Full opinion text
MOORE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. KRUPANSKY, J. (pp. 1521-43), delivered a separate dissenting opinion. MOORE, Circuit Judge. Opportunity Homes, Inc. (“OH”) petitions for review of an order of the National Labor Relations Board (the “NLRB” or “Board”) directing OH to cease and desist from certain unfair labor practices and to take affirmative steps to remedy their effects. The Board in turn seeks enforcement of its order. Because substantial evidence supports the Board’s factual findings, we deny the petition for review and grant the cross-application for enforcement. I. Background Although some of the facts of this ease are in dispute, OH’s petition does not challenge the following findings. OH provides full-time residential care for twenty-two mentally and physically disabled individuals in Lisbon, Ohio. At the OH facility on Friday, January 24,1992, an official of the Service Employees International Union and forty OH employees and family members approached Mary Jane Jones, the head administrator. The union official gave Jones a petition signed by forty-one of the forty-four OH employees who were eligible to be part of the union’s bargaining unit. The petition announced that the employees had organized a local unit of the union, and the union official demanded that OH recognize it. Jones orally responded that she would recognize the union as the bargaining representative of the employees. The following Monday, Jones posted a memorandum to all employees at the OH facility. The memorandum professed support for the union but disappointment in the employees for avoiding her after the Friday encounter and for not coming to her with their complaints: “I saw the Great Wall of China rebuilt at Opportunity Homes late Friday afternoon.” It also cautioned the employees to choose their union representative carefully, characterizing the Friday encounter as an attempt to intimidate her with numbers that “did tremendous harm to our program.” The memorandum then continued: Because of the dependable crew that we had working for us we were able to eliminate the position of personnel director and put the money towards things such as wages and bonuses. Because we will now be forced to follow the policy manual to the letter, and will also need an administrative union representative, an ad will soon be placed for a full time personnel director. Per your request, anything I have to say to the employees will come via an official memo or other similar form. Legal counsel has advised me to close my open door policy. I will address employee problems, but only through a third person, the union representative. Since the union must approve all benefit plans, the ones planned for this year will all be tabled, including the health insurance plan you were shown a couple of weeks ago. I was able to negotiate a plan that would eliminate all pre-existing, conditions, but the time limit is running out. ... I am not scared of your union or threatened by it in any way. If I was, I definitely would not have so graciously recognized your position. I will do what I have to do for these residents. The words strike and walkout do not intimidate me. I, unlike some of you, have made a commitment to the handicapped citizens who employee [sic] me. Despite this recognition of the union, Jones and OH’s board of directors refused repeated requests to bargain with it, until OH finally acknowledged recognition in October 1992. After the memorandum was posted, the relationship between the employees and management suffered a breakdown; each side blamed the other for it. Within four days of the posting of the memorandum, director of nursing Judy Manning responded to nurse Lorena Howell’s reluctance to sign a disciplinary report by shouting that Howell would have signed it without objection prior to the union’s arrival, and program director Richard Fithian told activity aide Linda Joy that he was issuing her a written warning for misplacing some documents — rather than simply retrieving the documents himself— because unionization required him to follow strict procedure. In the following months, OH discontinued policies of distributing paychecks early and of providing pay advances, changed and reduced certain employees’ work hours, adopted a more strict policy regarding signing informational memoranda, and prohibited employees from wearing pins at a time when employees had begun to wear pro-union paraphernalia. Active union supporter John Tharp- saw his job eliminated a few weeks after he challenged a disciplinary report from Fithian; Tharp was forced to work reduced and inconvenient hours at another position, and Fithian did not inform him or any other unit employee when soon thereafter Fithian created and filled a new position that incorporated many of Tharp’s former duties. Supervisor Kathryn Fristik repeatedly told employees that they would be fired if they took complaints to anyone but OH management. After examining hundreds of exhibits and hearing the testimony of over twenty witnesses, an administrative law judge (an “ALJ”) found that this and other conduct discussed below constituted unfair labor practices under 29 U.S.C. § 158. He accordingly recommended ordering OH to ■ cease and desist from such practices and to take various affirmative remedial steps. The NLRB adopted the ALJ’s findings and recommendations and issued the order, with minor changes. The case is now before us on OH’s petition for review and the Board’s cross-application for enforcement. II. Applicable Law An employer commits an unfair labor practice if it makes an employment decision in order to discourage union membership or to interfere with employees’ right to organize. 29 U.S.C. § 158(a)(1), (3). The general counsel of the NLRB has the burden of proving by a preponderance of the evidence that protected union activity was a substantial or motivating factor in the adverse employment decision. NLRB v. Transportation Management Corp., 462 U.S. 393, 401, 103 S.Ct. 2469, 2474, 76 L.Ed.2d 667 (1983); NLRB v. Cook Family Foods, Ltd., 47 F.3d 809, 816 (6th Cir.1995). If he or she carries this burden, the employer may avoid liability by proving by a preponderance of the evidence that it would have taken the adverse action even in the absence of the illicit motivation. Transportation Management, 462 U.S. at 401, 103 S.Ct. at 2474; Cook Family Foods, 47 F.3d at 816. The Board’s legal conclusions are reviewed de novo, but its findings of fact and application of law to fact- are subject to the “substantial evidence” standard of review. NLRB v. Pentre Elec., Inc., 998 F.2d 363, 368 (6th Cir.1993). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). Furthermore, “[djeference to the Board’s factual findings is particularly appropriate where the ‘record is fraught with conflicting testimony and essential credibility determinations have been made.’ ” Tony Scott Trucking, Inc. v. NLRB, 821 F.2d 312, 315 (6th Cir.) (quoting NLRB v. Nueva Eng’g, Inc., 761 F.2d 961, 965 (4th Cir.1985)), cert. denied, 484 U.S. 896, 108 S.Ct. 230, 98 L.Ed.2d 188 (1987). III. Suspension and Termination of Nursing Staff The most complicated factual dispute here involves the suspension and subsequent termination of Kathy Byers, Lorena Howell, Gayle Milhoan, and Carol Redmond, all licensed practical nurses who worked at OH. The ALJ found and the Board agreed that the suspensions and terminations were the result, of the nurses’ active support for the union. OH does not dispute the findings that the nurses were known union activists and that they had exemplary records prior to the unionization effort, but it does challenge other evidentiary findings on which the NLRB’s conclusion was based and offers an alternative explanation for the adverse employment actions. The ALJ found that the unionization attempt prompted management officials, especially Judy Manning, the four nurses’ supervisor and the director of nursing, to adopt a hands-off, stonewalling policy towards the nursing staff. Communication ceased and the quality of nursing care accordingly declined. As a result, an annual Ohio Department of Health (“ODH”) inspection in April 1992 cited OH for a greater number of regulatory violations than ever before, putting the facility’s state certification and funding in jeopardy. OH management seized this opportunity to get rid of the pro-union nursing staff. It blamed the nurses for almost half the violations, suspended the nurses, and fired them after a biased internal investigation. According to OH, however, it was the nurses, not the management, who used the ODH survey for their own ends. OH asserts that the'nurses purposely arranged the violations and directed ODH inspectors to the evidence thereof. Their intent was to force the facility to shut down, because their union liaison allegedly had told them that the state would then appoint a receiver and the current management would be replaced. To provide support for this theory, OH attacks three specific ALJ findings: (1) general anti-union animus on the part of OH management, (2) Manning’s hands-off policy, and (3) the nurses’ lack of responsibility for the violations. Substantial evidence supports the ALJ’s finding that OH management generally had an anti-union attitude. The events discussed in part I indicate that management was hostile to the union; for instance, the memorandum Jones issued promised in no uncertain terms to enforce work rules more strictly and implied ominously , that health care and wages would suffer as a result of unionization. Furthermore, between the posting of the memorandum in January and the arrival of the ODH inspectors in April, policies regarding overtime pay, paycheck distribution, replacement workers for sick days, doctors’ excuses for missing work, and scheduling vacation were all changed, to the nurses’ detriment. Management also removed a pay telephone used by employees, restricted access to a copying machine that the nurses routinely used, and changed the locks on the nurses station without giving the staff new keys. OH argues that ongoing renovations and financial difficulties made these changes necessary, but there was considerable evidence to the contrary, and we therefore defer to the ALJ’s reasonable resolution of conflicting accounts. Finally, OH does not dispute the finding that it recognized the union in January but refused to bargain with it until October. Likewise, we must uphold the ALJ’s conclusion that Manning had an uncommunicative, “hands-off” attitude towards the nursing staff. OH’s argument on this point simply reads convenient conclusions into the testimony of OH management and ignores the nurses’ versions of the same events. For instance, one of the keys to the ALJ’s conclusion was that no coordinated preparation was done for the April 1992 ODH survey. OH discounts this finding by asserting that no preparation was ever done for any ODH survey because OH never knew when an ODH survey might occur. The nurses, however, testified that preparation for ODH surveys had been routine in past years and that the lack of such preparation for the 1992 inspection was therefore a marked departure from established practice. Even management officials admitted, contrary to the assertion in OH’s brief, that the date of the ODH survey could be predicted with some accuracy. Moreover, Manning herself testified that she took a more passive approach to her duties in response to advice from legal counsel, and that once she decided that the ODH violations were the nurses’ fault, she never asked them for their side of the story. Finally, the parties’ disagreement regarding who was responsible for the ODH violations presents another conflict of evidence that requires us to defer to the ALJ. Jones’s analysis of the ODH survey results found that musing deficiencies were responsible for forty-five percent of them, although her breakdown includes (Erector of nursing Manning within the culpable group. Nurse Byers’s analysis indicates that the nursing department was only wholly responsible for five of the approximately sixty citations and partly responsible for seven others. • Neither of these analyses is more inherently credible than the other. Byers’s was admittedly prepared for litigation, but the process by which Jones arrived at her decision to blame the nurses was not particularly objective either. The evidence clearly showed that even before beginning any internal investigation, management had decided that the nurses had caused the regulatory violations by intentionally sabotaging the facility. The investigation that did eventually take place was highly suspect; Jones hired a former OH management official, Marilyn Robb, to investigate the nursing deficiencies at OH. The nurses were suspended after Robb had investigated only four of the twenty-two residents’ records, and Robb’s final report, which was allegedly the basis for the decision to fire the nurses, contained conclu-sory statements regarding the nurses’ illicit motivations and státed on its cover page, “This report ... serves as the back up documentation needed to support [the nurses’] suspension from this facility and subsequent termination.” The ALJ reasonably viewed this evidence as unreliable. The evidence of the nurses’ intent to sabotage the facility is also weak. OH points to disputes between the nurses and the management regarding the administering of fluids and medicine to residents and concludes that the nurses’ accounts of these disagreements can only be explained by a deep-seated malice towards the facility and its residents. The evidence, however, can reasonably be read as showing a genuine concern on the nurses’ part that medical treatment not be undertaken without proper doctors’ orders. Furthermore, OH’s theory relies on the supposition that the union was encouraging ODH violations in order to force the facility to close, in the belief that the State of Ohio would then appoint a receiver to replace the OH management, but there is no evidence that anyone discussed the possibility of receivership before the ODH survey. Nurse Byers and a union official testified that they began to discuss that possibility only after the survey, when management raised the specter of a closing. In short, OH’s challenge to the ALJ’s conclusion regarding the suspension and firing of the nurses is based on its own one-sided interpretation of the evidence. While this interpretation is not necessarily frivolous, the evidence is also clearly adequate to support the ALJ’s alternative interpretation. Because the ALJ had the opportunity to evaluate the witnesses’ testimony in person, we defer to his decision. IV. Termination of Blaine Ritchie A second disputed issue is the firing of aide Blaine Ritchie, another well-known union supporter and one who appeared on local television—ten days before his termination—accusing Jones of having reneged on her recognition of the union. OH claims that program director Richard Fithian fired Rit-chie for leaving a physically disabled resident named Donald alone in the shower. Donald fell and had to be taken to the hospital for treatment of a head abrasion. The ALJ found and the Board agreed that Ritchie was fired for his pro-union activity. The entire controversy surrounding what happened to Donald centers on what Ritchie said to nurse Aaron Rowe when the latter arrived at the scene of the fall. According to Ritchie, he had undressed Donald, was holding his hand to steady him, and was turning toward the shower controls when he felt Donald fall. Ritchie called for help, and Rowe arrived and asked how the fall had occurred. Ritchie said, “I don’t know, I don’t know whether he had a seizure or slipped on the wet floor.” Rowe, however, testified that Ritchie also said, “I found him like this:” Rowe therefore reported that Ritchie had left Donald unattended. Fithian allegedly believed Rowe’s account of what Ritchie said and fired Ritchie for intentional neglect of a resident. Substantial evidence supported the ALJ’s decision to view as suspect Fithian’s stated reasons for believing Rowe. Fithian claimed that Ritchie’s story had changed after the night of the incident, but Ritchie consistently maintained that he had been with Donald at the time of the fall and simply did not know exactly what had happened. Fithian also stated that he believed Rowe because Rowe was “in a more professional position” than Ritchie, but the ALJ explicitly found Rowe’s testimony evasive and his memory unreliable. Fithian testified that his past dealings with Ritchie and the latter’s disciplinary history were a factor in the decision to credit Rowe’s story, but the ALJ reasonably concluded that Ritchie’s two previous disciplinary incidents, which had to do with leaving a hair dryer where a resident had access to it and jumping the curb while driving an OH vehicle, had nothing to do with credibility, and he found Ritchie to be “a highly credible witness.” Finally, Fithian interpreted a telephone call that Ritchie made to Rowe after the termination decision as an attempt by Ritchie to get Rowe to “change his story,” even though by both individuals’ accounts it was a friendly chat about their views of what had happened. Given Fithian’s previous arguably anti-union conduct, as evidenced by his treatment of Tharp and Joy, the ALJ reasonably concluded that the articulated reasons for firing Ritchie were a pretext. V. Termination of Donna Yeager In June 1992, supervisor Kathyrn Fristik fired aide Donna Yeager for insubordination. The ALJ found that the termination would not have occurred absent Yeager’s known pro-union stance, and the Board explicitly affirmed this finding. OH now argues that the ALJ and Board ignored compelling evidence. The events leading up to Yeager’s termination began on May 29, 1992, when Fithian gave Yeager a five-day suspension for behaving inappropriately in front of an ODH team that had returned to follow up on its April survey. According to Yeager, at the time Fithian told her of the suspension-she said, “Union?” and he replied, ‘Yes.” The ALJ credited Yeager’s testimony on this point and reasonably concluded that the suspension was prompted by anti-union animus. Three days after returning from her suspension, Yeager was fired for being insubordinate to Fristik in front of a county inspector; the inspector testified at the hearing and corroborated Fristik’s account of the incident. Given the inspector’s presumably impartial testimony and the fact that Yeager’s personnel file had a number of reports of prior incidents in which she was cited for being disrespectful—several of which predate the unionization effort—her .insubordination on the day she was fired is well established. Nevertheless, the ALJ’s conclusion survives appellate review because of the lack of evidence that Yeager would have been terminated if not for the May 29 suspension. On the stand, Fristik could not say that she would have fired Yeager if the suspension had not occurred, and the evidence that the suspension was motivated by an anti-union animus is considerable. Both the ALJ and the Board explicitly relied on this testimony in finding that Yeager’s termination constituted an unfair labor practice. Substantial evidence supports their conclusion. VI. Reduction of Brad Martin’s Pay Each of the adverse employment actions discussed above was found to be a violation of subsection (a)(3) of 29 U.S.C. § 158. The ALJ characterized the reduction of Brad Martin’s pay in July 1992, however, as a violation of subsection (a)(5), which makes it an unfair labor practice to refuse to bargain collectively. The ALJ therefore did not conclude that anti-union animus played a role in the decision to reduce Martin’s pay; he instead viewed the reduction as a unilateral change in a condition of employment over which OH, having recognized the union, had an obligation to bargain. OH did not address this issue before the NLRB and has not briefed it here. “If a company fails to address or take issue with the Board’s findings and conclusions with regal’d to violations of the [National Labor Relations] Act, then the company has effectively abandoned the right to object to those determinations.” Hyatt Corp. v. NLRB, 939 F.2d 361, 368 (6th Cir.1991); see also 29 U.S.C. § 160(e) (precluding review of argument not raised before NLRB except in extraordinary circumstances). We therefore decline to review that portion of the Board’s order having to do with the reduction in Martin’s pay. For the foregoing reasons, we DENY OH’s petition for review and GRANT the NLRB’s cross-application for enforcement of the order. . OH claims that the NLRB should have reopened the record to include the results of a 1993 ODH survey, which produced fewer citations than the 1992 survey. The Board need not reopen a record to admit new evidence unless the new evidence would require a different result. NLRB v. Cutter Dodge, Inc., 825 F.2d 1375, 1381 (9th Cir.1987); NLRB v. Johnson's Indus. Caterers, Inc., 478 F.2d 1208, 1209 (6th Cir.1973). That standard is not met here. OH argues that the improved survey results in 1993 indicate that the fired nurses were responsible for the 1992 citations, but the change could just as easily have been due to OH management’s abandonment of its uncommunicative policy or to any number of other factors.
KRUPANSKY, Circuit Judge, dissenting. I enter my dissent to Administrative Law Judge (ALJ) Richard H. Beddow, Jr.’s disingenuous review of the evidence developed during the course of the trial of this cause and his result-oriented opinion as affirmed by the National Labor Relations Board (NLRB). To prove unlawful discharge in retaliation for activities protected by the federal labor statutes, the NLRB HAS THE INITIAL BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE that an employee’s protected conduct constituted a “substantial or motivating factor in the discharge” of an employee. Thereafter, the burden shifts to the employer to prove by a preponderance, as an affirmative defense, that “the discharge rested on the employee’s unprotected conduct as well and that the employee would have lost his [or her] job in any event.” N.L.R.B. v. Transportation Management, 462 U.S. 393, 398-403, 103 S.Ct. 2469, 2472-75, 76 L.Ed.2d 667 (1983). Appellate review of any finding by the Board demands an independent comprehensive examination of relevant sections of the record to determine if its findings were supported by substantial evidence developed during the trial. 29 U.S.C. § 160(e) & (f); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 493-94, 71 S.Ct. 456, 467-68, 95 L.Ed. 456 (1951). “Substantial evidence” signifies that quantum of evidence which a reasonable mind might accept as adequate to support a proposition. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938). A reviewing court may not, however, restrict its review solely to the evidence which supports the Board’s findings, conclusions, and order. To the contrary, the appellate court, like the ALJ and the NLRB, is duty bound to accord due impartial consideration to all record evidence material to the proposition at issue. On review, if reasonable minds cannot accept a finding as true in light of all relevant evidence, including the evidence which fairly detracts from the weight of the evidence supporting that finding, it must be set aside. See, e.g., Universal Camera, 340 U.S. at 488, 71 S.Ct. at 464-65; Paducah Marine Ways v. Thompson, 82 F.3d 130, 133 (6th Cir.1996); N.L.R.B. v. Pentre Elec., Inc., 998 F.2d 363, 368 (6th Cir.1993). In the instant case, as demonstrated by the record, ALJ Beddow, Jr. compromised his responsibility to impartially consider the totality of the evidence developed during the course of the hearings before him and to assign appropriate credibility and legal determinations in accordance with accepted dictates of judicial practice and procedure. The disparities between the evidence disclosed by the record and the factually convoluted editorial commentary resorted to by the ALJ to justify factually unsupported findings and conclusions tax the credibility “which a reasonable mind might accept as adequate to support a proposition.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938). In arriving at this critical observation, I am well aware of Federal Rule of Civil Procedure 52(a), which reads in part: Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. I am further cognizant of the Supreme Court’s admonition in Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985): When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said. See Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinar tions, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. DOCUMENTS OR OBJECTIVE EVIDENCE MAY CONTRADICT A WITNESS’ STORY; OR THE STORY ITSELF MAY BE SO INTERNALLY INCONSISTENT OR IMPLAUSIBLE ON ITS FACE THAT A REASONABLE FACTFINDER WOULD NOT CREDIT IT. WHERE SUCH FACTORS ARE PRESENT, THE COURT OF APPEALS MAY WELL FIND CLEAR ERROR EVEN IN A FINDING PURPORTEDLY BASED ON A CREDIBILITY DETERMINATION. Anderson, 470 U.S. at 575-76, 105 S.Ct. at 1512. (Emphasis added). Sensitive to the evidence that, in its totality, substantially supported the respondents and militated against the Labor Department’s enforcement proceedings, and in an attempt to justify his administrative disposition, the ALJ abandoned resort to the record and contrived an implausible hypotheses that respondent Opportunity Homes, Inc. (OH), a reputable business enterprise engaged in the operation of a residential care facility that employs approximately fifty or more managerial and non-managerial employees, together with an available medical staff of physicians servicing twenty-two severely physically and mentally impaired resident/patients, INITIATED A MANAGEMENT CONSPIRACY TO INTENTIONALLY DESTROY ITSELF by soliciting decertification of its state license, receivership, shutdown, relocation of resident/patients to another home, and ultimate bankruptcy, merely so that it could justify the discharge of four licensed practical nurses (LPNs),. a habilitation aid, and a direct staff aid, and circumvent unionization. The ALJ rationalized: Here, Respondent’s defense is based upon an elaborate attempt to show that it validly relied upon the findings of the Ohio Department of Health’s (ODH) annual review and its own investigation to conclude that the LPN [sic] had engaged in willful misconduct that jeopardized both the well being of the residents and the Respondent’s State Certification and that this misconduct justified their terminations. I am aware that some (courts), [sic] have expressed a skepticism regarding the extent to which an employer is willing to suffer loss of business or other operational or economic losses in order to delay or-avoid the feared effects of employee unionization. While it may make little sense in an objective, after-the-the fact viewing, .employers can be obstinate to the extreme when faced with the challenge of unionization and they can be willing to suffer perceived temporary losses or inconveniences in order to delay or avoid the perceived long term effects that formal certification of a union might bring. As unlikely as it might appear at first glance, I find the record here supports the General Counsel’s contentions and shows that the Respondent engaged in “indifferent” behavior that intentionally or inadvertently “set up” circumstances that created an apparent opportunity for it to seize upon the report of a state agency to justify significant retaliatory actions against its LPNs that it otherwise had refrained from taking (upon the admitted advice of its initial counsel), after its initial discriminatory reaction in issuing a series of employee warnings. ALJ Decision of December 29, 1993, page 16; J.App. at 34. To support the syllogism that the personnel discharges here in controversy constituted unfair labor practices, the ALJ invoked an incantation of the respondent’s “anti-union animus” as the illegal underlying motive for the terminations at issue. In assigning weight to the accuracy of his characterization, reasonable minds recognize that generally antagonism is the fruit of emotional controversy. In the instant case, the ALJ converted the presence of what he characterized as “anti-union animus” into an all-purpose magical talisman that transmuted, without exception, ALL EMPLOYER ACTIONS ADVERSE TO ANY EMPLOYEE INTO UNFAIR LABOR PRACTICES IRRESPECTIVE OF THE RECORD EVIDENCE. The panel majority has accepted the ALJ’s conclusions of “anti-union animus,” citing to the after-the fact reactions of Mary Jane Jones, the administrator of day-to-day facility operations, to the union’s hostile confrontation of January 24, 1992, relying upon her notice to employees of January 26, 1992 [mis-dated 1991] (J.App. at 458-59); her directed hands-off policy to Judy Manning, the supervisor of the LPNs; and respondent’s refusal to negotiate with the union. The Jones notice, which speaks for itself, apart from its expressions of emotional distress, disbelief, and frustration, resulting from what she perceived as employee rejection of their existing long standing cooperative friendly relationship, obviously derives from the considered advice of respondent’s legal counsel. It announced the discontinuance of her employee open-door policy and direct employee discussions; consideration/resolution of employee concerns only upon written request and/or through an intermediary union representative; strict implementation of all rules and regulations of the defendant’s policy manuals; suspension of negotiations addressing employee benefit plans which could not be finalized without union approval, pending the outcome of the unionization effort; and the employment of a personnel director to act as liason between employees and management. Although written in' lay language, its content conveyed legal counsel’s prudent directions to supervisory personnel to implement all of the respondent’s rules and regulations of the policy manual in an arms-length manner to avoid adversary confrontations and protect management from charges of unfair labor practices threatened by the union on January 24, 1992. The record of testimony bearing upon the identity of the source of any animus that existed between the parties, the degree of its malevolence, and the scope of its infection, is reflected by the tone of the union’s initially orchestrated confrontation between the parties on January 24, 1992, and its aftermath, which disclosed the union’s covert intention to displace corporate officers and directors through a state-imposed receivership, without imperiling employee job security, by generating and filing numerous complaints of substandard resident/patient treatment and services with state agencies, including, the Ohio Department of Health and the Ohio Department of Mental Retardation. The union’s dedicated commitment to implement and successfully achieve the objectives of its highly sophisticated organizational effort, complete with regular news releases and solicited media coverage, is memorialized in the record by evidence of a series of previously seldom experienced infractions that coincidentally began to surface immediately after the union challenge of January 24, 1992 and culminated with the threatened decertification of the respondent’s care facility , by the Ohio Department of Health and the respondent’s initiation of corrective measures calculated to counteract the union’s covert campaign of decertification which included, among other actions, the suspension and subsequent discharge of four LPNs, a habilitation aid, and a direct staff aid. The correlation assigned by the ALJ between respondent’s anti union animus and its refusal to negotiate with the union between January 24, 1992 and October 12, 1992, the date on which OH voluntarily recognized the union without an election, is equally tenuous in light of the respondent’s adamant assertions that Jones was acting without either direct or apparent authority to recognize the union as the employees’ bargaining representative in the absence of an appropriate election which the union refused to pursue. 29 U.S.C. § 159(c)(1) provides that whenever a petition has been filed “(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to" be represented for collective bargaining and that their employer declines to recognize their representative ... the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice.... If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.” The union’s decision not to exercise its option to invoke 29 U.S.C. § 159(c) and force an immediate election that assured a union/employee victory, and the immediate commencement of contract negotiations by eliminating the agency issue of Jones’ direct and/or apparent authority to commit her principals to a policy decision of union recognition which attached to a purported but denied January 24, 1992 comment attributed to Jones, is inexplicable and militates against the union’s credibility. N.L.R.B. v. Engineers Constructors, Inc., 756 F.2d 464 (6th Cir.1985). Because the respondent recognized the union as the employee bargaining agent on October 12, 1992 without an election, the issue concerning the direct or apparent agency of Jones to ostensibly commit the corporate officers and directors to a policy decision of recognizing the union on January 24, 1992 without an election is not before this court for review. It is significant only for the purpose of again reflecting the pro union mindset of the ALJ’s circuitous reasoning in resolving the agency issue and other issues of this case. Mindful of the NLRB’s initial burden of proving the direct or apparent authority of Jones to commit her principal to a policy decision, and noting a total absence of any effort by the NLRB to introduce or proffer even a scintilla of evidence addressing the scope of her authority, is demonstrated by a search of the record. The ALJ obfuscated his factually unsupported conclusions by shifting the burden to the respondent OH to prove that Jones was without direct or apparent authority to recognize the union on January 24, 1992, or at any time thereafter: Respondent also argues that Administrator Jones did not have the authority to act on behalf of the board of directors in the matter of union recognition, an argument that seems strangely out of place in view of respondent’s stipulated submission of Joint Exhibit No. 1, Respondent’s letter to Union representative Timko on Respondent’s letterhead, which offers Respondent’s recognition of the Union and the described unit of employees, a letter that is signed solely by Jones, as administrator, and a letter that makes no mention of otherwise being authorized or done at the direction of the board. The self-serving notes of the board indicates that they discussed that Jones did not have authority to recognize the Union’s demand, however, at no subsequent time prior to its recognition of the Union on October 12 did the board or anyone on its behalf communicate to the Union or the employees any disavowal of Jones act of apparent authority. Moreover, during 1992 the board and its individual members rebuffed the attempt of employees to discuss the matter with them and hid behind the skirt of their administrator. Respondent’s board of directors cannot have it both ways, if it alone had the authority, it had the responsibility to meet the employee representative, to communicate some formal disavowal of Jones’ action and to make the second and formal offer of recognition. It did not do so and I find that Jones had both the actual and apparent authority to act in this regard on behalf of the Respondent. Otherwise, it is well established that an employer is bound by the acts of those of its officials who are in charge of the day-to-day operations at its facility and who possess actual authority, or at the very least, apparent authority, eith [sic] respect to labor relations matters[.] [Citations]. Here the credible testimony of record shows that Jones verbally agreed to recognize the Union when the demand and petition were presented to her on Januaiy 24. ALJ Opinion, page 10; J.App. at 28. However, the union’s- refusal to invoke its rights pursuant to 29 U.S.C. § 159(e)(1) and realize immediate union recognition and ensure the immediate commencement of contract negotiations as it purported to demand, in lieu of virtually sitting on its hands for eight and one-half months between January 24,1992 and October 12,1992, lends credibility to the respondents’ arguments that the union, with the aggressive assistance of the discharged LPNs and other employees, initiated and pursued a covert effort to intentionally create a crisis with state authorities that would result in a decertification of the facility, a state-forced receivership, and displacement of the respondents’ officers and board of directors, without imperiling employee job security. Disregarding the ALJ’s running editorial commentary interpreting the evidence, and relying upon an objective review of the record as developed upon direct and cross examination of the government’s witnesses, voluminous daily patient/residents hospital records, other documentation, and the testimony and reports of impartial state investigators and an independent impartial agent retained by the respondent to determine the causes for its state decertification within 110 days of the initial union’s ultimatum, the record of evidence discloses a picture materially in conflict with the ALJ’s journalistic resolution and casts a shadow of serious doubt upon his impartiality in arriving at a disposition of the issues before him. From the direct testimony of Debra Tim-ko, the organizer for the Service Employees Union, the source and malevolence of the animus between the parties is apparent and needs no assignment. At a meeting between the employees on September 22, 1992 at the Lisbon Village Hall, Timko cast the tenor of the future relationship between the parties: Q. Now what did you say to the people before they signed that? Did you say anything to them? A. That this was a commitment to one another, to stick together for the duration of the campaign. And that we wanted to make sure that management knows who exactly is for this Union. By declaring their support publicly together, they would be committed to each other, and help each other out for the duration of the campaign. Q. And that you wanted the— A. Oh, by taking this petition in, that we decided at this meeting that there are three ways that the Union can be recognized. The first is to ask the boss, and the recognition be granted. The second way is to have an election. The third way is to have a bargaining order issued. J.App. at 1657-68. Ignoring the conventional non-confrontational practice “to ask the boss, and the recognition be granted,” the Union elected to pursue a more hostile approach: We chose to what we call, MARCH ON THE BOSS, OR DEMAND RECOGNITION FROM THE EMPLOYER. We decided that we would do that on Friday, the 24th.. J.App. at 1658. (Emphasis added). On January 24th, Timko and a defiant group of 28 to 30 employees, plus spouses and children, marched en masse into the OH facility to demand recognition from the employer: Q. Okay. Now could you tell me then what happened on Friday, January 24th, 1992? A. On the 24th, every— Well, we had over — about 28 to 30 people, plus spouses and children with us at McDonalds. We met there and passed out a petition to everyone. It was on a cream color parchment paper. We said that we would go over to the home, go into the home, but to be quiet. Just go into the éntranee. We knew that the residents wouldn’t be around, because they would be at workshop on that day. We would have Mary Jane come out to meet us, and demand that she recognize our Union. So we all walked over, crossed the street together. We went into the home. We were in the hallway when you first enter the home. And we saw Judy Manning. I told her that I was Debbie Timko from the Service Employees Union and we were here to see Mary Jane Jones. She said, “fine, I’ll go get her.” She went over into the kitchen area, I assume. She got Mary Jane Jones. Mary Jane came out smiling. I extended my hand to her. I said, “I’m Debra Timko, international Union representative for the Service Employees International Union.” She said, “Oh, I’m sorry. I can’t shake your hand, because I have stainless steel cleaner all over it. I’ve been working in the back.” I said,— I gave her the petition. It was not sealed. It was not folded. It was on this size paper. I gave her the petition. And I also gave her a letter, which was in an envelope and sealed. I said, “We, the people here today, have formed a Union with Local 627. WE DEMAND THAT YOU RECOGNIZE OUR UNION WE KNOW WHAT OUR RIGHTS ARE. WE WILL DO WHATEVER IT TAKES TO WIN RECOGNITION OF THE UNION, AND THE RESPECT THAT WE DESERVE.” I also said, ‘WE’RE ALSO HERÉ TO PUT YOU ON NOTICE THAT IF YOU MESS WITH ONE OF US, YOU MESS WITH ALL OF US.” J.App. at 1660-62. (Emphasis added). Subsequent to the initial confrontation between the parties, the Union became progressively more contentious in implementing its covert plan to unionize the facility as demonstrated by Timko’s testimony: Q. And your understanding of that term is that, IF A RECEIVERSHIP IS APPOINTED, EXISTING' MANAGEMENT IS KICKED OUT, BUT EVERYBODY ELSE GETS TO KEEP THEIR JOBS? A. CORRECT. Q. And a receiver can be appointed any time that a home is not in compliance with the conditions of its certification or license, is that correct? A. That’s correct. J.App. at 1681. Q. And you, when those concerns first surfaced, you had, at least, based on your past experience, a feeling that there were statutory or regulatory factors that you could use, is that true? A. THE UNFAIR LABOR PRACTICES. THINGS LIKE THAT. Q. How about with respect to the agencies that regulated the homes? A. Oh, definitely. Q. Sure. You knew that the agency that regulated homes like Opportunity Homes had some say in whether the home would stay open or not, is that correct? A. Oh, yes. Definitely. J.App. at 1684-85. Q. ALL RIGHT. SO AS I UNDERSTAND IT THEN, YOU TOLD EMPLOYEES AT OPPORTUNITY HOMES TO CALL VARIOUS STATE ' AGENCIES AND REGISTER CONCERNS WITH THOSE AGENCIES, IS THAT CORRECT? A. YES. WE AS A GROUP CALLED WHEN THERE WAS A PROBLEM. J.App. at 1685. A. (continuing) This is what prompts people to organize is that they have gone through the procedures at the home, talked to management, have not been able to get problems solved, and realize they don’t really have or don’t know all their rights and don’t have enough power on their own. So they contact us and we’re able through our resources, with our Research Department, our Legal Department, whatever, to educate people of their employee rights. So, in this case, when people contacted us about organizing, it was in DECEMBER OF 1991. Q. And this was Opportunity Homes? A. Yes. Q. AND THAT’S WHEN YOU STARTED YOUR EDUCATION PROCESS, EDUCATING THEM ABOUT THEIR RIGHTS? A. WHEN THEY FIRST MET WITH CAROL AND KATHY ON JANUARY 6TH, YES. Q. All right. So, as I understand it, beginning January 6th of 1992, you started educating employees of Opportunity Homes of their rights, is that correct? A. Right. Q. And the rights that you had started educating them about were, among other things, the right to raise matters of concern to various state agencies, right? A. That’s correct. Q. All right. And did you indicate to — In conjunction with this teaching and education that you gave them starting in January, you also mentioned, did you not, the prospect of the state performing inspections of whatever concerns they raised at the state. Is that correct? A. It was my understanding that the state would come in if they found the complaints to be — I don’t know what the word for it — if they warranted an inspection, if they were serious enough and endangering the residents to warrant an inspection. Q. THE STATE WOULD INVESTIGATE? A. YES. Q. AND TAKE ACTION? A. Possibly. Like with OSHA They come in if there’s imminent danger. Q. AND OTHER STATE AGENCIES COME IN AND DO INVESTIGATIONS, TOO, RIGHT? A. CORRECT. Q. AND YOU TOLD THEM THAT IN JANUARY OF’92? A. YES. J.App. 1687-89. Q. And you also discussed with them that the state looked at stuff that affected residents’ care very seriously, is that correct? A. Yes. Q. And the state would take whatever action necessary when it found problems with patient care to correct those problems, correct? A. Such as short staffing, you mean? Q. Such as anything. A. Yes. Q. The state would do what it took to correct all those problems, right? A. Correct. Q. All right. And did you also discuss with them that one of the things the state could do to correct those problems was take over the facility, if it deemed necessary? A. When the captive audience was held on April 14th, then, when Rick said that the home was going to close and the residents were going to be shipped to YDC, that’s when we started, you know, really looking into the law, saying, you know, can they close this home or can a receiver be appointed and that’s when we found out that, no, the home would not close, that a receiver would, in fact, be appointed. J.App. at 1690-91. Q. OKAY. SO PRIOR TO — IN THE PERIOD OF TIME JANUARY TO MARCH, THE EMPLOYEES OF OPPORTUNITY HOMES KNEW THAT, IF THE STATE FOUND THEIR COMPLAINTS VALID, THAT THE STATE WOULD STEP IN AND TAKE CORRECTIVE ACTION, ANYWHERE FROM ORDERING MANAGEMENT TO CORRECTING THE STUFF TO TAKING ACTION OF EVEN A MORE SEVERE NATURE, IS THAT CORRECT? A. YES.. J.App. at 1692-93. Q. LET ME ASK YOU IF THE EMPLOYEES AT .OPPORTUNITY HOMES THAT YOU MET WITH AND YOU DISCUSSED WITH THEM THIS STATUTE, OHIO REVISED CODE 5128.191, WHICH — AND I ASSUME YOU INDICATED TO THEM THAT THIS ALLOWS THE STATE TO COME IN, KICK OUT MANAGEMENT, AND LET EVERYONE ELSE KEEP THEIR JOBS, RIGHT? A. WE DIDN’T PUT IT IN TERMS OF WE’RE GOING TO KICK OUT MANAGEMENT. WE PUT IT IN TERMS OF THERE IS A PROVISION THAT WILL PREVENT THE HOME FROM CLOSING AND IT’S CALLED RECEIVERSHIP AND THE COURT MAY APPOINT A RECEIVER TO TAKE OVER THE HOME UNTIL SUCH TIME IT’S BROUGHT UP TO STANDARDS AND PUT BACK IN ITS PROPER PLACE. Q. ALL RIGHT. AND TAKING OVER THE HOME, YOU’LL AGREE WITH ME, MEANS THAT THE COURT APPOINTS NEW MANAGEMENT TO RUN THE HOME, CORRECT? A. THAT’S CORRECT. J.App. at 1694. In considering the suspension and ultimate discharge of the four LPNs, a habilitation aid, and a direct staff aid, this appellate review is confronted with the long-standing admonition of the Supreme Court in N.L.R.B. v. Local Union No. 1229, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 (1953) wherein the Court dictated that firing television technicians for distributing handbills which disparaged the employer’s product and business policies in a manner reasonably calculated to harm the employer’s business, acts far less egregious than those charged in the instant ease, constituted legitimate termination for cause. The Court ruled that “[tjhere is no more elemental cause for discharge of an employee than disloyalty to Ms employer.” Id. at 472, 74 S.Ct. at 176. (Emphasis added). “Congress, while safeguarding, in § 7 [of the National Labor Relations Act, 29 U.S.C. § 157], the right of employees to engage in ‘concerted activities for the purpose of collective bargaining or other mutual aid or protection,’ [note omitted] did not weaken the underlying contractual bonds and loyalties of employer and employee.” Id. at 473, 74 S.Ct. at 177. The Court subsequently further inferred at page 475 that “[t]he legal principle that insubordination, disobedience or disloyalty is adequate cause for discharge is plain enough.” These basic principles were echoed by the Seventh Circuit in N.L.R.B. v. Knuth Brothers, Inc., 537 F.2d 950 (7th Cir.1976) wherein employees had been discharged for disclosing confidential business information which could have harmed the employer’s business relationships: Section 7 ... does not immunize an employee from discharge for acts of disloyalty or. misconduct merely because those acts were associated with protected activity. Id. at 953. (Emphasis added). The court concluded: In revealing the information, [the employee] acted in reckless disregard of his employer’s business interests. Respondent has the right to expect its employees to use greater care in using information acquired in the course of their employment. Failure to use such care was an act of disloyalty to respondent. His avowed purpose of aiding the organizational campaign is insufficient to protect him from the effects of his misconduct and constituted cause for discharge. * * ‘Jfi * * * Section 10(c), 29 U.S.C. § 160(c), of the Act protects the employer’s right to protect its business interests and, if necessary, to discharge an employee for cause. Congress, while safeguarding in section 7 the right of employees to engage in concerted activities for the purpose of collective bargaining, did not intend to weaken the underlying contractual bonds and loyalties essential to a suitable employer-employee relationship. It was the purpose of the Act to strengthen, rather than weaken, the cooperation and cordial relationship between the employer and his employees. The power of the Act cannot be used as a pretext for infringing the employer’s rights. Id. at 956-57. (Emphasis added). Again, in N.L.R.B. v. Red Top, Inc., 455 F.2d 721 (8th Cir.1972), a case that reviewed an employee conspiracy to remove an unpopular manager, such conduct was not considered a protected activity. Id. at 725-26. The employee provided housekeeping and janitorial services to hospitals. The motivation of the employees in making various unfounded accusations against their manager to company higher-ups was to pressure him into ignoring their substandard job performance. Id. at 727. In addition, the employees threatened to complain about the employer to the management of a hospital which did business with the employer if certain demands were not met. The court ruled that this method of concerted action was not protected by 29 U.S.C. § 157 because it constituted an act of disloyalty which was clearly designed to harm the employer economically by interfering with its customer business relations. The Court concluded: On the record we cannot hold that the finding by the Board that the three employees were engaged in protected activities is supported by substantial evidence. A considerable part of the offensive activity did not fall within the perimeter of protected activity, but, assuming arguendo that the employees were engaged in protected activity, there is a point where their methods of engaging in that activity would take them outside the protection of the Act. Id. at 726. See also Squier Distributing Co. v. Local 7, Intern. Broth., 801 F.2d 238 (6th Cir.1986); Hagopian & Sons, Inc. v. N.L.R.B., 395 F.2d 947 (6th Cir.1968). Before considering the propriety of the employee suspensions and subsequent discharges against the respondent’s assertions of employee unlawful interference with the employer’s commercial interests as addressed by the Supreme Court in N.L.R.B. v. Local Union No. 1229, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 (1953) and its progeny, the union/employees’ expressed hostile animus during the initial confrontation of the parties on January 24, 1992, coupled with the union/employees’ covert plan to replace the OH officers and directors through a state-imposed receivership without jeopardizing employee job security admittedly explored by the union and its national legal council and implemented by a program of “educating” the employees to generate complaints against the respondents with various state regulatory agencies, it is significant to note that, during the approximate ten years of respondent’s existence, the irrefutable documentation that is a part of the record herein, discloses that, historically, the ODH and other state regulatory agencies considered the respondent to be a well operated and managed health care facility. Although routine regulatory annual surveys did surface 10 or 15 minor oversight infractions, ODH records appearing as exhibits in this proceeding confirmed that prior to January 24, 1992, respondent had never received a conditional citation that warranted decertification, let alone a notice of decertifi-cation anchored in three conditional citations. It is also significant to note that after the January 24, 1992 confrontation, respondent received four times as many minor oversight citations than it did in 1991 and three times the number it received in 1990; that from the 1990 ODH surveys and thereafter, all five LPNs suspended in May of 1992 and ultimately terminated in June of 1992 (the four LPNs at issue herein plus Joyce Carnes, a pro-management LPN) constituted respondent’s entire full time nursing staff. The ODH records also confirm that the seven 1990 and the twelve 1991 infractions had all been timely corrected to the satisfaction of ODH, attesting to the excellent performance record of the four LPNs here in controversy. It is also worthy of note that during the two years next preceding the disasterous April 1992 ODH survey, its records reflected no written or telephone complaints lodged against the respondent. In light of the foregoing recorded revelations conveniently ignored by the ALJ, reasonable minds are prompted to QUESTION THE REASONS FOR AND THE SOURCES of voluminous telephone complaints received by the ODH during February and March of 1992 which resulted in its premature unannounced annual survey that commenced in early April 1992, just oyer two months after the union employees “march on the boss” confrontation. The discharge of the four LPNs here in controversy may be justified without resort to an evaluation of the partisan testimony developed by the adversary.parties, but solely by nurses’ notes, med sheets, treatment sheets, shift reports, monthly BM sheets, individual residenVpatient care records, bowel/bladder schedule consensus sheets, medical charts, and medical supply inventories, all of which were memorialized in their own handwriting,, and which are beyond discrediting even by ALJ Beddow, Jr. The identified report entries, which anchor the ODH’s three conditional citations and approximately 45% of the 57 specific infractions, are directly attributable to the discharged LPNs by the ODH survey team. The greatest concern of the OH investigators was residenVpatient care imputed to a dereliction of professional performance by the LPNs. Infractions ascribed to the professional conduct of the LPNs included, but was not limited to, repeatedly ignoring physicians’ orders, repeatedly failing to notify physicians of residenVpatient deteriorating physical conditions to ensure timely required medical attention and treatment, repeated failure to monitor and timely administer and/or discontinue required medication, and failure to properly monitor and maintain res-idenVpatient daily medical records. The life-threatening consequences of the identified professional malpractice was demonstrated by the proximate circumstances that attached to the factual support of the illustrated examples of LPN conduct which was attested by recorded entries in the daily res-idenVpatient charts and the .findings and conclusions of the ODH survey. Any one of the infractions would, in and of itself, have supported discharge for cause. The individual termination notices of the discharged LPNs listed the reasons for discharge and correlated their individual participation that were correlated with entries charted in residenVpatient daily medical records. An in camera review of but a few illustrative extrapolations from the credited daily and other residenVpatient medical charts cited by the findings and conclusions of the ODH mirrored the proclivity of the discharged LPNs to pursue a course of unprofessional conduct commencing in January 1992 and continuing thereafter until their suspension and ultimate termination on June 17, 1992, that exploited and threatened the well-being of physically and mentally handicapped charges under their supervision for observation and treatment, and which contributed to the ODH notice of decertification of May 13,1992. Typical of the degree and extent of the nonfeasance charged to the four dismissed members of the nursing department, each of whom had supervisory responsibility for observation and care of a resident/patient’s “stoma,” a surgically created cavity in the bowels attached to an ileostomy bag, were ODH citations for the failure of the OH nurses to properly chart the condition. Because infection or blockage of such an incision is dangerous and can be fatal, OH policy directs that the attending nurse must immediately report any irritation, swelling, or other complication symptomology to a physician. ODH inspector Carol Kaser discovered that the resident/patient’s stoma was inflamed and had been in-that condition for a protracted period of time. The residenVpatient complained of pain. However, although the nurses’ notes disclosed that the stoma had been inflamed since January 1992, that it was bright red with granulated distended white areas during the entire month of March 1992, and that it had hemorrhaged on at least three separate days (March 12, 13, and 18, 1992), the medical records did not manifest whether the residenVpatient’s physician had been notified of the residenVpatient’s portending symptomology, or if any treatment had been requested or administered since January 1992. Because each of the nurses here in controversy had cared for this resi-denVpatient at various times during the relevant period, each had failed to discharge a critical professional job responsibility to a health-threatening degree. Professional dereliction of this magnitude standing alone justified the termination of the nurses. Another equally serious infidelity to the professional ethic of responsibility by the nurses involved their conduct concerning a physician’s order for the syringing of a particular patient. On February 5, 1992, as a result of the LPNs’ professional misfeasance, a hospital which had conducted tests upon the involved OH residenVpatient reported that the patient suffered from a toxic