Barstow Community Hospital

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348 NLRB No. 58 957 Barstow Community Hospital-Operated by Commu- nity Health Systems, Inc. and United Nurses As- sociation of California, Union of Health Care Professionals, NUHHCE, AFSCME, AFL–CIO. Case 31–CA–26057 September 30, 2006 ORDER REMANDING PROCEEDING TO ADMINISTRATIVE LAW JUDGE BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND KIRSANOW On August 29, 2003, Administrative Law Judge Lana H. Parke issued the attached decision in this proceeding. The Respondent filed exceptions and a supporting brief. The Charging Party filed an answering brief. On September 29, 2006, the Board issued its decisions in Oakwood Healthcare, Inc., 348 NLRB No. 37, Croft Metals, Inc., 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39, and in light of the Supreme Court’s decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001). Oakwood Healthcare, Croft Metals, and Golden Crest specifically addresses the meaning of “assign,” “responsibly to di- rect,” and “independent judgment,” as those terms are used in Section 2(11) of the Act. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has decided to remand this case to the judge for further consideration in light of Oakwood Healthcare, Golden Crest, and Croft Metals, including allowing the parties to file briefs on the issue, and, if warranted, re- opening the record to obtain evidence relevant to decid- ing the case under the Oakwood Healthcare, Golden Crest, and Croft Metals framework. IT IS ORDERED that this proceeding is remanded to the administrative law judge for appropriate action as noted above. IT IS FURTHER ORDERED that the administrative law judge shall prepare a supplemental decision setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended Order, as appropriate on re- mand. Copies of the supplemental decision shall be served on all parties, after which the provisions of Sec- tion 102.46 of the Board’s Rules and Regulations shall be applicable. Nikki N. Cheaney, Esq., for the General Counsel. Don T. Carmody, Esq., of Woodstock, New York, for the Re- spondent. Minh Nguyen, Esq.(Gilbert & Sackman), of Los Angeles, Cali- fornia, for the Charging Party. DECISION STATEMENT OF THE CASE LANA H. PARKE, Administrative Law Judge. This case was tried in Los Angeles, California, on June 30 and July 1, 2003.1 Pursuant to charges filed by United Nurses Association of Cali- fornia, Union of Health Care Professionals NUHHCE, AFSCME, AFL–CIO (the Union), the Regional Director of Region 31 of the National Labor Relations Board issued a com- plaint and notice of hearing on March 11, 2003.2 The com- plaint alleges that Barstow Community Hospital–operated by Community Health Systems, Inc. (Respondent) violated Sec- tions 8(a)(3) and (1) of the National Labor Relations Act by interrogating an employee about her union and/or protected concerted activities and by terminating Lois Sanders because she engaged in union and/or protected concerted activities, and to discourage employees from engaging in such activities. Respondent essentially denied the complaint allegations and asserted, as affirmative defenses, that Sanders was, at relevant times, a supervisor within the meaning of Section 2(11) of the Act and that it would have terminated Sanders irrespective of her union and/or protected activities.3 On the entire record and after considering the briefs filed by the Charging Party and Respondent4 and the oral argument of the General Counsel, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a corporation, with a facility in Barstow, Cali- fornia (the facility or the hospital), is engaged in the operation 1 All dates are in 2002 unless otherwise indicated. 2 The General Counsel amended the complaint on April 10, 2003, changing certain charge filing and service dates. 3 Respondent also raised affirmative defenses that the Region failed to conduct its investigation of these matters in compliance with the General Counsel’s Memorandum OM 02-36 and the Board’s Casehan- dling Manual and that the Region failed to afford Respondent sufficient time to cooperate in the investigation and produce evidence in its de- fense. I declined to receive evidence concerning these affirmative defenses. The adequacy of the General Counsel’s investigation is not litigable in an unfair labor practice hearing, Redway Carriers, 274 NLRB 1359, 1371 (1985), and the agency’s Casehandling Manual provides guidance only and is not binding on General Counsel or the Board. Starlite Cutting, Inc., 280 NLRB 1071 fn. 3 (1986). Evidence regarding these affirmative defenses is not relevant to the unfair labor practice proceeding herein. 4 Respondent filed its brief on the due date but, through the inadver- tence of the person charged with filing responsibility during counsel’s absence from his office, filed it with the Regional Director of Region 31 rather than the Division of Judges as required. The following day, Counsel rectified the mistake, making proper filings to all parties. The Charging Party also untimely filed its decision with the Division of Judges on August 15, 2003. Thereafter, Counsel for the Charging Party provided an affidavit explaining that in her absence her secretary, mis- takenly believing the brief was to be mailed on August 12, did not effect timely filing. In light of counsels’ detailed explanations of inad- vertent errors, their diligent attention to them, and the fact that no un- due prejudice has resulted to any party, I have considered Respondent’s and the Charging Party’s briefs. See Elevator Constructors, Local 2 (Unitec Elevator Services), 337 NLRB 426 (2002). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 958 of an acute-care hospital. During the calendar year preceding the complaint, a representative period, Respondent derived gross revenues in excess of $250,000 from the operation of its acute care hospital in Barstow. During that same period, Re- spondent purchased and received at the facility goods and ser- vices valued in excess of $50,000 directly from points outside the state of California. Respondent admitted and I find it to be an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act. Respondent admitted, and I find the Union to be a labor organization within the meaning of Section 2(5) of the Act. 5 II. ALLEGED UNFAIR LABOR PRACTICES A. The suspension, interrogation, and termination of Sanders Respondent hired Sanders in May 2001. The position title noted on her Position Description/Evaluation of May 6, is “Registered Nurse . . . Emergency Room.” Her duties included triaging patients, carrying out doctor orders, and transferring or discharging patients as directed. Her usual shift was from 7 p.m. to 7 a.m., the night shift, although she worked for a time on the day shift. The emergency room (ER) manager and a clinical coordinator (CC) provided ER oversight. When the CC was unavailable, other nurses filled in as assigned. Beginning a month or two after employment, Sanders filled in as CC once or twice a week on the night shift. In early spring, Sanders told some of her coworkers she would contact a union for them so they could do something about their various employment complaints. Thereafter, she contacted various unions to set up a union information meeting for employees. On August 9, Sanders talked to Mary Capo- lupo, a registered nurse employed by Respondent, about the Union. Thereafter, Capolupo furnished a memorandum, dated August 9 to Maureen Bodine, Respondent’s director of nurses, which in pertinent part read: On the night of 8-9-02 Lois Sanders was clinical coor- dinator. She came by wing 300 and said oh I didn’t know you were working tonight. I said actually I am working OB post partum tonight. I am relieving Brian . . . Lois then said I have something to say to you but I do not know how to say it. Ah! Well I’ll just come out and say it. I said what’s that all about. She said have you heard any- thing about Carol and I trying to bring in the union for the nurses. She said well what do you think about it? I said you can do what ever you want it’s a free country. Lois then said, since you know all the nurses on the floor I thought maybe you could talk to them about the union . . . She then said maybe I shouldn’t be asking you to do this because you might get written up and get in trouble. On August 31, Bodine telephoned Sanders at home and in- formed her that Respondent was suspending her pending inves- tigation but declined to explain why. At the hearing, Bodine 5 Where not otherwise noted, the findings herein are based on the pleadings, the stipulations of counsel, and/or unchallenged credible evidence. testified that Respondent suspended Sanders while investigat- ing whether Sanders had engaged in union activities while serv- ing as a CC. By letter dated September 6, Bodine informed Sanders, in pertinent part, as follows: This is to inform you that we desire to schedule an in- vestigatory interview with you for the purpose of inquiring into your conduct while recently assigned as a Clinical Coordinator. We desire to schedule the interview for September 17, 2002 at 2:00 PM. On September 17, Sanders attended the scheduled investiga- tory meeting held in Bodine’s office. Bodine and Michael Trumble, Respondent’s director of human resources, were pre- sent. Bodine refused to tell Sanders the purpose of the meeting, saying the questions she was about to ask would provide the answer. Bodine queried Sanders from a list of prepared ques- tions. The questions and a summary of Sanders’ answers6 are as follows: 1. Where [sic] you the Clinical Coordinator on the night of 8/9/02? Sanders said she was. 2. What are the responsibilities of the Clinical Coor- dinator? Sanders answered that she had no sense of au- thority, could not reprimand or discipline, did staffing for the following shift, and dealt with the pharmacy needs, and that she often did the job under protest. 3. During the shift of 8/9/02, did you have any con- versations with any employee about Unions or organizing Unions? Sanders said she did not recall. 4. Did you say anything to anyone about getting writ- ten up or getting in trouble in reference to union activities? Sanders again said she did not recall. 5. Have you ever engaged in Union Activity while as- signed as Clinical Coordinator? Sanders denied doing so. By letter dated September 26, Bodine notified Sanders, in pertinent part, “[B]ased upon our recent investigation into your conduct while assigned as a Clinical Coordinator, your em- ployment with Barstow Community Hospital is being termi- nated.” At the hearing, Bodine testified that Respondent terminated Sanders because she was conducting union activity on August 9 while acting in a management position as a “supervisor or clinical coordinator.” Bodine said that Sanders’ engaging in union activity while acting in the role of management was “against [Respondent’s] policy which [was] to remain union- free.” Respondent reiterated the basis for Sanders’ termination in its brief: Sanders, while vested with the responsibilities of Clinical Co- ordinator, sought to enlist Capolupo’s assistance in organizing the Hospital’s nurses. For this reason, and this reason alone, the Hospital rightfully decided to terminate Sanders’ em- 6 Bodine’s notations sometimes consist of only a word to denote the answer given. The answers set forth are based on the notations and correlative testimony. BARSTOW COMMUNITY HOSPITAL 959 ployment.7 B. Sanders’ Supervisory Status As with all ER nurses, Respondent hired Sanders with the expectation that she would fill in as relief CC. Donna Rollins, medical-surgical manager, testified that Bodine tells all nurse- applicants for the ER that part of their roles will be to act as a clinical coordinator on the night shift in the absence of the CC or the manager, that it is mainly staffing they will be involved in, but they may have to deal with other issues that come up, at which time they may call a manager. As noted above, the posi- tion description/evaluation for Sanders signed by Schneider on May 6, states Sanders’ position as “Registered Nurse . . . Emer- gency Room.” There is no mention of any relief CC position, and Sanders was not regularly scheduled as relief or acting CC. Bonnie Lou Schneider, manager of medical surgical depart- ment, generally informed her once or twice a week that she was to fill in as CC. Respondent did not require employees to ac- cept the acting CC assignment, and on occasion, Sanders de- clined to fill in as CC or asked management to find someone else. Respondent paid acting CCs a 10-percent shift differential when they served in that capacity. I find that although Sanders served as an ad hoc acting CC as did other ER nurses, she did not have any regular, established assignment as a relief CC. When nurses were directed to act as CC, a manager gave the assigned individual a staffing book containing staff guidelines, staffing grids,8 master schedules, daily assignment sheets, a list of patients’ names and rooms, an emergency call list, instruc- tions on how to “stock” the emergency rosters, other pertinent information for CCs, and contact phone or pager numbers of all supervisors. Rollins referred to the staffing book as “the brains.” The manager told the nurse what to expect on the shift (e.g., staffing, patient issues, pending admissions, available beds.) As noted by Rollins, Respondent “encouraged . . . abso- lutely” acting CCs to follow Respondent’s written policies. The daily assignment sheets, prepared by the regular CCs, listed names of employees to be called in to work or “cut” (ex- cused from scheduled work) along with Schneider’s sugges- tions as to which employees were to be called in or excused. As Rollins testified, the notes were sometimes very specific: “These are the people that if you need to call people up these are the order to do it . . . it is their turn.” On the one occasion Rollins could recall giving the book to Sanders, she told Sand- ers the staffing was already done and reviewed it with her. In assigning the acting CCs, the managers “usually tried to make sure that things were sorted out beforehand.” Respondent’s training for acting CCs consisted of showing them how to use the staffing book, how to read the staffing grid, where to obtain medications, and where the pharmacy keys were kept. When Sanders acted as CC, in addition to her normal nursing work, she performed the following duties, which accounted, at the 7 Respondent does not argue, and there is no evidence, that Sanders’ brief discussion with Capolupo occurred on either employee’s work time. Bodine testified that she did not know whether Capolupo or Sanders was on break at the time of the conversation. 8 The staffing grids set a nurse/patient ratio according to Respon- dent’s guidelines and California regulations. Sanders had nothing to do with establishing Respondent’s policies, guidelines, or staffing grids. most, for less than 17 percent of her time:9 1. Assessed the need for staff by applying the estab- lished staffing grids and “called in” or “called off” staff as required by patient flow, utilizing the employee lists in the staffing book. 2. Obtained necessary medications by going to the fa- cility’s locked pharmacy with security personnel, obtain- ing and signing for specified medications, and relocking the pharmacy. 3. When physicians determined that patients were to be admitted to the hospital from the emergency room, called the appropriate floor nurses and obtained a patient room number for admittance. During the periods she filled in as CC, Sanders spent the bulk of her work time performing nursing duties. Like other acting CCs, she had no authority to discipline employees. Any employee misconduct was to be referred to management. No occasion occurred where she gave permission for any employee to leave work, and she believed she would have to contact man- agement in such a situation. Schneider instructed Sanders that if a problem occurred, she was to call Schneider at home, and Rollins said that if acting CCs encountered any “issues, they would certainly call.” If staff members called in sick or were otherwise unable to fulfill their shifts, they had to be replaced so as to maintain the grid level or ratio. If patient numbers fluctuated in the course of a shift, nursing personnel had to be called in or released to maintain the appropriate grid level. Acting CCs had the author- ity to “float”10 employees from one treatment area to another. Schneider’s description of the process was that the CC might call another department and say, “Who can come over and help us get through this crisis?” If unscheduled employees had to be called in to work, Sand- ers either utilized the staff lists in the staffing book or contacted a registry (contract service) to obtain personnel. In utilizing the staffing book, Sanders followed the prepared staffing log, start- ing with the top name and working down the list.11 If staffing difficulty occurred, the acting CC could contact Rollins who would then make the calls for them. The acting CC had no authority to order any employee to work; if employees refused to report, the information would be passed on to a manager for determination of disciplinary action.12 Contract nursing per- sonnel were used when no employees were available to work. In summoning contract help, Sanders contacted the registry as designated by Respondent. If contract personnel were used, 9 Respondent’s witnesses agreed that the time an acting CC spent on CC duties might be as little as 30 to 40 minutes in a 12-hour shift. 10 Floating is the temporary assignment of employees to various de- partments to meet workload demands. 11 Sanders’ method of calling in employees was consistent with manager expectations. As Rollins testified, if additional staff was needed, the acting CC looked to “the staffing sheets [to] find out if . . . somebody else . . . could fill that position, and if there wasn’t then [the acting CC] would start calling around other staff members to see who could come in and cover that shift.” 12 However, if unscheduled staff declined to work, managers gener- ally filled in as needed. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 960 Sanders oriented them to the ER by following Respondent’s checklist for ascertaining if they knew emergency procedures. From the ER, patients were admitted to either the Intensive Care Unit (ICU) or one of the two medical-surgery floors of the hospital, as designated by the attending physician. The system for determining to which of the medical-surgery floors the pa- tient would be admitted was, according to Rollins, generally “pretty routine” and consisted of alternating admissions be- tween the two floors. When, on one occasion, the staff of one floor refused to accept an admission, the acting CC called Rollins who handled the problem. Although an acting CC needed to deal with the “concerns” of patient family members, physicians, and staff, Rollins knew of no specific occasion where an acting CC had occasion to re- solve conflicts among staff. It was “not uncommon” for CCs to call Rollins at home when problems developed or for her to return to the hospital to deal with issues arising during acting- CC stints. III. DISCUSSION When Sanders spoke briefly about union organizing to Capo- lupo on August 9, she was engaged in protected activity as described in Section 7 of the Act. There is no dispute that Re- spondent thereafter suspended Sanders pending its investigation of whether she had engaged in union activities as reported by Capolupo.13 There is no dispute that Respondent, in the course of the investigation, interrogated Sanders about her union ac- tivities, and there is no dispute that Respondent fired Sanders on August 26 because she had engaged in union activities. An employer’s investigation undertaken to determine an em- ployee’s involvement in protected activities is unlawful as are all the disciplinary consequences flowing therefrom. See In Re Preferred Transportation, 339 NLRB 1 (2003), citing Accord Business Products-Division of Kidde, Inc., 224 NLRB 840 fn. 3 (1989). It does not matter that the employer may have be- lieved, in good faith, that the statutory employee was a supervi- sor within the meaning of the Act. See General Security Ser- vices Corp., 326 NLRB 312, 313 (1998). Respondent’s con- duct in investigating Sanders’ union activity, suspending her during the pendency of the investigation, interrogating her about her union activity, and firing her is unlawful on its face under Section 8(a)(3) and (1) of the Act. Respondent defends its conduct on the ground that Sanders lost the protection of the Act when she engaged in union activi- ties because she was, at the time, acting CC and a supervisor within the meaning of Section 2(11) of the Act. Respondent carries the burden of proving supervisory status. Kentucky River Community Care, Inc., 121 S.Ct. 1861, 1866–1867 (2001); Dean & Deluca New York, Inc., 338 NLRB 1046, 1047 (2003) (“The party asserting [supervisory] status must establish 13 Although General Counsel did not allege the investigation of Sanders and her corollary suspension as violations of the Act, as the facts surrounding them were admitted by Respondent, were fully and fairly litigated, and as the issues are closely connected to the subject matter of the complaint, I have considered the lawfulness of the inves- tigation and the suspension herein. Gallup, Inc., 334 NLRB 366 (2001); Letter Carriers Local 3825, 333 NLRB 343 fn. 3 (2001); Parts Depot, 332 NLRB 733 (2000). it by a preponderance of the evidence [citations omitted]”). I find Respondent has not met its burden of showing that Sanders was or acted as a supervisor at any relevant time hereto. According to the Board, “An employee’s temporary assump- tion of supervisory duties is not sufficient to establish statutory supervisory status [citations omitted].” Health Resources of Lakeview, 332 NLRB 878 (2000). The Board, quoting Aladdin Hotel, 270 NLRB 838, 840 (1984) has stated that “[T]he ap- propriate test for determining the status of employees who sub- stitute for supervisors is whether the part-time supervisors spend a regular and substantial portion of their working time performing supervisory tasks.” St. Francis Medical Center- West, 323 NLRB 1046 (1997).14 There is no evidence Sanders exercised or possessed any supervisory authority when she filled in as a CC. Rather, the evidence shows that Sanders fol- lowed established written procedures and policies as an acting CC and that she did not exercise independent judgment within the meaning of Section 2(11) of the Act. See Beverly Health & Rehabilitation, 335 NLRB 635 (2001) (exercise of only routine authority); Dean & Deluca, New York, Inc., 338 NLRB 1046 fn. 15 (2003) (direction and scheduling of employees does not establish an employee as a supervisor.) Sanders’ responsibility in any disciplinary process was nothing more than reportorial, and there is no evidence she exercised even that limited role. See Ken-Crest Services, 335 NLRB 777 (2001). Although Sanders made certain work assignments and called in employ- ees as needed, work assignments made by following plans and schedules of management do not establish statutory supervisory status,15 neither does requesting off-duty employees to come in to work. Health Resources of Lakeview, supra. Sanders ori- ented registry-nursing employees when they were called in, but such orientation does not confer supervisory status, especially where orientation consists of referring employees to established procedures and policies. Chrome Deposit Corp., 323 NLRB 961 (1997). Even assuming Sanders exercised some supervisory author- ity during those occasions when she acted as a CC, Respondent has not established that Sanders spent a regular and substantial portion of her work time doing so as required by Aladdin Hotel, supra. Sanders was assigned CC responsibility irregularly and when she was, the performance of those responsibilities did not involve a substantial portion of her working time. Accordingly, the evidence does not support Respondent’s contention that Sanders was a supervisory employee at any time. Specifically, the evidence does not show that Sanders was a supervisory employee when, on August 9, she discussed union organization with a fellow employee. Sanders, having been a statutory employee at all relevant times and specifically on August 9 when she engaged in union activity, was entitled to exercise the rights guaranteed by Sec- tion 7 of the Act. When Respondent placed Sanders on suspen- 14 I cannot agree with Respondent that the Board’s reasoning in St. Francis does not apply to this situation because Sanders’ “right to vote is not at issue.” The Board’s analyses of supervisory status are not dependent on issues but apply to all cases commonly. 15 Dean & Deluca, supra; Arlington Electric, Inc., 332 NLRB 74 (2000). BARSTOW COMMUNITY HOSPITAL 961 sion on August 31 pending its investigation of her union or other concerted protected activities and when Respondent ter- minated her for having engaged in such activities on September 26, Respondent violated Section 8(a)(3) and (1) of the Act.16 When Respondent instituted an investigation of Sanders’ union or other concerted protected activities between August 9 and September 17 and when Respondent interrogated Sanders about her union or other concerted protected activities on September 17, Respondent violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Respondent violated Section 8(a)(1) of the Act by inves- tigating Sander’s union or other concerted, protected activities. 2. Respondent violated Section 8(a)(1) of the Act by inter- rogating Sanders about her union or other concerted, protected activities. 3. Respondent violated Sections 8(a)(3) and (1) of the Act by suspending Sanders on August 31, 2002. 4. Respondent violated Sections 8(a)(3) and (1) of the Act by terminating Sanders on September 26, 2002. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Respondent having discriminatorily suspended and termi- nated Lois Sanders, it must offer her reinstatement and make her whole for any loss of earnings and other benefits, computed on a quarterly basis from date of suspension to date of proper offer of reinstatement, less any net interim earnings, as pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended17 ORDER Respondent, Barstow Community Hospital—Operated by Community Health Systems, Inc., Barstow, California, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Investigating employees’ union or other concerted, pro- tected activities. (b) Interrogating employees about their union or other con- certed, protected activities. (c) Suspending any employee for engaging in union or other 16 As Respondent concedes it disciplined Sanders for her union ac- tivities, I agree with Respondent that it is unnecessary to apply the Board’s analytical framework for deciding cases turning on employer motivation set forth in Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). 17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended 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. concerted, protected activities. (d) Terminating any employee for engaging in union or other concerted, protected activities. (e) 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 effec- tuate the policies of the Act: (a) Within 14 days from the date of this Order, offer Lois Sanders full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges pre- viously enjoyed. (b) Make Lois Sanders whole for any loss of earnings and other benefits suffered as a result of the discrimination against her in the manner set forth in the remedy section of the deci- sion. (c) Expunge from its files any reference to Lois Sanders’ unlawful suspension and termination and thereafter notify her in writing that this has been done and that the suspension and/or termination will not be used against her in any way. (d) Preserve and, within 14 days of a request, or such addi- tional 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 re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of back pay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its fa- cility in Barstow, California copies of the attached notice marked “Appendix.”18 Copies of the notice, on forms provided by the Regional Director for Region 31 after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility in- volved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respondent at any time since August 9, 2002. (f) within 21 days after service by the Region, file with the Regional Director 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. 18 If this Order is enforced by a Judgment of the 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 962 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 no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties WE WILL NOT investigate employees’ union or other con- certed, protected activities. WE WILL NOT interrogate employees about their union or other concerted, protected activities. WE WILL NOT suspend employees because they engage in un- ion or other concerted, protected activities. WE WILL NOT terminate employees because they engage in union or other concerted, protected activities. WE WILL NOT in any like or similar manner interfere with, re- strain, or coerce employees in the exercise of the rights guaran- teed you by Section 7 of the Act. WE WILL offer Lois Sanders full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. WE WILL make Lois Sanders whole for any loss of earnings and other benefits resulting from her suspension and termina- tion. WE WILL remove from our files any reference to the unlawful suspension and termination of Lois Sanders and WE WILL notify her in writing that this has been done and that the suspension and termination will not be used against her in any way. BARSTOW COMMUNITY HOSPITAL–OPERATED BY COMMUNITY HEALTH SYSTEMS, INC.