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Page number 18 of 10-01-L.

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Thank you so much.

[00:00:48] Speaker 04:
Mr. Henry?

[00:00:50] Speaker 02:
Good morning.

[00:00:51] Speaker 02:
Good morning.

[00:00:52] Speaker 02:
May it please the Court.

[00:00:53] Speaker 02:
My name is Tyler Henry, Counsel for Petitioner Cross Respondent at Cayuga Medical Center at Ithaca.

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Petitioner challenges the Board's findings on a number of unfair labor practice charges in this case, so I will address each of these charges as briefly as I can.

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The first

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Unfair Labor Practice is a violation for two emails from CMC Vice President of Human Resources, Alan Peterson, indicating that if employees felt harassed or intimidated, they should feel free to contact management.

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The language used in these emails is consistent with long-standing board precedent, specifically in Ithaca Industries and for students cited in our case.

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So the general counsel and the board, they attempt to distinguish Ithaca industries by arguing that in that case, the employer did not say report if you feel intimidated, but instead it just said report if you are intimidated.

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And I submit there's not a meaningful difference between those two formulations.

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It should not matter whether employees feel or are actually intimidated.

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They should feel free to complain to their employer.

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Isn't the problem with the use of the word harass

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I mean, that's a very broad term.

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And there is a point in the ALJ's decision when they say, this ALJ doesn't cite any cases, but states that reporting harassment has been categorically rejected as overbroad by board precedent.

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The issue is, if you look closely at those cases, knee block, WF hall printing, the real issue in those cases was the word pressure, not the word harassed.

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So the formulation was that if employees felt

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I thought the real distinction that was meaningful to me is that when the board in the past has forbidden such solicitations of complaints, it's been approved when what was going on was physical coercion or physical harm, but not something so broad as harass.

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Both intimidation is one, and that doesn't necessarily mean physical intimidation.

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Employees can feel to be intimidated.

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And as Chairman Miesgumer and his dissent indicated, all employees under Title VII are encouraged to report harassment.

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Harassment is unlawful under the law.

[00:03:10] Speaker 01:
This isn't a Title VII case.

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Title VII harassment means something very specific in the legal context.

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The phrase here, harass, seems to me to be quite broad and can cover

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a lot of activity.

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So, I mean, the word intimidated similarly would seem to be able to cover a broad array of material.

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But wasn't the problem that the ALJ focused on and the board focused on was that that statement was made immediately after statements about, you know, you may be pressured or asked to sign union cards, et cetera.

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This statement about, you know, if you feel harassed, report it to us was specifically in this context of if you get a request to sign a union card that's unwanted that you feel this harassment, then report it to us.

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But that goes beyond what

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what employers are allowed to do, right?

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So that was part of the formulation, ALJ's decision.

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But if you look at the first student in the Ithaca industry cases, those both involved union activity.

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They both involved solicitation.

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The first, Ithaca Industries, involved solicitation of union authorization cards here.

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Can I ask you about the second email?

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Because that was in response to an employee who said, I have floated to another unit.

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and feel like I'm being harassed and pressured to sign a card, what can I do?

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And as I understand your argument, you took that to mean that the language floated to another unit, that she was being approached about the union in a patient area, which is, of course, not allowed.

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And you do say it is not legal for you to be solicited while you're in a patient carrier performing your job.

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Is that your position with respect to the second?

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Correct.

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That's part one of the position for the second issue, and also that we clearly use the term harassed in the response to the question, so we don't use the word again.

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The unlawful formulation of the word pressure, in every case where pressure is included with the word harassed.

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Was that argument made near exceptions?

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Say that again.

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Was that argument made near exception?

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The exceptions

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I am not misstating the case

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Yes.

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Well, it's not specifically word for word stated in the exceptions.

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But again, the 10E under the Act doesn't require that every single statement needs to be spelled out and articulated in the complaint.

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Our basic position in the exceptions was that this was a lawful statement under the formulas of board law.

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And that's encapsulated.

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This argument that I'm stating here that's articulated falls within that 10E groundwork.

[00:06:08] Speaker 04:
Well, you did make the argument.

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that what you responded to was a correct statement of the law, that if you're approached about unionization while you're doing your job as a nurse specifically and especially, you have a perfect right and really are expected to say,

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This is verboten.

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You can't do this.

[00:06:32] Speaker 04:
Exactly.

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Okay.

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So that's issue number one.

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Move on to the next unfair labor practice that issue involves an alleged statement that discussing wages was inappropriate.

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And our argument is that that lacks substantial evidence to support a finding.

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First, there's no way to determine here whether the violation even occurred within the statute of limitations, because the only witness that testified to this statement occurred, could not name even the year that the alleged violation occurred in.

[00:07:02] Speaker 02:
In addition to being unable to name the year the conversation occurred in, the witness also did not name the other nurses involved, state whether the nurses were on working time, which goes to that first question that they can't be solicited on working time.

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provided no clear context for what exactly Peterson was referring to as being inappropriate.

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So this in combination is insufficient to establish substantial evidence of a violation.

[00:07:25] Speaker 01:
I thought a heavy component of the board's determination, there was a decision, there was a credibility determination about Marshall.

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They just believe

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Marshall and didn't believe management.

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And I would argue, I understand the credibility determination level.

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We're in that area.

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And I would argue... Sorry, first.

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In the credibility area, that's really hard for us to overturn Board 5.

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So I would argue that we're not in a credibility determination area, we're in a substantial evidence standard area.

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If you look at the facts in the case, there's not enough there to establish substantial evidence.

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Again,

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We don't have, we have no idea when the statement occurred, the context of the discussion, what exactly what was said.

[00:08:08] Speaker 01:
Wasn't there an informal policy that you're not supposed to talk about wages and then hear Marshall says she's told that?

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But then, so there's a dispute in the record over whether there is a general policy not to discuss wages and what the board does is it takes a letter from 2011 to say that you shouldn't talk about a new salary wage increase to then

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take the speculative leap that in 2015's on the rounds that Peterson may have made this statement to four nurses that are not named.

[00:08:43] Speaker 00:
And I think the biggest issue here too is that the ALJ... But did Peterson even deny that he made the statement or did he say, I don't recall?

[00:08:51] Speaker 02:
He said, I don't recall ever having made a statement like this ever in making my rounds is what he said.

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And in the case, the ALJ puts the responsibility on the employer for not finding a witness to disprove this allegation, which is inappropriate here.

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Because again, disproving a negative, we don't even know what year this statement occurred in.

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We don't know what other nurses were allegedly involved in this.

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It's impossible for the employer to try to disprove this, which just highlights further that the board didn't meet the substantial evidence standard here.

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If we can't even go about finding a way to disprove it, then there's not substantial evidence here to meet

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burden for an unfair labor practice.

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So that's number two.

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Moving on to the next unfair labor practice, this involves Scott Marsland, who was given a verbal warning for his conduct at the staff meeting.

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At the staff meeting, despite being asked at least three times by his supervisor to stop and that this was not the appropriate forum for this discussion, Mr. Marsland called one nursing competent and said another registered nurse was basically like a nursing student.

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Again, this was all in front of a large group of coworkers and providers, all of whom were required to rely.

[00:10:00] Speaker 01:
What was the purpose of that meeting?

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Why was it convened?

[00:10:04] Speaker 02:
Just to discuss general concerns among the staff.

[00:10:08] Speaker 02:
That was the purpose of the meeting.

[00:10:09] Speaker 00:
Wasn't the specific agenda item about

[00:10:13] Speaker 00:
coverage on lunch breaks?

[00:10:16] Speaker 00:
In the beginning of the meeting, yes.

[00:10:19] Speaker 00:
And how was staffing, you know, in order for nurses to be able to take lunch, somebody would have to cover for them, and so then the question was

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Is there enough staffing to cover for people and who are the staff that are going to be used to cover for people?

[00:10:38] Speaker 02:
The agenda item wasn't as specific as that point, but staffing was one of the issues to be discussed, as was general in a lot of these roundup meetings that the employer had.

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And again, so there's no dispute that it did start in the context of a staffing discussion, which is in the protected realm.

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But the fact that three times this employee was asked to stop when the supervisor realized he was going to the area of calling somebody incompetent,

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calling two separate nurses incompetent.

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That goes to insubordination.

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And the board and the general counsel's primary contention is that the conduct should not lose the general protection under the act because the employee did not swear or yell.

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But again, we contend in our brief in here that this should not be the only consideration in this analysis.

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In one co-worker telling supervisors and a group of employees altogether

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that a co-worker is incompetent is a defamatory statement, and I submit has a far more devastating impact than simply someone swearing or raising one's voice.

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So here again, in total, when you look at the Atlantic steel factors, Mr. Marsland persisted in an insubordinate fashion to make these personal attacks for all of his co-workers to hear, and it falls outside of the protection of the Act.

[00:12:06] Speaker 02:
Now there are a number of disciplinary events involving an employee and Marshall.

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CMC contends that each of these actions would have been taken regardless of whether Ms.

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Marshall was involved in the union campaign, and therefore there's no violation.

[00:12:18] Speaker 02:
First, again, I'll do these very briefly.

[00:12:19] Speaker 01:
You sort of put them all together.

[00:12:22] Speaker 01:
Isn't it a little suspicious that all of a sudden her misconduct occurs right during the union organizing, that she was a model employee,

[00:12:31] Speaker 01:
What's the management's theory all of a sudden getting caught up in this union activity all of a sudden?

[00:12:36] Speaker 01:
She has all these reprimands.

[00:12:39] Speaker 02:
I don't think it's for us to predict what was going on in Marshall's head other than, I mean, her outward behavior changed.

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So the employer had to react to that.

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For example, the June 26 suspension where she provides all of these different excuses to different supervisors and different stories about whether she made calls to fill an emergency staffing situation.

[00:13:00] Speaker 02:
The employer is right to question that when, again, the board and the general counsel... ALJ believed her and didn't believe your client.

[00:13:10] Speaker 02:
in terms of, and again, it goes to the substantial evidence issue of that the board, so what the ALGA did, it unfairly accused the employer of not getting to the bottom of these inconsistencies in Marshall's story.

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So, sorry, in the employer's version of the elements, the inconsistencies.

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The issue is if you look at the evidence,

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is that all the inconsistencies come from Marshall's version of events.

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She tells different people different things about what she did.

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When asked for a list of employees to provide a list of employees that she allegedly called, she refuses to provide that list of employees.

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She told one supervisor she didn't call.

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So the employer had enough evidence there to discipline Marshall without going through those inconsistencies.

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Because the only inconsistencies that were created were created by Marshall and what she told the supervisors.

[00:14:04] Speaker 02:
Again, so that, Marshal, I won't belabor the point.

[00:14:10] Speaker 02:
You have the briefing on our position on the verbal warning and the demotion as well.

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And I'll leave the Marshal at that.

[00:14:22] Speaker 02:
The one final Ann Marshall allegation that I will address, which is a little bit separate and apart, is that she was unawfully interrogated about union activity.

[00:14:32] Speaker 02:
And again, this goes to substantial evidence.

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This is a question of substantial evidence as opposed to a credibility determination.

[00:14:40] Speaker 02:
If you look at the record, Ms.

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Marshall never stated what was exactly said in that meeting.

[00:14:46] Speaker 02:
If the actual transcript of the hearing, she provided her own characterizations stating that Joel Brown basically said that Marshall was the ringleader and if she didn't stop, he was going to get HR involved.

[00:14:58] Speaker 02:
So again... Did Brown testify?

[00:15:01] Speaker 02:
Brown testified?

[00:15:02] Speaker 02:
Yes, Mr. Brown testified and denied to believe that...

[00:15:05] Speaker 02:
that he ever used the word ringleader or that he ever mentioned the word HR.

[00:15:10] Speaker 02:
So again, what we have is Marshalls, in Marshalls, so she never said that he actually said these things.

[00:15:15] Speaker 00:
Didn't the ALJ find that he was not credible?

[00:15:18] Speaker 02:
As to this point, I do not believe that he found Brown not to be credible.

[00:15:26] Speaker 00:
He was found not to be credible on another point, I guess.

[00:15:31] Speaker 00:
when he said that he wasn't really concerned about union activity when that was contradicted by numerous emails and correspondence.

[00:15:43] Speaker 00:
Wasn't that him?

[00:15:44] Speaker 02:
That was it, yes.

[00:15:46] Speaker 02:
But again, here, so rather than a credibility determination, we have Marshall never actually testifying what was actually said in that meeting.

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It's her characterization of what was said in that meeting.

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And we went over an area of law earlier where

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The distinctions in language are razor-sharp, razor-thin here in terms of what's a lawful statement and what's an unlawful statement.

[00:16:08] Speaker 02:
And where somebody characterizes what was basically said in the meeting, this shouldn't be enough to establish substantial evidence of the position.

[00:16:17] Speaker 02:
Florence Ogandali, these are the Facebook posting threats, two threats claimed to have been made by Supervisor Florence Ogandali.

[00:16:27] Speaker 02:
She again Florence says that she's responding to a religious accusation that she sold her soul to the devil She's very passionate about her religion And she responded that she would not be bullied and intimidated and advised the poster Scott Marslin not to mess with her and that his disciples should do the same Again, there's no specific mention of the Union in that post and Florence stated there were posts about

[00:16:49] Speaker 02:
her religion that were no longer available at the hearing that she was referring to.

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So that's the first.

[00:16:54] Speaker 02:
There was no specific reference to union activity and it was a response by Florence to an offensive statement.

[00:17:02] Speaker 02:
As for the second posting, recognizing that the statements therein are likely unlawful, there's no evidence in the record that any employee at CMC actually saw the posting.

[00:17:12] Speaker 02:
It was only up for two hours, so our contention is this would be equivalent to a supervisor yelling a threat into an empty hospital.

[00:17:23] Speaker 02:
And the last point here, very briefly, goes to distributing union literature.

[00:17:31] Speaker 02:
First, CMC admits that Alan Peterson mistakenly told two employees they could not put a table display out in the cafeteria.

[00:17:37] Speaker 02:
That happened.

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However, after seeking further legal guidance, no additional comments were made, no one was ever disciplined, and there was no further action or discussions.

[00:17:47] Speaker 02:
So CMC contends that this two-time error, so it occurred two times, is consistent with the board's decision in Kendall Co., where there was a disparate enforcement of a policy, and that it was not shown to be unlawful based on isolated deviations.

[00:18:01] Speaker 02:
So our position is that CMC slipped up in its policy enforcement, and just as if United Way was to come in and set up a table, we should have allowed that table to be set up.

[00:18:11] Speaker 02:
and that this two-time violation of that policy was a disparate enforcement, but does not rise to the level of an unfair labor practice.

[00:18:19] Speaker 02:
And then the last union literature area, the board found that the employer took down certain pro-union materials from areas in the hospital.

[00:18:29] Speaker 02:
However, CMC did have a general practice of removing non-business related material from certain areas in the hospital, certainly not all areas of the hospital.

[00:18:39] Speaker 02:
And again, going to the substantial evidence portion and not the credibility factor.

[00:18:44] Speaker 02:
There's insufficient evidence of a violation because neither the ALJ nor general counsel nor board is specific on which locations managers and supervisors allegedly remove the materials or when these violations occurred or what the materials actually were.

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So once again, there's a substantial evidence issue that was not met here.

[00:19:05] Speaker 02:
All right.

[00:19:06] Speaker 04:
You've gone over your time.

[00:19:08] Speaker 04:
I do want to ask you.

[00:19:09] Speaker 04:
Was there ever an election?

[00:19:11] Speaker 02:
There was never an election.

[00:19:14] Speaker 04:
We'll give you a minute to reply.

[00:19:15] Speaker 02:
I appreciate it.

[00:19:16] Speaker 02:
Thank you.

[00:19:17] Speaker 04:
Ms.

[00:19:18] Speaker 04:
Isbell?

[00:19:23] Speaker 06:
Good morning.

[00:19:23] Speaker 06:
May it please the court.

[00:19:24] Speaker 06:
Kelly Isbell here on behalf of the National Labor Relations Board.

[00:19:27] Speaker 06:
When the nurses at Cayuga Medical Center started trying to organize a union, the managers started a campaign of their own.

[00:19:34] Speaker 06:
They interrogated and threatened employees.

[00:19:36] Speaker 06:
They removed union literature, prohibited employees from distributing literature in the cafeteria, and targeted the two employees they saw as the primary pro-union employees.

[00:19:49] Speaker 06:
Scott Marsal was engaging in protected concern activity, and they disciplined him.

[00:19:54] Speaker 06:
And Marshall, the ringleader of the union campaign, was targeted with suspensions and warnings, eventual demotion, and a bad evaluation.

[00:20:04] Speaker 06:
Cayuga's challenges to the board's decision are primarily based on factual disputes and credibility.

[00:20:12] Speaker 06:
And as you know, the court won't overturn our credibility determinations.

[00:20:15] Speaker 01:
What about the e-mails?

[00:20:17] Speaker 01:
What about the two e-mails?

[00:20:20] Speaker 06:
The two e-mails.

[00:20:22] Speaker 06:
Those e-mails, when the board explained it first to students, that when it's deciding whether or not e-mails like that are unlawful, it looks at the actual context of the letter.

[00:20:33] Speaker 06:
And this letter, both of them, I mean, there were several emails that Peterson sent out with only two of the board found had unlawful language in them.

[00:20:41] Speaker 06:
The first one said, you are going to be asked or more likely pressured to sign a card.

[00:20:48] Speaker 06:
And then later says, if you feel harassed, report it to us.

[00:20:53] Speaker 06:
So it's equating being asked or pressured to sign a card with feeling harassed.

[00:20:59] Speaker 06:
The next letter had the same kind of language.

[00:21:03] Speaker 06:
I'm feeling harassed or pressured to sign a card.

[00:21:05] Speaker 06:
What should I do?

[00:21:06] Speaker 06:
You should report that to us.

[00:21:08] Speaker 06:
And this is the same kind of language the board found to be unlawful in Bloomington Normal and Kniblock Engraving.

[00:21:14] Speaker 00:
But didn't one of the emails use the word harassed or intimidated?

[00:21:19] Speaker 06:
Yes it did, Your Honor.

[00:21:20] Speaker 00:
Does that make a difference?

[00:21:22] Speaker 06:
The board has found the use of the word intimidation to be lawful in certain contexts.

[00:21:29] Speaker 06:
But in this context, because the

[00:21:31] Speaker 06:
Letters themselves equate being pressured to sign a card with harassment or intimidation.

[00:21:37] Speaker 06:
The board found it to be unlawful.

[00:21:39] Speaker 06:
I mean, there's the Ithaca industry.

[00:21:42] Speaker 06:
It's either First Student or Ithaca industries where the lawful language said if you are confronted and harassed or intimidated.

[00:21:50] Speaker 06:
So the employer was equating a physical confrontation with threats and intimidation.

[00:21:58] Speaker 06:
And the board found that to be lawful.

[00:21:59] Speaker 06:
But here, we have an equation of asking someone repeatedly, which can be annoying, to sign a card with feelings of harassment or intimidation.

[00:22:08] Speaker 04:
It's beyond annoying.

[00:22:11] Speaker 04:
It's not allowed in a patient area.

[00:22:14] Speaker 04:
And that's what they were saying.

[00:22:16] Speaker 06:
Well, Your Honor, I don't read that letter that way.

[00:22:19] Speaker 04:
I mean, the letter says...

[00:22:21] Speaker 04:
It is not legal for you to be solicited while you're in a patient care area and performing your job.

[00:22:26] Speaker 06:
And that is an absolutely legal thing to say.

[00:22:28] Speaker 06:
That's not what the board found to be unlawful.

[00:22:31] Speaker 06:
Reporting feelings of harassment was what the board found to be unlawful.

[00:22:36] Speaker 04:
If you feel that you continue to be harassed and continue relates back to being solicited in the patient care area.

[00:22:45] Speaker 06:
I don't remember any arguments below about

[00:22:50] Speaker 06:
this actually being about solicitation in the patient care areas.

[00:22:55] Speaker 06:
Well, that's what the email says.

[00:22:57] Speaker 06:
Well, what the board found unlawful was the request of reports of people who are soliciting you and pressuring you to sign a card.

[00:23:07] Speaker 06:
In the patient area.

[00:23:09] Speaker 06:
there isn't any evidence that anyone was solicited in the patient care area.

[00:23:12] Speaker 06:
That was not the focus of the boards.

[00:23:15] Speaker 06:
That was not what was presented to the board.

[00:23:17] Speaker 06:
These people are doing this unlawfully in a patient care area.

[00:23:20] Speaker 04:
So this third question that the hospitals were responding to from a nurse, I have floated to another unit, feel I'm being harassed and pressured to sign a card, what can I do?

[00:23:34] Speaker 04:
You're saying,

[00:23:35] Speaker 04:
that the hospital made out of whole cloth that this relates to solicitation in the patient care area?

[00:23:46] Speaker 04:
If that's the case, then it wasn't responsive to the question, and they were answering three questions.

[00:23:53] Speaker 06:
There is nothing on this record where they presented evidence that what they were actually concerned about was solicitation in the patient care area.

[00:24:00] Speaker 04:
The email itself says that's what the hospital was concerned about.

[00:24:05] Speaker 06:
But that is not the argument before the board.

[00:24:07] Speaker 06:
The argument before the board was just about solicitation in general.

[00:24:12] Speaker 06:
And the board is not saying here that you can solicit in a patient care area on work time.

[00:24:17] Speaker 06:
That, of course, is not board law.

[00:24:21] Speaker 06:
All the board is saying is that you can't ask for reports, for people to report union solicitors if you feel harassed or threatened.

[00:24:29] Speaker 04:
All right.

[00:24:29] Speaker 04:
Let me ask you then with respect to the answer to this third question.

[00:24:34] Speaker 04:
which states, as you said, states the law.

[00:24:39] Speaker 04:
When could the hospital give that advice lawfully?

[00:24:45] Speaker 06:
Do you mind if I pull it up?

[00:24:48] Speaker 05:
Yeah.

[00:24:52] Speaker 05:
Can you tell me which page you're on, please, ma'am?

[00:24:55] Speaker 05:
JA 249.

[00:24:56] Speaker 05:
249, okay.

[00:24:57] Speaker 05:
I just want to make sure that I don't say something

[00:25:04] Speaker 06:
Okay, you have the right to tell, you do have the right to tell, okay.

[00:25:09] Speaker 06:
So it is a legal statement to say it's not legal for you to be solicited while you're in a patient care area and performing a job.

[00:25:15] Speaker 04:
All right.

[00:25:17] Speaker 04:
This is answering a question.

[00:25:20] Speaker 04:
The hospital is answering the question of some unknown nurse that I've floated to another unit and I assume the hospital takes that

[00:25:33] Speaker 04:
I don't know what that means, but it takes that to mean while I'm in this unit performing patient care, I'm being solicited.

[00:25:45] Speaker 06:
Admittedly, this was not before the board, so the board did not talk about this, but floated to another unit to me means I am now working in another work area.

[00:25:54] Speaker 06:
Working, taking care of patients.

[00:25:56] Speaker 06:
Well, I am now, instead of being at ICU, this shift is in I'm in an emergency because they have a staffing problem.

[00:26:04] Speaker 06:
But that doesn't mean that this is the solicitation that's happening.

[00:26:07] Speaker 04:
Why would that be pertinent to the question unless she were working?

[00:26:12] Speaker 04:
In other words, if she said, I'm now doing such and such, and I'd like to know the answer to something that has nothing to do with how I'm working at such and such.

[00:26:23] Speaker 06:
Right.

[00:26:24] Speaker 06:
And I just don't read it as while I am working.

[00:26:29] Speaker 06:
I read it as I am now with unfamiliar people, and I feel like I'm arrested.

[00:26:32] Speaker 04:
But the hospital did.

[00:26:33] Speaker 04:
And there's nothing illegal about the hospital telling that nurse, you cannot be solicited while you're performing your job, and you can tell them to leave you alone.

[00:26:45] Speaker 04:
And if you continue to be harassed, meaning while you're working, according to the hospital, you can come see us.

[00:26:54] Speaker 06:
And I just don't, that particular formulation was not how it was argued to the board, and that is not

[00:27:02] Speaker 06:
part of the board's decision.

[00:27:03] Speaker 06:
So the board is not looking at this as a patient care.

[00:27:06] Speaker 01:
But you agree that if it were, that there's nothing unlawful about the employer saying,

[00:27:14] Speaker 01:
come tell us if you're being harassed in a patient care area by somebody trying to pressure you to sign a union card.

[00:27:22] Speaker 01:
If those were the facts, that would be different.

[00:27:25] Speaker 06:
And that is actually the rule and it's not being, you know, and then we get into it's not being disparately applied.

[00:27:31] Speaker 06:
Exactly.

[00:27:31] Speaker 06:
But as a statement of the law, you

[00:27:36] Speaker 06:
The board would certainly say, as a straight out statement of the law, you can prevent people from soliciting the inpatient care areas on work time.

[00:27:45] Speaker 01:
Your argument, I take it, is that that's not the only reading that's compelled by the email.

[00:27:52] Speaker 01:
And that's not the reading that was presented.

[00:27:53] Speaker 01:
And that you're also saying that was not argued before the document.

[00:28:02] Speaker 06:
Yes, Your Honor.

[00:28:03] Speaker 06:
So do you have any more questions about the

[00:28:06] Speaker 06:
I did want to talk about Ms.

[00:28:13] Speaker 06:
Marshall just for a minute and talk about the inconsistencies in the facts related to her suspension.

[00:28:25] Speaker 06:
The inconsistencies were not provided by Ms.

[00:28:28] Speaker 06:
Marshall.

[00:28:28] Speaker 06:
Ms.

[00:28:29] Speaker 06:
Marshall always told Linda Crum, the person who suspended her, that she never said she

[00:28:35] Speaker 06:
did not call people.

[00:28:37] Speaker 06:
She always said that she made calls, which she had to do, as you know on this record, all the time.

[00:28:42] Speaker 06:
All the charge nurses and team leaders were routinely having to call to fill the holes in the schedule.

[00:28:47] Speaker 06:
Where the inconsistencies come in are with the managers.

[00:28:53] Speaker 06:
So there are two different managers who say that she told me she called people and nobody's coming in.

[00:29:01] Speaker 06:
There are other managers who say she told me she did not make any phone calls.

[00:29:06] Speaker 06:
So as I read this record, the inconsistencies are with management.

[00:29:13] Speaker 06:
She always denied making those statements.

[00:29:16] Speaker 06:
But the bigger issue is that the ALJ just found that they didn't meet their right-line burden.

[00:29:24] Speaker 06:
You have to show that you would have had to take this action even in the absence of her union activity, you would have taken the same action.

[00:29:34] Speaker 06:
And the ALJ found they did not make that showing.

[00:29:37] Speaker 06:
The comparator evidence they put on shows that they typically go through their usual progressive discipline process.

[00:29:43] Speaker 06:
There's evidence of people being rude and profane and yelling and throwing charts.

[00:29:49] Speaker 06:
And those people all got multiple counselings and prior warnings and individual improvement plans before being suspended.

[00:30:01] Speaker 06:
The verbal warning

[00:30:02] Speaker 06:
related to the incident with Mr. Brown is a credibility determination.

[00:30:08] Speaker 06:
Of course, the ALJ believed Ms.

[00:30:09] Speaker 06:
Marshall, not Mr. Brown.

[00:30:12] Speaker 06:
And I don't think there's been any showing that her testimony was hopelessly incredible.

[00:30:17] Speaker 06:
I mean, what's shown in the record is Ms.

[00:30:20] Speaker 06:
Crum doing an investigation where she turned in to the administrative law judge, a set of typed notes that didn't actually reflect the handwritten notes.

[00:30:31] Speaker 06:
that were later found to be in her car.

[00:30:34] Speaker 06:
And the administrative law judge found that her investigation and the note she presented to him originally did not reflect what the actual investigation showed, which was that no nurse has heard any kind of confrontation between Mr. Brown and Ms.

[00:30:51] Speaker 06:
Marshall.

[00:30:52] Speaker 06:
They only heard Ms.

[00:30:54] Speaker 06:
Marshall and him talking about the schedule, but they did not hear what Mr. Brown said.

[00:30:59] Speaker 06:
They did not hear anything that corroborated his story that would justify a verbal warning.

[00:31:05] Speaker 06:
We didn't talk about the demotion, but I think on this record the ALJ's findings are completely valid where she went from the managers initially said she was flippant and that changed before she was demoted into her making an obscene gesture.

[00:31:26] Speaker 06:
And there's no evidence that she actually made the obscene gesture, but there is testimony about her being flippant and there are emails that say she was flippant and then suddenly she's demoted for obscene gestures.

[00:31:40] Speaker 06:
And there's just not enough evidence to justify a demotion on that basis.

[00:31:45] Speaker 06:
This was an exemplary employee for years with very good evaluations and no discipline.

[00:31:53] Speaker 06:
until the union campaign started and suddenly she has a bad attitude and is being targeted with multiple disciplines in just a few months.

[00:32:07] Speaker 06:
Does the court have any questions?

[00:32:09] Speaker 01:
How about Mr. Marsland's insubordination?

[00:32:13] Speaker 06:
With Mr. Marsland, he was engaged in protected, concerted activity.

[00:32:17] Speaker 06:
This was a staff meeting where the manager expected people to provide feedback and to talk about issues.

[00:32:23] Speaker 01:
Even so, that doesn't justify insubordination.

[00:32:27] Speaker 06:
Well, the manager herself... Well, I'm sorry.

[00:32:30] Speaker 01:
It does?

[00:32:32] Speaker 06:
Under the board's rules, even if he engaged in insubordination, he was... His activities or his discussion that morning

[00:32:41] Speaker 06:
were part and parcel of this protected, concerted activity, and for it to lose the protection of the Act, he would have to do something egregious.

[00:32:49] Speaker 06:
What he did was talk about an issue that the nurses had talked about, that the nurses had raised to other managers, and he did not bring up those two nurses' names.

[00:32:59] Speaker 06:
The manager first said, thank you all for taking breaks, and I especially want to mention these two managers.

[00:33:05] Speaker 06:
And at that point, he felt like he needed to say, in a staff meeting were these discussing

[00:33:11] Speaker 06:
common problems was expected that he himself had refused to take breaks because he didn't feel like his critical care patients were safe and he needed to bring it to this manager's attention.

[00:33:24] Speaker 06:
This was a common problem other nurses had had and another nurse testified that she herself had brought it to a manager.

[00:33:30] Speaker 06:
About these particular nurses, this was not him saying things that were unknown or saying things that were

[00:33:38] Speaker 06:
unrelated to the terms and conditions of the hospital.

[00:33:42] Speaker 01:
The manager made the judgment that to bring that up in that sort of setting was going to cause all sorts of negative repercussions, which is easy to imagine, right?

[00:33:53] Speaker 01:
Why couldn't Mr. Marsland have just gone privately?

[00:33:57] Speaker 01:
And it was the public nature of the claims that was the cause for concern.

[00:34:04] Speaker 01:
A manager isn't allowed to do that, to say, we can talk privately about this, but this isn't the time or the place to say the things that you're saying.

[00:34:14] Speaker 01:
What's wrong with that?

[00:34:16] Speaker 06:
Well, I think just on this record, because this particular issue had been talked about so much and was so important,

[00:34:24] Speaker 06:
to them.

[00:34:24] Speaker 06:
I mean, this was about the safety of patients.

[00:34:26] Speaker 01:
I thought it was the naming of the people that was the cause of the concern.

[00:34:33] Speaker 01:
Not the discussion topic.

[00:34:34] Speaker 01:
It was on the agenda, right?

[00:34:36] Speaker 01:
It was on the agenda.

[00:34:38] Speaker 06:
Remember, the manager named those two people first.

[00:34:41] Speaker 06:
So Scott Marsland only responded to her.

[00:34:44] Speaker 06:
She brought their names up.

[00:34:46] Speaker 06:
So their names were out there.

[00:34:48] Speaker 06:
And I think just because on this record,

[00:34:52] Speaker 06:
there was evidence that those two particular nurses had been discussed among the other critical care nurses before.

[00:35:00] Speaker 06:
That this was something that was very important to them and that was the kind of conversation that should happen at the staff meeting where you're discussing whether or not you can take breaks.

[00:35:19] Speaker 04:
Okay, why don't you take a minute.

[00:35:22] Speaker 04:
Come on up.

[00:35:23] Speaker 04:
Take a minute, but I want you to point me to where you made the argument before the board, if you did, that I went over at great length with Ms.

[00:35:35] Speaker 04:
Isbell about the second email being responsive.

[00:35:42] Speaker 04:
Did the hospital argue that the second email was responsive to a nurse who was

[00:35:50] Speaker 04:
complaining about being approached while she was working.

[00:35:55] Speaker 02:
I reviewed the record and we did not specifically make that complaint.

[00:35:59] Speaker 02:
We did not articulate that before the board.

[00:36:03] Speaker 02:
Again, the argument would be that it's encapsulated within the general component.

[00:36:07] Speaker 02:
It's not specifically articulated before the board.

[00:36:10] Speaker 02:
Just very, very briefly, for

[00:36:14] Speaker 02:
Ms.

[00:36:14] Speaker 02:
Marshall, a notice for the Joel Brown incident, which resulted in a verbal warning.

[00:36:24] Speaker 02:
There was no witnesses, primarily because the bulk of the incident was in Joel Brown's office, so no one was around during that time.

[00:36:32] Speaker 02:
So to say that there was no witnesses is an inaccurate statement of the incident.

[00:36:40] Speaker 02:
And then I would also just mention that

[00:36:42] Speaker 02:
the issues for Mr. Marson, the issues with these two nurses.

[00:36:47] Speaker 02:
This was completely unknown to the manager at that time.

[00:36:51] Speaker 02:
There was no complaints that were ever made to the manager.

[00:36:52] Speaker 02:
She never knew about this incident.

[00:36:56] Speaker 01:
Did the manager give him the option of talking about the issues privately?

[00:37:02] Speaker 02:
Yes, and there was, in the subsequent disciplinary meeting, which is a very late stage.

[00:37:06] Speaker 01:
No, I'm saying at the meeting.

[00:37:07] Speaker 01:
I just can't remember the record.

[00:37:08] Speaker 01:
At the meeting.

[00:37:09] Speaker 01:
Did the manager say, let's not talk about this here, let's talk about this privately?

[00:37:14] Speaker 02:
He said, let's not talk about this here.

[00:37:16] Speaker 02:
This isn't appropriate here, is what the manager said.

[00:37:19] Speaker 02:
But there was no indication that he would not be able to articulate this.

[00:37:23] Speaker 02:
And staffing was a regular conversation amongst employees.

[00:37:27] Speaker 02:
And that's my time.

[00:37:28] Speaker 02:
Thank you.