consideration by the Board.4
enfd. sub nom. AutoNation, Inc. v. NLRB, 801 F.3d 767 (7th Cir. 2015);
Rainbow Medical Transportation, LLC, 365 NLRB No. 80 fn.1 (2017).
Chairman Miscimarra disagrees with the judge and his colleagues
that the Respondent violated the Act when it sent employees emails on
May 7 and August 26, 2015, stating that if they felt they were being
harassed or intimidated, they should feel free to contact management.
Chairman Miscimarra recognizes that employees have the right to
engage in vigorous advocacy of their views—pro and con—regarding
union representation. However, harassment does not necessarily involve Sec. 7 activity; it may be based in part on sex, race, color, national origin, or other protected characteristics in violation of Title VII of
the Civil Rights Act of 1964 and/or state laws and local ordinances; and
employers are required to encourage reports of unlawful harassment
and to promptly investigate such reports. See, e.g., Faragher v. City of
Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth,
524 U.S. 742 (1998). Because compelling justifications support inviting employees to notify their employer if they feel they are being harassed, Chairman Miscimarra would dismiss the allegation that the
Respondent’s emails violated the Act. See Southern Bakeries, LLC,
364 NLRB No. 64, slip op. at 17–18 (2016) (Member Miscimarra,
concurring in part and dissenting in part).
We agree with our colleague that harassment need not necessarily
involve Sec. 7 activity, but the statements here, which were made during an initial union organizing campaign, plainly do. The Respondent
requested employees to report whether they felt harassed by employees
seeking to discuss unionization so that the Respondent “can address the
behavior with the individual involved.” The Board has long held that
such requests chill lawful solicitation because the overtly subjective
basis for reporting is overbroad and “such statements…indicate that the
employer intends to take unspecified action against subjectively offensive activity without regard for whether that activity was protected by
the Act.” Tawas Industries, Inc., 336 NLRB 318, 322 (2001). See also
Arkema, Inc., 357 NLRB 1248, 1250 (2011).
2 There were no exceptions to the judge’s dismissal of the allegation
that the Respondent violated Sec. 8(a)(1) by directing employees to
keep a disciplinary meeting confidential.
3 We shall amend the judge’s remedy to require the Respondent to
read the remedial notice to its employees. We shall modify the judge’s
recommended Order to conform to our findings and to the Board’s
standard remedial language. We shall also substitute a new notice to
conform to the Order as modified.
4 The provisions are as follows:
Clinical Excellence

Respects confidentiality and privacy at all times, including
coworkers, adhering to the Social Networking Policy.
People

Utilizes proper channels to express dissatisfaction with policies
and administrative or supervisory actions and without fear of retaliation.

 2

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

The General Counsel also contends that the two Customer Service rules in the Nursing Code of Conduct—
requiring employees to “interact[] with others in a considerate, patient, and courteous manner” and to be “honest, truthful, and respectful at all times”—are unlawful
on the basis that the Respondent applied them to restrict
the exercise of Section 7 rights. Id. We agree. The Respondent applied its Customer Service rules in a manner
that restricted Marshall’s protected activities by citing
those rules as the basis for the verbal warning issued to
Marshall on or about July 10, 2015. The Respondent
applied these rules to Marshall again when it demoted
her from team leader and charge nurse to staff nurse on
or about August 31, 2015, because the Respondent indicated that Marshall was required to follow those rules in
interactions with other staff, not just customers.5 Specifically, in the demotion meeting, the Respondent’s interim
ICU director Sandra Beasley referenced Marshall’s insufficiently “customer service friendly” greeting to
Beasley as part of the reason for demoting Marshall, and
Beasley also listed “[r]espond to internal and external
customer needs promptly and professionally” among
Marshall’s duties as a staff nurse. This reference by the
Respondent to customer service requirements demonstrates that the Respondent relied on the Customer Service provisions in its Nursing Code of Conduct to demote Marshall, even though it did not explicitly cite
them. See Hitachi Capital America Corp., 361 NLRB
123, 125 (2014) (although discipline did not expressly
cite the challenged rule, respondent’s characterization of
Community

Inappropriate and disruptive communications/behaviors include
but are not limited to:
Displays behavior that would be considered by others to be
intimidating, disrespectful or dismissive.
Criticizes coworkers or other staff in the presence of others in
the workplace or in the presence of patients.
Customer Service

Interacts with others in a considerate, patient, and courteous
manner.

Is honest, truthful, and respectful at all times.
The Respondent cited its Customer Service rules when it issued
Marshall a verbal warning on July 10 in response to Marshall’s protected union activity. Therefore, Chairman Miscimarra agrees that the
Respondent violated Sec. 8(a)(1) by applying its Customer Service
rules “to restrict the exercise of Section 7 rights.” Lutheran Heritage,
343 NLRB at 647. Chairman Miscimarra finds it unnecessary to reach
or pass on whether the Respondent applied its Customer Service rules a
second time when it demoted Marshall on August 31 because finding a
second instance of the same violation has no effect on the remedy.
5

the employee’s conduct made clear that the discipline
was grounded in the rule).6
AMENDED REMEDY
We adopt the judge’s recommended remedies,7 and in
accordance with our finding that the Respondent applied
certain Customer Service provisions in its Nursing Code
of Conduct to restrict the exercise of Section 7 rights, we
shall order the Respondent to rescind or revise these provisions, notify employees of the rescissions, and republish its Nursing Code of Conduct without the unlawful
rules.8 In addition, we find merit in the General Counsel’s exception to the judge’s failure to recommend that
the notice be read aloud to employees by a responsible
management official. Specifically, we observe that the
Respondent’s managers repeatedly targeted the staunchest union supporter and most visible organizer for discipline in retaliation for her protected activities. In these
circumstances, we find that a public reading of our remedial notice is appropriate “to dissipate as much as possible any lingering effects of the Respondent’s unfair labor
practices,” and to allow the employees to “fully perceive
that the Respondent and its managers are bound by the
requirements of the Act.” Homer D. Bronson Co., 349
NLRB 512, 515 (2007) (and cited cases), enfd. mem. 273
Fed. Appx. 32 (2d Cir. 2008). Therefore, we will require
the Respondent to convene a meeting or meetings at
6 Member Pearce would further find that all the disciplinary actions
the Respondent took against Marshall, including the suspension, written
warning, demotion, and negative evaluation, were in retaliation for
engaging in protected concerted activity. He specifically finds that the
activity for which Marshall was suspended arose out of her protected
concerted activity of advocating for increased staffing and was, therefore, protected by the Act. Although the judge found it unnecessary to
pass on this independent violation of Sec. 8(a)(1), he provided a thorough analysis of the issue at the conclusion of Sec. G1 of his decision
with which Member Pearce agrees.
7 Because we have severed the allegations that the Respondent violated Sec. 8(a)(1) by maintaining certain provisions in its Nursing Code
of Conduct on the basis that employees would reasonably construe
those provisions to prohibit Sec. 7 activity, the remedy requiring the
Respondent to revise or rescind unlawful rules applies only to its Customer Service provisions, the maintenance of which we have found
unlawful on the basis that the Respondent applied those rules to restrict
the exercise of Sec. 7 rights.
8 Chairman Miscimarra would not require the Respondent to rescind
its Customer Service rules. The Board has severed and retained for
further consideration the allegation that employees would reasonably
construe certain rules, including the Customer Service rules, to prohibit
Sec. 7 activity, and the Board has found only that the Respondent violated Sec. 8(a)(1) by applying its Customer Service rules to restrict the
exercise of Sec. 7 rights. In other words, the Board has not found that
these rules are unlawful on their face, but only as applied. Accordingly, Chairman Miscimarra would not order the Respondent to rescind its
Customer Service rules, but to cease and desist from applying those
rules to restrict the exercise of Sec. 7 rights. See, e.g., Piedmont Gardens, 360 NLRB 813, 813 fn. 4 (2014).

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

which the remedial notice shall be read aloud to the Respondent’s employees by a responsible management official in the presence of a Board agent (if the Region so
desires) or, at the Respondent’s option, by a Board agent
in the presence of a responsible management official.9
ORDER
The Respondent, Cayuga Medical Center at Ithaca,
Inc., Ithaca, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Applying rules, including the following rules in its
Nursing Code of Conduct, to restrict employees’ Section
7 activity:
Customer Service
Interacts with others in a considerate, patient, and courteous manner.
Is honest, truthful, and respectful at all times.
(b) Soliciting employees to report coworkers or file a
complaint against them if they feel they are being harassed or intimidated or if they feel they continue to be
harassed.
(c) Directing employees to cease distributing union
literature.
(d) Informing employees that it is inappropriate for
them to discuss their salaries and/or wages.
(e) Interrogating employees about union activities.
(f) Threatening employees with reprisals if they do not
cease union activities.
(g) Discriminatorily prohibiting employees from distributing and posting union literature, or from distributing union literature in non-patient care areas on nonworking time, including by removing and/or confiscating
posted or distributed union literature.
(h) Threatening employees with unspecified reprisals
and job loss in retaliation for employees’ protected concerted activities.
(i) Disciplining employees for engaging in protected
concerted activities.
(j) Discriminatorily disciplining or demoting or issuing an adverse performance evaluation to any employees
9 Chairman Miscimarra disagrees with his colleagues that a noticereading remedy is warranted in this case. The Board has recognized
that this remedy is warranted “where the violations are so numerous
and serious that the reading aloud of a notice is considered necessary to
enable employees to exercise their Section 7 rights in an atmosphere
free of coercion, or where the violations in a case are egregious.” Postal Service, 339 NLRB 1162, 1163 (2003). Here, Chairman Miscimarra
agrees with the judge’s finding that the Respondent’s unfair labor practices, although serious, are not so egregious as to warrant the extraordinary remedy of notice reading.

3

in retaliation for union or other protected concerted activities.
(k) 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.
(a) Rescind or revise the following provisions of the
Nursing Code of Conduct, notify employees that the provisions have been rescinded, and republish the Code of
Conduct without the following rules:
Customer Service
Interacts with others in a considerate, patient, and courteous manner.
Is honest, truthful, and respectful at all times.
(b) Rescind the unlawful disciplinary warnings issued
to Scott Marsland and Anne Marshall.
(c) Within 14 days from the date of this Order, correct
the adverse performance evaluation issued to Anne Marshall for 2015 by removing the negative assessment for
the criterion “Demonstrates a sense of right and wrong
by exhibiting honest, ethical behavior,” and by removing
the one-point reduction for 2015 and reissuing the evaluation with a point score of 4.73. Within 3 days thereafter, notify Anne Marshall that this was done by providing
her a copy of the corrected performance evaluation.
(d) Within 14 days from the date of this Order, offer
Anne Marshall full reinstatement to her job as charge
nurse and team leader or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
her seniority or any other rights or privileges previously
enjoyed.
(e) Make Anne Marshall whole for any loss of earnings and other benefits suffered as a result of her unlawful suspension and/or her unlawful demotion in the manner set forth in the remedy section of the judge’s decision.
(f) Compensate Anne Marshall for the adverse tax
consequences, if any, of receiving a lump sum backpay
award, and file with the Regional Director for Region 3,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar
year.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form,

 4

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days from the date of this Order, remove from its files any reference to the unlawful warnings given to Anne Marshall and Scott Marsland, and to
the unlawful suspension, demotion, and adverse 2015
evaluation given to Anne Marshall, and within 3 days
thereafter, notify them in writing that this has been done
and that the warnings, suspension, demotion, and adverse
evaluation will not be used against them in any way.
(i) Within 14 days after service by the Region, post at
its facility in Ithaca, New York, copies of the attached
notice marked “Appendix.”10 Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily posted. In addition to physical posting of paper
notices, notices in each language deemed appropriate
shall 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. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice in each appropriate language to all
current employees and former employees employed by
the Respondent at any time since May 7, 2015.
(j) Within 14 days after service by the Region, hold a
meeting or meetings during working hours, which shall
be scheduled to ensure the widest possible attendance, at
which the attached notice marked “Appendix” is to be
read to employees by a responsible management official
in the presence of a Board agent and an agent of the Union if the Region or the Union so desires, or, at the Respondent’s option, by a Board agent in the presence of a
responsible management official and, if the Union so
desires, of an agent of the Union.
(k) Within 21 days after service by the Region, file
with the Regional Director for Region 3 a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
10 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."

IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. December 16, 2017
______________________________________
Philip A. Miscimarra,
Chairman
______________________________________
Mark Gaston Pearce,
Member
______________________________________
Lauren McFerran,
Member
(SEAL)

NATIONAL LABOR RELATIONS BOARD
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 apply our rules, including the rules in
the Nursing Code of Conduct, to restrict you from exercising the rights set forth above.
WE WILL NOT solicit you to report or file a complaint
against coworkers if you feel you are being harassed or
intimidated or if you feel that you continue to be harassed.
WE WILL NOT direct you to cease distributing union literature.
WE WILL NOT inform you that it is inappropriate to discuss your salaries and/or wages.

 5

CAYUGA MEDICAL CENTER AT ITHACA, INC.

WE WILL NOT interrogate you about your union activities.
WE WILL NOT threaten you with reprisals if you do not
cease your union activities.
WE WILL NOT discriminatorily prohibit you from distributing and posting union literature, or from distributing union literature in non-patient care areas on nonworking time, and WE WILL NOT remove or confiscate
posted or distributed union literature.
WE WILL NOT threaten you with unspecified reprisals
and job loss in retaliation for your participation in protected concerted activities.
WE WILL NOT discipline you for engaging in protected
concerted activities.
WE WILL NOT discipline or demote or issue you an adverse performance evaluation in retaliation for your union or other protected concerted activities.
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 or revise the following rules in the
Nursing Code of Conduct and republish the Code of
Conduct without the following rules:
Customer Service
Interacts with others in a considerate, patient, and courteous manner.
Is honest, truthful, and respectful at all times.
WE WILL rescind the unlawful disciplinary warnings
issued to Scott Marsland and Anne Marshall.
WE WILL, within 14 days from the date of the Board’s
Order, correct the adverse performance evaluation issued
to Anne Marshall for 2015, and WE WILL, within 3 days
thereafter, notify her this was done by providing her with
a copy of the corrected performance evaluation.
WE WILL, within 14 days from the date of the Board’s
Order, offer Anne Marshall full reinstatement to her jobs
as Charge Nurse and Team Leader or, if those jobs no
longer exist, to substantially equivalent positions, without prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL make Anne Marshall whole for any for any
loss of earnings and other benefits suffered as a result of
her unlawful suspension and/or her unlawful demotion.
WE
WILL
compensate Anne
Marshall
for
the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and WE WILL file with the Regional Director for Region 3, within 21 days of the date
the amount of backpay is fixed, either by agreement or

Board order, a report allocating the backpay award to the
appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful warnings given to Anne Marshall and Scott Marsland,
and to the unlawful suspension, demotion, and adverse
2015 evaluation given to Anne Marshall, and WE WILL,
within 3 days thereafter, notify them in writing that this
has been done and that the warnings, suspension, demotion, and adverse evaluation will not be used against
them in any way.
CAYUGA MEDICAL CENTER AT ITHACA

The Board’s decision can be found at
www.nlrb.gov/case/03-CA-156375 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.

Jessica L. Noto, Esq. (NLRB Region 3), of Buffalo, New York,
for the General Counsel.
Raymond J. Pascucci, Esq. (Bond, Schoeneck & King, PLLC),
of Syracuse, New York, for the Respondent.
DECISION
INTRODUCTION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. These
cases involve unfair labor practices allegedly committed by
managers and administrators of a community hospital in Ithaca,
New York, during a union organizing campaign by the nursing
staff. The government alleges an assortment of unlawful
threats, directives, and prohibitions on union activities. In addition, the government alleges that one employee received an
unlawful disciplinary warning, and another was targeted over
the course of several months for her union activity and received
an unlawful suspension, disciplinary warning, demotion, and an
adverse performance evaluation.
As discussed herein, for the most part, I agree with the government that the employer violated the Act, as alleged, although, as discussed below, I dismiss a few of the allegations,
and do not need to reach theories of violation advanced by the
government that would not materially affect the remedy. In
particular, it is clear to me that the hospital, while permitting a
significant amount of union activity—which the law requires it
to do—took issue with the activism of certain of its nurses. In

 6

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

particular, the hospital’s conflicts with the protected and concerted and union activities of Nurse Anne Marshall led to a
very real and generalized decline in the relationship between
Marshall and the Hospital. Not all of the managerial conflict
with Marshall was motivated by antiunion animus. However,
the net result of her union activity and her protected and concerted efforts to challenge the hospital on staffing issues was an
employer that engaged in unlawfully motivated and discriminatory targeting of her, which led directly to the adverse actions
taken against her by the hospital. Finally, I note that although
the unfair labor practices engaged in by the hospital were serious, I reject the government’s contention that extraordinary
remedies are warranted, and find that the Board’s traditional
remedies will just as effectively redress the breaches of law
found herein.

Counsel for the General Counsel and the Respondent filed
post-trial briefs in support of their positions by July 12, 2016.
On the entire record, I make the following findings, conclusions of law, and recommendations.

STATEMENT OF THE CASE

A. Introduction

On July 21 2015, 1199 SEIU United Healthcare Workers
East (Union) filed an unfair labor practice charge alleging violations of the National Labor Relations Act (Act) by Cayuga
Medical Center at Ithaca Inc. (the Hospital or CMC) docketed
by Region 3 of the National Labor Relations Board (Board) as
Case 09–CA–156375. On September 3, 2015, the Union filed
another unfair labor practice charge docketed by the Region as
Case 03–CA–159354, amended on November 30, 2015. Additional charges were filed October 28, 2015, docketed as Case
03–CA–162848, on December 1, 2015, docketed as Case 03–
CA–165167, and on January 7, 2016, docketed as Case 03–
CA–167194.
Based on an investigation into these charges, on February 26,
2016, the Board’s General Counsel, by the Regional Director
for Region 3 of the Board, issued an order consolidating these
cases, and a consolidated complaint and notice of hearing alleging that the Hospital had violated the Act. On March 11, 2016,
the Hospital filed an answer denying all alleged violations of
the Act.
A trial in these cases was conducted on May 2–6, and 24,
2016, in Ithaca, New York. At trial, counsel for the General
Counsel moved to amend the complaint, and this motion was
granted. See, Tr. 9–16.1

CMC is a community hospital located in Ithaca, New York.
It has been in operation since the late 1800s. The hospital employs approximately 1350 employees, including approximately
350 nurses. The Hospital’s CEO is John Rudd. Susan Nohelty
was the vice president of patient care services until she retired
in September 2015. (Throughout this decision, all dates are
2015 unless otherwise stated.) Linda Crumb is the assistant
vice president for patient services. She reported to Nohelty.
Crumb supervised many of the nursing department heads. Alan
Pedersen is the vice president for human resources. He reports
to Rudd.

1 These amendments were the subject, on April 27 and 29, 2016, of
two separate notices of intention to amend the complaint at trial served
by counsel for the General Counsel. Only the April 27 notice was
included in the formal papers (GC Exh. 1(r)). The later April 29 notice
is hereby received into the record as ALJ Exh. 2. Both notices were the
basis for the motion to amend the complaint that was granted at trial.
The notices provide for a clearer record of the amendments than the
oral modification read into the record at trial. Throughout this decision,
references to the complaint are to the extant and most recent consolidated complaint, as amended.
I note that the transcript in this matter is rife with misspellings, unusual capitalizations, and other errors. In some cases where I quote from
the transcript I make corrections without notation. This is done for the
convenience of the reader who does not need to know, for instance, that
a simple noun was erroneously capitalized in the transcript for no reason related to the witness’ testimony. In some instances I use bracketing to correct simple grammatical errors that may have been made by
the witness, but in many cases I am sure were not.

JURISDICTION
CMC is and at all material times has been an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and is and has been a health care institution
within the meaning of Section (2)(14) of the Act. At all material times, the Union has been a labor organization within the
meaning of Section 2(5) of the Act. Based on the foregoing, I
find that this dispute affects commerce and that the Board has
jurisdiction of this case, pursuant to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES

B. Complaint paragraph VI (the challenged nursing
code of conduct rules)
Since approximately 2010 or 2011, the Hospital has maintained a three-page nursing code of conduct (COC). The COC
was developed by a group of staff nurses chosen for an internal
“Nurses Practice Council.” By its terms, the COC sets forth
“[e]xpected and acceptable communications/ behaviors” for
nursing staff. The COC states that its purpose is “[a]wareness
and non-acceptance of disruptive behaviors among healthcare
workers help to promote safety and wellbeing of both patients
and staff.” Its various “rules” (approximately 25) are set forth
under headings: “Clinical Excellence,” “Customer Service,”
“People,” Financial Integrity,” and “Community.” The full
COC is found at General Counsel’s Exhibit 3. It is posted in
the Hospital, available to employees on the Hospital intranet,
and relied upon for disciplinary matters.
The General Counsel challenges the maintenance of the following portions of the COC (under each bolded heading):
Clinical Excellence
Respects confidentiality and privacy at all times, including
coworkers, adhering to the Social Networking Policy.
Customer Service
Interacts with others in a considerate, patient and courteous
manner.

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

Is honest, truthful, and respectful at all times.
People
Utilizes proper channels to express dissatisfaction with policies and administrative or supervisory actions and without
fear of retaliation.
Community
Inappropriate and disruptive communications/behaviors include but are not limited to:
Displays behavior that would be considered by others to
be intimidating, disrespectful or dismissive.
Criticizes coworkers or other staff in the presence of others in
the workplace or in the presence of patients.
Analysis
The General Counsel alleges that the maintenance of the
foregoing policies or rules, since April 28, 2015, violate Section 8(a)(1) of the Act.2
“In determining whether a work rule violates Section 8(a)(1),
the appropriate inquiry is whether the rule would reasonably
tend to chill employees in the exercise of their Section 7
rights.” Hyundai America Shipping Agency, 357 NLRB 860,
861 (2011), enfd. in relevant part, 805 F.3d 309 (D.C. Cir.
2015); Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd.
203 F.3d 52 (D.C. Cir. 1999). “Where the rules are likely to
have a chilling effect on Section 7 rights, the Board may conclude that their maintenance is an unfair labor practice, even
absent evidence of enforcement." Lafayette Park Hotel, supra;
see generally Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 853 (1970) ("By definition, an
overbroad statute covers privileged activity, and to the extent
that the statutory burden operates as a disincentive to action the
result is an in terrorem effect on conduct within the protection
of the first amendment”).
The General Counsel concedes that the COC rules at issue
do not explicitly restrict Section 7 rights. Thus, a “violation is
dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section
7 activity; (2) the rule was promulgated in response to union
activity; or (3) the rule has been applied to restrict the exercise
of Section 7 rights." Lutheran Heritage Village-Livonia, 343
NLRB 646, 647 (2004).
Essentially, the General Counsel confines his argument (GC
Br. at 27–30) to the first of these scenarios—the contention that
the challenged COC rules are unlawful because “employees
2 April 28, 2015, is the date six months before the filing of the unfair labor practice charge over the maintenance of unlawful rules in
Case No. 03–CA–162848. Thus, maintenance of any unlawful provisions of the COC as of April 28, 2015, constitutes a continuing violation of the Act, regardless of when the rules were first promulgated.
Adriana’s Insurance Services, Inc., 364 NLRB No. 17, slip op. at 2 fn.
3 (2016).

7

would reasonably construe the language to prohibit Section 7
activity.”3
In considering whether “employees would reasonably construe the [rule’s] language to prohibit Section 7 activity,” the
Board follows certain guidelines that are pertinent here. “An
employer rule is unlawfully overbroad when employees would
reasonably interpret it to encompass protected activities.” Triple Play Sports Bar, 361 NLRB No. 31, slip op. at 7 (2014),
affd., 629 Fed. Appx. 33 (2d Cir. 2015). The Board has explained that “as in 8(a)(1) cases generally, our task is to determine how a reasonable employee would interpret the action or
statement of her employer, and such a determination appropriately takes account of the surrounding circumstances.” Roomstore, 357 NLRB 1690, 1690 fn. 3 (2011) (citation omitted).
“[I]n determining whether a challenged rule is unlawful, the
Board must . . . give the rule a reasonable reading. It must
refrain from reading particular phrases in isolation, and it must
not presume improper interference with employee rights.”
Lutheran Heritage, supra at 646, citing Lafayette Park Hotel,
326 NLRB at 827.
Notably, Board precedent is clear that the test is whether a
rule reasonably would be construed as abridging Section 7 activity. Not whether it “can” or “could” be so construed.
Conagra Foods, 361 NLRB No. 113, slip op. at 3–4 fn. 11
(2014), enfd. in relevant part, 813 F.3d 1079 (8th Cir. 2016);
Lutheran Heritage, 343 NLRB at 647 (“Where, as here, the rule
does not refer to Section 7 activity, we will not conclude that a
reasonable employee would read the rule to apply to such activity simply because the rule could be interpreted that way”)
(Board’s emphasis); but see, Cintas Corp. v. NLRB, 482 F.3d
463, 467 fn. 1 (D.C. Cir. 2007). (“Although in some settings a
critical difference might exist between ‘could’ and ‘would,’
there is no such difference here between the phrases ‘could
reasonably’ and ‘would reasonably.’ Both preclude possible,
but unreasonable, interpretations of company rules” . . . . We
find slippage between ‘would’ and ‘could’ inconsequential here
given the Board’s use of the modifier ‘reasonably’”) (court’s
emphasis).
Finally, I note that I agree with the General Counsel that the
COC must be considered to be terms and conditions of employment, setting forth rules on a variety of situations that arise
in the work context. Contrary to the suggestion of the Respondent, it is far more than a general recitation of ethical or
professional standards. Notwithstanding that some of the COC
standards are stated in aspirational terms, CMC managers at the
hearing confirmed that the COC sets forth mandatory rules and
that nurses can be disciplined for noncompliance. Indeed, here
the COC played a role in the sanctioning of employee conduct
that is alleged to constitute a violation of the Act, as discussed
below. These undisputed facts undercut the suggestion that the
3 In a one-sentence reference, the General Counsel argues that the
unlawfulness of the rule against “displays” of “intimidating, disrespectful or dismissive” behavior is “highlighted when applied to discipline
an employee for discussing a protected issue with management.” (GC
Br. at 30.) However, given my finding that the rule is unlawful on its
face, it is unnecessary to consider its application in assessing the unlawfulness of this rule.

 8

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

rules are without force. To the contrary, “[c]ritically, the
[COC] informs employees of rules and policies that govern the
day-to-day handling of their work duties and may subject them
to disciplinary action for noncompliance.” Fresh & Easy
Neighborhood Market, 361 NLRB No. 8, slip op at 2 (2014).4
Turning to the specific portions of the COC challenged by
the General Counsel, the General Counsel contends that the
following rule is unlawfully overbroad:
Clinical Excellence
Respects confidentiality and privacy at all times, including
coworkers, adhering to the Social Networking Policy.
The General Counsel argues that this demand that employees
respect “confidentiality and privacy at all times, including
coworkers” is unlawfully overbroad “because it fails to provide
any context for what confidentiality employees need to be
maintain.” (GC Br. at 27–28.) I disagree.
There is not, to be sure, a list explaining and clarifying the
subjects to which this relates—but the rule is one (of only
three) that is part of and relates to “clinical excellence”—the
heading under which the rule appears. Moreover, other rules in
the section unobjectionably require knowing and following
“applicable policies and procedures,” “continued personal and
professional growth,” and “respect[ing] patient’s rights and
dignity with compassion.” While I agree that employees could,
as the General Counsel argues, read the requirement to respect
the privacy and confidentiality of coworkers in the clinical
setting as including certain wages and working conditions, I do
not believe that to be a reasonably likely scenario. In the context of clinical excellence, compassionate respect for patients’
rights and dignity, and professional and personal growth, more
reasonably at issue are the private, intimate, at times life-anddeath, legally5 and by common sense, confidential undertakings
that are the focus of the clinical process. Obviously, the inclusion of “coworkers” in the rule animates the General Counsel’s
concern, but I think its context as part of a concern for “clinical
excellence” serves to distinguish this rule from FlamingoHilton Laughlin, 330 NLRB 287, 288 fn. 3 (1999), cited by the
General Counsel.6 Also close, but distinguishable I believe, is
4 I note that even rules that are phrased as nonmandatory may have
a reasonable tendency to chill protected and concerted activity. See
Radisson Plaza Minneapolis, 307 NLRB 94 (1992), enfd. 987 F.2d
1376 (8th Cir. 1993) (Board rejects judge's conclusion that provision in
handbook was lawful because the rule "was not mandatory," finding
that rule must be assessed based "on the reasonable tendency of such a
prohibition to coerce employees in the exercise of fundamental rights
protected by the Act"). See also, Heck's, Inc., 293 NLRB 1111, 1119
(1989) (rule "requesting" that employees not discuss wages was unlawful).
5 See, the privacy provisions of the Health Insurance Portability and
Accountability Act (HIPAA), 42 U.S.C. § 1320d–6 and its implementing regulations at 45 C.F.R. Part 160 and Subparts A and E of Part 164.
6 In Flamingo-Hilton Laughlin, 330 NLRB 287, 288 fn. 3, 291–292
(1999), the Board found unlawful a rule that stated that “Employees
will not reveal confidential information regarding our customers, fellow
employees, or Hotel business.” That rule, it is to be noted was part of a
rule against disclosure that stated that the Hotel “considers all infor-

the Board’s decision in Cintas Corp, 344 NLRB 943, 943
(2005), where the Board found unlawful a rule’s “unqualified
prohibition of the release of ‘any information’ regarding” its
employees), enfd. 482 F.3d 463 (2007).
Here, the prohibition, not only the context of “clinical excellence,” but also the wording, is steps removed from a direct
proscription on the release of “any information” or even any
“confidential information” as in Flamingo-Hilton Laughlin,
supra or Cintas, supra. Rather, the requirement is the less
pointed admonition that the “confidentiality” and “privacy” of
coworkers be respected. In my view, the wording of the rule is
significantly less likely to be construed by employees as prohibiting concerted activity, focusing as it does on the personal
privacy and confidentiality of others, in a setting where such
concerns, entirely unrelated to Section 7, are real. I will dismiss this allegation of the complaint.
The next challenged set of rules is composed of the two underlined portions of the following customer service rules (underlining added for emphasis):
Customer Service
Interacts with others in a considerate, patient and courteous
manner. Demonstrates a caring and positive attitude: smiles,
greets and acknowledges others, make eye-contact, says
please and thank you. Gives recognition and praise.
Actively listens to the perspective of others and seek to resolve conflicts promptly, Apologizes when mistakes are made
or misunderstandings have occurred.
Is honest, truthful, and respectful at all times.
Holds self and others accountable to the Cayuga Medical
Center (CMC) mission, vision and values, meeting their own
expectations.
In the section of the COC devoted to “Customer Service,” set
forth above, the General Counsel contends that the underlined
portions of the COC are unlawful. Were they reasonably likely
to be read as directed to employees interactions with management or with other employees, or even to nonemployees, unrelated to servicing patients, I would agree. But these rules sit
squarely within a section of the COC devoted to “customer
service.” In particular, the first allegedly unlawful sentence is
part of an otherwise unchallenged paragraph that makes clear—
at least reasonably so—that the paragraph seeks courtesy, consideration, and patience in nurses’ dealings with patients and
their families. (“Demonstrates a caring and positive attitude:
smiles, greets and acknowledges others, make eye-contact, says
please and thank you. Gives recognition and praise.”)
The fact that “[t]hat a rule is intended to promote patient care
does not mean that it is not overbroad, or that it cannot be applied—perhaps in the name of patient care—to punish employmation not previously disclosed to outside parties by official Hotel
channels to be proprietary,” and reasonably, not to be disclosed.

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

ees’ protected activity.” William Beaumont Hospital, 363
NLRB No. 162, slip op. at 2, fn. 8 (2016). Further, employees
have a presumptive section 7 right to appeal to nonemployees,
including patients, in nonpatient care areas.7
However, the provisions at issue here would reasonably be
understood by employees as being directed to dealings with
patients in the furnishing of “customer” i.e., patient “service”,
not Section 7 activity. Moreover, while the Act has long condemned rules that penalize employees for making merely
"false" statements (as opposed to maliciously untrue statements) (Casino San Pablo, 361 NLRB No. 148, slip op. at 4
(2014); Heartland Catfish Co., 358 NLRB 1117, 1117 fn. 3
(2012); Lafayette Park Hotel, 326 NLRB at 828), on grounds
that such rules will be reasonably likely to chill free discussion
about protected and concerted activities, there is no protected
right to engage in “customer service” in a less than truthful,
respectful, or honest manner. In any event, the issue here is
whether a rule directed to “customer service” that requires
truthfulness, respect, and honesty would reasonably be read as
restricting communications with patients that are protected by
the Act. I believe that, at most, the Respondent’s rule “could”
be read that way, but, reasonably, it would not be. The rules
here would reasonably be understood as relating to the furnishing of “customer service” i.e., patient care.8
People
Utilizes proper channels to express dissatisfaction with policies and administrative or supervisory actions and without
fear of retaliation.
The General Counsel alleges that the above-stated rule violates the Act. I agree. The rule concerns “people”—which in
CMC nomenclature mean employees and managers (Tr. 471).
The directive is to use “proper channels to express dissatisfaction.” However, it is axiomatic that Section 7 protects employee efforts to "improve terms and conditions of employment or
7 "Employees have a statutorily protected right to solicit sympathy,
if not support, from the general public, customers,” and others. NCR
Corp., 313 NLRB 574, 576 (1993). This includes patients (in nonpatient care areas and absent a showing that a ban is necessary to avoid
disruption of patient care). The Carney Hospital, 350 NLRB 627, 643–
644 (2007).
8 I recognize that a version of the two cited rules (“Interacts with
others in a considerate, patient and courteous manner” and “Is honest,
truthful, and respectful at all times) were cited in a verbal warning
issued to Marshall, and discussed below. The application of rules to
penalize protected and concerted activity is a factor militating in favor
of finding the rules unlawfully overbroad. However, I do not find that
in this case the reference to these rules in Marshall’s warning letter
serves to render the maintenance of these rules unlawful. For the reasons stated, the rules, in context, are lawful. As discussed below, the
verbal warning was unlawful quite apart from the rules, and had nothing to do with “customer service.” In my view, the rules were deployed
pretextually in this instance, as part of a campaign against Marshall. I
decline to find that citing to them in that one instance renders their
maintenance as part of an employee’s “customer service” obligations
unlawful.

9

otherwise improve their lot as employees through channels
outside the immediate employee-employer relationship." Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978); Trinity Protection
Services, 357 NLRB 1382, 1383 (2011) (“the Board has held
that employees' concerted communications regarding matters
affecting their employment with their employer's customers or
with other third parties, such as governmental agencies, are
protected by Section 7 and, with some exceptions not applicable here, cannot lawfully be banned”).
A rule limiting employees to “proper channels” is unlawful,
as it would reasonably be construed to prohibit many informal
channels of communication, which employees are entitled to
avail themselves of—the existence of such a rule suggests that
employees availing themselves of these outside channels of
communication would be frowned upon. These include communication with the press, customers, patients, or the government. I find that this rule is unlawfully overbroad in violation
of the Act.
Community
Inappropriate and disruptive communications/behaviors include but are not limited to:
Displays behavior that would be considered by others to be
intimidating, disrespectful or dismissive.
Criticizes coworkers or other staff in the presence of others in
the workplace or in the presence of patients.
These rules violated the Act, as alleged by the General
Counsel. The barring of displays of behavior that would be
considered intimidating, disrespectful or dismissive would reasonably be read as requiring that Section 7 activity be conducted in a manner considered—“by others”—as respectful, nondismissive, and nonintimidating. However, the protections of
the Act are more robust than that. As the Board explained in
Casino San Pablo, 361 NLRB No. 148, slip op. at 3 (2014),
considering a rule barring “insubordination or other disrespectful conduct,”
In the typical workplace, where traditional managerial prerogatives and supervisory hierarchies are maintained, employees
would reasonably understand this phrase as encompassing
any form of Section 7 activity that might be deemed insufficiently deferential to a person in authority—in other words, as
referring to something less than actual insubordination. For
example, the act of concertedly objecting to working conditions imposed by a supervisor, collectively complaining about
a supervisor's arbitrary conduct, or jointly challenging an unlawful pay scheme—all core Section 7 activities—would reasonably be viewed by employees as "disrespectful" in and of
themselves, regardless of their manner and means, and thus as
violating the rule. See First Transit, Inc., 360 NLRB No. 72,
slip op. at 2–3 (2014); 2 Sisters Food Group, 357 NLRB No.
168, slip op at 2 (2011); Claremont Resort & Spa, [344
NLRB 832,] 832 and fn. 4 (finding unlawful a rule prohibiting "negative conversations about associates and/or managers"). There is no shortage of Board cases where protected

 10

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

concerted activity was perceived by managers, supervisors,
and security personnel as an affront to their authority and
dealt with accordingly. See, e.g., Hawaii Tribune-Herald,
356 NLRB No. 63, slip op. at 20 (2011); Noble Metal Processing, Inc., 346 NLRB 795, 800 (2006).
Thus, the first rule under Community challenged by the General Counsel is unlawful.9
For much the same reasons, the second rule, prohibiting criticism of coworkers or other staff in the presence of others in the
workplace or in the presence of patients is also unlawfully
overbroad.
The Supreme Court has long recognized that "the right of
employees to self-organize and bargain collectively established
by § 7 of the [Act] necessarily encompasses the right effectively to communicate with one another regarding self-organization
at the jobsite." Beth Israel Hospital v. NLRB, 437 U.S. 483,
491 (1978). This is because the workplace “’is the one place
where [employees] clearly share common interests and where
they traditionally seek to persuade fellow workers in matters
affecting their union organizational life and other matters related to their status as employees.'" Eastex v. NLRB, 437 U.S.
556, 574 (1978) (court's parenthetical), quoting Gale Products,
142 NLRB 1246, 1249 (1963). The Board too recognizes “the
centrality of employees' right to communicate with their fellow
employees at their workplace on their own time and the ‘particularly appropriate’ nature of the workplace for exercising that
right.” St. John’s Health Center, 357 NLRB 2078, 2081
(2011).
Thus, rules restraining robust discussions between employees, including—and essentially so—negative or critical discussions with one another at work, are not permitted. William
Beaumont Hospital, 363 NLRB No. 162, slip op. at 2 (2016)
(rule unlawful insofar as it prohibits "negative or disparaging
comments about the . . . professional capabilities of an employee or physician to employees, physicians, patients, or visitors").
See, The Dalton School, 364 NLRB No. 18, slip op. at 1 (2016)
(“We reject the notion that professional colleagues, discussing
collective action among themselves, can be disciplined or discharged merely for criticizing management in sharp and une9 Had the prohibition been limited to “intimidating” and similar
conduct, the result would likely be different. Palms Hotel & Casino,
344 NLRB 1363 (2005) (rule lawful that prohibits employees from
engaging in “conduct which is or has the effect of being injurious,
offensive, threatening, intimidating, coercing, or interfering with” other
employees or patrons). But even then, the subjective phrasing—
prohibiting conduct that others subjectively found offensive—might
still leave the prohibition unlawfully likely to chill Section 7 activity, as
“[t]he Board has long held that legitimate managerial concerns to prevent harassment do not justify policies that discourage the free exercise
of Section 7 rights by subjecting employees to investigation and possible discipline on the basis of the subjective reactions of others to their
protected activity.” Consolidated Diesel Co., 332 NLRB 1019, 1020
(2000), enfd. 263 F.3d 345, 354 (4th Cir. 2001) (“There would be nothing left of § 7 rights if every time employees exercised them in a way
that was somehow offensive to someone, they were subject to coercive
proceedings. . . Such a wholly subjective notion of harassment is unknown to the Act.”).

quivocal terms”); Claremont Resort & Spa, 344 NLRB 832,
832 (2005) ("We find that the rule's prohibition of 'negative
conversations' about managers would reasonably be construed
by employees to bar them from discussing with their coworkers
complaints about their managers that affect working conditions,
thereby causing employees to refrain from engaging in protected activities. Accordingly, the rule is unlawful under the principles set forth in Lutheran Heritage Village-Livonia"); 2 Sisters Food Group, 357 NLRB 1816, 1817 (2011) (finding requirement that employees "work harmoniously" "sufficiently
imprecise" that it could reasonably prohibit "any disagreement
or conflict among employees," including protected discussions); Hill & Dales General Hospital, 360 NLRB No. 70, slip
op. at 1 (2014) (rule prohibiting "negative comments about our
fellow team members" is unlawfully overbroad); Beverly
Health & Rehabilitation Services, 332 NLRB 347, 348 (2000)
(rule prohibiting "negative conversations about associates
and/or managers" found unlawful), enfd. 297 F.3d 468 (6th Cir.
2002).
A flat ban on criticizing employees or management in the
presence of others would reasonably—indeed, one could say,
unavoidably—be read as striking at the essence of the Act and
its protections. “The Act designs a system where . . . it is necessary that discussion among employees and attempts to persuade
be robust and vigorous.” Blue Chip Casino, 341 NLRB 548,
555 (2004). Ill feelings, strong responses, criticism and dialogue are baked into the Act—the right to criticize is elemental,
even when it engenders ill feelings and passionate responses.
Consumer Power Co., 282 NLRB 130, 132 (1986) ("The protections Section 7 afford would be meaningless were we not to
take into account the realities of industrial life and the fact that
disputes over wages, hours, and working conditions are among
the disputes most likely to engender ill feelings and strong responses").
The Respondent’s ban on criticism “in front of others” is
clearly unlawful.10
C. Complaint Paragraph VII
1. VII(a), and (c) (solicitation of employee complaints)
In March 2015, the hospital’s management learned of union
literature distributions at the facility. By May, the Hospital was
actively responding to the union campaign. Beginning May 7,
through November 6, 2015, in response to the commencement
of the union campaign, Alan Pedersen, VP of Human Resources for the Hospital, issued a series of email/letters to all
350 members of the nursing staff, directed to their work email
accounts. (However, the evidence suggests that the first correspondence, dated May 7, was distributed to nurses on May 8, in
person in one-on-one meetings that managers conducted with
nursing staff.) There are nine such email/letters included in the
record. They are fairly characterized as devoted to providing
10 As discussed below, this rule was also applied to discipline protected and concerted activity. This is also a factor for finding the
maintenance of a rule unlawful. Lutheran Heritage, 343 NLRB 646,
647 (2004). However, I need not rely on that grounds as maintenance
of this rule is unlawful on its face, without regard to its application.

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

information and argument to employees against unionization.
In his May 7 letter Pedersen included a bullet point that stated:
If you feel you are being harassed or intimidated feel free to
contact your supervisor, director or security.
His August 26 email included the following:
If you feel that you continue to be harassed you have every
right to file a complaint in our incident reporting system, and
notify your Director so that we can address the behavior with
the individual involved.
Analysis
Because of the potential for chilling lawful union activity,
the Board finds it unlawful for an employer to invite employees
to inform it of protected, albeit unwanted, authorization card
solicitation by other employees. When an invitation to report
unwelcome union solicitation is phrased over broadly, it will be
found unlawful on this rationale. As referenced above, Section
7 activity may be robust—but still protected. The problem the
Board is policing is the chilling effect when employers solicit
employees to report coworkers for conduct in terms so vague as
to invite reports concerning vigorous, insistent, nevertheless
legally-protected union solicitations.
For instance, in Bloomington-Normal Seating Co., 339
NLRB 191, 191 fn. 2 (2003), the Board found unlawfully overbroad a production manager’s speech to employees that included prompting to tell the employer if they were “threatened or
harassed about signing a union card.”
In Niblock Excavating, Inc., 337 NLRB 53, 61 (2001), the
Board found a violation where the employer’s letter asked employees to tell their foreman “if you feel threatened or harassed.” The Board pointed out that such letters are held unlawful because they “encourage[e] employees to report to Respondent the identify of union card solicitors who in any way
approach them in a manner subjectively offensive to the solicited employees, and of correspondently discouraging card solicitors in their protected organizational activities.” Id. See,
Greenfield Die & Mfg. Corp., 327 NLRB 237, 238 (1998)
(“The Board has held that employers violate Section 8(a)(1) of
the Act when they invite their employees to report instances of
fellow employees' bothering, pressuring, abusing, or harassing
them with union solicitations and imply that such conduct will
be punished. It has reasoned that such announcements from the
employer are calculated to chill even legitimate union solicitations, which do not lose their protection simply because a solicited employee rejects them and feels "bothered" or "harassed"
or "abused" when fellow workers seek to persuade him or her
about the benefits of unionization”) (footnote omitted).
The May 7 and August 26 appeals to employees fall squarely
within the types of entreaties prohibited by this precedent, a
conclusion only compounded by the overtly subjective basis for
reporting a card solicitor (“If you feel you are being harassed or
intimidated”; “If you feel that you continue to be harassed”).
Tawas Industries, Inc., 336 NLRB 318, 322 (2001) (“such

11

statements also indicate that the employer intends to take unspecified action against subjectively offensive activity without
regard for whether that activity was protected by the Act”);
Arkema, Inc., 357 NLRB 1248, 1250 (2011) (the letter also
invokes the subjective reactions of employees by inviting them
to report conduct simply if they "feel" they have been harassed”).
I note further that the May 7 solicitation was prefaced with
the warning (three bullet points previously) that “You will at
some point be asked or more likely pressured to sign a union
authorization card. . . . . You have the right to ask them to
leave you alone and not bother you.” The allegedly offending
statement immediately followed the latter sentence. The August 26 solicitation is a response to a “question” that Pedersen’s
letter posited was asked: “I feel like I am being harassed and
pressured to sign a card, what can I do?” The answer included
the assertion that “You have the absolute right to tell the person
you are not interested and you wish to be left alone.” The suggestion that employees should equate a feeling of “harassment
and intimidation” with being “bother[ed] or “pressured” to sign
a card, and the assertion that you have the right “to be left
alone” increases the likelihood that employees will understand
the employer to be requesting employees to report others for
card solicitation activity that is protected by the Act. J.P. Stevens & Co., 244 NLRB 407, 425 (1979) (invitation to report
union solicitation unlawful as it sought reports not just of
threats but of “pressure”); enfd. 668 F.2d 767 (4th Cir. 1982).
Accord, Lutheran Hospital of Milwaukee, 224 NLRB 176
(1976), enfd. in relevant part 564 F.2d 208 (7th Cir. 1977);
Poloron Products of Mississippi, Inc., 217 NLRB 704 (1975)
(employer unlawfully sought to have employees report union
solicitation if union solicitors “won’t leave you alone”).11
The distinctions drawn by the Board in this area can seem fine, but the cases relied upon by the Respondent are easily distinguishable. The Respondent cites Ithaca Industries, 275
NLRB 1121, 1126 (1985), where it was found lawful for an
employer to tell employees that they should report coworkers
who "threaten or intimidate" them while soliciting cards. However, in Ithaca Industries, unlike here, the solicitation to report
did not extend to those who merely, subjectively “felt” intimidated. Moreover, the solicitation to report employees in Ithaca
Industries extended also to those who were “threatened”—a
formulation found lawful by the Board (see, Liberty House
Nursing Homes, 245 NLRB 1194 (1979)), while here the solicitations also extended to those who felt “harassed,” a formula11 It is notable that Pedersen testified—and the Respondent specifically but erroneously relies on it as justification for telling employees
they can report card solicitors—that “a number of people felt as though
they were being pressed to sign a card” (R. Br. at 5). It is clearly unlawful for employers to tell employees they can report people for making them feel “pressed.” See, J.P. Stevens, supra. Pedersen also testified that he had been told that some employees had complained to their
department directors that “they had been subject to bullying or intimidation.” However, this wording does not appear in Pedersen’s solicitation to report union activity and is not at issue. I note that there is no
documentary, email, or any other contemporaneous evidence of such
complaints.

 12

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

tion that has been categorically rejected as overbroad by Board
precedent.
The Respondent also cites First Student, Inc., 341 NLRB
136 (2004). There, the Board found lawful the employer’s
invitation to report solicitation that involved “confrontation,”
and “force,” or “intimidation,” reasoning that the “request to
report conduct that consists of both confrontation and compulsion or confrontation and intimidation is no more than a request
to report threatening conduct, which . . . the Board has found
lawful.” 341 NLRB at 137. As discussed above, in the instant
case, the sole use of the word “intimidate” is linked to “harass”—a word regularly found overbroad in this context—and
that is further broadened by the subjectivity of the entreaty (“if
you feel you are being harassed or intimidated”). Moreover,
the entire instruction is a response to claims that employees are
“likely [to be] pressured to sign a union authorization card”
although having “the right to ask them to leave you alone.” As
discussed above, in the careful assessment of wording that the
Board engages in when considering such claims, each of these
distinguishing factors separates the instant case from the situation in First Student, supra.
Finally, the Respondent argues (R. Br. at 6) that the solicitations to report employees were neutral—covering solicitations
“by persons favoring the Union and/or by persons opposing the
Union.” In fact, this is not the case—both the May 7 and the
August 26 solicitations to report other employees is about how
employees can avoid someone who is seeking to have them
sign a union card—but, in any event, the Board has rejected this
argument, finding it “immaterial.” Tawas Industries, Inc., 336
NLRB 318, 322–323 2001).12
For all of the above reasons, I find that the May 7 and August 26 solicitations to report coworkers to the employer unlawful under controlling Board precedent.
2. Complaint paragraph VII(b)
(directive to cease distributing union literature in the cafeteria)
On or about July 8, ICU charge nurse and team leader Ann
Marshall sat at a table just inside the hospital cafeteria entrance
and set out union materials to solicit and distribute to employees. Marshall had been active and open in her support for the
union prior to this, but this was the first time she had attempted
to “table” in the cafeteria. Marshall had been there for about 20
minutes when Vice President for Human Resources Pedersen,
who had been in the cafeteria eating, walked by and approached
Marshall. Pedersen had been eating with and was accompanied
by Hospital CEO John Rudd and another member of hospital’s
management.13 Pedersen saw Marshall sitting there with all her
12 The Respondent also stresses that some of its correspondence
contained statements recognizing employees’ right to advocate in favor
of the union (as well as against it). The presence of lawful statements
does not mitigate the impact of an unlawful solicitation requesting that
employees report the protected activities of other employees to management. See, e.g., Liberty House Nursing Homes, 245 NLRB at 1197
(finding both lawful and unlawful invitations to report coworkers' activities).
13 Marshall said it was Tony Votaw, Vice President of Information.
Pedersen testified that it was Vice President of Public Relations John

union materials. The three approached Marshall and Pedersen
told Marshall she should not be sitting in the cafeteria with her
materials. He said, “Gee, Anne, you shouldn’t really be doing
that here.” Marshall testified credibly that she was told she was
not allowed to be “in there with my information and that I had
to leave.” Marshall responded by picking up her materials and
leaving. Pedersen testified that this was the first time he had
seen any employees “tabling” for the Union in the cafeteria.
The next day or the day after (July 9 or 10), Pedersen saw
emergency room nurses Scott Marsland and Aaron Bell in the
cafeteria with two tables pulled together and union material
spread out on the tables. Pedersen was upset and told
Marsland, “Scott you can’t do this. You can’t set up a table
here in the cafeteria. You can’t set up a fixed base. You’re
going to have to leave.” According to Marsland, he and Pedersen went back and forth, with Marsland arguing that “it’s within our federal rights to do this.” After a few minutes, Pedersen
left, but returned in approximately five minutes and spoke to
Bell and Marsland. Pedersen told them: “so the situation is
you're not allowed to set up a fixed presence in the cafeteria.
You can, if you want to talk and solicit and have conversations
with people, you can do that. You are not allowed to do this.”
Marsland told Pedersen that “we checked with our union representatives. Our understanding is this is . . . a federally protected activity.” At one point, Pedersen said, “So I’ll have security
come and take this away then.” Bell protested: “They certainly
can’t take our possessions.” Marsland said, “that [it] sounds
like a clarification of law that maybe we need.” Pedersen reiterated his position that “You don’t have the authority to set up
a fixed solicitation within the cafeteria or fixed distribution.”
Pedersen left. Marsland remained for about an hour and continued to table. No one attempted to stop him. Pedersen testified that he did not call security, and by all evidence, he did
not.
After these two incidents, and after talking to counsel, neither Pedersen nor anyone else in the hospital ever challenged
employees’ “tabling,” i.e., distributing union literature from a
table in the cafeteria. However, neither Pedersen nor anyone
else from management made an announcement to employees or
otherwise affirmatively told employees that they were permitted to “table” in the cafeteria. The tabling continued sporadically, but repeatedly over the course of the next few months
into December 2015.
Analysis
In the context of a hospital, the Board presumes that prohibitions against employee solicitation and distribution during
nonworking time in nonworking areas such as a hospital cafeteria are unlawful infringements on protected employee rights,
where the "facility has not justified the prohibitions as necessary to avoid disruption of health-care operations or disturbance
of patients." NLRB v. Baptist Hospital, Inc., 442 U.S. 773,
779–791 (1979), citing Beth Israel Hospital v. NLRB, 437 U.S.
483 (1978); The Carney Hospital, 350 NLRB 627, 643–644
(2007). The burden is on the employer to show that the banning
Turner. Neither Votaw nor Turner testified. It is an immaterial conflict.

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

of activity is necessary to avoid disruption of health care operations or disturbance of patients.
Here, the Respondent has not shown, indeed, does not contend, that a prohibition on the tabling engaged in by Marshall,
Marsland, and Bell, would be justified in this case. Clearly, by
all evidence, the Respondent’s employees had a protected right
to solicit and distribute in the cafeteria during nonworking time.
Pedersen’s directive to Marshall on July 8, and to Bell and
Marsland on July 9 or 10, are violative of Section 8(a)(1) of the
Act.
The Respondent’s defenses are without merit. The fact that
Marsland (and assumedly Bell), did not leave the cafeteria as
directed to by Pedersen is no defense. Neither is the fact that
Marsland, Marshall, and other employees, subsequently tabled
in the cafeteria without incident many times after the events of
July 8 and July 9 or 10. It is also of no consequence that, as
suggested by the testimony, Pedersen had a good faith but mistaken belief that he was entitled to prohibit the tabling in the
cafeteria at the time he confronted Marshall and then Marsland
and Bell. It is well-settled that in evaluating the remarks, the
Board does not consider either the motivation behind the remarks or their actual effect. Miller Electric Pump & Plumbing,
334 NLRB 824, 825 (2001); Joy Recovery Technology Corp.,
320 NLRB 356, 365 (1995), enfd. 134 F.3d 1307 (7th Cir.
1998). Rather, “the basic test for evaluating whether there has
been a violation of Section 8(a)(1) is an objective test, i.e.,
whether the conduct in question would reasonably have a tendency to interfere with, restrain, or coerce employees in the
exercise of their Section 7 rights, and not a subjective test having to do with whether the employee in question was actually
intimidated." Multi-Ad Services, 331 NLRB 1226, 1227–1228
(2000) (Board’s emphasis), enfd. 255 F.3d 363 (7th Cir. 2001).
Here, a top management official—in one case, in the company of the CEO of the employer—confronted employees and
directed them that they were not permitted to engage in union
solicitation and distribution from a fixed place in the cafeteria.
In one instance he even threatened to have security remove the
materials. That the reasonable tendency of such directives is to
coerce employees is beyond legitimate cavil.
Moreover, contrary to the Respondent’s contention, these violations are not remedied in any way by the Respondent’s failure to interfere with future exercise of rights in the cafeteria by
these and other employees. The mere future abiding of employee rights is wholly inadequate to relieve oneself of liability
for unlawful conduct. That would requires affirmative repudiation of the unlawful conduct in the manner prescribed in Passavant Memorial Area Hospital, 237 NLRB 138 (1978). Here,
there has been no affirmative repudiation of these unfair labor
practices, much less in a manner consistent with or even approximating that prescribed in Passavant, supra. Finally, I reject the contention that these violations are de minimis. The
principles at stake are significant. These employees had a right
protected by federal law to solicit for the union and distribute
literature. These rights were abridged on July 8 and on July 9
or 10, in straightforward fashion. It is far from inconsequential
that thereafter employees participated in cafeteria solicitation
and distribution in the shadow of the unremedied and unlawful
directives from July 8–10. These directives violate Section

13

8(a)(1) of the Act.14
3. Complaint paragraph VII(d)
(informing employees that it is inappropriate to discuss their
salaries and/or wages)
The General Counsel alleges that the Respondent, by Pedersen, informed employees that it was inappropriate to discuss
their salaries and/or wages and to refrain from doing so.
Nurse Marshall testified credibly that sometime between the
Fall of 2015 and early Winter 2016, Pedersen walked by a
group of approximately five nurses (including Marshall) who
were standing at the nurses’ station in the ICU talking about
employees’ wage rates and told them what they were talking
about was “inappropriate.” Pedersen testified that while there
is not a policy prohibiting employees from discussing their pay
rates and salaries with one another, “[w]e encourage individuals
not to do that.” As to the specific incident testified to by Marshall, Pedersen testified that he does “not recall that conversation,” and added that he “round[s] through the hospital on a
weekly basis and interact[s] with staff on a weekly basis.”
Pedersen testified extensively for the Respondent. As a general matter, I found him to be a credible witness, willing to
admit what he remembered, as he remembered it, willing to
correct counsel’s paraphrase or characterization if he thought it
not accurate. In this instance he testified that he did not recall
this (or any similar) conversation. Both in terms of the literal
meaning and in terms of the impression that his demeanor made
on me, I believe that he was saying that he could not recall it,
but was unwilling to state that it did not happen.15 This is not
surprising. He talks to staff weekly and this informal and brief
encounter would have held no significance or importance for
him. However, it would have been more significant for the
nurses involved to have been told by a top management official
that the subject of their conversation was “inappropriate.”
Moreover, Pedersen admitted “It’s a generally accepted practice” that employees are not to discuss their salary information
because it is confidential, and the Hospital “encourage[s] individuals not to” have the very type of conversation alleged, thus
increasingly the likelihood that, although he doesn’t recall offering this encouragement, it happened. Based on this, and the
credible and consistent demeanor with which Marshall testified
to this event, I credit her testimony.16
14 Having found that the employees had an unrebutted presumptive
right to solicit and distribute union materials in the cafeteria during
nonworking time, I do not reach the suggestion of the General Counsel—or the arguments of the Respondent—regarding the issue of
whether Pedersen’s directives constituted a discriminatory application
of a ban on cafeteria solicitation or distribution. See, St. Margaret
Mercy Healthcare Centers, 350 NLRB 203, 203 (2007), enfd. 519 F.3d
373 (7th Cir. 2008).
15 Asked “Would you ever have a conversation like that,” Pedersen
maintained his answer, responding “Not that I can recall I’ve ever done
that.” I accept that Pedersen does not remember this incident.
16 I have considered the fact that no other nurse—for instance one of
the others involved in the conversation—was called to testify about this
event. However, I do not find that of significance here, and indeed, it
cuts both ways: either party could have attempted to find corroborating
witnesses for their position. Marshall’s testified credibly and satisfactorily as to the incident.

 14

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Analysis
The directive is violative of the Act. See Triana Industries,
245 NLRB 1258, 1258 (1979) (unlawful to tell employees
"[n]ot to go around asking the other employees how much they
were making, because some of them were making more than
others."); see, Parexel Int’l, LLC, 356 NLRB 516, 518 (2011)
(“our precedents provide that restrictions on wage discussions
are violations of Section 8(a)(1)”); Coosa Valley Convalescent
Center, 224 NLRB 1288, 1289 (1976). Further, it does not
matter whether the directive is embodied in a "rule the breach
of which would imply sanctions." Triana, supra (overruling
ALJ who found directive not to discuss other employees' pay
lawful because it did not rise to the level of a "rule"). See also,
W.R. Grace Co., 240 NLRB 813, 816 fn. 6 (1979) ("as a supervisor's 'request' or expression of 'preference' that an employee
comply with a policy of confidentiality nevertheless implies
that employees run the risk of supervisory displeasure and possible adverse consequences for noncompliance to a degree sufficient to constitute interference, restraint, and coercion under
the Act").
Accordingly, I find that Pedersen’s statement to the nurses
that their discussion, which was about their wages, was “inappropriate,” was a violation of the Act.17
D. Complaint paragraph VIII
1. Complaint paragraph VIII(a) and (b) (interrogation and
threat in the one-on-one meeting)
Norman Joel Brown was the interim director of the hospital’s
ICU department from approximately the second week of April
2015, through mid-July 2015. Brown replaced the longtime
ICU director, Sean Newvine, who left in April 2015.
Brown’s tenure at the Hospital was rocky. In particular, he
blamed Nurse Anne Marshall for the Hospital’s failure to renew
his three-month contract as interim director. Brown described
an excellent relationship with Marshall in his first weeks at the
Hospital. He testified that Marshall was “very welcoming,”
“[v]ery collaborative, very collegial,” and she “had been there
for quite a while and knew everybody, knew the lay of the land,
per se, and I was able to glean some of that information from
her.”
However, this changed, “drastically” according to
Brown. “It became adversarial . . . . it just wasn’t a good relationship any longer.”
Brown dated the change to the time in early June when a
sexual harassment charge was filed against him with the New
York State Human Rights Division. The charge stemmed iniThe General Counsel also argues on brief that the Hospital unlawfully maintained (and enforced) an unlawful rule or policy that prohibited employees from discussing pay with each other. Evidence was
offered in support of this claim, and there is testimony denying it as
well. The matter is unalleged in the complaint, and no amendment to
allege this was offered. No argument is offered as to it being closely
connected to the pled allegations and fully litigated, and the matter is
arguable, but far from certain, in my view. Consequently, I decline to
consider this unpled contention. However, much of the evidence relied
upon for this unpled claim may be—and is here—relevant to the alleged unfair labor practice concerning complaint paragraph 7(d).
17

tially from a “team leading” video that Brown showed the ICU
staff during a staff meeting on or about April 23, just after his
arrival as interim director.
The video was created by a friend of Brown’s that Brown
met when they were in the military together. Brown identified
the creator of the video by “code name” Sargent Grouchy.
Brown testified that “I can’t divulge his true name because he’s
still in the service.”
The video consisted of a variety of military combat and other
rescue missions by different branches of the Armed Forces.
The soundtrack was a song written and performed by Marilyn
Manson, the controversial singer and songwriter. The song was
the Marilyn Manson song “This is the New Shit.” Brown
agreed that the song has “colorful” language:
Yes, sir, the word ‘bitch’ is used throughout it. The word
‘sex’ is used throughout it. And the word ‘shit’ is used
throughout it.18
The video presentation was not well-received by many of the
nurses. Within a couple of weeks, Marshall approached Brown
and told him that “certain individuals were offended by the
video and I should apologize.” Marshall told Brown that “there
were individuals in the audience that were offended, including
a combat veteran and several members of the female staff.”
Nurse Marsland sent an email to the hospital’s “leadership
team,” alerting management about the video that Brown had
shown the staff. (Brown claims that Marsland sent the leadership team the lyrics from the wrong Marilyn Manson song.)
Soon thereafter, Brown was notified that as a result of his
showing of the video, a sexual harassment complaint had been
lodged against him both internally within the hospital’s grievance system and then externally with the NY State Human
Rights Division. Brown understood (although it is unclear
from the record when he knew this) that Marshall had filed the
NY State Human Rights complaint.19
Brown felt that after Marshall complained that staff members
took offense to his video presentation, the situation with him
and Marshall, and on the floor in general, began to change.
After the sexual harassment complaint was filed employees
distanced themselves from him. According to Brown, “I had
basically been made an ineffective leader.”
In any event, along with this background, the union drive at
the facility began in earnest shortly after and coincidental to
Brown’s arrival at the Hospital. He was aware of the union
drive about two weeks after he arrived, around the same time
that he showed the video in the staff meeting. As discussed
18“This is the New Shit” is a single from Marilyn Manson’s 2003 album “The Golden Age of Grotesque.” The song includes lyrics such as
“sex, sex, sex, and don’t forget the violence” and “Are you motherfuckers ready for the new shit?” The full lyrics of the song are available on line. See, e.g., http://www.metrolyrics.com/this-is-the-new-shitlyrics-marilyn-manson.html
19 There is the suggestion in the record that the sexual harassment
claim ultimately concerned not only the showing of the video but more
personal accusations by Marshall against Brown on or about May 8, in
a meeting between the two that is also the subject of an unfair labor
practice allegation described below. Brown denied any wrongdoing.
Both Brown and Marshall agreed that the State claims were determined
to be unfounded by the Human Rights Division.

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

above, on May 7, Hospital HR VP Pedersen initiated the communication campaign to nurses. In addition to the May 7 letter,
managers who were part of the “leadership team” at the Hospital were provided “talking points” about unions and the unionization process to discuss with the nursing staff. The managers
were instructed to provide each nurse a copy of the May 7 letter
and to meet with each nurse individually.
On or about May 8, Brown met with each ICU nurse in a
one-on-one meeting to discuss the talking points and the union
drive. Marshall testified that Brown asked her to go into his
office. Suspecting that the meeting was about the union, Marshall and another nurse asked Brown if they could meet together, but Brown said he was going to meet with the nurses, one at
a time. The first member of the ICU staff that Brown met with
was Marshall.
According to Brown, his meeting with Marshall was uneventful. He gave her the May 7 letter, she read over it. He
asked if there were any questions. She asked if he had ever
been through a unionization or had worked at a union facility,
to which Brown answered yes. According to Brown it was
during this meeting that Marshall told Brown that he might
want to apologize for the video that he had shown in his initial
staff meeting.
Marshall gives a different account of the meeting. Marshall
testified that Brown “told me that he knew I was the ring leader
and I was the one promoting all this union stuff, and if it didn’t
stop he was going to get HR involved.” Marshall testified that
“I said this is something that I can’t discuss with you, and I got
up and walked out.” Brown denied saying anything like this.
In addition to Marshall’s testimony, ICU nurse Terrie Ellis
testified that in her individual meeting with Brown he asked her
if she “knew about the union campaign.” Brown asked her if
“she had been approached about it at work.” Brown asked Ellis
if she “had felt pressured or bullied about the Union in any
way.” He told Ellis, “The Union is not what you think that it is.
It’s a business. They’re here to make money, just like every
other business.” According to Ellis, Brown
said, “if we actively try to bring the Union in that it would tie
the hospital’s hands and they would not be able to fix problems,
hire additional staff, etc.” and “words to the effect that the Hospital had to be very careful about looking like they were trying
to keep the Union out.” Ellis testified that at the end of the
meeting Brown asked her not to discuss the meeting with the
other employees as he wanted “to talk to them when they were
unbiased.”20
I credit Ellis’ account. Brown testified that he did not recall
asking Ellis any questions about the Union in the meeting but
did not otherwise contradict her testimony. He suggested that
in all of the one-on-one meetings, he handed the employee the
May 7 Pedersen letter and asked employees if they had questions—he did not testify to asking any specific questions about
union activities of the nurses. I credit Ellis, who testified in a
highly credible manner.
20 On cross-examination, Ellis agreed that she testified that she did
not remember the exact wording that Brown used in his statements and
questions at the meeting, but she reaffirmed on cross-examination the
substance of her direct testimony.

15

Moreover, I also credit Marshall’s account of her one-on-one
meeting with Brown. Marshall also testified with credible demeanor, but I am cognizant that the record is clear that neither
is a fan of the other, and each might be thought to have reasons
to testify adversely to the other. But in assessing their credibility, in addition to demeanor, I note that I was not impressed
with Brown’s insistence that he was indifferent to unionization
at CMC, did not take a position on the matter, and that he had
no stake in the outcome. This testimony, an effort to buttress
his credibility, failed in that purpose as it is highly misleading.
It is inconsistent with the aggressive, repeated, and what can
only be called enthusiastic manner in which he admitted, and
which the record shows, that he removed posted union literature. He described removing union flyers as many as four
times a day from posted places and from the break room and
bringing them to the HR department. He also admitted in his
sworn pretrial affidavit that “I had my Department Team take
the flyers down that were posted in the department and give
them to me.”21
Brown’s email correspondence with other management personnel, and other management emails in the record, demonstrate that in May and June, Brown set about, with enthusiasm,
removing Marshall’s postings and monitoring her activities.
Indeed, by June 2, Pedersen was seeking “specifics” on Marshall, to which Brown responded with a note that included the
complaint that “While on shift and in a leadership position she
continues to post, call and have conversations about unionization.” Contrary to Brown’s testimony, the union activities of
Marshall and the employees appeared to be of great interest and
concern to Brown (and other managers). I discredit his testimony to the contrary, and it does influence my decision to credit Marshall’s version of what happened in their one-on-one
meeting, as does my crediting of Ellis, which only increases the
likelihood that, contrary to his claims, Brown engaged in questioning about union activities with Marshall, as alleged.22
21 This is a nonhearsay admission pursuant to Federal Rule of Evidence 801(d)(2). Brown first denied on cross-examination that he
asked his employees to take down the union flyers. However, I credit
his sworn pretrial statement that “I had my Department Team take the
flyers down that were posted in the department and give them to me.“
On redirect, the witness was led to deny that this means that he instructed his staff to take the posters down but, instead, meant that it was
just “something that had taken place.” I discredit that fantastic characterization of Brown’s statement, which was the product of leading
questioning. (Tr. 1054.)
22 I specifically reject the Respondent’s assertion that Marshall’s account should be discredited because, as the Respondent puts it, Marshall “has a history of distorting and/or falsifying information involving
Mr. Brown to support her own personal agenda.” (R. Br. at 14.) The
sole record basis for this characterization is the fact that, as testified to
by Marshall and Brown, the New York Human Rights Division found
the sexual harassment charges filed by Marshall “unfounded.” The
mere rejection of the charges by the State of New York hardly provides
evidence of distortion or falsification of information, much less that the
matter has been undertaken in pursuit of a personal agenda. It is a
remarkable characterization to base on the mere fact that a charge was
found “unfounded,” particularly when the record demonstrates that the
initial charge was prompted by Brown’s (admitted) screening for ICU

 16

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Analysis
The General Counsel argues (GC Br. at 34) that Brown’s
statements to Marshall in the one-on-one meeting about being
the union “ringleader,” and threatening to bring in HR if she
did not cease her union activities, constitute an unlawful interrogation and threat of reprisal.
While the assertion by Brown that “he knew” Marshall was
“the ring leader” and “the one promoting all this union stuff”
might also be understood as providing an unlawful impression
of surveillance of union activity, the nature of the statement
would reasonably be understood as an interrogation, an opportunity for Marshall to confirm or deny her role as a “promoter”
of the union activity in the Hospital. Of course, not every interrogation is unlawful. Whether the questioning constitutes an
unlawful coercive interrogation must be considered under all
the circumstances and there are no particular factors “to be
mechanically applied in each case.” Rossmore House, 269
NLRB 1176, 1178 fn. 20 (1984), enfd. 760 F.2d 1006 (9th Cir.
1985); Westwood Health Care Center, 330 NLRB 935, 939
(2000). However, in general it is unlawful for an employer to
inquire as to the union sentiments of employees. President
Riverboard Casinos of Missouri, 329 NLRB 77 (1999).
In this case, considering all the circumstances, the unlawful
nature of the statement is hard to deny. Marshall’s interlocutor
was the department head, the conversation took place outside
the regular routines of work, it was a formal one-on-one meeting, in the department head’s office, and the request to have
another employee present was denied. Moreover, the incident
also involved a second comment, almost in the same breath, in
which Brown made an unvarnished threat of retaliation to
“bring in HR” if Marshall did not cease her union activity.”
Thus, the “ring leader” comment was part and parcel of a threat
of retaliation against Marshall if she did not cease her union
activities. I find that both comments are unlawful as alleged in
the complaint.23
employees of the combat training video set to the music and lyrics of
“This is the New Shit” by Marilyn Manson.
If this attack on Marshall came from Brown’s mouth—it did not—it
would at least, while still unsupportable, perhaps be understandable as a
personal response to having one’s conduct called into question. But as
an employer’s explanation for a dismissed charge of sexual harassment,
it speaks volumes about the animus towards Marshall. It certainly
would be reasonably likely to intimidate any future employee considering whether to file a sexual harassment charge against this employer.
The Marilyn Manson-scripted video was directed to the entire ICU
nursing staff, and Marshall had discussions with a number of nurses
concerned about it. The filing of the sexual harassment charge over the
showing of this video to nursing staff was clearly protected and concerted activity under the Act. See, Fresh & Easy Neighborhood Market, 361 NLRB No. 12, slip op. at 4–5 (2014). I do not reach the issue
of whether the attack in the Respondent’s brief on Marshall for filing
the sexual harassment charge constitutes affirmative evidence of animus toward Marshall’s protected and concerted activity.
23 I note that the Respondent confines its defense on these allegations of the complaint to the claim, which I have rejected above, that
the comments were not made by Brown. I further note that the General
Counsel does not argue that Brown’s comments to Ellis were unlawful
and, hence, I do not consider the matter.

2. Complaint paragraph VIII(c) (prohibiting the posting and
distributing of union literature)
The General Counsel alleges that from May until mid-July,
2015, the Respondent unlawfully prohibited employees from
distributing and posting union literature around the facility
while permitting employees to distribute and post other literature.
Employees supportive of the Union regularly posted prounion literature on hospital bulletin boards and left literature in
the break rooms. Pedersen agreed that employees have a right
to post nonhospital related material on the bulletin boards, a
matter which the Hospital does not dispute in these cases (Tr.
173, 179).
Notwithstanding, the evidence is clear that there was a concerted effort by the Respondent to remove union literature,
known to and encouraged by upper management. As Crumb
put it in two emails she sent on June 20: “They have the right to
put up and we have the right to take down.”
Brown agreed that he removed prounion postings many
times “over the course of many days,” sometimes four times a
day. He also took union flyers from the break room. After
removing prounion postings, Brown would turn them into the
HR office, thus, providing upper management with incontrovertible evidence of his conduct. In any event, based on
Crumb’s emails, and Pedersen’s testimony, upper hospital
management was aware of the efforts to remove the union postings.24 So were employees, who noticed that union literature
was removed from bulletin boards but information unrelated to
the union postings remained. Marshall witnessed a coworker,
PICC nurse Cynthia Sullivan—a nurse who had reveled in re24 GC Exh. 47 (June 1 email Brown to Pedersen, copied to “Leadership Team”: “I came in Saturday to do staffing calls and removed a ton
of Union material from the restroom again”); GC Exh. 45 (June 19
email from employee Cynthia Sullivan to Crumb and Brown, forwarded to Pedersen: “Must be I threw out enough of hers because now she’s
using hospital paper & green paper is in our copier right now”; Brown
followed up with an email at the top of the exhibit that makes clear that
Sullivan was referring to Marshall); GC 46 (June 19 email from employee Cynthia Sullivan to Brown, forwarded to Pedersen, on the subject of “union propaganda”: “it’s really annoying that Anne has to
spend her time hanging up union postings instead of doing her job as
the charge RN. . . . As fast as they are thrown away off the breakroom
table she puts out new ones”); See, e.g., GC Exh. 24 (June 20 email
from employee DiBartolo to Crumb telling her that she “walked
through [emergency department] 3 times took down union info all 3
times in break room—with one of the notes saying ‘It is illegal to remove union information from non-patient care areas” I am seeking your
further guidance”; Crumb responded, copying Hospital CEO Rudd and
Pedersen: “They have the right to put up and we have the right to take
down”); GC Exh. 22 (June 20, email from Crumb to House Supervisors, copied to Pedersen, regarding the subject “Union material” and
directing that “When you make your rounds please remove Union
material at time clocks and break rooms or anywhere else you find
them. Security has been instructed to do the same. They have the right
to put up and we have the right to take down”); GC Exh. 23 (October
12, 2015 email from the Hospital’s Chief Patient Safety Officer, forwarded to Pedersen: “You probably already know but just in case there
are SEIU newsletters posted at timeclocks. Polly grabbed what she
saw, I will check the other timeclocks”).

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

porting to Crumb and Brown how much of Marshall’s union
literature she had thrown out (GC Exh. 45 and 46)—take down
and throw out flyers from the break room. Moreover, Marshall’s unrebutted testimony was that just days before the hearing in this matter, the Respondent’s current ICU Director Patty
Florentino and a patient relations advocate, Jackie Barr, continued to remove union literature and to tell Marshall that she
could not post. (Tr. 265; 417).
Analysis
As discussed above, employees have the presumptive right
under the Act to distribute union literature in employee breakrooms. St. Margaret Mercy Healthcare Centers, 350 NLRB at
203; NLRB v. Baptist Hospital, Inc., 442 U.S. at 779–791.
Moreover, it is unlawful discrimination, without regard to the
employer’s motive, to prohibit the posting of union literature—
even in areas of the hospital where a ban on postings or distributions could lawfully be maintained—while permitting employees to post about nonunion activities. Honeywell, Inc., 262
NLRB 1402 (1982), enfd. 722 F.2d 405 (8th Cir. 1983); Container Corp. of America, 244 NLRB 318, 318 fn. 2 (1979),
enfd. 649 F.2d 1213 (6th Cir. 1981).
Here, the Hospital admits and does not contest that employees have a right to post nonhospital related material on the bulletin boards. “In these circumstances, an employer may not
remove union notices.” Wal-Mart Stores, 340 NLRB 703, 709
(2003); Container Corp. of America, 244 NLRB 318, 318 fn. 2
(1979), enfd. 649 F.2d 1213 (6th Cir. 1981).
The, Hospital is forbidden from discriminating against Section 7-related postings and distributions. And the evidence
demonstrates that this was precisely what the employer did.
The testimony and internal employer emails demonstrate that
the Hospital engaged in a concerted effort to remove prounion
postings. This included supervisor removing materials. Jimmy
John’s, 361 NLRB No. 27, slip op. at 24 (2014), 818 F.3d 397
(2016); Eaton Technologies, Inc., 322 NLRB 848, 854 (1997).
But also, in some instances, the encouragement of employees to
do the same (see , e.g., GC Exh. 24). See, Jimmy John’s, 361
NLRB No. 27, slip op. at 7–8 fn. 26.25
The Hospital’s defense (R. Br. at 15) on this issue is meritless. It points out that employees were permitted to post and
distribute union materials throughout the facility, as if, having
allowed employees to post, the Respondent’s campaign to remove the union material is not a denial of that right. In fact,
this did seem to be the Hospital’s view of the law, as articulated
by Crumb (“They have the right to put up and we have the right
to take down”) but it is obviously not a tenable position. Container Corp. of America, 244 NLRB at 318 fn. 2.
The discriminatory removal of the posted union materials violates the right to post protected by the Act in these circumstances, and is a discriminatory refusal to permit posting of
union literature.
25 I point out that the internal emails and the testimony refute the
suggestion of the Respondent that the union materials were only removed in nondiscriminatory fashion as part of a weekly removal of
dated items from the bulletin boards.

17

E. Complaint Paragraph XI
(threats of reprisal and job loss on Facebook postings)
The General Counsel alleges that certain Facebook posts
made by Hospital House Supervisor Florence Ogundele constitute unlawful threats of reprisal against employees in retaliation
for protected and/or union activities.
As a house supervisor, Ogundele is in charge of placing patients who have been admitted or are being transferred between
hospital departments. In this capacity she works with the various hospital department heads and charge nurses. She reports
to Linda Crumb, the Assistant Vice President of Patient Services. It is admitted that Ogundele is an agent and supervisor
of the Hospital within the meaning of the Act.
As discussed above, in June of 2015, a state sexual harassment charge was filed by Marshall regarding alleged actions by
Brown. A hearing in that matter was conducted on November
10, in Binghamton, New York. The afternoon of the hearing,
Nurse Marsland testified that he received a text from Nurse
Marshall, who was in Binghamton to be a witness in the hearing. Marsland testified that in the text, Marshall told him that
Ogundele had arrived at the hearing, in addition to Pedersen
and Crumb. Marsland posted the following on his Facebook
page on November 10:
Please send Anne Marshall your words of encouragement and
love. She is standing up for what is right, facing down Flo
Ogundele, Linda Crumb,Alan Pedersen and a nasty POC
lawyer representing CMC in a hearing with the NYS Human
Rights Commission right now. FB PM and text her.26
Ogundele was quite upset and “responded back” with the following Facebook post:
Just so you know Scott, I thought you have class am very surprised about your comments, well maybe am not. I am not
your enemy or anyone enemy but I will not compromise my
integrity to lie for anyone. To tell you the truth you don't
want to make me your enemy I can go from nice to a bitch in
20 second flat. You cannot bully me or intimidate me, you
want to fight let's do it face to face don't hide behind your wife
name. Maybe it is time to start telling people the real truth.
This is my advice for you, don't mess with me and tell your
disciples the same. I am not afraid of any one of you
Thereafter, the following day, under the tagline “feeling fed
up,” Ogundele posted the following:
So I was told to put my post down, that they understood my
concern and anger, well I did that in respect for my boss. I
have freedom of speech and not on company time I will say
what I feel like saying.
To my fellow CMC who is tired of all the bullshit going on at
26 Marsland uses the name “Charlie Green” as his screen name for
Facebook. The profile picture is of Marsland and there does not seem
to be any question but that all the relevant people involved in this issue
understood that Marsland “was” Charlie Green.”

 18

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

work and the people supporting them this is what I want to
say
I want you to look at the people who are sending you e mail,
sending letters to your home and calling you to join[ ] their
cause after you told them to leave you alone. I want you to
take a good look at them, you will see that if you follow any
one of them it will lead you to unemployment, these people
have nothing to lose. Now the only thing that make them relevant is bullying, intimidating and downright mean. They are
not happy unless there's drama going on everywhere.
They will not tell you the truth because that will be the right
thing to do, and their followers are like monkey see monkey
do. They don't have their own mind. So this people think
they are liked not knowing what has been saying behind their
back. I want you to take a look at their lives, I want you to
think of how they are making coming to work unbearable because their voice is so loud like an empty barrel that is rolling
down the street. I am not telling you not to give 2% of your
earning to them but you need to think about what that 2%
mean to your families. They’ve decided to attack[ ] me because I refused to compromise[ ] my dignity to lie for them.
When you decided to attack me you just opened a can of
worm that you [cannot] close. You pick the wrong qirl
Crumb testified that when she learned about the Ogundele’s
Facebook post—the first one—she immediately contacted
Ogundele and told her that it “wasn’t acceptable” and that “she
needed to take the posting down.” Ogundele was resistant, telling Crumb that “I was in my own home” and “I was being attacked, and I have the right to defend myself.” Crumb insisted
that the posting be removed and Ogundele told Crumb she
would do so immediately because Crumb “asked her to.”
When Ogundele returned to work, “a day or two later” she
was called to Crumb’s office and given a verbal warning by
Crumb for “posting inappropriate comments” with the expectation that there would be “no further postings of this nature.”
The discipline was for the first Facebook post. Crumb was
unaware of the second one. The disciplinary notice was dated
November 13, 2015, and signed by Ogundele November 18,
2015.27
27 I note that the record is not particularly clear as to when Ogundele’s posts were removed, or even, precisely when they were made.
However I conclude, as follows: Marsland testified credibly that his
post was made the day of the hearing, which he believed to be November 10. This is corroborated by the date on the Facebook post (GC Exh.
8). Marshall testified credibly that Ogundele’s first post was made the
day of the hearing (i.e., November 10) and the second post the day after
that hearing. This is consistent with Crumb’s testimony that she saw
the first Ogundele post, never saw the second, and called Ogundele and
told her to take down the first post. The second post suggests that the
first post has been or is being taken down, which, crediting Marshall,
means that the first post stayed up only a day. I note that Ogundele’s
testimony suggests that the first post was not taken down until after she
returned to work and met with Crumb, which could have been as much
as a week later, on November 18. But given Crumb’s testimony, I do
not credit Ogundele on this, and in addition, Ogundele’s testimony was
very confused on this subject. Ogundele also testified, with more certainty, that the second post remained posted for only two to four hours
before she took it down. I credit this, which is unrebutted, and in addi-

Analysis
The General Counsel alleges that the Ogundele’s Facebook
posts contained or constituted unlawful threats in violation of
Section 8(a)(1) of the Act.
The test to determine if a statement violates Section 8(a)(1)
is whether "under all the circumstances" the remark "reasonably tends to restrain, coerce, or interfere with the employee's
rights guaranteed under the Act." GM Electrics, 323 NLRB
125, 127 (1997). It is well-settled that in evaluating the remarks, the Board does not consider either the motivation behind the remarks or their actual effect. Miller Electric Pump &
Plumbing, 334 NLRB 824, 825 (2001); Joy Recovery Technology Corp., 320 NLRB 356, 365 (1995), enfd. 134 F.3d 1307
(7th Cir. 1998); GM Electrics, supra (The test "does not depend
on the motive or the successful effect of the coercion").
Moreover, when analyzing alleged unlawful statements the
Board "view[s] employer statements from the standpoint of
employees over whom the employer has a measure of economic
power." Mesker Door, 357 NLRB 591, 595 (2011) (internal
quotation and citation omitted); NLRB v. Gissel Packing Co.,
395 U.S. 575, 617 (1969) (in determining whether employer
pronouncements violate Section 8(a)(1), the assessment "must
be made in the context of its labor relations setting," and "must
take into account the economic dependence of the employees
on their employers, and the necessary tendency of the former,
because of that relationship, to pick up intended implications of
the latter that might be more readily dismissed by a more disinterested ear").
Here, to begin with, there can be no question but that
Marsland’s post seeking messages of support for Marshall was
protected and concerted activity under the Act.28
Ogundele, for her part, was clearly upset to have been mentioned or identified in Marsland’s post as being at the state
hearing. And contrary to the Respondent’s suggestion on brief,
her remarks were explicitly directed to Marsland and his “disciples.”29
tion, is consistent with a timeline that has Crumb calling Ogundele on
November 11, and having her take down the first post, which is consistent with Marshall’s testimony. It is plausible that Ogundele, who
was upset about the whole incident and only reluctantly took her first
post down at Crumb’s insistence, posted again, but then thought better
of it after 2 to 4 hours.
28 Fresh & Easy Neighborhood Market, 361 NLRB No. 12, slip op.
at 7 (2014) (employee engaged in protected and concerted activity by
seeking coworker support for sexual harassment charge). That
Marsland was seeking to rally employee support for another employees’ sexual harassment charge only intensifies—it does not detract
from—the concerted and hence protected nature of his activity. Contrary to the characterization of Marsland’s remarks by the Respondent
in its brief, there is nothing in Marsland’s comment that can reasonably
be understood as attacking Ogundele’s “integrity” (R. Br. at 17) or
making “defamatory statements toward her.” (R. Br. at 19.) And contrary to the contention in the Respondent’s brief, Marsland testified
credibly that this was his only post referencing Ogundele’s participation in the state hearing (Tr. 516–518).
29 Ogundele was clear in her testimony that she was responding to
Marsland and his post (Tr. 76, 78, 79, 748–749). She also, at times,
claimed that she was responding to comments beyond that shown in
GC Exhibit 7, including issues at work. See, e.g., Tr. 727, 730–731. It

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

Indeed, Ogundele opened her remarks by addressing (Scott)
Marsland and telling him that she was reacting to his post: “Just
so you know Scott, I thought you have class am very surprised
about your comments, well maybe am not.” She then continued with what can only be reasonably understood as some kind
of a warning to Marsland and those allied with him (his “disciples”):
To tell you the truth you don't want to make me your enemy I
can go from nice to a bitch in 20 second flat. You cannot bully me or intimidate me, you want to fight let's do it face to
face don't hide behind your wife name. Maybe it is time to
start telling people the real truth. This is my advice for you,
don't mess with me and tell your disciples the same. I am not
afraid of any one of you
This is a threat of unspecified reprisals. Although I assume
that the challenge to fight and the “advice” not to “mess with
me” were not actual threats of violence, the implied threat of
retaliation of some kind is implicit but unmistakable. Indeed,
Ogundele’s warning that she “can go from nice to a bitch in 20
seconds flat” is a warning that she can quickly make things
tougher should she be crossed. Of course, these comments
were not made out of the blue or in the abstract—but in express
response to Marsland’s post rallying employee support for
Marshall in the sexual harassment case she had filed. In this
context, Ogundele’s comments would reasonably be read as a
not so subtle implied threat of retaliation for Marsland’s protected and concerted activity. See, Alterman Transport Lines,
Inc., 308 NLRB 1282, 1286 (1992) (responding to question
about drivers’ loss of work, supervisor unlawfully implied retaliation when he replied “No more Mr. Nice Guy”); Warehouse Groceries Mgmt., Inc., 254 NLRB 252, 258 (1981) (in
context of discussing suspected union activity at facility manager referred to job loss occurring after union activity at other
store was “squashed” and unlawfully added, “I can be a nice
guy, but I can be nasty”); Montgomery Ward & Co., 160 NLRB
1729, 1735 (1966) (in context of antiunion remarks statement
that “I can be a nice guy” but “I don’t have to be” is unlawful).
Ogundele’s second post was also unlawful. Leaving aside
the unalleged issue of disparagement of the union and its supporters, the post warns that following “the people who are sending you email, sending letters to your home and calling to join[
] their cause . . . will lead you to unemployment.” In the context of an ongoing union organizing campaign, and in the context of her post generally, an employee reading her post would
reasonably conclude—indeed, it may be said that it would be
unreasonable not to conclude—that Ogundele was referring to
union activists. The warning is an explicit threat of job loss for
is possible there were comments following Marsland’s post that were
not reproduced, although the final comment on GC Exhibit 7 was made
at 9:46 a.m. November 11, which I believe to be after Ogundele’s first
post. In any event, the introduction to Ogundele’s first post makes
clear that she is responding to Marsland. Her second post references
her first post. The chief point is that an employee reading these posts
would reasonably view Ogundele’s postings as a response to
Marsland’s post, based on the references in Ogundele’s post.

19

those following the union activists. Burke-Parsons Bowlby,
288 NLRB 956, 959–960 (1988) (unlawful threat of job loss for
supervisor to respond to employee’s statement that it was “union time” by stating that “you[ ] all are going to wind up in the
soup line”), enfd. 905 F.2d 803 (4th Cir. 1990).30
The Respondent’s defense is without merit. Essentially, it
argues (R. Br. at 19) that Ogundele’s postings were a personal
“lashing out” motivated by personal offense, do not explicitly
mention the word union, and do not expressly state that she was
going to take actions against people at work. However, Ogundele’s intentions and motivations are beside the point.31 Moreover, her failure to explicitly use the word union or to explicitly
state that her threats would be carried out through use of her
supervisory authority at work does not constitute a defense.
The issue is the reasonable implications of Ogundele’s remarks.
Their reasonable implication is coercive. See, e.g., Leather
Center, Inc., 308 NLRB 16, 27 (1992) (manager unlawfully
told employee he knew she was talking to employees about
union “and that she should be careful” and manager unlawfully
told another employee that “he was messing up by becoming
involved with the Union” which was “not only jeopardizing his
own job, but also the jobs of the people in his family who
worked for the Respondent”); Print Fulfillment Services, 361
NLRB No. 144 (2014 (manager’s anger and statement that he
was “disappointed” in employee for supporting union found to
be unlawful threat). As an agent of the Respondent, Ogundele’s threats of reprisals against employees for union and protected activity are properly attributable to the Respondent,
without regard to the “personal” capacity in which she made
her threats.32
Finally, while the Respondent disciplined Ogundele for her
remarks, nothing approaching timely repudiation of her unlawful conduct was conveyed to the employees. Hence, the Respondent cannot avoid liability for Ogundele’s remarks based
on a theory of repudiation. See, Passavant Memorial Area
30 I do not reach the question of whether Ogundele’s concluding
statement in her second post, that employees have “opened a can of
worm[s] that you can not close. You pick the wrong qirl” is a threat of
unspecified reprisal. Given that the finding of a violation based on it
would not materially affect the remedy, I decline to consider it.
31 GM Electrics, supra (The test "does not depend on the motive or
the successful effect of the coercion"), and cases cited supra.
32 Glenroy Construction Co., 215 NLRB 866, 867 (1974) (employer
violated Act based on supervisor's unauthorized and "personal" statement to employee that "he" did not want employee back to work because of Board charges filed by employee, even though employer was
willing to reinstate employee and was waiting for employee to return to
work), enfd. 527 F.2d 465 (7th Cir. 1975). Accord, Ideal Elevator
Corp., 295 NLRB 347, 347 fn. 2 (1989) ("the Board continues to hold
that under Sec. 2(13) of the Act 'an employer is bound by the acts and
statements of its supervisors whether specifically authorized or not.'"
(quoting Dorothy Shamrock Coal Co., 279 NLRB 1298, 1299 (1986),
enfd. 833 F.2d 1263 (7th Cir. 1987)); Triangle Sheet Metal Works, Inc.,
238 NLRB 517, 520 (1978)("even though Biegler's comments were not
authorized by higher management, he plainly was a supervisor and an
agent of Respondent within the meaning of the Act and, therefore, his
conduct is legally attributable to Respondent").

 20

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Hospital, 237 NLRB 138 (1978).33
F. Complaint paragraph X
(Marsland’s Discipline for the September 24 staff
meeting incident)
a. The emergency room; staffing for breaks
The hospital’s emergency room has 19 rooms with 24 inroom beds, and six additional beds in hallways or a waiting
room. There are a total of approximately 30–40 nurses who
work in the emergency room (including part-time and per diem
nurses).
The first two rooms of the emergency room department are
used as “fast track” rooms, devoted to treatment of “lower acuity” patients, i.e., patients with less severe injuries, such as an
ankle sprain, or medication refills. Patients assigned to fast
track usually have a problem akin to what is dealt with in a
nonemergency “urgent care” medical facility. Rooms three
through six have a variety of patients, and often patients with
mental health diagnosis are placed in rooms five and six because they are across from the charge desk and easily observed.
Rooms seven, eight and ten also tend to have patients with
mental health issues. Room nine has its own bathroom and
oncologic patients or patients having sexual assault exams are
often assigned to that room. Rooms 11–15 typically house the
most critical or “high acuity” patients, such as trauma or burn
patients, or someone about to imminently give birth. Rooms
16–19 were described as “a mixed bag” in terms of who is assigned there.
Amy Mathews is the nursing director of the emergency department. The unit manager reports to Mathews. In the summer and fall of 2015, the unit manager was Kevin Harris.
There is a charge nurse on duty, and the remaining nurses are
staff nurses.
Scott Marsland, who has been referenced earlier in this decision, is a staff nurse in the hospital’s emergency department.
He transferred there from elsewhere in the Hospital in 2007.
He has worked as a charge nurse in the emergency room, a
preceptor, and worked with a group of physicians and pharmacists to develop software applications used in the department.
He was known to management to be supportive of the union
drive. In addition to his encounter with Pedersen in the cafeteria, Marsland was listed in an April 28 email from Mathews to
Pedersen as one of about ten emergency room employees
“Known Pro” union. (Approximately 11 employees were listed
by name as “Anti” union).
Marsland, testified that based on his 15 years of experience
33 A third post (GC Exh. 10) by Ogundele had “nothing to do” with
the other two, according to Ogundele. There is no testimony from
Marsland, Marshall, or anyone, identifying the date of this third post, or
providing more context. It does concern the union and Marsland, as
Ogundele admitted. It is similar in many respects to the two posts
discussed above. It certainly contains additional threats of unspecified
reprisals. However, given the uncertainty surrounding the date and
circumstances of its posting, and given that the finding of a violation
based on it would not materially affect the remedy, I decline to consider
the third post.

“the biggest issues that’s persisted through that time has been
the difficulty of nurses in all departments getting breaks consistently,” a problem Marsland and his coworkers discussed in
terms of “what we felt were unsafe staffing ratios.” Marsland
has spoken with his director Mathews about it in the past and in
2013, wrote a letter on the subject to Hospital CEO Rudd,
which led to a formal meeting on the subject with Rudd and
Mathews.
More recently, Marsland wrote to the New York State Department of Labor in June 2015 about the break issue.
Marsland estimated that “[h]istorically” nurses get their lunch
breaks “less than 50 percent of the time.” However, since the
advent of the union organizing campaign, Marsland testified
that he received lunch breaks more than 50 percent of the time.
Indeed, the record includes an email dated April 28, from Susan
Nohelty to Crumb and Mathews stating that
One of the major complaints by staff in the ED is their inability to take meal breaks. In light of the union activity, John
would like a plan to be place as to how we can get staff to take
their meal breaks.
Mathews testified that getting staff to leave their patient assignments to take a break is a frequent problem in the emergency department. According to Marsland, “the discussion of not
getting breaks is part of the air that we breathe in at Cayuga
Medical Center.” A chief problem for the nurses in trying to
take their breaks was their concern that there was not adequate
coverage for their patients during the breaks.
When an emergency nurse takes a break, “coverage” for the
patients under the nurse’s care is provided in different ways,
with the charge nurse playing a large role in determining how
the break will be covered. Sometimes the charge nurse can
cover a staff nurse’s break. Sometimes a nurse from another
department can cover. Often a nurse working in the Fast Track
section of the emergency room is free to cover an emergency
room nurse on break if there are no patients in the Fast Track
section. This is one method used to cover breaks.
However, according to Marsland, relying on Fast Track
nurses to cover breaks for the rest of the emergency department
nurses is problematic:
Historically the nurses work in the Fast Track Section are
nurse[s] that are either kind of burnt out and coasting towards
retirement or nurses that are neophytes that don’t have a high
level of critical skill. And they’re kind of getting [ ]up to speed
in the Emergency Department.
Marsland testified that there was “disgruntlement” and repeated discussion among the emergency room nurses, as often
as weekly, about a nurse named “Deb [Scott’s] abilities and
whether or not she was capable of covering breaks.” Deb Scott
has taken on a role as a nurse educator but spends about 50
percent of her time working in the Fast Track section of the
emergency department. Marsland had been told by Cheryl
Durkee that concerns regarding Scott had been brought to
emergency room director Amy Mathews on a multiple occasions. Durkee confirmed that the competency of some of the
Fast Track nurses to care for the more critically ill patients in
the emergency room during breaks was discussed on multiple
occasions with the charge nurse, and that she had discussed it
with unit manager Kevin Harris.

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

In this regard, Marsland testified that another nurse, Gayle
Peck, who had been out of the work force for many years and
who came back to nursing about a year before the hearing, had
been floating to the Fast Track section of the emergency room
when the unit was shortstaffed. Marsland testified that Peck
sometimes—not as frequently as Scott—was assigned to cover
emergency room nurses’ breaks, and that her ability to adequately provide break coverage was a subject of conversation
among the nurses.
b. The September 24 staff meeting
Mathews holds “bi-weekly” staff meetings with the emergency department staff. Mathews testifies that at the meeting
she “expect[s] feedback and I expect for us to talk about certain
things in the department. Things that can make it better. Challenges we have.” There is “dialogue” between employees and
management at every meeting. The subject of breaks has been
a topic of a number of meetings.
A staff meeting was held on September 24, 2015, at approximately 7:15 a.m., with the approximately eleven nurses then at
work gathering at the charge nurse’s station. In addition, a
provider, such as a physicians’ assistant, would have been in
the vicinity of the meeting. However, the meeting was held out
of the earshot of patients, according to Mathews. As director of
the emergency room, Mathews convened and conducted the
meeting.
Mathews began the meeting by talking about the issue of
covering lunch breaks. She praised the nurses for taking more
of their breaks in the last couple of weeks. She stressed the
need for nurses “to take care of one another” and for the nurses
to “get out to breaks.” Mathews mentioned, as an example, that
the day before, nurses from Fast Track, specifically Deb Scott
and Gayle Peck, had covered several staff nurses’ breaks.
Marsland had previously refused to take a lunch when Deb
Scott was assigned to cover his break. Marsland gave a couple
of examples where Scott had covered his patients where there
were “important things that should have been done that
weren’t.” Marsland testified that the day before this meeting he
had a conversation with a nurse uncomfortable with the coverage situation mentioned by Mathews. When the nurse and
Marsland met on break in the cafeteria, the other nurse told him
that she was “really uncomfortable” because of the nurse covering her patients. This nurse “had several unstable patients.
And she was concerned about Deb’s capacity to care for those
patients.”
Hearing Mathews’ comments lauding the break coverage
provided by Scott and Peck, Marsland blurted out that he was
“not comfortable with Deb taking care of my patients, that I
didn’t think that she was competent to care for critical patients.” Marsland said, “You know, if you’re going to have
nurses cover breaks, they need to be capable of handling critical
unstable patients.”
Mathews responded, telling Marsland, “I don’t think this is
the right forum for this to be addressed. If you have concerns
you should come see me.” Marsland persisted in his comments
regarding Scott. Mathews, who testified that she was “trying to
move it along” to avoid these kind of statements about another
employee, asked Marsland to stop, “I think it was like three

21

times.” Marsland went on to make comments about Peck, to
whom Mathews had also referred in her earlier comments.
Marsland said that Peck, who was new to the floor and had
been there only a day or two, “is like a nursing student. And
she should not be by herself in Fast Track. She doesn’t even
know how to mix up a banana bag,” which Marsland explained
was an IV bag with vitamins “that’s probably one of the first
things that you learn as an emergency nurse.” Mathews told
Marsland that “it’s inappropriate” and “we need to move on.”
She said, “That’s it. That’s enough. This isn’t the place. . . .
we need to move on.” Mathews then switched the topic of the
meeting to her next item on the agenda, and that was the end of
Marsland’s comments.
Marsland’s account of the incident was similar. As
Marsland put it, Mathews “tried to shut down my comments.
And I persisted and she tried to shut it down.” Marsland testified that before he stopped talking he said, “we’re all aware that
there is a complaint within the New York State Department of
Labor about breaks at this point. And sooner or later the hospital is going to have to follow the New York State labor law.”
Neither Deb Scott nor Gayle Peck was in attendance at the
meeting.
However, after rounding, Mathews returned to her office to
find the phone ringing. It was Deb Scott, “beside herself,”
saying that she had heard what had happened at the staff meeting.
c. Marsland is issued a disciplinary warning
Mathews testified that she viewed Marsland’s comments as
violating the Nursing COC rule, discussed above, prohibiting
the criticizing of coworkers or other staff in the presence of
others in the workplace. This is because, as Mathews testified,
Marsland “was saying in front of a group of a total of 11 people, plus providers that were sitting nearby that this nurse is
incompetent. So he wasn’t going to take a break.” Mathews
testified that Marsland was “publicly ridiculing her competence
in front of other people. . . . [I]f he had a concern, he should
have come and addressed it privately, not . . . openly ridicule
her in front of other people that don’t know whether its real or
not.” Mathews testified that she had never previously “disciplined anybody in the past for voicing a legitimate concern.
But nobody has voiced a concern that has torn down another
person in front of a group of people. . . . [T]hat’s not the forum
to be tearing somebody else apart. I wouldn’t let them do it to
him. I wouldn’t let them do it to anybody else.”
Mathews determined that she would issue discipline to
Marsland for the incident. The evidence shows that Mathews
consulted with Pedersen, and she says she might have talked
also to Crumb about the discipline before it was issued to
Marsland. Mathews asked Pedersen in an email, “is there anything more than the code of conduct that we can use with
Scott’s incident. Does it only get a written verbal for his actions?”
However, in the end, the basis of the discipline was
Marsland’s COC violation, specifically, according to Mathews,
for violating the COC rule against criticizing coworkers or
other staff in the presence of others in the workplace. Mathews
testified that she took action against Marsland because “I had

 22

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

thought about it and we have a Nursing Code of Conduct and
you need to hold everybody to that.”
On October 5, 2015, Mathews told Marsland that she needed
to talk to him. Marsland told her, “if this is about the Union, I
am not going to go talk to you anywhere.” Mathews told
Marsland, “No, it’s not about the Union. It’s about what you
said during the staff meeting the other day.”
Marsland and Mathews then went back to Mathews’ office.
In the meeting, he was issued a “verbal written warning” for his
conduct at the September 24, 2015 meeting. The warning is the
first in a multistep disciplinary procedure. The notice cited the
following “code of conduct violations”:



Criticizes coworkers or other staff in the presence of
others in the workplace or in the presence of patients.
Publicly shames others

As the “Reason for Counseling” the disciplinary notice stated:
In the 0715 staff meeting on 09/24/2015 the Emergency Department Team was discussing strategies used to
successfully implement lunch breaks during the previous
days in the department.
In front of 11 team members during this staff meeting
Scott verbally and in a bullying manner criticized ED team
member, Deb Scott, who was not present at the meeting.
Scott was openly verbalizing that Deb Scott was "not a
competent Emergency Department RN to care for his patients"
Scott was instructed that his comments were inappropriate and that the staff meeting was not the forum for
such conversation. Scott continued repeatedly in a persistent manner to openly criticize and verbally ridicule Deb
Scott regardless of being instructed to stop his behavior.
Scott then began to openly criticize another RN, Gail Peck
who has just begun cross training in the ED because she
needed significant help mixing a patient medication.
Expectation:
The expectations are that you will:

Follow the Nursing Code of Conduct.

You will not criticize staff in the presence of others in
the workplace.

You will not publicly shame others
Failure to comply with the Nursing Code of Conduct and further incidents will result in progression of the disciplinary
process. A written copy of the Nursing Code Conduct has
been provided to you and is also available via the Maxima
eLibrary Policy and Procedure web server.
Reviewing the “Reason for Counseling” portion of the disciplinary notice from the witness stand, Marsland testified that he
did not disagree with the factual recitation of what had occurred, except that he did disagree that he acted in a “bullying”
manner or that he had “ridiculed” anyone.
The meeting between Marsland and Mathews was recorded
by Marsland. The recording and an agreed-to transcript of the
recording were admitted into evidence as General Counsel

Exhibits 34(a), and (b).
The disciplinary meeting involved, in addition to the issuance of the verbal warning, a candid but respectful exchange of
views between two people who had worked together for some
time. Mathews, to a large extent, reiterated the same points she
made in her testimony: the issue was “talking about somebody
outright in front of an open group of people” and that Marsland
“continued” when she asked him to stop. Marsland expressed
somewhat terse, but straightforward agreement with Mathews’
points—although he seemed surprised when Mathews mentioned his comments about Peck, he contended that his comments about Peck were “benign.”
However, while he “acknowledged my mistake,” he seemed
incredulous that it was being treated as a disciplinary event.
Marsland told Mathews that “we all know the context of this”
and when Mathews asked, the “context of what,” Marsland
replied, “of the union attempt.” Mathews said “it has nothing
to do with the union. Marsland said, “I have trouble believing
that because you and I have worked together as long as we
have, and there have been plenty of things that have come up
with me, and this is the first time you’re giving me a verbal
warning.” Mathews reiterated that it had nothing to do with the
Union.
Marsland refused to sign the verbal warning disciplinary notice, and argued that the code of conduct was not enforced
against many others—and he offered some examples---of people who gossiped and acted inappropriately. Mathews said she
was unaware of the examples he was giving. Marsland also
argued that the COC, while it is supposed to apply to management, “it’s not applied to management”: “You know, the reason
they finally got rid of that—that bastard who was in the ICU,
who was—who violated every single line on that code of conduct. You know, who—who engaged in sexual harassment,
who engaged in intimidation”—Mathews told Marsland, “This
isn’t about Joel.”
They talked further, Marsland saying, “I think the message
you’re telling me, I’m not supposed to use anybody’s name in a
staff meeting. Pro or con. You just don’t want people talking
about”—Mathews added, “not when you’re talking openly
about people in a derogatory sense . . . . in front of other people.” Marsland added, “You know, we need—we need to be
able to talk to each other, not just me talk to you. Like—I
mean, that’s part of why we want a union. Like, nurses need to
be able to talk to each other, exactly. That’s what I’m saying
about Deb.”
Marsland then gave some specific examples of his concerns
about the employee in question, in more detail than he went
into in the staff meeting.
On cross-examination Mathews agreed that every month she
sends out the results of monthly patient surveys to the entire
department—including to doctors, nurses, and aides. These
patient surveys include all patient comments, including some
that criticize nurses by name.
Analysis
The General Counsel alleges that the Respondent’s discipline
of Marsland violates Section 8(a)(1) of the Act. More specifically, the General Counsel alleges two independent albeit relat-

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

ed theories of violation. First the General Counsel argues that
Marsland’s discipline is unlawful because it was imposed pursuant to an unlawful rule—i.e., the COC rule against criticizing
coworker or staff in front of others. Second the General Counsel argues that, apart from the COC rule, the conduct for which
Marsland was disciplined constitutes protected and concerted
activity, and therefore disciplining him for it is unlawful. I will
consider the second theory first, and then turn to the theory of
violation based on the unlawful rule.
The General Counsel alleges that Marsland was disciplined
for protected and concerted activity, and that any misconduct
he engaged in during the course of that protected activity is
insufficient to cause him to lose the Act’s protections.
Certainly, the issues of breaks and staffing are at the core of
Section 7’s concerns, as they are issues “intimately related to
the conditions under which the employees worked.” Misericordia Hospital Center, 246 NLRB 351, 356 (1979), enfd. 623
F.2d 808 (2d Cir. 1980); Valley Hospital Medical Center, 351
NLRB 1250, 1252 (2007), enfd. 358 Fed. Appx. 783 (9th Cir.
2009); Chipolte Mexican Grill, 364 NLRB No. 72, slip op. at 1
fn. 3 (2016) (petition over breaks protected by Act); William
Beaumont Hospital, 363 NLRB No. 162, slip op. at 1 fn. 2
(2016).
As a threshold matter, I agree with the General Counsel that
in making his comments at the meeting, Marsland was acting in
concerted fashion for purposes of the Act. The Respondent
argues that Marsland acted alone, and thus, his actions were not
concerted and, therefore, not protected. However, the concept
of "mutual aid or protection" focuses on the goal of concerted
activity; chiefly, whether the employee or employees involved
are seeking to "improve terms and conditions of employment or
otherwise improve their lot as employees." Eastex, Inc. v.
NLRB, 437 U.S. 556, 565 (1978). “[T]he analysis focuses on
whether there is a link between the activity and matters concerning the workplace or employees' interests as employees.”
Fresh & Easy Neighborhood Market, 361 NLRB No. 12, slip
op. at 3 (2014). In this case, at a meeting of employees,
Marsland raised an issue that had repeatedly been a subject of
previous employee meetings, and that had been repeatedly discussed among the employees themselves and, indeed, had just
been raised to Marsland by a coworker the day before, had been
the subject of a Department of Labor charge, and was recognized by upper management as “One of the major complaints
by staff in the ED.” As Marsland so vividly put it: “the discussion of not getting breaks is part of the air that we breathe in at
Cayuga Medical Center.”
The fact that Marsland was the only employee to respond to
Mathews’ raising of the subject at an employee meeting does
not undercut the concerted nature of Marsland’s conduct. As
the Board has recently reiterated, “concerted activity includes
cases ‘where individual employees seek to initiate or to induce
or to prepare for group action, as well as individual employees
bringing truly group complaints to the attention of management.’” Fresh and Easy Market, supra at slop op. 3 (emphasis
added), quoting Meyers Industries, 281 NLRB 882, 887 (1986)
(Meyers II), affd. 835 F.2d 1481 (D.C. Cir. 1987). That is what
Marsland did. See, Consumers Power Co., 282 NLRB 130,
131–132 (1986) (finding that even if employee had acted alone,

23

his individual complaint would have been concerted because it
was a continuation of his and his coworkers' earlier concerted
complaints raised at the employer's weekly meetings"); JMC
Transport, 272 NLRB 545 fn. 2 (1984), enfd. 776 F.2d 612 (6th
Cir. 1985) (finding an employee's pay protest concerted because it was "a continuation of protected concerted activity"
involving a meeting wherein two employees jointly complained
to management about wage payments); Mike Yurosek & Sons,
Inc., 306 NLRB 1037, 1038 (1992) ("We will find that individual action is concerted where the evidence supports a finding
that the concerns expressed by the individual are logical outgrowth of the concerns expressed by the group.").
The Respondent also argues that it did not discipline
Marsland for speaking up on the issue of providing employees
adequate break coverage, but rather, for his criticism of
coworkers and having to be asked, perhaps three times, to stop.
However, as far as Board precedent goes, this argument is a red
herring. “Where, as here, the conduct at issue arises from protected activity, the Board does not consider such conduct as a
separate and independent basis for discipline.” Goya Foods
Inc., 356 NLRB 476, 477 fn. 8 (2011). The aspect of
Marsland’s conduct to which the Respondent objects—his persistence in making negative comments about two other employees’ performance—was part of the res gestae of Marsland’s
protected conduct of bringing to Mathews the concerns on the
subject of employees taking their breaks. His comments were
inextricably linked with and directly related to this oftdiscussed and protected subject. Even assuming, arguendo, that
Marsland should not have made the comments he made about
other employees, even assuming that it constituted misconduct
to continue in the face of Mathews’ direction for him to stop,
the comments were inextricably part of—indeed, they make no
sense apart from—Marsland’s and the employees well-known
concerns about the Hospital having the staffing on hand to enable them to take their breaks.
Given this, the issue is whether Marsland may be subjected
to discipline for his actions made in the course of engaging in
protected and concerted activity. When an employee is disciplined for conduct that is part of the res gestae of protected
concerted activities, "the pertinent question is whether the conduct is sufficiently egregious to remove it from the protection
of the Act." Stanford Hotel, LLC, 344 NLRB 558, 558 (2005);
Roemer Industries, Inc., 362 NLRB No. 96, slip op. at 6
(2015).34
To the extent that Marsland’s offense was criticizing coemployees in front of others, his actions cannot reasonably be
found to have cost him the protection of the Act. The Board
has explained, quoting the Seventh Circuit in Dreis & Krump
Mfg. v. NLRB, 544 F.2d 320, 329 (7th Cir. 1976), that “the
34 I note that the mildness or the severity of the discipline is not at
issue. Where an employee is engaged in misconduct during the course
of protected activity, either he loses the protection of the Act because of
the misconduct, and may be disciplined, or he does not and may not be.
Eagle-Picher Industries, 331 NLRB 169 (2000) (lack of severity of
discipline not a determining factor in whether discipline lawful; rejecting judge’s reliance on his finding that employer issued only “mild
discipline” to employee as factor in finding discipline lawful).

 24

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

standard for determining whether specified conduct is removed
from the protections of the Act [is] as articulated by the Board:
communications occurring during the course of otherwise protected activity remain likewise protected unless found to be so
violent or of such serious character as to render the employee
unfit for further service." St. Margaret Mercy Healthcare Centers, 350 NLRB 203, 204–205 (2007) (internal quotes omitted)
(Board bracketing).
In terms of Marsland’s criticism of the two other employees,
it may have been impolite or more forward and direct than was
comfortable. It was not well-received by at least one employee
who was not present. But it also must be said that it was nonprofane, and nonthreatening, and did not involve direct confrontation, much less a physical confrontation. Far worse has
been found not grounds for losing the protections of the Act.35
Of course, this is a hospital, not a factory or a restaurant
kitchen. But in full context that also cuts in favor of Marsland,
in my view. Most significantly, Marsland was not engaged in
criticism in the sense of gossip or lewd demeaning jokes. This
was a serious matter about a subject of central concern to management and the employees. In other words, the comments,
whatever else they were, were on topic and about a profoundly
protected and concerted subject. Indeed, the Hospital routinely
circulates to employees, patient survey responses that include
criticism of nurses by name. As with the survey responses,
with Marsland’s comments one cannot, one must not, forget
that the employees and the Hospital, in an emergency department no less, are engaged routinely in matters of life and death.
The stakes are high and whatever one thinks of Marsland’s
comments, they were not of a petty nature or on an unimportant
matter, or unrelated to employee terms and conditions of employment.36
The point is not that Marsland is right—the merits of his
opinion are beside the point and beyond my ken. The point is
35 See e.g., Roemer Industries, 362 NLRB No. 96, slip op. at 9 (unlawful to discharge employee union griever who calling coemployee a
“backstabber”); Nor-Cal Beverage Co., 330 NLRB 610 (2000) (employer violated Sec. 8(a)(3) by disciplining employee pursuant to antiharassment policy for calling another employee "a scab" to his face
during protected activity); Tillford Contractors, 317 NLRB 68, 69
(1995) (union steward did not lose protection of the Act for confronting
employee over concern that contract was being breached, threatening to
file internal union charges against him, and telling him "You've got no
goddamn business being here," and "The best thing you could do is get
the hell away from us"); Postal Service, 250 NLRB 4 (1980) (employer
violated the Act by disciplining union griever who called supervisor
"stupid ass" during discussion of possible grievance); Union Carbide
Corp., 331 NLRB 356, 359–360 (2000) (employee engaged in protected activity did not lose the protection of the Act by calling his supervisor a “f-g liar.”); St. Margaret Mercy Healthcare Centers, 350 NLRB
at 204–205 (nurse did not lose Act’s protection by speaking critically
with other nurses about newly implemented managerial policies and, in
a statement overheard by a supervisor, telling a colleague that management had “not [been] truthful” with employees and that their new
evaluation process “was just a management ploy”).
36 This is driven home, in gripping fashion, by some of the incidents
shared by Marsland privately with Mathews during his disciplinary
meeting, where he elaborated on his concerns in far more detail than he
did at the group meeting. See, GC Exh. 34(b) at 9–11.

that if the Act protects emotional, vigorous and robust discussions among employees, and it does,37 then Marsland’s criticisms of employee performance, rooted as they were in the
protected and concerted issues of staffing and breaks, must
remain protected. Under the circumstances, it is a stretch to
accept that they constitute “misconduct” at all.
The other objection to Marsland’s comments was rooted in
his persistence in making the comments over the objection of
Mathews. Viewed as a confrontation with a supervisor, “the
proper inquiry in this case is whether [Marsland’s] conduct was
so egregious to lose the protection of the Act under Atlantic
Steel.” Public Service Co. of New Mexico, 364 NLRB No. 86,
slip op. at 7 (2016), referencing Atlantic Steel Co., 245 NLRB
814 (1979). "Typically, the Board has applied the Atlantic
Steel factors to analyze whether direct communications, faceto-face in the workplace, between an employee and a manager
or supervisor constituted conduct so opprobrious that the employee lost the protection of the Act." Triple Play Sports Bar
& Grille, 361 NLRB No. 31, slip op. at 4 (2014), enfd. 629
Fed. Appx. 33 (2d Cir. 2015).
The first Atlantic Steel factor looks to the place of the discussion. In this case, the incident took place at an employee
meeting, a meeting where Mathews “expects feedback” and
“dialogue.” The Board has held that this warrants the first factor weighing in favor of protection. Datwyler Rubber & Plastics, Inc., 350 NLRB 669, 670 (2007) (“With respect to the first
factor, the place of the discussion weighs in favor of protection.
[The employee’s] outburst occurred during an employee meeting, where employees were free to raise workplace issues”).
Moreover, while the incident occurred in front of other employees, it was outside the earshot of patients, and did not entail
a risk of disruption of production as the employees who could
hear were assembled at the meeting. Datwyler Rubber & Plastics, Id. (location “would not disrupt the Respondent’s work
process”).
The subject matter of the comments is the second Atlantic
Steel factor. Here, as discussed above, the subject matter of
Marsland’s comments was employee coverage so employees
could take breaks, and more generally an issue of staffing. This
must be considered a subject at the heart of the Act’s protection
and indeed, the subject was addressed at the meeting in response to management raising the subject.
37“Labor relations often involve heated disputes likely to engender ill
feelings and strong responses. Accordingly, an employee's right to
engage in concerted activity permit[s] some leeway for impulsive behavior." Iovan Health Systems v. NLRB, 795 F.3d 68, 86 (D.C. Cir.
2015) (internal citations omitted) (court’s brackets); Consolidated
Diesel Co. v. NLRB, 263 F.3d 345, 354 (4th Cir. 2001) ("There would
be nothing left of § 7 rights if every time employees exercised them in a
way that was somehow offensive to someone, they were subject to
coercive proceedings”); Blue Chip Casino, LLC, 341 NLRB 548, 555
(2004) ("The Act designs a system where . . . it is necessary that discussion among employees and attempts to persuade be robust and vigorous. A necessary consequence of such robust discussion is that some
employees may feel annoyed or otherwise upset by the efforts to persuade them. But employees may have to endure some level of annoyance if the Act's goals are to be achieved").

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

The third Atlantic Steel factor is the nature of the outburst.
In this regard Marsland’s offending conduct was to continue to
talk about the issue, and more specifically to continue his criticism of two other employees, after Mathews repeatedly told
him to stop, or, as Marsland put it “tried to shut down my
comments.” While I fully agree that an employee does not
have the right to take over or disrupt a staff meeting, and while
Marsland might have been “out of line” to persist over
Mathews objections, I find that his actions fall far short of the
type of “opprobrious conduct” (Atlantic Steel, 245 NLRB at
816) that would weigh against continued protection of the Act.
The Board distinguishes between true insubordination and behavior that is only disrespectful, rude and defiant. At most,
Marsland’s was the latter. Goya Foods, Inc., 356 NLRB at 478
(employee who initially refused supervisor’s instruction to
punch out and go home but then complied, was found to have
engaged in disrespectful, rude, and defiant behavior, and thus,
to fall under the Act’s protection). Unlike so many “Atlantic
Steel” cases, Marsland’s conduct involved no profanity, no
threats—there is not even evidence of yelling. Moreover, it is
of significance to assessing the scope of disruption represented
by Marsland’s comment that this was a meeting where
Mathews “expect[s] feedback” and gets it “every staff meeting.” The meetings are designed for employees to weigh in.
Thus, if Marsland went too far and ignored the directive to
cease his commenting, it was in the context of a meeting where
employees were encouraged to speak up. Thus, Marsland’s
offense was not raising the issue but rather, not cutting off his
commentary immediately as directed. Moreover, it is clear
from Mathews’ testimony, the disciplinary meeting, and the
write-up of the discipline, that the weight of Mathews’ concern
and decision to discipline Marsland was his criticism of coemployees and their ability to safely cover breaks. Marsland’s
unwillingness to stop speaking when told to, played a minor
role in this disciplinary event. And as discussed above, the
criticism of coemployees, where, as here, it was firmly rooted
in a subject directly related to employee terms and conditions
of employment, is protected activity. In other word, when you
remove the protected subject matter from the equation, you are
left with an offense of continuing to address a legitimate subject after being told to stop, a portion of the offense that even
Mathews did not emphasize. I am sure that if he had not criticized coworkers, there would be no issue at all. There was no
estimate given for how long after Mathews asked him to stop
that Marsland continued, but based on all the testimony it was
not an extended event, perhaps a minute, perhaps two. His
continuing to speak after Mathews asked him not to, has all the
earmarks of an impulsive and not premeditated event, another
factor weighing in favor of continued protection under the Act.
Kiewit Power Constructors, Co., 355 NLRB 708, 710 (2010)
(observing that the employee's conduct consisted of a brief,
verbal outburst in finding factor weighed in favor of protection), enfd. 652 F.3d 22 (D.C. Cir. 2011); Kingsbury, Inc., 355
NLRB 1195, 1204 (2010) (“A line must be drawn between
situations where employees exceed the bounds of lawful conduct in a moment of exuberance or in a manner not activated by
improper motives and those flagrant cases in which misconduct
is violent or of such serious character as to render the employ-

25

ees unfit for further service”) (internal quotations omitted).
Finally, the fourth Atlantic Steel factor cuts against protection. There was no unfair labor practice by the employer that
provoked the outburst.
In sum, there is one Atlantic Steel factor, the fourth, that
weighs against protection of the Act. Three Atlantic Steel factors weigh in favor of protection. This suggests that Marsland’s
conduct remain protected. See Noble Metal Processing, Inc.,
346 NLRB 795, 795 fn. 2 (2006) (lack of provocation "clearly
outweighed by the initial three factors" which weighed in favor
of continued protection of Act).
Having said that, the Board properly rejects the concept “that
the final outcome is determined simply by counting the number
of factors favoring and disfavoring protection.” Tampa Tribune, 351 NLRB 1324, 1327 fn. 19 (2007), enft. denied on other
grounds, 560 F.3d 181 (4th Cir. 2009). See, Trus Joist MacMillan, 341 NLRB 369, 371–372 (2004) (Board has found that
the severe nature-of-the-outburst factor alone may carry enough
weight to cause forfeiture of the Act's protection). Apart from
counting of the factors, I find that the second and third factor
most strongly weigh in favor of the protection of the Act. The
subject is central to the purpose of the Act. The misconduct is
slight, for all the reasons stated. In sum, I believe it would be
unprecedented—completely unmoored from precedent—for the
Board to find that in these circumstances Marsland has lost the
protection of the Act. I am unaware of any case in which such
a brief, nonthreatening, nonprofane incident led to the loss of
the Act's protection. Applying Atlantic Steel, I would find that
Marsland did not lose the protection of the Act.
Accordingly, I find that Marsland was disciplined for conduct engaged in during the course of protected and concerted
activity. His comments and actions in the course of this protected activity do not warrant loss of the Act’s protections. His
discipline violated Section 8(a)(1) of the Act.
Although that ends the matter, I note that the General Counsel’s other theory of liability—that Marsland was unlawfully
disciplined under an unlawful rule—has also been proven. The
Board holds that,
discipline imposed pursuant to an unlawfully overbroad rule
violates the Act in those situations in which an employee violated the rule by (1) engaging in protected conduct or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7 of the Act.
Continental Group, Inc., 357 NLRB 409, 411–414 (2011),
clarifying standard set forth in Double Eagle Hotel & Casino,
341 NLRB 112, 112 fn. 3 (2004), enfd. 414 F.3d 1249 (10th
Cir. 2005).
Even when it has been shown that the employee violated the
rule by engaging in protected conduct or conduct that otherwise
implicates Section 7 concerns, Board precedent provides that
the employer has an affirmative defense available to it to avoid
liability:
Nevertheless, an employer will avoid liability for discipline
imposed pursuant to an overbroad rule if it can establish that
the employee’s conduct actually interfered with the employ-

 26

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ee’s own work or that of other employees or otherwise actually interfered with the employer’s operations, and that the interference, rather than the violation of the rule, was the reason
for the discipline. It is the employer’s burden, not only to assert this affirmative defense, but also to establish that the employee’s interference with production or operations was the
actual reason for the discipline.
Continental Group, 357 NLRB at 412.
Given this standard, there can be no question but that the
discipline of Marsland violated the Act. As I have found, supra, the rule which Marsland was disciplined for violating unlawfully overbroad. I have found that Marsland was disciplined under the rule by engaging in protected activity, as required by prong 1 of the Continental Group theory of liability.
Even assuming, arguendo, that Marsland’s conduct was not
protected, his actions “otherwise implicate” Section 7 concerns—the issue was breaks and staffing—and accordingly, use
of the overbroad rule to discipline Marsland would violate
prong 2 of Continental Group. The Respondent has not asserted an affirmative defense, as required by Continental Group.
Moreover, given that the incident occurred during a staff meeting, any effort to show that Marsland’s conduct “actually interfered with [Marsland’s] own work” would be unavailing, as
would any effort to “establish that the employee’s interference
with production or operations was the actual reason for the
discipline.” 357 NLRB at 412. Accordingly, I find that
Marsland’s was unlawfully disciplined under an unlawfully
broad rule, in violation of Section 8(a)(1).
G. Complaint paragraph XII and IX
(Marshall’s suspension, warning, demotion, adverse evaluation,
and confidentiality of disciplinary meeting)
1. Complaint paragraph XII(a)
a. Team leaders, charge nurses, and the ICU
As discussed, Anne Marshall was a nurse in the hospital’s intensive care unit (ICU). Marshall began at the Hospital in 2007
as a per-diem employee. In 2011, she became a full-time staff
nurse. Soon thereafter she became a charge nurse in ICU. In
August 2013, she became a team leader. Until her suspension
on June 26, 2015, Marshall had an unblemished disciplinary
record, and an unbroken record of superlative annual personnel
reviews dating back to the first annual review in May 2008,
issued after her hire in 2007.
The team leader role was created in ICU in 2011. Nurses interested in the position applied through an internal application
process. Christine Mancelli was a team leader and charge
nurse, along with Marshall, in the ICU from 2011 when the
position was first established until she resigned in October
2015. Mancelli testified that from the inception of the team
leader position efforts were made through meetings, discussions, and draft documents, to establish the parameters of responsibilities and duties for employees in this new leadership
role. However the Hospital “never seemed to be able to get
anything formalized.” Rough drafts of a job description were
discussed but never adopted. As Mancelli testified, “we worked
very hard to establish a specific job role, duty, and expectation

list or some type of policy. And we were never able to get that.
And there was a whole lot of responsibility and accountability
for the job with no clear guidelines and formal description of
duties.”
Despite the lack of a formal job description, in practice both
team leader and charge nurse are “lead” positions with significant responsibility for daily operations including patient flow,
leadership of other staff nurses, interface with other department
charge nurses at twice-a-day inter-departmental bed meetings,
oversight of nurse-to-patient assignments, unit admissions and
discharges, and other responsibilities beyond direct patient care.
Charge nurses and team leaders also played an active role in
staffing, anticipating “holes” in the schedule and contacting offwork nurses in an effort to have them come in work as needed.
Team leaders have some responsibility for quality assurance
and payroll functions that charge leaders do not typically
have.38
Many of these responsibilities overlap with responsibilities
of unit and departmental heads. The departmental directors
also have staffing responsibility and are the final departmental
authority. They ultimately oversee the department, from budgeting to discipline, and serve as the liaison between the hospital’s administration and the unit.
Among the nurses, the team leader is in charge when he or
she is working, but sometimes a charge nurse is used when
there are no team leaders. However, it is also accurate that
formally the nurses report to the department director, not to the
team leader.
The role of the team leader changes with changes in the department director. As Mancelli testified, particularly in the
ICU, which had a series of interim directors beginning in April
2015, each director has “a different management style, a different idea of how things should be run and how things should
flow, and kind of the expectations of us and other nurses.”
The hospital’s ICU has 16 beds. As the name “intensive care
unit” suggests, the Hospital’s most acutely sick patients are
assigned to ICU. Staffing ratios are necessarily low in ICU:
typically two patients to one nurse, although sometimes one
nurse to one patient is necessary for some critically ill patients.
Approximately 20–25 nurses work in the ICU. The standard
schedule is three 12-hour shifts per week. Up to six nurses
work per 12-hour shift.
Staffing and the nurse-to-patient ratio were signal issues in
the union drive. Specifically, ICU nurse Mancelli, testified that
“we frequently almost chronically function with not enough
nurses to the patient ratio.” Within certain guidelines, nurses
self-schedule for their shifts. However, once the schedule is
completed and approved and posted by the director, there are
almost always unfilled slots in the schedule. Off-duty nurses
are regularly telephoned or texted and asked to come in to work
beyond their standard scheduled hours. The issue of staffing,
and the need to “fill holes” in the schedule by calling in nurses
is a subject well known to the nurses and managers in the ICU
department. Marshall testified that as team leader and charge
38 As Marshall explained it, “Every team leader is a charge nurse,
but not every charge nurse is a team leader.”

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

nurse she (and other team leaders and charge nurses) would
spend time, multiple times a week, contacting nurses to come in
on days where the schedule had unfilled slots and the number
and acuity of patients warranted more nurses at work. Calls are
made days in advance and as little as four hours before a shift
that needs to be filled. Sometimes directors offer nurses incentives to work additional hours to fill scheduling holes. Team
leaders do not have authority to offer such financial incentives.
Perhaps for this reason, Mancelli’s view was that directors had
more success at convincing nurses to come in and fill shifts
than the team leaders.
Mancelli testified that as a team leader she has made calls to
fill holes and also that she received calls from the director and
from the other team leader, Marshall, seeking to have her come
in to work. Marshall has called or texted Mancelli to fill holes
multiple times when Marshall was team leader. Mancelli estimated she received calls/texts from Marshall asking her to fill
in once or twice a week. During these same times that she
received calls from Marshall she also received calls from the
director, and occasionally from the unit secretary.
b. Marshall’s June 26 suspension
As referenced above, Marshall was active in the union campaign, a fact known to management no later than April 2015.
She was known to be a source of the prounion postings appearing in the hospital, and, as discussed above, management engaged in and condoned among employees a concerted and aggressive countereffort to remove postings that were put up by
Marshall and others. Marshall testified that her position as
team leader helped her with her union activity:
I was seen as a leader. I was visible. I was at the bed meeting
with all charge nurses from the other units twice a day. And
also I was able to travel to all different parts of the hospital to
see people on different units.
As also referenced above, Marshall’s relationship with the
new ICU interim director, Joel Brown deteriorated within a few
weeks of his arrival in early April. This was, as discussed
above, in part explicitly related to her union activities, in part
related to Marshall’s bringing to Brown the concerns of other
nurses about the Marilyn Manson song he played for the nurses,
which resulted in complaints to management and a sexual harassment charge filed by Marshall with the state. Indeed, it is
hard to separate out Marshall’s union activity from other
sources for the mutual dislike between Brown and Marshall.
But clearly union activity was a large part of the issue, and the
matter of Marshall’s union activity was a source of complaint
by Brown to upper management. By June 2, Pedersen was
asking Brown for “some specifics regarding Anne that I can
share with Ray”39 Brown responded:
Asking people to not follow my leadership regarding evaluation, scheduling and telling them that ‘we are trying to get him
fired.’
39 Ray is not identified on the record but is likely the Hospital’s labor attorney, Raymond Pascucci.

27

While on shift and in a leadership position she continues to
post, call and have conversations bout unionization. She is also rude to those that are loyal to CM and to any leadership
that she come[s] in contact with (i.e., Cindy Williams, Cynthia Sullivan, and Ms. Barr.)
Complaints about Marshall’s union activity were also forwarded to Pedersen by Brown on June 19—this note originally
went to Crumb and Brown from a PICC nurse, Cynthia Sullivan. Brown also forwarded a second note to Pedersen on June
19, apologizing for Marshall’s union activity, and stating:
“Seems that Ms. Marshall really ramps up when I am away. I
apologize for her behavior.”
On June 26, Marshall was called into a meeting with Crumb,
Brown, and Ogundele, sometime between 2 p.m. and 3 p.m.,
and told that she was being suspended for the remainder of the
shift and the next day’s shift.
According to Crumb, the problems with Marshall leading to
the disciplinary action began on Wednesday, June 24. There
was a problem that day when there was a delay getting an ICU
nurse to take over from the cardiac department nurse for a patient transferred from the cardiac department into ICU. 40 Jessica Miller, the head of the cardiac department, testified that
she could not say that the delay was directly Marshall’s fault,
but that it was an interaction that took place under Marshall’s
leadership.
Miller also described another incident later that day. A dispute about whether ICU or the heart department personnel
would remove a patient’s sheath led Miller to go to the ICU to
resolve the issue. While there, House Supervisor Cindy Brown
asked Marshall about the staffing problem in ICU. According
to Miller, Marshall told Brown, “Nobody’s coming,” and,
asked by Brown who she had called, Marshall said “nobody.”
This is what Miller wrote in a June 25 email to Joel Brown
complaining about Marshall. However, it is notable that Cindy
Brown’s June 24 email to Joel Brown, copying Crumb, complaining about this very same incident does not state that Marshall told Brown that she did not call anyone. To the contrary,
Cindy Brown’s email states that Marshall told her that “all calls
had been made and emails sent no one is coming.” (R. Exh. 7).
There is nothing in Cindy Brown’s email indicating that Marshall said that she had made no phone calls.41
Later, as the staffing problems continued, Marshall was accused by various supervisors of being “disrespectful” and “con40 Formally, the entity I refer to as the cardiac department is called
the Cayuga Heart Institute, which is a part of CMC. The record does
not speak to the precise relationship between the entities.
41 Cindy Brown’s email indicates that “Jess [Miller] the cath lab
manager was present along with Cynthia Sullivan witnessing this conversation.” Neither Cindy Brown nor Sullivan testified. Crumb
claimed in her testimony that she talked to Cindy Brown about the
incident and Brown reported that Marshall “had told us that she had
made phone calls to bring staff in when, in actuality, she had not.” As
referenced above, the contemporaneous email from Cindy Brown does
not state this. Contrary to Crumb’s testimony, there is no evidence that
she was told by Brown that on June 24, that Marshall misstated whether
she had called staff.

 28

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

frontational” and other such inappropriate reactions. In particular, House Supervisor Cindy Brown urged in an email “severe
consequences” for Marshall’s refusal—with Marshall citing
safety concerns relating to staffing—to accept a directive from
Joel Brown that three patients be assigned to one nurse in order
to free ICU staff to take further patients.
More generally, in her testimony Miller complained about
Marshall, testifying that “just in general,” the cardiac department staff has had “a more challenging time interacting with
the ICU under [Marshall’s] leadership versus any other team
leader.” Miller dated the “increasingly more challenging” interactions with Marshall to “maybe two months prior” to these
late June incidents.
On Friday June 26, in the early afternoon, Marshall was accused of misstating whether she had phoned people to come in
to relieve the staff problems. Crumb testified that Ogundele,
the house supervisor, told her that Marshall had told her
[Ogundele] that Marshall said she made phone calls to try to
shore up staffing, but that later admitted to Joel Brown that she
did not actually call anyone. According to the email (R. Exh.
3) Ogundele sent to Brown at 1:38 p.m. (copied to Crumb,
Nohelty, and Pedersen), Ogundele came to ICU after a 12:30
p.m. call from Marshall concerned about upcoming staffing
levels at 3 p.m. During the call Ogundele asked Marshall “if
there was anyone that she can call[ ] in for overtime she said
she called everyone and no one called back.” Ogundele came
to ICU where she, Marshall, and Brown, stood together in front
of the board in ICU listing patients and staff, and Marshall and
Brown bickered about staffing. Brown went to his office to call
a nurse (Goldsmith) to see if he would come in that evening,
and the nurse said he would. “Joel then asked Anne to give
him the names of the nurses she had called so that he doesn’t
have to call them again, then she said she did not call anyone
after she told me she called everyone.”42
Brown also called Crumb to discuss the issue with her. According to the email (R. Exh 12) Brown sent to Nohelty and
42 I note that at trial, Ogundele told the story differently, and the trial
version included numerous internal discrepancies as well as discrepancies with her pretrial affidavit, sworn to on September 8, 2015, where
she indicated that these events took place much later in the day, and
that Brown—not Ogundele—had first asked Marshall if she had called
nurses to come in, and did so while the three stood at the board. According to the affidavit, after Brown left to call the nurse to come in, he
returned and asked Marshall who she had called and Marshall then said
she had not called anyone. Ogundele’s affidavit also stated that she
was summoned to the meeting at which Marshall was suspended just
ten minutes after the encounter with Brown and Marshall. Her trial
testimony was different still. She first testified that the encounter with
Marshall happened after the 2 p.m. bed meeting, and that Marshall told
Brown that she had called everyone but a few minutes later told Brown
“I didn’t call anybody.” She added while standing at the Board with
Brown that Marshall twice said that “it’s not my job.” However, when
presented with the 1:38 p.m. email, Ogundele corrected her testimony
to say that she received a call from Marshall around 12:30 p.m., and
that there was an emergency bed meeting around 1 p.m. to discuss the
staffing problems where Marshall stated (allegedly in front of Crumb
and other managers) that she had called all the nurses and no one was
willing to come in. According to Ogundele, the incident where Marshall then told Brown she had not called any nurses occurred after that.

Pedersen, copied to Crumb, at 1:25 p.m. June 26, Brown contacted Ogundele and told her to come to the ICU to assist with
the staffing problem that Marshall had just advised him about.
According to Brown’s email, in front of Ogundele, Brown and
Marshall had a testy exchange about whether a particular nurse
was considering calling off sick and whether Marshall would be
calling her again to find out if she was, in fact coming in.
Brown’s email stated that Ogundele had “earlier asked if calls
had been made and [Marshall] had told her that she had called.”
Brown then advised Ogundele that an emergency bed meeting
was needed, and then Brown contacted Crumb to request an
emergency bed meeting. At that point, according to Brown,
before the emergency bed meeting and before he went into his
office to call a nurse, Scott Goldsmith to come in, Marshall
stated “that she did not make any calls.”43
Notwithstanding the discrepancies regarding events, after
Brown and Ogundele sent their emails, Marshall was suspended
within about an hour or an hour and a half. But the record and
timing is murky. Pedersen admitted that the decision to suspend Marshall was made in a meeting he attended on June 26,
although he said that he did not make the decision. He testified
that the CEO of the Hospital, John Rudd was also in attendance, “and involved in the conversation.” In addition, the Medical Director and Vice President of Nursing was at the meeting.
It is unclear when this meeting took place, and given the time
line of events, it is a little mysterious. No testimony about this
meeting appears in the record.44
Crumb testified that she made the decision to suspend Marshall. She admitted conferring with Nohelty and Pedersen—
Nohelty to “let her know what was going on and for [Pedersen]
to be sure that were following the disciplinary process appropriately.” Crumb did not mention attending a meeting where
the decision was made, although that is possibly what was
meant by “confer.” She did not mention “conferring” with the
CEO or the Medical Director.
As noted, this was Marshall’s first disciplinary action in her
employment with the Hospital. Up to this date, her annual
evaluations had been exemplary. Crumb testified that the employer’s general practice with respect to disciplinary action is
“a progressive process.” According to Crumb:
Usually there’s a verbal warning that can be presented in writ43 In his testimony, Brown testified that he (not Ogundele as stated
in his June 26 email) asked Marshall if she had made calls to shore up
staffing “and she assured me that she did. That calls had been made
and she sent texts and emails and no one had responded to her.” According to Brown, after he called a nurse and got him to come in—
offering to make him charge nurse for the shift—the nurse told Brown
he had not been contacted before. According to Brown’s testimony,
Brown went out to the desk with Ogundele and Marshall and asked
Marshall who she had called so that he would not duplicate calls—and
Marshall told him she did not make calls.
44 As noted, above, I generally found Pedersen to be a credible witness. A possible exception is this suspension-decision meeting. I find
it hard to believe that it occurred on June 26, in the midst of a busy day
and just hours or even minutes after Crumb learned of Marshall’s incident with Brown and Ogundele. In any event, as discussed below, the
Respondent has offered almost no evidence on this meeting.

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

ing as a verbal warning; then a written warning; then suspension -- and that can be various lengths of time – and then termination.
Marshall’s suspension ignored this “usual” process.
Sometime between 2 and 3 p.m. that afternoon Marshall was
called into the ICU conference room for a meeting with Crumb,
Joel Brown and Ogundele. Crumb told Marshall that someone
had told her that Marshall had not made phone calls to bring in
staff that she had previously indicated she had made. Marshall
told Crumb and Brown that “I did make phone calls.” She told
them “I did not call every single person on the list but that I did
make calls. And that they were aware that there were holes in
the schedule.”
Marshall was told that she was suspended for the remainder
of the shift (approximately four hours, from 3 PM to 7 PM and
for the next day (Saturday 7 a.m. to 7 p.m. shift). Marshall left
at about 3 p.m., Friday and served her suspension for the remainder of the day and for the Saturday shift. Her first scheduled day back to work was Wednesday July 1.
Marshall met with Crumb and Brown again on July 1. As in
the suspension meeting of the previous Friday June 26, Crumb
did most of the talking. Crumb began stating that “we wanted
to get back together . . . to talk about what your plans are to be
successful in charge nurse role.” Marshall pointed out that in
eight years, “I’ve had excellent evaluations. . . . I’ve been promoted. I’ve never had a disciplinary action. . . . And I take
care of my patients and the staff to my best ability.”
Crumb told Marshall her concern was that Marshall told
“your director or our house supervisor that your role that day
that you were too busy in order to make phone calls.” Marshall
responded, “I did make phone calls that day. . . . I stated to
Cindy Brown that I had made phone calls and that nobody was
coming. She was aware of it. I had said it in the morning in
the bed meeting. Chrissy brought it up to Joel Tuesday, before
that day. I made calls. . . . I made as many calls as I possibly
could while taking care of patients.”
In the face of Marshall’s insistence that she made calls,
Crumb said, “Well, well, all I know is that the information that
I got from an outside employee outside of ICU, said that there
was a conversation that she heard you say, no, I did not make
any calls.”
Marshall said, “Well, that’s not what I said. I did make calls.
. . . I even came in on Thursday evening, on my own time, to
make sure there would be enough staff for Friday morning, and
that calls were made.” Marshall reiterated this, and stated that
there were only so many calls that she can make if she is to take
care of patients too. Crumb said, “Well, obviously there was a
big communication . . . . issue here. So going forward, my
expectation would be that you will communicate with your
director or the house supervisor.”
Crumb then turned the conversation to Marshall’s demeanor,
telling her that “there are times where you—you come across
kind of, I don’t know what the right word is, Ann, but I don’t
want to say ‘antagonistic’ but that’s what it feels like sometimes.” Marshall said she was “sorry that’s people’s interpretation. That’s not how it’s meant to sound.” Crumb said that

29

“we’re not working well together as a team” and “the more we
can stick to the code of conduct . . . all of us, the better off that
we’re going to be.” Marshall agreed with these sentiments.
They then talked about the procedure for filling “holes” in
the schedule, and Crumb agreed (“That’s fair”) with Marshall’s
statement that “It’s not just my responsibility or any other team
leaders’ responsibility to make sure they’re filled. Everybody
has to make sure they’re filled.” Brown expressed agreement
with this. (“Absolutely”). Crumb and Marshall talked about
the challenges of “filling holes” in the schedule, and that calls
can be made even before the schedules come out. But Crumb
directed the conversation back to “collegiality” and suggested
that Marshall’s tone in bed meetings when she told others at the
meeting that additional patients could not be taken at ICU was
“not helpful.” Marshall replied that at the bed meetings she
says “this is where we are, I can take this many more until I
have more staff.” Crumb said, “I just really would appreciate if
we could work closer together . . . as a team. And not against
each other.” Marshall agreed with this. (“Absolutely”). Asked
if he had “any other expectations” for Marshall, Brown said,
“Just the code of conduct . . . . And the professional demeanor.
Me and you, you know, we seem to be at odds; we need to be
seen as a cohesive team.” Marshall agreed with this. The
meeting turned to immediate scheduling issues that needed to
be handled, and the meeting ended soon after.
On July 8, Crumb met with Marshall regarding the June 26–
27 suspension. Crumb asked Marshall why she felt that the
suspension “should be lifted.” Marshall said that in the July 1
meeting Crumb had “said that it was a miscommunication” and
Marshall did not think a miscommunication warranted a suspension. Crumb denied using that term and said that “I think
that the issues that we talked about were not only the issue of
finding staffing” but also “that you stated that you made phone
calls.” Crumb told Marshall that “you admitted to three different people that you had not made phone calls.” Marshall denied that she admitted this. She said, “And people will tell you
I made phone calls. They will tell you that I called them. Did I
call every single person on the list. No.” Crumb responded,
“That’s where . . . I may have said ‘miscommunication.” That
you did not make it clear that you had not made calls to everyone, because that’s . . . what they heard.” But Crumb added,
“but that’s not the only thing that was concerning. . . . [Y]our
behavior throughout the whole process. You know, you were
confrontational. You were less than helpful in problem solving.” Marshall disagreed, stating that she had “brought up numerous times that we had staffing holes. I had made calls. I
came in on my day off to make calls to make sure the next day
was completely staffed. . . . So I don’t know what more I can
do. We put out that schedule. Joel approved it. He knew days
ahead that we were in a crisis as far as staffing. He let five day
people go on vacation at the same time. That’s crazy. So
there’s nobody to call if they’re not working.” Crumb agreed
that all the vacations were “[n]ot helpful” but stated, “I believe
that your approach and your less than professional conduct are
more the reason why that you were suspended.” Marshall disagreed, contending that Browns’ scheduling had led to the staffing crisis, and indicating that “nothing’s fixed. Tomorrow
there’s no charge nurse and there’s four nurses off.”

 30

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Crumb said, “Okay. Well, I’m going to uphold the suspension. I believe your behavior was inappropriate at times, confrontational, and disrespectful.” Marshall said she disagreed.
Crumb said, “you can disagree. Going forward, we looked at
talking about upholding the code of conduct, like we discussed
it at the team leader meeting.” Crumb then produced a letter
documenting the suspension. The letter was dated July 1, and
stated, in part:
This memo will confirm our decision to suspend you without
pay for your scheduled shifts on Friday June 25 and Saturday
June 27 due to your performance as a Team Leader and
Charge Nurse, where your actions regarding placement of patients in the ICCU was not appropriate. In addition, your interactions with other staff members was not professional and
you purposely were not truthful regarding the contact other
staff members to determine availability
Marshall wrote a note at the bottom indicating she did not
agree with the document.
Analysis
The General Counsel alleges that Marshall’s June 26 suspension was unlawful. In her brief, counsel for the General Counsel alleges, first, that the suspension was unlawful because it
was based on unlawfully overbroad rules. However, that allegation is not contained in the complaint—indeed, while it is
alleged in the complaint as to other actions taken against Marshall, it is specifically omitted as to the suspension. See, complaint paragraph XII(g), as amended by the notices of intent to
amend (GC Exh. 1(r) and ALJ Exh. 2 and Tr. 9–16), omitting
complaint paragraph XII(a) from reference in complaint paragraph XII(g) and XIII. Hence, I do not consider that argument.
The complaint does allege, as also argued by the counsel for
the General Counsel, that Marshall’s suspension constituted
unlawful antiunion discrimination in violation of Section
8(a)(3) of the Act. See, complaint paragraphs XII(a), (g) and
XIV. I turn now to that argument.
The Supreme Court-approved analysis in 8(a)(1) and (3) cases turning on employer motivation was established in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). See NLRB v. Transportation Management Corp., 462 U.S. 393, 395, (1983) (approving Wright Line analysis).
The Wright Line test, while applicable to pretext cases in
which the employer has no legitimate motive for the action
taken against an employee, was chiefly adopted as a mode of
analysis in the “dual motive situation where the legitimate interests of the parties most plainly conflict.” Id. at 1083:
In such cases, the discipline decision involves two factors.
The first is a legitimate business reason. The second reason,
however, is not a legitimate business reason but is instead the
employer’s reaction to its employees’ engaging in union or
other protected activities. This latter motive, of course, runs
afoul of Section 8(a)(3) of the Act. [Id.].
In Wright Line, the Board determined that the General Counsel carries his burden by persuading by a preponderance of the

evidence that employee protected conduct was a motivating
factor (in whole or in part) for the employer’s adverse employment action. Proof of such unlawful motivation can be based
on direct evidence or can be inferred from circumstantial evidence based on the record as a whole. Robert Orr/Sysco Food
Services, 343 NLRB 1183, 1184 (2004), enfd. 184 Fed. Appx.
476 (6th Cir. 2006); Embassy Vacation Resorts, 340 NLRB
846, 848 (2003).
Under the Wright Line framework, as subsequently developed by the Board, the elements required in order for the General Counsel to satisfy its burden to show that an employee’s
protected activity was a motivating factor in an employer’s
adverse action, “are union or protected concerted activity, employer knowledge of that activity, and union animus on the part
of the employer.” Adams & Associates, Inc., 363 NLRB No.
193, slip op. at 6 (2016); Libertyville Toyota, 360 NLRB 1289,
1301 (2014); enfd. 801 F.3d 767 (7th Cir. 2015).
Such showing proves a violation of the Act subject to the following affirmative defense: the employer, even if it fails to
meet or neutralize the General Counsel's showing, can avoid
the finding that it violated the Act by “demonstrat[ing] that the
same action would have taken place in the absence of the protected conduct.” Wright Line, supra at 1089. For the employer
to meet its Wright Line burden, it is not sufficient for the employer simply to produce a legitimate basis for the adverse
employment action or to show that the legitimate reason factored into its decision. T. Steele Construction, Inc., 348 NLRB
1173, 1183 (2006). Rather, it “must persuade that the action
would have taken place absent protected conduct by a preponderance of the evidence.” Weldun Int’l Inc., 321 NLRB 733
(1996) (internal quotations omitted), enfd. in relevant part 165
F.3d 28 (6th Cir. 1998). See NLRB v. Transportation Management Corp., 462 U.S. 393 (1983) (approving Wright Line
and rejecting employer's claim that its burden in making out an
affirmative defense is met by demonstration of a legitimate
basis for the adverse employment action).
If the employer fails to prove that the same action would
have taken place in the absence of protected activity, then the
General Counsel’s initial showing that unlawful motive was a
part of the reason for the adverse action proves the violation. In
such cases, the Board will not weigh the relative quantity or
force of the unlawful motive compared to the lawful motive:
the violation is established if the employer fails to prove it
would have taken the action in the absence of protected activity. 45
Applying Wright Line to Marshall’s June 26 suspension, the
45

As the Board explained in Wright Line:
in those instances where, after all the evidence has been submitted, the
employer has been unable to carry its burden, we will not seek to
quantitatively analyze the effect of the unlawful cause once it has been
found. It is enough that the employees' protected activities are causally related to the employer action which is the basis of the complaint.
Whether that "cause" was the straw that broke the camel's back or a
bullet between the eyes, if it were enough to determine events, it is
enough to come within the proscription of the Act.

Wright Line, supra at 1089 fn. 14.

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

General Counsel’s prima facie case is easily met. Marshall was
a vigorous and open supporter of the union drive at the Hospital. The Respondent’s knowledge of this is not in doubt. She
was identified as “a ringleader” by management as of May 8,
and her activities were reported to management, and indeed, a
report on her activities was solicited on June 2, and the response included reference to her union activities. The Respondent’s knowledge of Marshall’s union activity is not a
disputed issue in this litigation. (See, R. Br. at 24; Tr. at 161.)
Finally, the element of union animus on the part of the employer is firmly established. I note that in evaluating the element of union animus in the Wright Line test, the Board holds
that it is unnecessary for the General Counsel to make a “showing of particularized motivating animus towards the employee’s
own protected activity or to further demonstrate some additional, undefined ‘nexus’ between the employee’s protected activity
and the adverse action.” Libertyville Toyota, 360 NLRB 1298,
1301 fn. 10; Adams & Associates, Inc., 363 NLRB No. 193,
slip op. at 6 (“we emphasize that such a showing is not required”). However, in this case, there is significant evidence of
animus directed like a laser on Marshall and her union and
protected activities.
Marshall’s extensive posting of union materials in the hospital and distribution of union materials in the break room were
met with a vigorous, concerted, and unlawful effort to remove
that literature. Crumb rallied employees and managers with the
admonition: ““They have the right to put up and we have the
right to take down”—this was in direct response to a report of
Marshall’s union activity. Brown took down Marshall’s postings as many as four times a day and he testified that he turned
in the confiscated union materials to the HR office. Moreover,
Marshall was personally threatened—told that management
knew she was the “ringleader” of the union movement and
threatened that if she did not stop, the HR department would
get involved.
In addition to this documented animus, there are additional
suspicious features surrounding the suspension that raise an
inference of discrimination under the circumstances. For one
thing the process of deciding on the suspension was unusually
hasty, and shrouded from view. Crumb testified that she made
the decision to suspend Marshall. However, Pedersen testified
that the decision was made in a meeting he attended on June 26
where the Medical Director and the Vice President of Nursing
and the CEO were present. According to Pedersen, the CEO of
the Hospital was there and “involved in the conversation.” The
involvement of these people in a disciplinary decision is itself,
unusual, as Pedersen’s testimony made clear.
While we have no details about what was discussed at this
meeting, or when on June 26, it was conducted, what is clear is
that if the story is true then in the middle of a hectic day otherwise devoted to a staffing crisis in the ICU, this group of top
administrators found time to meet and in that meeting to make a
decision to suspend Marshall. Marshall’s encounter with
Brown and Ogundele occurred sometime between 1 p.m. and
after 2 p.m., depending on which of the conflicting management testimony is accurate. In between the staffing crisis in
ICU, the emergency bed meeting, the regular bed meeting at 2
p.m., time was made to make a decision to suspend Marshall,

31

and this news was delivered to her in a meeting with Crumb,
Ogundele, and Brown sometime before 3 p.m. Alternatively, as
I suspect is possible, the decision to suspend Marshall was
made earlier in the week, and the meeting of June 26, merely
confirmatory, the incident on June 26, seized upon to justify a
decision already made.
Importantly, the resort to suspension for an employee who
had no prior disciplinary record is—we know from Crumb—
“unusual” and at odds with normal practice. Crumb testified
that the employer’s general practice with respect to disciplinary
action is “a progressive process.” According to Crumb:
Usually there’s a verbal warning that can be presented in writing as a verbal warning; then a written warning; then suspension—and that can be various lengths of time—and then termination.
As noted, before the suspension Marshall had an unblemished disciplinary record, and as discussed below, an unbroken
record of superlative annual reviews. For reasons unexplained,
in Marshall’s case the disciplinary process began with suspension. The Respondent did not follow its “usual” process with
regard to Marshall’s initial discipline. Of course, the Respondent is not bound by any progressive discipline system, but it
offered no explanation (credible or otherwise) for ignoring the
“usual” process here. This unexplained failure to abide by the
progressive discipline is a factor raising an inference of discriminatory treatment under the circumstances. AdvoServ of
New Jersey, 363 NLRB No. 143, slip op. at 33 (2016).
Further, it is notable that Crumb’s “investigation” of Marshall did not involve getting Marshall’s side of either the June
24 or June 26 incidents before the decision to suspend her was
made. The array of emails that poured into Crumb’s office in
the 40 hours before she was suspended appear to be an obvious
effort to document Marshall’s misconduct. But the significant
discrepancies in these accounts, the known antiunion bias
against Marshall of Joel Brown, who zealously collected, cut
and pasted and forwarded these emails to Pedersen (R. Exh. 6)
and the complicated, fluid, and ambiguous dynamics of each
situation for which Marshall was punished, only add to the
suspicion raised by the fact that neither Crumb nor anyone else
in management showed interest in getting Marshall’s side of the
story before deciding to suspend her. Nor did Crumb make any
effort, for instance, to check with off-duty nurses or otherwise
attempt to verify whether or not Marshall made the staffing
calls she claims she made—the issue which the Respondent
situates as the heart of her offense.46
46 Diamond Electric Mfg., 346 NLRB 857, 860 (2006) ("the failure
to conduct a meaningful investigation or to give the employee [who is
the subject of the investigation] an opportunity to explain may, under
appropriate circumstances, constitute an indicia of discriminatory intent. The Board has considered this factor in several recent cases to
find discharges unlawful where employees were denied the opportunity
to provide a potentially exculpatory explanation prior to being discharged, and to dismiss allegations of unlawful discharge where such
an opportunity was provided") (Board's bracketing) (footnotes omitted)
(quoting K&M Electronics., 283 NLRB 279, 291 fn. 45 (1987) (" The
failure to conduct a meaningful investigation or to give the employee

 32

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Thus, the General Counsel has demonstrated and I find that
antiunion animus was a motivating factor—and a significant
one—in Marshall’s June 26 suspension. Under Wright Line,
this proves a violation of the Act, subject to the Respondent’s
defense. The Respondent can avoid a finding that it violated
the Act by demonstrating by a preponderance of the evidence
that the same action would have taken place even in the absence of the protected conduct. Boothwyn Fire Co. No. 1, 363
NLRB No. 191, slip op. at 7 (2016); Willamette Industries, 341
NLRB 560, 563 (2004); Wright Line, supra.
The Respondent has not met its burden on this record. First
of all, as mentioned above, the decision to suspend Marshall is
shrouded. However, we know from Pedersen’s testimony that
the involvement of so much senior management is unusual.
The Respondent chose not to explain for the record what happened at this meeting. Given the Wright Line evidentiary burdens, the unusual and the opaque nature of this meeting must
weigh against the Respondent’s claims that it would have taken
the same action against Marshall in the absence of her activity.
Second, there is no evidence at all that the Respondent has
ever suspended or taken action against an employee for anything remotely similar to charges levied against Marshall. The
Respondent relies (R. Br. at 29) on what it denominates as “five
other similarly-situated employees who were similarly disciplined for engaging in roughly comparable violations”—but
this evidence is undermining to the Respondent’s case.
What is the comparator evidence offered by the Respondent?
1. In April of 2016, an employee (probably a pharmacy tech)
received a verbal warning for “verbally abusing” another employee or manager (the name is redacted), calling them an “ass
hole” and “using curse words loudly enough to be heard from
the hall.” 2. In October 2016, an RN employee was suspended
for two days “after counseling, coaching, written warning, and
[an] improvement plan with goals,” the employee engaged in
“threatening behavior toward other peers” and “criticiz[ed]
coworkers and uses rudeness.” 3. In May 2012, an RN employee from the emergency department received a final written
warning after “repeated . . . explosive and aggressive behavior,
hollering profanity, and slamming of patient charts in the patient care area . . . witnessed by patients and their families.”
The employee had been “counseled numerous times in the past
following the disciplinary process for this exact behavior . . . .
The explosive behavior and rage that [name deleted from record exhibit] demonstrates makes the entire interdisciplinary
team in the Emergency Department and support services feel
threatened and unsafe.” 4. In July of 2009 an employee was
suspended for three days—the offending conduct is not dean opportunity to explain has been regarded as an important indicia of
discriminatory intent"); Amptech, Inc., 342 NLRB 1131, 1146 (2004)
(failure to inquire of [disciplined employee] as to what had occurred
constituted a rush to judgment attributable to Respondent's unlawful
motivation to take adverse action against the leading pro-union employee on the premises"), enfd. 165 Fed. Appx. 435 (6th Cir. 2006);
Southern Electronics Co., Inc., 175 NLRB 69, 72 (1969), enfd. 430
F.2d 1391 (6th Cir. 1970) (investigation . . . was a one-sided affair with
the purpose not being to determine precisely what occurred in the
stockroom that morning, but rather to secure sufficient reasons to justify a discharge").

scribed in the disciplinary letter of this six-year old incident. 5.
In February 2006, an employee—Scott Marsland, in fact—
received a written warning for “lost temper” “foul language”
“angry, ‘hateful’” ineffective feedback.
Marshall’s suspension for a first ever offense stands in stark
contrast to the historical record provided by the Respondent for
the purposes of buttressing its case. There was no counseling
for Marshall. No “written warning,” no improvement plan
preceding suspension. Rather, the Respondent, in an apparent
unprecedented action, went straight to suspension for Marshall.
I will not consider this evidence, offered by the Respondent as
evidence of disparate treatment which would add to the weight
of the General Counsel’s case,47 but it stands there unexplained,
strongly undermining the Respondent’s claim (and burden to
show) that it would have taken the same action against Marshall in the absence of protected activity. AdvoServ of New
Jersey, 363 NLRB No. 143, slip op. at 33 (2016).
The Respondent’s position is that Marshall’s conduct on
June 24 and June 26 was so egregious that it would have taken
the same action against her even in the absence of her record of
union activity. At bottom, the argument amounts to the contention that, although once a stellar employee, since the advent of
the union drive, and since Brown played the Marilyn Manson
song to the nurses—prompting a sexual harassment charge filed
by Marshall—this previously heralded employee had been difficult to work with, “outspoken” and “condescending,” “aggressive” “disrespectful” and even dishonest about resolving
the staffing shortfalls. And that this misconduct would have
prompted the suspension even in the absence of her protected
activities.
I think it clear that there was a concerted effort to document
incidents about Marshall. We know that a report on her activities was requested from Pedersen, for “Ray,” as early as June 2.
It is hard to believe that the panoply of emails sent to Crumb
regarding events on June 24 and June 26 were all independently
initiated. In particular, Brown’s June 25 afternoon email (R.
Exh. 6) sent to Pedersen with the subject line “Timeline” is a
remarkable compilation of every complaint about Marshall
from the previous day and stretching into the previous weekend, including the overly-exacting complaint that Marshall did
not correct other employees’ conversations (see R. Exh. 6, p.
3). Although not included with the exhibit, the document states
that it has attached emails, hand copy of letters, code of conduct
violations, and an outline. This compendium of complaints
about Marshall and reports on her from managers and coemployees was provided to Pedersen before the events of June
26.
It is unexplained why Brown provided this to Pedersen.
Clearly, Marshall was in the sights of the Respondent. Her
actions were being documented with great care.
That is easy. But why? This is where, even giving the Respondent the benefit of the doubt, the Wright Line burdens of
proof leave the Respondent’s case foundering. I do not and do
not need to defend all of Marshall’s conduct. I assume that this
is a “dual motive” case. In other words, I assume that the Re47

Avondale Industries, 329 NLRB 1064, 1066 (1999).

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

spondent had legitimate grounds for their frustration with Marshall.
But the issue is whether the Respondent has proven that it
would have taken the same action—i.e., it would have suspended Marshall on June 26—in the absence of her union and protected activity. ManorCare Health Services, 356 NLRB 202,
228 (2010) (employer's Wright Line burden requires it to prove
"it would have taken the same action against" employees in the
absence of union activity) (Board's emphasis), enfd. 661 F.3d
1139 (D.C. Cir. 2011).
The record leads me to disbelieve this defense. The unexplained and admittedly “unusual” resort to suspension for a first
time offense, the zealous effort to “paper” the record with inconsistent management accounts of Marshall’s failings, but
with no real interest by Crumb in determining what actually
happened, the affirmative inconsistency of the comparator evidence with Marshall’s offense, and the unexplained top level
meeting where the decision to suspend Marshall was made, all
undermine the Respondent’s claims that Marshall would have
been suspended for her conduct in the absence of union activity. I find that Marshall’s suspension violated Section 8(a)(3) of
the Act.48
Finally, and independently, I note a further and glaring additional problem for the Respondent’s defense, even if it’s
claimed motive for the suspension was accepted. While I have
heretofore assumed that Marshall’s alleged misconduct presented a legitimate grounds for dissatisfaction with Marshall, in
fact, Marshall’s alleged misconduct on June 24 and June 26
directly related to her efforts to challenge the Hospital on their
methods and practices with regard to staffing.
The misconduct attributed to her—from the claim by Cindy
Brown that there should be “severe consequences” for Marshall’s refusing to assign three patients to one nurse for reasons
of safety, to the claims that she was belligerent, uncooperative,
and “difficult” about solving the ICU’s staffing problems—is
all conduct deeply rooted in protected and concerted activity.
Even the conflict over whether and how many times she represented that she called off-duty staff is, in its essence, part of the
res gestae of Marshall’s fight for enough staff. The record is
one of Marshall—albeit with discord and defensiveness—
advancing an issue that was central to the nurses concerns and
to the union drive. As one nurse told Crumb—in comments
discussed more below—Marshall “fights for enough staff” and
“the Adm doesn’t listen about the true staffing needs.”
The point is not whether Marshall was wholly right or
wrong. The point is not whether Marshall engaged in misconduct, or acted defensively and at times antagonistically. The
point is that the source of the conflicts reported by management
to Crumb on June 24 and June 26 involve as their res gestae
protected and concerted activity by Marshall. Marshall’s “misconduct” must be considered through that lens. Goya Foods
Inc., 356 NLRB 476, 477 fn. 8 (2011) (“Where, as here, the
conduct at issue arises from protected activity, the Board does
48 As any conduct found to be a violation of Sec. 8(a)(3) would also
discourage employees' Sec. 7 rights, any violation of Sec. 8(a)(3) is also
a derivative violation of Sec. 8(a)(1). Chinese Daily News, 346 NLRB
906, 933 (2006), enfd. 224 Fed. Appx. 6 (D.C. Cir. 2007).

33

not consider such conduct as a separate and independent basis
for discipline.” As to this misconduct, "the pertinent question
is whether the conduct is sufficiently egregious to remove it
from the protection of the Act." Stanford Hotel, LLC, 344
NLRB 558, 558 (2005); Roemer Industries, Inc., 362 NLRB
No. 96, slip op. at 6 (2015).
“[T]he standard for determining whether specified conduct is
removed from the protections of the Act [is] as articulated by
the Board: communications occurring during the course of
otherwise protected activity remain likewise protected unless
found to be 'so violent or of such serious character as to render
the employee unfit for further service." St Margaret Mercy
Healthcare Centers, 350 NLRB 203, 204–205 (2007), quoting
Dreis & Krump Mfg. v. NLRB, 544 F.2d 320, 329 (7th Cir.
1976). None of Marshall’s misconduct meets that standard. In
short, the Respondent’s Wright Line defense is based on actions that are themselves violative of the Act. Thus, even if the
Respondent’s argument that it would have suspended Marshall
in the absence of her union activity is accepted, it would not
provide the Respondent a defense. Instead it would prove that
the Respondent had disciplined Marshall for conduct that, at its
core, was protected and concerted activity. However, this issue
need not be reached, as I have found, for the reasons set forth
above, that the Respondent would not have suspended Marshall
on June 26, in the absence of her union activity.
2. Complaint paragraph XII(b) and (c)
(The verbal warning)
a. The QA incident filed by Brown
On July 3, there was another incident between Brown and
Marshall. This incident resulted in a verbal warning being
issued to Marshall on July 10.
On July 3, the ICU was particularly short-staffed, and was
missing a clerk who had transferred, and her replacement had
not yet begun work at ICU. A new patient was being admitted
and a nurse, Robert Stires, asked Brown if he would take his
patient for a scheduled testing procedure because the admission
needed to be handled. Brown said no. Marshall went to Brown
and said, “we need some help” but Brown again said that he
could not assist. Marshall appealed to him, explaining the predicament the unit was in. Marshall told Brown, “If you can’t
take the patient I need to take the patient because Robert had
another one on multiple drips that was intubated and he
couldn’t leave that patient.” Marshall asked Brown, “can you
at least get me a ward clerk so somebody can be up here entering orders.” According to Marshall, she stood in the hall by the
doorway to the floor’s kitchen while Brown used the phone on
the desk in the hall opposite the kitchen door to call for a ward
clerk. This would mean that Brown and Marshall were 3–4 feet
apart (based on review of the photo of the area in General
Counsel’s Exhibit 26). Brown said, “you don’t have to stand
there.” Marshall said, I want to know what’s going on before I
leave [to take the patient for the test].
Brown’s account is different. He testified that he rejected
Marshall’s request that he take the patient for a scan and asked
Marshall to do it. Brown testified that Marshall said she could
not because she was acting as the ward clerk. Brown asked the
PICC nurse Sullivan to watch the phones while Marshall took

 34

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

the patient for the scan. Brown got on the hallway desk phone
to call for a unit clerk to assist and said that “when I turned
[Marshall] was almost nose to nose with me.” Brown said he
asked her to “step back” and she said, “I can stand anywhere I
want.” Brown testified that Marshall refused to step back and
so he stepped back to the desk, hung up the phone, and went
around her.
A few minutes later Brown filed an incident report into the
hospital’s QA system, an internal system for reporting incidents
that occur with staff or patients, or anyone else. While there
was conflicting testimony by Brown and Marshall about the
incident (describe above), the QA report filed by Brown stated,
in pertinent part:
I was asked by Ms. Anne Marshall to get a ward clerk to assist her. At this point I took two steps back and picked up the
phone to call the house supervisor. While it was ringing Ms.
Marshall had entered my personal space. I looked at her and
told her “you do not have to stand there” [.] Her response was
“I can stand where I want.” I then turned my back to her and
secured a UC from the house supervisor. I hung up the phone
and advised Ms. Marshall, who was still in my personal space
that a clerk was on their way.
Later that day Marshall received an email indicating that
Brown had filed the internal complaint (the QA) against her.
Marshall approached Brown in his office, and standing in his
office doorway, asked Brown if they could talk about the QA.
According to Marshall, Brown said, “absolutely not. Get out of
my office or I’ll have you removed by security.” Brown’s account varied only in that he testified that he threatened to call
security after Marshall repeatedly refused to move out of his
doorway. Brown also told Marshall that she could “talk to Dr.
Hannon”—a doctor working on the ICU—about the QA, because Hannon had witnessed the incident that was the basis of
the QA. Marshall asked for an administrator on call. Brown
left and met with the administrator, Tony Votaw, and they discussed the issue. Votaw then came up to the floor after Marshall called him again. Votaw told Marshall that she “was
picking on Joel.”
Crumb received the incident report and Brown called her and
told Crumb not just about the “personal space” incident in the
QA but also the aftermath. According to Crumb’s notes,
Brown said “he felt trapped” by Marshall when she stood in the
doorway and after he asked her to leave repeatedly he asked to
her to “stop harassing him” and “told her he would call security.”
b. Crumb’s investigation
Crumb decided to conduct an investigation of the matter.
She called or saw each staff member working that day in the
area to “ask if they had either heard or seen or witnessed any
behaviors [or[ interactions between Joel and Anne.” Crumb
made notes of her conversation. None of the notes Crumb took
reveal anything remotely resembling Brown’s account.
According to Crumb’s notes of her investigation, one nurse
“heard them talking about staffing with no negativity.” Two
nurses had heard about the incident only from Marshall and one

nurse advised Marshall to try to talk to Brown. However, after
Marshall did so she came back and told the nurse that it “wasn’t
any help b/c Joel asked her to leave + if she didn’t he was going
to claim harassment.” The physician, Dr. Hannon, was in his
office next to Brown’s. “[H]e heard
Anne say can we talk about this and Joe’s response was stop
harassing me. He could not hear anything else and the conversation was brief.” The ICU educator, Newton told Crumb that
“Joel just wants to find a way to fire h[er].”49 Some of the interviewees were critical of Brown: saying that he “holds
grudge,” that Marshall asked Brown “for help + he refused,”
and that he offers extra money to some nurses and not others.
One nurse told Crumb that Marshall “fights for enough staff”
and that “the Adm doesn’t listen about the true staffing needs.”
Crumb’s notes state that Cynthia Sullivan told her that “interaction with Joel + Anne is unprofessional [and] embarrassing.”
Crumb also took a report from Marshall, which mirrored her
testimony, cited above.
Notwithstanding these reports, “based on my investigation”
Crumb concluded that Marshall violated the COC and Brown’s
“personal space” and deserved a verbal warning for being confrontational. Crumb said she based this on Brown’s account
and the account she says she received from PICC nurse Sullivan. Brown’s account, essentially, is set forth above and in the
QA report. Sullivan’s supposed account of events warrants a
few remarks.
Crumb testified that she talked to Sullivan and Sullivan told
her it was “an unpleasant situation” between Brown and Marshall, and that Marshall was “real close” to Brown, and that
Brown “asked [Marshal] to step back because she was in his
personal space, and he felt uncomfortable.” According to
Crumb, Sullivan also told Crumb that Marshall thought . . . that
she was not in his personal space.”
Sullivan did not testify. Crumb consistently relied on documents and leading questioning to assist in her testimony. That
is of particular concern here.
General Counsel’s Exhibit 41 is a typewritten document created by Crumb. She identified (Tr. 964) this document as the
notes she took about her conversations when she interviewed
the nurses about the Brown/Marshall incident. (The document
begins: “Interview with staff about the incident with Joel
Brown and Anne Marshall.”)
However, it turned out that this typed document was a condensation, derived from handwritten notes of the conversations
she had with the nurses (and others). The typed notes were
created perhaps a week after Crumb took the handwritten notes.
The existence of the original handwritten notes came to light
only at trial through questioning of Crumb, after extensive testimony by her about the investigation, using GC Exhibit 41 as
an aid to her testimony. The original handwritten notes were
not produced pursuant to subpoena. Asked their whereabouts,
Crumb testified “I think they are in Alan’s car.” The handwritten notes were retrieved, produced to the General Counsel, and
placed into evidence as General Counsel’s Exhibit 42.
There are differences between the typed document that
49 Crumb wrote “him” about this incident which involved Brown
and Marshall. I find that Crumb meant to write “her.”

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

Crumb created and first presented as the notes of her investigatory conversations and the handwritten originals. These differences raise serious concerns. The handwritten notes contain far
more critical comments about Brown. These are not found in
the typed notes. Also excised from the typed document are
comments that “Anne fights for enough staff” and that the
“Adm doesn’t listen about the true staffing needs. etc” and that
“Joel just wants to find a way to fire h[er],” among other comments. Also missing from the typed document is Crumb’s note:
“Interviewed 8 staff on that day. Asked if they saw or heard any
interaction between Joel + Anne? Were they aware of any? All
8 did not witness anything.”
The omission of these notes from the typed version of the
notes provided in response to the subpoena and presented at
trial as the notes of the investigation, is highly suspicious. No
explanation was provided. Perhaps most suspicious, given
Crumb’s testimony that she ignored the comments of the staff
whose input she solicited, and relied on Brown and Sullivan’s
opinions in determining to issue discipline to Marshall, is the
fact that Crumb’s contemporaneously taken handwritten notes
do not contain Sullivan’s indictment of Marshall’s conduct to
which Crumb testified. The handwritten notes of her conversation, from which Crumb claimed to have created the typed document, state as to “Cynthia”: “interaction with Joel + Anne is
unprofessional [and] embarrassing.”
However, the typed notes do not contain that neutral statement from Cynthia Sullivan. Rather, inexplicably, the typed
notes refer to Sullivan as having “Reviewed her rewritten
statement.” There is no statement, written or rewritten from
Cynthia Sullivan in the record. There is no explanation offered
for how or why Sullivan’s interview on the issue appears to
have been conducted differently, and at a later time, than the
interview of the other staff found in the original notes. Given
Crumb’s testimony on how she went about her investigation
and the creation of the typewritten investigation notes, and
given the record evidence of Sullivan’s dislike for Marshall’s
union activity and her active engagement, with Crumb’s support, in “thr[owing] out” Marshall’s union postings and complaining about Marshall’s union activities, and, given that, unlike Marshall, Sullivan was considered “loyal” to the Respondent, this is all painfully suspect. 50 Suffice it to say that the
notes Crumb claims to have made of her interviews with staff
do not include the indictment of Marshall’s conduct by Sullivan
that Crumb claimed was made to her. The reference in the
50 GC Exh. 45 (June 19 email from employee Cynthia Sullivan to
Crumb and Brown, forwarded to Pedersen: “Must be I threw out
enough of hers because now she’s using hospital paper & green paper is
in our copier right now”; Brown followed up with an email at the top of
the exhibit that makes clear that Sullivan was referring to Marshall);
GC 46 (June 19 email from employee Cynthia Sullivan to Brown,
forwarded to Pedersen, on the subject of “union propaganda”: “it’s
really annoying that Anne has to spend her time hanging up union
postings instead of doing her job as the charge RN. . . . As fast as they
are thrown away off the breakroom table she puts out new ones”); GC
Exh. 48 (June 2 email from Brown to Pedersen, describing Marshall as
“continu[ing] to post, call and have conversations about unionization.
She is also rude to those that are loyal to CMC and to any leadership
that she comes in contact with (i.e., . . . Cynthia Sullivan”).

35

typed version of the notes to Sullivan reviewing a “rewritten
statement” suggests that the Respondent has not revealed the
full or real process used to discipline Marshall. The weight of
the evidence is that the results of this investigation were
rigged.51
a. Crumb’s July 8 meeting with Marshall
During the July 8 meeting at which Marshall had been issued
her suspension letter (discussed above) Crumb turned the discussion to the previous Friday, July 3, and the incident that
Brown reported to the QA. Marshall explained her version of
events regarding the staffing issues that led to her dispute with
Brown, as described above. Crumb asked Marshall if she
blocked the doorway of Brown’s office. Marshall stated, “No.
And Dr. Hannon was right there, and I’m sure if you ask him
he’ll tell you exactly what happened and how nasty Joel was to
me.” Crumb indicated that was “going to call everybody that
was on shift that day” and “I’ll try to get hold of Dr. Hannon.”
b. Crumb’s July 10 meeting with Marshall; issuance
of warning
Another meeting was held July 10, two days later, to talk
about the incident Brown reported to QA and its aftermath.
Crumb declared that it was “more of a he said/she said . . . sort
of situation. I think that after we talked the other day, we
talked about the code of conduct. . . . And I think that I’m going
to give you a verbal warning, that I know—the code of conduct—happened. . . . . People find you to be confrontational
and disrespectful.” Marshall said she had followed the code of
conduct and Crumb replied, “maybe we need to work on why
others don’t feel that.” Marshall interjected, “I think we need
to look at who the others are that feel I don’t.” Crumb said,
“Okay, That’s fair.” Marshall continued, “Because if you
asked the people that I work with directly, my peers, they will
tell you I do [follow the code of conduct].”
Crumb then asked Marshall for assistance in scheduling and
integrating some new ICU employees into the upcoming
schedules. They discussed that for several minutes and the
meeting ended.
At this meeting, Crumb provided Marshall a memo dated July 10, confirming the verbal warning. Crumb stated that she
assumed Marshall would not want to sign it.
The memo stated:
Anne, this memo will confirm our conversation today. As you
know, an incident report was submitted regarding an interaction that you have with Joel Brown on Friday July 3. I have
51 Crumb claimed that she relied upon Sullivan because Sullivan
was “the witness who had witnessed the whole situation.” This appears
to be untrue. There is no indication that Sullivan witnessed the encounter between Brown and Marshall where Marshall stood in the doorway
of Brown’s office. This was part of the basis of the disciplinary warning, and was overheard by others interviewed with Crumb, including
witnesses that corroborated Marshall’s account. See, e.g., notes of Dr.
Hannon interview by Crumb. In any event, contrary to Crumb’s testimonial account of Sullivan’s statement, the account in Crumb’s original
handwritten notes of Sullivan’s account does not cast blame. Of
course, we do not know what is in Sullivan’s “rewritten statement,”
referenced but not disclosed in the typed version of the interview notes
created by Crumb.

 36

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

completed my investigation of this incident having interviewed all staff that were working that day.
As a result of that investigation I have determined that your
interactions with the Director Friday afternoon were not in accordance with our Nursing Code of Conduct.
On Wednesday June 30 you met with Joel and me to determine how you will more appropriately fill your responsibilities as Team Leader and Charge Nurse. During our conversation it was agreed that you would follow and uphold the Nursing Code of Conduct and participate collaboratively with
leadership and staff on problem solving. We reiterated that it
was our objective to function as a team to do the right things
for our patients, and it is not acceptable to behave in a manner
that is confrontational and not in accordance with professional
standards as discussed.
According to the QA, it was reported that your behavior and
interactions with the Director were not respectful but aggressive and confrontational in nature. These behaviors included


A confrontational dialogue where you were requested
numerous times to leave the door of the director's office but refused to leave -until you were advised that
security would be called.



Following the director within his personal space and
in the opinion of another staff member of harassing
him about getting ward clerk help

While we understand that there can be varying opinions regarding the actions that took place, it is important to again reinforce the necessity to interact professionally and in accordance with the Nursing Code of Conduct. Key elements are:




Interacting with others in a considerate, patient and
courteous manner
Being honest, truthful, and respectful at all times.
Avoiding inappropriate and disruptive communications/behaviors that include but are not limited to;

Displaying behaviors that would be considered by others to be intimidating, disrespectful or dismissive
Disregards or is insensitive to the personal space or
boundaries of others,
This letter will be considered a verbal warning reinforcing the
need to follow the Code of Conduct in your interactions with
others.
I am confident that there will not be any additional violations
in the future. However, in the event that there are, appropriate
disciplinary action will need to be taken.
In mid-July, Brown’s contract was not renewed and he left the
Hospital’s employ.

Analysis
The General Counsel alleges that the July 10 verbal warning
given to Marshall was unlawful on a number of theories: a
violation of 8(a)(3) as retaliation for Marshall’s union activities
(complaint paragraph XII(c), (g), and XIV); an independent
violation of 8(a)(1) on a theory that verbal warning penalized
her for violating unlawfully overbroad rules and on a separate
theory that verbal warning penalized protected and concerted
activity. (Complaint paragraph XII(b), (c), (f) and XIII.)
The General Counsel chiefly argues that the verbal warning
enforced unlawfully overbroad rules against Marshall in violation of Section 8(a)(1). I decline to reach that theory. In the
first place, contrary to the allegations of the General Counsel, I
have found that two of the three rules cited in the verbal warning memo were not unlawfully maintained. More importantly,
I think that viewing Marshall’s July 10 verbal warning as an
unlawful application of rules misses the gravamen of the problem. With the June 10 warning, the Respondent, on its face,
punished Marshall for an incident that occurred during the
course of protected and concerted activity. However, even that
is pretextual—the Respondent’s pressing of this matter against
Marshall constitutes retaliation against Marshall for her union
activity.
As discussed above, the Supreme Court-approved analysis in
discrimination cases turning on employer motivation was established in Wright Line, 251 NLRB 1083 (1980). The standard is
discussed at length, above. With regard to the General Counsel’s prima facie case under Wright Line, most of the factors
discussed with regard to the suspension also satisfy the General
Counsel’s prima facie burden with regard to the verbal warning
issued against Marshall a few days later. Marshall was a vigorous and open supporter of the union drive at the Hospital and
the Respondent’s knowledge of this is not in doubt. The element of union animus is established, as with the suspension,
based on the Respondent’s ongoing unlawful effort to remove
Marshall’s union literature, and the personal threat made
against Marshall if she continued in her union activity. In addition, as I have found, just two weeks before the verbal warning
issued against Marshall, she had been unlawfully suspended.
The evidence of discriminatory animus is additive. The finding
that the suspension was the production of unlawful animus adds
even more weight to the General Counsel’s prima facie on the
verbal warning.
In addition, the investigation undertaken by Crumb was relied upon in a patently suspicious way, a suspicion only accentuated by the Respondent’s initial failure to produce the actual
handwritten notes from the investigation pursuant to subpoena,
which, as discussed, contained a number of differences from
the typed notes that Crumb initially identified as “the notes that
[she] took.” Unlike with the suspension, in the case of the verbal warning, Crumb undertook an investigation, but she ignored
what it uncovered, relying instead on the known-to-Crumb-tobe-biased Brown, and the known-to-Crumb-to-be-biased Sullivan, the latter whose alleged “statement” indicting Marshall
was “rewritten” and “revised” although neither the original or
revised statement made its way into evidence, and although
Sullivan was not called to testify. This rigged investigation not
only adds to the weight of the General Counsel’s showing of

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

discriminatory animus, but provides convincing evidence that
the Respondent’s reasons for the verbal warning were pretextual.
In this instance, the complaint against Marshall was lodged
by Brown, a manager known to be hostile to Marshall on many
grounds, including her union activity. The Respondent took it
and ran with it, without regard to the fact that the investigation
did not support Brown’s claims. Crumb reached the conclusion
she wanted to reach, not for the reasons she claimed. It is wellsettled that a finding of pretext "defeats any attempt by the
Respondent to show that it would have discharged the discriminate[e]s absent their union activities." Rood Trucking Co., 342
NLRB 895, 898 (2004); Austal USA, 356 NLRB 363, 363–364
(2010); La Gloria Oil & Gas Co., 337 NLRB 1120, 1124
(2002). The Respondent’s July 10 verbal warning of Marshall
violated Section 8(a)(3) and, derivatively, 8(a)(1) of the Act.52
1. Complaint paragraph XII(d) and IX
(Marshall’s demotion; notification of confidentiality in disciplinary meeting)
a. Interaction with new ICU interim director
The following week after Marshall’s July 10 verbal warning,
Brown’s contract was not renewed and he lost his job at the
Hospital. In mid-August 2015, Sandra Beasley became the
interim director of ICU. Beasley left in the fall of 2015, perhaps in October, and was replaced by Gloria Prince.
When Beasley assumed her duties as interim director Marshall was on vacation and she did not meet Beasley until the
morning of August 28. Marshall estimated that Beasley had
been working about a week at that time. About 6:30 a.m. on
August 28, Beasley came into the back hallway where Marshall
was getting a charge report from another nurse, Scott Goldsmith. Beasley introduced herself to Marshall. They shook
hands, and then Marshall continued speaking with Goldsmith
about the charge report. A little later in the morning Beasley
asked Marshall to come find her before the 8:30 interdepartmental bed meeting so they could go together to it.
Marshall said that 8:25 she realized she needed to go to the
bed meeting and did not want to be late. She looked in
Beasley’s office and in the back hallway, but did not see her.
Marshall went alone to the bed meeting. Afterwards, Beasley
approached Marshall and told her that she was upset that Marshall had not taken her with her to the bed meeting. Marshall
told Beasley that she looked for her and did not see her. Marshall told her, “I knew you’d been here before.” (when Marshall was on vacation). ”You’d been brought there before.
You knew what time it was held every day. I didn’t want to be
late, so I went ahead and went without you.”
At some point in the day, the nurse in charge of maintaining
the schedules, Crystal Root, mentioned to Marshall that there
were holes in the schedule for the upcoming weekend. According to Marshall’s unrebutted testimony, she came to Marshall
and said, “do you know there are holes?” Marshall said, “yes,
52 Given my conclusions, I do not reach the General Counsel’s alternative Section 8(a)(1) theory that Marshall was disciplined for protected and concerted activity, or that Marshall was unlawfully disciplined for violating an unlawfully overbroad rule.

37

I’m well aware. Everybody is aware. Sandra knows about it.”
Marshall told Root to go to talk to Beasley about the holes,
“because I had already made calls and had nobody who was
willing to come in. There was nothing more I could do.” Marshall testified that she made calls the day before and “I had
made some that morning too. This is a continuous thing with
these phone calls.” At some point thereafter Beasley asked
Marshall to make additional calls, and Marshall testified that
she did.
Beasley emailed Crumb telling her that she had decided to
have a disciplinary meeting that day with Marshall, and that she
would have Kansas Underwood, a nursing director who oversees the hospital’s fourth floor palliative care unit, sit in on the
meeting.
Beasley’s complaints, as she put it in the email to Crumb that
afternoon, were four: One that morning Marshall had “pretty
much flipped me away when I informed her that I would like to
meet with her sometime today so that we can get to know one
another.” Two, Marshall left for the bed meeting without
Beasley. Three, Marshall responded to a concern expressed by
Sharon [last name not given, perhaps Sharon Newton, ICU
educator] about upcoming staffing issues by telling the employee who expressed concern “to take it to Sandra” instead of
calling staff herself. Finally, Beasley wrote that Marshall “became argumentative” during a conversation they were having
over proper staffing levels.
Crumb responded that “Anne’s behavior today is the same
we have been seeing for months.” She encouraged Beasley to
meet with Marshall and to have Underwood there, and to review expectations and go over the events of the day as examples of “what you don’t expect from a Team Leader.” Crumb
told Beasley to “[g]ive Alan an update when the meeting is
over. Good Luck. Call me after.” Beasley met with Marshall,
with Underwood at the meeting. Beasley did not testify at the
hearing. (She no longer works for the Hospital and the representation was made that her whereabouts are unknown to the
Respondent.) Underwood testified that the meeting began with
Beasley telling Marshall that Underwood was present as a witness, and then Beasley addressed “a few specific incid[ents]
with her that happened earlier in the day.”
Underwood testified: “If I recall it was that, when Sandra
said hello to Anne, she was sort of flippant about it and not
kind.”53 Then Beasley asked Marshall why she went to the bed
meeting without her, and Marshall told her, Well, you know,
I’m not your babysitter. You can find it there yourself. Then
Beasley mentioned the staffing situation “that there [were] too
many [nurses] on Sunday, not enough nurses on Tuesday.”
Beasley stated that it was her expectation that Marshall would
make the calls to nurses to see if they would come in on Tuesday and Marshall became angry and said that it was not her role
and that she had never had a job description for the job.
Beasley said that “I think it’s clear that you know your role as a
charge nurse and as a team leader.” Marshall turned to Underwood and expressed that she knew Underwood was there as “an
53 On cross-examination Underwood recalled that “Anne was very
flippant with Sandra when they first encountered each other.”

 38

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

intimidation tactic.” Underwood denied this, saying that she
was here “for a third party witness.” According to Underwood,
Marshall said “I am not going to have this conversation with
you” and that she was being “intimidated” or “bullied” because
“of the union.” Beasley said that she had worked in both union
and nonunion environments, but “[t]his is about your professionalism.” Underwood testified that Marshall then stood and
left angrily declaring that “I’m not going to talk to you any
longer.” She refused to sit back down when Beasley asked her
and then left, ending the meeting.54
After the meeting, Beasley wrote a lengthy email to Pedersen, Nohelty, and Crumb, copying Underwood, stating that “[i]t
was a necessity to meet with Anne Marshall today based on her
behavior and work performance throughout the day.” The letter provides a lengthy account of the meeting, purporting to set
forth Beasley’s comments and Marshall’s comments in the
meeting, as they debated their respective versions of the days’
events.55
Nohelty responded 12 minutes later, thanking Beasley and
stating:
This is the behavior that Ann has displayed all along. It certainly did not take her long to show her true colors. We will
have to address her behavior first thing Monday morning
when Alan returns. If you need me over the weekend, you
now have all my numbers. If you need me to come in, I can
54 I do not credit Marshall to the extent that Marshall testified that
Beasley mentioned the Union first. Her pretrial affidavit on this point
(read into the record) is essentially consistent with Underwood’s account of how the subject of the union was introduced into the conversation. At trial, Marshall appeared to agree with her affidavit testimony
after it was read to her.
55 I note that this document contains the first claim that Marshall
“’flipped’ Beasley off during their introduction that morning, a claim
endorsed and relied upon by Crumb. Beasley wrote: “I shared with
Anne my perception of that she ‘flipped’ me off during our morning
introduction which I found to be unkind, disrespectful, and unprofessional.” I note that Underwood did not support this claim in her testimony. Underwood testified—twice—that Beasley accused Marshall of
being “flippant,” a very different accusation. Crumb and Underwood
were intelligent and articulate. They know the difference between
“flippant” and the obscene gesture known as “flipping someone off.” I
presume Beasley knew the difference too. Beasley’s premeeting email
informed Crumb that Marshall “pretty much flipped me away,” is different than the assertion that Marshall “flipped me off.” Notably, and
probatively, Crumb’s pretrial affidavit does not assert that she believed
that Marshall “flipped [Beasley] off” or “gave her the middle finger,”
although at trial Crumb testified—remarkably in my view—that she
interpreted Beasley’s complaint that way. Instead, her affidavit states
that “Sandra told me about how she was treated by Anne, about the
treatment, how she was dismissive and disrespectful.” Crumb agreed
with counsel’s representation that in her affidavit the word “flippant” is
crossed out (as originally drafted by the Board agent) and Crumb wrote
in the word “dismissive.” It strikes me as highly unlikely that something as provocative as raising the middle finger at a supervisor would
be left out of an affidavit discussing the very episode. The prevalence
of the word “flippant” in this record is interesting. Like a plant grows
when watered, the fabrication that Marshall “flipped off” Beasley took
root over the course of the demotion.

do that as well.
Beasley responded: “Thank you. We haven’t resolved the
shortage for Sunday. So we’ll have to see how the weekend
goes. Have a[ ] great weekend and I will see everyone on
Monday.”
Some time, either over the weekend or on Monday, Crumb
says she spoke with Beasley, Pedersen, Nohelty, and Underwood about these emails and about Marshall. There is no record account of what was stated in these discussions. Neither
Underwood nor Pedersen testified about these conversations at
all. Nohelty and Beasley did not testify.
According to Crumb, in consultation with Pedersen and Nohelty, “We reached a decision that Anne’s behavior wasn’t
what we expected to see in a Team Leader or Charge Nurse and
that we would demote her back to registered staff nurse.” Nohelty did not testify. Pedersen did not testify about his involvement in this decision, or any involvement in the late August events. Indeed, he did not seem familiar with the details of
Marshall’s discipline from June and July. Crumb did not speak
with Marshall. There is no evidence that Crumb spoke with
Goldsmith, the nurse with whom Marshall was working the
morning when Beasley first approached Marshall. Crumb testified that it was the combination of the summers’ events that
resulted in the decision:
Because of a series of behaviors that Anne had been having
from June—two incidents in June, incident in July; now here
we are with a new interim [director] and its starting off being
the same behavior from—it’s just that it wasn’t the behavior
we expect to see in a Team Leader and Charge Nurse—
confrontational, not following through on requested—like going to a bed meeting. She didn’t follow through on getting
Sandra, and just her unprofessional behavior during the meeting with Anne, her storming out of the meeting; it just all added up in the—into a package.
b. The August 31 demotion meeting
On Monday, August 31, Beasley asked Marshall to come
with her to Crumb’s office. Marshall asked for a witness. Although several proposed witnesses were rejected, Marshall and
management finally agreed to have a social worker named Kim
Pacquin attend as a witness. Thus, the meeting consisted of
Crumb, Beasley, Pacquin, and Marshall.
Crumb began by indicating to Marshall that Marshall had
met with Beasley already, and Marshall acknowledged that
Beasley had shared her concerns in that meeting.
Marshall said, referring to Pacquin: “can I just start by saying that I requested to have you here because I didn’t feel comfortable.” Beasley followed up by saying, “let me second that
by saying that whatever is said in this room, please keep it confidential.” Pacquin responded, “Oh absolutely.”56
56 The question of to whom the “confidentiality” warning was made
was considered by all parties to be of significance in this litigation.
Here, I note the issue of by whom the confidentiality warning was
given. The stipulated-to recorded audio and transcript of the meeting

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

The meeting turned to Marshall’s offenses. Beasley stated,
But based on the level of the concerns and the—and from my
standpoint the egregiousness of the continuation of that day,
and how you stormed out of the room ending the conversation, when the conversation was totally appropriate.
Marshall interrupted to say that “I don’t agree it was appropriate. You can’t ask me questions about the union or my involvement.” Beasley denied asking Marshall that, saying, “you
jumped to that conclusion and you didn’t listen to what I said.”
Marshall argued about what was stated at their previous meeting, with Marshall insisting that Beasley brought up the union,
and “that’s when I ended the conversation.”
Based on the lack of professionalism that you showed that
day, and also based on the lack of—the poor job performance
you did when I asked you about scheduling and you had another nurse to come to you and point out that there was an issue, that you weren't: even willing to follow—up and to ask
specifically, because you directed them back to me, and I specifically had to come to you as a team leader to ask you to call
staff—
At that point, Marshall interrupted to say that this “had already been done. Nobody was coming. I informed you of
that.” Marshall and Beasley went back and forth about whether
the calls she made the previous day needed to be repeated the
following day in an effort to obtain enough staff. Marshall
pointed out that when “the same people were called and the
no’s were all exactly the same.”
Beasley then said: So what we’re going to do at this point is
we’re going to step you down out of the team leader position
into a staff position.”
Marshall protested that “I know this is complete retaliation
and bullying. That’s what this is. It’s evident.”
Beasley denied this, stating that “you know, there is some
history there with the behaviors that you presented to me, not
even knowing me, you flipped me off.” Based on the record,
this was the first time this accusation had been made to Marshall. Marshall vehemently denied it: “I never, ever did that.”
shows that Beasley made the comment, as stated in the text. This warrants discrediting of Crumb’s testimony that “basically” she (Crumb)
said, “Kim, you’re here as a witness to this conversation between myself, Sandra and Anne; and this information is confidential, and do you
feel that you can keep this information confidential?” Although I agree
and find that Beasley’s comment about “confidentiality” was directed
to Pacquin and, appropriately, Pacquin responded, Crumb’s inaccurate
testimony about this remark illustrates what I perceived to be a tendentious tendency in her testimony generally. Her account of her comments is tailored to burnish the Respondent’s litigation interest in showing that the remarks were directed to Pacquin, and not to the meeting
attendees generally. In this case, Crumb’s account is disproven by the
stipulated-to recorded audio and transcript of the meeting—she didn’t
make any comments about confidentiality, Beasley did. But I believe,
as demonstrated here, that a litigation-inspired gloss covered much of
her testimony, albeit there is not always a tape recording available to so
clearly demonstrate it.

39

Beasley said, “Yeah, you did. You did.”
Beasley told Marshall that Marshall’s first meeting with her,
the new director, that first morning “wasn’t customer service
friendly at all.” Beasley raised that Marshall left without her
for the bed meeting, saying that Marshall “[d]idn’t even come
to see whether I was ready, not ready. 8:30 I walk on the unit,
you were already gone.” Marshall replied, “That meeting is at
8:30. I had to go. I was busy that day. There was a lot going
on.” Then Beasley raised their subsequent conversation where
Marshall told Beasley, “I don’t have to hold your hand, you’re
not a baby.” Marshall said, “you knew where it was. You had
been escorted there previously” and Marshall stated that she
looked for Beasley in her office at 8:25 but she was not there,
and Beasley suggested she had been there then, or maybe shortly thereafter.
Beasley said that “we’re not going to continue going around
in a circle, I’m just going to let you know that effective immediately we’re going to step you down out of the team leader
position and back into a staff nurse.” Marshall said, “Okay.
And I know exactly what this is about, so that’s all that has to
be said.” Beasley replied. “Well, I’m sorry that’s your perception, but it’s not retaliation.” Marshall stated, “Well I find that
hard to believe when you’re the one at the first meeting who
brought up union, and now this is happening. So that’s all I
need to know.” Crumb added at this point that it’s the “charge,
as well . . . . [b]ecause that’s part of a charge nurse’s responsibility . . . . to follow through on staffing changes.” Beasley
added, “It’s not appropriate at any time, whether you feel like
the conversation is not right, you don’t just jump and storm out
of a room. You don’t.” Marshall replied, “I gave you two
instances to stop talking about the union. I told you [you]
couldn’t talk to me about it.” Beasley denied that she ever
asked Marshall about the union. The meeting ended.
Several days after the meeting, Crumb and Beasley prepared
and gave to Marshall a letter, dated September 2, headed “Letter of Expectation—Transition to Staff Nurse,” stating:
On August 31, 2015. you were informed that based on repetitive unacceptable behaviors which include but not limited to
the failure to follow the provisions of the Nursing Code of
Conduct and Mutual Respect through professional leadership.
that you were being transitioned into a Clinical Staff Nurse
position effective immediately. Therefore officially, at the end
of your shift on August 31, 2015, you are no longer to assume
the role of a Team Leader nor as a Charge Nurse within Cayuga Medical Center.
As you move forward you are expected to follow the Nursing
Code of Conduct & Mutual Respect Provision. In addition,
you are required to follow all applicable policies, procedures
provisions and guidelines within Cayuga Medical Center.
Anne, you are a valuable member of our organization and we
want you to be successful in your new role. Therefore the requirements of your new role are inclusive of the expectations
that are listed below.
Expectations:

 40

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD



Serve as the initial point of contact for internal and
external customers.



Upholding the Nursing Code of Conduct and Mutual
Respect Provision.



Respond to internal and external customer needs
promptly and professionally.



Maintain a professional demeanor when speaking
with someone over the telephone and/or when seen in
person.
Maintain professionalism at all times.




Maintain a positive attitude and be aware of verbal
and nonverbal behavior (Body language is 55% of the
communication process) and tone of voice.
Analysis (demotion)
The General Counsel contends that Marshall’s demotion was
a continuation of the Respondent’s unlawful actions toward
Marshall. He argues that the demotion was based on the application of unlawfully overbroad rules and continued retaliation
for Marshall’s union activities.
I agree that Marshall’s demotion was unlawful. Beasley’s
complaints with Marshall that prompted the discipline appear
particularly trumped up. As Marshall put it, “you don’t get
demoted for not bringing someone to a bed meeting.” Particularly odd—and particularly undermining to the Respondent’s
defense—is the Respondent’s invention of and reliance on the
claim that Marshall “flipped off” Beasley upon their first introduction—that she, “gave her the middle finger.” As discussed
above, this fabrication took root from the initial and very different contention that Marshall was “flippant” when she met
Beasley. I think that Marshall’s “flippancy” was transformed
into an obscene gesture precisely because the legitimate
grounds for demoting Marshall were so thin.
Beasley did not testify. But it appears that Beasley was
primed and ready for Marshall to return from vacation and
moved immediately to discipline her for invented and minor
slights, with upper management poised to guide the matter to
completion. I do not think that we know the full story. The
decision to demote Marshall was made in consultation with
Pedersen and Nohelty. Nohelty did not testify. Pedersen testified extensively, but not about this decision. In any event, the
day Marshall returned from vacation, Beasley was loaded for
bear, and the bear was Marshall. I suppose Marshall can be
faulted for getting angry and leaving the disciplinary meeting,
but she understood what was happening. It hardly provides
believable grounds for the demotion.
The Wright Line analysis does not have to be repeated in
depth. The General Counsel’s prima facie case is rock solid,
and the demonstrated animus towards Marshall only grows
with each subsequent violation. And in this case, the Respondent’s effort to show that it would have demoted Marshall in the
absence of her protected conduct is unavailing. The pretextual
nature of the reasons for the demotion are demonstrated by its
invention of the claim of Marshall’s obscene gesture, not to

mention the trivial nature of the offenses attributed to her.
Moreover, the Respondent has not shown that it would have
demoted her without reliance on the unlawful warnings issued
to Marshall earlier in the summer. Indeed, Crumb specifically
testified that the demotion was the result of “a series of behaviors” including the “incidents in June” and the “incident in
July.” It is well settled that a decision to discipline an employees is tainted if the decision relies on prior discipline that was
unlawful. Care Manor of Farmington, Inc., 318 NLRB 725,
726 (1995); Dynamics Corp., 296 NLRB 1252, 1253–1254
(1989), (discharge based on previously issued unlawful warnings violates Section 8(a)(3)), enfd. 928 F2d 609 (1991). Marshall’s demotion violated Section 8(a)(3).57
Analysis (confidentiality directive)
I reject the General Counsel’s contention that the instruction
to the disciplinary witness Pacquin to keep matters stated in the
meeting confidential violated the Act.
As I have found, this direction was given to the witness to
the meeting, social worker Pacquin—not to Marshall. And I
have found that Pacquin, not Marshall, responded to the directive. Marshall surely had reason to be upset about this meeting, but I reject the claim that she reasonably understood this to
be a directive to her that she should keep the matter confidential. There is no evidence, based on any events other than at
this meeting that the Hospital ever communicated a policy to
employees that discouraged them from discussing their own or
other coemployees’ disciplinary actions. The only evidence is
that the Hospital had a policy of not broadcasting an employee’s discipline to other employees. Based on the evidence, I
reject the contention that Crumb (as alleged in the complaint)
or Beasley (as the facts show was the one to mention confidentiality) “informed employees that the contents of the meeting
were to be kept confidential.” I will recommend dismissal of
paragraph IX of the complaint.58
2. Complaint paragraph XII(e)
(The negative annual performance evaluation)
Hospital employees receive annual performance appraisals.
According to the employee handbook, the appraisals “are used
to determine pay increases and become part of your employee
personnel file.” Typically the department directors perform
annual evaluations for the staff nurses under their direction
between mid-April and the end of June of each year. Evaluations affect raises and bonuses, and are considered when an
employee seeks to transfer to another job within the Hospital.
57 Given my finding, I do not reach the General Counsel’s alternative claim that the demotion constituted an unlawful application of an
unlawfully overbroad rule.
58 The General Counsel relies (GC Br. at 15) upon “admissions” that
Pedersen testified that Crumb told him that she told Marshall and
Pacquin that the meeting should be confidential, and a position statement submitted by the Respondent that states that Crumb asked that the
conversations be kept confidential “because CMH considers individual
personnel actions to be private matters.” However, as the General
Counsel recognizes, the record evidence demonstrates that Crumb did
not make the statement at issue, Beasley did. Thus whatever Crumb
told Pedersen and whatever the Respondent admitted in a position
statement that Crumb said, is beside the point.

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

The evaluations are a combination of objective (i.e., maintenance of certifications, attendance, educational requirements)
and more subjective assessments of performance. Items are
rated on a 5 point scale with different weighting given to different areas. An overall score is given at the end.
Marshall’s evaluations and scores from 2008 through 2015
were entered into the record. From 2008 to 2014, her overall
evaluations were 4.46 (2008), 4.62 (2009), 4.61 (2010), 4.83
(2011), 4.76 (2012), 4.78 (2013), 4.73 (2014). Each evaluation
contains many comments, and they are uniformly laudatory.
Reading through them, one cannot help but be struck by how
highly valued Marshall was and the consistent positive regard
for Marshall’s work ethic and skills. The summary statements
by the Hospital for these years are as follows:
2008
Anne is a valuable member of our department. She has shown
what a positive impact one person can make in the ICU Anne
demonstrates the highest level of professionalism and teamwork and is always there for her coworkers. She always
brings a smile and a positive attitude to the workplace and
maintains this even during the toughest of shifts. Her work is
thorough and of top notch quality.
Anne has been mentioned by patients and families for her outstanding care and positive attitude. She is positive role model
for her peers and an ambassador of team work and positive attitude, for our unit.
2009
Anne is a valuable member of our department. Her positive
attitude and smile can brighten a difficult day. Anne brings a
lot of experience to the bedside and is always willing to share
her knowledge with others and is always willing to help train
new staff. Anne is flexible with her schedule and is willing to
do what it takes to help the team. She is also one to stay calm
when things get very busy which contributes to keeping the
team relaxed and on task.
Anne is often mentioned by patients and families for her outstanding care and positive attitude. We are very fortunate to
have Anne on our team.
2010
Anne is a valued member of our team, She brings a positive
attitude to the workplace and has a very strong work ethic.
Although in a per-diem position, she has been working on a
very regular basis and brings a nice skill mix to the team.
Anne has demonstrated time and again the ability to take care
of the most critically ill patients without becoming unglued.
She is very poised and professional in her approach to nursing.
Over the past year Anne bas done some charge for us, and is
currently active in precepting and mentoring new employees,
and is doing an exceptional job. We are very fortunate to have
someone like Anne on our team and we hope to maintain her
employment here for many years to come.

41

2011
Anne is very self directed and provides her patients and their
visitors/families with the highest quality care, She is always
among the first to complete assigned education and is consistent in maintaining her ongoing education. She takes on
difficult assignments without complaint and always does a
great job. Anne has .also proven to be a great resource to her
coworker & I look forward to working with Anne for a long
time into the future. Anne is simply an outstanding nurse and
employee.
2012
Anne is an excellent employee. She is honest and straight
forward. She does an excellent job when in charge and because of this earned a team leader position recently. She is a
strong ICCU nurse who is always willing to share her
knowledge. She maintains a calm positive attitude and is a
good role model for others. Overall she does a great job and I
look forward to working with Anne in her new role.
2013
Anne is becoming a strong team leader and has adapted well
to her new role over the past year. She does an excellent job
with following upon CMS indicators, QA's and kronos needs.
As a team leader I want to see Anne work on being more
positive about organizational structure and hospital leadership. Overall she is
Doing an outstanding job and I am fortunate to have her as
part of my leadership team.
2014
Anne is a good team leader and charge nurse. She has strong
clinical skills, is reliable, and has strong work ethic. She does
a nice job of assisting with payroll and following up on issues.
She is helpful and always looking out for the staff. One thing I
would like her to work on is the example she sets with her cell
phone and texting throughout the day. Overall I think Ann
does a great job and I am pleased with her performance.
In 2015, Marshall was issued a score of 3.73, one full point
less than in 2014, and a significant drop in a five point scale.
Crumb testified that in 2015, with an interim director in ICU
at evaluation time, and with the Hospital unsure how much
longer it would take to find a permanent director, the Hospital
decided to wait until fall for the evaluations of the ICU staff.
In April 2015, employees in ICU asked how their evaluations would be done since no one who had witnessed them
working over the course of the year would be there to do the
evaluation. During a staff meeting an administrator told them
“we’ll probably use last year’s.” In the summer, Crumb confirmed to employees that last year’s evaluations would be used
for the current year.
According to Crumb’s testimony: “the message was given at
a staff meeting that we would be using the rating for the 2014
evaluation for the 2015 evaluation,” with the exception that the
“personal accountability” section of the evaluation would be
rescored for 2015.

 42

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

The personal accountability section did not add to an employee’s score, but failure to meet any item in it reduced the
final evaluation score by 1 full point. Crumb testified that she
told the nurses the personal accountability section would be
redone for 2015 because “I didn’t think it was fair if someone
had lost a point in 2014 they could have earned it back in
2015.” In other words an attendance or academic deficiency in
2014 could be demonstrated to be corrected. The procedure for
2015, then, as explained by Crumb, was:
I would take their rating . . . [f]rom 2014. I’d look at their rating, and then I would look at the personal accountability section in 2014 to see if they had lost a point; and if they had lost
a point, then I would do an investigation to see if they earned
that point back, such as if they had not done their mandatories
[educational requirements] in 2014 and did in 2015[,] they
would earn that point back.
In fact, this is not what Crumb did, and what she did do was
not explained on the record and is highly suspicious.
In 2015, Marshall’s evaluation, signed by Crumb, is dated
October 30, 2015. The summary page lists her 2014 score,
4.73, and subtracts a point, giving her a 2015 score of 3.73.
The loss of the point is directly attributable to Marshall receiving a negative mark, for the first time, for an item in the
personal accountability section of the evaluation.
The only evaluations in the record are Marshall’s, for the
years 2008–2015. The personal accountability of these evaluations (Section E) in 2011, 2012, 2013, and 2014, consist of four
items to be checked (or left blank, in Marshall’s case they were
always checked). These four items were:
Maintains all appropriate certifications and licenses for position
Completes all required competencies/Mandatory Education
by established deadline dates
Meets the expectations of the attendance policy
Is compliant with all Red/Rules.
Before 2011, in 2008, 2009, and 2010, there were additional
criteria in Section E personal responsibility. In those years
there were eight items to be assessed, and a space to mark Yes
or No to the left of each item. The items were as follows:
Follows laws and regulations applicable to the operations of
department and organization
Demonstrates a sense of right and wrong by exhibiting honest, ethical behavior
Brings concerns forward to management, human resources or
Compliance Officer
Preserves confidentiality of patient and employee information
"written or electronic" and observes patient rights
Maintains all appropriate certifications and licenses appropri-

ate for position
Has completed minimum level of competency defined for the
position
Completes all required competencies/Mandatory education by
established deadline dates
Meets the expectations of the attendance policy
At least in Marshall’s case—the record does not speak
whether the change was applied to other ICU employees—in
2015, Section E returned to an eight-item Yes/No (with one
item omitted and an entirely new one added). Marshall was
assessed a “No” on “Demonstrates a sense of right and wrong
by exhibiting honest, ethical behavior,” a criterion that had not
been part of the personal accountability section (or found anywhere else on the evaluations) since 2010. This is the reason
that Marshall lost a full point in 2015 compared to 2014.
Crumb testified that as far as she knew, no other ICU employee
lost a point for this item in 2015. Crumb testified that a few
nurses lost a point for failing to complete mandatory education,
and one for an attendance issue. However, these were criteria
included in the 2014 (and previous years’) evaluations.
Notably, the evaluation used for Marshall in 2015 appears
different in another way. Section F, the section that follows
Section E personal accountability on the page, is a new item,
“Medical Center Performance Objectives” that is not found in
any previous evaluations in the record.
All of this suggests that a different evaluation sheet was used
in 2015, at least for Marshall. Again no explanation is made
for this, and it is contrary to the testimony that the personal
accountability section from 2014 would be reviewed to see if
they could earn back a point lost. In Marshall’s case, at least,
the personal accountability section used for 2015 contained
items not used since 2010, and it was used against her, in a way
unique to her—no one else lost a point based on subjective
factors newly introduced to the personal accountability section.
Crumb testified that her reason for downgrading Marshall in
the evaluation was:
For all the behavior issues that had happened throughout the
year, from the June—the June issues with not being truthful
about calling staff in, twice; and her behaviors as far as not
being truthful.
Analysis
The General Counsel alleges that Marshall’s negative 2015
evaluation was unlawful. In 2015, Marshall was singled out
and given a lower ranking on the subjective portion of the evaluation. This was contrary to the procedure for 2015 that Crumb
testified she would use. Moreover, as noted above, inexplicably, the Respondent used a new evaluation form in 2015. Marshall was downgraded based on a criterion in this new form that
had not been on the evaluation form in recent years. Moreover,
according to Crumb, the negative downgrade in evaluation was
based on the incidents from the summer that I have found to be

 43

CAYUGA MEDICAL CENTER AT ITHACA, INC.

unlawfully motivated.
In terms of a Wright Line analysis, Marshall’s union activity,
the employer’s knowledge, and its animus are obvious. Given
the irregular and unexplained criterion on which Marshall’s
negative evaluation was based, and the fact that in downgrading
Marshall the Respondent failed to comply with the process for
2015 evaluations that Crumb testified was the process to be
used, the pretextual nature of the Respondent’s actions are
transparent. This further supports an inference of discriminatory motive and negates the claim that the Respondent would
have taken the same action in the absence of the employee’s
protected activity. El Paso Electric Co., 355 NLRB 428, 428
fn. 3 (2010) ("we rely only on the judge's finding that the Respondent's reasons for its actions were pretextual, raising an
inference of discriminatory motive and negating the Respondent's rebuttal argument that it would have taken the same action
in the absence of [the employee's] protected activities"); All Pro
Vending, Inc., 350 NLRB 503, 508 (2007); Rood Trucking Co.,
342 NLRB 895, 897–898 (2004), citing Laro Maintenance
Corp. v. NLRB, 56 F.3d 224, 230 (D.C. Cir. 1995) ("When the
employer presents a legitimate basis for its actions which the
factfinder concludes is pretextual . . . . the factfinder may not
only properly infer that there is some other motive, but that the
motive is one that the employer desires to conceal—an unlawful motive . . . .") (internal quotation omitted); Whitesville Mill
Service, 307 NLRB 937 (1992) (“we infer from the pretextual
nature of the reasons for the discharge advanced by the Respondent that the Respondent was motivated by union hostility”), citing Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466
(9th Cir. 1966).
Independently, the Respondent makes no bones about the
fact that the lower evaluation was causally linked to the previous disciplinary incidents meted out to Marshall. As those
were unlawful, the unlawfulness of the negative evaluation is
established. Parkview Hospital, Inc., 343 NLRB 76, 76 (2004).
The Respondent’s unfavorable performance evaluation of Marshall for 2015 was unlawful in violation of Section 8(a)(3) of
the Act.
CONCLUSIONS OF LAW
1. The Respondent Cayuga Medical Center is an employer
within the meaning of Section 2(2), (6), and (7) of the Act, and
a health care institution within the meaning of Section 2(14) of
the Act.
2. The Respondent violated Section 8(a)(1) of the Act, since
about April 28, 2015, by maintaining a Nursing Code of Conduct that includes the following provisions:
People
Utilizes proper channels to express dissatisfaction with policies and administrative or supervisory actions and without
fear of retaliation.
Community
Inappropriate and disruptive communications/behaviors include but are not limited to:

Displays behavior that would be considered by others to be
intimidating, disrespectful or dismissive.
Criticizes coworkers or other staff in the presence of others
in the workplace or in the presence of patients.
3. The Respondent violated Section 8(a) (1) of the Act, on
or about May 7, 2015, and August 26, 2015, by issuing unlawfully overbroad solicitations to employees to report coworkers.
4. The Respondent violated Section 8(a)(1) of the Act, on or
about July 8, and within a couple of days thereafter, by directing employees to cease distributing union literature.
5. The Respondent violated Section 8(a)(1) of the Act, on a
date in the fall of 2015, or early winter 2016, by informing
employees that it was inappropriate to discuss their salaries
and/or wages.
6. The Respondent violated Section 8(a)(1) of the Act, on or
about May 8, 2015, by interrogating an employee about her
union activities and threatening an employee with unspecified
reprisals unless she ceased her union activities.
7. The Respondent violated Section 8(a)(1) of the Act, from
May 2015 through July 2015, by prohibiting employees from
distributing and posting union literature around the Respondent’s facility while permitting employees to distribute and post
other literature.
8. The Respondent violated Section 8(a)(1) of the Act, on or
about November 10 and 11, 2015, by threatening employees on
Facebook with unspecified reprisals and with job loss in retaliation for employees’ protected and concerted activities.
9. The Respondent violated Section 8(a)(1) of the Act, on or
about October 5, 2015, by issuing employee Scott Marsland
discipline in the form of a “verbal written warning” because of
his protected and concerted activities, and disciplining
Marsland pursuant to an unlawfully overbroad rule.
10. The Respondent violated Section 8(a)(3) and (1) of the
Act, on or about June 26, 2015, by suspending employee Anne
Marshall in retaliation for her union activities.
11. The Respondent violated Section 8(a)(3) and (1) of the
Act, on or about July 10, 2015, by issuing a verbal warning to
employee Anne Marshall in retaliation for her union activities.
12. The Respondent violated Section 8(a)(3) and (1) of the
Act, on or about August 31, 2015, by demoting employee Anne
Marshall from her charge nurse and team leader position in
retaliation for her union activities.
13. The Respondent violated Section 8(a)(3) and (1) of the
Act, on or about October 30, 2015, by issuing Marshall an adverse performance evaluation for 2015, with a point subtracted
for the “personal accountability” section, in retaliation for her
union activities.
14. The unfair labor practices committed by Respondent affect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and

 44

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent, having maintained unlawful provisions in
its Nursing Code of Conduct, shall be ordered to revise or rescind the unlawful rules, notify employees of the rescissions,
and republish the code of conduct without the unlawful rules.59
The Respondent, having issued unlawful disciplinary warnings to employees Anne Marshal and Scott Marsland, must
rescind the warnings. The Respondent, having unlawfully demoted employee Anne Marshall, shall offer Marshall full reinstatement to her former jobs, or if those jobs no longer exist, to
substantially equivalent positions, without prejudice to her
seniority or any other rights or privileges previously enjoyed.
The Respondent, having unlawfully suspended employee Anne
Marshall for 1-1/2 days, and subsequently unlawfully demoted
her, shall make Marshall whole for any loss of earnings and
other benefits suffered as a result of the Respondent’s unlawful
suspension and demotion of her. The make whole remedy shall
be computed in accordance with Ogle Protection Service,
Inc.,183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interested at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB No. 10 (2014), the Respondent shall compensate Marshall for the adverse tax consequences, if any, of receiving
lump sum backpay awards, and, in accordance with AdvoServ
of New Jersey, Inc., 363 NLRB No. 143 (2016), the Respondent
shall, within 21 days of the date the amount of backpay is fixed
either by agreement or Board order, file with the Regional Director for Region 3 a report allocating backpay to the appropriate calendar year for Marshall. The Regional Director will then
assume responsibility for transmission of the report to the Social Security Administration at the appropriate time and in the
appropriate manner.
The Respondent, having issued Marshall an adverse performance evaluation for 2015, shall correct the evaluation by removing the negative assessment for the criterion “Demonstrates
a sense of right and wrong by exhibiting honest, ethical behavior,” and by removing the one point reduction for 2015 and
reissuing the evaluation with a point score of 4.73. The Respondent shall provide Marshall with a copy of the corrected
2015 performance evaluation.
The Respondent shall also be required to remove from its
files any references to the unlawful suspension and demotion of
Marshall, the unlawfully calculated 2015 performance evalua59 In Guardsmark, LLC, 344 NLRB 809, 812 fn. 8 (2005), enfd. in
relevant part 475 F.3d 369 (D.C. Cir. 2007), in recognition of the potential costs of republishing an entire 211-page employee handbook, the
respondent was given the option of supplying employees with inserts
for the handbook stating that the unlawful rules have been rescinded, or
with new and lawfully worded rules on adhesive backing to cover the
old unlawful rules until the handbook was republished without the
unlawful provisions. Such temporary accommodations are unnecessary
here, as the Nursing Code of Conduct is an unbound three-page document that appears printed from a conventional office computer file with
an office printer.

tion, and the unlawful warnings issued to Marshall and
Marsland, and to notify each of them in writing that this has
been done and that the suspension, adverse evaluation, and
warnings will not be used against them in any way.
The Respondent shall post an appropriate informational notice, as described in the attached appendix. This notice shall be
posted at the Respondent's facility wherever the notices to employees are regularly posted for 60 days without anything covering it up or defacing its contents. In addition to physical posting of paper notices, notices shall 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. In the event
that during the pendency of these proceedings the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since May 7, 2015. When the notice is issued to the Respondent, it shall sign it or otherwise notify Region 3 of the Board
what action it will take with respect to this decision.60
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended61
ORDER
The Respondent Cayuga Medical Center at Ithaca, Inc., Itha60 The General Counsel also seeks an order requiring that the attached notice be read to employees during working time by a highranking management official at the facility or by an agent of the Board.
The reading aloud of a notice is an “extraordinary” remedy ordered in
egregious circumstances. Federated Logistics & Operations, 340
NLRB 255, 258 (2003), enfd. 400 F.3d 920 (D.C. Cir. 2005). I do not
intend to suggest that the unfair labor practices committed by the Respondent were not serious. They were. However, here we do not consider an organizing drive where the employer responded with multiple—indeed with any—discharges. The targeting of Marshall was the
most egregious of the violations, yet I believe that her demotion and 11/2 day suspension will be as effectively remedied by the traditional
remedies ordered as they would by a notice reading. The warning
issued Marsland was an unlawful but honest reaction by management to
the friction caused by the stance he took in the staff meeting. It did not
reflect a calculated attack on employee organizing rights. The other
violations are not to be minimized, yet they are well within the ambit of
the type of violations to which traditional remedies apply. I conclude
that under these circumstances, the General Counsel has failed to make
the case that traditional remedies are insufficient to remedy the effects
of the unfair labor practices. See, Perry Brothers Trucking, 364 NLRB
No. 10, slip op. at 3 fn. 6 (2016) (denying General Counsel request that
notice be read in case finding unlawful layoff and discharge, two instances of instructing employees not to discuss terms and conditions of
employment, and unlawfully indicating that it was futile to engage in
protected and concerted activity); Checkers and Fast Food Workers
Committee, 363 NLRB No. 173, slip op. at 2 fn. 2 (2016) (denying
General Counsel request that notice be read in case involving two unlawful discharges, threats of unspecified reprisals, and unlawful decreasing of employees’ hours).
61
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.

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

ca, New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Maintaining unlawfully overbroad employee rules including the following rules found in the Nursing Code of Conduct:
People
Utilizes proper channels to express dissatisfaction with policies and administrative or supervisory actions and without
fear of retaliation.
Community
Inappropriate and disruptive communications/behaviors include but are not limited to:
Displays behavior that would be considered by others to be
intimidating, disrespectful or dismissive.
(b) Soliciting employees to report coworkers or file a complaint against them “If you feel you are being harassed or intimidated” or “If you feel that you continue to be harassed.”
(c) Directing employees to cease distributing union literature.
(d) Informing employees that it is inappropriate for them to
discuss their salaries and/or wages.
(e) Interrogating employees about union activities.
(f) Threatening employees with reprisals if they do not cease
union activities.
(g) Discriminatorily prohibiting employees from distributing
and posting union literature throughout the Respondent’s facility, or from distributing union literature in nonpatient care areas,
including by removing and/or confiscating posted or distributed
union literature.
(h) Threatening employees with unspecified reprisals and
with job loss in retaliation for employees’ protected and concerted activities.
(i) Disciplining any employees for engaging in protected
and concerted activities.
(j) Disciplining any employees pursuant to an unlawfully
overbroad rule.
(k) Discriminatorily disciplining or demoting or issuing an
adverse performance evaluation to any employees in retaliation
for union or other protected and concerted activities.
(l) 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:
(a) Rescind or revise the following provisions of the Nursing Code of Conduct, notifying employees of the rescissions,
and republishing the code of conduct without the following
rules:
People
Utilizes proper channels to express dissatisfaction with poli-

45

cies and administrative or supervisory actions and without
fear of retaliation.
Community
Inappropriate and disruptive communications/behaviors include but are not limited to:
Displays behavior that would be considered by others to be
intimidating, disrespectful or dismissive.
Criticizes coworkers or other staff in the presence of others in
the workplace or in the presence of patients.
(b) Rescind the unlawful disciplinary warnings issued to
Scott Marsland and to Anne Marshall.
(c) Correct the adverse performance evaluation issued to
Anne Marshall for 2015 by removing the negative assessment
for the criterion “Demonstrates a sense of right and wrong by
exhibiting honest, ethical behavior,” and by removing the one
point reduction for 2015, and reissuing the evaluation with a
point score of 4.73.
(d) Provide Marshall with a copy of the corrected 2015 performance evaluation.
(e) Within 14 days from the date of this Order, offer Anne
Marshall full reinstatement to her job as charge nurse and team
leader, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(f) Make Anne Marshall whole for any loss of earnings and
other benefits suffered as a result of her unlawful suspension,
and/or her unlawful demotion, in the manner set forth in the
remedy section of this decision.
(g) Compensate Anne Marshall for the adverse tax consequences, if any, of receiving a lump sum backpay award, and
file with the Regional Director for Region 3, within 21 days of
the date the amount of backpay is fixed either by agreement or
Board order, a report allocating the backpay award to the appropriate calendar year.
(h) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful warnings given to Anne
Marshall and Scott Marsland, and to the unlawful suspension,
demotion, and adverse 2015 evaluation given to Anne Marshall, and within 3 days thereafter, notify them in writing that
this has been done and that the warnings, suspension, demotion,
and adverse evaluation will not be used against them in any
way.
(i) Within 14 days after service by the Region, post at its facility in Ithaca, New York copies of the attached notice marked
"Appendix." 62 Copies of the notice, on forms provided by the
Regional Director for Region 3, after being signed by the Respondent's authorized representative, shall be posted by the
62 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."

 46

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of
paper notices, notices in each language deemed appropriate
shall 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
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice in each appropriate language, to all current
employees and former employees employed by the Respondent
at any time since May 7, 2015.
(j) Within 21 days after service by the Region, file with the
Regional Director for Region 3 a sworn certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. October 28, 2016
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 unlawfully overbroad employee rules,
including in the Nursing Code of Conduct, that restrict you
from the exercise of the rights set forth above.
WE WILL NOT solicit you to report coworkers or file a complaint against coworkers “if you feel you are being harassed or
intimidated” or “If you feel that you continue to be harassed.”
WE WILL NOT direct you to cease distributing union literature.
WE WILL NOT inform you that it is inappropriate to discuss
your salaries and/or wages.
WE WILL NOT interrogate you about your union activities.
WE WILL NOT threaten you with reprisals if you do not cease
your union activities.
WE WILL NOT discriminatorily prohibit you from distributing

and posting union literature throughout the Hospital, or from
distributing union literature in nonpatient care areas, and WE
WILL NOT remove or confiscate posted or distributed union literature.
WE WILL NOT threaten you with unspecified reprisals and
with job loss in retaliation for your participation in protected
and concerted activities.
WE WILL NOT discipline you for engaging in protected and
concerted activities.
WE WILL NOT discipline you pursuant to an unlawfully overbroad rule.
WE WILL NOT discipline or demote or issue you an adverse
performance evaluation in retaliation for your union or other
protected and concerted activities.
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 or revise the Nursing Code of Conduct and
republish the code of conduct without the following rules:
People
Utilizes proper channels to express dissatisfaction with policies and administrative or supervisory actions and without
fear of retaliation.
Community
Inappropriate and disruptive communications/behaviors include but are not limited to:
Displays behavior that would be considered by others to be
intimidating, disrespectful or dismissive.
Criticizes coworkers or other staff in the presence of others in
the workplace or in the presence of patients.
WE WILL rescind the unlawful disciplinary warnings issued to
Scott Marsland and to Anne Marshall.
WE WILL correct the adverse performance evaluation issued
to Anne Marshall for 2015.
WE WILL offer Anne Marshall full reinstatement to her jobs
as Charge Nurse and Team Leader, or if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
her seniority or any other rights or privileges previously enjoyed.
WE WILL make Anne Marshall whole for any for any loss of
earnings and other benefits suffered as a result of her unlawful
suspension and/or her unlawful demotion.
WE WILL remove from our files any reference to the unlawful
warnings given to Anne Marshall and Scott Marsland, and to
the unlawful suspension, demotion, and adverse 2015 evaluation given to Anne Marshall, and within 3 days thereafter, notify them in writing that this has been done and that the warnings, suspension, demotion, and adverse evaluation will not be
used against them in any way.
CAYUGA MEDICAL CENTER AT ITHACA, INC.

 CAYUGA MEDICAL CENTER AT ITHACA, INC.

The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/03–CA–156375 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273–
1940.

47