Norton Audubon Hospital

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350 NLRB No. 57 648 Norton Health Care, Inc. d/b/a Norton Audubon Hos- pital and Norton Suburban Hospital, successor to Audubon Regional Medical Center and Nurses’ Professional Organization, affiliated with United Nurses of America, American Fed- eration of State, County and Municipal Employ- ees, AFL–CIO. Cases 9–CA–31725, 9–CA– 32276, 9–CA–33632, and 9–CA–33565–1,–2,–3,–4 August 13, 2007 SUPPLEMENTAL DECISION AND ORDER REMANDING BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH On March 14, 2003, Administrative Law Judge Ira Sandron issued the attached Supplemental Decision and Order. The Respondent filed exceptions, a supporting brief, a reply brief, and an opposition to the Charging Party’s motion to remand. The General Counsel filed an answering brief. The Charging Party filed an answering brief, a motion to remand, and a response to the Respon- dent’s opposition to its remand motion. 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 exceptions1 and briefs and has decided to remand this proceeding to the judge for further findings, analysis, and conclusions consistent with this supplemen- tal decision. This is a compliance proceeding. In the underlying case, the Board found that the Respondent’s predecessor committed various violations of Section 8(a)(3), (4), and (1) of the Act, ordered appropriate remedies for these violations, and directed a second election based on some of the unfair labor practices.2 Effective September 1, 1998, the Respondent, as a successor employer, assumed ownership of Audubon Hospital (Audubon) (where the unfair labor practices occurred) and Suburban Hospital (Suburban). The key issues presented here involve the validity of the Respondent’s reinstatement offer to RN Joanne San- dusky; its offers of promotion to RNs Patricia Clark and 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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 addition, some of the Respondent’s exceptions imply that the judge’s rulings, findings, and conclusions demonstrate bias and preju- dice. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respondent’s contentions are without merit. 2 331 NLRB 374 (2000). Martha Ann Hurst; and its obligation to supply the Union the names and addresses of bargaining unit employees at Audubon. I. THE RESPONDENT’S REINSTATEMENT OFFER TO RN JOANNE SANDUSKY In its earlier decision, the Board found that, in August 1994, the Respondent’s predecessor unlawfully termi- nated or permanently laid off Sandusky from her lacta- tion consultant position at Audubon. In this proceeding, the judge found that the Respondent’s July 2000 offer of employment to Sandusky as a medical/surgical (med/surg) nurse at Audubon was invalid. At the time that the Respondent offered Sandusky this position, a lactation consultant position existed at Suburban (where most of the nurses in her unit had transferred), and San- dusky was entitled to that position. The judge found, however, that 6 months later, in January 2001, there no longer was a lactation consultant position at Suburban for which Sandusky was eligible.3 Therefore, the judge di- rected the Respondent to renew its offer of the med/surg nurse position to Sandusky because he found that it was a substantially equivalent position. We agree with the judge, for the reasons that he set out, that the Respondent’s July 2000 offer of re- employment to Sandusky was invalid. We also agree that the med/surg nurse position is a substantially equiva- lent position.4 But, based on the Charging Party’s mo- tion to remand described below, we conclude that the issue of the availability of a lactation consultant position for Sandusky has not yet been resolved. Subsequent to the judge’s decision, the Charging Party moved to remand this case “to the appropriate authority,” 3 Until January 2001, there were two lactation consultants at Subur- ban. Debbie Moses was one, and the General Counsel never argued that Sandusky should replace her. Moses was still working as a lacta- tion consultant at the time of the hearing. Lisa Hughes, the other lacta- tion consultant, was working at Suburban in July 2000 when the Re- spondent offered Sandusky the med/surg nurse position at Audubon. The General Counsel argued that Sandusky should have been offered Hughes’ position, and the judge agreed. But the judge also found that the Respondent terminated Hughes in January 2001, and never filled her position. The judge then concluded that the “Respondent’s obliga- tion to offer Sandusky a position as a lactation consultant ceased at the time that Hughes was terminated and not replaced.” 4 We also adopt the judge’s finding regarding the mileage reim- bursement for Sandusky’s travel expenses while she worked for her interim employer, Jefferson County, Kentucky. The Respondent argues that Jefferson County has already reimbursed her for these expenses. Her rate of reimbursement was at a lower rate than the Federal rate, however, and we find that the General Counsel did not abuse his discre- tion in using the Federal rate in his compliance calculations. While the Board’s Casehandling Manual does not carry the force of law, we note that the rate the General Counsel used here is consistent with the rate set forth in the Manual. See Compliance Proceedings, Part Three, Sec. 10556. NORTON AUDUBON HOSPITAL 649 essentially to reopen the record, citing newly discovered evidence that a lactation consultant position still existed at Suburban. In support, the Union proffered an affidavit from Sandusky, dated August 26, 2003, in which she asserts that, at a June 2003 professional meeting, she met Tina Martin, who informed her that she had been work- ing as a lactation consultant in the Neonatal ICU at Sub- urban for about 1 year (and thus had been in this position at the time of the October 2002 compliance hearing). The Board has stated that “[n]ewly discovered evi- dence is evidence of facts in existence at the time of the hearing which could not be discovered by reasonable diligence. In addition, in order to warrant a further hear- ing, the newly discovered evidence must be such that if adduced and credited it would require a different result. See Section 102.48 (d)(1) of the Board’s Rules and Regulations.”5 Here, the proffered evidence, if credited, would show that Martin was employed as a lactation consultant at the time of the compliance hearing and had been hired after Sandusky’s termination. The General Counsel had sub- poenaed the names of all the lactation consultants who were employed at Suburban from July 1, 2000 to the time of the compliance hearing, and Martin’s name was not among them. Judy Kees, the Respondent’s human resources director, testified that Debbie Moses was the lactation consultant at Suburban at the time of the hear- ing, and she did not mention Martin. She also stated that the Respondent had not replaced Lisa Hughes, the lacta- tion consultant the Respondent hired after Sandusky. Based on this, the judge concluded that there was no lac- tation consultant position for Sandusky to fill in January 2001. We conclude that the General Counsel acted with “rea- sonable diligence” in subpoenaing records and question- ing the Respondent’s witness. We also conclude that the evidence, if adduced and credited to show that Martin occupies the same or substantially equivalent lactation consultant position as Sandusky, would change the result the judge reached regarding Sandusky’s reinstatement. Accordingly, we grant the Charging Party’s motion and remand with the direction that the record be re- opened for the taking of the additional evidence de- scribed in the Charging Party’s motion, plus any rebuttal evidence the Respondent may wish to introduce on this issue.6 The judge shall thereafter issue a second supple- 5 APL Logistics, Inc., 341 NLRB 994 (2004). 6 Our colleague dissents from our decision to grant the Charging Party’s motion, citing rebuttal evidence that the Respondent proffered in its opposition brief. Rule 102.48(d)(1) directs the Board to grant a movant’s motion if the motion raises issues that warrant taking new evidence. We find that the Charging Party’s motion raises such issues, mental decision, setting forth, inter alia, any necessary credibility resolutions. If a lactation consultant position exists that Sandusky is entitled to, the judge shall order the Respondent to offer her that position. If no such po- sition exists, the Respondent shall then offer Sandusky the med/surg nurse position described in the judge’s sup- plemental decision.7 II. THE RESPONDENT’S PROMOTION OFFERS TO RNS PATRICIA CLARK AND MARTHA ANN HURST In its earlier decision, the Board found that, in January 1996, the Respondent’s predecessor unlawfully denied Clark and Hurst promotions to the patient care leader position, which is now titled clinical coordinator. In so concluding, the Board rejected the contention that the positions were supervisory, and it ordered the Respon- dent’s predecessor to offer Clark and Hurst those posi- tions. The Respondent did not move for reconsideration or seek court review of the Board’s determination that those positions were nonsupervisory. In July 2000, the Respondent offered Clark and Hurst charge nurse posi- and that the parties will have the opportunity to present their evidence at a hearing. Our dissenting colleague further notes that the Charging Party’s motion does not establish that Martin’s lactation consultant position is the same one that Sandusky occupied, and therefore the motion does not prove that the movant’s evidence would necessarily change the result if adduced and credited. In these circumstances, however, it would be extremely difficult for the Charging Party to prove without a hearing that the positions are identical, as this informa- tion rests with the Respondent. We thus find that the motion is suffi- cient to warrant reopening the record. 7 Member Walsh would deny the Charging Party’s motion. The Board does not lightly decide to reopen the record when a party claims that it has “newly discovered evidence.” To warrant that relief, the moving party must show, among other things, that the newly discov- ered evidence “would require a different result.” Fitel/Lucent Tech- nologies, Inc., 326 NLRB 46 fn. 1 (1998) (denying respondent’s mo- tion); see also Grinnell Fire Protections Systems, Inc., 307 NLRB 1452 fn. 2 (1992) (denying charging party’s motion). Member Walsh finds that the Charging Party has failed to make that showing. The Charging Party’s asserted new evidence is Sandusky’s claim that, at a June 2003 professional meeting, she met another employee, Fultina Martin, who said that she was working as a lactation consultant at Suburban. How- ever, even accepting that Martin made that statement to Sandusky, and further accepting that Martin was performing lactation work, it does not establish that Martin actually held the same lactation consultant posi- tion formerly held by Sandusky. The Respondent’s evidence establishes that Martin held a licensed practical nurse position; that, although Martin performed some lactation consulting work in her LPN position, Sandusky performed such work exclusively as a lactation consultant; that the lactation consultant posi- tion must be filled by a licensed registered nurse, which Martin was not; and that Martin’s LPN position paid less than the lactation consult- ant position. In those circumstances, Member Walsh finds that the Charging Party’s proffered evidence, even if credited, fails to establish that Martin held a lactation consultant position, or even a substantially equivalent position. Accordingly, he would deny the Charging Party’s motion and order the Respondent to immediately offer Sandusky the med/surg nurse position and make her whole. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650 tions8 (which it deemed substantially equivalent positions to the now-abolished patient care leader positions), but it informed Clark and Hurst that it considered the positions it was offering them to be supervisory. The employees declined the offers because they did not want to give up their right to engage in union activity. The compliance hearing in this matter was held in Oc- tober 2002. The judge found that the Respondent “acted at its peril” in deciding that the clinical coordinator posi- tion was supervisory, but he allowed the parties to pre- sent further evidence on the supervisory status of the clinical coordinator position in light of the time that had elapsed since the earlier proceeding, and the Supreme Court’s intervening decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001). Analyzing that evidence under then-extant law, the judge concluded that the positions offered were not supervisory and that the reemployment offers to Clark and Hurst were “invali- dated by the imposition of [the] improper qualification” that the positions were supervisory. Accordingly, he ordered the Respondent to make new and unconditional offers of clinical coordinator positions to Clark and Hurst. The issues here are whether the Respondent’s July 2000 offers were valid, and, if not, whether intervening case law casts doubt on the Respondent’s continuing obligation to reoffer the positions to Clark and Hurst. We agree with the judge’s conclusion that the Respon- dent’s July 2000 offers failed to comply with the Board’s order and thus were invalid. Unlike the judge, however, we do not find intervening Board law relevant in making this determination.9 The Board ordered the Respondent to offer Clark and Hurst nonsupervisory patient care leader (now clinical coordinator) positions, but the Re- spondent concededly failed to do so, thus defeating the 8 Here, “charge nurse” and “clinical coordinator” are different names for the same position. 9 As discussed infra, the Board has refined its definition of supervi- sory status since the October 2002 compliance hearing. See Oakwood Healthcare, Inc., 348 NLRB 686 (2006). While the Board has applied its restated analysis retroactively to certain pending cases (see, e.g., Terry Machine Co., 348 NLRB 919 (2006)), we do not do so here. It is well settled that a respondent in a compliance proceeding may not relitigate issues previously decided in an underlying unfair labor prac- tice proceeding. Weldun International, 340 NLRB 666, 667 (2003). Moreover, the Board has declined to retroactively apply intervening changes in Board law where, as here, a party has failed to preserve an issue settled in a prior stage of litigation. See T. Steele Construction, 348 NLRB 1173, 1173 at fn. 1 (2006) (denying as untimely respon- dent’s motion to amend its answer to a complaint in light of Kentucky River and Oakwood to deny a previously admitted allegation that an individual was a supervisor); and Opportunity Homes, 315 NLRB 1210 (1994) (denying respondent’s motion to amend its answer to argue that its LPNs were supervisors in light of an intervening Supreme Court decision), enfd. 101 F.3d 1515 (6th Cir. 1996). Board’s purpose of restoring the status quo ante. The Respondent did not timely challenge the Board’s deter- mination that the positions were nonsupervisory, nor does the Respondent argue here that it changed the posi- tions from nonsupervisory to supervisory prior to July 2000, when it made the offers. The Respondent also failed to satisfy its burden at compliance of showing that no substantially equivalent nonsupervisory positions were available. While we do not apply current Board law retroactively to determine whether the July 2000 offers were valid when the Respondent made them, the supervisory status of the clinical coordinators under current law is relevant to the Respondent’s continuing obligation under the or- der. On September 29, 2006, the Board issued its decisions in Oakwood Healthcare, supra, Croft Metals, Inc., 348 NLRB 717, and Golden Crest Healthcare Center, 348 NLRB 727, in light of the Supreme Court’s decision in NLRB v. Kentucky River Community Care, supra. These Board cases specifically address the meaning of “assign,” “responsibly to direct,” and “independent judgment,” as those terms are used in Section 2(11) of the Act. Accordingly, we remand the issue of the supervisory status of the current clinical coordinator position 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, reopening the record to obtain evidence rele- vant to deciding the issue under the Oakwood Health- care, Croft Metals, and Golden Crest framework. If the current clinical coordinator position is found nonsupervi- sory, then the judge’s recommended Order as to Clark and Hurst shall stand. If the judge determines the posi- tion is supervisory under the above framework, he shall also determine whether a substantially equivalent nonsu- pervisory position is available for promotion purposes, and whether (and, if so, when) the Respondent’s backpay obligation tolled.10 10 Our dissenting colleague argues that the status of the clinical co- ordinator position under current law is not relevant to the Respondent’s obligation to Clark and Hurst and would treat the Board’s 2000 finding that the position is nonsupervisory as the “law of the case.” We dis- agree. Several years have passed since the underlying hearing, and Board law on supervisory status has changed in the interim. We cannot compel the Respondent to designate a supervisory position as nonsu- pervisory and require the Respondent to fill it with employees who would be free to exercise Sec. 7 rights under the Act. Cf. Florida Power & Light Co. v. Electrical Workers Local 641, 417 U.S. 790, 808 (1974) (noting, inter alia, that Congress sought to assure the employer of the loyalty of its supervisors by reserving in the employer the right to refuse to hire union members as supervisors and the right to discharge them for union involvement). Moreover, the scope of our remand is narrow. We are not allowing the Respondent to relitigate the status of NORTON AUDUBON HOSPITAL 651 III. THE RESPONDENT’S ONGOING OBLIGATION TO FURNISH THE UNION WITH THE NAMES AND ADDRESSES OF BARGAINING UNIT EMPLOYEES In the underlying proceeding, the Board found the un- fair labor practices of the Respondent’s predecessor at Audubon to be “so numerous, pervasive, and outrageous that special notice and access remedies are necessary.”11 The General Counsel sought a bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Also, the Union had lost an election held at Audubon. Due to the almost complete turnover in management since the unfair labor practices were committed, and the time that had lapsed since the March 1994 election, the Board de- clined to issue a bargaining order. The Board directed a second election and ordered the Respondent, inter alia, “to supply the Union, on its request made within 1 year of the date of this Decision and Order, the names and addresses of its current unit employees.”12 The Respon- dent complied with three such requests but refused the Union’s request of December 20, 2001, on the ground the clinical coordinator position as it existed in 2000, or at the time of its unfair labor practices. Instead, we direct our remand at the status of the position today, in accord with the Board’s general policy permitting a respondent to introduce evidence at compliance as to the continuing appropriateness of a reinstatement order. See Control Services, 305 NLRB 435, 437 fn. 12 (1991), citing Storer Communications, 297 NLRB 296, 301 fn. 32 (1989). Unlike his colleagues, Member Walsh finds that the supervisory status of the clinical coordinator position under current Board law is not relevant to the Respondent’s obligation to offer that position to Clark and Hurst. As his colleagues acknowledge, the Board typically does not permit respondents in compliance proceedings to relitigate issues previously decided in the underlying unfair labor practice proceedings. See Weldun International, supra. Here, in the unfair labor practice proceeding, the Board adopted the judge’s finding that the clinical coordinator position (then known as “patient care leader”) was not supervisory. See Audubon Regional Medical Center, 331 NLRB 374 (2000). The Respondent did not move for reconsideration of that de- termination, nor did it seek judicial review. Therefore, the Respondent should not be permitted to relitigate that issue now. Rather, the Board’s determination that the position is not supervisory should be treated as the law of the case for all aspects of this compliance proceeding. Do- ing so will not prejudice the Respondent in any discernible way. Even assuming that the clinical coordinator position is supervisory, there is no infringement on the Respondent’s right to select its supervisors because the Respondent has consistently maintained that the clinical coordinators “have always been supervisory,” and that Clark and Hurst should have accepted the positions when offered in 2000. Moreover, treating that finding as the law of the case for this compliance proceed- ing would not estop the Respondent from reasserting its claim of super- visory status in a subsequent proceeding. Cf. Amalgamated Clothing Workers of America (Sagamore Shirt Co.) v. NLRB, 365 F.2d 898 (D.C. Cir. 1966) (distinguishing between related and unrelated cases in con- nection with the Board’s rule that issues that were or could have been raised in a representation proceeding may not be relitigated in a subse- quent unfair labor practice proceeding). 11 Audubon Regional Medical Center, supra at 379. 12 Id. at 378. that the 1-year period referenced in the Order had ex- pired. Below, the General Counsel argued to the judge that the 1-year period should be extended to fulfill the pur- pose of the Board’s Order, citing three additional unfair labor practice cases involving this Respondent13 (rather than its predecessor, which committed the unfair labor practices in this case). The General Counsel argued that the Union’s organizing ability has been impeded and noted that the Regional Director had not scheduled the second election “because of the Respondent’s unreme- died unfair labor practices.” The judge concluded that the Board had anticipated both “that the Regional Director would reschedule an election within a period of more or less 1 year” and that the Respondent would not engage in further unfair labor practices. The judge thus extended the names-and- addresses remedy beyond the 1-year period provided for in the Board’s Order. To avoid the Union’s requests being unduly burdensome, however, the judge limited the Respondent’s obligation to fulfilling one request every 6 months until a new election is directed or the petition is withdrawn. The Respondent has excepted on the ground that the judge’s role in a compliance hearing is limited to apply- ing what the Board has already decided. We find merit in the Respondent’s exception and note that the Respon- dent did comply with this aspect of the Board’s Order. We thus decline to issue a new order extending the 1- year period, but we note that, once the Regional Director sets the date for the second election, the Respondent will be required to provide the names and addresses of unit employees under Excelsior Underwear, 156 NLRB 1236 (1966).14 13 341 NLRB 143 (2004), enfd. mem. 156 Fed. Appx. 745 (6th Cir. 2005); 338 NLRB 320 (2002); and Case 9–CA–36655 (2000) (not reported in Board volumes). 14 Member Kirsanow does not reach the issue raised by the Respon- dent as to whether the judge overstepped his authority by recommend- ing an extension of the original 1-year requirement that the Respondent provide names and addresses of the unit employees to the Union. It is within the Board’s remedial authority to order such an extension; and under the circumstances of this case, he finds it appropriate to do so. Sec. 10(c) of the Act vests in the Board broad remedial authority to “effectuate the policies of the Act.” A bedrock policy embodied in the Act is the protection of employee free choice in the election of a bar- gaining representative. SNE Enterprises, 344 NLRB 673, 674 (2005). The original election in this case occurred in 1994 and resulted, in 2000, in the Board’s ordering a second election because of the Respon- dent’s predecessor’s unlawful and objectionable conduct. The second election had not been conducted at the time of these proceedings be- cause of additional unremedied unfair labor practices, this time by the Respondent. Thus, the unit employees have yet to make their represen- tation choice in a free and fair election; and, as the judge observed, the Union’s director of organization, Kay Tillow, testified to the Union’s DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652 ORDER 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 second supplemental decision set- ting forth credibility resolutions, findings of fact, conclu- sions of law, and a recommended Order, as appropriate on remand. Copies of the second supplemental decision shall be served on all parties, after which the provisions of Section 102.46 of the Board’s Rules and Regulations shall be applicable. David Ness, Esq., for the General Counsel. Grover C. Potts Jr. and Mitzi D. Wyrick, Esqs. (Wyatt, Tarrant & Combs, LLP), of Louisville, Kentucky, for the Respon- dent. Kay Tillow, of Louisville, Kentucky, for the Charging Party. SUPPLEMENTAL DECISION AND ORDER STATEMENT OF THE CASE IRA SANDRON, Administrative Law Judge. This matter arises out of a second amended compliance specification and notice of hearing issued by the General Counsel on June 25, 2002, relat- ing to the Board’s Decision, Order, and Direction of Second Election in 331 NLRB 374 (the Order),1 issued on June 22, 2000. The Respondent assumed ownership of Audubon Hospital (Audubon) and Suburban Hospital (Suburban), effective Sep- tember 1, 1998. The Order related to the election held at Audubon on March 3 and 4, 1994, and unfair labor practices (ULPs) committed there in the years 1994 to 1996, when Co- lumbia/HCA Healthcare Corporation d/b/a Audubon Regional Medical Center (Columbia) owned and operated both hospitals. The Respondent’s status as a successor employer to Columbia has not been contested. In its Order, the Board affirmed Judge John West’s findings that Columbia had committed numerous violations of the Act at Audubon. It ordered Columbia and its successors, to, inter alia, offer registered nurses (RNs) Patricia Clark and Martha Ann Hurst patient care leader positions (to which they were denied promotion in mid-January 1996), reinstate RN JoAnn Sandusky to her former position as a lactation consultant (she was “laid off” or terminated on August 9, 1994), and make whole all three employees for their losses resulting from ULPs commit- ted against them because of their activities on behalf of the continuing need for names and addresses because the Respondent’s conduct has impeded the Union’s ability to communicate with and organize the unit employees. Meanwhile, as the judge stated, the rerun election “may be years away,” and thus so may the Excelsior list. Accordingly, to protect employee free choice, Member Kirsanow would extend the names-and-addresses remedy as the judge recom- mended. 1 GC Exh. 1(a). All dates are in 2000, unless otherwise indicated. Charging Party/Union.2 The Board also agreed with the judge that Columbia’s unlawful conduct had interfered with the elec- tion, and it directed that a second election be conducted. In light of Columbia’s numerous ULPs, the Board further di- rected, inter alia, that the Respondent furnish the Union, upon request within 1 year of the date of the Order, with the names and addresses of unit employees. The General Counsel contends that the Respondent has failed to comply with these provisions of the Order. The Re- spondent denies any noncompliance, contending that it made valid offers to Clark, Hurst, and Sandusky in July 2000, that the position of patient care leader (retitled charge nurse and then clinical coordinator)3 was and is supervisory, and that it was under no obligation after 1 year from the date of the Board’s Order to furnish the Union with the names and addresses of unit employees. Backpay and pension contributions for Clark, Hurst, and Sandusky for the period through July 12, 2000, were resolved with Columbia. Therefore, the backpay specifications before me are limited to the period from the third calendar quarter of 2000 through the first quarter of 2002. Further, without con- ceding liability, the Respondent’s counsel stipulated to the ac- curacy of the gross backpay, interim earnings, and pension contribution amounts owed to Clark, Hurst, and Sandusky for said period, as contained in General Counsel’s Exhibits 2 through 4. Pursuant to notice, a trial was held before me in Louisville, Kentucky, on October 21, 22, and 23, 2002, at which the Gen- eral Counsel and the Respondent were represented by counsel, and the Union was represented by its director of organization, Kay Tillow. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence. The General Counsel, the Respondent, and the Union filed posthearing briefs, which I have duly considered. Upon the entire record in this case, including my observa- tions of the witnesses and their demeanor, I make the following FINDINGS OF FACT Witnesses for the General Counsel included the following: Clark, Hurst, Sandusky, and Tillow; Supervisory Field Exam- iner Matthew Denholm; and, under Section 611(c), Judy Kees, Norton’s division director of human resources management (HR) for all of Norton’s hospitals since February 2002, previ- ously HR director of Audubon since July 1999. The Respon- dent’s witnesses included Kees; Christopher Brown, clinical manger of a med/surg unit; Randa Bryan, manager of the emer- 2 All compliance matters related to a fourth employee named in the Order, Terry Hundley, were resolved prior to the hearing (see GC Posthearing Br. at p. 3). 3 In 1996, the position was called patient care leader. By July 2000, it had been renamed charge nurse, and by the time of the hearing in the instant matter, it had undergone yet another name change, to clinical coordinator. Witnesses for both the General Counsel and the Respon- dent used the terms interchangeably, and none of the parties contend that the status of the position, however entitled, has changed since 1996 in terms of being supervisory or nonsupervisory. Therefore, for ease of reference, I will hereinafter generally use the current designation of clinical coordinator. NORTON AUDUBON HOSPITAL 653 gency room (ER); Ladonna Thomas, manager of the open heart unit; Charlotte Ipsan, clinical manger of the neonatal intensive care unit (NICU) at Suburban; Laurie Shawn, staff nurse in NICU at Suburban; and Mary Gruebbel, vice president for pa- tient care services. Clark was recalled as a rebuttal witness by the General Counsel. Background Audubon and Suburban are among the seven hospitals the Respondent currently owns and operates in the Louisville, Ken- tucky area. Audubon employs about 1400 employees, includ- ing 350 staff RNs or staff nurses, 30–40 clinical coordinators, and 20 clinical managers, who are the next level over the clini- cal coordinators and who report to department directors. There are a number of units,4 and the average daily census of patients is approximately 200–220. The Reinstatement Offer to Sandusky I. FACTS The Board found that Sandusky was unlawfully “laid off” or terminated as a lactation consultant (an RN position) at Audu- bon on August 9, 1994. Sandusky has been a licensed RN since approximately 1964. She started working at St. Joseph’s, Audubon’s predecessor, as a staff nurse in the intensive care unit in March 1975. In Janu- ary 1980, she transferred to Audubon, where she became a family support specialist in 1986. In 1987, she was certified as a lactation consultant by an international board, as opposed to the State of Kentucky. She performed lactation consulting on a part-time basis prior to performing such full-time beginning on March 25, 1994. As a lactation consultant, she worked out of the NICU and developed protocols for the care of mothers who were breast- feeding pre-term or high-risk babies. In addition, she worked with some of the problem breast-feeders in the newborn nursery unit and was occasionally called to be a consultant in pediatrics. Since December 4, 1995, she has worked full-time (37-1/2 hours a week) as a community health care specialist or nurse care manager for Jefferson County, Kentucky. She makes home health visits to low-income prenatal and postpartum mothers, providing education of a medical nature and suggest- ing resources. Using her personal automobile for transporta- tion, she is reimbursed for her mileage to see clients but not to and from her office. Her reimbursement rate has always been less than the Federal Government’s rate.5 Pursuant to the Order, the Respondent, by letter of July 12, 2000, from HR Director Kees, offered Sandusky a position as a medical/surgical (med/surg) nurse in one of several units.6 Kees stated that Norton no longer operated a labor and delivery unit or pediatrics department at Audubon and, therefore, the hospital no longer had a lactation consultant position available. She cited Sandusky’s experience in pediatric and neonatology nursing but said that no such positions still existed at the hospi- tal. Accordingly, Kees stated, 4 See patient care services organizational charts, R. Exhs. 145 (Sep- tember 1998) & 153 (effective September 20, 2002). 5 See GC Exh. 8. 6 GC Exh. 5. Norton does have med/surg nursing positions available to which you could be oriented. . . . Norton believes that the med/surg nursing positions are substantially equivalent posi- tions. You are hereby offered the opportunity to be reinstated immediately to a med/surg nursing position following reorien- tation to that position. Kees’ letter implied, but did not directly state, that Sandusky would receive the same pay as the nurse specialist she had been as a lactation consultant. Kees requested that Sandusky contact her to discuss her intentions and interest in the offer. Kees sent a second letter, dated July 25,7 referencing her earlier letter and asking that Sandusky contact her to discuss the issue no later than 5 p.m. on August 1; otherwise, Kees would assume that she was not interested in one of those positions and proceed with other recruiting. Sandusky responded by letter dated July 26,8 stating that the positions offered in the July 14 letter were not “substantially equivalent” to her prior position. First, her prior position as a family support specialist was a higher grade. Further, the adult staff nursing positions were totally outside of her areas of edu- cation, experience, and expertise. She pointed out that Norton had the position of lactation specialist at both its downtown and Suburban locations and suggested that an offer in that area would be appropriate in light of her extensive background in maternal-child nursing. There was no other communication, either written or oral, between them. The record does not reflect whether Sandusky had received Kees’ second letter (July 25) when she sent her response of July 26. In any event, both of them considered Sandusky’s subsequent failure to respond by the deadline of 5 p.m. on August 1 to constitute a declination of a med/surg nurse position. Sandusky’s testimony about her experience as a med/surg nurse was not fully consistent. She first testified that she never worked in med/surg after Norton took over Audubon in Sep- tember 1998, but before then worked “occasionally” in such a capacity (Tr. 44–46), possibly the last time about 12 years ago. Later, she testified that she never worked in med/surg after she was a student, either in 1963 (Tr. 54) or 1970 (Tr. 55). Such discrepancy is not material because, in any event, her experi- ence in med/surg was quite limited. In 1970, she applied for a part-time job in a med/surg unit at another hospital but was told it would be too costly to orient her, because she had been out of nursing school for over 6 years and had not worked in med/surg. Sandusky testified that she had no training in med/surg, and all of the nursing positions offered were for adult units. She did not know what to do in med/surg in terms of fully assessing a medical or surgical patient, since different IVs and medications are given to adults vis-à-vis neonatal patients. She did concede on cross-examination that patient assessment is a similar proc- ess, whether neonatal or adult, but Clark corroborated her tes- timony that there are major differences between infants and adults in terms of medications and in taking vital signs. 7 R. Exh. 1. 8 GC Exh. 6. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 654 Sandusky further testified that she had spent thousands of dollars to become a lactation consultant and felt that she would be wasting her education if she went to work in a med/surg unit. Additionally, she had been in a nurse specialist position as a lactation consultant, so she had been two grades above a staff nurse position due to her education and nursing experi- ence. On cross-examination, however, Sandusky conceded that, “Most likely” (Tr. 72), she would have been paid at the higher level of nurse specialist had she returned as a med/surg nurse. Kees confirmed this. In any event, Sandusky testified that the matter of pay was not the main reason she declined a med/surg position. Rather, it was the status of returning at two grade levels below what she had been. In addition, she assumed that she would have to lift and am- bulate many patients and feared that because of her size, she could not lift heavy patients and could injure her back. She is 62 years old, slightly less than 5-feet tall, and weighs about 85 pounds, approximately her same weight as in July 2000. She testified about one occasion, about 12 years ago, when she had difficulty lifting a patient from a stretcher to the recovery room, because he was too heavy and also because the stretchers were too high for her. She did not believe that she was ever “pulled” to work in med/surg after that. However, Clark, who is 65 years old and, at most, 5-feet tall, testified that, as a med/surg nurse, she engages in exertional activity, including lifting, transporting, and walking patients. When she requires assistance, either because of the patient’s weight or the height of the beds, she obtains it. If no one else is around at the moment to assist, “[I] just have to wait until somebody can come and help. . . . I value my health, my back” (Tr. 182). There are no height or weight restrictions for a staff nurse. In neither her response letter nor her testimony on direct ex- amination did Sandusky indicate that the reorientation men- tioned in Kees’ first letter was what concerned her. At the hearing, I asked if she had any knowledge of what reorientation meant. She replied that she understood that there was usually an experienced nurse as a mentor and that she would have to take classes. She then testified that she believed she would have to go back to school for at least a year in order to feel that she could be a nurse on med/surg, an estimated length of time that I find excessive in light of her many years of experience as an RN. She did not inquire further about the reorientation ref- erenced in Kees’ letter because, “I [didn’t] think it would have been adequate” (Tr. 71). Although no specific details or esti- mated timeframe for reorientation were provided to Sandusky, from the uncontroverted testimony of Kees, Clinical Manager Ipsan, and staff nurse and preceptor Shawn, it appears that such reorientation would normally entail a combination of classroom and on-the-job training and take from 4 to 8 weeks. It is undisputed that in July 2000, Audubon did not have a labor and delivery, an NICU, or a pediatrics unit, and that the hospital at that time did not have babies delivered in the stan- dard course of its business. In approximately September 1997, the NICU at Audubon ceased operations, and most of the RNs there transferred to Suburban. General Counsel’s Exhibit 16 reflects that the effective date of transfer for those RNs was October 1, 1997. Ipsan, who was the clinical manager of NICU at Audubon and is now clinical manager of NICU at Suburban, testified that she believed all nurses who applied for such a transfer received it. None of those nurses were lactation con- sultants. In January or February 1999, the mother/baby unit at Audu- bon was closed. A number of its nurses were immediately transferred to other Norton hospitals in the area, depending on where there were appropriate positions available. Similarly, in early 1999, the labor and delivery unit at Audubon closed, and many of its RNs went to the labor and delivery unit at Norton’s downtown Louisville hospital; at around the same time, Audu- bon’s pediatrics units were closed, and most of the nurses who worked in pediatrics transferred to Norton’s Kosair Children’s Hospital. In 2000, at the time Sandusky was offered reinstate- ment, Kosair had openings in neonatal intensive care. The record reflects that there have been two full-time lacta- tion consultants at Suburban since 1999. One was Lisa Hughes, whose employment records are contained in General Counsel’s Exhibit 17. She was rehired by Suburban in Sep- tember 1993, as an RN in the mother/baby unit. In December 1998, she applied for promotion to the position of full-time lactation consultant in that unit, and on January 3, 1999, was so promoted. On January 31, 1999, she transferred in that position to the NICU, where she remained until the time of her termina- tion on January 2, 2001, for excessive absenteeism and tardi- ness. No one replaced her. The second individual is Debbie Moses, who is still employed in that position, out of the mother/baby unit. Her personnel records are contained in Re- spondent’s Exhibits 137–143. She was hired at Suburban in September 1988, after applying for the position of staff nurse/lactation consultant. In February 1997, she was pro- moted from being a staff nurse/lactation consultant at Suburban to a full-time position as lactation consultant at Louisville Mar- ket, when both hospitals were still owned by Columbia. She later (February 24, 1998) transferred back in that position to Suburban, at least as far as her evaluations were concerned.9 No one replaced Sandusky as a lactation consultant at Audu- bon, and there was no such position in existence at the hospital at the time it was taken over by Norton in September 1998. Two witnesses called by the Respondent, Ipsan and Shawn, testified without controversion that at some point prior to Sep- tember 1994 (Ipsan put the timeframe as between 6 to 12 months earlier; Shawn as the early 1990s), they were involved in training Sandusky for neonatal nursing. At the time, Ipsan was a charge nurse, Shawn a staff nurse, in the NICU. Ipsan assigned Shawn to be Sandusky’s preceptor in orienting her to take some patient care assignments, because there was not 40 hours’ worth of lactation consultant duties. Ipsan and Shawn’s unrebutted testimony was that Sandusky had difficulties in learning staff nursing duties in NICU. 9 See R. Exhs. 140, 141. Kees testified that after Moses’ promotion in February 1997, Moses had responsibility for going to several hospi- tals. Moses did not testify, and the record does not reflect what per- centage of her time was spent at Suburban before or after February 24, 1998. NORTON AUDUBON HOSPITAL 655 II. POSITIONS OF THE PARTIES A number of issues are presented in this rather complex fac- tual situation. I will only address those that have been pursued by the parties in their posthearing briefs. Thus, while the Gen- eral Counsel’s brief asserts that Sandusky mitigated her dam- ages, the Respondent does not continue to raise failure to miti- gate as a defense against liability. Similarly, the Respondent rebuts what it considers to be the General Counsel’s prior sug- gestion that Sandusky should have been offered a position in NICU at Suburban, but the General Counsel does not argue this. Therefore, I conclude that, based on the record evidence, the parties have determined to withdraw from my consideration these issues, and I need not further address them. The General Counsel contends that the Respondent was obliged to offer Sandusky the position of lactation consultant at Suburban, even if it meant firing her replacement (Hughes), because she would have been able to transfer to Suburban in September 1997, had she not been unlawfully terminated on August 9, 1994.10 The General Counsel does not argue that the position of lactation consultant encumbered by Moses at Sub- urban in July 2000 was an applicable position for purposes of the Respondent’s reinstatement offer to Sandusky.11 The Gen- eral Counsel further contends that the Respondent did not offer Sandusky a “substantially equivalent position,” because med/surg was so different from her area of expertise and be- cause of her age and size. Finally, the General Counsel takes the position that Sandusky is entitled, as part of the make whole remedy, for unreimbursed mileage expenses. The Respondent takes the position that Sandusky was of- fered a substantially equivalent position in view of the fact that there were no lactation consultant positions or even any mother/baby or neonatal units at Audubon in July 2000; she was offered a salary commensurate to her lactation consultant position and reorientation training; and there were no physical demands that would have precluded her from being a med/surg nurse. The Respondent contends that she is not entitled to re- cover mileage expenses because she is already reimbursed for mileage. For the reasons stated below, I find that Sandusky should have been offered a lactation consultant position at Suburban in July 2000, and that the offer made to her at that time for a med/surg nurse position was invalid; that when the lactation consultant position encumbered by Hughes was eliminated on January 2, 2001, there was no longer an existing lactation con- sultant position available for reinstatement purposes, but the Respondent remained obliged to offer Sandusky a substantially equivalent position; that the position of a med/surg nurse was substantially equivalent; and that the Respondent must renew its offer to her for such a position. 10 See GC’s Posthearing Br. at pp. 6–8. 11 The Union contends to the contrary. See U. Posthearing Br. at p. 9. Neither the General Counsel nor the Union assert the existence of any other lactation consultant positions at other Norton hospitals ger- mane to Sandusky’s reinstatement. III. ANALYSIS AND CONCLUSIONS The first question that must be answered in determining the efficacy of the Respondent’s July 2000 offer to Sandusky to be a med/surg nurse is whether Sandusky should have been of- fered a position as a lactation consultant. The record reflects that Sandusky’s position as lactation consultation at Audubon was not filled by any other employees after her unlawful termi- nation in 1994, and no such position exists there today. However, both in September 1997 and in early 1999, Audu- bon RNs were given the opportunity to transfer to sister hospi- tals in the area when their units at Audubon were closed. San- dusky would have been included in the 1997 group had she not been unlawfully terminated in 1994. Accordingly, in terms of Sandusky’s reinstatement, I deem it appropriate to consider lactation consultant positions which currently exist at other Norton hospitals. The Respondent cites12 Fabsteel Co. of Lou- isiana, 231 NLRB 372, 380 (1977), enfd. 587 F.2d 689, 693 (5th Cir. 1979), for the proposition that a job at a different facil- ity is not substantially equivalent employment. That case is inapposite for several reasons. First, in that case, ULP strikers were offered positions in other geographic areas, requiring relocation; second, there was nothing in the record showing that positions did not exist at the facility where they had previously worked; and, finally, the employees had been offered jobs in those other areas. Here, Suburban is in the same city as Audu- bon, there are clearly no lactation consultant positions at Audu- bon, and Sandusky has never been offered a position at Subur- ban. Since 1994, Suburban has had two persons in the lactation consultant position: Moses and Hughes. Moses was hired as a part-time lactation consultant in 1988—approximately 6 years prior to Sandusky’s unlawful termination—and was never a “replacement” of Sandusky. Accordingly, I do not deem Moses to be a “replacement” employee for reinstatement purposes and, indeed, the General Counsel does not so contend. As support for its argument that Sandusky should be rein- stated as a lactation consultant, to the position formerly held by Hughes, the General Counsel cites Panoramic Industries, Inc., 267 NLRB 32, 38–39 (1983). The judge therein cited (at fn. 37) Curtis Mfg. Co., 189 NLRB 192, 198 (1971), wherein a discriminatee was ordered restored to her former position of employment even though it meant firing an employee hired after her termination. Hughes was hired as a lactation consultant in January 1999, after Sandusky was unlawfully terminated. Based on the above authority, I agree with the General Counsel that the Respondent should have offered Sandusky Hughes’ position, even if meant displacing Hughes in that job. Therefore, to the extent that the Respondent did not offer Sandusky a position of lactation con- sultant in July 2000, the offer of reinstatement was not valid. However, Hughes was terminated on January 2, 2001, and no one replaced her. Thus, there is no “replacement” employee who can be removed from the position for Sandusky’s benefit. The Board’s order of reinstatement in this case does not require that the Respondent now create a job of lactation consultant when no such job exists: on the contrary, using standard reme- 12 See R. Posthearing Br. at p. 15. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 656 dial language, the Order explicitly states, “or if such job no longer exits, to a substantially equivalent position of employ- ment.” Accordingly, I conclude that the Respondent’s obliga- tion to offer Sandusky a position as a lactation consultant ceased at the time that Hughes was terminated and not replaced. Therefore, the Respondent’s backpay liability for this aspect of the reinstatement offer extended only through January 2, 2001. The next question is whether the Respondent’s July 2000 of- fer to Sandusky to become a med/surg nurse, although invalid when made, became valid on January 2, 2001, when the for- merly available position of lactation consultant was effectively abolished. I note that since Hughes position has not been re- filled, presumably it was determined by management at a cer- tain point that no lactation consultant was needed in her place. It is logical, therefore, to assume that had Sandusky been rein- stated to a position of lactation consultant in July 2000, she likely would have been laid off or transferred at some point after January 2, 2001. In any event, I must now determine whether the July 2000 offer to Sandusky to become a med/surg nurse was valid after January 2, 2001, as constituting reinstatement to a “substan- tially equivalent position.” If this is answered in the affirma- tive, then the last question is whether the Respondent was under an obligation after January 2, 2001, to reoffer such a position and, if so, when. The reinstatement letter Sandusky received implied that she would not lose any pay as a med/surg nurse vis-à-vis what she would have been paid as a lactation consultant, and Kees con- firmed this in her testimony. The issue of “substantially equivalent” in this case thus does not relate to remuneration but to terms and conditions of employment. Although Sandusky testified that she did not believe she could handle the physical demands of a med/surg nurse posi- tion, Clark, who is of similar size and age, testified that she receives assistance from other staff members when necessary. Moreover, there are no height or weight restrictions for med/surg nurses. Not having worked as med/surg nurse for many years, San- dusky reasonably concluded that she would require reorienta- tion for the position. Unquestionably, there were differences between her work with newborn babies and their mothers and the types of skills required of handling adult patients. How- ever, the Respondent did offer Sandusky reorientation training. Sandusky assumed it would be a very lengthy process, but she made no inquiries of management to find out exactly what the reorientation would have entailed. I believe she had a duty of inquiry in those circumstances, to obtain more information from the Respondent rather than to base her conclusions solely on assumptions. From the uncontroverted testimony of man- agement witnesses, it appears that such training might have lasted anywhere from 4 to 8 weeks, far less onerous than the year period that Sandusky testified she feared. Sandusky was an experienced RN and was offered an RN position, albeit not a specialized one, as she had previously held. I conclude that the med/surg position was “substantially equivalent” and, had there been no lactation consultant position at Suburban in July 2000, the offer of reinstatement made by the Respondent would have been valid. However, I have concluded that there was such a lactation consultant position and that it existed until January 2, 2001. The final question is whether the Respondent, after January 2, 2001, was obliged to renew its offer to Sandusky of a med/surg position, even though she had previously turned it down. Al- though it could be argued in other contexts that the Respondent should not be required to do so, based on the presumed futility of such an action in light of Sandusky’s earlier rejection, this is a compliance proceeding, and the Board has already determined there was unlawful discrimination against Sandusky. There- fore, any questions about compliance obligations on the part of the Respondent should be decided in her favor. Moreover, Audubon has an established practice of allowing RNs to transfer to other positions when their positions have been eliminated. Based on this, I conclude that had Sandusky been presented with, and accepted, a valid reinstatement offer for the lactation consultant position in July 2000, she would have been able to transfer to other positions (i.e., in med/surg) if her lactation consultant position had been eliminated after January 2, 2001. Based on these considerations, I conclude that the Respon- dent, since January 2, 2001, has remained under an obligation to renew its offer to Sandusky to work as a med/surg nurse and that the Respondent’s backpay obligation continues until such time as that offer is made. Finally, as to mileage reimbursement, I find that Sandusky is entitled to the amount calculated by the General Counsel. It is well-established Board law that travel expenses a discriminatee incurs in maintaining interim employment, beyond what she would have incurred had she continued working for the subject employer, are properly deducted from interim earnings (or, conversely, are reimbursable). Uarco, Inc., 294 NLRB 96, 102 (1989); Aircraft & Helicopter Leasing, 227 NLRB 644, 649 (1976), enfd. 570 F.2d 351 (9th Cir. 1978); Hoosier Veneer Co., 21 NLRB 907, 938 fn. 26 (1940). This result logically flows from the broader precept that in compliance proceedings, the Board attempts to reconstruct “‘as much as possible,’ the economic life of each claimant and place him in the same fi- nancial position he would have enjoyed ‘but for the illegal dis- crimination,’” Cobb Mechanical Contractors, 333 NLRB 1168, 1168 (2001), citing Phelps Dodge Corp., 313 U.S. 177, 194 (1941). The Offers to Clark and Hurst I. BACKGROUND As noted earlier, both Clark and Hurst have remained em- ployed as RNs at Audubon since they were unlawfully denied promotion to patient care leader (now entitled clinical coordina- tor) in mid-January 1996. The Order required the Respondent to offer them such promotion. Issues relating to the validity of the July 2000 offers the Respondent made to them are inter- twined with the issue of whether clinical coordinator is a statu- tory supervisory position within the meaning of Section 2(11) of the Act. The Board adopted Judge West’s determination that the pa- tient care leaders were not statutory supervisors within the meaning of Section 2(11) of the Act. It is not necessary for me to recite in detail all of his specific findings in this regard. NORTON AUDUBON HOSPITAL 657 Suffice to say, he concluded that the functions performed by the patient care leaders which went beyond patient care were rou- tine in nature and did not require the use of independent judg- ment under Section 2(11) of the Act. He therefore included them in the unit. The Respondent contends that I should revisit this issue, in light of developments in the law that occurred since the hearing in the previous case concluded on February 12, 1996, and the Order issued on June 22, 2000, in particular, the Supreme Court decision in NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001). The Respondent further contends that the clinical coordinators have been supervisors under the Act since the time when it took control of the hospital in September 1998. The General Counsel and the Union take the position that the clinical coordinators were properly deemed unit employees in the prior case and remain so. II. FACTS By letters of July 14, 2000,13 the Respondent offered Hurst and Clark, respectively, positions as charge nurses, pursuant to the Order. In said letters, Kees stated, The Charge Nurse position has evolved since [Sep- tember 1, 1998] to include more management responsibili- ties. Effective March 1, 2000, Norton transitioned to change Charge Nurse positions with a revised Job De- scription reflecting the increased management responsi- bilities of the position. It is the position of Norton that the Charge Nurse posi- tion is a substantially equivalent position to the Patient Care Leader position which was abolished at Norton. Ac- cordingly, Norton is prepared to offer you a Charge Nurse position. Enclosed herewith you will find a copy of the current Job Description for the Charge Nurse position at [Audubon]. Further, you should be advised that is the po- sition of Norton that persons occupying regular Charge Nurse designations . . . are supervisors within the meaning of [the Act]. Hurst was offered a full-time (1.0 status or 40 hours per week) position as charge nurse on CVU, and Clark was offered a full-time position as charge nurse on unit 3E, with accommo- dation for her then-existing medical restriction. Charge nurse job descriptions were attached.14 By letters dated July 24 and 26,15 respectively, Clark and Hurst responded identically that: I am concerned that the job offer of July 14, 2000 as it is stated in your letter would be supervisory and would therefore deprive me of my Section 7 rights under federal law. The offer, as you place it, would end my freedom to participate in union and concerted activity. This is a prob- lem for me, and I need some time to consider this. 13 GC Exhs. 18, 20. 14 Kees testified that she initiated a complete revision of all job de- scriptions after she became HR director at Audubon in July 1999. 15 GC Exhs. 21, 19, written on union stationery. Both Clark and Hurst are listed on the letterhead; Clark as president, Hurst as an execu- tive board member. Sandusky is also named as a board member. . . . As the Nurses Professional Organization, we have a written protest to the NLRB over this matter, and I would like to await the outcome of that protest. There was no further communication between the Respondent and Clark and Hurst regarding the offers. Clark (who is still union president) and Hurst testified, consistently with their response letters, that they declined the offers because they did not wish to give up their right to engage in union activity. III. THE LEGAL FRAMEWORK Here, the Respondent conditioned its offers of promotion to clinical coordinator (charge nurse) on the employees’ acquies- cence in the Respondent’s assertion that clinical coordinators are statutory supervisors. The offers contained the clear mes- sage that the employees would forfeit their rights to engage in union activities if they accepted promotion. Preliminarily, I do not conclude that the Respondent, in con- tending that the clinical coordinators are supervisors, was moti- vated by a desire to place Clark and Hurst, two of the most identified union leaders, in an untenable position. Neverthe- less, I must determine whether the Respondent placed a condi- tion on the offers that invalidated them, with the result that its backpay obligations to Clark and Hurst continued past July 2000, and further offers of promotion must be made. It is well established that an employer has the burden of proving that it made a valid offer of reinstatement tolling its backpay obligation and that such offer was sufficiently un- equivocal and unconditional. Beverly Cafeteria Corp., 329 NLRB 977 (1999); Tony Roma Restaurant, 325 NLRB 851 (1998). I therefore reject the Respondent’s contention, made at the hearing, that Clark and Hurst could have accepted the offers and later contested the Respondent’s position in a ULP pro- ceeding, or through some other means. That would have placed them in a very difficult situation, particularly because it would appear that an employer, after a reasonable period of time, can discharge an employee reinstated to a supervisory position for continuing to engage in union activities. See Oil, Chemical & Atomic Workers International Union, 547 F.2d 575, 589 fn.16 (D.C. Cir. 1976). The Board has already found that Clark and Hurst were the victims of unlawful discrimination, and placing the onus on them to challenge the Respondent’s legal assertion that clinical coordinators are supervisors would be unfair and unreasonable. In any event, as noted above, the burden is on the employer to show that its offer was not conditional, not on the employee to accept a condition and later challenge its valid- ity. Significantly, this is not a case of first impression on the is- sue of the status of clinical coordinators. The month before the July 2000 offers were made, the Board found that the position was nonsupervisory and included in the bargaining unit. In light of these considerations, I conclude that the Respon- dent, although certainly free to believe and argue that the status of clinical coordinators had changed since the ULPs had been committed by its predecessor, acted at its peril in unilaterally deciding that the position was now supervisory and that it could force Clark and Hurst to choose between the promotion and remaining active in union affairs. See Central Cartridge, Inc., 236 NLRB 1232 (1978), in which the Board held invalid an DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 658 employer’s offer to reinstate an employee “as a supervisor,” when the position was ultimately determined to be nonsupervi- sory. For the reasons stated below, I find that the clinical coordina- tors are not statutory supervisors within the meaning of Section 2(11) of the Act and that the Respondent’s offers of promotion to Clark and Hurst were invalidated by the imposition of an improper qualification. IV. THE STATUS OF CLINICAL COORDINATORS A. Facts Considerable evidence, documentary and testimonial, was presented on this issue. Although two timeframes are relevant (July 2000, when the offers were made, and the present), none of the parties have contended that there have been any signifi- cant changes in the role and duties of clinical coordinators since July 2000. I also note that the large number of nursing units and staff, described earlier, may understandably result in some variations in the application of hospital-wide policies and pro- cedures. I give most weight to the testimony of Randa Bryan, Chris- topher Brown, and Ladonna Thomas, for the following reasons. All three answered questions readily and without hesitation, appeared candid, and did not appear to make any efforts to skew their answers to make clinical coordinators supervisory. They were generally quite consistent in terms of hospital poli- cies and the practices with which they are familiar. Signifi- cantly, Brown and Thomas are now clinical managers but have had experience as clinical coordinators. Brown is the clinical manager for a 36-bed med/surg unit. He normally supervises three clinical coordinators and reports to the unit’s director. Before becoming clinical manger in March 2000, he was a clinical coordinator in the intensive care unit since late 1998 or early 1999. His testimony primarily concerned his relationship as clinical manager with the clinical coordinators who report to him. Bryan has been manager of the ER since 2001. Prior thereto, she was simultaneously the man- ager of several units from January or February 1998 on. She supervised about 130–134 employees, of whom about three- fourths were RNS and 11 were clinical coordinators. Bryan’s testimony sometimes related only to her previous position as manager of several units, but at other times was based on her current position. Thomas has been the manager of the open- heart unit for about a year; before that, she was a clinical coor- dinator in one of the open-heart units (under Bryan) and super- vised about 30 RNs. Her testimony generally related to her experience as a clinical coordinator. Kees and Clark also testified in detail on the status of clinical coordinators. Kees was generally credible, but she is more removed from day-to-day operations by virtue of her position in higher management. The same holds true for witness Mary Gruebbel, who has been vice president for patient care services for Norton Health Care since September 1, 1998. Patient care services entails in-patient units, emergency services, and surgi- cal services. Moreover, Gruebbel’s testimony was quite limited in scope. In contrast to her credible testimony on direct examination, Clark’s testimony on rebuttal was only partially credible. In the latter, on matters relating to RN scheduling, her answers were direct, clear, and confident. However, on the subject of the authority of clinical coordinators, and RNs in general, she was markedly evasive and nonresponsive.16 Further, recognizing the medical hierarchy and the greater status and medical knowledge that RNs possess, compared to licensed practical nurses (LPNs), I find implausible her testimony that as an RN or even as an acting clinical coordinator, she has no authority over LPNs who are not correctly performing their patient care responsibilities. However, inasmuch as I do not find it neces- sary to rely on this aspect of her testimony for any of my fac- tual or legal conclusions in this case, I need not further discuss it. 1. General role and status Job descriptions for clinical coordinators and clinical manag- ers, used through the years, are contained at Respondent’s Ex- hibits 146–152. Inasmuch as formal job descriptions are not dispositive of supervisory status, I will not set out their contents here. Suffice to say, the basic description of the duties of clini- cal coordinator has not changed significantly since at least Feb- ruary 12, 1998,17 albeit there have been some changes in no- menclature and in format, and an expansion of enumerated responsibilities. Kees testified that there has been an initiative by Norton since September 1, 1998, to ensure that clinical coordinators are positioned to assist charge managers in running their depart- ments. Operations at the hospital are continuous, 24 hours a day, 7 days a week, and managers cannot be there all the time. Part of this initiative involved getting more clinical coordina- tors to participate in evaluations and discipline on a formal basis. A training program for clinical coordinators was insti- tuted, wherein they received training on how to fill out an evaluation, how to coach and counsel, and how to prepare a performance improvement plan (PIP). They were also trained on how to interview, such as at job fairs, but recruitment tech- niques have changed since then. A management development program was extended on January 1, 2001, to all supervisors, including clinical coordinators, who now receive such training. Clinical coordinators work with educators (nonstaff nurses) in the orientation of new employees, but educators and preceptors (staff nurses) are the ones who decide whether an employee passes his or her orientation. Although Kees testified that clinical coordinators may inter- view and hire new employees, neither she nor any other witness of the Respondent gave any specific instances or numbers. In any event, she testified that actual hiring is done through HR, which makes the formal job offers. Therefore, I need not fur- ther address clinical coordinators’ role in this area. Brown and Bryan testified very similarly as to their view of the role of clinical coordinators. Thus, Brown testified that “clinical coordinators are my eyes and ears” (Tr. 384), while Bryan testified that when she was clinical manager of several units, she saw them as “extensions of myself . . . my right arm” (Tr. 436). Both testified that clinical coordinators run the unit 16 See Tr. p. 603, et seq. 17 Compare R. Exh. 146, job description in effect on February 12, 1998, with the current job description, R. Exh. 150. NORTON AUDUBON HOSPITAL 659 and make decisions in the absence of the clinical manager. Brown’s clinical coordinators keep him informed of all staff situations that arise in his absence, either by pager or phone or when he comes in the next day. They discuss the issue and determine what needs to be done. Bryan worked almost 12- hour days and was accessible 24 hours a day. Clinical coordinators, as well as acting clinical coordinators (clock charge nurses) receive a 5-percent pay differential an hour. They do not receive any other benefits vis-à-vis staff nurses. As Brown and Thomas testified, when clinical coordi- nators are not engaged in clinical coordinator duties, they per- form patient care services as RNs. 2. Role in evaluations and PIPs Respondent’s Exhibits 5 through 134 represent nursing staff personnel records from January 1, 2000, to the present. In- cluded are evaluations of RNs, LPNs, nurses’ aides or patient care associates (PCAs), technicians, and unit secretaries. Most are annual reviews, a few 6-month or transitional (probation- ary) evaluations. Most were signed by both a clinical coordina- tor and a clinical manager, although not always on the same date. Some had notations written by clinical coordinators and/or clinical managers. Kees testified that such evaluations have been used for de- velopmental and nonmonetary—morale—rewards, or “pats on the back” (Tr. 165). In 2000, all increases were at the same percentage amount, regardless of an employee’s evaluation. Kees additionally testified that evaluations, transitional (pro- bationary) or annual, are given to the employee either by the clinical coordinator or the clinical manager. However, the similar testimony of both Brown and Bryan reflects that the clinical managers review the proposed evaluations made by clinical coordinators, have the authority to change them, and may do so on occasion. Thus, Brown testified that in the 90- day evaluations of new employees, clinical coordinators have significant input because they are directly involved in patient care activities. He candidly stated on direct examination that, in terms of regular or annual evaluations presented to him by clinical coordinators, he has disagreed with their ratings on a few occasions and changed them. Bryan testified that clinical coordinators filled out evalua- tions. For the most part, she trusted their judgments and rarely made her own comments. Sometimes, she questioned a clinical coordinator about the rating level assigned. Although she did not make the clinical coordinator change the rating in that situa- tion, the latter had to support it. She could not recall a particu- lar time when she made a clinical coordinator change a rating but testified that it was possible that may have occurred. Tho- mas testified that when she was a clinical coordinator under Bryan, Bryan accepted all of the transitional (90-day) or yearly evaluations she wrote. Regarding PIPs, Kees testified that they are not disciplinary but can result in discipline if there is lack of improvement. Further, PIPs resulting from an annual evaluation are “unusual” (Tr. 287). According to hospital policy, the department director must concur in the decision to place an employee on a PIP. Kees is consulted for approval of a PIP before there is a meet- ing with the employee by either the clinical coordinator, clini- cal manager, or director, or a combination thereof. Although department managers have the authority to change the decision of someone below as to placing someone on a PIP, she was not aware of any instances in which this has occurred. She could not give any examples of when a clinical coordinator has made the final decision as to whether someone passed or failed a PIP. Bryan’s testimony on the subject was generally consistent with Kees. She and her clinical coordinators worked together to formulate and implement PIPs, and the clinical coordinators were responsible for overseeing it. Putting someone on a PIP was a joint decision between her and the clinical coordinator, but she had the ultimate decisionmaking authority. She agreed with the clinical coordinator approximately 95 percent of the time. She could not think of any situations when the clinical coordinator implemented a PIP without talking to her. Kees testified that an employee who does not pass the transi- tional 90-day evaluation may be given additional time to im- prove. A clinical coordinator can extend the transitional period, but a clinical manger or director of the unit would have to de- cide whether to accept such recommendation. Brown’s testi- mony comported with hers. He testified that if a probationary employee needs extension of the orientation period, he is the one who can extend it, placing “significant reliance” on the recommendation of the clinical coordinator (Tr. 393). Only once or twice during his tenure as a clinical manager has the 90-day period been extended, and on those rare occasions, he followed the recommendation of the clinical coordinators. Regarding an employee’s transfer to another department, that can result from failure to pass a PIP, Kees testified that a clini- cal coordinator or clinical manger can exercise that authority. However, she could not cite any specific occasions when a clinical coordinator has actually exercised such authority, and she conceded that even though a clinical coordinator may initi- ate a transfer, the clinical manager is to going to be involved. In any event, she testified, it is the employee’s decision in those situations whether or not to accept the transfer. In summary, based on the above, I find the following: 1. Annual evaluations do not result in any financial impact on employees or in the direct imposition of any form of disci- pline, 2. Ninety-day probationary periods are rarely extended based on evaluations, and the record does not establish that anyone has been terminated based on a 90-day evaluation. 3. Clinical coordinators prepare evaluations but must discuss them with clinical managers, who retain the authority to change them and occasionally do so. 4. Clinical coordinators have significant input into putting someone on a PIP, but the ultimate decisionmaking authority lies with clinical managers, with required participation by HR. 5. PIPs are rarely imposed. 6. Clinical coordinators may initiate employee transfers, but clinical manager must become involved and, ultimately, the subject employees decide whether or not to accept them. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 660 3. Role in discipline At all times material, the Respondent has maintained a pro- gress discipline policy, last revised on January 1, 2001,18 pro- viding for four levels of offenses, with points assigned to each. Kees testified that the clinical coordinators, depending on the situation and time of day, can decide if something needs to be done when there is a complaint against an RN. As to disciplin- ing other employees, Kees testified that when no house super- visor (the contact person for the administration) or unit man- ager is on duty, clinical coordinators can issue oral or written warnings or even suspend. However, she could not say whether, when they issue written warnings, they first check with clinical managers. In any case, she testified that she is consulted about a written warning, either before or after it is issued, depending on her availability. She is also consulted if something is unclear or the situation novel. When it comes to disciplinary suspension, the last step before termination, Kees testified that the clinical manger or director is normally in- volved. She was not aware of any specific occasions when a clinical coordinator suspended someone on his or her own. Terminations require the involvement of clinical mangers or clinical directors, who ultimately possess the final decision- making authority. Although either a clinical coordinator or a clinical manger can place someone on investigatory suspension, Kees was not aware of any situations in which a clinical coordinator did so on his or her own without talking with someone else. Typically, the clinical coordinator will call the house supervisor. Kees testified that if an employee shows up impaired, and substance abuse is suspected, either a clinical coordinator or management can send the employee for a drug screen; nobody sends the employee home. According to Brown, if an em- ployee shows up intoxicated, the clinical coordinator should notify the house supervisor and get the employee removed for testing. Under either scenario, clinical coordinators do not possess the authority to send such employee home. Brown, Bryan, and Thomas testified about their first-hand knowledge of how the disciplinary process operates. In deter- mining whether discipline is warranted, Brown and his clinical coordinators refer to the handbook and, if deemed necessary, consult with HR. In recommending disciplinary action, clinical coordinators are well versed in the employee handbook, and their recommendations have to be consistent with hospital poli- cies. Points are assigned depending on the infraction. Disci- plinary decisions are never made solely by the clinical coordi- nator; they always consult with him. Eighty to 90 percent of the time, he accepts their recommendations for minor discipli- nary action (levels one and two misconduct). If more serious misconduct is involved, or there is a question, he contacts HR for input. He makes the ultimate decision on the discipline imposed, in consultation with the clinical coordinator and/or HR. He always investigates incidents of employee misconduct, even if they are only a level one. Bryan expected her clinical coordinators to address discipli- nary situations on the spot. If they needed more advice, they would contact the house supervisor or her by beeper, usually 18 See R. Exh. 135. the former. Generally, although clinical coordinators partici- pate in discussions, managers have the final decisionmaking authority with respect to discipline and normally also discuss it with HR. Only seldom (approximately 5 percent of the time) has she disagreed with clinical coordinators’ recommendations concerning discipline. As a clinical coordinator under Bryan, Thomas had about 30 RNs under her. She was the immediate supervisor for the unit, and when she saw problems, she addressed them immediately and documented them, typically in the form of anecdotal notes. Some of those were put into the employees personnel file, but others were not. When lesser discipline was involved, such as for attendance, she handled it directly with the employee. However, in situations entailing serious discipline (written warning or above), or placing an employee on a PIP, she al- ways informed Bryan, who always sat in on her discussion with the employee. For the reasons previously stated, I give more weight to the testimony of Brown, Bryan, and Thomas on the authority of clinical coordinators to issue discipline than I do to the testi- mony of Kees, and I find such authority to be more limited in practice than Kees stated it to be from her vantage point of higher management. Brown testified that all RNs have some authority over LPNs in terms of the latter performing their job duties. The PCAs know their job duties and function independently. If they are not performing correctly, either a clinical coordinator or a staff nurse can make suggestions for improvement. Clark testified, not inconsistently, that if a PCA is not doing the job right, usu- ally the RN who has the patient will bring this to the PCA’s attention. However, as noted earlier, her subsequent testimony about clinical coordinators and RNs lacking authority over LPNs in patient care situations was not credible. There is a well-defined attendance and tardiness policy,19 separate and distinct from disciplinary misconduct in general. Kees testified that this policy is very detailed and that when an employee reaches a certain number of “occurrences,” a fixed level of discipline is automatically triggered. If there is a ques- tion of what constitutes an occurrence, HR is typically called in to decide. Kees stated that Norton tries to have a fairly tight policy on absences, so that the policy is easy to apply and avoids issues of interpretation. Accordingly, there is little dis- cretion involved in a clinical coordinator’s determination of what constitutes an absence. In Respondent’s Exhibits 5–134, there are several attendance counseling notices,20 most signed by both a clinical coordinator and a clinical manager. Bryan testified that if an employee had an attendance prob- lem, she and the clinical coordinator would discuss it, and she would advise the clinical coordinator how to proceed, following the employee handbook. For example, at six absences, there would be a first write-up, which the clinical coordinator would prepare and show to her for approval. Once she approved it, the clinical coordinator would carry it out. Consistent with Kees, she testified that generally there is no question what con- 19 See R. Exh. 136. 20 R. Exhs. 102, 111, 123, 129. NORTON AUDUBON HOSPITAL 661 stitutes an occurrence for attendance discipline and little discre- tion involved in application of the attendance policy. In summary, based on the above, I find as follows: 1. Hospital disciplinary policies are formalized, and HR is consulted if there are any questions about their application or if major disciplinary action is proposed. 2. Clinical coordinators play a role in employee discipline, but they normally consult with their clinical managers, and always do so when serious discipline (written warning or above) is proposed. 3. The final decision to impose discipline rests with clinical managers, who normally, but not always, accept the recom- mendations made by clinical coordinators for minor discipli- nary actions. 4. Attendance and tardiness policies are highly detailed and intended to be easy to apply, leaving little room for discretion in terms of their implementation. Their application is largely automatic. If there are any questions about application, HR is consulted. 5. All RNs possess a certain amount of authority over LPNs and PCAs when it comes to the latter’s provision of patient care. 4. Role in scheduling and assignments Gruebbel testified that scheduling grids are used as a guide to develop staffing patterns, which are an administrative exer- cise, in conjunction with clinical managers, clinical coordina- tors, finance people, and others. These staffing patterns are utilized as a baseline for how many RNs, LPNs, and PCAs should be on a particular shift. Other considerations for staff- ing include patient needs, the competency of the staff, and de- mands of family members. Typically, clinical coordinators make the staffing decisions, in coordination with the house supervisor. If they have concerns or questions, they may in- volve the clinical manager. Kees testified that clinical coordinators make arrangements with the house supervisor to have the appropriate number of people (RNs and other staff members) on their unit, in order to have a balanced schedule21 and provide the greatest continuity in patient care. This is based on guidelines, taking into consid- eration the number of patients and their acuity. They also mark staff staffing timesheets for payroll purposes. Kees did not know who approves leave requests made by RNs, opining that it might be different from unit to unit. Long-term leave re- quests go up to HR. The clinical coordinators call in nurses for emergencies. Brown testified that clinical coordinators are responsible for delegating all assignments, determining which nurses will take of which patients, and directing patient care. The normal staff- ing of his unit on a particular shift is 1 clinical coordinator, 2 RNS, 3 LPNs, 3–4 PCAs, and 1–2 unit secretaries, for a total of 11–12 employees excluding the clinical coordinator. The clini- cal coordinators constantly, but not continuously, direct work. Brown does the scheduling. Clinical coordinators handle changes in assignments that need to be made during shifts. In those situations, they sometimes come to him, other times they 21 See GC Exh. 28, a 6-week schedule. do not. If financial ramifications are involved, such as over- time pay or canceling someone’s duty, Brown is involved. Further, Brown testified, the clinical coordinators daily as- sign duties to staff nurses. In determining what patients are assigned to what nurse, the clinical coordinator considers the acuity of patients, the continuity of care, and the skill level of the nurses. If two nurses want to shift assignments, they can obtain approval from the clinical coordinator. When it comes to sending a nurse to another unit, the house supervisor, in con- junction with the clinical coordinator, follows detailed staffing guidelines. This is the procedure whether or not Brown is pre- sent. There is always a house supervisor available, and clinical coordinators frequently call the house supervisor on duty. Au- thorization of overtime is an administrative matter. Brown has such authority, but the clinical coordinators do not. Bryan testified that staffing standards are management engi- neered. Weekend work follows a set pattern of assignments. Each unit does its own self-scheduling, and employees have input into how they want their schedules to be. Once the sched- ules are posted, employees can decide among themselves to trade, and they then notify the clinical coordinator. If an em- ployee cannot come in, he or she should call both the clinical coordinator and the house supervisor. Clinical coordinators make assignments of nurses and draw up 6-week schedules. Bryan has the final authority on scheduling and sometimes tells a clinical coordinator to redo the schedule, although she rarely does not accept their nonholiday schedules. In terms of sched- uling around holidays, Bryan considers seniority and equity and makes the final decision. When Thomas was a clinical coordinator under Bryan, she testified, the staffing pattern guidelines in effect provided that each nurse normally had two patients; only one if the patient was in the open-heart area or was acutely unstable. Bryan made the staffing pattern, based on a rate of 1 nurse per 2 pa- tients; for 16 patients, there would normally be 1 clinical coor- dinator, 8 RNs, and 2 PCAs. If Thomas determined, on the basis of her experience as a critical care RN, that the acuity of patients warranted deviation from this, she could staff addi- tional nurses. She would then call from the list on the charge board of staff members in the unit, as well as registry employ- ees. In her unit, employees were not required to come in when they were unscheduled, although she had the authority to man- date it. If she found herself overstaffed, the practice was to first cancel agency people (the most expensive), followed by pre- mium-pool people and, finally, regular staff based on a rotating list. This procedure was fairly routine for the most part, al- though the experience and performance levels of the RNs needed to be considered. As a clinical coordinator, Thomas received an overview of the patients in unit and looked at the surgery schedule. She assisted with procedures and patient care at times, depending on the staffing level. She made assignments not only to RNs but also to other employees on the unit. Depending on the number of patients and their acuity, she determined the staffing level for the upcoming shift and either called in additional staff or cancelled nurses if the census was down. Typically, she did this on her own, determining whom to call on the basis of spe- cific needs and the qualifications of the nurses. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 662 As to the 6-week schedule, it was a modified self-scheduling system. Nurses put down their desired schedules, with some minor requirements. She would have to move around employ- ees if necessary. Once Thomas felt the schedule was ready, she presented it to Manager Bryan, who always accepted her proposed schedule. In contrast to Clark’s unsatisfactory testimony on the subject of the authority of clinical coordinators/RNs over other staff employees, Clark testified credibly on the matter of how as- signments are handled, and I credit that portion of her rebuttal testimony. She testified that the procedure for clinical coordi- nators making assignments has remained the same over the past several years. The first thing looked at is continuity of care and the acuity of patients, so that no one nurse is overloaded. There is usually a sheet available showing indicia of the need for more intensive patient care, such as IV pushes, no codes, and patients in isolation. The nurses talk among themselves about patient needs. Staffing patterns designed by management are used to show how many RNs are needed. The house supervisor calls the staffing to the clinical coordinators. When Clark is a clock charge nurse or an acting clinical coordinator, she checks to see how many nurses are scheduled and what their assign- ments are; assignments were made by whoever was in charge the night before. Near the end of the shift, as an acting clinical coordinator, she checks the census and makes assignments according to what nursing services said would be the level of staffing. If she determines the unit is understaffed, she calls the house supervisor and requests more help. The answer is nor- mally no, because they do not have anybody else to schedule. Then, she usually goes to the rotation sheet, which shows who is working the shift before and whose turn it is to be “man- dated” to stay over into the next shift. As an acting clinical coordinator, Clark has never ordered anyone to come in who is not scheduled. When an employee is unable to come into work, he or she is supposed to call nursing services and also their unit. She is not aware that clinical coor- dinators can give permission for someone to be off work. When she is an acting clinical coordinator someone wants to leave early, she tells them to go to the house supervisor or nurse manager, if available. Should someone call in that he or she will be late, Clark informs nursing services and her supervisor. Based on the above, I find in summary, that: 1. Employee preferences play a large role in their schedul- ing, and employees normally are able to make changes in their schedules among themselves. 2. Staffing guidelines, developed by management, are used to set up 6-week schedules of all employees in a unit and also come into play when employees need to be transferred to other units during their shifts. 3. Six-week schedules are drawn up either directly by clini- cal managers, or by clinical coordinators who must then have them reviewed by clinical managers. Clinical managers may exercise their authority to direct clinical coordinators to redo them. 4. If unit staffing changes need to be made during shifts, clinical coordinators have this responsibility, and they consider a number of factors, including staffing guidelines, acuity of patients, continuity of care, and qualifications of available em- ployees. Clinical managers may require that they be involved in the decision, if there are financial consequences for employ- ees. Clinical coordinators cannot authorize overtime. 5. There are set procedures for determining the order of can- cellation of scheduled employees and for calling in unsched- uled employees. The record does not reflect that any employ- ees have been “mandated” to come in when they have not been scheduled. 6. The house supervisor is normally involved if there is the need to transfer an employee to another unit. B. Analysis and Conclusions Regarding the Status of Clinical Coordinators The Board has long held that burden of proving supervisory status rests with the party asserting that status. Michigan Ma- sonic Hospital, 332 NLRB 1409 (2002); Vencor Hospital– Los Angeles, 328 NLRB 1136 (1999); Youville Health Care Center, 327 NLRB 237 (1998). Because supervisors are excluded from the protections of the Act, the Board is cautious in finding su- pervisory status. Franklin Health Agency, 337 NLRB 826, 833 (2002); St. Francis Medical Center-West, 323 NLRB 1046, 1047 (1997); Chicago Metallic, 273 NLRB 1167, 1688–1689 (1985); Vencor, supra at p. 1138. The Supreme Court, in Ken- tucky River, upheld the Board’s placement of the burden of proof when it comes to supervisory status. As I noted earlier, this is not a case of first impression when it comes to the status of the Respondent’s clinical coordina- tors—the Board has already determined in the Order underlying this proceeding that, at least in years past, the position was not supervisory. Accordingly, the Respondent also has the burden of establishing that their duties and responsibilities have changed significantly enough to now find them supervisors within the meaning of Section 2(11) of the Act. Regardless of these burden of proof issues, in the interest of providing a full and fair hearing, and recognizing the change in management, as well as the years that have elapsed since Judge West held the hearing (the last day of which was June 6, 1996), I allowed the Respondent and the other parties considerable latitude in presenting evidence on the issue. As the Sixth Cir- cuit Court of Appeals stated in NLRB v. Kentucky River Com- munity Care, Inc., 193 F.3d 444, 452 (1999), “Whether an em- ployee is a supervisor is a highly fact-intensive inquiry, and therefore, each case must be scrutinized carefully.” The starting point for substantive legal analysis of whether the clinical coordinators are statutory supervisors is the Su- preme Court’s decision in Kentucky River. The Court in that case rejected what it viewed as the Board’s approach of cate- gorically excluding the “professional judgment” exercised by RNs over less-skilled employees in performing patient health care, from the normal application of the concept “independent judgment” to determine supervisory status (see 532 U.S. at 721). The Court reiterated its holding in NLRB v. Health Care & Retirement Corp., 511 U.S. 570, 581 (1994), that profes- sional employees such as RNs should be treated no differently from other employees for purposes of determining whether they possess indicia of supervisory authority within the meaning of Section 2(11) of the Act. I will now turn to those indicia. NORTON AUDUBON HOSPITAL 663 The Respondent presented a great deal of evidence regarding the clinical coordinators’ role in annual and probationary em- ployee evaluations. However, the preparation of evaluations is not in and of itself enough to constitute an indication of super- visory status within the meaning of the Act. Preparing evalua- tions that do not lead directly to personnel actions which affect either the wages or job status of employees does not rise to the level of the exercise of supervisory authority to evaluate. Wil- liamette Industries, 336 NLRB 743 (2001); Elmhust Extended Care Facilities, Inc., 329 NLRB 535 (1999); Vencor Hospital, 328 NLRB 1136 (1999); McAlester General Hospital, 233 NLRB 589, 591 (1977). Moreover, the burden is on the party claiming supervisory status to establish that the evaluations in fact result in personnel actions affecting either employees’ wages or job status. Elmhurst Extended Care, supra at 536. Here, Kees testified unequivocally that the evaluations pre- pared by clinical coordinators had no impact on wages— employees receive a fixed rate of increase regardless of their evaluations. Positive evaluations have been used for morale and development purposes only. Unfavorable evaluations rarely result in the imposition of PIPs and, in any event, PIPs are not considered disciplinary in nature. The record does not establish a single instance where anyone was suspended or terminated for not improving pursuant to a PIP and, therefore, I cannot find that evaluations have resulted, even indirectly, in any imposition of discipline. Even if the impact of the evaluations was such as to elevate them to an exercise of supervisory authority, the clinical coor- dinators do not have the final authority to issue them. The Re- spondent’s own witnesses directly involved in the process of evaluations confirmed that the clinical managers uniformly review evaluations prepared by the clinical coordinators and possess, and occasionally exercise, the authority to change them. Similarly, transfers may be initiated by clinical coordina- tors, but clinical managers must review their recommendations and make the final determination, and the employees involved must decide whether or not to accept them. I conclude, there- fore, that the role clinical coordinators play in the evaluation process does not constitute supervisory authority within the meaning of Section 2(11) of the Act. In terms of playing a role in discipline, the record reflects that clinical coordinators have authority on their own to, at most, issue oral warnings or informal counseling memoranda that may or may not be placed in an employee’s personnel file and do not constitute formal disciplinary actions under the pro- gressive discipline system. The authority to issue low-level discipline, such as oral warnings, does not in and of itself dem- onstrate supervisory authority. Ken-Crest Services, 335 NLRB 777 (2001); Ohio Masonic Home, 295 NLRB 390, 393–394 (1989). Clinical managers have the final authority with regard to discipline, and a clinical manager may decide to be involved in all disciplinary matters and to reject a clinical coordinator’s recommendation even in the imposition of minor discipline. Moreover, there is nothing in the record to demonstrate that any employee has ever been suspended or terminated as the result of any issuance of discipline by a clinical coordinator, even if such were issued without the participation of the clinical man- ager. Insofar as attendance counseling is concerned, there are de- tailed written policies that are designed for easy application and allow little room for any exercise of discretion. If there are any questions about application of the policy, HR is consulted. I find, therefore, that any clinical coordinator involvement in the application of attendance policy requires little or no independ- ent judgment. In sum, the independent authority clinical coordinators pos- sess to discipline other employees, or to effectively recommend such, is very limited and falls far short of establishing that they exercise any real meaningful authority. As the Supreme Court stated in Kentucky River (supra at 713), “Many nominally su- pervisory functions may be performed without the ‘exercis[e] of such a degree of . . . judgment or discretion . . . as would warrant a finding’ of supervisory status,” citing Weyerhauer Timber Co., 85 NLRB 1170, 1183 (1949). Finally, with respect to scheduling, assigning, and directing other employees, it again appears that the clinical coordinators do not exercise much discretion. Employees themselves play a large role in how they are scheduled, are allowed to trade schedules among themselves, and are not forced to come in when they are not scheduled. The 6-week schedules are based on management guidelines and are the prerogative of the clini- cal managers, who either prepare the schedule or delegate such to the clinical coordinator, subject to the clinical manager’s review and acceptance or rejection. If more or less staff is needed during a shift, the house su- pervisor is involved, and there are express policies setting out who should be called in or who should be cancelled. Transfer- ring employees to other units during a shift requires the in- volvement of the house supervisor. When changes need to be made in patient care assignments within the unit, the clinical coordinator has that responsibility, based on staffing level, patient acuity, and the qualifications of the available staff. It appears, however, that such decisions would be based primarily on the clinical coordinator’s knowl- edge and experience as an RN. Indeed, not only clinical coor- dinators but staff nurses have authority over LPNs and CNAs when it comes to the administration of patient care. I conclude that any authority the clinical coordinators have to schedule and call in or cancel employees is quite circumscribed and is governed by fixed parameters set by the employer, leav- ing little room for the exercise of discretion. See Express Mes- senger, 301 NLRB 651, 654 (1991); Bay Area, 295 NLRB 1063, 1077 (1985); Driftwood Convalescent Hospital, 217 NLRB 1026 (1975). To the extent that clinical coordinators can direct LPNs and PCAs, such authority inheres in the role of an RN in a hospital setting. The authority of clinical coordina- tors to reassign RNs to care for other patients involves the issu- ance of low-level orders not constituting supervisory authority. See Polynesian Hospitality Tours, 297 NLRB 228, enfd. 920 F.2d 1 (DC Cir. 1990). I note that the clinical coordinators do not even possess the independent authority to transfer employ- ees to other wings of the facility that are short staffed, an au- thority the Board has held is in and of itself insufficient to es- tablish supervisory authority. North Montana Health Care, 324 NLRB 752 (1997), affd. in relevant part, 178 F.3d 133 (9th Cir. 1999). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 664 In conclusion, the Respondent has failed to meet its burden of establishing that the clinical coordinators are statutory su- pervisors within the meaning of Section 211(c) of the Act or its concomitant burden of showing sufficiently changed circum- stances that would justify a finding on the issue contrary to the Board’s Order underlying this proceeding. V. Conclusions Regarding Clark and Hurst It follows from the above that the Respondent in July 2000 erroneously conditioned its offers of promotion to Clark and Hurst on their acceptance of the Respondent’s position that they would become statutory supervisors ineligible to continue to be involved in activities on behalf of the Union. Accordingly, the offers, requiring Clark and Hurst to cease their union activities, were not bona fide. See Romal Iron Works Corp., 285 NLRB 1178 fn. 1 (1987). I find, therefore, that the offers made to them were invalid, that new and unconditional offers need to be made, and that backpay has continued to accrue since July 2000. See Central Cartridge, Inc., 236 NLRB 1232 (1978). In light of this conclusion, I need not address the General Coun- sel’s contention22 that in July 2000, the Respondent employed charge nurses and patient care leaders whom it did not consider supervisors. Providing Names and Addresses to the Union I. FACTS Judge West found that the seriousness of the Respondent’s ULPs warranted not only a broad cease-and-desist order but also a Gissel23 bargaining order. The Board deemed the Re- spondent’s ULPs to be “numerous, pervasive, and outrageous” (at p. 6). It agreed that a broad cease-and-desist order was proper but determined that because of an almost complete turn- over in supervisors and management and the substantial length of time that had elapsed since the election in March 1994, a bargaining order might not be enforced by a court of appeals. However, the Board stated (at p. 5): Although a Gissel remedy is not being imposed, we do find that certain extraordinary remedies are warranted. The Re- spondent engaged in extensive and serious unfair labor prac- tices when faced with the union organizing effort among its employees. . . . [W]e find that special remedies are necessary to dissipate as much as possible the lingering effects of the Respondent’s unfair labor practices, and to ensure that a fair election can be held. . . . (Footnote omitted.) Accordingly, the Board (at p. 6) ordered, inter alia, that the Respondent “supply the Union, on its request made within l year of the date of this Decision and Order, the names and ad- dresses of its current unit employees.” The Board further di- rected (at p. 8) that a second election be conducted at time, “whenever the Regional Director deems appropriate.” The Union made requests for names and addresses by letters dated July 7, September 11, and October 20, 2000, to which the Respondent responded with the requested information.24 It was 22 GC’s Posthearing Br. at pp 29–30. 23 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). 24 See GC Exhs. 10–14. The Respondent provided separate lists for RNs and clinical coordinators. stipulated that the Union made additional requests by letter in March, May, and June 2001, to which the Respondent also responded with information. The Union made a final request by letter dated December 20, 2001.25 Tillow testified that the Union still needed such a list because the Union’s ability to organize and proceed further was impeded by the Respondent’s further ULPs. This time, the information was denied, in the form of a letter dated December 26, 2001, from attorney Potts,26 who stated, “The one year period referenced in Item 2(g) of the Order having long since expired, Norton Healthcare, Inc. is under no obligation to provide you with the requested information.” In her testimony, Tillow referenced three ULP cases involv- ing direct conduct by the Respondent, as opposed to conduct of its predecessor employer, Columbia, which gave rise to this compliance hearing. The General Counsel and the Union con- tend that because of the ULPs committed by the Respondent herein and unremedied ULPs it has committed in other cases, the Regional Director has not yet scheduled a second election, and in these circumstances the 1-year period should be ex- tended.27 I will summarize the other cases here. In the first, the Board, on September 30, 2002,28 upheld Judge Irwin Socoloff’s find- ings that the Respondent had violated the Act by: 1. Refusing to employ an employee in a CNA position be- tween August 1999 and mid-September 2000, because of her protected concerted activities. 2. Telling Hurst in July 2000 that discussions regarding the Union were prohibited during worktime, while other nonwork discussions were permitted. 3. Coercively interrogating an RN in August 2000. In the second case, 29 Judge Leonard Wagman found on May 5, 2000, that the Respondent violated Section 8(a)(1) of the Act by issuing a warning to an RN on February 25, 1999, because of her protected concerted activities, and by, inter alia, promul- gating and implementing a stricter solicitation policy in May 1999. No exceptions were filed, and it became a final Board Order on June 16, 2000. Subsequent to the hearing in this matter, on December 19, 2002, Judge Arthur Amchan issued a decision30 in the third case Tillow referenced. He found that the Respondent violated Section 8(a)(3) and (1) of the Act by terminating an RN on July 12, 1999, and reporting her to the State Board of Nursing on July 13, 1999, because of her activities on behalf of the Union. The Respondent and the General Counsel filed exceptions to the decision. For reasons stated below, I find that the Respondent remains under a further, but qualified, obligation to furnish names and addresses to the Union. 25 GC Exh. 15. 26 R. Exh. 3. 27 See GC Posthearing Br. at p. 31 fn. 5; U. Posthearing Br. at pp. 4–5. 28 338 NLRB 320 (2002). 29 JD-56-00, 2000 WL 33664167. 30 JD-135-02, 2002 WL 318635939. NORTON AUDUBON HOSPITAL 665 II. ANALYSIS AND CONCLUSIONS The Union argues that the language in the Order to “supply the Union, on request made within 1 year of the date of this Decision and Order,” the names and addresses of its current unit employees, should be interpreted to mean that the first request needed to be made within 1 year but that the Board intended there be no ending date.31 I decline to look behind the express language used by the Board and to expand its stated remedy by implication. It is not my prerogative to dictate to the Regional Director when to conduct a rerun election or to determine how further ULPs found to have been committed by the Respondent should bear on his decision. From the terms of the Order, I conclude that the Board anticipated that the Regional Director would reschedule an election within a period of more or less 1 year. I must also conclude that the Board did not assume that the Re- spondent would engage in further ULPs. The Board did not specify a fixed number of requests that would be encompassed by its order to provide names and ad- dresses on request, and I believe it appropriate to conclude that a rule of reason was intended. Obviously, at a certain point, repeated requests could be determined to be burdensome and a form of harassment, rather than a meaningful effectuation of the Board’s Order. Inasmuch as I have no idea of the internal deliberations of the Regional office and their communications with the Union during the 1-year period following the Order, I cannot make a conclusion as to the appropriateness of the num- ber of requests the Union made during that period. Certainly, however, the Respondent’s obligation to provide additional lists as per the Order cannot be deemed to continue without any limitation pending an unscheduled rerun election that may be years away, depending on when the General Coun- sel concludes that all of the Respondent’s ULPs have been remedied. In this regard, the Order provided the Union with additional means of information and access to unit employees, to offset the Respondent’s interference in the election, so that a fair rerun election could be held in more or less 1 year’s time. I do find warranted an extension of the 1-year period for fur- nishing names and addresses. The Board found the ULPs committed by the Respondent’s predecessor to be egregious in nature, and the Regional Director has delayed holding a second election because of the Respondent’s commission of further ULPs; significantly, some of them were committed even after the date of the Board’s Order in the instant matter. Nevertheless, I am not persuaded that this extension should be unqualified insofar as the number of requests the Respon- dent must satisfy. Inasmuch as the provision in the Order was in preparation for a second election, and the date (even the year) of such election is completely indeterminate at this point, I believe fairness demands that the Respondent’s obligation to furnish the names and addresses be limited to some extent, to avoid the Union’s requests being unduly burdensome to the Respondent while at the same time failing to serve the purpose of the Board’s special remedy to ensure a fair rerun election. Depending on when the election is ultimately scheduled and held, providing lists of names and addresses in the interim pe- 31 See U. Posthearing Br. at p. 4. riod could be merely a hollow gesture rather than a meaningful effectuation of the Boards’ Order. In balancing these compet- ing considerations, there are no set guidelines to use in arriving at a reasonable numerical limitation. Limiting the Union to one request a year would appear overly restrictive. On the other hand, several requests a year would seem excessive. Accordingly, I believe that a reasonable approach is to order the Respondent to continue to comply with Union requests for names and addresses but to provide for a limitation of one re- quest every 6 months, until such time as a new election is di- rected or the petition for an election is withdrawn. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended32 ORDER33 IT IS HEREBY ORDERED that Respondent Norton Healthcare, Inc. d/b/a Norton Audubon Hospital and Norton Suburban Hospital, successor to Audubon Regional Medical Center, Lou- isville, Kentucky, its officers, agents, successors, and assigns, shall pay the following individuals the indicated amounts of total gross backpay and other reimbursable sums for the period from the third quarter of 2000 through the first quarter of 2002,34 with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), accrued to the date of pay- ment and minus tax withholding required by law. JoAnn Sandusky—$26,226.15, plus pension contribu- tions of 279.72 and unreimbursed mileage expenses of $43.84. Patricia Clark—$2,339.51, plus pension contributions of $111.96. Martha Ann Hurst—$3,247.20, plus pension contribu- tions of $162.39. IT IS FURTHER ORDERED that the Respondent shall take the following affirmative action: 1. Offer JoAnn Sandusky immediate employment at Norton Audubon Hospital or Norton Suburban Hospital as a medi- cal/surgical nurse or other RN position which is substantially equivalent to her former position as lactation consultant, which no longer exists, and make her whole for all losses she may suffer after the backpay periods contained in appendix A, until such time as the Respondent makes her a valid offer of rein- statement as ordered by the Board. 2. Offer Patricia Clark and Martha Ann Hurst immediate employment as clinical coordinators and make them whole for all losses they may suffer after the backpay periods contained in appendix A, until such time as the Respondent makes them valid offers of promotion as ordered by the Board. 32 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. 33 Corrections to the transcript have been noted and corrected. 34 I adopt and incorporate by reference the amounts set forth in GC Exhs. 2–4, attached as appendix A, which amounts were not disputed by the Respondent, as well as the unreimbursed mileage expenses for Sandusky contained in GC Exh. 8, attached as appendix B. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 666 3. Provide the Union on request, not to exceed once every 6 months until the Regional Director directs a second election or the petition for an election is withdrawn, the names and ad- dresses of unit employees, based on the Board’s Order. APPENDIX A PATRICIA CLARK from 7-12-00 forward QTR. GROSS BACKPAY INTERIM EARNINGS EXPENSES NET INTERIM EARNINGS NET BACKPAY 00-3 $ 8,957.88 $ 8,531.31 $ - $ 8,531.31 $ 426.57 00-4 10,583.68 10,036.84 $ - 10,036.84 546.84 01-1 8,712.09 8,483.05 $ - 8,483.05 229.04 01-2 8,712.09 8,483.05 $ - 8,483.05 229.04 01-3 8,712.09 8,483.05 $ - 8,483.05 229.04 01-4 8,712.09 8,483.05 $ - 8,483.05 229.04 02-1 $ 10,642.43 $ 10,292.49 $ - $ 10,292.49 349.94 $ 2,239.51 PATRICIA CLARK—Combined Pension Liability from 7/12/00 forward QTR. ADDITIONAL COLUMBIA 401(K) CONTRIBUTIONS ADDITIONAL COLUMBIA PENSION CONTRIBUTIONS ADDITIONAL NORTON PENSION CONTRIBUTIONS TOTAL ADDITIONAL CONTRIBUTIONS 00-3 $ 21.32 $ 21.32 00-4 27.34 27.34 01-1 11.45 11.45 01-2 11.45 11.45 01-3 11.45 11.45 01-4 11.45 11.45 02-1 $ 17.50 17.50 $ 111.96 MARTHA ANN HURST from 7-12-00 forward QTR. GROSS BACKPAY INTERIM EARNINGS EXPENSES NET INTERIM EARNINGS NET BACKPAY 00-3 $ 9,302.13 $ 9,151.13 $ - $ 9,151.13 $ 151.00 00-4 8,475.26 8,074.53 $ - 8,074.53 400.73 01-1 12,683.28 12,160.39 $ - 12,160.39 522.89 01-2 12,683.28 12,160.39 $ - 12,160.39 522.89 01-3 12,683.28 12,160.39 $ - 12,160.39 522.89 01-4 12,683.28 12,160.39 $ - 12,160.39 522.89 02-1 $ 16,708.05 $ 16,104.14 $ - $ 16,104.41 603.91 $ 3,247.20 NORTON AUDUBON HOSPITAL 667 MARTHA ANN HURST—Combined Pension Chart Liability from 7/12/00 forward QTR. ADDITIONAL COLUMBIA 401(K) CONTRIBUTIONS ADDITIONAL COLUMBIA PENSION CONTRIBUTIONS ADDITIONAL NORTON PENSION CONTRIBUTIONS TOTAL ADDITIONAL CONTRIBUTIONS 00-3 $ 7.55 $ 7.55 00-4 20.04 20.04 01-1 26.15 26.15 01-2 26.15 26.15 01-3 26.15 26.15 01-4 26.15 26.15 02-1 30.20 30.20 $ 162.39 JOANN SANDUSKY from 7-12-00 forward QTR. GROSS BACKPAY INTERIM EARNINGS EXPENSES NET INTERIM EARNINGS NET BACKPAY 00-3 $ 10,169.74 $ 7,177.45 $ 13.53 $ 7,163.92 $ 3,005.82 00-4 12,017.20 8,444.06 13.53 8,430.53 3,586.67 01-1 12,017.20 8,684.10 13.53 8,670.57 3,346.63 01-2 12,017.20 8,684.10 13.53 8,670.57 3,346.63 01-3 13,338.00 9,081.15 13.53 9,067.62 4,270.38 01-4 13,338.00 9,031.85 13.53 9,018.32 4,319.68 02-1 $ 13,338.00 $ 9,031.50 $ 43.84 $ 8,987.66 4,350.34 $ 26,226.15 JOANN SANDUSKY —Combined Pension Chart from 7/12/00 forward QTR. COLUMBIA 401(K) CONTRIBUTIONS COLUMBIA PENSION CONTRIBUTIONS NORTON PENSION CONTRIBUTIONS INTERIM EMPLOYER CONTRIBUTIONS NET CONTRIBUTIONS 00-3 $ 508.49 $ 514.62 $ - 00-4 600.86 605.43 $ - 01-1 600.86 622.65 $ - 01-2 600.86 622.65 $ - 01-3 666.90 575.74 91.16 01-4 666.90 572.62 94.28 02-1 $ 666.90 $ 572.62 94.28 $ 279.72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668 APPENDIX B JOANNE SANDUSKY EXPENSES EXHIBIT YR./QTR. 94-4 95-1 & -2 Government reimbursement amount $ 1,082.25 Interim reimbursement 930.73 Unreimbursed mileage expenses for 95-1&-2 151.52 Unreimbursed amount per quarter $ 75.76 1996 Government reimbursement amount $ 922.00 Interim reimbursement 654.62 Unreimbursed mileage expenses 267.38 Unreimbursed mileage per quarter $ 66.85 1997 2,353.8 total miles Government reimbursement @ 31 cents per mile $ 729.68 Interim reimbursement 517.32 Total Unreimbursed mileage expenses 212.36 Unreimbursed mileage per quarter $ 53.09 1998 1,847 total miles Government reimbursement @ 32.5 cents per mile $ 600.28 Interim reimbursement @ 22 cents 406.34 Total unreimbursed mileage expenses 193.94 Unreimbursed mileage per quarter $ 48.49 1999 1,924.8 total miles Government reimbursement @ 31 cents per mile $ 596.69 Interim reimbursement @ 22 and 25 cents 452.33 Total unreimbursed mileage expenses 144.36 Unreimbursed mileage per quarter $ 36.09 2000-1 481.5 total miles Government reimbursement @ 31 and 32.5 cents per mile $ 155.34 Interim reimbursement @ 25 cents 120.38 Total unreimbursed mileage expenses $ 34.96 2000-2 481.5 total miles Government reimbursement @ 32.5-cents per mile $ 156.49 Interim reimbursement @ 25 cents 120.38 Total unreimbursed mileage expenses $ 36.11 2000-3 541.25 total miles Government reimbursement @ 32.5 cents per mile $ 175.91 Interim reimbursement @ 30 cents 162.38 Total unreimbursed mileage expenses $ 13.53 2000-4 541.25 total miles Government reimbursement @ 32.5 cents per mile $ 175.91 Interim reimbursement @ 30 cents 162.38 Total unreimbursed mileage expenses $ 13.53 2001 2,467 total miles Government reimbursement @ 32.5 and 34.5 cents per mile $ 851.12 Interim reimbursement @ 30 cents 740.10 Total unreimbursed mileage expenses $ 111.02 Unreimbursed mileage expenses per quarter $ 27.76 2002-1 674.1 total miles Government reimbursement @ 34.5 and 36.5 cents per mile $ 246.07 Interim reimbursement @ 30 cents 202.23 Total unreimbursed mileage expenses $ 43.84