Boulder City Hospital Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2010

355 N.L.R.B. 1247 (N.L.R.B. 2010)

BOULDER CITY HOSPITAL
355 NLRB No. 203
1247
Boulder City Hospital, Inc. and General Sales Driv-
ers, Delivery Drivers and Helpers and, Repre-
senting the Public Sector, Teamsters Union, Lo-
cal 14, affiliated with the International Brother-
hood of Teamsters. Case 28–CA–22283
September 30, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
On June 24, 2009, Administrative Law Judge William
G. Kocol issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a supporting brief.
Both parties filed answering briefs.
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 exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,2
except as discussed below, and to adopt the recom-
mended Order as modified.
For the reasons set forth in the judge’s decision, we af-
firm his conclusions that the Respondent violated Section
8(a)(1) of the Act by interrogating employee Kevin Dale
Slover about his union activities and, on another occa-
sion, by telling him that the Respondent’s hospital would
close if the employees selected the Union as their repre-
sentative. We also affirm the judge’s conclusion, for the
reasons he stated, that the Respondent violated Section
8(a)(3) and (1) of the Act by failing to use employee
Gregory Ostrowski as a per diem employee because of
his support for the Union. As explained below, however,
we reverse the judge’s recommended dismissal of the
allegation that the Respondent violated Section 8(a)(1)
when it posted a memo about its harassment policy.
Facts
On October 1, 2008, employee Kevin Dale Slover was
on break when Human Resources Director Carol Daven-
port asked to speak with him in her office. Davenport

1 The Respondent excepts to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance 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.
2 There are no exceptions to the judge’s findings that (1) the Re-
spondent did not violate Sec. 8(a)(1) by creating an impression among
employees that their union activities were under surveillance and (2)
that the Respondent did violate Sec. 8(a)(1) by stating that employees
who supported the Union could not work for the Hospital.
then inquired if Slover was aware of any union activity.
After Slover said, “[N]o,” Davenport said an employee
had told her that Slover solicited the employee to sign a
union card. When Davenport asked if this was true,
Slover again answered, “[N]o.” As mentioned, we agree
with the judge’s finding that Davenport’s questions
amounted to unlawful coercive interrogation.
On that same day, Environmental Services Manager
Isabel Orvis told Leslie Ann Anderson, Davenport’s as-
sistant, that two of Orvis’ employees felt that they were
being harassed by another employee (not Slover) to sign
up for the Union. Orvis explained that the employees
had been asked more than once to sign. Anderson re-
layed Orvis’ report to Davenport, who then repeated the
harassment allegations to the Respondent’s CEO, Tho-
mas E. Maher. At no point did any of the Respondent’s
officials investigate the circumstances of the union card
solicitation.
Instead, according to Davenport, she and Maher de-
cided that it would be “a good idea” to remind employees
about the Respondent’s harassment policy. Maher simi-
larly testified that Davenport told him that employees
were being pursued about the Union “over and over
again” and that a reminder about the hospital’s policy on
harassment was warranted. Later that day,3 the Respon-
dent posted the following memo by the time clocks:

Please be reminded that harassment or threatening be-
havior in any degree by or between employees will not
be tolerated at Boulder City Hospital.

We would like to remind you of our Hospital Wide
Policy 195.1 Illegal Harassment and 105.2 Dealing
with Allegations of Discrimination and/or Illegal Har-
assment.

If you feel that you are being harassed or threatened in
any way, you have the right to talk with Human Re-
sources regarding your treatment.

The written personnel handbook policy cited in the
second paragraph of the memo states that “Illegal har-
assment is a form of discrimination and is defined as any
conduct directed toward another because of that person’s
sex, race, age, national origin, color, disability, sexual
orientation, religion, ancestry, or veteran status, or any
other unlawful basis that is inappropriate or offensive as
determined by using a ‘reasonable person’ standard.”

3 Slover testified that he observed the memo about 4 hours after he
was interrogated by Davenport.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248
The handbook then provides specific examples of ille-
gal harassment4 and specifies the procedures for handling
reports of such misconduct.
Judge’s Decision
The judge dismissed the allegation that the memo post-
ing was unlawful. He noted that the memo referred to a
written harassment policy that the General Counsel
agreed was lawful. The judge reasoned that, when read
in this context, the memo “simply reminded employees
of the Hospital’s lawful rule.”
Discussion
The Board has long held that an employer’s invocation
of a “harassment policy” during a union campaign “has
the potential dual effect of encouraging employees to
report to Respondent the identity of union card solicitors
who in any way approach employees in a manner subjec-
tively offensive to the solicited employees, and of corre-
spondingly discouraging card solicitors in their protected
organizational activities.” W. F. Hall Co., 250 NLRB
803, 804 (1980), quoting Colony Printing & Labeling,
Inc., 249 NLRB 223, 225 (1980), enfd. 651 F.2d 502 (7th
Cir.1981). As the Board has explained:

It is well settled that the Act allows employees to en-
gage in persistent union solicitation even when it an-
noys or disturbs the employees who are being solicited.
To that end, an employer’s invitation to employees to
report instances of “harassment” by employees en-
gaged in union activity is violative of Section 8(a)(1).

Ryder Truck Rental, 341 NLRB 761, 761 (2004) (citations
omitted), enfd. 401 F.3d 815 (7th Cir. 2005).
In this case, the judge erred in treating an employer
memo that, under the circumstances, would reasonably
be interpreted by employees as an invitation to report
“harassment” by employees engaged in union solicitation
as no more than a restatement of a lawful written hand-
book policy, which addressed illegal harassment of an

4 The examples are:
1. Verbal conduct such as epithets, derogatory comments,
slurs, or unwanted sexual advances, invitations, or sexually de-
grading or suggestive words or comments.
. . . .
2. Visual conduct such as derogatory posters, notices, photo-
graphs, cartoons, drawings, or gestures, leering, making sexual
gestures, and displaying sexually suggestive objects or pictures.
3. Physical conduct such as unwanted touching, impeding or
blocking normal movement, or interfering with work or move-
ment.
4. Threats, . . . [or] demands to submit to sexual requests in
order to keep job . . . and offers of job benefits in return for sexual
favors.
5. Retaliation for . . . reporting, or threatening to report har-
assment.
altogether different nature and force, primarily involving
impermissible sexual behaviors. In fact, the language of
the memo is obviously not limited to the conduct prohib-
ited by the handbook policy. Posted in the midst of a
union organizing campaign, the memo informs employ-
ees that ”harassment or threatening behavior in any de-
gree by or between employees will not be tolerated” and
that they could talk to human resources if they felt “har-
assed or threatened in any way.”
We are not dealing here with a facial challenge to the
Respondent’s handbook policy, but rather with the post-
ing of the memo. That the memo referred to the hand-
book’s lawful policy did not mean that, under the cir-
cumstances surrounding the posting of the memo, em-
ployees necessarily would understand the memo’s state-
ments as referring only to harassment as defined in the
handbook. The memo itself did not repeat or reproduce
the language of the handbook. Instead, it used its own
broad, general language to describe the conduct that was
prohibited (“harassment or threatening behavior in any
degree”), and it invoked the subjective reactions of em-
ployees in inviting them to report coworkers’ conduct
(“[i]f you feel that you are being harassed or threatened
in any way”). Employees would reasonably assume that
the memo’s sweeping definitions faithfully reflected the
Respondent’s policy. It seems unlikely, in contrast, that
employees would read the memo, then retrieve the hand-
book and derive a narrower interpretation of prohibited,
reportable harassment by reading the two documents
together. In short, there is no basis for finding the memo
lawful as simply a republication or reminder of the law-
ful handbook policy. And, of course, the existence of a
lawful antiharassment policy is not a license for an em-
ployer to commit unfair labor practices in the name of
implementing that policy.5
It is true that the memo at issue here does not expressly
refer to union activity. However, the Board has held that
an employer statement prohibiting harassment that does
not explicitly restrict protected activity may still violate
Section 8(a)(1) of the Act, “dependent upon a showing of
one of the following: (1) employees would reasonably
construe the language to prohibit Section 7 activity; (2)
the rule was promulgated in response to union activity;

5 See, e.g., Blue Chip Casino, L.L.C., 341 NLRB 548, 555–556
(2004); Shearer’s Foods, Inc., 340 NLRB 1093 (2003); Whirlpool
Corp., 337 NLRB 726 (2002), enfd. 92 Fed.Appx. 224 (6th Cir. 2004).
“The Board has long held that legitimate managerial concerns to pre-
vent harassment do not justify policies that discourage the free exercise
of Section 7 rights by subjecting employees to investigation and possi-
ble discipline on the basis of the subjective reactions of others to their
protected activity.” Consolidated Diesel Co., 332 NLRB 1019, 1020
(2000) (footnote collecting cases omitted), enfd. 263 F.3d 345 (4th Cir.
2001).
BOULDER CITY HOSPITAL 1249
or (3) the rule has been applied to restrict the exercise of
Section 7 rights.” Lutheran Heritage Village-Livonia,
343 NLRB 646, 647 (2004). The memo is unlawful ap-
plying either the first or second factor. As to the first, we
find that employees such as those who had recently com-
plained about union solicitation to Supervisor Orvis
would reasonably construe the memo posting as respon-
sive to their complaints and applicable to this protected
activity. Certainly, employee Slover would reasonably
perceive a link between solicitation activity and a memo
about harassment posted on the same day management
unlawfully inquired whether he was engaged in such
activity. As to the second factor, the Respondent admits
that it posted the memo in response to union solicitation
activity. Because it did not investigate employee com-
plaints about union card solicitations, it had no reason to
believe they entailed anything more than persistent or
annoying, but still statutorily protected, conduct.6
As did the judge, our dissenting colleague reads the
Respondent’s memo as nothing more than a reiteration of
the antiharassment policy. We conclude, for the reasons
already explained, that employees would reasonably in-
terpret the memo differently, under the circumstances
present here, which feature a union organizing campaign
met by an employer’s unfair labor practices. The Re-
spondent admits that the memo was posted in response to
union activity. It went up immediately after the Respon-
dent received complaints from employees about union
solicitation and after it had unlawfully inquired about
whether employee Slover was engaged in such activity.
It is no answer, then, for the dissent to point out that the
policy predated the Union’s organizing campaign. Nor
would it be enough if the memo could reasonably be in-
terpreted as noncoercive so long as a contrary interpreta-
tion was also reasonable. In such situations, the Board
will find a violation. See, e.g., Double D. Construction
Group., 339 NLRB 303, 303–304 (2003) (“The test of
whether a statement if unlawful is whether the words
could reasonably be construed as coercive, whether or
not that is the only reasonable construction.”). At a
minimum, this memo was reasonably open to a coercive
interpretation.

6 As such, the reports differ from the conduct in the cases our dis-
senting colleague cites at fn. 1 of his dissent. Aramark Services, Inc.,
344 NLRB 549, 549–550 (2005) (employee intimidated employees by a
“hostile and angry attitude” including yelling, and poking at least one
employee); PPG Industries, 337 NLRB 1247 (2002) (employee made
“vulgar, sexually explicit remarks”); BJ’s Wholesale Club, 318 NLRB
684, 684 fn. 2 (1995) (employee repeatedly interrupted another em-
ployee during worktime); Robertshaw Controls Co., 196 NLRB 449,
453 (1972), enf. denied in part on other grounds 483 F.2d 762 (4th Cir.
1973) (employee deliberately knocked over another employee’s work).
The dissent takes issue with our application of Lu-
theran Heritage Village, supra, contending in part that
the Respondent’s memo was posted “not in response to
organizing activity, but in response to employee reports
of harassment.” But the “reports of harassment” made
clear that the “harassment” was in connection with union
solicitation and nothing in the reports would have led the
Respondent reasonably to believe that any nonprotected
conduct had occurred. We have no difficulty, then, in
concluding that the memo was a response to union activ-
ity in the sense that Lutheran Heritage Village contem-
plates.
Finally, our colleague argues that our decision places
employers in an untenable situation, by preventing them
from calling employees’ attention to a lawful antihar-
assment policy in situations where it might be of interest
to them. That implication is unwarranted, however. This
would be a different case had the Respondent’s memo
consisted only of its second sentence (“We would like to
remind you of our Hospital Wide policy.”) and had it
been posted in a context free of unfair labor practices, or
if the Respondent’s memo had acknowledged what
Board law makes clear, namely that its employees had
the statutory right to “engage in persistent union solicita-
tion even when it annoys or disturbs the employees who
are being solicited.” Ryder Truck Rental, supra, 341
NLRB at 761.
In sum, we conclude that the Respondent’s officials
equated union solicitation activity with harassment in
deciding to post the October 1 memo and that employees
reading the memo would reasonably construe its lan-
guage to prohibit protected activity. Whether viewed as
an overbroad application of the lawful written handbook
policy or as the promulgation of a new harassment pol-
icy, we conclude that the memo posting violated Section
8(a)(1) of the Act, and we shall modify the Order and
notice language accordingly to address this violation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Boulder
City Hospital, Boulder City, Nevada, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(d) and
reletter the subsequent paragraphs.
“(d) Posting a memo during a union organizing cam-
paign that employees would reasonably construe as
equating protected union card solicitation activity with
prohibited harassment and encouraging employees to
report such activity to management.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250
2. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HAYES, dissenting in part.
I agree with my colleagues in all respects except for
their finding that the Respondent violated Section 8(a)(1)
of the Act by posting a memo prior to the election re-
minding employees of its unquestionably valid “Illegal
Harassment” policy.
As often happens during union organizational cam-
paigns, certain employees in this case complained to su-
periors that they were being harassed by coworkers solic-
iting them to sign union authorization cards. In most
circumstances, such solicitation is protected concerted
activity, and an employer cannot state or imply to em-
ployees that it is proscribed harassment. However, the
protection afforded such solicitation is not absolute or
limitless; and, protected solicitation can cross over into
unprotected harassment.1 Moreover, in the modern
workplace governed by numerous individual rights laws
and darkened by an apparent increase in violent inci-
dents, an employer not only has a substantial and legiti-
mate interest in maintaining an effective nondiscrimina-
tory antiharassment policy and in making sure that all of
its employees are aware of and understand this policy, it
has a legal obligation to do so.
The Respondent here has such an antiharassment pol-
icy in its employee handbook. It is concededly valid,
addressed primarily to inappropriate sexual or physical
conduct, and there is no evidence that the policy has ever
been invoked or enforced to penalize employees for en-
gaging in any protected union activity. During the
course of the Union’s organizing campaign, two employ-
ees reported to their supervisor that they were being
“harassed” by another employee who was trying to con-
vince them to support the Union. Those reports were
relayed to higher-management officials who determined,
as the judge found, that it would be appropriate “to re-
mind employees of the Hospital’s harassment policy.”
That is exactly what the Respondent then did, posting a
memo that stated in full:

1 E.g., Aramark Services, Inc., 344 NLRB 549, 549–550 (2005) (ar-
bitrator’s upholding discharge of employee for harassing other employ-
ees was not clearly repugnant to the Act where the employee intimi-
dated employees into signing a union-related petition by displaying a
“hostile and angry attitude” including yelling, and poking at least one
employee); PPG Industries, 337 NLRB 1247 (2002) (respondent law-
fully disciplined male employee for sexual harassment of a female
employee while soliciting authorization cards); BJ’s Wholesale Club,
318 NLRB 684, 684 fn. 2 (1995) (employer lawfully warned employee
for harassing another employee while soliciting authorization card
during her work time); Robertshaw Controls Co., 196 NLRB 449, 453
(1972) (employee was lawfully disciplined for harassment while solicit-
ing).
Please be reminded that harassment or threatening be-
havior in any degree by or between employees will not
be tolerated at Boulder City Hospital.

We would like to remind you of our Hospital Wide
policy 105.1 Illegal Harassment and 105.2 Dealing
with Allegations of Discrimination and/or Illegal Har-
assment.

If you feel like you are being harassed or threatened in
any way, you have the right to talk with Human Re-
sources regarding your treatment. [Emphasis added.]

The majority asserts that “there is no basis for finding
the memo lawful as simply a republication or reminder
of the lawful handbook policy.” This, despite the facts
that: (1) the memo expressly states that is precisely what
the Respondent was doing; (2) the memo specifically
references the lawful policy, which, in turn, defines pro-
hibited “harassment” and describes the “threats” and
other behavior subject to the policy; (3) the memo makes
no reference to card solicitation activity, union activity in
general, or complaints about such activity; (4) there is
not a shred of evidence that the policy was enforced in-
consistently with its lawful terms to restrict in any way
protected concerted activities; and (5) the judge found
that “[r]ead in context, the posted memo simply re-
minded employees of the Hospital’s lawful rule.” A
sounder “basis” for the judge’s conclusion is difficult to
imagine.
My colleagues nonetheless contend that the memo
would be perceived by employees as a broader prohibi-
tion—in effect a new rule implicating protected union
activity—simply because (1) it did not recite verbatim
the language of the lawful antiharassment policy; (2) it
used zero tolerance phrases (“in any way” and “in any
degree”); and (3) it informed employees that they have
the right to talk with human resources if they perceive
themselves to be harassed, a “subjective” component the
majority deems inconsistent with the underlying policy.
As to the first point, the memo expressly refers to the
handbook where the verbatim language of the policy can
be found, rather than attempting a paraphrastic summary
that might be misconstrued. As to the second point, the
zero tolerance language is a description of how the valid
Illegal Harassment policy is to be enforced, not an ex-
pansion of the definition of conduct that is considered to
be harassment. As to the third point, exactly how else is
BOULDER CITY HOSPITAL 1251
an employer to clarify for an employee who feels subjec-
tively harassed, either as the result of union card solicita-
tions or Girl Scout cookie solicitations, that the conduct
complained of does or does not meet the objective har-
assment standard set forth in the handbook policy? For
some employees, just reading the handbook will not an-
swer their concern. Moreover, the memo’s reference to
right to speak with human resources in no way suggests
that employees’ individual subjective perceptions, rather
than the objective terms of the policy, will define the
scope of impermissible conduct subject to sanction.
The majority refers to external circumstances that al-
legedly would reinforce a reasonable objective belief that
the memo posting equated union solicitation activity with
harassment. First, there is the situation of the two em-
ployees whose complaint about a card solicitor undisput-
edly led to the posting. Their complaints were not inves-
tigated. There is no evidence that any of the Respon-
dent’s officials told them the repetitive solicitation was
proscribed harassment, or that any official spoke to,
much less took action against the card solicitor. Even
assuming the complainants correctly divined that the
memo posting was in response to their expressed con-
cerns, all the memo told them was to read the handbook
policy or to speak with human resources. The situation
of employee Kevin Dale Slover was no different. He
was unlawfully interrogated about whether he had en-
gaged in card solicitation. He was not told that he could
not solicit or that he would be violating the illegal har-
assment policy if he did. Assuming Slover regarded the
memo posting shortly after this interrogation as a re-
sponse to his solicitation activity, he, like the two co-
workers of an opposing mind on the issue of union repre-
sentation, was told nothing more than that the handbook
policy defined what was harassment and that anyone
feeling harassed could talk to human resources. Not hav-
ing himself been warned for harassment after admitting
his solicitation activity, there is no objective basis for
finding that he would reasonably believe that the memo
posting was a covert attempt to chill this activity.
Contrary to the majority, that analysis of employer
rules set forth in Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004), does not support finding a violation.
The Board in Lutheran Heritage explained that the first
question is whether, given a reasonable reading, in con-
text, the rule explicitly restricts activity protected by Sec-
tion 7. See Lutheran Heritage, supra, 343 NLRB at 646.
In this case, the majority concedes that neither the memo
nor the Illegal Harassment policy contains an explicit
restriction of protected activity.
If the rule does not explicitly restrict Section 7 activity,
“the violation is dependent upon a showing of one of the
following: (1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) the rule was
promulgated in response to union activity; or (3) the rule
has been applied to restrict the exercise of Section 7
rights.” Id. at 647. The majority erroneously asserts that
the Respondent’s memo is unlawful under the first and
second prongs. As discussed above, employees would
not reasonably read the memo to prohibit Section 7 activ-
ity. Similarly, the majority’s conclusion that the rule at
issue in this case was promulgated in response to union
activity turns on their mistaken view that the memo
represents a new rule, rather than a reminder of the valid
Illegal Harassment policy promulgated long before any
union appeared on the scene. In any event, the Respon-
dent reminded the employees of the existence of the pol-
icy not in response to organizing activity, but in response
to employee reports of harassment. Absent any indica-
tion that the Respondent would not have taken the same
action in response to reports of harassment by solicita-
tions unrelated to protected activity, there is no warrant
for inferring unlawful purpose in the posting. Thus, no
violation should be found under a Lutheran Heritage
analysis.
Ultimately, the single circumstance of real conse-
quence to the majority is that the memo was posted dur-
ing an organizational campaign in response to complaints
about union solicitation. I readily agree that the Board
should be alert to employers’ attempts to deter such ac-
tivity in the guise of encouraging employees to report ill-
defined harassment. On the other hand, the Board must
be cognizant of employers’ substantial and legitimate
interest in maintaining and communicating a valid anti-
harassment policy.2 There cannot be a per se or reflexive
position that any reminder of such a policy, when trig-
gered by complaints about union solicitation, is unlawful.
Particularly when neither the reminder nor the policy to
which it refers does not even mention union activity, a
posting such as the Respondent’s can just as easily serve
to inform employees that most, but not all, card solicita-
tion is protected conduct that must be tolerated even if
unwanted.
In sum, I would affirm the judge’s finding that the
memo posting was a lawful reminder of a lawful rule and
I dissent from my colleagues’ failure to do so.

2 I note that the majority relies in part on W. F. Hall Printing Co.,
250 NLRB 803 (1980). That case is readily distinguishable. The em-
ployer there, having no harassment policy, sent a letter to employees
directly asking them to refuse to sign union authorization cards and to
report to their foremen if any employee tried to “harass you or try to
pressure you into signing a card.” Moreover, W. F. Hall Printing pre-
dates not only Lutheran Heritage but also all of the important Supreme
Court jurisprudence establishing the existing legal framework for hos-
tile work environment and sexual harassment claims.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT coercively question you about your un-
ion support or activities.
WE WILL NOT tell employees that the Hospital might
close if employees selected the General Sales Drivers,
Delivery Drivers and Helpers and Representing the Pub-
lic Sector, Teamsters Union, Local 14, affiliated with the
International Brotherhood of Teamsters as their collec-
tive-bargaining representative.
WE WILL NOT say that employees who supported the
Union could not work for the Hospital.
WE WILL NOT post a memo during a union organizing
campaign that employees would reasonably construe as
equating protected union card solicitation activity with
prohibited harassment and encouraging employees to
report such activity to management.
WE WILL NOT deny work opportunities to employees
because they supported the Union, or any other labor
organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make Gregory Ostrowski whole for any loss
of earnings as a result of the discrimination against him,
plus interest.

BOULDER CITY HOSPITAL, INC.

Stephen E. Wamser, Esq., for the General Counsel.
James T. Winkler, Esq. (Littler Mendelson, P.C.), of Las Vegas,
Nevada, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Las Vegas, Nevada, on May 12, 2009. The original
charge was filed on December 17, 2008,1 by the General Sales
Drivers, Delivery Drivers and Helpers and Representing the
Public Sector, Teamsters Union, Local 14, affiliated with the
International Brotherhood of Teamsters (the Union) and the
complaint was issued February 27, 2009. The complaint as
amended at the hearing alleges that Boulder City Hospital, Inc.
(the Hospital) violated Section 8(a)(1) by interrogating employ-
ees about their activities and support for the Union, creating an
impression among employees that their union activities were
under surveillance, threatening employees by informing them
that work opportunities were not available because of their
union activities, threatening employees that it would close its
facility if the employees selected the Union, and by maintaining
and enforcing a rule that encourages employee to report har-
assment. The complaint also alleges that the Hospital violated
Section 8(a)(3) and (1) by promulgating and enforcing the
antiharassment rule, refusing to provide Greg Ostrowski with
work opportunities and by removing Ostrowski from the De-
cember work schedule. The Hospital filed a timely answer that
denied that it had violated the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Hospital,2 I make the follow-
ing.
FINDINGS OF FACT
I. JURISDICTION
The Hospital, a corporation, provides inpatient and outpa-
tient medical care at its facility in Boulder City, Nevada, where
it annually derives gross revenues in excess of $250,000 and
purchased and received goods valued in excess of $50,000
directly from points located outside the State of Nevada. The
Hospital admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Thomas E. Maher is the Hospital’s chief executive officer
and Carol Davenport works as its human resources director.
Andre Pastian is the Hospital’s acute care manager; her duties
include the staffing and scheduling of nurses working in the
emergency room. Gregory Frances Ostrowski, the alleged
discriminatee in this case, worked as a registered nurse in the
emergency room for the Hospital; he began working for the
Hospital in July 2003. In late 2008, the regular schedule pro-
vided for a registered nurse to work in the emergency room 7
a.m. to 7 p.m. and from 7 p.m. to 7 a.m. and a certified nurses
assistant to work from 10 a.m. to 10:30 p.m. During that time
period Pastian allowed the nurses to schedule themselves so
long as the time periods described above were covered. The
Hospital does not employ part-time nurses, but it does employ

1 All dates are in 2008, unless otherwise indicated.
2 The General Counsel’s brief was especially useful in assisting me
to resolve issues of credibility.
BOULDER CITY HOSPITAL 1253
per diem nurses. The Hospital defines per diem employees as
employees who work as needed and who do not have guaran-
teed shifts or hours. Although per diem employees generally
receive a higher wage rate than full-time employees, they do
not receive any benefits that full-time employees receive. A list
of per diem employees used by the Hospital is posted for em-
ployees to use when filling out the schedule.
The Union began an effort to organize certain employees at
the Hospital and Ostrowski played a leading role in that effort.
Kevin Dale Slover works for the Hospital as a registered nurse
in the emergency room; he has worked for the Hospital since
2004. Ostrowski and Slover signed authorization cards for the
Union in May. Thereafter, while at work Slover and Ostrowski
solicited employees to sign the Union’s authorization cards.
The Hospital has a personnel policies and procedures hand-
book. Section 105.1 of the handbook is entitled “Illegal Har-
assment” and states:

Illegal harassment is considered a form of discrimination and
is defined as any conduct directed toward another because of
that person’s sex, race, age, national origin, color, disability,
sexual orientation, religion, ancestry, or veteran status, or any
other unlawful basis that is inappropriate or offensive as de-
termined by using a “reasonable person” standard. The “rea-
sonable person” standard considers whether a reasonable per-
son would find the behavior or conduct in question offensive.

The handbook then gives the following examples of illegal
harassment:

1. Verbal conduct such as epithets, derogatory com-
ments, slurs, or unwanted sexual advances, invitations, or
sexually degrading or suggestive words or comments.

. . . .

2. Visual conduct such as derogatory posters, notices,
photographs, cartoons, drawings, or gestures, leering,
making sexual gestures, and displaying sexually sugges-
tive objects or pictures.

. . . .

3. Physical conduct such as unwanted touching, im-
peding or blocking normal movement, or interfering with
work or movement.
4. Threats, either overt or veiled . . . in return for sex-
ual favors.
5. Retaliation for . . . reporting, or threatening to report
harassment.

The handbook also describes the process for handling reports of
illegal harassment. The General Counsel does not contend that
this rule in unlawful. He does contend, however, that the Hos-
pital violated the Act when, as described below, it reminded
employees of this rule.
On about October 1, Isabel Orvis, environmental services
manager, told Leslie Ann Anderson, Davenport’s assistant, that
her employees Edwin Reynoso and Judith Herridia were being
harassed by another employee, Silvia Zavalas, who was trying
to get them to sign up for the Union. Orvis told Anderson that
the employees had been asked more than once to sign up for the
Union. Anderson then reported this to Davenport. Davenport
in turn advised Maher of this matter and they decided to remind
employees of the Hospital’s harassment policy. So on October
1 the Hospital posted the following memorandum to employees
near the timeclocks:

Please be reminded that harassment or threatening behavior in
any degree by or between employees will not be tolerated at
Boulder City Hospital. We would like to remind you of our
Hospital Wide policy 105.1 Illegal Harassment and 105.2
Dealing with Allegations of Discrimination and/or Illegal
Harassment. If you feel like you are being harassed or threat-
ened in any way, you have the right to talk with Human Re-
sources regarding your treatment.

On about October 1 as Slover was walking to the break room
to get a glass of tea, Davenport noticed him and said that she
needed to talk to him. They went into Davenport’s office
where Davenport asked Slover if he was aware of any union
activity. Slover told her no, he was not aware of any union
activity. Davenport then said that an employee had informed
her that Slover had approached the employee on the job to sign
a union card; Davenport asked if this was true. Slover an-
swered no, that he had no knowledge of that. Davenport said
that Slover was a supervisor and would not be protected under
any union activity and he could be subject to termination if he
continued and the Hospital was to find out. At the time of this
conversation Slover had not let the Hospital know of his sup-
port for the Union. These facts are based on Slover’s testi-
mony. His demeanor impressed me as someone who was accu-
rately relating what was said. I also note that Slover was still
employed by the Hospital and had been employed there for
several years. In its brief the Hospital challenges Slover’s
credibility; it argues:

It should also be noted that Slover has taken a different role in
the union campaign than other employees. In addition to be-
ing one of the main union organizers, he specifically gave
permission to a reporter to have his name publicized in a
newspaper article about the union campaign at Respondent.
. . . Slover has his ego involved in this case. He wants very
much to discredit Respondent as much as possible.

Of course, the Act protects an employee’s right to publicly
support a union. Rather than undermining Slover’s credibility,
the Hospital’s argument in this regard shows that Slover’s exer-
cise of his Section 7 rights has rubbed the Hospital the wrong
way. I conclude that Slover’s testimony is credible.
On October 12 Ostrowski informed Debra Balido, chief
nursing officer for the Hospital, that:

Effective this date I am requesting my status be changed to
part-time. I truly enjoy my position at Boulder City Hospital
and my relationships with my co-workers. This decision in
no way reflects of my job satisfaction, but is entirely based on
family living arrangements, career advancement, and salary. I
would like to be scheduled one shift per week. My last full-
time scheduled date available will be October 31.

On October 16 the Hospital reclassified Ostrowski as a per
diem employee effective October 31.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
Balido informed Maher of Ostrowski’s letter of resignation.
During the course of that conversation Maher told Balido that
he did not want Ostrowski to work as a per diem because Os-
trowski was one of the people who spearheaded the Union. As
Balido and Pastian each admitted, Balido then told Pastian that
Maher did not want the Hospital to use Ostrowski as a per diem
because of Ostrowski’s union activity. Pastian admitted that
she told Martha Howard, the employee who was responsible for
monitoring the scheduling of nurses in the emergency room,
that Maher did not want Ostrowski used as a per diem because
of his union activities.
Regina Dawn Archuleta has worked as a licensed practical
nurse since July 2006; most recently she has worked in the
emergency room. An occasion arose in early November when
the Hospital was looking to find a nurse to fill a vacancy in the
schedule. Archuleta suggested to Pastian that she call Os-
trowski to fill the vacancy, but Pastian replied that she could
not do so because Maher did not want Ostrowski in the building
because Maher thought Ostrowski spearheaded the Union.
These facts are based on Archuleta’s testimony; I conclude she
was credible witness for reasons similar to my assessment of
Slover’s testimony. Moreover, the Hospital’s witnesses have
admitted that Maher in fact told his subordinates that he did not
want Ostrowski working as a per diem because Ostrowski sup-
ported the Union.
Meanwhile, the Hospital hired Elaine Troyer to fill Os-
trowski’s full-time position; Troyer went through an orientation
period in November. On November 10, Pastian posted new
rules for scheduling in the emergency room that contained the
following:

Also, as I hire new staff to replace those that have left, the
new full time employee will be working the shifts left open by
the employee leaving, having priority over a per diem staff
member, please remember that per diem means “as needed.”

Ostrowski had normally worked on Mondays and Tuesdays;
thus, Pastian intended that Troyer would normally work Mon-
days and Tuesdays.
On about November 11, Pastian was looking at the schedules
when Slover asked what Pastian was doing. Pastian answered
that Maher had informed her that Ostrowski was probably the
employee behind the Union and that they needed to get Os-
trowski off of the schedule. Pastian also told Slover that if the
Union came in the Hospital might have to close. These facts
are again based on Slover’s testimony. Pastian denied that she
ever told an employee that the Hospital might close if the union
came in. However, Pastian did testify that the Hospital took the
position that it might have to close if it did not receive the addi-
tional funding it believed it needed; the funding was the subject
of a referendum that was rejected by the voters at the Novem-
ber 4 election. I conclude it would have been an easy leap for
Pastian to assert that union activity might also cause the Hospi-
tal to close.
Ostrowski worked as a per diem for the Hospital on Novem-
ber 24. When Davenport told Balido that Ostrowski had
worked; Balido reminded Pastian that Maher preferred that the
Hospital not use Ostrowski as a per diem. Meanwhile, in early
November the Hospital began the process for the registered
nurses to schedule themselves to work during December by
posting a blank schedule. Ostrowski’s name had been added to
the list of per diems, described above, that is posted near the
schedule. At some point as the process was running its course
Martha Howard, a registered nurse, wrote Ostrowski’s name on
the schedule to work all five Mondays that December. How-
ever, Pastian revised that schedule by eliminating Ostrowski
from the schedule and replacing him with Troyer, the registered
nurse the Hospital had hired to replace Ostrowski. Pastian also
removed Minnie Small, who was scheduled to work Tuesdays,
from the December schedule and replaced her too with Troyer;
Small was known by Pastian as being antiunion.
Maher testified that even if he had not made the comments
about not wanting Ostrowski to work as a per diem because of
Ostrowski’s union activities he still will not have wanted the
Hospital to use Ostrowski based on other reasons. Suffice it to
say that I find that testimony not credible. Pastian testified that
Ostrowski’s union activity did not have “any bearing” on the
schedule changes, but in light of the evidence described above I
find this entirely incredible; I credit her testimony only when it
is supported by other objective, uncontested facts. However,
Pastian also testified that she removed Ostrowski and Small
from the December schedule because she had hired Troyer to
replace Ostrowski, Troyer completed her orientation in No-
vember and Pastian placed Troyer in the holes in the schedule
left by Ostrowski’s departure. For reasons explained in more
detail below, I find this testimony to be convincing.
On February 9, 2009, after the Hospital received the charge
alleging that it had made a threat to close the facility if the em-
ployees selected a union, Maher sent the following letter to
employees:

In my recent letter to you concerning the union cam-
paign I noted that an NLRB charge against the Hospital
had been filed by the union. I promised to keep you ap-
prised of the NLRB’s investigation of the charge. At this
point the union has presented evidence and the NLRB has
requested our response. We have scheduled a meeting
with the NLRB and will be presenting our evidence very
soon. I also told you that we would do every thing we
could to ensure that our message to you in this campaign is
presented in a lawful manner. There are a multitude of
technical rules as to what a company can or cannot do in a
campaign, and we are striving to comply with not only the
letter of these technical rules, but the spirit of the law as
well.
There is one allegation that I would like to address
right now. There is an allegation that one supervisor told
one employee that management said that the Hospital
would close if the employees voted for the union. This is
absolutely not true. I want to ensure [sic] you that if the
employees vote for the union that the Hospital will not
close because employees chose to have union representa-
tion. If the union should win the election, we would have
an obligation to bargain with the union in good faith,
which we would do.
I will be meeting with you in this campaign to describe
the bargaining process, so that you can make an educated
BOULDER CITY HOSPITAL 1255
decision on whether you want to have union representa-
tion. In the meantime, please be assured that we respect
the rights of employees under the National Labor Rela-
tions Act, to engage in union activity, and to refrain from
engaging in union activity, and we will never take any ac-
tion against any employee for exercising their rights under
the law.

Thereafter, at meetings the Hospital held with employees to
discuss the Union, Maher repeated that the threats that the Hos-
pital would close were not true.
Also after the Union filed the charge alleging that the Hospi-
tal unlawfully failed to employ Ostrowski, upon advice of
counsel, Maher instructed his subordinates that they could use
Ostrowski as a per diem. In March 2009, the Hospital began
using Ostrowski as a per diem in its emergency room.
B. Analysis
1. The 8(a)(1) allegations
The complaint alleges that the Hospital, through Davenport,
unlawfully interrogated an employee and created the impres-
sion of surveillance. I have described above how Davenport
summoned Slover into her office and asked Slover if he was
aware of any union activity. Slover told her no, he was not
aware of any union activity. Davenport then said that an em-
ployee had informed her that Slover had approached the em-
ployee on the job to sign a union card; Davenport asked if this
was true. Slover answered no, that he had no knowledge of
that. At the time of this conversation Slover had not let the
Hospital know of his support for the Union. I apply Rossmore
House, 269 NLRB 1176 (1984), enfd. sub nom. HERE Local
11 v. NLRB, 760 F.2d 1006 (1985), and examine all relevant
factors to determine whether the questions Davenport asked
Slover concerning union activity were coercive. I note that
questioning occurred in Davenport’s office as opposed to on the
work floor. Davenport was a high-ranking managerial official
of the Hospital and not Slover’s first-line supervisor. Impor-
tantly, at that time Slover had not openly proclaimed his sup-
port for the Union to the Hospital, and he felt the need to deny
the fact that he had engaged in his lawful activity in support of
the Union. Finally, Davenport was somewhat persistent in her
interrogation. All these factors lead me to conclude the Hospi-
tal violated Section 8(a)(1) by coercively questioning an em-
ployee about his union activities. The General Counsel points
Davenport’s remark to Slover that an employee had told her
that Slover had attempted to get that employee to sign a card
for the Union; the General Counsel argues that this gave Slover
the impression that his union activities were under surveillance
by the Hospital. I disagree. Davenport’s remark made clear
that her knowledge of Slover’s union activities came not from
the Hospital’s surveillance but instead from a report by another
employee. Bridgestone Firestone South Carolina, 350 NLRB
526, 527 (2007), cited by the General Counsel, supports my
dismissal of this allegation of the complaint.
Next, the complaint alleges that the posting described above
concerning illegal harassment was unlawful because it was
done to discourage employees from assisting the Union and to
encourage employees to report the union activities of other
employees. In support of this allegation the General Counsel
cites Lutheran Heritage Village-Livonia, 343 NLRB 646, 647
(2004), and W. F. Hall Printing Co., 250 NLRB 803, 804
(1980). The problem with rules that urge or require employees
to report “harassment” is that it may open the door for employ-
ees to report activity that they subjectively feel is unwelcome or
unwanted but objectively constitutes activity protected by the
Act. Put differently, the Board recognizes that the give-and-
take among employees in a union organizing campaign may
discomfort some employees but is nonetheless protected in
order to assure robust persuasive efforts. The difficulty with
the General Counsel’s argument in this case is that he agrees
that the harassment rule as detailed in full in the Hospital’s
handbook is lawful. The posted memo referred employees to
that lawful rule. Read in context, the posted memo simply
reminded employees of the Hospital’s lawful rule. The General
Counsel argues that the timing of the posting and Davenport’s
interrogation of Slover supports an inference that the posting
was directed at Slover’s union activity. I decline to make this
inference; instead I conclude that the report made by Orvis to
Anderson lead to the posting. The General Counsel argues that
by failing to investigate the allegations of harassment the Hos-
pital:

[E]ffectively categorized any union activities, including ask-
ing an employee to sign a union authorization, as harassment
since Respondent left it up to solicited employees or those
employees’ supervisor to determine what was “subjectively
offensive” to them.

But by referring to the handbook rule the posting made no such
invitation to employees, regardless of the Hospital’s possible
subjective hopes. I dismiss this allegation of the complaint.
I have described above how on about November 11 Pastian
told Slover that the Hospital might have to close if the Union
came in. This statement clearly is unlawful. Homer D. Bron-
son Co., 349 NLRB 512, 514 (2007). Under Passavant Memo-
rial Area Hospital, 237 NLRB 138 (1978), an employer may
obviate the need for a remedy for unlawful conduct under cer-
tain circumstances. Here, Maher informed employees by letter
that the Hospital would not close if the employees selected the
Union. But as the General Counsel points out, Maher’s repu-
diation of the threat was not timely inasmuch as it came about
three months after the threat was made. Moreover, the repudia-
tion came in the context of other continuing unfair labor prac-
tices. I agree with the General Counsel’s observation in his
brief that:

Moreover, the letter did not address the admitted denial of
work opportunities to Ostrowski because of his Union activi-
ties. In this regard, Maher’s assurance in the letter that “we
will never take any action against employees for exercising
their rights [under the Act]” when Maher’s own directive
caused this denial is sophistry at its worst.

By telling employees that it might close if employees selected
the Union as their collective-bargaining representative the Hos-
pital violated Section 8(a)(1).
Finally, the complaint alleges that the Hospital unlawfully
threatened employees by telling them that that work opportuni-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256
ties were not available to them because of their union activities
and support. I have described how on several occasions the
Hospital told employees that Maher did not want Ostrowski to
work as a per diem because of his support for the Union.
Shelby Memorial Home, 305 NLRB 910, 919 (1991), cited by
the General Counsel, is directly on point. I conclude that the
Hospital violated Section 8(a)(1) by stating that employees who
supported the Union could not work for the Hospital.
2. The 8(a)(3) allegations
The complaint alleges that the Hospital removed Ostrowski
from working all five Mondays in the December schedule be-
cause he supported the Union. I apply Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation
Management, 462 U.S. 393 (1983). Ostrowski supported the
Union; the Hospital knew this and demonstrated its animus to
this lawful activity. The statements made by Maher and other
directly admit that the Hospital did not want Ostrowski to work
as a per diem because of his support for the Union. I conclude
that the General Counsel satisfied his burden of proof under
Wright Line. I turn now to decide whether the Hospital has met
it burden of proof by showing that it would have removed Os-
trowski from the December schedule even if he had not sup-
ported the Union. In this regard the evidence shows that after
Ostrowski resigned from his full-time position and after the
Hospital hired Troyer as his replacement the Hospital simply
inserted Troyer in Ostrowski former full-time slot in the sched-
ule. It appears that if Ostrowski and Small had not been re-
moved from the December schedule Troyer, who had just com-
pleted orientation, either would not work in December or would
do so at the expense of the Hospital’s remaining full-time
nurses in the emergency room. The General Counsel does not
answer the argument concerning why the Hospital would hire
Troyer to replace Ostrowski, put Troyer through orientation
during November but then let a per diem employee such as
Ostrowski work instead of Troyer. I conclude that the Hospital
has shown that Troyer would have worked in Ostrowski’s for-
mer slot in the December schedule even if Ostrowski had not
supported the Union. I therefore dismiss this allegation of the
complaint.
I now turn to the allegation in the complaint that the Hospital
failed to employ Ostrowski as a per diem from early November
to March 2009. The same evidence described above satisfies
the General Counsel initial burden under Wright Line. The
Hospital argues that the General Counsel has not shown that
there was work available for Ostrowski as a per diem after he
resigned as a full-time employee. But as the General Counsel
points out, Ostrowski worked as a per diem in November, be-
fore Maher’s directive took full effect, and then worked again
beginning in March, after Maher rescinded his directive. More-
over, there is undisputed documentary evidence that during the
November to March period of time the Hospital in fact used
other per diems on a number of occasions. The Hospital also
points out that Balido called Ostrowski in the first week of
January but Ostrowski did not respond to that call. But this
evidence does not show that Ostrowski would not have been
available for work as a per diem on other occasions. I conclude
that the Hospital violated Section 8(a)(3) and (1) by failing to
use Ostrowski as a per diem employee from early November
2008 to March 2009 because Ostrowski supported the Union.
The number of occasions that the Hospital would have used
Ostrowski during that period of time is, of course, left for reso-
lution during the compliance phase of this case The number
shall take into account not only the availability at the Hospital
of per diem slots but Ostrowski’s changing availability to fill
those slots.
CONCLUSIONS OF LAW
1. Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act by:
(a) Coercively questioning an employee about his union ac-
tivities.
(b) Telling employees that the Hospital might close if em-
ployees selected the Union as their collective-bargaining repre-
sentative.
(c) Stating that employees who supported the Union could
not work for the Hospital.
2. Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(3) and (1) and
Section 2(6) and (7) of the Act by failing to use Ostrowski as a
per diem employee from early November 2008 to March 2009
because Ostrowski supported the Union.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Having found that the Respondent
unlawfully failed to use Ostrowski as a per diem employee
from early November 2008 to March 2009 I shall require that it
make Ostrowski whole for any loss of earnings, plus interest as
set forth in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.3
ORDER
The Respondent, Boulder City Hospital, Inc., Boulder City,
Nevada, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union sup-
port or union activities.
(b) Telling employees that the Hospital might close if em-
ployees selected the Union as their collective-bargaining repre-
sentative.
(c) Stating that employees who supported the Union could
not work for the Hospital.
(d) Denying employment opportunities to employees be-
cause they supported the General Sales Drivers, Delivery Driv-

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
BOULDER CITY HOSPITAL 1257
ers and Helpers and Representing the Public Sector, Teamsters
Union, Local 14, affiliated with the International Brotherhood
of Teamsters or any other labor organization.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make Gregory Ostrowski whole for any loss of earnings
suffered as a result of the discrimination against him in the
manner set forth in the remedy section of the decision.
(b) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Within 14 days after service by the Region, post at its fa-
cility in Boulder City, Nevada, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
by the Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since October 1,
2008.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”