Huron Valley-Sinai Hospital

National Labor Relations Board - Board Decisions

Apr 28, 2020

369 N.L.R.B. 64 (N.L.R.B. 2020)

369 NLRB No. 64
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Huron Valley-Sinai Hospital and Michigan Nurses As-
sociation. Cases 07–CA–201332, 07–CA–205971,
07–CA–213556, and 07–CA–217647
April 28, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On April 29, 2019, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General Coun-
sel filed an answering brief, and the Respondent filed a
reply brief. In addition, the General Counsel filed cross-
exceptions and a supporting brief, and the Respondent
filed an answering brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs1 and has decided to affirm the judge’s rulings,
1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, cross-exceptions, and briefs adequately present
the issues and positions of the parties.
2 We shall amend the judge’s conclusions of law to conform to our
findings herein and to clarify that the Respondent violated Sec. 8(a)(5)
and (1) by failing to furnish the Union with requested completed exit
interview forms, not by failing to offer a reasonable accommodation re-
garding the requested forms as the judge concluded.
3 Under the unilaterally changed policy, the Respondent permitted
only nonunit employees (clinical coordinators) to cover for unit employ-
ees during their meal breaks. We amend the judge’s remedy for this vi-
olation to provide that affected unit employees shall be made whole in
accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), rather than with F. W. Woolworth Co., 90
NLRB 289 (1950). The Ogle Protection formula applies where, as here,
the Board is remedying “a violation of the Act which does not involve
cessation of employment status or interim earnings that would in the
course of time reduce backpay.” Ogle Protection Service, above at 683;
see Pepsi-America, Inc., 339 NLRB 986, 986 fn. 2 (2003). We further
amend the judge’s remedy to require the Respondent to compensate af-
fected unit employees for the adverse tax consequences, if any, of receiv-
ing lump-sum backpay awards, and to file with the Regional Director for
Region 7, within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the backpay
awards to the appropriate calendar year. Don Chavas, LLC d/b/a Tortil-
las Don Chavas, 361 NLRB 101 (2014); AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016).
4 Contrary to the judge’s decision, however, we find that the Respond-
ent’s cessation of considering these requests constituted a unilateral
change in its practice, not stricter enforcement of its written break policy.
See, e.g., Southside Hospital, 344 NLRB 634, 634, 640 (2005) (employer
violated Sec. 8(a)(5) by unilaterally changing 1-hour break period to one
30-minute break and two 15-minute breaks).
5 In adopting the judge’s finding that the refusal to furnish the re-
quested forms was unlawful, we find that the Respondent failed to
findings, and conclusions2 only to the extent consistent
with this Decision and Order.
We adopt the judge’s findings that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally
changing its prior practice of allowing unit employees to
cover for each other during meal breaks,3 by unilaterally
ceasing to consider unit employees’ requests to combine
30-minute meal breaks with 15-minute rest breaks on a
case-by-case basis,4 and by failing and refusing to furnish
the Union with requested information pertaining to the Re-
spondent’s exit interview forms.5 We also adopt the
judge’s finding that the Respondent violated Section
8(a)(3) and (1) by denying unit employees breaks on April
14 and 15, 2018.6 Contrary to the judge, however, we find
that the Respondent did not unilaterally promulgate a new
employee break policy in violation of Section 8(a)(5) and
(1).
The record shows that the Respondent has had an em-
ployee break policy in effect since 2014. On January 2,
2018, the Respondent’s parent company, Detroit Medical
Center, published a break policy on its intranet. The par-
ent company’s policy included a provision not found in
the Respondent’s policy, which reads: “If an employee
establish a legitimate and substantial confidentiality interest in the re-
sponses on the exit interview forms. “[T]he party making a claim of
confidentiality has the burden of proving that such interests are in fact
present,” Jacksonville Area Assn., 316 NLRB 338, 340 (1995), and the
Respondent neither introduced evidence about the nature of the answers
on the completed forms nor demonstrated that the forms actually con-
tained answers to the most sensitive questions (questions 15 through 19).
Even so, the record does not foreclose the possibility that some com-
pleted forms may contain confidential information. Accordingly, we
will order the Respondent to furnish the requested forms, but in compli-
ance, the Respondent will be permitted to make a particularized showing
that one or more completed exit interview forms contains information as
to which the Respondent has a legitimate and substantial confidentiality
interest that must be balanced against the Union’s need for the infor-
mation. See id. at 341 fn. 14.
Having adopted the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by failing to furnish the Union with requested completed
exit interview forms, we find it unnecessary to pass on his additional
finding that the Respondent violated Sec. 8(a)(5) and (1) by failing to
furnish the Union with a blank copy of the form, as the additional finding
would not materially affect the remedy.
6 In adopting this finding, we infer from the timing of these events
(i.e., during collective bargaining) and from the language of the parties’
interim access agreement (allowing union representatives to access the
Respondent’s facility “to effectively represent bargaining unit Regis-
tered Nurses”) that Union Representative Liz Riley was engaged in union
activity while in the breakroom at the Respondent’s facility on April 14
and 15. Accordingly, as the credited testimony shows that clinical coor-
dinator Steve Smades admitted he denied employees their breaks on
those dates because he observed Riley in the breakroom, the record sup-
ports a finding that the Respondent retaliated against unit employees be-
cause of Riley’s union activity. See PJAX, 307 NLRB 1201, 1203–1205
(1992) (finding that employer violated Sec. 8(a)(3) where its motive for
discriminating against an employee was the union activity it believed an-
other person had engaged in), enfd. 993 F.2d 878 (3d Cir. 1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
consistently misses meals without the authorization of de-
partment management, disciplinary action may occur up
to and including termination.”
On March 30, 2018, Union Representative Vincent
Schraub requested from the Respondent a copy of its cur-
rent break policy. The Respondent’s chief human re-
sources officer, Allison DeMarais, responded the same
day, emailing Schraub a copy of the parent company’s
policy. On April 2, DeMarais sent Schraub an email clar-
ifying that she had mistakenly sent him the parent com-
pany’s policy and that the Respondent’s 2014 policy, at-
tached to the email, remained in effect for unit employees.
Over the next few days, the Respondent twice advised
Schraub by email that the 2014 policy still applied to unit
employees.7
In finding that the Respondent unlawfully promulgated
a new break policy, the judge focused on the fact that the
Detroit Medical Center’s 2018 policy included language
not contained in the Respondent’s 2014 policy. The judge,
however, made no reference to the uncontradicted testi-
monial and documentary evidence that, although the Re-
spondent gave a copy of the wrong policy to the Union by
mistake, it promptly informed the Union of its mistake and
repeatedly clarified that the parent company’s policy did
not apply to unit employees.
Having considered the record evidence, including un-
contradicted evidence the judge did not reference in his
decision, we find that the Respondent did not unilaterally
change its break policy. Although the parent company’s
published policy contained language different from the
Respondent’s 2014 policy, there is no evidence that the
Respondent implemented or enforced the parent com-
pany’s policy against unit employees. Rather, the evi-
dence shows that the Respondent’s policy remained appli-
cable to unit employees at all relevant times. DeMarais’s
inadvertent mistake in sending the wrong policy to the Un-
ion in 2018 did nothing to change the Respondent’s pol-
icy, especially insofar as the mistake was promptly cor-
rected. Accordingly, we find that the Respondent did not
change unit employees’ terms and conditions of employ-
ment by issuing a new break policy, and we dismiss this
complaint allegation.8
7 In an April 4 email to Schraub, DeMarais stated that “[t]he existing
meals and rest period policy was being followed,” that “[t]he 2018 policy
applies to non-union employees,” that with respect to unit employees
“we will remain status quo,” and that the Union should “[r]est assured
there have been no changes to the status quo of following the policy in
effect since 2014.” In an April 5 email to Schraub, Detroit Medical Cen-
ter’s director of employee and labor relations, Richard Martwick, stated
that “the meal and break policy in effect for the RNs is the one that has
AMENDED CONCLUSIONS OF LAW
1. The Respondent, Huron Valley-Sinai Hospital, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union, Michigan Nurses Association, is a labor
organization within the meaning of Section 2(5) of the Act
that serves as the exclusive collective-bargaining repre-
sentative of the following appropriate unit of employees:
All full-time, regular part-time, and contingent regis-
tered nurses (RNs) and case managers employed by the
employer at its facility located at 1 William Carls Drive,
Commerce Township, Michigan; but excluding all other
employees, including nurse educators, senior nurse edu-
cators, clinical coordinators, coordinators, clinical coor-
dinators pcs, nurse practitioners, clinical nurse special-
ists, coordinator trauma program, clinical improvement
specialists, clinical resource nurses, trauma program co-
ordinators, nurse navigators, and guards and supervisors
as defined in the Act.
3. By failing to give the Union notice and opportunity
to bargain before eliminating unit employees’ opportunity
to cover for one another during meal breaks and instead
exclusively using nonunit employees (clinical coordina-
tors) to cover for unit employees during those breaks, the
Respondent violated Section 8(a)(5) and (1) of the Act.
4. By failing to give the Union notice and opportunity
to bargain before ceasing case-by-case consideration of
unit employees’ requests to combine 30-minute meal
breaks with 15-minute rest breaks, the Respondent vio-
lated Section 8(a)(5) and (1) of the Act.
5. By failing and refusing to furnish the Union with rel-
evant requested information pertaining to the Respond-
ent’s completed exit interview forms, the Respondent vi-
olated Section 8(a)(5) and (1) of the Act.
6. By denying unit employees breaks on April 14 and
15, 2018, because their duly chosen bargaining repre-
sentative was present and engaged in union activities at
the Respondent’s facility, the Respondent violated Section
8(a)(3) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
been in effect since before the MNA [Michigan Nurses Association] was
certified as the bargaining representative.”
8 See, e.g., New Jersey Bell Telephone Co., 308 NLRB 277, 280 fn.
13, 304 (1992) (8(a)(5) allegation dismissed where employer’s remarks
did not promulgate a new rule applicable to unit employees); Wabash
Transformer Corp., 215 NLRB 546, 546–547 (1974) (8(a)(5) allegation
dismissed where evidence showed that applicable standard predated the
union’s campaign and certification).
HURON VALLEY-SINAI HOSPITAL 3
ORDER
The Respondent, Huron Valley-Sinai Hospital, Com-
merce Charter Township, Michigan, its offers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Changing the terms and conditions of employment
of its unit employees by eliminating their opportunity to
cover meal breaks for other unit employees and exclu-
sively using nonunit employees to cover unit employees’
duties during those breaks without first notifying the
Michigan Nurses Association (Union) and giving it an op-
portunity to bargain.
(b) Changing the terms and conditions of employment
of its unit employees by ceasing to consider unit employ-
ees’ requests to combine 30-minute meal breaks with 15-
minute rest breaks on a case-by-case basis without first
notifying the Union and giving it an opportunity to bar-
gain.
(c) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with information that is
relevant and necessary to its performance of its functions
as the collective-bargaining representative of the Re-
spondent’s unit employees.
(d) Denying unit employees’ breaks because their un-
ion representative engages in union activities at the Re-
spondent’s facility.
(e) 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) Rescind the changes in its unit employees’ terms
and conditions of employment that were unilaterally im-
plemented on April 9, 2018.
(b) Before implementing any further changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following appropriate unit:
All full-time, regular part-time, and contingent regis-
tered nurses (RNs) and case managers employed by the
employer at its facility located at 1 William Carls Drive,
Commerce Township, Michigan; but excluding all other
employees, including nurse educators, senior nurse edu-
cators, clinical coordinators, coordinators, clinical coor-
dinators pcs, nurse practitioners, clinical nurse special-
ists, coordinator trauma program, clinical improvement
specialists, clinical resource nurses, trauma program
9 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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
coordinators, nurse navigators, and guards and supervi-
sors as defined in the Act.
(c) Make employees whole for any loss of earnings and
other benefits suffered as a result of its unlawful conduct
in the manner set forth in the judge’s decision as amended
in this decision.
(d) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 7,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar year(s) for
each employee.
(e) Furnish to the Union in a timely manner the com-
pleted exit interview forms requested by the Union on
June 6, 2017.
(f) Within 14 days after service by the Region, post at
its Commerce Charter Township, Michigan facility copies
of the attached notice marked “Appendix.”9 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 Respondent customarily
communicates with its employees by such means. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. If 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 em-
ployees employed by the Respondent at any time since
June 6, 2017.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. April 28, 2020
John F. Ring, Chairman
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vi-
olated 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 ac-
tivities.
WE WILL NOT change the terms and conditions of your
employment by eliminating your opportunity to cover
meal breaks for other unit employees and exclusively us-
ing nonunit employees to cover your duties during those
breaks without first notifying the Michigan Nurses Asso-
ciation (Union) and giving it an opportunity to bargain.
WE WILL NOT change the terms and conditions of your
employment by ceasing to consider your requests to com-
bine 30-minute meal breaks with 15-minute rest breaks on
a case-by-case basis without first notifying the Union and
giving it an opportunity to bargain.
WE WILL NOT refuse to bargain collectively with the Un-
ion by failing and refusing to furnish it with information
that is relevant and necessary to its performance of its
functions as your collective-bargaining representative.
WE WILL NOT deny your breaks because your union rep-
resentative engages in union activities at our facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the changes in the terms and condi-
tions of your employment that we implemented unilater-
ally on April 9, 2018.
WE WILL, before implementing any further changes in
wages, hours, or other terms and conditions of
employment of the unit employees, notify and, on request,
bargain with the Union as the exclusive collective-bar-
gaining representative of our employees in the following
appropriate unit:
All full-time, regular part-time, and contingent regis-
tered nurses (RNs) and case managers employed by the
employer at its facility located at 1 William Carls Drive,
Commerce Township, Michigan; but excluding all other
employees, including nurse educators, senior nurse edu-
cators, clinical coordinators, coordinators, clinical coor-
dinators pcs, nurse practitioners, clinical nurse special-
ists, coordinator trauma program, clinical improvement
specialists, clinical resource nurses, trauma program co-
ordinators, nurse navigators, and guards and supervisors
as defined in the Act.
WE WILL make you whole for any loss of earnings and
other benefits suffered as a result of our unlawful conduct,
plus interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 7, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar year(s) for each employee.
WE WILL furnish to the Union in a timely manner the
completed exit interview forms it requested on June 6,
2017.
HURON VALLEY-SINAI HOSPITAL
The Board’s decision can be found at
https://www.nlrb.gov/case/07-CA-201332 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Rela-
tions Board, 1015 Half Street, S.E., Washington, D.C. 20570,
or by calling (202) 273–1940.
Donna Nixon, Esq., for the General Counsel.
Catherine A Heitchue-Reed, Esq., for the Respondent.
Amy Batchelder, Esq. (Nickelhoff & Widick, PLLC), of Detroit,
Michigan, for the Charging Party.
HURON VALLEY-SINAI HOSPITAL 5
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Detroit, Michigan, on March 5, 2019. The Michigan
Nurses Association filed the charges giving rise to this case be-
tween June 22, 2017, and April 18, 2018. The General Counsel
issued the most recent complaint on September 27, 2018.
Many of the allegations in the most recent complaint were set-
tled prior to hearing. Still at issue are the following allegations:
Complaint paragraph 11 alleging that on April 14 and 15,
2018, Respondent, by clinical coordinator, Steve Smades vio-
lated Section 8(a)(3) and (1) by prohibiting emergency room
nurses from combining their lunch and other rest periods, as was
the practice prior to April 14–15, 2018.1
Complaint paragraph 12 alleging that Respondent is violating
Section 8(a)(5) and (1) by refusing to provide the Charging Party
Union copies of the exit interview forms completed by nurses
who had resigned during the previous 12 months. Respondent
has refused to provide these, as requested, on confidentiality
grounds.
Complaint paragraph 18 alleging that Respondent violated
Section 8(a)(5) and (1) by unilaterally changing its meal and
break policy by adding language that employees could be disci-
plined for consistently missing meals without authorization and
that unit employees would be relieved for breaks by nonunit clin-
ical coordinators, rather than by unit employees.
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 Respondent. I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, operates an acute care hospital in
Commerce Township, Michigan, where it annually derives gross
revenues in excess of $250,000.2 Respondent annually pur-
chases and receives products, goods and materials valued in ex-
cess of $5000 directly from points outside the State of Michigan.
Respondent 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, Michigan Nurses Association, is a labor
organization within the meaning of Section 2(5) of the Act.
1 The issue litigated at hearing was broader than that pled in the com-
plaint. Complaint par. 11 appears to be limited to the statements and
conduct of Smades on April 14 and 15. The GC Br. at pp. 10–11 relies
on Chief Human Resource Officer Allison Demarais’ March 30 email in
contending that strict adherence to the meal and rest policy was being
imposed in retaliation for nurses’ complaints about staffing levels. I find
Respondent was not put on notice that the General Counsel considered
Demarais’ email to be retaliatory. Therefore, I will not consider this ar-
gument.
However, I find that the issue of whether Respondent violated Sec.
8(a)(5) and (1) by unilaterally enforcing a policy that had not been en-
forced previously, was litigated by consent. RN Tina Grossman’s un-
contradicted testimony, as well as the March 30, and April 4, 2018 emails
from Demarais to Union Representative Vincent Schraub, establish that
Respondent began enforcing the policy that meal and rest breaks could
II. ALLEGED UNFAIR LABOR PRACTICES
The Michigan Nurses Association was certified as the exclu-
sive bargaining representative of all full-time, regular part-time
and contingent registered nurses (RNs) employed by Respondent
at its facility in Commerce Township, Michigan on March 24,
2016. During bargaining the parties agreed to add case managers
to the bargaining unit. Amongst the employees specifically ex-
cluded from the unit are clinical coordinators. Respondent and
the Union began bargaining in May 2016 and executed a collec-
tive-bargaining agreement in November 2018. A major issue be-
tween Respondent and the Union has been staffing levels, which
the Union believes are too low.
Complaint Paragraph 12
On June 6, 2017, the Union requested that Respondent provide
it with a list all of unit RNs who resigned from their positions in
the previous 12 months, their department and the start and ending
date of their employment. Respondent provided the names in a
summary discussed below but did not provide the nurses’ depart-
ment or dates of employment.
The Union also requested copies of exit interview records for
all RNs who resigned in the prior 12 months. Respondent pro-
vided the Union a summary of the requested exit interviews, but
not the completed exit interview forms (GC Exh. 4). This sum-
mary contained a 1 to 4-word reason for the nurse’s leaving Hu-
ron Valley, such as “retirement,” “personal reasons,” “prom/ca-
reer advancement,” and “resigned without notice.” Shortly there-
after, during bargaining, the Union advised Respondent that its
response was not sufficient.
At a bargaining session on July 18, 2017, the hospital provided
the Union a copy of a blank exit interview form but would not
let the Union copy or retain the form. It did not restrict the
amount of time the Union had to review the questionnaire at the
bargaining session. Respondent insisted on a confidentiality
agreement for the Union to retain the blank form and to see the
completed forms. It contends that it had a confidentiality interest
in the following questions on the blank form, which was intro-
duced by Respondent at the hearing in this matter (Exh. R-3):
Question 15: Are you aware of any unlawful or fraudu-
lent behavior at DMC or Tenet?
Question 16: Are you aware of any behavior that vio-
lates the Standards of Conduct?
not be combined in April 2018 without prior notice to the Union and
opportunity to bargain over this change. In fact, Demarais confirmed
that the policy had not been strictly enforced prior to March 30, 2018,
Tr. 85–86, 94–95. It is well settled that the Board may find and remedy
a violation even in the absence of a specified allegation in the complaint
if the issue is closely connected to the subject matter of the complaint
and has been fully litigated, Pergament United Sales, 290 NLRB 333,
334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990); Kankakee County Train-
ing Center for the Disabled, 366 NLRB No. 181 (slip opinion at p. 3)
(2018).
2 Respondent is part of the Detroit Medical Center (DMC), which is
owned by Tenet Healthcare Corporation. Tenet purchased the assets of
Vanguard Health Systems, which previously owned DMC and Huron
Valley Sinai Hospital in 2013.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Question 17: Have you ever been instructed to do
something you felt was unlawful or fraudulent?
Question 18: Have you been instructed to do something
you felt was a violation of Tenet Standards of Conduct?
Question 19: Are you leaving Tenet because of any of
these concerns?
The Union refused to sign a confidentiality agreement regard-
ing the blank form.
Complaint Paragraphs 11 and 18: Respondent’s Meal
Break Policy
At the time the Union was certified, Respondent’s meal period
and rest period policy had been in effect since June 2013 (GC
Exh. 7). The policy applies to unit employees except to the ex-
tent that it conflicts with an applicable collective bargaining
agreement. The provisions relevant to this case are those that
state:
Paragraph 3.
C. Missed meal periods and/rest breaks may not be ac-
cumulated for use and/or pay at a later date. If they are not
taken during the current shift, they are forfeited.
D. Combining meal period and rest breaks will be per-
mitted only with the approval of the Department Manager
or designee.
On January 2, 2018, while the parties were bargaining for an
initial contract, Detroit Medical Center, Respondent’s parent,
promulgated a meal and rest break policy without first notifying
the Union or giving it an opportunity to bargain over new provi-
sions. As with the 2013 policy it is applicable to unit employees
except to the extent that it conflicts with an applicable collective
bargaining agreement. Among the new provisions was the fol-
lowing statement which the Union alleges violates the Act as a
unilateral change:
If an employee consistently misses meals without the author-
ization of department management, disciplinary action may oc-
cur up to and including termination.
The new policy also contains the paragraph from the 2013 pol-
icy that, “combining meal period and rest breaks will be permit-
ted only with the approval of the Department Manager or de-
signee.”
While Respondent had a policy of prohibiting the combining
of meal and rest breaks, this policy was not enforced at Huron
Valley until April 2018 (GC Exhs. 13 and 14), March 30, 2018
and April 4, 2018 emails from Allison Demarais, Respondent’s
chief human resources officer, to union representative Vincent
Schraub. Respondent held a meeting for the staff nurses in
March 2018 in which it announced to these employees that meal
breaks would be covered by clinical coordinators and that meal
and rest breaks could no longer be combined. A number of
nurses signed a petition protesting the change which Union
Steward Tina Grossman presented to Angela Castro, Respond-
ent’s manager of the Emergency Department on April 2, 2018.
On April 9, 2018, the policy that clinical coordinators will
3 Grossman’s testimony on this issue is uncontradicted by any first-
hand evidence on the part of Respondent. Allison Demarais’ testimony
on this point at Tr. 87–88 is classic hearsay, which I do not credit.
assign and cover nurses’ 30-minute meal break became effective
(GC Exhs. 12, 15). The testimony of RN Tina Grossman estab-
lishes that prior to April 9, 2018, RNs, rather than non-unit clin-
ical coordinators usually covered for other nurses’ rest and meal
breaks.3 Grossman herself had been combining her meal and rest
breaks for a total break period of 1 hour. Immediately after April
9, the policy prohibiting combining meal and rest breaks was not
strictly enforced; however, afterwards Respondent began to
strictly enforce the prohibition.
The General Counsel alleges that the enforcement of this pol-
icy is the result of Respondent’s animus towards union activity.
Specifically, Tina Grossman testified that on April 14 or 15, clin-
ical coordinator Steve Smades told her that nurses would only
get a 30-minute break because of “your surprise.” By this Gross-
man understood Smades was referring to the presence of union
representative Liz Riley in the employee breakroom.4 Grossman
also testified that later Smades apologized to her and admitted
that he had retaliated against unit employees in denying them a
rest break because he believed Riley had called him an “A-hole.”
Grossman told Smades the invective came from somebody else.
Smades did not testify. Therefore, Grossman’s testimony is un-
contradicted.
Conflicting Testimony Regarding Respondent’s Proposal of a
Confidentiality Agreement
Shaun Ayer, an attorney who was Respondent’s chief negoti-
ator in bargaining, testified that he offered the Union a confiden-
tiality agreement by which Respondent would provide the com-
pleted exit interviews. He proposed the Union agree that names
and responses would be redacted, but that Respondent would
provide the Union with the contact information for the nurses
who completed the forms. Ayer testified that the reason Re-
spondent would not provide the unreacted exit interviews was
that it had promised the exiting nurses confidentiality and did not
want the questions or answers regarding unethical or illegal con-
duct to be disseminated. Union Representative Vincent Schraub
testified that Respondent never proposed an accommodation re-
garding the completed forms. He stated Respondent’s offer went
only to the blank forms.
Nicole Williams, Respondent’s human resources director at
the time, took notes for the hospital at the July 18, 2017 bargain-
ing session (Exh. R-3). These notes are not a verbatim account
of what transpired and they were not shared with the Union. The
notes consist of less than 3 pages for a meeting that lasted from
9:28 a.m. to 2 p.m. The rather cryptic notes consist of the fol-
lowing entries regarding the Union’s request for the exit inter-
views:
[Respondent] exit Int-provided rationale as to why
Emp. Does not want to provide Exit Int. info due to confi-
dentiality & compliance questions.
MNA (The Union) wants something more specific, “if
they left for another job, or because of a manager, or unsafe
staffing.”
MNA Request-Exit Int. Blank Form
4 A charge and complaint allegation that Respondent violated the Act
by barring Union Representative Riley from its premises was settled by
the parties prior to hearing.
HURON VALLEY-SINAI HOSPITAL 7
MNA? – Redacting Info other than HIPPA
Resumes 10:23
HVSH (Respondent) “Read” Exit Int. Form-Allowed
Union to review but took form back and did not allow union
to keep blank. Discussion of (*) meaning-goes to compli-
ance for unethical or illegal violations.
MNA-RFI-Want Blank Form
Would like Exit Int’s of RNs who have left
HVSH No Federal or State law that requires employer
to provide exit interviews. Questions are sensitive in na-
ture-the employer does not want to discourage ee’s from
complying
HVSH Proposing Confidentiality of Exit w/ Redacted
info; however, Emp has provided spreadsheet for reason.
Respondent concedes that the meeting notes do not corrobo-
rate its testimony that it offered to provide the Union with contact
information for the nurses who completed exit interviews. It also
concedes that it initially proposed redacting the nurses’ names
and would not identify the nurses’ work locations.
Analysis
Changes in Meal Break/Meal Break Coverage and threats of
discipline for missing meal breaks
An employer’s obligation while bargaining with the certified
bargaining representative of its employees for an initial contract
is to maintain the status quo, Daily News of Los Angeles, 315
NLRB 1236 (1994). During negotiations, Respondent’s obliga-
tion to refrain from unilateral changes extends beyond the mere
duty to give notice and an opportunity to bargain, it encompasses
a duty to refrain from implementation at all, unless and until an
overall impasse has been reached on bargaining for the agree-
ment as a whole, NLRB v. Katz, 369 U.S. 736, 743 (1962), Bot-
tom Line Enterprises, 302 NLRB 373, 374 (1991), enfd. 15 F.
3d 1087 (9th Cir. 1991).
Respondent’s strict enforcement of its rule against combining
meal and rest breaks was a clear departure from the status quo
and therefore violates Section 8(a)(5) and (1) of the Act, Flam-
beau Arnold, 334 NLRB 165 (2001); Hyatt Regency Memphis,
296 NLRB 259, 263 (1989). The testimony of Respondent’s
own witness, Human Resource Director, Allison Demarais and
her emails to union representative Schraub establish that Re-
spondent’s rule was not strictly enforced until bargaining was
well under way.
Regardless of whether or not Respondent’s written rule pro-
hibited or allowed management to use its discretion in combin-
ing meal and rest breaks, its actual practice prior to March 2018
was to allow such combinations. A change in practice, even
when not a change in stated policy, during collective bargaining
5 Grossman’s testimony in this regard is not hearsay because it is the
admission of a party-opponent pursuant to Rule 801(d)(2)(c) and (d) of
the Federal Rules of Evidence. Respondent admitted that Smades was a
supervisor but did not admit that Smades was its agent, Smades clearly
was Respondent’s agent under Board precedent, Community Cash
Stores, 238 NLRB 265 (1978). When Smades spoke to Grossman, she
reasonably believed he was speaking on behalf of Respondent.
negotiations, violates Section 8(a)((5) and (1), Flambeau Arnold,
334 NLRB 165, 166 (2001). Thus, Respondent’s enforcement
of the rule prohibiting meal and break combinations and the pol-
icy mandating meal break coverage by non-unit clinical coordi-
nators violated the Act. The latter practice was not consistent
prior to March 2018, nor for a while March/April 2018, but then
was strictly adhered to while collective-bargaining negotiations
were ongoing.
Huron Valley’s new (Jan. 2018) policy threatening discipli-
nary action if nurses miss breaks also violates Section 8(a)(5)
and (1). This is a material change of employee working condi-
tions. The fact that no employee may have disciplined pursuant
to this unilateral change is irrelevant to whether it violates Sec-
tion 8(a)(5). Flambeau Arnold, supra.
Finally, Respondent violated Section 8(a)(5) and (1) in alter-
ing its established practice of having nurses cover for each other
during meal breaks while collective-bargaining negotiations
were in progress. This was a material change in that it directly
affected the nurses’ concerns regarding staffing. The new prac-
tice eliminated the work opportunities as a float nurse and thus
affected employee wages (Tr. 68).
Respondent by Steve Smades Violated Section 8(a)(3) and (1) in
Limiting Emergency Room Nurses to a 30-minute Instead of a
1-hour Break on April 14–15, 2018
I credit RN Tina Grossman’s uncontradicted testimony that
clinical coordinator Steve Smades admitted to her that he limited
emergency room nurses to a 30-minute break on April 14-15 due
to his anger at union representative Liz Riley.5 This constitutes
retaliation against the nurses because they were unit members
represented by the Union. The fact that Grossman did not engage
in any protected activity other than being a bargaining unit mem-
ber, is irrelevant. She was discriminated against due to her status
as a unit member and union member.6
Respondent Violated Section 8(a)(5) and (1) in Refusing to Pro-
vide the Union its Exit Interview Questionnaire and the Com-
pleted Exit Interview Forms
A union is entitled to request and receive information that is
relevant to its duties as the collective bargaining representative.
When the requested information concerns unit employees it is
presumptively relevant. In this matter, the exit interviews per-
tained to nurses who have left the bargaining unit and thus were
not presumptively relevant.
Nevertheless, the Union established the relevance of this re-
quest. A major issue in negotiations was staffing levels at the
hospital. The Union contended that was a reason that many
nurses were leaving Huron Valley. Respondent denied this and
for this reason the Union requested copies of the completed exit
interviews. Moreover, the Union’s concern about staffing was
one of the reasons Respondent began to strictly enforce its rule
6 Respondent is incorrect in asserting that there can be no violation if
the employee-victim did not engage in protected activity. Retaliation
against one employee for the protected activities of another violates the
Act, Keller Construction, Inc., 362 NLRB 1246, 1255 (2015); Golub
Brothers Concessions, 146 NLRB 120 (1962); PJAX, 307 NLRB 1201,
1203–1205 (1992) enfd. 993 F.3d 378 (3d. Cir 1993 ).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
against combining breaks (GC Exh. 14), (Demarais email to
Schraub at 1:06 p.m. on April 4, 2018).
Respondent’s Confidentiality Interest
Respondent contends it was privileged to withhold the com-
pleted exit interviews because it had promised departing nurses
confidentiality.7 In this regard the form states that “your re-
sponses will be confidential and will not become part of your
personnel file. The information will assist us in analyzing em-
ployee retention and turnover.”
Respondent did not provide departing nurses assurance that
their responses would in any way be limited in their dissemina-
tion to management and supervisors. One of the justifications
for Respondent’s confidentiality claim at page 11 of its brief is
that the reports may involve close coworkers, friends, and the
same managers who may later be asked to provide an employ-
ment reference. However, Respondent did not tell the departing
nurses that their completed exit interview forms would be una-
vailable to their former managers, the individuals most likely to
be asked for an employment reference. Thus, Respondent’s con-
fidentiality interest in the completed forms is insubstantial.
Assuming that Respondent has a legitimate confidentiality in-
terest in the completed exit forms, it did not offer a reasonable
accommodation to the Union under the circumstances. The bur-
den of formulating a reasonable accommodation is on the em-
ployer, the union need not propose a precise alternative to
providing the requested information unedited, Borgess Medical
Center, 342 NLRB 1105, 1106 (2004).8
Respondent’s offer to provide the Union the contact infor-
mation of former nurses is not a reasonable accommodation.
That the Union might be able to contact the nurses and do its own
survey, is not a sufficient response, Detroit Newspaper Agency,
317 NLRB 1071, 1072 (1995); Medstar Washington Hospital
Center, 360 NLRB 846 (2014); Kroger Co. 226 NLRB 512, 513
(1976). [The union is under no obligation to utilize a burden-
some procedure of obtaining desired information where the em-
ployer may have such information available in a more conven-
ient form.] The barebones summary of reasons that nurses left
Respondent’s employ (GC Exh. 4), is an obviously inadequate
response to the Union’s request for the exit interviews.
There is contradictory testimony as to whether Respondent of-
fered any other accommodation to the Union regarding the com-
pleted forms. Respondent took very limited notes at the parties’
July 18, 2017 bargaining session (R. Exh. 3). Those notes estab-
lished that the subject of redactions were discussed. I credit
Shaun Ayer’s testimony that this discussion was about redac-
tions to the completed forms, not just the blank form. However,
neither the notes nor Ayer’s testimony provides much evidence
as to the specifics of Respondent’s suggested accommodation.
I find that a reasonable accommodation to the confidentiality
7 The fact that Respondent introduced the blank interview form at
trial, without even asking for a protective order, belies its confidentiality
claim for the blank form. Thus, its failure to provide the blank interview
form to the Union violates Sec. 8(a)(5) and (1). Moreover, Respondent
has failed to give any convincing reason why the questions asked of de-
parting nurses, including those asking whether the nurse was aware of
any unlawful or fraudulent behavior should be considered confidential.
concerns raised by Respondent would have redacted only the
name and employee ID number from the completed exit form
and the names of persons to whom an unflattering reference was
made. Apart from this, the Union’s interest in the requested in-
formation far outweighs any purported confidentiality interest of
Respondent. This is particularly true of the answers to questions
# 5, “What prompted you to seek alternative employment?” 12,
“What did you like most about your job and/or this company?”
13: “What did you like the least about your job and/or this com-
pany?” 14: “What does your new job offer that your job with the
company does not?” and 19 “Are you leaving Tenet because of
any of these [unlawful or fraudulent conduct, behavior contrary
to Tenet Standards of Conduct] concerns?”
Thus, I find that Respondent violated the Act in failing to pro-
vide to the Union those responses from each exit interview that
touched upon the reason for which the nurse was leaving Re-
spondent’s employment.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(5) and (1) during collec-
tive bargaining negotiations by commencing to strictly enforce
its prohibition against combining breaks when it had not done so
previously.
2. Respondent violated Section 8(a)(5) and (1) during collec-
tive bargaining negotiations by regularly covering nurses’ meals
breaks with clinical coordinators instead of bargaining unit
nurses when it had only done so sporadically prior to the begin-
ning of collective bargaining negotiations.
3. Respondent violated Section 8(a)(5) and (1) during collec-
tive bargaining negotiations by promulgating a rule threatening
unit employees with disciplinary action if they missed paid
breaks.
4. Respondent violated Section 8(a)(5) and (1) in failing to
offer the Union a reasonable accommodation to address its con-
fidentiality concerns with regard to the Union’s request for com-
pleted exit interview forms.
5. Respondent violated Section 8(a)(3) and (1) by denying
unit employees breaks on April 14–15, 2018, in retaliation for
the conduct of a union representative.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, Huron Valley-Sinai Hospital, its officers,
agents, successors, and assigns, shall
8 Respondent did not raise the argument that the exit interviews were
privileged under Michigan state law until it filed its posttrial brief, R. Br.
at p. 15. This argument was not timely raised; thus, I decline to consider
it, Medstar Washington Hospital Center, 360 NLRB 846 fn. 1 (2014).
9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
HURON VALLEY-SINAI HOSPITAL 9
1. Cease and desist from
(a) Refusing to bargain with Michigan Nurses Association by
failing and refusing to promptly furnish exit interviews com-
pleted by former nurses from June 6, 2016.
(b) Enforcing its rule prohibiting the combination of meal and
other breaks.
(c) Covering meal breaks with clinical coordinators rather
than unit nurses.
(d) Denying bargaining unit members breaks in retaliation for
the conduct of union representatives.
(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 effectu-
ate the policies of the Act.
(a) Furnish the Union with copies of all exit interviews forms
received since June 6, 2016, with the following information re-
dacted: the name and ID number of the nurse completing the
form; the names of any persons regarding whom an unflattering
reference was made.
(b) Rescind the rule threatening discipline for employees if
they miss breaks.
(c) Make unit employees whole for any loss of earnings and
other benefits suffered as a result of the change in the policy re-
garding the coverage of meal breaks.10
(d) Within 14 days after service by the Region, post at its
Commerce Township, Michigan facility copies of the attached
notice marked “Appendix.”11 Copies of the notice, on forms pro-
vided by the Regional Director for Region 7, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employ-
ees are customarily posted. In addition to physical posting of pa-
per notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. 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, dur-
ing the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceed-
ings, 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 June 6, 2017.
(e) 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.
Dated, Washington, D.C. April 29, 2019
10 Such payments shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
11 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 National
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 violated
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT enforce our prohibition against combining meal
and other breaks without negotiating such a prohibition with the
Michigan Nurses Association.
WE WILL NOT cover meal breaks with clinical coordinators in-
stead of bargaining unit nurses without negotiating such a prac-
tice with the Michigan Nurses Association.
WE WILL NOT apply a rule threatening discipline against unit
employees for missing breaks without negotiating such a rule
with the Michigan Nurses Association.
WE WILL NOT retaliate against bargaining unit members on ac-
count of the conduct of union representatives.
WE WILL NOT refuse to provide the Michigan Nurses Associa-
tion with relevant information it requests and if the requested in-
formation contains confidential information WE WILL propose a
reasonable accommodation to the Union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL rescind the change to our Meal and Break Policy
which provides that unit employees may be disciplined for miss-
ing breaks.
WE WILL provide the Michigan Nurses Association with the
information it requested on June 6, 2017 including all exit inter-
views completed by former nurses since June 6, 2016. The
names and ID numbers of the nurse completing the form will be
redacted as will the names of any other individual to whom there
are unflattering references.
WE WILL make whole with accrued interest any nurse who suf-
fered an economic loss by virtue of the change in policy regard-
ing the coverage of breaks.
HURON VALLEY-SINAI HOSPITAL
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/07-CA-201332 or by using the QR code
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
below. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.