GOOD SAMARITAN MEDICAL CENTER

National Labor Relations Board - Board Decisions

Dec 16, 2014

361 N.L.R.B. 1294 (N.L.R.B. 2014)

1294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Good Samaritan Medical Center and Camille A. Leg-
ley, Jr.

1199 SEIU United Healthcare Workers East Camille
A. Legley, Jr. Cases 01–CA–082367 and 01–CB–
082365
December 16, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON, AND SCHIFFER
On August 8, 2013, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent Employer, Good Samaritan Medical Center,
and the Respondent Union, 1199SEIU United Healthcare
Workers East, each filed exceptions and a supporting
brief. The General Counsel filed limited exceptions and
a supporting brief as well as a brief in partial support of
the judge’s decision. The Union filed an answering
brief.1
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,2 and conclusions as
modified below and to adopt the recommended Order as
modified3 and set forth in full below.
The judge found, and no party disputes, that Charging
Party Camille A. Legley, Jr. engaged in activity protect-
ed under Section 7 of the National Labor Relations Act
when, during an orientation session for new employees,
1 In its answering brief, the Union asks the Board to strike or to dis-
regard those portions of the General Counsel’s brief in partial support
of the judge’s decision that argue for or assume a contrary conclusion.
To the extent that portions of the General Counsel’s brief in partial
support of the judge’s decision contain arguments beyond the scope of
the General Counsel’s limited exceptions or that contradict the judge’s
decision, we have disregarded those arguments.
2 There are no exceptions to the judge’s dismissal of allegations that
the Union violated the Act when union delegate Darlene Lavigne in-
sisted that employees had to join the Union and that union delegate
Neal Nicholaides threatened Charging Party Camille Legley on De-
cember 20, 2011.
The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and in accordance with our deci-
sions in Excel Container, Inc., 325 NLRB 17 (1997), Ishikawa Gasket
America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir.
2004), and Don Tortillas, LLC d/b/a Tortillas Don Chavas, 361 NLRB
101 (2014). We shall substitute new notices to conform to the modified
Order and in accordance with Durham School Services, 360 NLRB 694
(2014).
he challenged union delegate Darlene Lavigne’s asser-
tion that employees were required to join the Union. The
judge further found that Legley’s purported misconduct
at the orientation session did not cost him the Act’s pro-
tection. The judge concluded that the Union violated
Section 8(b)(1)(A) and (2) of the Act by causing Leg-
ley’s discharge, that the Employer violated Section
8(a)(3) and (1) when it discharged Legley, and that the
Employer violated Section 8(a)(1) by maintaining its
workplace civility policy. We agree with these findings
and conclusions, but only for the reasons set forth be-
low.4
I. FACTS
On November 28, 2011,5 the Employer offered Legley
a job as a part-time boiler operator working Friday and
Saturday nights. He was told to come in on December 5
to take a physical examination and fill out paperwork,
and to report on December 19. On December 5, Legley
met with Jen Patnaude, the Employer’s human resources
manager, and three other individuals. All found Legley
difficult, and Patnaude voiced her concern to Facilities
Manager Sean Brennan. Brennan replied that he wanted
to give Legley the job because the shift was hard to staff
and Legley had interviewed well. The job offer was not
retracted.
On December 19, Legley and other new hires attended
an orientation session, where the first order of business
was a presentation by union delegate Darlene Lavigne.
In the course of her remarks, Lavigne told the new em-
ployees that the Employer was a union shop where union
membership was required. Legley raised his hand and
said that it was his understanding that the law prohibited
a union from requiring membership. Lavigne replied
that Legley had to join the Union to work at the Employ-
er. Later, Legley pointed out to Lavigne a statement in
the Union’s literature that an employee does not have to
become a member but may become an agency fee payer
instead. The judge found that, at most, Legley raised his
voice when he said he did not have to become a union
member. Nonetheless, Lavigne became upset and re-
peated that Legley had to become a member. She then
asked Legley his name and department and told him that
“she knew the people who worked down there and she
4 The judge applied the framework articulated in Atlantic Steel Co.,
245 NLRB 814 (1979), to find that Legley’s purported misconduct at
the orientation session did not cost him the Act’s protection. We agree
that Legley retained the protection of the Act, but we need not pass on
whether the Atlantic Steel framework is applicable here.
For the reasons stated by the judge, we adopt his finding that the Un-
ion violated Sec. 8(b)(1)(A) of the Act by threatening Legley with
unspecified reprisals because of his protected activity.
5 Unless otherwise indicated, all dates refer to 2011.
361 NLRB No. 145

GOOD SAMARITAN MEDICAL CENTER 1295
was going to warn them that he was coming and that they
would not put up with him.”
After orientation, Lavigne reported what Legley had
said to MaryEllen Leveille, the Union’s lead administra-
tive organizer for the Steward Healthcare system, of
which the Employer is a part, and said that Legley was
mean to her. Lavigne then called Neal Nicholaides, a
union delegate at the Employer,6 and related her experi-
ence with Legley, including the fact that Legley had as-
serted that he did not have to become a union member.
Nicholaides mentioned the Employer’s code of conduct;
specifically, the two discussed that it was strange that a
new employee would break the code of conduct on his
first day of work. Nicholaides reported the Legley inci-
dent to Brennan and Senior Director for Environment
Health and Safety Scott Kenyon.
The next day, December 20, Legley told union dele-
gate Kevin Jordan about what had happened at orienta-
tion. Jordan took Legley to Nicholaides to recount the
incident. Nicholaides told Legley that Lavigne had com-
plained to the head of human resources and the head of
the Union. At lunch that day, Nicholaides told Patnaude,
Kenyon, and Regional Human Resources Director Tom
Watts that Legley was rude to Lavigne during orientation
and had “negative behavior” during his meeting with him
earlier that day.7 Based on their testimony, the judge
found that Kenyon and Patnaude were aware that Legley
had questioned Lavigne about the need to become a
member of the Union. Kenyon, Patnaude, and Watts
decided to discharge Legley, and he was discharged that
afternoon. The reason given was violation of the Em-
ployer’s workplace civility policy, which states:
Steward recognizes that excellent care is best delivered
in a work environment of respect and cooperation.

As a Steward workforce member I will:

• Treat all coworkers and individuals with re-
spect, patience and courtesy;
• Never engage in abusive or disruptive behavior;
• Not tolerate any threats of harm—either direct
or indirect—or any conduct that harasses, dis-
rupts or interferes with another workforce
member’s work or performance or that creates a
hostile work environment.
II. DISCUSSION
We address first whether the Union and the Employer
violated the Act in connection with Legley’s discharge.
6 The former title for union delegate was “steward.”
7 The record sheds no light on this second bout of “negative behav-
ior.”
We then turn to the legality of the Employer’s Work-
place Civility Policy.
A. Discharge of Legley
1. Allegation against the Union
Section 8(b)(2) makes it unlawful for a labor organiza-
tion or its agents “to cause or attempt to cause an em-
ployer to discriminate against an employee in violation
of [Section 8(a)(3)].” Section 8(a)(3), in turn, provides
that it is unlawful for an employer “by discrimination in
regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage
membership in any labor organization,” subject to a pro-
viso permitting union-security agreements. To determine
whether union conduct violated Section 8(b)(2), the
Board has in the past primarily applied either a duty-of-
fair-representation framework8 or the framework estab-
lished in Wright Line.9 As found below, under either of
8 See Operating Engineers Local 18 (Ohio Contractors Assn.), 204
NLRB 681 (1973), enf. denied on other grounds 555 F.2d 552 (6th Cir.
1977). “When a union prevents an employee from being hired or caus-
es an employee’s discharge, it has demonstrated its influence over the
employee and its power to affect his livelihood in so dramatic a way
that we will infer—or, if you please, adopt a presumption that—the
effect of its action is to encourage union membership on the part of all
employees who have perceived that exercise of power.” Id. at 681; see
also Acklin Stamping Co., 351 NLRB 1263, 1263 (2007); Graphic
Communications Local 1-M (Bang Printing), 337 NLRB 662, 673
(2002).
Over the years, the Board has characterized the union’s rebuttal bur-
den under the duty-of-fair-representation framework in different ways.
In Operating Engineers Local 18 (Ohio Contractors Assn.), supra, the
Board observed that “the inference may be overcome, or the presump-
tion rebutted, not only when the interference with employment was
pursuant to a valid union-security clause, but also in instances where
the facts show the union action was necessary to the effective perfor-
mance of its function of representing its constituency.” 204 NLRB at
681. In Glaziers Local 558 (PPG Industries), the Board stated: “A
union may, however, rebut this presumption by evidence of a compel-
ling and overriding character showing that the conduct complained of
was referable to other considerations, lawful in themselves, and wholly
unrelated to the exercise of protected employee rights or other matters
with which the Act is concerned.” 271 NLRB 583, 585 (1984) (internal
quotations omitted), enf. denied 787 F.2d 1406 (10th Cir. 1986).
9 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. Trans-
portation Mgmt. Corp., 462 U.S. 393 (1983).. See Security, Police &
Fire Professionals of America (SPFPA) Local 444 (Security Support
Services, LLC), 360 NLRB 430, 435–436 (2014); Teamsters “General”
Union No. 200 (Bechtel Construction Co.), 357 NLRB 1844, 1851–
1852 (2011), enfd. 723 F.3d 778 (7th Cir. 2013); Town & Country
Supermarkets, 340 NLRB 1410, 1411 (2004); Freight Drivers, Local
287 (Container Corp. of America), 257 NLRB 1255, 1258–1259 & fn.
18 (1981).
In at least one case, the Board based its 8(b)(2) determination on
whether the conduct over which the union sought discipline was pro-
tected by the Act. Longshoremen Local 333 (ITO Corp. of Baltimore),
267 NLRB 1320, 1320–1321 (1983).

1296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
these standards, the Union’s conduct clearly violated the
Act.
As an initial matter, to find that a union has violated
Section 8(b)(2) in connection with an employer’s action
against an employee, “there must be some evidence of
union conduct; it is not sufficient that an employer’s
conduct might please the union.”10 The judge correctly
found evidence of union conduct here. Lead Administra-
tive Organizer Leveille testified that she and union dele-
gate Nicholaides discussed the Employer’s code of con-
duct during their conversation about Legley, and Nicho-
laides conceded that he might have mentioned the work-
place civility policy when speaking with Legley. The
latter conversation came about through the action of an-
other union delegate, Jordan. Jordan testified that when
he heard Legley’s story, he immediately thought about
the Employer’s “zero tolerance” policy for disrespect and
was concerned that Legley would face discipline. Nicho-
laides reported the Legley incident to management twice,
once on December 19 (to Brennan and Kenyon), and
again the next day (to Patnaude, Kenyon (again), and
Watts). Nicholaides also told management that Legley
had said, “If you guys don’t want me here, I’ll just go.”
Legley was promptly discharged for violating the work-
place civility policy. These facts support an inference,
which the judge drew and with which we agree, that
when the Union’s representatives reported Legley’s con-
duct to management, they reasonably would have fore-
seen that Legley would be disciplined (at least) for vio-
lating the workplace civility policy. Moreover, Nicho-
laides repeated to management Legley’s statement, “If
you guys don’t want me here, I’ll just go.” Based on the
foregoing, we find that union conduct caused Legley’s
discharge. That conduct, in turn, violated the Act, under
either of the two primary analytical frameworks applied
by the Board.
We first apply the duty-of-fair-representation frame-
work. “[W]henever a labor organization ‘causes the dis-
charge of an employee, there is a rebuttable presumption
that [the labor organization] acted unlawfully because by
such conduct [it] demonstrates its power to affect the
employees’ livelihood in so dramatic a way as to encour-
age union membership among the employees.’”11 Thus,
having found that the Union caused Legley’s discharge,
we must determine whether it rebutted the resulting pre-
sumption that it acted unlawfully in doing so. One way
in which a union may rebut that presumption is by show-
10 Toledo World Terminals, 289 NLRB 670, 673 (1988).
11 Graphic Communications Local 1-M (Bang Printing), 337 NLRB
at 673 (quoting Operating Engineers Local 478 (Stone & Webster), 271
NLRB 1382, 1382 fn. 2 (1984)); see also Acklin Stamping, 351 NLRB
at 1263.
ing that it acted pursuant to a valid union-security
clause.12 The other is by showing that its action “was
necessary to the effective performance of its function of
representing its constituency.” Id.
Here, the Union caused Legley’s discharge, it was not
enforcing a union-security agreement, and it does not
contend that the discharge was necessary to the effective
performance of its function of representing its constitu-
ency. Quite to the contrary, the Union caused Legley’s
discharge for conduct that no party disputes was protect-
ed by the Act. Thus, the presumption of illegality that
arises whenever a union causes the discharge of an em-
ployee stands unrebutted. Accordingly, applying the
duty-of-fair-representation framework, the Union must
be found to have violated the Act.
The same result follows from applying the Wright Line
analysis. Under Wright Line, the General Counsel must
first prove, by a preponderance of the evidence, that Leg-
ley’s protected conduct was a motivating factor in the
Union’s adverse action. The elements commonly re-
quired to establish discriminatory motive are established
in the record here: Legley engaged in protected activity,
the Union had knowledge of that activity, and Lavigne’s
unlawful threat of unspecified reprisal shows the Union’s
animus against his protected conduct. We find that the
General Counsel met his initial burden, and that the Un-
ion failed to meet its rebuttal burden by showing that it
would have taken the same action absent Legley’s pro-
tected activity.
We conclude, then, that the Union violated Section
8(b)(1)(A) and (2).
2. Allegation against the Employer
We further agree with the judge that the Employer vio-
lated the Act when it discharged Legley. “An employer
violates the Act when it discharges an employee at the
request of the union when it has reasonable grounds for
believing that the request was unlawful.” Palmer House
Hilton, 353 NLRB 851, 852 (2009) (internal quotations
omitted), affd. 356 NLRB 1 (2010). Here, the Employer
learned of Legley’s protected conduct at or near the same
time as the Union’s effective request that he be disci-
plined for that conduct. Further, the Employer has failed
to show that it would have discharged Legley in the ab-
sence of his protected activity.13 Accordingly, we find
that the Employer violated Section 8(a)(3) and (1) by
discharging Legley at the Union’s request.
12 Operating Engineers Local 18 (Ohio Contractors Assn.), 204
NLRB at 681.
13 Cf. Town & Country Supermarkets, 340 NLRB at 1412–1413.

GOOD SAMARITAN MEDICAL CENTER 1297
B. Employer Rule
Finally, we affirm the judge’s finding that the Employ-
er’s workplace civility policy, which it used to justify
Legley’s discharge, violates Section 8(a)(1). In doing so,
we rely solely on the third prong of Lutheran Heritage
Village-Livonia, 343 NLRB 646, 647 (2004), which
holds that an employer rule is unlawful if the rule has
been applied to restrict the exercise of Section 7 rights.14
ORDER
A. The National Labor Relations Board orders that the
Respondent, Good Samaritan Medical Center, Brockton,
Massachusetts, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging employees because they question
whether employees are required to join 1199 SEIU Unit-
ed Healthcare Workers East or any other union.
(b) Maintaining its workplace civility policy.
(c) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Camille Legley full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Legley whole for any loss of earnings and
other benefits suffered as a result of his unlawful dis-
charge in the manner set forth in the remedy section of
the judge’s decision.
(c) Compensate Legley for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar
quarters.
14 Under the third prong of Lutheran Heritage Village, supra, appli-
cation of a rule or policy to restrict the exercise of Sec. 7 rights makes
the maintenance of that rule unlawful, and the Board has ordered re-
scission of rules found unlawful under Lutheran’s third prong. See
Albertson’s, Inc., 351 NLRB 254, 259, 262 (2007). Member Miscimar-
ra and Member Johnson disagree that the unlawful application of an
otherwise lawful rule should make it unlawful to maintain that rule.
Similarly, they disagree that rescission is an appropriate remedy when
an otherwise lawful rule or policy is unlawfully applied. In their view,
the proper remedy would be an order that the employer cease and desist
from applying such a rule in a manner that restricts the exercise of
protected employee rights. See Ivy Steel & Wire, Inc., 346 NLRB 404,
404 fn. 4, 405 (2006). They recognize, however, that the above-cited,
more recent Board precedent is to the contrary, and no Board majority
consisting of at least three members has voted to overrule the Board’s
rescission remedy for violations of this kind. For institutional reasons,
therefore, they apply existing precedent here.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Legley, and, within 3 days thereafter, notify him in writ-
ing that this has been done and that the discharge will not
be used against him in any way.
(e) Within 14 days from the date of this Order, rescind
the workplace civility policy.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Brockton, Massachusetts, copies of the at-
tached notice marked “Appendix A.”15 Copies of the
notices, on forms provided by the Regional Director for
Region 1, after being signed by the Employer’s author-
ized representative, shall be posted by the Employer and
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Employer cus-
tomarily communicates with its employees by such
means. Reasonable steps shall be taken by the Employer
to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Employer has gone
out of business or closed the facility involved in these
proceedings, the Employer shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Employer at
any time since December 20, 2011.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 1 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Employer has taken
to comply.
B. The National Labor Relations Board orders that the
Respondent, 1199 SEIU United Healthcare Workers
East, Brockton, Massachusetts, its officers, agents, and
representatives, shall
15 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board.”

1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from
(a) Causing or attempting to cause Good Samaritan
Medical Center to discharge employees because they
question having to become union members as a condition
of employment.
(b) Threatening employees with unspecified reprisals
for exercising their rights under Section 7 of the Act.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, notify
Good Samaritan Medical Center that it has no objection
to the reinstatement of Camille Legley to his former po-
sition.
(b) Make Legley whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section
of the judge’s decision.
(c) Compensate Camille Legley for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award.
(d) Within 14 days from the date of this Order, notify
Camille Legley in writing that it has no objection to his
reinstatement to his former position and that it has told
Good Samaritan Medical Center that it has no such ob-
jection.
(e) Within 14 days from the date of this Order, remove
from its files, and ask the Employer to remove from its
files, any reference to the unlawful actions taken against
Legley, and within 3 days thereafter, notify him in writ-
ing that this has been done and that those actions will not
be used against him in any way.
(f) Within 14 days after service by the Region, post at
its offices and at any bulletin boards designated for the
Union at the Good Samaritan Medical Center copies of
the attached notice marked “Appendix B.”16 Copies of
the notice, on forms provided by the Regional Director
for Region 1, after being signed by the Union’s author-
ized representative, shall be posted by the Union and
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Union custom-
16 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board.”
arily communicates with employees by such means.
Reasonable steps shall be taken by the Union to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Within 14 days after service by the Region, deliver
to the Regional Director for Region 1 signed copies of
the notice in sufficient number for posting by the Em-
ployer at its Brockton, Massachusetts facility, if it wish-
es, in all places where notices to employees are custom-
arily posted.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 1 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Union has taken to
comply.

APPENDIX A
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 discharge employees because they ques-
tion whether employees are required to join 1199 SEIU,
United Healthcare Workers East or any other union.
WE WILL NOT maintain our workplace civility policy.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Camille Legley full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Camille Legley whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL compensate Camille Legley for any adverse
tax consequences of receiving a lump-sum backpay
award, and WE WILL file a report with the Social Security

GOOD SAMARITAN MEDICAL CENTER 1299
Administration allocating Legley’s backpay to the ap-
propriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Camille Legley, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
WE WILL, within 14 days from the date of the Board’s
Order, rescind our workplace civility policy.
GOOD SAMARITAN MEDICAL CENTER
The Board’s decision can be found at –
www.nlrb.gov/case/01–CA-082367 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.

APPENDIX B
NOTICE TO MEMBERS AND 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 on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT cause or attempt to cause Good Samari-
tan Medical Center to discharge employees because they
question having to become union members as a condition
of employment.
WE WILL NOT threaten employees with unspecified re-
prisals for exercising their rights under Section 7 of the
Act.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights set forth
above.
WE WILL, within 14 days from the date of the Board’s
Order, notify Good Samaritan Medical Center that we
have no objection to the reinstatement of Camille Legley
to his former position.
WE WILL make Legley whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, less any net interim earnings, plus in-
terest.
WE WILL compensate Camille Legley for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award.
WE WILL, within 14 days from the date of the Board’s
Order, notify Camille Legley in writing that we have no
objection to his reinstatement to his former position and
that we have told Good Samaritan Medical Center that
we have no such objection.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files, and ask the Employer to
remove from its files, any reference to the unlawful ac-
tions against Camille Legley, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that those actions will not be used against him in any
way.
1199 SEIU UNITED HEALTHCARE WORKERS
EAST

The Board’s decision can be found at
www.nlrb.gov/case/01–CB–082365 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.

Kevin J. Murray, Esq. and Karen Hickey, Esq., for the General
Counsel.
Betsy Ehrenberg, Esq., for 1199 SEIU.
Lori Armstrong Halber, Esq. and Joseph W. Ambash, Esq., for
Good Samaritan Medical Center.
1300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard
these consolidated cases in Boston, Massachusetts, on April 17
and 18, 2013. The charge and the amended charge in Case 01–
CA–082367 were filed on June 4 and July 17, 2012. The
charge and the amended charge in Case 01–CB–082365 were
filed on June 4, July 6, and August 15, 2012. The consolidated
complaint that was issued on January 31, 2013, and amended
on March 4, 2013, alleges as follows:
1. That the Employer and the Union have maintained and
enforced a collective-bargaining agreement covering certain
employees employed at the Good Samaritan’s facilities and
plant operations department at the hospital and offsite facilities.
2. That the contract contains a union security provision re-
quiring employees, after 30 days of employment, either to be-
come union members or to pay an agency fee to the union as a
condition of employment.
3. That on or about December 19, 2011, Camille Legley at
an orientation program for new employees, complained to the
Union concerning the requirement that unit employees become
members of the Union and asserted his right to refrain from
becoming a union member.
4. That on or about December 19, 2011, the Union by its
delegate Darlene Lavigne (a) threatened employees that they
could not become employees unless they joined the Union and
(b) threatened Legley with unspecified reprisals because he
asserted the right to not join the Union.
5. That on December 20, 2011, the Union by its delegate,
Neal Nicholaides, threatened Legley with unspecified reprisals
because he asserted his right to not join the Union.
6. That on December 19 and 20, the Union reported Leg-
ley’s conduct at the orientation meeting to the Employer.
7. That on December 20, the Employer terminated Legley’s
employment.
8. That by the foregoing conduct, the Union caused the Em-
ployer to terminate the employment of Legley because he as-
serted his right to not join the Union and that the Employer
discharged Legley for the same reason.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is admitted and I find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(1), (6),
and (7) of the Act. It also is admitted and I find that the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The Respondent employer is a part of the Steward Health
Care System and it has had a collective-bargaining history with
1199, SEIU for many years. The extant collective-bargaining
agreement contains typical union security and dues-checkoff
provisions.
In September 2011, Camille Legley responded to a job ad-
vertisement placed by the Respondent. This called for someone
to work as a part-time boiler operator to work on Friday and
Saturday nights. Legley first met with Sean Brennan, the facili-
ties manager, and the lead boiler operator, Kevin Jordan. Then,
after some correspondence between Legley and Jordan, he also
met with Neal Nicholaides, who worked as a refrigeration me-
chanic and who also is a union delegate.
On November 28, the Respondent offered Legley the job and
he was told to report on December 19 for orientation. He also
was notified that he should come to the hospital on December 5
in order to take a physical examination and to fill out some
forms.
On December 5, Legley arrived at the hospital and was in-
terviewed by Jen Patnaude, the human resources manager. He
also spoke to Jennifer Dorsey in relation to filling out forms
and to nurse Eileen Rainey regarding a physical. All of these
people described their interactions with Legley as being some-
one difficult, albeit no one described his conduct as being over-
ly rude. Whatever, their reactions, Legley nevertheless had
been hired and was scheduled to report to work on December
19. There is no indication that after these interactions on De-
cember 5 or at any time prior to December 19, Patnaude or
anyone else from the Employer decided to retract the job offer
that had already been made to Legley.
An orientation program was set up for the morning of De-
cember 19, and this was attended by Legley and other new
hires. This was scheduled in two parts; the first being conduct-
ed by Union Delegate Darlene Lavigne. The second part of the
orientation was to be addressed by a representative of the hos-
pital. The other new employees were Kim Derby, Francaise
Gaston, and Aisha Patel. Of these, Derby testified in this case.
The evidence shows that on the morning of December 6, the
group met in the lobby at around 8 a.m. and because the eleva-
tors were out of order, they had to walk up the stairs to the con-
ference room on the fifth floor. Everyone including Legley was
grumbling by the time they ascended. Perhaps because he was
72 years old at the time, Legley was the last person to arrive at
the conference room and the orientation program had already
begun. When he arrived, he was somewhat surprised to see that
it was a union delegate who was running the meeting.
It is my conclusion that during this meeting, Lavigne told the
employees about the benefits of the Union; told the employees
that this was a union shop where membership was required; and
passed out an application for union membership that contained
a dues-checkoff authorization. She also handed out a form
providing for a voluntary check-off authorization for the Un-
ion’s political action fund. Lavigne told the new hires that they
needed to sign the forms and return them to her. At some point
during the meeting, Legley raised his hand and stated that it
was his understanding that the law prohibited a union from
requiring union membership. His testimony as corroborated by
Derby, was that Lavigne replied that he had to join the union in
order to work at the hospital and that they had to complete the
forms that she had distributed.
GOOD SAMARITAN MEDICAL CENTER 1301
A little later in the meeting, Legley while reading through
the Union’s literature noticed that there was a sentence that
stated that an employee did not have to become a member but
could become an agency fee payer instead. When he spoke up
and referred Lavigne to this sentence, she became upset and
stated that he had to become a member. She asked for his name
and which department he worked. Derby credibly testified that
Lavigne told Legley that she “knew the people who worked
down there and she was going to warn them that he was coming
and that they would not put up with him.”
Although Lavigne asserted that Legley interrupted her every
two seconds, this is denied by him and his account is supported
by Derby. (She testified that others also asked questions of
Lavigne.) There was no credible evidence that Legley accused
Lavigne of being a liar or that he made any statements that
could be construed as being threatening or profane. At most,
both Legley and Lavigne raised their voices when he said he
didn’t have to become a union member and she said that he did.
The evidence does not show that Legley, in asking these
questions or making these statements, acted in an overly ag-
gressive manner. It may be that Lavigne became upset by Leg-
ley’s questioning of her, but his questions regarding the re-
quirement of union membership clearly constituted activity that
is protected by Section 7 of the Act. Moreover, the evidence
convinces me that nothing that he said or did at this meeting
could compel a conclusion that he lost the protection of the Act
by virtue of any misconduct on his part. The fact that Legley
asked a couple of questions about the union membership re-
quirement is clearly within his legal rights.
In any event, Legley filled out, signed, and turned in the un-
ion membership and dues-checkoff form but did not sign the
political action checkoff authorization.
Shortly after the orientation session, Lavigne called Union
Representative Leveille and essentially told her that Legley was
mean to her. Among other things, it is conceded that Lavigne
reported that Legley said that he understood that he did not
have to become a union member. Lavigne then called Nicho-
laides, another union steward who covered the boiler room
employees. She related her experience with Legley, including
the fact that Legley had asserted that he didn’t have to become
a union member. Nicholaides in turn reported what Lavigne
told him to tell human resources and to his supervisors, Sean
Brennan and Scott Kenyon.
When Legley reported to work on December 20, he talked to
Kevin Jordan, who in addition to being the lead boiler operator
is also a union delegate. Legley told Jordan about what hap-
pened at the orientation meeting with Lavigne. The two men
then went to the plumbing shop and spoke to Nicholaides and
another union delegate whose name is Gerry Monahan. Jordan
asked Legley to tell them what happened and he did so, ex-
plaining that Lavigne got angry at him because he questioned
her about her assertion that he had to become a union member.
At this point, Nicholaides said that Lavigne had complained to
the head of human resources and to the head of the Union. He
also told Legley that because of “you” she didn’t get anyone to
contribute to the union’s political action fund. Sensing that he
might be in trouble, Legley acknowledged that he might have
said that he wasn’t sure if he wanted to work there. Notwith-
standing this conversation, Legley worked for the remainder of
the day.
At a luncheon held that day, Nicholaides spoke to Patnaude,
Scott Kenyon, and Tom Watts, all of whom are company man-
agers. He told them that Legley had been rude to Lavigne dur-
ing the orientation program and he also related his morning
conversation with Legley describing Legley as having “nega-
tive behavior.”
In his testimony, Kenyon agreed that he was aware that Leg-
ley had questioned Lavigne about the union membership re-
quirement during the orientation meeting. And it appears from
the evidence that during the luncheon meeting, Patnaude dis-
cussed the fact that Legley had raised this question. She states
that she told the others that when she had previously inter-
viewed Legley (on December 5), she had not wanted to hire
him. (But as noted above, she did not veto his hiring.)
The decision to discharge Legley was made on December 20
by Patnaude, Kenyon, and Watts. The testimony of the Em-
ployer’s witness was that Legley was discharged for violating
the Employer’s workplace civility policy. Legley was informed
of the decision at around 3:45 p.m. by Sean Brennan. There
was no evidence that any representative of the Union asked for
or demanded that the Company discharge Legley, albeit the
proximate cause of Legley’s discharge was a direct conse-
quence of union delegate Lavigne’s complaints regarding the
events that took place between herself and Legley at the orien-
tation meeting.

The Workplace Civility Policy states:

Steward recognizes that excellent care is best delivered
in a work environment of respect and cooperation.
As a Steward workforce member I will:
• Treat all coworkers and individuals with respect,
patience and courtesy;
• Never engage in abusive or disruptive behavior;
• Not tolerate any threats of harm—either direct or
indirect—or any conduct that harasses, disrupts,
or interferes with another workforce member’s
work or performance or that creates a hostile
work environment.
III. ANALYSIS
In the context of the orientation meeting, Legley’s questions
in a group of new employees about the legality of whether an
employee is required to join a union constitutes protected con-
certed activity within the meaning of Section 7 of the Act.1
Moreover, he was correct in his understanding of the law and
Levigne was not. See NLRB v. General Motors, 373 U.S. 734
(1963).
The Respondents argue that Legley, during this transaction
engaged in conduct that overstepped the bounds of civility and
thereby violated the company’s workplace civility policy. But
since Legley’s questions and correct expressions of opinion, are
protected by Federal law, the company’s policy cannot be con-
1 Among other things, Sec, 7 not only gives employees the right to
join a union, it also gives employees a right to refrain from joining a
union.

1302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
trolling. Simply put, when it comes to employee Section 7
rights, the statute trumps company policy and the Respondent
cannot rely on its own policy as a defense to otherwise legally
protected employee activity. Special Touch Home Care Ser-
vices, 357 NLRB 4 (2011), enf. denied on other grounds 708
F.3d 447 (2d Cir. 2013).
The correct test for determining whether the discharge of
other discipline of an employee who is engaged in protected
concerted activity is the one enunciated in Atlantic Steel Co.,
245 NLRB 814, 816 (1979), where the Board established a
balancing test for these types of situations. In determining if an
employee’s conduct loses the protection of the Act, the Board
will take into account and balance the following factors; (a) the
place of the discussion; (b) the subject matter of the discussion;
(c) the nature of the employee’s outburst; and (d) whether the
outburst was provoked by the employer’s unfair labor practices.
In my opinion, Legley’s statements and conduct at the orien-
tation meeting do not meet the Atlantic Steel criteria for con-
cluding that he engaged in misconduct that would justify his
discharge. Nor in the absence of legally defined misconduct,
can one separate the protected nature of his comments from the
way he made the comments. As his behavior at the meeting did
not meet the criteria of Atlantic Steel, Langley’s statements
regarding union membership and the tone in which he made the
statements cannot be disentangled. Therefore, as the Company
discharged Legley because of these protected statements, a
Wright Line analysis is not even appropriate. New York Party
Shuttle, LLC, 359 NLRB 1046 (2013).
Since it is my conclusion that the Employer discharged Leg-
ley because of the protected and concerted statements he made
at the orientation meeting, I find that it has violated Section
8(a)(1) and (3) of the Act.2
It is the General Counsel’s contention that the Employer’s
workplace civility policy, in addition to not affording a defense
to Legley’s discharge, also independently violates Section
8(a)(1) of the Act under Lutheran Heritage Village-Livonia,
343 NLRB 646 (2004). It is postulated that this rule would
“reasonably tend to chill employees in the exercise of their
Section 7 rights.” It is noted that the rule does not explicitly
restrict the rights of employees to engage in union or protected
concerted activity.
In Knauz BMW, 358 NLRB 1754 (2012), a Board majority
found that the Employer unlawfully maintained a “Courtesy”
rule in its employee handbook. The rule stated that courtesy is
the responsibility of every employee, that everyone is expected
to be courteous, polite, and friendly to customers, vendors, and
suppliers and fellow employees, and that no one should be “dis-
respectful or use profanity or any other language which injures
the image or reputation of the Dealership.” Applying Lutheran
Heritage Village-Livonia, the Board held that the employees
would reasonably construe the prohibition against “disrespect-
2 Even assuming that company management had a good-faith belief
that Legley’s behavior at the orientation program was worse than it
was, that belief was, in my opinion, mistaken and his actual conduct
was insufficient to warrant the conclusion that Legley overstepped the
bounds of legally protected concerted activity. Therefore, under NLRB
v. Burnup & Sims, 379 U.S. 21 (1964), the Employer cannot defend its
action based on a good-faith belief.
ful” conduct and “language which injures the image or reputa-
tion of the Dealership” as encompassing Section 7 activity.
The Board explained that nothing in the rule or anywhere in the
handbook suggested that communications protected by Section
7 were excluded from the rule’s reach. Member Hayes, on the
other hand, would have found that the courtesy rule was “noth-
ing more than a common-sense behavioral guideline for em-
ployees.” In his view, the Employer sought to promote civility
and decorum in the workplace and prevent conduct that injured
the dealership’s reputation; purposes that would have been
patently obvious to the Employer’s employees.
In light of the majority opinion in Knauz BMW, and in light
of the fact that the rule in this case, was applied to discharge an
employee who engaged in protected speech in a concerted set-
ting, I conclude that the application of this rule to employee
protected, concerted, and/or union-related activity violated
Section 8(a)(1) of the Act.
The General Counsel also makes a number of allegations
against the Union including the allegations that its delegates
threatened employees with reprisals and that the Union “caused
or attempted to cause” the Employer to discharge Legley be-
cause of the statements he made at the orientation program.
The evidence does not show that anyone from the Union
asked for, suggested, recommended, or demanded that the Em-
ployer discharge Legley. The Union therefore argues that un-
der Section 8(b)(2) of the Act, there can be no finding that it
“caused or attempted to cause” the Employer to take this action.
And in this regard, a “cause or attempt to cause” must be shown
by some evidence of union conduct. As noted Wenner Ford
Tractor Rentals, Inc., 315 NLRB 964, 965 (1994), it is not
sufficient that an employer’s action might simply please a un-
ion.
Although I think this a close call, it is my opinion that the
Union’s delegates, knowing of the Company’s workplace ci-
vility policy, reasonably would have foreseen that Lavigne’s
complaints about Legley’s “bad” behavior on his first day of
employment, would likely lead to his discharge. As a conse-
quence, her reports to her union colleagues which were trans-
mitted to management, were in my opinion, the proximate
cause of his discharge. I therefore conclude that in these cir-
cumstances, the Union is at least partially responsible for Leg-
ley’s illegal discharge. Accordingly, I conclude that the Union
caused or attempted to cause his discharge in violation of Sec-
tion 8(b)(2) and 8(b)(1)(A) of the Act. Cf. Town & Country
Supermarkets, 340 NLRB 1410, 1411 (2004), and Paperwork-
ers Local 1048 (Jefferson Smurfit Corp.), 323 NLRB 1042,
1044 (1997).
As to the alleged threats, I conclude that Lavigne told Legley
that she knew the people in his department, that she was going
to warn them that he was coming and that they would not put
up with him. In this respect, I construe this as threat of unspec-
ified reprisals and therefore a violation of Section 8(b)(1)(A) of
the Act.
The General Counsel alleges that the Union violated the Act
when its Agent Lavigne incorrectly told employees at the orien-
tation that they had to join the Union in order to work at the
hospital. While I find that this statement was made by her, it is
also clear that the official information that was distributed to

GOOD SAMARITAN MEDICAL CENTER 1303
the employees clearly stated that union membership was not
required. Moreover, that was pointed out by Legley when he
read that portion of the leaflet to the other employees. In these
particular circumstances, I don’t think that the Union should be
held accountable for the mistaken statements of its agent when
the official position of the Union was simultaneously made
known to the employees. I therefore shall recommend that this
allegation of the complaint be dismissed.
Finally, the General Counsel alleges that Union Delegate
Nicholaides made a threat to Legley on December 20, 2012.
However, I do not conclude that anything he said on that morn-
ing constitutes a threat of reprisal. He simply told Legley that
management had been apprised of what had happened at the
orientation meeting and that it was too late. To me this is not a
threat, but rather an accurate assessment and prediction of what
management was likely to do. I therefore shall recommend that
this allegation of the complaint be dismissed.
CONCLUSIONS OF LAW
1. By discharging Camille Legley because of his protected
concerted activity in questioning whether employees were re-
quired to join 1199 SEIU United Healthcare Workers East, the
Employer, Good Samaritan Medical Center violated Section
8(a)(1) and (3) of the Act.
2. By applying the workplace civility policy to an employee
who was engaged in concerted activity that is protected by
Section 7 of the Act, the Employer violated Section 8(a)(1) of
the Act.
3. By causing or attempting to cause the Employer to dis-
charge Camille Legley because of his protected concerted ac-
tivity, the Union violated Section 8(b)(1)(A) and 8(b)(2) of the
Act.
4. By threatening Legley with unspecified reprisals because
of his protected concerted activity, the Union violated Section
8(b)(1)(A) of the Act.
5. The aforesaid violations affect commerce within the
meaning of Section 2(6) and (7) of the Act.
6. Except as found herein, the other allegations of the com-
plaint are dismissed.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having concluded that Good Samaritan Medical Center and
1199 SEIU United Healthcare Workers East are responsible for
the unlawful discharge of Camille Legley, the Employer must
offer him reinstatement, and jointly and severally make him
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010). The Respondents shall also be required to expunge
from their respective files any and all references to the unlawful
discharge and to notify the employee in writing that this has
been done and that the unlawful discharge will not be used
against him in any way. The Respondent Employer shall file a
report with the Social Security Administration allocating back-
pay to the appropriate calendar quarters. The Respondent Em-
ployer shall also compensate Legley for the adverse tax conse-
quences, if any, of receiving one or more lump-sum backpay
awards covering periods longer than 1 year. Latino Express,
Inc., 359 NLRB 518 (2012).
[Recommended Order omitted from publication.]