MAINE COAST REGIONAL HEALTH FACLITIES, d/b/a MAINE COAST MEMORIAL HOSPITAL, the sole member of which

National Labor Relations Board - Board Decisions

Mar 30, 2020

369 N.L.R.B. 51 (N.L.R.B. 2020)

369 NLRB No. 51
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.
Maine Coast Regional Health Facilities, d/b/a Maine
Coast Memorial Hospital, the sole member of
which is Eastern Maine Healthcare Systems and
Karen-Jo Young, an individual. Cases 01–CA–
209105 and 01–CA–212276
March 30, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On November 2, 2018, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent filed
exceptions and a supporting brief, the General Counsel
filed an answering brief, and the Respondent filed a reply.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.1
I.
The Respondent operates Maine Coast Memorial Hos-
pital, which is located in Ellsworth, Maine. In 2015, East-
ern Maine Hospital Systems (EMHS) became the parent
company of the Respondent as well as eight additional
hospitals or facilities.2 Beginning about April 2016,
EMHS maintained a media policy, also known as “EMHS
system policy #12-000,” applicable to all of EMHS’s fa-
cilities, including the Ellsworth facility operated by the
Respondent. The media policy read:
No EMHS employee may contact or release to news me-
dia information about EMHS, its member organizations
or their subsidiaries without the direct involvement of
the EMHS Community Relations Department or of the
chief operating officer responsible for that organization.
Any employee receiving an inquiry from the media will
direct that inquiry to the EMHS Community Relations
Department, or Community Relations staff at that organ-
ization for appropriate handling.
In September 2017, Karen-Jo Young, an activities coor-
dinator at the Respondent’s Ellsworth facility, submitted a
1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 The other EMHS hospitals/facilities are Acadia Hospital, Blue Hill
Memorial Hospital, CA Dean Memorial Hospital, Eastern Medical Cen-
ter, Inland Hospital, Lakewood Continuing Care Center, the Aroostook
Medical Center, and VNA Home Health & Hospice.
letter to the editor of a local newspaper, The Ellsworth
American, discussing staffing shortages at the hospital and
the impact on her and her coworkers’ working conditions,
and expressing support for the Ellsworth nurses’ union’s
efforts to improve staffing levels.3 On September 21, the
day Young’s letter was published, the Respondent’s pres-
ident discharged her, citing her violation of the media pol-
icy.
On January 15, 2018, after Young had been discharged
and the underlying unfair labor practice charge had been
filed, EMHS amended the original media policy to include
the following “savings clause”:
This Policy does not apply to communications by em-
ployees, not made on behalf of EMHS or a Member Or-
ganization, concerning a labor dispute or other concerted
communications for the purpose of mutual aid or protec-
tion protected by the National Labor Relations Act.
Neither EMHS nor the Respondent notified employees at any
EMHS facility of this amendment, however.
II.
The judge found that Young was engaged in protected
concerted and union activity when she wrote and submit-
ted her letter to The Ellsworth American and that the Re-
spondent violated Section 8(a)(1) and 8(a)(3) by discharg-
ing Young for that activity. Further, applying Boeing Co.,
365 NLRB No. 154 (2017), the judge found that the Re-
spondent violated Section 8(a)(1) by maintaining the orig-
inal media policy and enforcing that unlawful policy
against Young. Moreover, the judge found that the Re-
spondent’s amended media policy, issued after Young’s
discharge, continued to be unlawful under Boeing, in vio-
lation of Section 8(a)(1). The judge’s proposed order in-
cluded a provision requiring the rescission or revision of
the amended media policy and the posting of notices at the
Respondent’s hospital and at EMHS’s eight other facili-
ties.
After careful consideration, we affirm the judge’s find-
ings and conclusions that Young was discharged for en-
gaging in protected concerted and union activity in viola-
tion of Section 8(a)(1) and 8(a)(3), for the reasons dis-
cussed in the judge’s decision. We also agree with the
judge that the Respondent’s original media policy was
3 The Maine State Nurses Association/National Nurses Organizing
Committee/National Nurses Union (the Union) represented a unit of
nurses and other professional staff as well as a unit of technical employ-
ees. Young was not employed within either of those units and was not a
supervisor.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
unlawfully overbroad under Boeing.4 Contrary to the
judge, however, we find that the Respondent’s amended
media policy is lawful under Boeing. Finally, we amend
the remedy and substitute a new Order and notices con-
sistent with our findings and the facts of this case.
III.
In Boeing, the Board overruled the "first prong" of the
standard set forth in Lutheran Heritage Village-Livonia,
343 NLRB 646 (2004), which held that a facially neutral
work rule or policy was unlawful under the Act if employ-
ees would reasonably construe the language of the rule or
policy as prohibiting Section 7 activity.5 Under Boeing,
the Board established a new test, the first step of which is
to determine whether a facially neutral rule, reasonably in-
terpreted, would potentially interfere with the exercise of
NLRA rights. Accord LA Specialty Produce Co., 368
NLRB No. 93, slip op. at 2 (2019). If it does not, then the
Board will find the rule lawful without further analysis.
Boeing, above, 365 NLRB No. 154, slip op. at 3, 16; ac-
cord LA Specialty, above, slip op. at 2.6 But if the rule
would reasonably be read to restrict Section 7 rights, then
the Board will go on to evaluate two factors: “(i) the nature
and extent of the potential impact on NLRA rights, and (ii)
legitimate justifications associated with the rule.” Boeing,
4 The General Counsel asserts that the Respondent’s exceptions to the
judge’s finding that the original media policy was unlawful under Sec.
8(a)(1) should be dismissed as they were not adequately briefed under
Sec. 102.46 of the Board’s Rules and Regulations. The Respondent’s
exceptions brief does address these exceptions, however. Albeit briefly,
the Respondent contends that the lawfulness of the original policy is now
moot because it has been replaced by the lawful amended media policy.
The Respondent also argues that the original media policy was lawful in
any event under Boeing, above, because it did not deter Sec. 7 activity
and served a legitimate and substantial business justification – protecting
the Respondent’s public image and branding by preventing unauthorized
individuals from speaking to the media on the Respondent’s behalf. The
judge found, however, that the policy was not tailored to these asserted
justifications and, further, that the Respondent’s interest was outweighed
by the significant impact on employees’ Sec. 7 right to communicate
with third parties, such as the media, about work-related disputes, includ-
ing the alleged understaffing issue at the Ellsworth facility. We agree.
The issue is not moot, moreover, because the original policy was in effect
during the relevant Sec. 10(b) period and, as explained below, the Re-
spondent never informed employees that the policy was later amended
to exclude Sec. 7–protected communications with the media.
5 Prongs two and three of Lutheran Heritage’s test, however, remain
intact after the Boeing decision. That is, if a rule was promulgated in
response to union activity (prong two) or if a rule has been applied to
restrict the exercise of Sec. 7 rights (prong three), the Board will still find
the challenged rule unlawful. See e.g., AdvancePierre Foods, Inc., 366
NLRB No. 133, slip op. at 1-2 fn. 4 (2018) (employer’s no solicitation/no
distribution rule, promulgated in response to learning employees were
distributing union authorization cards, unlawful under Lutheran Herit-
age’s prong two).
6 The Boeing Board explained that, over time, the Board would sort
employer rules into the following three categories: Category 1, which
will include rules that the Board designates as lawful to maintain, either
above, slip op. at 3; LA Specialty, above, slip op. at 2.
Having performed this two-step evaluation, the Board will
balance the potential impact on Section 7 rights against the
justifications associated with the rule. Where the Board
finds that the Section 7 impact is outweighed by those jus-
tifications, the rule will be found lawful; by contrast, the
rule will be found unlawful where the employer’s justifi-
cations are outweighed by the adverse impact on rights
protected by Section 7. Boeing, above, slip op. at 16.
Applying the above principles, we find, contrary to the
judge, that the Respondent’s amended media rule is lawful
because, when reasonably interpreted, there is no potential
interference with the exercise of Section 7 rights.7 The
amended media rule expressly carves out from its prohibi-
tion “communications by employees, not made on behalf
of EMHS or a Member Organization, concerning a labor
dispute or other concerted communications for the pur-
pose of mutual aid or protection protected by the National
Labor Relations Act.” Based on this clear language, an
objectively reasonable employee would not interpret the
amended media rule, with the express savings clause, as
interfering with his or her Section 7 rights. LA Specialty,
above, slip op. at 2 (stating that a challenged rule should
be determined by reference to “the perspective of an
because (i) the rule, when reasonably interpreted, does not prohibit or
interfere with the exercise of NLRA rights; or (ii) the potential adverse
impact on protected rights is outweighed by justifications associated with
the rule; Category 2, which will include rules that warrant individualized
scrutiny in each case as to whether the rule would prohibit or interfere
with NLRA rights, and if so, whether any adverse impact on NLRA-
protected conduct is outweighed by legitimate justifications; and Cate-
gory 3, which will include rules that the Board will designate as unlawful
to maintain because they would prohibit or limit NLRA-protected con-
duct, and the adverse impact on NLRA rights is not outweighed by jus-
tifications associated with the rule. LA Specialty, above, slip op. at 2.
These categories “‘will represent a classification of results from the
Board’s application of the new test. The categories are not part of the
test itself.’” Id. (quoting Boeing, above, slip op. at 4) (emphasis in orig-
inal). In LA Specialty, the Board slightly modified the nomenclature un-
der Category 1, explaining that going forward the Board would refer to
the subcategories as 1(a) and 1(b). LA Specialty, above, slip op. at 2 fn.
2.
7 We affirm the judge’s findings and conclusion that the original me-
dia rule significantly burdens the employees’ protected rights to com-
municate with third parties about labor disputes in order to seek improve-
ments in their working conditions, and that the restrictions on Sec. 7
rights far outweighed the Respondent’s proffered justifications. See
Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978) (the right to “seek to
improve terms and conditions of employment . . . through channels out-
side the immediate employee-employer relationship” is essential to vin-
dicate the guarantees of the Act). However, rather than apply the Boeing
analysis to the amended media policy, the judge extended his finding that
the original media policy was unlawful to also find the amended media
policy unlawful, reasoning that “the relevant circumstances do not
change the result under the Boeing analysis.” We disagree with the
judge’s analysis and apply Boeing to analyze the amended media policy
separately.
MAINE COAST REGIONAL HEALTH FACILITIES, D/B/A MAINE COAST MEMORIAL HOSPITAL 3
objectively reasonable employee”).8 Accordingly, we
conclude that the amended media policy is lawful.
We note that, in large part, the judge's analysis relied on
Young’s previous discharge under the unlawful original
media policy and the Respondent’s failure to repudiate
that discharge or to inform employees that the amended
policy permitted the type of protected activity that had
triggered Young’s discharge. In the judge’s view, those
circumstances would lead a reasonable employee to draw
“the only logical conclusion”: that the amended policy
still prohibited protected activity such as that engaged in
by Young.9 We disagree. Instead, we find it significant
that the parties stipulated that Young’s discharge was the
first and only incident where an employee had been disci-
plined under the original media policy. Under these cir-
cumstances, we find that an objectively reasonable em-
ployee would not view Young’s isolated discharge under
the original media rule as obscuring the very clear mean-
ing of the savings clause in the amended media rule, which
expressly allows for Section 7 activity and which replaced
the original media policy.10
For those reasons, we conclude that the Respondent’s
amended media policy is lawful and can be categorized as
a Category 1(a) rule under Boeing. Accord LA Specialty,
above, slip op. at 4–5 (employer’s media contact rule pro-
hibiting employees from speaking to the media on their
employer’s behalf, when reasonably interpreted, does not
potentially interfere with the exercise of Section 7 rights
and is lawful under Boeing as a Category 1(a) rule).
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative actions necessary to
effectuate the policies of the Act. Among the latter, the
Respondent shall make Karen-Jo Young whole for any
loss of earnings and other benefits incurred as a result of
her unlawful discharge under the unlawful original media
rule. Backpay shall be computed in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest at
8 The judge relied heavily on the pre-Boeing decision, First Transit,
Inc., 360 NLRB 619 (2014), for the principle that savings clause lan-
guage “may, in certain circumstances, clarify the scope of an otherwise
ambiguous and unlawful rule.” The viability of First Transit after Boe-
ing, however, is questionable given that case involved the “reasonably
construe” prong of Lutheran Heritage, above, which, as we discussed,
Boeing expressly overruled. Boeing, above, at 620. The judge further
relied on First Transit in finding the savings clause deficient because it
failed to address “the broad panoply of rights” that employees enjoy un-
der the Act and, as a result, the clause created an “ambiguity” that must
be construed against the Respondent. In addition to the judge’s precari-
ous reliance on First Transit, we further reject this finding as inconsistent
with the principles of Boeing and subsequent decisions. See LA Spe-
cialty, above, slip op. at 2 (“[A] challenged rule may not be found un-
lawful merely because it could be interpreted, under some hypothetical
the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). The Respondent
shall also compensate Karen-Jo Young for any adverse tax
consequences of receiving a lump-sum backpay award,
and file with the Regional Director for Region 1, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the back-
pay award to the appropriate calendar year. AdvoServ of
New Jersey, Inc., 363 NLRB No. 143 (2016). In accord-
ance with King Soopers, Inc., 364 NLRB No. 93 (2016),
enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017), we
shall also order the Respondent to compensate Karen-Jo
Young for any reasonable search-for-work and interim
employment expenses regardless of whether those ex-
penses exceed interim earnings. Search-for-work and in-
terim employment expenses shall be calculated separately
from taxable net backpay, with interest at the rate pre-
scribed in New Horizons, above, compounded daily as
prescribed in Kentucky River Medical Center, above.
Having found that the Respondent’s original media pol-
icy was unlawful but was then amended in a manner that
made it lawful, we shall provide for the posting of notices
advising employees that the unlawful original media pol-
icy has been replaced with the lawful amended media pol-
icy (also known as EMHS system policy #12-000), and
clarifying that the amended media rule is lawful because
it expressly allows for employee communications with the
news media protected by the Act.
We shall also substitute a new notice for the Maine
Coast Memorial Hospital and a separate notice for
EMHS’s eight other facilities where EMHS system policy
#12-200 was in effect, consistent with our findings and
conclusions and to more accurately reflect the particular
facts of this case. Regarding the last point, although the
original and amended media policies were in effect at all
EMHS facilities, including Maine Coast Memorial Hospi-
tal, as noted above there is no record evidence that
Young’s discharge and her protected activity were known
scenario, as potentially limiting some type of Section 7 activity, or be-
cause the employer failed to eliminate all ambiguities from the rule, an
all-but-impossible task.”).
9 The judge did not find, the General Counsel did not argue, nor does
the record support finding that employees at EMHS’s other facilities
were aware of Young’s unlawful discharge or her protected activity.
10 The judge further found that even if the amended media rule is
lawful, “that would not cure the violation the Respondent committed by
maintaining the earlier version of the policy” because the Respondent did
not repudiate the original media rule under Passavant Memorial Area
Hospital, 237 NLRB 138, 139 (1978). We agree that the prior policy
remained unlawful, notwithstanding the Respondent’s subsequent
amendment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
among employees outside that hospital. For that reason,
only the notice-posting at Maine Coast Memorial Hospital
will include cease-and-desist and affirmative provisions
related to Karen-Jo Young’s unlawful discharge. See,
e.g., Lily Transportation Corp., 362 NLRB 406, 407–408
(2015) (Board ordered new notice where the employer had
rescinded, without notification to employees, an unlawful
work rule); see also Murray American Energy, Inc., 366
NLRB No. 80, slip op. at 1 fn. 4 (2018) (separate notices
tailored to address the different unfair labor practices that
occurred at each plant).
ORDER
The Respondent, Maine Coast Regional Health Facili-
ties d/b/a Maine Coast Memorial Hospital, the sole mem-
ber of which is Eastern Maine Healthcare Systems, Ells-
worth, Maine, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining or enforcing any work rule or system
policy, such as the original version of EMHS system pol-
icy #12-200, that prohibits employee communications
with the news media protected by the National Labor Re-
lations Act, or that requires employees to involve, or ob-
tain permission from, the Respondent or Eastern Maine
Health Systems (EMHS) before engaging in such commu-
nications.
(b) Discharging, disciplining, or otherwise discriminat-
ing against employees for engaging in protected concerted
activities and/or for supporting Maine State Nurses Asso-
ciation/National Nurses Organizing Committee/National
Nurses United, or any other labor organization.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Advise the Respondent’s employees that the origi-
nal media policy will not be used to discipline them for
communicating with the news media, with or without the
involvement of the Respondent or EMHS, regarding em-
ployees’ terms and conditions of employment or union ac-
tivity.
(b) Within 14 days from the date of this Order, offer
Karen-Jo Young full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent po-
sition, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judgment
(c) Make Karen-Jo Young whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against her in the manner set forth herein.
(d) Compensate Karen-Jo Young for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 1,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar year(s).
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Karen-Jo Young, and within 3 days thereafter, notify the
employee in writing that this has been done and that the
discharge will not be used against her in any way.
(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, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary 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 Ellsworth, Maine, a copy of the attached no-
tice marked “Appendix A,” and at all facilities where
EMHS’s original media policy may have been circulated,
including Acadia Hospital, Blue Hill Memorial Hospital,
CA Dean Memorial Hospital, Eastern Medical Center, In-
land Hospital, Lakewood Continuing Care Center, the
Aroostook Medical Center, and VNA Home Health &
Hospice, post copies of the notice marked “Appendix
B.”11 Copies of the respective notices, on forms provided
by the Regional Director for Region 1, after being signed
by the Respondent’s or EMHS’s authorized representa-
tive, shall be posted and maintained for 60 consecutive
days in conspicuous places, including all places where no-
tices to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be distrib-
uted electronically, such as by email, posting on an intra-
net or an internet site, and/or other electronic means, if the
Respondent or EMHS customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent and EMHS to ensure that the no-
tices are not altered, defaced, or covered by any other ma-
terial. If the Respondent or EMHS has gone out of busi-
ness or closed any of the facilities involved in these pro-
ceedings, the Respondent or EMHS shall duplicate and
mail, at its own expense, a copy of the notice to all current
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
MAINE COAST REGIONAL HEALTH FACILITIES, D/B/A MAINE COAST MEMORIAL HOSPITAL 5
employees and former employees employed by the Re-
spondent or EMHS at any time since April 1, 2016.
(h) Within 21 days after service by the Region, file with
the Regional Director for Region 1 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. March 30, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 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 maintain or enforce any work rule or sys-
tem policy that prohibits employees from engaging in
NLRA-protected communications with the news media,
or that requires employees to involve, or obtain permis-
sion from, Maine Coast Memorial Hospital or Eastern
Maine Health Systems before engaging in such communi-
cations.
WE WILL NOT, in particular, maintain or enforce our
original media policy stated in EMHS system policy #12-
200 because the Board found that this policy, as originally
stated, violated the Act. Effective January 15, 2018, we
amended that policy to expressly permit NLRA-protected
employee communications with the news media, and the
Board found that this amended policy is lawful.
WE WILL NOT discharge, discipline, or otherwise dis-
criminate against employees for engaging in protected
concerted activities and/or for supporting Maine State
Nurses Association/National Nurses Organizing Commit-
tee/National Nurses United, or any other labor organiza-
tion.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Karen-Jo Young full reinstatement to her for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
WE WILL make Karen-Jo Young whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against her, less any net interim earnings, plus
interest, and WE WILL also make her whole for reasonable
search-for-work and interim employment expenses, plus
interest.
WE WILL compensate Karen-Jo Young for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 1, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate cal-
endar year(s).
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Karen-Jo Young, and WE WILL, within 3 days
thereafter, notify her in writing that this has been done and
that the discharge will not be used against her in any way.
MAINE COAST REGIONAL HEALTH FACILITIES
D/B/A MAINE COAST MEMORIAL HOSPITAL
The Board’s decision can be found at
www.nlrb.gov/case/01-CA-209105 or by using the QR
code 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
APPENDIX B
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 maintain or enforce any work rule or sys-
tem policy that prohibits employees from engaging in
NLRA-protected communications with the news media,
or that requires employees to involve, or obtain permis-
sion from, Eastern Maine Health Systems or one of its af-
filiated hospitals before engaging in such communica-
tions.
WE WILL NOT, in particular, maintain or enforce our
original media policy stated in EMHS system policy #12-
200 because the Board found that this policy, as originally
stated, violated the Act. Effective January 15, 2018, we
amended that policy to expressly permit NLRA-protected
employee communications with the news media, and the
Board found that this amended policy is lawful.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights listed above.
MAINE COAST REGIONAL HEALTH FACILITIES
D/B/A MAINE COAST MEMORIAL HOSPITAL
The Board’s decision can be found at
www.nlrb.gov/case/01-CA-209105 or by using the QR
code 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.
Gene M. Switzer, Esq., for the General Counsel.
Frank T. McGuire, Esq. and Joshua A. Randlett, Esq. (Rudman
Winchell, LLC), of Bangor, Maine, for the Respondent.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Bangor, Maine, on July 17 and 18, 2018. Karen-Jo Young, an
individual, filed the initial charge on October 31, 2017, and
amended that charge on June 19, 2018. Young filed a second
charge on December 28, 2017. The Acting Regional Director
for Region One of the National Labor Relations Board (the
Board) issued the consolidated complaint on February 28, 2018,
and an amended consolidated complaint on June 20, 2018. At
trial the amended consolidated complaint was further amended
to clarify the name of the Respondent. The complaint, as
amended, alleges that Maine Coast Regional Health Facilities
d/b/a Maine Coast Memorial Hospital, the sole member of which
is Eastern Maine Healthcare Systems (the Respondent), violated
Section 8(a)(1) and 8(a)(3) of the National Labor Relations Act
(the Act or NLRA) by terminating the charging party’s employ-
ment because she engaged in protected concerted and union ac-
tivity by submitting a letter to a local newspaper in which she
made common cause with employees voicing concerns about
working conditions, and violated Section 8(a)(1) of the Act by
maintaining an unlawful policy restricting employees’ work-re-
lated communications with the media. The Respondent filed a
timely answer in which it denied committing the violations al-
leged.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following
Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a nonprofit corporation, operates a hospital
in Ellsworth, Maine, where it annually derives gross revenues in
excess of $250,000 and purchases and receives goods valued in
excess of $5000 directly from points outside of the State of
Maine. The 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 a health care institution within the mean-
ing of Section 2(14) of the Act. I find that the Maine State
Nurses Association/National Nurses Organizing Committee/Na-
tional Nurses Union (the Union) is a labor organization within
the meaning of Section 2(5) of the Act.
MAINE COAST REGIONAL HEALTH FACILITIES, D/B/A MAINE COAST MEMORIAL HOSPITAL 7
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent operates Maine Coast Hospital in Ellsworth,
Maine. In 2015, the Respondent became affiliated with Eastern
Maine Healthcare Systems (EMHS), which manages a network
of nine hospitals. On November 21, 2017, EMHS became the
“sole member” of the Respondent, which, according to the par-
ties, means that EMHS is the nonprofit equivalent of the Re-
spondent’s corporate parent and that the Respondent is the equiv-
alent of a wholly owned subsidiary of EMHS.1 The Respondent
employs approximately 500 persons at Maine Coast Hospital.
The Union represents two bargaining units of Maine Coast Hos-
pital employees. One unit, composed of registered nurses and
other professional staff, has been represented by the Union for
decades and was covered by a contract that went into effect on
May 21, 2016, and was effective at the time of the alleged viola-
tions. The other unit, composed of technical employees, has been
represented by the Union since November 2017. Young, the
charging party in this case, was not a member of either bargain-
ing unit during her employment with the Respondent.
B. Management Actions; Employee Resignations and Petition
over Staffing
The highest ranking official at the Respondent is its president,
John Ronan. Ronan is an employee of EMHS, not the Respond-
ent, and he serves simultaneously as the president of the Re-
spondent and a second EMHS network hospital. EMHS per-
forms the human resources, legal services, and some patient ac-
counting, functions for the Respondent. The record shows that
when the Respondent became affiliated with EMHS in 2015, the
Respondent was facing challenges with both finances and em-
ployee morale. Ronan testified that the Respondent had been los-
ing money since 2010 and that when he became acting president2
in the fall of 2016, the loss for the prior year was $6 to 7 million.
The new management team took actions intended to address the
Respondent’s financial situation. By the period beginning in
September of 2017, the Respondent was beginning to be profit-
able, but the management’s actions did not solve the Respond-
ent’s other problem—poor employee morale—and may have ex-
acerbated it. For example, the Respondent cancelled the con-
tracts of 50 of the 54 physicians at the facility, discharged six of
those physicians outright, and attempted to renegotiate the con-
tract terms of the others.3 A number of the hospital’s physicians,
including four of the five physicians in the emergency depart-
ment, responded by resigning rather than agreeing to renegotiate
their contracts. Physicians expressed anger over the Respond-
ent’s actions at a heated meeting during which Ronan acknowl-
edged that the way management had handled the physician con-
tracts for the emergency department was confusing and frustrat-
ing. Transcript at Page(s) (Tr.) 257–258. Young, the charging
1 Transcript at Page(s) (Tr.) 267-268, 411.
2 Ronan remained in acting status until August 2017, at which time
he became president of the Respondent.
3 The changes the Respondent was seeking to make in the physician’s
contracts related to wages, hours, benefits, and other terms and condi-
tions of employment.
party in this case, credibly testified that employees at the hospital
had discussed the physician resignations and that the departures
were “very upsetting for everybody.” (Tr. 39–40.)
In addition, the nurses’ bargaining unit had ongoing concerns
that the Respondent was not adequately staffing the hospital with
nurses. When nurses who left the Respondent were not replaced,
the employees would call attention to this by placing a note on
the departed nurse’s locker. Staffing concerns were a subject of
negotiations and this led to the inclusion of new language in the
most recent contract, which became effective in May 2016. Af-
ter that contract went into effect, the Union continued to have
concerns about the adequacy of nurse staffing and believed that
the Respondent was not adhering to the contract provision re-
garding staffing levels and attempted to draw management’s at-
tention to the issue. (Tr.147–148.) Ronan acknowledged that
there was a shortage of nurses at the hospital during this time
period, although he was quick to add that the Respondent had not
“cut” any nurse positions. (Tr. 171–172.) The Union did not in-
voke the grievance process to address the staff shortages, but in-
stead chose to present a petition to the Respondent on August 28,
2017. Bruce Becque (chief steward for the nurses’ unit), a num-
ber of other unit members, and Todd Ricker (Union labor repre-
sentative)4 presented the petition to Noah Lundy (regional direc-
tor of human resources for EMHS) and Ardelle Bigos (chief
nursing officer at Respondent).
The employee petition, which was signed by over 60 persons,5
stated:
We, the undersigned, again want to call attention to the lack of
adequate nursing and laboratory staffing at the hospital. We
have repeatedly requested better staffing levels and have yet to
see substantial improvement. We are exhausted, demoralized,
and are rapidly losing faith that the [Maine Coast Memorial
Hospital (MCMH)] administration will ever respect our profes-
sional judgment about working conditions at the hospital and
clinics. On a daily basis our departments work without ade-
quate support from the administration: Charge nurse routinely
have a patient care assignment; secretaries are frequently not
scheduled; continuous telemetry monitoring in the ICU is not a
given; the slightest increase in inpatient census taxes our nurs-
ing resources and puts our patients at risk. The emotional and
physical toll created by these conditions is pushing us to our
limits. In light of this daily struggle for professional survival,
the rewards of working at MCMH are few and far between.
Inadequate staffing on Med/Surg is the focal point of nursing
troubles at MCMH. Higher than average inpatient census
stresses MCMH’s staffing resources. Med/Surg RNs end up
with unsafe patient loads. ICU and OB RNs are required to
float to Med/Surg, which increases their job dissatisfaction.
Throughput from the ED is slowed and ED RNs effectively
4 At the time the time of trial, Ricker was the Union’s labor repre-
sentative and lead labor representative for Maine, but at the time the pe-
tition was presented he was a labor representative, but not yet the lead
labor representative.
5 Many, but not all, of the signers identified themselves on the petition
as nurses. The record does not reveal whether the signers included em-
ployees who were not nurses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
become Med/Surg nurses, which increases their job dissatisfac-
tion, too.
Therefore, we demand that you take immediate steps to better
support staffing on Med/Surge and ICU. Specifically: 1) In
keeping with our contract language, that charge nurses not or-
dinarily take patient care assignments (ordinarily = not more
than 50 percent of the time). They must be available to be a
resource and to coordinate patient care. 2) Follow the
Med/Surg and ICU staffing grids. 3. Restore full-time secretar-
ial coverage to all units.
The Respondent did not provide the nurses with any response
to the petition, either at the time it was delivered or thereafter.
(Tr. 155–156.) Ronan testified that once he satisfied himself that
the Respondent was in compliance with the staffing require-
ments in the nurses’ labor contract, he “left it at that.” (Tr. 264.)
While the Respondent was attempting to address problems
with profitability, it was not only experiencing the previously
discussed problems with employee morale, but also appears to
have been experiencing problems with customers. Ronan testi-
fied that, prior to the time of the petition, the Respondent was
“starting to see E[mergency ]R[oom]” and “inpatient census . . .
dropping” and had hired an external public relations firm to help
communicate a positive image of the Respondent to the commu-
nity. (Tr. 174, 176.)
C. The Charging Party
Young, the charging party in this case, was discharged by the
Respondent on September 21, 2017, for violating an employer
policy that prohibited employees from having contacts with the
media relating to EMHS and its member organizations without
the direct involvement of the EMHS Community Relations De-
partment or of the chief operating officer responsible for that or-
ganization. Prior to her discharge, Young had been the Respond-
ent’s activities coordinator for over 13 years. In that position,
Young provided patients with activities intended to keep them
stimulated during their hospital stays. Young did not supervise
any employees, although at times she had overseen the work of
volunteers. Young’s duties also included responding when pa-
tients activated their call lights and then conveying the patients’
requests to nurses or other staff who Young determined could
best provide the requested assistance. (Tr. 29–30, 282–283.) In
addition, Young interacted with registered nurses and physical
therapists as part of a program in which she took patients for
scheduled walks to help keep them physically active. She was
responsible for helping patients in and out of their beds or chairs
and for communicating with occupational therapists and physi-
cal therapists about changes she observed in patient condition.
Young also worked with hospital physicians to obtain prescrip-
tions for equipment such as canes and wheelchairs that patients
would need when they were discharged from the hospital. Young
was trained as a licensed practical nurse (LPN) and, while she
was not employed as a nurse by the Respondent, Young credibly
testified that part of her job was to help with nursing activities.
(Tr. 84.) The evidence showed that, not long before the
6 This was designated EMHS system policy # 12-000.
Respondent discharged Young, it issued a performance evalua-
tion that recognized Young for pro-actively offering assistance
to the nursing department. (Tr. 302, 305.) According to Douglas
Keith, the head of the department in which Young worked, when
the nursing staff requested Young’s assistance, Young and her
supervisor were expected to “discuss whether and how” provid-
ing assistance to the nurses “could fit into [Young’s] daily as-
signments.” (Tr. 303.)
Although Young was not herself a member of the nurse’s bar-
gaining unit, she informed the Respondent that she had concerns
about the adequacy of nurse staffing levels. She did this in two
emails to Lundy on June 23, 2017—at a time when, according to
Ricker, the Union had continuing concerns about staffing and
about 3 months in advance of when representatives of the nurses
presented a staffing petition to management. In her emails to
Lundy, Young stated that “[n]urses have increased patient loads
now for some reason,” and that she had seen “several safety is-
sues,” including a patient “leaving the floor with his packed
bag,” and “patients calling to use the bathroom but nurses tied
up with other patients.” She stated that the medical/surgical unit
“is very short staffed—nurses feel they have more patients than
they can manage.” Young expressed the view that the Respond-
ent should arrange for her to have more time to assist the nurses
and suggested that this could be accomplished by using volun-
teers for some of Young’s more routine activities. Young cred-
ibly testified that all the staff in patient care areas worked to-
gether “as a team” and that when “one part of your team is short-
staffed” it has “a ripple effect” that “everyone more or less feels.”
(Tr. 49–50.) By way of example of this ripple effect, Young re-
counted that she had been “involved with situations where pa-
tients were in unsafe situations, and understaffing meant that
there were no registered nurses close by to pull in because they
were all with other patients.” Ibid. Young also credibly testified
that, on a daily basis, certified nursing assistants told her that
they were assigned “way too many patients to care for.” (Tr. 49.)
D. Media Policy
1. Version in effect until January 14, 2018
On April 1, 2016, not long after Respondent became part of
the EMHS network, management made a number of EMHS sys-
tem policies applicable to the Respondent and its employees.
The Respondent notified employees that they could use an on-
line portal to access these policies. Approximately 263 employer
policies were available at that portal. Among the many EMHS
policies made applicable to the Respondent in April 2016 was a
one-page policy entitled News Release, External Publication and
Media Contact (Media Policy).6 That policy includes the fol-
lowing prohibition:
No EMHS employee may contact or release to news media in-
formation about EMHS, its member organizations or their sub-
sidiaries without the direct involvement of the EMHS Commu-
nity Relations Department or of the chief operating officer re-
sponsible for that organization. Any employee receiving an in-
quiry from the media will direct that inquiry to the EMHS
MAINE COAST REGIONAL HEALTH FACILITIES, D/B/A MAINE COAST MEMORIAL HOSPITAL 9
Community Relations Department, or Community Relations
staff at that organization for appropriate handling.
The policy includes the following statement of purpose: “To pre-
sent EMHS and its various member organizations to the general
public in a manner consistent with the brand and supporting the
mission statement of EMHS.” Suzanne Spruce, EMHS chief
communications officer, testified that the purpose of the policy
was to control the company’s brand and reputation for being a
place where it was safe to obtain care. She stated that its purpose
was also to provide a “safety net” to employees by “prepar[ing]”
them before they spoke to reporters. She noted that reporter’s
inquiries sometimes implicated patient privacy concerns. Spruce
testified that it was not the intent of the Media Policy to suppress
union activity or prohibit employees from talking about their
working conditions.
At trial, the Respondent and the General Counsel entered into
a stipulation that Young’s termination was the only disciplinary
action that the Respondent, and EMHS more generally, had ever
taken at any EMHS facility for a violation of the Media Policy.
An internal company document from September 20, 2017, rec-
ognized that “some [managers] may have never seen th[e media]
policy,” General Counsel Exhibit Number (GC Exh.) 18, a fact
that is not surprising given that there were well over 200 em-
ployer policies available through the Respondent’s on-line por-
tal. Even Ronan had not been aware of the Media Policy until 3
or 4 months before he invoked it to terminate Young. (Tr. 233–
235.) Young did not recall ever having seen the policy prior to
when the Respondent told her she was being discharged for vio-
lating it.
2. Language added to the policy on January 15, 2018
On January 15, 2018, after the Respondent terminated Young
and she filed the charges that led to this litigation, the Respond-
ent added the following sentence to the Media Policy:
This policy does not apply to communications by employees,
not made on behalf of EMHS or a Member Organization, con-
cerning a labor dispute or other concerted communications for
the purpose of mutual aid or protection protected by the Na-
tional Labor Relations Act.
Spruce testified that this was not a “substantive change,” but only
a “clarification” of the policy. See also Brief of Respondent at
Page 12 (new language in Media Policy did not constitute a “sub-
stantive change”). The Respondent, by email dated January 17,
2018, notified its department heads that a revision had occurred
and stated: “Please ensure policy updates are shared as appropri-
ate within your organization(s) and/or among your teams.” The
email did not explain the modification or articulate any purpose
for it. Douglas Keith, the manager of the rehabilitation depart-
ment where Young had worked prior to her discharge, testified
that he advised employees of the modification during a meeting
with some, but not all, of the employees in the department. He
himself had not been advised of the reasons for the modification
and his communication to employees was simply that the policy
had been revised and that they were responsible for reviewing
the revision. The record does not establish the actions that other
department heads may, or may not, have taken to communicate
with employees about the language added to the Media Policy.
E. Respondent Subject of Media Attention in the Ellsworth
American
The Ellsworth American is a weekly local newspaper that has
been in existence for at least 30 years. The Respondent is located
in Ellsworth and at the end of August and beginning of Septem-
ber 2017 the Ellsworth American published a number of pieces
that discussed reported dissatisfaction among the Respondent’s
employees. On August 31, the paper ran a front-page article with
the title “Rewritten contracts cause unrest at MCMH.” The arti-
cle discussed reports that the Respondent’s decision to renegoti-
ate its contracts with physicians had led a number of those phy-
sicians to resign. The article quoted physicians who had recently
been providers at the Respondent as saying, inter alia, that “the
biggest problem is that they don’t understand the value of good
people” and that physicians were leaving for “places where they
can get better hours and more pay.” Ronan was quoted in the
article as recognizing that physician recruitment and retention
was a problem and that some physicians had resigned. He was
quoted as stating that “[a]s of yesterday we’ve got a plan in place
to ensure we’ve got coverage for every shift” and that on some
shifts the Respondent had been using temporary physicians,
known as “locums,” who he recognized were generally “more
expensive” for the Respondent than employee-physicians. The
article also quoted the chairwoman of the Respondent’s Board,
Debbie Ehrlenbach, as commenting favorably on the Respond-
ent’s decision to affiliate with EMHS, and stating “We are
pleased with the plans that Maine Coast’s senior leadership has
developed, working in partnership with EMHS, to ensure we will
have sufficient physician coverage to continue to deliver high-
quality care.”
The next weekly issue of the Ellsworth American, published
on September 7, 2017, included another front-page article re-
garding the Respondent, this one entitled “MCMH nurses cite
staffing in petition.” The article reported on the staffing petition
that the nurses had delivered to the Respondent 10 days earlier
on August 28. As noted above, the Respondent had chosen not
to make any response to its employees about their petition. The
article reported that Becque said “many in the union are frus-
trated by what they say are unsafe and inappropriate staffing lev-
els” and that the Respondent had been “cutting and cutting, and
when people leave they don’t replace them.” The article also
stated that Becque said he had “tried to follow the grievance pro-
cess laid out in the nursing contract but hasn’t seen results.” One
nurse was quoted as complaining that "It seems like short-
sighted financial decisions for a quick impact, but it’s having
long-term devastating results.” The article also reported that the
Respondent had made changes that amounted to “an effective
pay cut of about 30 percent” for certified registered nurse anes-
thetists and that half of those employees had left the Respondent
as a consequence. In a written statement, the hospital responded
that it was “abiding by all contractual obligations” regarding
nurse staffing.
In the next issue of the Ellsworth American, on September 14,
the newspaper published an editorial that recognized the con-
cerns of both the nurses and hospital management and urged “the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
two sides to resolve differences.” The editorial also noted that
nurses have tried to address their perceived “lack of proper re-
muneration” and “respect” by seeking support from organized
labor and the editors opined that “[w]hile these organized efforts
may have improved their remuneration, tensions have altered
dramatically employer/employee relationships . . . and also con-
cerns from the public at large who must pay the higher costs in-
curred.” The same issue of the Ellsworth American included a
letter to the editor from a physician who said he had stopped
working for the hospital after 40 years providing services there.
He expressed his agreement with the physician concerns dis-
cussed in the August 31 article about worsening morale and the
adverse effects of physician departures.
F. Young’s Concerns and Letter to the Editor
Young has been a subscriber to the Ellsworth American for 3
decades and read the pieces in the newspaper about her em-
ployer. Young, who was both an employee and a customer/pa-
tient of the hospital, gave testimony indicating that the reports
about employee dissatisfaction and staffing levels were con-
sistent with her own observations. She knew that a number of
long-serving physicians had departed from the hospital and,
while she had no direct knowledge of the contract terms at-issue,
she did know from her conversations with other employees that
the physician departures were “very upsetting” for the staff. The
Ellsworth American’s report that physicians felt they were not
being valued by the administration was consistent with Young’s
own experience of not feeling valued or listened to by the admin-
istration.
Regarding the nurses’ staffing, Young testified that she knew
there were deficiencies in that regard based on her experience
working in patient care areas as part of a team with nurses and
other staff. In addition, certified nursing assistants told her on a
daily basis that too many patients were being assigned to them.
Indeed, as discussed above, even before the employees submit-
ted their petition, Young had informed Lundy in writing on June
23, 2017, that she had experienced safety issues resulting from
the fact that the nurses were “very short staffed.” Young also
testified about the notes that were placed on the lockers of nurses
who left and were not replaced and stated that she had observed
a large number of such notes. Young testified that she “knew
from” her “own experience working with the nurses that what
they were saying was true.” Young had no direct knowledge re-
garding whether the Union had attempted to address the staffing
issues through the grievance process, but she had read the Sep-
tember 7 Ellsworth American article which stated that Becque
said he had “tried to follow the grievance process” in the contract
prior to presenting the petition.
Young testified about her perception that there was a discon-
nect between what management was focusing on and what the
hospital staff members who were providing direct patient care
were focusing on. Young testified that she never saw Ronan on
7 The Respondent has implied that Young submitted the letter pub-
lished on September 20 out of frustration over a September 18 decision
by the Maine Human Rights Commission (MHRC) to reject her unre-
lated claim against the hospital relating to a disability. Any suggestion
that Young was motivated by the MRHC decision is rebutted by the un-
contradicted evidence that Young first submitted a version of her letter
the patient care floors of the hospital and rarely saw Lundy there.
She recounted that she had tried to talk to Lundy, but he told her
he had a meeting to go to. Ronan’s office was in the administra-
tive building, not the building where patient care took place. Ro-
nan testified that, after the Ellsworth American articles began to
appear in late September, he met with employees and admitted
to them that he had not been visible enough in the patient care
areas of the hospital. He promised to be more visible and to
round the patient care floors more frequently. Nevertheless, Ro-
nan testified at trial that he had no concerns about a lack of com-
munication between management and staff.
Although Young’s experience at the hospital was largely con-
sistent with what was being reported in the Ellsworth American
coverage, one thing she disagreed with was the implication in the
newspaper’s September 14 editorial that the Union and the
nurses’ demands were responsible for rising healthcare costs. In
her view it was not fair to blame the nurses for increased
healthcare costs when what they were seeking was safer staffing.
On September 3, after the first of the Ellsworth American ar-
ticles, Young submitted a letter-to-the editor. That letter was not
published by the newspaper. On September 10, after the second
of the articles, Young submitted a revised version of her letter-
to-the editor, and that version was also not published. On Sep-
tember 17, after the Ellsworth American published its September
14 editorial, Young once again revised and submitted her letter-
to-the-editor.7 This time the Ellsworth American published
Young’s letter—first in an on-line edition on September 20 and
then in its print edition on September 21. Young’s published
letter read as follows:
Dear Editor:
The headline of the front page article in the Aug. 31 edi-
tion of The Ellsworth American titled “Rewritten contracts
cause unrest at MCMH” accurately describes the situation.
I have worked at Maine Coast Memorial Hospital under the
swing bed program and rehabilitation departments for the
past 13 ½ years. Losing many of our experienced, trusted
doctors is causing unrest, uncertainty and concern among
the staff, patients and the community.
Back in October 2015, in another article in The Ameri-
can titled “Maine Coast is now part of Eastern Maine
Healthcare Systems,” the MCMH Board chairman at the
time, Adin Tooker, was quoted: “Our primary mission is to
ensure that this resource is here and better going forward,
and the affiliation with EMHS going forward will do that.”
The article stated that the EMHS Board chairwoman, Eve-
lyn Silver, assured the audience members that the Maine
Coast Board of Directors “will have a very strong role to
play” going forward. She is also quoted as saying: “Local
input is critical in how decisions are made.”
over two weeks before the MHRC decision and that even the final ver-
sion, although published after the MRHC decision, was submitted by
Young prior to it. Young credibly testified, moreover, that she did not
know about the decision MRHC was going to make when she submitted
her letter.
MAINE COAST REGIONAL HEALTH FACILITIES, D/B/A MAINE COAST MEMORIAL HOSPITAL 11
I have to wonder why our local hospital board is not ve-
hemently protesting the actions taken by parent organiza-
tion EMHS causing MCMH to change contracts with doc-
tors. We were told back in 2015 that our local board would
still “have a very strong role to play.” Current MCMH
Board Chairwoman Debbie Ehrlenbach’s statement in the
Aug. 31 article is as follows: “We are pleased with the plans
that Maine Coast’s senior leadership has developed, work-
ing in partnership with EMHS to ensure we will have suffi-
cient physician coverage to continue to deliver high-quality
care for residents of Ellsworth and other Downeast commu-
nities.” This sounds like a complete allegiance to EMHS.
What happened to loyalty to our local hospital, staff and the
patients and communities that have benefited by the con-
sistent, dedicated, experienced care given by trusted local
doctors?
After I wrote the above paragraphs in a letter to The
American, yet another article about MCMH was published
in the Sept. 7 edition with the front-page headline “MCMH
nurses cite staffing in petition.” I have to applaud the nurses
for going public with their valid concerns of inadequate, un-
safe staffing levels. The nurses followed the proper internal
procedures for voicing their concerns in the grievance pro-
cess, but little changed. Hospital management who work
out of their offices and have meeting after meeting and who
are not working where patients are being cared for, but who
then make decisions about staffing levels should be listen-
ing to those who are actually caring for patients. Nurses at
MCMH have valid reasons to be concerned about patient
safety, and management needs to make the necessary
changes.
The September 14 editorial “We need a healthy hospi-
tal” pointed out that unions have helped improve salaries of
both unionized nurses and teachers and that this brings
about increased tensions with management because the un-
ions want better pay, working conditions, etc. for their
members. The implication is that nurses getting a fair wage
is a driver of increased health care costs, but your editorial
is very deficient in analyzing the reasons why health care is
so expensive. This topic would be better accomplished in
an article of facts, not in an editorial opinion. Nurses and
teachers have traditionally been mostly women, and this
continues to be true nationwide. Women continue to earn
less than men (gender pay gap does exist). Maine nurses’
and teachers, average salaries are lower than the national
average. But salaries are not the issue in the MCMH
nurses’ current petition. The MCMH nurses are using their
strength in numbers in order to voice their valid concerns
8 The Respondent states that in 2017 two outside entities (the Centers
for Medicare and Medicaid Services and the Leapfrog Group) gave the
hospital their highest performance category rating. To what extent these
rating would reflect the effects of resignations and staffing shortages oc-
curring as late as September and October of 2017 was not explored at
trial. At any rate, the opinions of these outside entities should not be
confused with fact and, in any case, do not show that Young was lying
when she expressed the view that nurses had valid concerns about unsafe
staffing levels and that the hospital had suffered from the resignations of
about patient safety that is at risk because of inadequate
staffing levels.
Nurses and other staff leave and are not replaced. Frus-
trated doctors leave and more expensive locums fill in tem-
porarily until other expensive temporary locums arrive,
driving costs up further. And management keeps going to
their meetings or are in their offices in their administrative
building, far from the doctors and nurses and other staff
who are working on the Med/Surg floor, ICU, operating
rooms, Emergency Department, maternity, etc.
No wonder there is unrest and uncertainty at our hospital.
Karen Jo Young
Corea
G. Respondent’s Investigation and Decision to Terminate
Young
On September 21, 2017—the same day that Young’s letter-to-
the-editor was printed in the Ellsworth American and the day af-
ter it had appeared in the newspaper’s on-line edition—the Re-
spondent discharged Young. The reason given was that she had
submitted that letter in violation of the Respondent’s Media Pol-
icy. The Respondent’s investigation prior to taking this action
consisted of Ronan having Lundy determine whether Young had,
in fact, written and submitted the letter. Management officials
involved in the decision-making process testified and in none of
their accounts did the Respondent make any efforts to determine
whether the statements in Young’s letter were accurate or
whether she had relied in good faith on her own observations or
credible reports. Although, in the Respondent’s brief, counsel
suggests that Young’s submission of the letter was unprotected
because the letter contained intentionally, recklessly or mali-
ciously false statements, the testimony of managers was decid-
edly less emphatic on that score. For example, Ronan testified
that Young’s letter was “representing a story that we didn’t be-
lieve to be true.” (Tr. 181) (emphasis added). He stated that he
terminated Young because she was “trying to represent what was
actually going on at the hospital, and in my opinion, it wasn’t.”
(Tr. 188) (emphasis added). He testified that the letter “of-
fended” him. Similarly, Spruce (EMHS chief communications
officer) stated that Young’s letter “portrayed” the hospital in “an
unflattering light” by saying “things that may or may not be
true.” (Tr. 390–391) (emphasis).8
Nor did the Respondent, prior to discharging Young, make
any attempt to ascertain whether she was aware of the Media
Policy or whether, like some managers and until recently Ronan,
she had not previously seen the policy. As discussed earlier, the
Media Policy was one of approximately 263 policies that the Re-
spondent made available through an on-line portal and, in fact,
Young had no awareness of the policy at the time she submitted
long-tenured physicians. Indeed, it is hard to imagine that the staff short-
ages and the resignations of long-tenured physicians, neither of which is
disputed, would not have a negative effect on patient care. Moreover,
even assuming that the ratings referenced by the Respondent reliably re-
flect its overall performance at the time Long submitted her letter, that
would still not establish that the hospital’s performance had not declined
within the range represented by a particular rating category as a result of
recent staff shortages and physician resignations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
the letter. When Young asked to see the Media Policy at the dis-
charge meeting, Lundy refused to show it to her.
At approximately 8 a.m. on September 21, Ronan had a meet-
ing about Young’s letter with Glenn Martin (EMHS corporate
counsel), and Paul Bolin (EMHS chief human resources officer).
Within an hour after that meeting, Ronan asked Lundy to inves-
tigate whether Young had drafted and submitted the letter. As
referenced above, Ronan did not ask Lundy to investigate any
other circumstances relating to the letter. Ronan and Lundy
agreed that, if Young had written and submitted the letter, the
Respondent would discharge her. Later that day, there was a
conversation between Ronan, Martin, Bolin and Lundy to “final-
ize” Ronan’s decision to discharge Young. At that point Young
had still not been interviewed by the Respondent about the letter.
During the managers’ conversation, Lundy told Ronan that there
had been prior discipline against Young. This prior discipline
consisted of two warnings that the Respondent issued in March
and May 2016, and which were concerned with Young’s poten-
tial and actual communications to the hospital’s board of direc-
tors about employee dissatisfaction. As noted above, before the
meeting at which Lundy informed Ronan of this prior discipline,
Ronan had already decided that Young would be discharged if it
was determined that she submitted the letter. Nevertheless, Ro-
nan testified at trial that the reason for the discharge was both the
letter and the fact that Young had previously received discipline.
At any rate, the record leaves no doubt that the Respondent
would not have disciplined Young at all on September 21 but for
her submission of the Ellsworth American letter. The Respond-
ent has not suggested otherwise.
Later that same day, the Respondent met with Young for the
first time concerning her letter. Lundy and Keith were present
at the meeting for the Respondent, along with a secretary who
took notes. When Lundy started the meeting, he already had the
letter terminating Young’s employment with him. After Young
confirmed that she had written and submitted the letter, Lundy
told her that those actions were “in direct violation of the Media
Policy and that she was terminated immediately.” Lundy and
Keith did not talk about any other reasons for the discharge de-
cision. The discharge letter informed Young that she was being
discharged “for violation of the EMHS Policy: News Release
External Publication and Media and in accordance with the
Maine Coast Memorial Hospital (MCMH) progressive discipli-
nary policy.” As previously noted, Young is the only employee
who either the Respondent, or EMHS more generally, has ever
disciplined pursuant to the Media Policy.
III. DISCUSSION
A. Section 8(a)(1) and (3): Discharge of Young
The General Counsel alleges that the Respondent violated
Section 8(a)(1) and (3) of the Act by discharging Young for en-
gaging in protected concerted and union activity when she sub-
mitted a letter to the Ellsworth American newspaper in which
she made common cause with other employees who were seek-
ing improved working conditions and expressed union support.
9 Sec. 7 of the NLRA provides in relevant part that “[e]mployees shall
have the right to self-organization, to form, join, or assist labor organi-
zations, to bargain collectively through representatives of their own
As discussed below, Young’s right to submit the letter was pro-
tected by the NLRA both because it was concerted activity and
because it was union activity, and nothing she did caused her to
forfeit that protection. Therefore, the Respondent violated Sec-
tion 8(a)(1) and (3) on September 21, 2017, when it discharged
Young for submitting the letter.
Regarding protected concerted activity, the Board has repeat-
edly held that health care facility employees engage in concerted
activity protected by Section 7 of the NLRA9 when, like Young
did here, they use a letter to the editor or another 3rd-party chan-
nel to protest deficiencies in staffing levels or other working con-
ditions that have an effect on patient care. See Manor Care of
Easton, PA, 356 NLRB 202, 232–233 (2010), enfd. 661 F.3d
1139 (D.C. Cir. 2011) (employee’s letter to State representative
regarding inadequate staffing is protected by the Act and not so
disloyal as to forfeit protection), Valley Hospital Medical Cen-
ter, 351 NLRB 1250, 1252–1253 (2007), enfd. 358 Fed. Appx.
783 (9th Cir. 2009) (employee’s letter to newspaper criticizing
nurse workloads is protected and not so disloyal, reckless or ma-
liciously false as to forfeit that protection), Mount Desert Island
Hospital, 259 NLRB 589, 589 fn.1 and 593 (1981), affd. in rele-
vant part and remanded 695 F.2d 634 (1st Cir. 1982) (em-
ployee’s letter to newspaper, in which he “attack[ed] the hospi-
tal’s safety levels and administration” is protected activity and
not so extreme as to forfeit that protection); see also Eastex, Inc.
v. NLRB, 437 U.S. 556, 565 (1978) (the right to “seek to improve
terms and conditions of employment . . . through channels out-
side the immediate employee-employer relationship” is essential
to vindicate the guarantees of the NLRA); Hacienda de Salud-
Espanola, 317 NLRB 962, 966 (1995) (NLRA protects employ-
ees’ communications to newspapers about labor disputes). The
Board explained that “[i]n the health care field, patient welfare
and working conditions are often inextricably intertwined” such
that when hospital employees protest that inadequate staffing is
negatively affecting patient care they are effectively protesting
their inability to carry out their duties and their conditions of em-
ployment. Valley Hospital, supra; Holy Rosary Hospital, 264
NLRB 1205, 1205 fn. 2 (1982); see also Mount Desert Island
Hospital, supra. In the instant case, Young’s letter included such
a protest—making common cause with other employees seeking
improved staffing, respect, and communication with manage-
ment. Moreover, in Young’s case the connection of the protest
to employees’ working conditions is especially clear since the
employee petition that Young supported explicitly stated that the
staffing shortages were causing them to be “exhausted” and had
exacted an “emotional and physical toll.” The employee petition
asked that, among other things, the Respondent adhere to the
staffing provisions of the nurses’ labor contract. In her letter,
Young also referenced a prior article regarding the hospital’s
physicians and that article discussed employee dissatisfaction
with working conditions—stating that physicians were leaving
the Respondent to obtain better hours and pay. Young, who was
expected to provide various types of assistance to the nursing
staff and who worked as part of a team with nurses and other
choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.”
MAINE COAST REGIONAL HEALTH FACILITIES, D/B/A MAINE COAST MEMORIAL HOSPITAL 13
staff providing care to patients, experienced the negative “ripple”
effects of the nursing shortages and other problems in her own
working conditions. Thus, Young’s letter addresses terms and
conditions of employment not only because, as the Board has
recognized, patient care is inextricably tied to hospital employ-
ees’ working conditions, but also because she referenced em-
ployees’ complaints about the burdens falling on them as em-
ployees.
In addition to being protected as concerted activity, Young’s
submission of the letter was union activity protected by Section
8(a)(3) of the Act. In her letter, Young gave support to the Union
by arguing in favor of the observations and objectives of the pe-
tition that union representatives had submitted to the Respondent
and arguing more generally in support of union efforts to secure
better working conditions for hospital workers. It is clear that an
employee engages in protected union activity when he or she
supports the efforts of a union even when, as in Young’s case,
the employee is not in the bargaining unit that the union repre-
sents. Pride Ambulance Co., 356 NLRB 1023 (2011) (discharge
of nonbargaining unit employee violated Section 8(a)(3) because
it was based on employee’s protected activity of refusing to per-
form work of unit employees engaged in a strike); Beth Israel
Medical Center, 292 NLRB 497, 499 (1989) (employer violates
Section 8(a)(3) and (1) by discharging a non-bargaining unit em-
ployee for refusing to cross the picket line of bargaining unit em-
ployees); Signal Oil & Gas Co., 160 NLRB 644, 649 (1966),
enfd. 390 F.2d 338 (9th Cir. 1968) (unrepresented employee en-
gaged in protected union activity by expressing support for a po-
tential strike by represented unit employees, since unrepresented
employee was making common cause with the represented em-
ployees).10
The Respondent contends that, despite the facts and law dis-
cussed above, I should find that Young was not entitled to the
Act’s protection when she submitted the letter. As discussed be-
low, none of the Respondent’s contentions in this regard have
merit. The Respondent asserts that Young’s activity in submit-
ting the letter was not “concerted” because she did not discuss
submitting the letter with other employees prior to doing so.
This contention fails for a number of reasons, not the least of
which is that Young was, in fact, party to prior discussions with
other employees regarding their concerns over the staffing short-
ages and physician resignations that she discussed in her letter.
Her submission of the letter was a logical outgrowth of those
discussions with other employees and was therefore concerted.
See Hitachi Capital America Corp., 361 NLRB 123, 138-139
(2014), citing Mike Yurosek & Son, Inc., 306 NLRB 1037 (1992)
and Salisbury Hotel, Inc., 283 NLRB 685, 687 (1987); Mount
Desert Island Hospital, 259 NLRB at 589 fn. 1. Even absent
those discussions, a finding of concerted activity would be com-
pelled because the petition, signed by over 60 employees, was
indisputably concerted activity, and Young, by submitting a
10 This is equally true with regards to the question of whether the non-
unit employee’s action is protected as concerted activity. See Office De-
pot, 330 NLRB 640, 642–643 (2000) (nonunit employee made common
cause with striking employees by calling another employee a “scab” and
her comment was protected concerted activity); Beth Israel Medical, 292
NLRB at 507 (“It is well established that nonstriking employees who
letter arguing in support of the observations and objectives of
that petition, was “joining forces” with those employees in their
group action. See Ybarra Construction, 343 NLRB 35, 40
(2004) (Activity is concerted where “the employee ‘at any rele-
vant time or in any manner joined forces with any other em-
ployee, or by his actions intended to enlist the support of other
employees in a common endeavor.’”), quoting Meyers Indus-
tries, 281 NLRB 882, 886–887 (1986), affd. sub nom. Prill v.
NLRB, 835 F.2d 1481 (D.C. Cir. 1987); see also Office Depot,
330 NLRB 640, 642 (2000) (“employees’ conduct on behalf of
the employees of another employer who are engaged in protected
concerted activity is itself protected concerted activity”). No
reasonable reading of Young’s letter permits the conclusion that
it reflects solely Young’s individual concerns about her own
working conditions, and not those of other employees including
nurses and physicians. It joins with the signers of the petition,
the departing physicians, and other employees in the common
endeavor of seeking improvements to working conditions at the
Respondent. Mount Desert Island Hospital, 259 NLRB at 592
(employee’s letter to a local newspaper is concerted for purposes
of the Act’s protection where, although written and submitted by
a single employee, it references the concerns of a group of em-
ployees, not solely the writers’ own concerns or interests).
Next the Respondent argues that even if Young’s submission
of the letter was protected activity, it forfeited any such protec-
tion because it contained disparaging and untrue statements. Alt-
hough it is the case that an employee’s otherwise protected com-
munication with a third party may be “so disloyal, reckless, or
maliciously untrue [as] to lose the Act’s protection,” Valley Hos-
pital, 351 NLRB at 1252, quoting Emarco, Inc., 284 NLRB 832,
833 (1987), the Board has guaranteed that employees’ Section 7
protection is meaningful by setting a high threshold for forfeiture
of that protection. Employees engaged in protected activity may
use “intemperate, abusive, or insulting language without fear of
restraint or penalty.” Mount Desert Island Hospital, 259 NLRB
at 593 (emphasis in Board decision), quoting National Associa-
tion of Letter Carriers, 418 U.S. 264, 283 (1974). “In determin-
ing whether employee conduct falls outside the realm of conduct
protected by Section 7, the Board consider[s] whether ‘the atti-
tude of the employees is flagrantly disloyal, wholly incommen-
surate with any grievances which they might have, and mani-
fested by public disparagement of the employer's product or un-
dermining of its reputation . . . .’” Five Star Transportation, 349
NLRB 42, 45–46 (2008) (quoting Vandeer-Root Co., 237 NLRB
1175, 1177 (1978)), enfd. 522 F.3d 1210 (1st Cir. 2008). For
the reasons discussed below, I find that Young’s letter, by any
reasonable standard, was a measured response to the workplace
problems that she and other employees were finding increasingly
pressing and does not even begin to approach the extreme level
that would permit the Respondent to discharge her for submitting
it.
refuse to cross a picket line maintained by their fellow employees have
made common cause with the strikers, [and] are engaged in protected
concerted activities as defined in Section 7 of the Act.”); ABS Co., 269
NLRB 774, 774–775 (1984) (nonunit employee engages in protected
concerted activity by refusing to cross the picket line of unit employees).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
The Respondent, in an effort to show that the letter contained
statements that were so “reckless, or maliciously untrue” as to
forfeit the Act’s protection, singles out two points Young made.
What “Young wrote was false,” the Respondent asserts, because
“it was not unsafe at the hospital and the nurses had not followed
any grievance process before or after the petition.” (Br. of R. at
p. 23.0 Regarding the former, I note that Young did not assert
that the hospital had become generally or unacceptably unsafe or
was guilty of any intentional malfeasance or mistreatment of pa-
tients. She merely expressed the opinion that the nurses had
“valid concerns” about “unsafe staffing levels” and “valid rea-
sons to be concerned about patient safety.” See Professional
Porter & Window Cleaning Co., 263 NLRB 136, 139 (1982)
(Board is careful “to distinguish between disparagement of an
employer’s product and the airing of what may be highly sensi-
tive issues.”), enfd. 742 F.2d 1438 (2d Cir. 1983); compare with
NLRB v. Electrical Workers Local 1229 (Jefferson Standard),
346 U.S. 464, 469 (1953) (Employee statement unprotected as
disloyal when made “at a critical time in the initiation of the com-
pany's” business and where the statement constitutes “a sharp,
public, disparaging attack upon the quality of the company's
product and its business policies, in a manner reasonably calcu-
lated to harm the company's reputation and reduce its in-
come.).” The Respondent has failed to demonstrate that Long’s
opinion regarding the validity of the nurses’ concerns was mali-
ciously or recklessly false, or even that it was false at all in the
sense either of not being Young’s sincerely held opinion or in
the sense that it was untrue that nurses had valid concerns about
patient safety.
At any rate, the Respondent’s argument that Young’s expres-
sion of her opinion about unsafe staffing levels was so flagrantly
disloyal or maliciously false as to forfeit protection cannot be
accepted because her opinions are exactly the type of expression
that the Board has repeatedly held, with consistent Courts of Ap-
peal approval, to be both protected by the Act and not so disloyal,
reckless or maliciously false as to forfeit that protection. See,
e.g., Manor Care, supra; Valley Hospital, supra; Mount Desert
Island Hospital, supra. Statements to the media about inade-
quate staffing have been held to retain NLRA protection even
when those statements go well beyond Young’s in describing the
deficiencies in patient care. For example, in Valley Hospital the
Board found that the employees’ communications to the media
about staffing levels were not so disloyal or maliciously untrue
as to forfeit the Act’s protection even though that employee cat-
alogued various patient care horror stories—e.g., patients “could
be lying in their own excrement for who knows how long,”
“don’t get medications . . . on time,” and, as a result of inadequate
11 In Valley Hospital, the Board indicated that one factor that may in-
dicate that an employee’s critical comment was intended to harm the
company’s business, rather than to improve working conditions, is when
the comment is made “’at a critical time in the initiation of the compa-
ny's’ business and where the comment constitutes ‘a sharp, public, dis-
paraging attack upon the quality of the company's product and its busi-
ness policies, in a manner reasonably calculated to harm the company's
reputation and reduce its income.’” 351 NLRB at 1252, quoting NLRB v.
Electrical Workers Local 1229 (Jefferson Standard), supra. The Re-
spondent emphasizes that it was facing financial challenges at the time
Young submitted her letter, but the record shows that Young did not time
monitoring “could have a heart attack and possibly die.” 351
NLRB at 1250–1251. Protection was retained for those inflam-
matory statements about staffing levels, and it is inconceivable
that Young’s far milder opinion somehow forfeited such protec-
tion. Young did not advise the public against seeking care at the
hospital, did not accuse the hospital of intentionally mistreating
patients, and did not relate alarming episodes of poor patient
care. Indeed, Young even refrained from publicly mentioning
the instances of staffing-related safety problems that she had re-
ported to management in an email 3 months earlier. Based on
this record, I find that the purpose of Young’s letter was not to
impugn the Respondent’s operation or to harm the Respondent’s
reputation or income, but rather to encourage improvements to
working conditions.11 Where, as here, there is no “’malicious
motive, [an employee’s] right to appeal to the public is not de-
pendent on the sensitivity of [an employer] to his choice of fo-
rum.” Professional Porter & Window Cleaning Co., 263 NLRB
136, 139 (1982) (Board's bracketing) (quoting Richboro Com-
munity Mental Health Council, 242 NLRB 1267, 1268 (1979),
affd. 742 F.2d 1438 (2d Cir. 1983); see also Manor Care of
Easton, PA, 356 NLRB at 232–233 (same). “[E]ven the most re-
pulsive speech enjoys immunity provided it falls short of delib-
erate or reckless untruth.” Phoenix Transit System, 337 NLRB
510, 514 (2002), enfd. 63 Fed. Appx. 524 (D.C. Cir. 2003).
“Federal law gives license in the collective-bargaining arena to
use intemperate, abusive, or insulting language without fear of
restraint or penalty if the speaker believes such rhetoric to be an
effective means to make a point.” Ibid.; see also Mount Desert
Island Hospital, 259 NLRB at 593.
The only demonstrated objective inaccuracy in Young’s letter
is her statement that the “nurses followed the proper internal pro-
cedures for voicing their concerns in the grievance process” be-
fore delivering the staffing petition. The record shows that the
nurses and Young herself had previously raised concerns about
nurse staffing with the Respondent, but that the Union ultimately
chose to submit a petition rather than use the grievance process
to seek a remedy. As the Board has recognized, “[t]he mere fact
that statements are false, misleading or inaccurate is insufficient
to demonstrate that they are maliciously untrue” so as to forfeit
protection. Valley Hospital, 351 NLRB at 1252. In the instant
case, it is frivolous to contend that the Young’s misstatement in
one sentence regarding a collateral issue was significant enough
to obliterate the protection for her NLRA activity and free the
Respondent to discharge her for seeking improvements to em-
ployees’ working conditions. I find, in any case, that Young’s
misstatement was not malicious or reckless. Rather, she was rea-
sonably relying on the September 7 article in the Ellsworth
the letter to harm the Respondent at a critical time. Ronan testified that
the Respondent had been losing money for a 7-year period, since 2010.
A period of 7 years is too long to constitute a “critical time” in the sense
that a suspicion of malicious intent attaches to the timing of employee
criticism during that entire period. In this case the record indicates that
Young’s letter was not timed to coincide with a financially critical period
for the hospital, but instead that its timing was dictated by the burdens
that Young and other employees argued that management was unfairly
imposing on them as part of its response to longstanding financial prob-
lems.
MAINE COAST REGIONAL HEALTH FACILITIES, D/B/A MAINE COAST MEMORIAL HOSPITAL 15
American, which reported that chief steward “Becque said he’s
tried to follow the grievance process laid out in the nursing con-
tract but hasn’t seen results.” The Ellsworth American is a long-
established local news source in the community. Young herself
has been a subscriber for 30 years. The Respondent makes no
argument that Young did not reasonably believe that the report-
ing in the newspaper was reliable.12 “Employees do not forfeit
the protection of the Act if, in voicing their dissatisfaction with
matters of common concern, they give currency to inaccurate in-
formation, provided that it is not deliberately or maliciously
false.” Universal Fuels, 298 NLRB 254, 255 (1990); see also
Valley Hospital, 351 NLRB at 1252–1253 (“Where an employee
relays in good faith what he or she has been told by another em-
ployee, reasonably believing the report to be true, the fact that
the report may have been inaccurate does not remove the relayed
remark from the protection of the Act.”), citing KBO Inc., 315
NLRB 570, 571 (1994), enfd. mem. 96 F.3d 1448 (6th Cir.
1996). It was neither malicious nor reckless for Long to credit
what she had read in the Ellsworth American’s reporting regard-
ing the Union’s use of the grievance process, and Long’s unin-
tentional and minor misstatement on the subject does not free the
Respondent to discharge her for otherwise protected activity.
See Richmond District Neighborhood Center, 361 NLRB 833,
837 (2014) (“Protection is not denied to an employee regardless
of the lack of merit or inaccuracy of the employee's statements,
absent deliberate falsity or maliciousness, even where the em-
ployee's language is stinging and harsh.”); cf. Simplex Wire &
Cable Co., 313 NLRB 1311, 1315 (1994) (An employer may not
“restrict employees in the exercise of their Section 7 rights by
prohibiting statements which are merely false, as distinguished
from those which are maliciously so.”). If employees lost their
NLRA right to protest working conditions every time an em-
ployer could identify a minor misstatement of the type shown
here, it would render that right a nullity in a large segment of
instances and would profoundly chill employees from exercising
their Section 7 rights at all.
The Respondent criticizes Young for the portions of the letter
in which she suggests that employee dissatisfaction is attributa-
ble to management decision makers being out-of-touch with the
experience of the direct providers of patient care, and to the hos-
pital’s board chairwoman showing inordinate allegiance to
EMHS management at the expense of “our local hospital, staff
and the patients and communities.” Even one with paper thin
skin cannot reasonably see these mildly expressed opinions,
which directly related to employees working conditions and the
labor dispute over staffing, as the type of “flagrantly disloyal”
statements that are so “wholly incommensurate with any griev-
ances,” Five Star Transportation, 349 NLRB at 46, that they for-
feit employees’ NLRA protection for efforts to improve working
conditions. See also Emarco, Inc., 284 NLRB at 834 (employee's
name calling did not cause her to forfeit NLRA protection where
12 No manifest reporting bias has been shown and, indeed, the news-
paper’s editorial regarding unrest at the hospital called on both sides to
work to resolve their differences and attributed problems, in part, to un-
ionization.
13 It is telling that in arguing that Young’s statements were so disloyal
as to forfeit NLRA protection, the Respondent finds it necessary to
her statements were not “a personal attack unrelated to the em-
ployee's protest,” but rather were “made in the context of and
were expressly linked to the labor dispute”) and Community
Hospital of Roanoke, 220 NLRB 217, 223 (1975) (Employee's
comment on television program were not disloyal so as to forfeit
protection when the comment “was made in a context of, and
was specifically related by her to, the employees' efforts to im-
prove wages and working conditions” and were not shown to be
“deliberately intended to alienate the public by impugning the
quality of the hospital's patient care.”) enfd. 538 F.2d 2d 607 (4th
Cir. 1976).
In other cases, the Board has found that statements more ex-
treme than Young’s retained the Act’s protection. In Springfield
Library and Museum Association, the employee’s letter-to-the-
editor characterized the employer’s chief administrator as “a
man who never ‘lost contact’ with working professionals be-
cause he never had it to begin with.” The letter in that case also
included the claim that the chief administrator had been hired as
a form of “welfare-for-the-rich courtesy of his friends on the
Board of Trustees” after he was fired by his previous employer.
238 NLRB 1673 (1979). The Board noted that since the em-
ployee’s statements were positing these circumstances as a rea-
son for work-related problems his statements retained the Act’s
protection even if the “rhetorical hyperbole” “offended” man-
agement and the–comments were “repulsive.” Id. at 1673–1674.
Similarly, in Harris Corp., 269 NLRB 733, 738–739 (1984), the
Board found that an employee’s letter calling members of man-
agement “hypocritical,” “despotic” and “tyrannical” retained
protection of the NLRA notwithstanding the “boorish, ill-bred
and hostile” tone. In the instant case, Young was positing man-
agement’s lack of contact with direct patient care and what she
saw as the hospital board chairwoman’s overly deferential atti-
tude towards EMHS management as reasons for the employees’
work-related problems. She expressed this view in more meas-
ured terms than had the employees in other cases, quoted above,
where the Board held that protection was retained. Young’s
comments did not include unfounded accusations of scandalous
behavior, extreme or intentional neglect of patients, or unlawful
conduct, nor do they intrude upon the managers’ or the hospital
board member’s privacy.13
Even if I believed that Young’s comments were “intemperate,
abusive, or insulting”—and I find that they were not—that would
not be enough to deprive Young of the Act’s protection. See
Mount Desert Island Hospital, 259 NLRB at 593. Moreover,
around the time of Young’s letter, Ronan himself expressed
agreement with criticism that he was having insufficient contact
with those directly providing patient care. Ronan conceded to
employees that he needed to be more visible and present in-pa-
tient care areas, promised to round the floors more frequently,
and said that management’s handling of the physician contracts
was confusing and frustrating. Similarly, Young’s statement that
invent rhetorically charged statements and then pretend that Young said
them. For example, it describes Young as calling the hospital chair-
woman a “traitor” and managers “ineffectual bureaucrats fiddling while
the hospital was burning.” Br. of R. at p. 27. Young did not say either
of those things and did not resort to any similarly intemperate rhetoric.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
management was working in the administrative building, not
where patient care was taking place, is consistent with the evi-
dence that Ronan’s office was, in fact, housed in a building sep-
arate from the patient care building and that Ronan told employ-
ees he needed to be more visible in the patient care areas.
Young’s criticism of how the hospital board’s chairwoman was
performing was based on an accurate recitation of the chair-
woman’s own public statement. Young’s communication about
factors that she believed were causing employees’ work-related
problems at the hospital were part and parcel of the efforts to
improve working conditions and do not deprive her of the Act’s
protections.14
For the reasons discussed above, I find that the Respondent
discriminated in violation of Section 8(a)(1) and (3) of the Act
on September 21, 2017, when it discharged Young for engaging
in protected concerted and union activity by submitting a letter-
to-the-editor protesting employees’ working conditions and
making common cause with coworkers in their labor dispute
with the Respondent.
B. Section 8(a)(1): Respondent’s Media Policy
The General Counsel challenges the Respondent’s Media Pol-
icy, which prohibits employees from releasing any information
about the Respondent or EMHS to the news media without the
“direct involvement” of the Respondent and also requires any
employee who receives an inquiry from the media to refer that
inquiry to the Respondent for an answer. The General Counsel
alleges that this policy, although facially neutral, is overbroad
and discriminatory under the analytical framework the Board an-
nounced in Boeing Co., 365 NLRB No. 154 (2017), reconsider-
ation denied 366 NLRB No. 128 (2018). In Boeing, the Board
stated that, unless a rule is of a type that the Board has already
designated as being uniformly lawful or unlawful, the lawfulness
of a facially neutral rule will be evaluated using a balancing test.
First the Board will determine whether the rule is one that em-
ployees would “reasonably interpret[]” as “potentially inter-
fer[ing] with the exercise of NLRA rights.” If it is,
14 The Respondent makes a novel argument that even if Young’s letter
is activity protected by the Act, the discharge was lawful because the
Respondent would have discharged Young based on particular, allegedly
unprotected, portions of the same letter. Brief of Respondent at Page 33,
citing mixed motive analysis set forth in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. (1982),
approved in NLRB v. Transportation Corp., 462 U.S. 393 (1983). This
argument fails because the comments the Respondent attempts to sepa-
rate out and rely on to justify Young’s discharge – i.e., those about man-
agement being out-of-touch and the chairwoman’s allegiance to manage-
ment—were themselves protected for the reasons discussed above.
Moreover, the negative statements in Young’s letter about management
and the chairwoman were part of the res gestae of her protected protest
about working conditions and did not depart from that res gestae. There-
fore, even assuming that those negative statements would be unprotected
if they were made in isolation, the Respondent could not lawfully dis-
charge Young based on those elements of the letter since they were not
made in isolation, but rather as part of the res gestae of a protected protest
regarding working conditions. Cayuga Medical Center, 365 NLRB No.
170, slip op. at 23 (2017), citing Goya Foods, 356 NLRB 476, 477 fn. 8
(2011).
15 The term “labor dispute” encompasses, inter alia, any controversy
regarding employment conditions regardless of whether there is a union
the Board evaluates whether “the nature and extent of the
potential impact on NLRA rights” outweighs the “legiti-
mate justifications associated with” the rule. Slip op. at
3-4, and 16.
“Employees have a clear right under the Act to publicize labor
disputes,” and this extends to efforts to do so “through channels
outside the immediate employee-employer relationship.”
Schwan’s Home Services, 364 NLRB No. 20, slip op. at 4 (2016);
see also Eastex, Inc., 437 U.S. at 565 (employees have the right
“seek to improve terms and conditions of employment . . .
through channels outside the immediate employee-employer re-
lationship”). The Respondent’s Media Policy would reasonably
be interpreted to interfere with employees’ exercise of that clear
NLRA right. Moreover, in this case the interference is not spec-
ulative since, as already discussed, the Respondent invoked the
Media Policy to discharge Young for exercising her NLRA
rights by submitting her letter to the Ellsworth American. In-
deed, not only was the Media Policy invoked to discipline Young
for exercising her NLRA rights, but that was the only time the
policy had been invoked to discipline anyone working at the Re-
spondent or in the entire EMHS system. Thus, the Media Policy
not only would reasonably be interpreted to interfere with the
exercise of NLRA rights, but it has only ever been invoked to
interfere with such rights.
The Media Policy significantly burdens the exercise of NLRA
rights. The Board has repeatedly recognized the importance of
employees’ communications to the media and other third parties
as a means of publicizing labor disputes15 and drawing an em-
ployer’s attention to the need for improvements to working con-
ditions. See, e.g., Valley Medical Center, 351 NLRB at 1252;
Hacienda de Salud-Espanola, 317 NLRB at 962 and 966; Mount
Desert Island Hospital, 259 NLRB at 589 fn. 1 and 593. Em-
ployees’ rights to contact the media are unlawfully interfered
with not only when the employer categorically prohibits all em-
ployment-related media contact, but also when, as here, it re-
quires employees to obtain the employer’s permission or use a
involved or ongoing activity such as a strike or picketing. Endicott In-
terconnect Technologies, 345 NLRB 448, 450 (2005), enf. denied, 453
F.3d 532 (D.C. Cir. 2006). The Respondent argues that its staffing levels
were no longer the subject of an ongoing labor dispute at the time Young
submitted her letter because the employees had not done anything else
about the issue between the time they submitted their petition on August
28 and when Young submitted the final version of her letter 3 weeks later
on September 17. This argument is frivolous. Even if the employee
petition was the only evidence of an ongoing dispute regarding staffing
there is no basis on which to condemn the labor dispute to so premature
a death. This is especially true in light of the fact that the Respondent
had not yet made a response to the petition. At any rate, the labor dispute
over staffing levels consisted of more than just the employees’ August
28 petition and Young’s September 17 letter. As discussed earlier, staff-
ing was a major bone of contention during the last round of contract ne-
gotiations and after the contract was reached the employees continued to
raise concerns about the subject. Long herself had notified the Respond-
ent of her concerns regarding staffing levels in a June 23, 2017, email to
Lundy. Moreover, employees’ concerns were not baseless since even
Ronan conceded that there were staffing shortages during this period.
Under these circumstances, the Respondent’s argument that there was no
ongoing labor dispute regarding staffing levels when Young submitted
her letter is wholly without merit.
MAINE COAST REGIONAL HEALTH FACILITIES, D/B/A MAINE COAST MEMORIAL HOSPITAL 17
specific internal process before contacting the media. See Trump
Marina Casino Resort, 354 NLRB 1027, 1027 fn. 2 (2009), affd.
and adopted by 355 NLRB 585 (2010), enfd. 435 Fed. Appx. 1
(D.C. Cir. 2011); Valley Hospital, 351 NLRB at 1254; Saginaw
Control & Engineering, Inc.,339 NLRB 541, 546 and 553
(2003); and Brunswick Corp., 282 NLRB 794, 794–795 (1987).
In this case, the magnitude of the Respondent’s interference
with employees’ Section 7 rights is heightened by the breath of
the rule. The Respondent’s restriction on employees’ communi-
cations with the media is not limited to circumstances in which
the communication involves confidential or proprietary infor-
mation, or those in which the employee purports to speak on the
Respondent’s behalf. Rather the restriction pertains to any em-
ployee communication to the media “about EMHS or its member
organization.” Cf. Schwan’s Home Services, Inc., 364 NLRB
No. 20, slip op. at 2, 4 (2016) (restriction on employees contact-
ing the media is unlawful where it is not limited to circumstances
where the employees are “speaking on the [employer’s] behalf”).
One of the restrictions in the policy does not even include lan-
guage explicitly limiting the restriction to employee communi-
cations about EMHS and its members, but rather states than any
employee who receives “an inquiry from the media will direct
that inquiry to [the Respondent] for appropriate handling.” Be-
cause the Respondent’s rule is not limited to communications
about confidential or proprietary information, or to circum-
stances when the employees purport to speak on behalf of the
Respondent, the burden that the rule places on the exercise of
Section 7 rights is heavy.
The burden that the Respondent’s Media Policy restrictions
impose on NLRA activity far outweighs any legitimate justifica-
tion the Respondent has offered for the policy. The purpose of
the restrictions, as stated in the policy itself, is: “To present
EMHS and its various member organizations to the general pub-
lic in a manner consistent with the brand and supporting the mis-
sion statement of EMHS.” At the hearing, the EMHS chief com-
munications officer stated that the policy was designed to protect
the hospital’s reputation as a safe place to come for care and also
to protect the privacy concerns of patients. However, the policy
is not limited to communications that relate to the hospital’s
safety or to confidential or private information. Thus, even as-
suming that the Respondent is accurately describing the intended
purposes of the Policy, the interference with NLRA activity is
not tailored to address those purposes. Moreover, one may rea-
sonably question whether a hospital’s desire to keep potential
customers in the dark about even accurate negative reports re-
garding hospital safety is a “legitimate” justification for purposes
of the Boeing analysis. Assuming that such a justification is le-
gitimate, I find that it is outweighed by the health care employ-
ees’ need—long recognized by the Board and affirmed by the
Courts of Appeal—to exercise their Section 7 rights by com-
municating with 3rd parties about staffing and other problems in
an effort to improve working conditions. See, e.g., Manor Care,
16 As discussed earlier in this decision, the Respondent discharged
Young because she engaged in protected concerted and union activity
and therefore the discharge violated Sec. 8(a)(1) and (3) of the Act. The
General Counsel states that even if that were not the case, Young’s dis-
charge would be a violation of Sec. 8(a)(1) of the Act because the
supra; Valley Hospital, supra; Mount Desert Island Hospital, su-
pra. Although the calculus might change in individual discipli-
nary cases if the employee communications are flagrantly dis-
loyal or maliciously/recklessly false, that does not rescue the Re-
spondent’s policy since that policy is not limited to such state-
ments, but by its terms applies even to communications that are
respectful, loyal, and accurate.
In considering the relative weight to give to, on the one hand,
the rule’s interference with NLRA rights and, on the other hand,
the justifications proffered by the Respondent, it is worth repeat-
ing that the only time the Respondent or EMHS has ever invoked
the Media Policy against any employee was to punish Young for
her NLRA-protected letter. This indicates that the Respondent’s
supposed justifications are not very important to the Respondent
except when the media contact is part of employees’ protected
efforts to seek improvements to working conditions. Another
piece of evidence indicating that the Respondent’s legitimate in-
terests in the Media Policy are not particularly weighty is the
laxity of the Respondent’s efforts to communicate and explain it.
Young was not aware of the Policy before it was invoked as a
basis for discharging her and even the Respondent’s president,
Ronan, had only learned of the Policy a few months earlier. An
internal company document from September 20, 2017—the day
that Young’s letter appeared in Ellsworth American’s digital edi-
tion – concedes that some managers may never have seen the
Policy. The Respondent’s apparent lack of interest, prior to dis-
charging Young, in educating managers and employees about the
Media Policy belies any claim that the Policy is so important to
the Respondent that the need for the policy outweighs its sub-
stantial interference with employees’ exercise of their NLRA
rights.
For the reasons discussed above, I conclude that from June 28,
2017, until January 14, 2018, the Respondent maintained a Me-
dia Policy that unlawfully interfered with employees’ exercise of
their Section 7 rights in violation of Section 8(a)(1) of the Act.16
On January 15, 2018, after Young filed the unfair labor prac-
tices charges that give rise to this litigation, the Respondent
added “savings clause” language to the Media Policy. That lan-
guage states that the policy’s restrictions on employee contacts
with the media do not apply to communications “concerning a
labor dispute or other concerted communications for purpose of
mutual aid or protection protected by the National Labor Rela-
tions Act.” The Respondent argues that even assuming that the
Media Policy violated the NLRA prior to the addition of this lan-
guage, it may maintain the policy because it is lawful in its cur-
rent form.
I find that the addition of the savings clause language does not
remedy the unlawful character of the Respondent’s Media Pol-
icy. Savings clause language “may, in certain circumstances,
clarify the scope of an otherwise ambiguous and unlawful rule,”
First Transit, Inc., 360 NLRB 619, 621–622 (2014) (emphasis
Respondent was applying its overbroad Media Policy. Br. of GC at p.
50, citing Continental Group, Inc., 357 NLRB 409 (2011). Since I have
already found that Young’s discharge violated both Sec. 8(a)(1) and
8(a)(3) of Act, I do not rule on this alternative basis for finding a viola-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
added),17 but in this case the relevant circumstances do not
change the result under the Boeing analysis. Specifically, the
amended policy would still be “reasonably interpreted” by em-
ployees as “potentially interfer[ring] with the exercise of NLRA
rights,” and the circumstances relevant to the Boeing balancing
test are not meaningfully changed. Regarding potential interfer-
ence, the most significant obstacle for the Respondent is that it
has, in fact, applied the policy to unlawfully discharge an em-
ployee—Young—for exercising her NLRA-protected rights and
it has not repudiated that action. In First Transit, the Board
stated that one of the types of circumstances that bear on the suc-
cess of savings clause language is whether the employer has en-
forced the overbroad rule in a way that shows employees that the
savings clause does not safeguard their Section 7 rights. See also
Care One at Madison Avenue, 361 NLRB 1462, 1465 fn. 8
(2014), enfd. 832 F.3d 351 (D.C. Cir. 2016). Although the Re-
spondent discharged Young for her NLRA-protected activity
prior to adding the new language, the Respondent continues to
maintain that Young was properly discharged pursuant to the
Media Policy and that the savings clause language has not sub-
stantively changed the policy. Thus, despite the placement of the
saving clause in the relatively brief Media Policy, the only logi-
cal conclusion is that the Policy still unlawfully prohibits NLRA
protected activity such as that engaged in by Young. In addition,
the Respondent’s savings clause language fails to address the
“broad panoply of rights” that employees enjoy under the
NLRA. See First Transit, supra. The savings clause does not,
for example, reference union activity or state that employees will
not be punished for contacting the media for the purpose of form-
ing or assisting labor organizations. At best, the Respondent has
“create[d] an ambiguity” about the meaning of the Media Policy,
and that ambiguity “must be construed against the Respondent”
as the “drafter” of both the prohibition and the savings
clause. Century Fast Foods, Inc., 363 NLRB No. 97, slip op. at
11 (2016).
Regarding the balancing test, the Respondent’s amendment
does not narrow the Media Policy to address only its stated ob-
jectives or reduce the weight of the burden it places on employ-
ees’ exercise of their NLRA rights. For example, the Respond-
ent has not made changes to limit the reach of the prohibition to
communications that involve proprietary or confidential infor-
mation, or that are flagrantly disloyal, or maliciously or reck-
lessly false.
I find that the Respondent’s Media Policy, as amended on Jan-
uary 15, 2018, interferes with employees’ exercise of their Sec-
tion 7 rights under the Act in violation of Section 8(a)(1) of the
17 The “certain circumstances” the Board considered in First Transit
included: whether the language “address[es] the broad panoply of rights”
protected by Sec. 7; the length of the document and the placement of the
savings clause in relation to the ambiguous rules that it is claimed to
remedy; whether the savings clause and the ambiguous rules reference
each other; and whether the employer has enforced the overbroad rule in
a way that shows employees that the savings clause does not safeguard
their Sec. 7 rights. 360 NLRB at 621–622
18 Even assuming that the amended version of the media policy was
lawful, that would not cure the violation the Respondent committed by
maintaining the earlier version of the policy. In order to be relieved of
responsibility for the violation based on the earlier version of the Media
Act.18
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and a
health care institution within the meaning of Section 2(14) of the
Act.
2. The Maine State Nurses Association/National Nurses Or-
ganizing Committee/National Nurses Union (the Union) is a la-
bor organization within the meaning of Section 2(5) of the Act.
3. The Respondent discriminated in violation of Section
8(a)(1) and (3) of the Act on September 21, 2017, when it dis-
charged Young for engaging in protected concerted and union
activity by submitting a letter-to-the-editor protesting employ-
ees’ working conditions and making common cause with
coworkers in their labor disputes with the Respondent.
4. From June 28, 2017, until January 14, 2018, the Respond-
ent maintained a Media Policy that unlawfully interfered with
employees’ exercise of their Section 7 rights in violation of Sec-
tion 8(a)(1) of the Act.
5. Since January 15, 2018, the Respondent has maintained an
amended Media Policy that unlawfully interferes with employ-
ees’ exercise of their Section 7 rights in violation of Section
8(a)(1) of the Act.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the poli-
cies of the Act. The Respondent, having discriminatorily dis-
charged Karen-Jo Young, must offer her full and immediate re-
instatement and make her whole for any loss of earnings and
other benefits. Backpay shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010). The Respondent shall file a report with the
Social Security Administration allocating backpay to the appro-
priate calendar quarters and shall also compensate the discrimi-
natee for the adverse tax consequences, if any, of receiving one
or more lump-sum backpay awards covering periods longer than
1 year, Latino Express, Inc., 359 NLRB No. 44 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended Order.19
ORDER
The Respondent, Maine Coast Regional Health Facilities
Policy, the Respondent would have to show that it repudiated its unlaw-
ful conduct in the manner the Board set forth in Passavant Memorial
Area Hospital, 237 NLRB 138 (1978). The Respondent has not repudi-
ated, and does not claim to have repudiated, the violation. To the con-
trary, the Respondent continues to assert that the policy has always been
lawful, was lawfully applied to discharge Young, and was clarified (not
changed), by the addition of the new language.
19 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.
MAINE COAST REGIONAL HEALTH FACILITIES, D/B/A MAINE COAST MEMORIAL HOSPITAL 19
d/b/a Maine Cost Memorial Hospital, the sole member of which
is Eastern Maine Healthcare Systems, Ellsworth, Maine, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining or enforcing any unlawful work rule or sys-
tem policy that prohibits employees from communicating with
the news media about the Respondent or Eastern Maine
Healthcare Systems (EMHS) or that requires employees to in-
volve, or obtain permission from, the Respondent or EMHS be-
fore doing so.
(b) Applying rules or policies, including the Media Policy
(EMHS system policy # 12-000), to restrict employees’ Section
7 Activity.
(c) Discharging or otherwise discriminating against employ-
ees for engaging in protected concerted activities and/or for sup-
porting Maine State Nurses Association/National Nurses Organ-
izing Committee/Nation Nurses United, or any other labor or-
ganization.
(d) 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. the following affirmative action necessary to effectuate the
policies of the Act.
(a) Rescind the EMHS Media Policy (EMHS system policy #
12-000) or revise it to make clear that it does not prohibit em-
ployees from communicating with the news media, with or with-
out the involvement or permission of the Respondent, regarding
employees’ terms and conditions of employment or union activ-
ity.
(b) Advise all employees that work for EMHS member or-
ganizations that the Media Policy (EMHS system policy # 12-
000) has been rescinded or revised and will not be used to disci-
pline them for communicating with the news media, with or
without the involvement of the Respondent, regarding employ-
ees’ terms and conditions of employment or union activity.
(c) Within 14 days from the date of the Board’s Order, offer
Karen-Jo Young full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or any other rights or privileges
previously enjoyed.
(d) Make Karen-Jo Young whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
her in the manner set forth in the remedy section of the decision.
(e) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge, and
within 3 days thereafter notify Karen-Jo Young in writing that
this has been done and that the discharge will not be used against
her in any way.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in
20 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
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 Ells-
worth, Maine, facility and at all other facilities where the EMHS
Media Policy has been in effect, copies of the attached notice
marked “Appendix.”20 Copies of the notice, on forms provided
by the Regional Director for Region 1, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employees are
customarily posted, including all bulletin boards in break rooms
located on units where bargaining unit employees work. In addi-
tion to physical posting of paper notices, the notices shall be dis-
tributed electronically, such as by email, posting on an intranet
or an internet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to en-
sure that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Re-
spondent at any time since June 28, 2017.
Dated, Washington, D.C. November 2, 2018.
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 do anything to prevent you from exercising the
above rights.
WE WILL NOT maintain or enforce any unlawful work rule or
system policy that prohibits you from communicating with the
news media about Maine Coast Memorial Hospital or Eastern
Maine Healthcare Systems (EMHS) or that requires you to in-
volve, or obtain permission from, Maine Coast Memorial Hospi-
tal or EMHS before doing so.
WE WILL NOT discharge or otherwise discriminate against any
of you for engaging in protected concerted activities or for sup-
porting Maine State Nurses Association/National Nurses
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
Organizing Committee/Nation Nurses United, or any other labor
organization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL rescind the EMHS Media Policy (EMHS system pol-
icy # 12-000), or revise it to make clear that it does not prohibit
you from communicating with the news media, with or without
the involvement or permission of the Maine Coast Memorial
Hospital or EMHS, regarding employees’ terms and conditions
of employment or union activity.
WE WILL advise you in writing of the manner in which we
have rescinded or revised the EMHS Media Policy (EMHS sys-
tem policy # 12-000) and further advise you that the policy will
not be unlawfully used to discipline you for communicating with
the news media, with or without the involvement or permission
of Maine Coast Memorial Hospital or EMHS, regarding employ-
ees’ terms and conditions of employment or union activity.
WE WILL, within 14 days from the date of this Order, offer
Karen-Jo Young full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or any other rights or privileges
previously enjoyed.
WE WILL make Karen-Jo Young whole for any loss of earnings
and other benefits resulting from her discharge, less any net in-
terim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters.
WE WILL compensate Karen-Jo Young for the adverse tax con-
sequences, if any, of receiving one or more lump-sum backpay
awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Karen-
Jo Young, and WE WILL, within 3 days thereafter, notify her in
writing that this has been done and that the discharge will not be
used against her in any way.
MAINE COAST REGIONAL HEALTH FACILITIES D/B/A
MAINE COAST MEMORIAL HOSPITAL, THE SOLE
MEMBER OF WHICH IS EASTERN MAINE HEALTH