Judge: Southwell fired illegally from hospital

Central Peninsula Hospital officials unlawfully fired a nurse in 2010 for making numerous statements about their management and making allegations of workplace bullying, an administrative law judge recently ruled.

Judge William G. Kocol wrote in a decision issued to the National Labor Relations Board that by disciplining, suspending and firing Nikiski resident Ray Southwell in accordance with two of their employee rules, that CPH broke labor laws. Kocol ordered CPH to offer Southwell his job back, pay his lost wages and make whole any other lost benefits.

CPH officials have a period of time to either comply with the ruling or challenge it legally.

“I think they are great,” Southwell said of the judge’s rulings.

Southwell said he has not yet heard from CPH.

“I will take that job back — I’m ready,” he said. “I’m waiting for the phone call.”

Central Peninsula General Hospital Inc. Board President Lore Weimer disagreed with the judge’s assessment of Southwell’s termination.

“But, he did not rule on what Mr. Southwell was saying, or whether he was saying anything that was accurate, just whether or not we could fire him for what he said,” she said. “We still disagree with that and we will spend some time over the next few weeks looking at our options going forward.”

Southwell was ultimately terminated from his post in October 2010 because of his criticism of CPH’s management style after the November 2008 hospital shooting by Joseph Marchetti, who had been fired from his job at the hospital.

Southwell, who at the time served as the nurses’ union vice president and grievance officer, said his criticism centered around hospital management “bullying,” which he felt was a root cause in the 2008 shooting and for other employees’ workplace frustrations. He said he personally witnessed and experienced similar management bullying.

Former CPH Chief Executive Officer Ryan Smith told Southwell to stop making such comments because they were false, misleading and defamatory, or he would be fired. Southwell continued his comments in several public venues, online and in letters to the editor of the Peninsula Clarion. Kocol wrote such statements were protected concerted activities.

“Consistent with my earlier analyses, Southwell’s remarks were again a continuation of his concerted activity to identify and rectify workplace issues,” Kocol wrote. 

Kocol later wrote that Southwell’s remaining complaints about multiple unfair labor practices were true, and there were indeed forced policy changes and unfair firings. In addition, he wrote Southwell’s reports of sexual and racial harassment were not made “with a reckless disregard of the facts,” that there was indeed workplace bullying, according to the results of a study, and a recommended policy generated from that study was never implemented.

“My question is why hasn’t the anti-bullying policy been implemented?” Southwell said. “When you read through the decision it is clear what is going on and what is still going on at the hospital.”

As for Southwell’s allegation that “there is immeasurable fear generated by the hospital CEO at all levels,” Kocol wrote that “based on what happened to Southwell himself and based upon reports from others, if (it’s) not true then (it’s) certainly not made with a reckless disregard for the facts.”

Southwell originally filed a complaint with NLRB staff. The NLRB filed on Feb. 24 an administrative complaint and requested a hearing before an administrative law judge in May to determine if his two allegations were true and required action.

The second allegation deals with CPH rules used to fire Southwell that center on the behavior of hospital employees, their conduct and outside activity that might interfere or conflict with hospital operations.

The judge said those two rules were not unlawful, but were applied in an unlawful way. Kocol ordered the hospital to stop applying them in ways that interfere with protected concerted activities.

Daniel Hickey, a field examiner for the NLRB in Region 19, said the judge’s ruling was immediately transferred to the national board and both parties have until Aug. 30 to file an exception to the ruling.

If CPH files an exception, the board would review the judge’s ruling. If the ruling is upheld, CPH can take the case to a U.S. Federal District Court, but that is rare, Hickey said. If CPH doesn’t file an exception, they must comply with the order.

CEO Rick Davis said the hospital has “not yet” done anything internally to respond to the ruling.

“There are still so many variables out there and we are still evaluating our options and waiting for legal counsel to do an in-depth review,” Davis said, adding the hospital would have to weight the cost versus the “distraction.”

Brian Smith can be reached at brian.smith@peninsulaclarion.com.

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