Queen of the Valley Medical Center

National Labor Relations Board - Board Decisions

Nov 25, 2019

368 N.L.R.B. 116 (N.L.R.B. 2019)

368 NLRB No. 116
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.
Queen of the Valley Medical Center and National Un-
ion of Healthcare Workers (NUHW). Cases 20–
CA–191739, 20–CA–196271, 20–CA–197402, and
20–CA–197403
November 25, 2019
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On February 28, 2018, Administrative Law Judge Sha-
ron Levinson Steckler issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party filed briefs in re-
sponse to the Respondent’s exceptions. The Respondent
filed reply briefs to the General Counsel’s and Charging
Party’s responsive briefs. In addition, the General Coun-
sel filed a cross-exception with supporting argument, and
the Respondent and the Charging Party filed briefs in re-
sponse.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision2 and the record
in light of the exceptions,3 cross-exception, and briefs and
has decided to affirm the judge’s rulings, findings,4 and
conclusions only to the extent consistent with this Deci-
sion and Order.5

1 In its responsive brief, the Charging Party states that it concurs with
the General Counsel’s cross-exception and supporting argument and re-
plies to the arguments set forth in the Respondent’s answering brief to
the General Counsel’s cross-exception.
2 Prior to the issuance of the judge’s decision, the United States Dis-
trict Court for the Northern District of California granted the Board’s
petition for injunctive relief filed pursuant to Sec. 10(j) of the National
Labor Relations Act. See Coffman v. Queen of the Valley Medical Cen-
ter, No. 17-cv-05575-YGR, 2017 WL 6884316 (N.D. Cal. Nov. 30,
2017). The Respondent appealed the district court’s decision, and, after
the judge issued his decision, the United States Court of Appeals for the
Ninth Circuit affirmed the district court’s order of the Sec. 10(j) injunc-
tive relief. See Coffman v. Queen of the Valley Medical Center, 895 F.3d
717 (9th Cir. 2018).
On July 23, 2018, pursuant to Reliant Energy, 339 NLRB 66 (2003),
the Respondent filed a letter calling the Board’s attention to the Ninth
Circuit’s decision and challenging the court’s findings therein. The Gen-
eral Counsel and the Union filed responsive letters.
3 We deny the Respondent’s request for oral argument as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
4 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
The Respondent operates an acute care hospital in Napa,
California. In October 2016, the National Union of
Healthcare Workers (Union or NUHW) filed a petition to
represent approximately 420 non-professional employees
at the hospital. The Regional Director ordered a mail bal-
lot election, in which the employees voted for representa-
tion, with 202 votes for the Union and 132 votes against
the Union. The Regional Director certified the Union as
the employees’ exclusive bargaining representative on
December 22, 2016. The Respondent filed a request for
review of the direction of election and certification on Jan-
uary 9, 2017, but around the same time, as described in the
judge’s decision, began negotiating with the Union and
treating the Union as the unit’s designated representative.
On February 28, 2017, the Board denied the Respondent’s
request for review. On March 16, 2017, the Respondent
informed the Union that, unless the Union agreed to cer-
tain terms, the Respondent would refuse to bargain to ini-
tiate test-of-certification procedures. Soon thereafter, the
Respondent ceased negotiating with the Union. As a re-
sult of the Respondent’s conduct during this period, the
General Counsel alleges that the Respondent violated the
Act in numerous respects, including by unlawfully with-
drawing recognition from the Union.
We agree with the judge, for the reasons stated in her
decision, that the Respondent violated Section 8(a)(5) by
withdrawing recognition from the Union on about March
24, 2017, and by subsequently failing and refusing to rec-
ognize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the unit employees.6 In
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
The Respondent has excepted to the judge’s denial of additional sanc-
tions against the Union for failure to comply with the Respondent’s sub-
poena duces tecum. We find that the sanctions imposed by the judge
were proportionate to the Union’s noncompliance and that the judge did
not abuse her discretion in denying additional sanctions. See, e.g., McAl-
lister Towing & Transportation Co., 341 NLRB 394, 396–397 (2004),
enfd. 156 F. Appx. 386 (2d Cir. 2005).
No party has excepted to the judge’s dismissal of the allegation that
the Respondent violated Sec. 8(a)(3) by reassigning Renee Frogge to a
new position.
5 We have amended the judge’s conclusions of law consistent with
our findings herein. In addition, we have amended the judge’s remedy
to remove the notice-reading remedy and to clarify the backpay compu-
tation and the tax and social security remedies for the Respondent’s un-
lawful unilateral changes. Further, we shall modify the judge’s recom-
mended Order in accordance with our decision in Excel Container, Inc.,
325 NLRB 17 (1997), and to conform to the judge’s unfair labor practice
findings, the Board’s findings, and the Board’s standard remedial lan-
guage. We shall substitute a new notice to conform to the Order as mod-
ified.
6 To remedy this violation, the judge ordered an affirmative bargain-
ing remedy. We note that although the Respondent excepts to the judge’s
finding that it unlawfully withdrew recognition from the Union in viola-
tion of Sec. 8(a)(5), it does not argue that the judge’s recommended
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
addition, we adopt the judge’s findings that the Respond-
ent, on several occasions, violated Section 8(a)(5) by fail-
ing and refusing to provide information to the Union that
was relevant and necessary for collective-bargaining pur-
poses. Further, we adopt the judge’s findings that the Re-
spondent violated Section 8(a)(5) by unilaterally: (1) fail-
ing to abide by the negotiated and signed agreement re-
garding the effects of the Respondent’s kitchen construc-
tion project; (2) ending its practice of permitting the Union
to use meeting rooms at Respondent’s facility for Union
meetings; and (3) changing shift assignments for Sterile
Processing Department employees.7 Finally, we adopt the
judge’s finding that the Respondent violated Section
8(a)(1) by refusing the request of an employee for union
representation during an investigatory interview that she
reasonably believed may result in discipline.
We reverse, however, the judge’s finding that the Re-
spondent violated Section 8(a)(1) of the Act in December
2016 by threatening an employee with futility for seeking
union representation. As more fully described by the
judge, the director of the Respondent’s Environmental
Services (EVS) Department, Kevin Herring, informed a
prounion employee that “[u]nion or no union, I’m going
to run this department as I see fit.” We do not find that
Herring’s statement constituted an implied threat of futil-
ity for seeking union representation. In our view, employ-
ees would not have reasonably understood Herring’s state-
ment to imply that their attempt to secure union

affirmative bargaining order is improper even assuming the Board af-
firms the judge’s Sec. 8(a)(5) finding in this regard. We therefore find it
unnecessary to provide a specific justification for that remedy. See Sher-
aton Anchorage, 359 NLRB 803, 803 fn. 4 (2013), incorporated by ref-
erence as modified in 362 NLRB 1038 (2015); SKC Electric, Inc., 350
NLRB 857, 862 fn. 15 (2007); Heritage Container, Inc., 334 NLRB 455,
455 fn. 4 (2001); see also Scepter, Inc. v. NLRB, 280 F.3d 1053, 1057
(D.C. Cir. 2002).
Relatedly, we find merit in the General Counsel’s alternative argu-
ment in his limited cross-exception that, even absent a finding that the
Respondent unlawfully withdrew recognition, the Respondent neverthe-
less violated Sec. 8(a)(5) by failing and refusing to bargain with the Un-
ion since about March 24, 2017.
7 In light of our finding that the Respondent violated Sec. 8(a)(5) by
unilaterally changing the shift assignments of employees in the Sterile
Processing Department, we find it unnecessary to pass on whether those
shift changes also violated Sec. 8(a)(3) as the finding of an additional
violation would not materially affect the remedy. See, e.g., Raymond F.
Kravis Center for the Performing Arts, 351 NLRB 143, 145 (2007), enfd.
550 F.3d 1183 (D.C. Cir. 2008).
8 Member McFerran would adopt the judge’s finding that the Re-
spondent violated Sec. 8(a)(1) by threatening an employee that seeking
union representation would be futile. During a time period when the
Union had requested to meet with the Respondent over the shift reassign-
ment of employee Renee Frogge, Manager Herring called Frogge to his
office for a meeting. When Frogge asked if she needed union represen-
tation for the meeting, Herring was, according to the judge, “visibly irri-
tated” by her question. Herring then declared to Frogge, “[u]nion or no
union, I’m going to run this department as I see fit.” Contrary to her
representation would be futile because his statement was
too vague to suggest that the Respondent would not com-
ply with its duty to bargain in good faith if the Union was
certified as the employees’ representative. Accordingly,
we dismiss the allegation that Herring’s statement was un-
lawful.8
We also reverse the judge’s finding that the Respondent
violated Section 8(a)(3) by reassigning EVS Department
employee Miguel Arroyo to a different shift from the shift
assigned to his wife.9 Applying the analysis set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the judge
found that the General Counsel met his initial burden
largely based on inferences she drew from the record evi-
dence. She then found that the Respondent did not meet
its rebuttal burden because, in her view, the Respondent’s
asserted reasons for Arroyo’s discharge were pretextual.
As explained below, we find that the judge erred in con-
cluding that the General Counsel met his initial burden un-
der Wright Line.
Regarding the General Counsel’s initial burden, the
judge found that Arroyo was a union supporter, had worn
a union lanyard, and had appeared in a photograph on the
Union’s Facebook page. The judge also found, however,
that there was no direct evidence to show that the Re-
spondent knew of Arroyo’s union activity or that the shift
change was motivated by any union activity.10 Absent
such direct evidence, the judge found that there was
colleagues, Member McFerran agrees with the judge that Herring’s dec-
laration reasonably conveyed his disregard for the employees’ selection
of the Union as their representative and that it would be pointless for
Frogge to seek the Union’s assistance in this or any other matter. See,
e.g., Gene’s Bus Co., 357 NLRB 1009, 1011 (2011); and Kenworth
Trucks of Philadelphia, 229 NLRB 815, 818 (1977).
9 Members Kaplan and Emanuel join in reversing the judge on the
threat of futility charge and Arroyo’s unlawful reassignment charge. As
explained, Member McFerran would affirm the judge’s findings on these
issues.
10 In the related 10(j) proceedings, the Ninth Circuit affirmed the dis-
trict court’s finding that the Regional Director had submitted evidence
sufficient to establish a likelihood of success on the merits of the Sec.
8(a)(3) allegation related to Arroyo’s shift reassignment. In agreeing
with the district court, the Ninth Circuit relied on testimony that a man-
ager knew of Arroyo’s union activity and, in the week before the elec-
tion, conspired to “hurt” Arroyo for his union activity. See Coffman v.
Queen of the Valley Medical Center, supra, 895 F.3d at 729. The testi-
mony relied on by the Ninth Circuit was from landscaping foreman Ardy
Van Winden, who testified that, in the first week of November 2016,
Herring identified Arroyo as a union supporter and later directed EVS
Supervisor Shari Roe to examine Arroyo’s schedule to see if there was a
way to change it to make sure Arroyo was “hurt” by his support of the
Union. The judge stated that she did not rely on Van Winden’s testimony
in analyzing the General Counsel’s initial burden regarding Arroyo. Ad-
ditionally, earlier in her decision, the judge found more generally that the
“Respondent discredited Van Winden’s testimony on a number of issues,
including the circumstances surrounding his resignation.” Unlike our
dissenting colleague, we do not think that the statement about the
QUEEN OF THE VALLEY MEDICAL CENTER 3
circumstantial evidence sufficient to warrant an inference
of the Respondent’s knowledge and animus. To be sure,
knowledge and discriminatory motive may be inferred
from circumstantial evidence. See, e.g., Naomi Knitting
Plant, 328 NLRB 1279, 1281 (1999) (unlawful motiva-
tion); Montgomery Ward & Co., 316 NLRB 1248, 1253
(1995) (knowledge), enfd. mem. per curiam 97 F.3d 1448
(4th Cir. 1996). Here, however, based on consideration of
all the circumstances of this case, we find that the judge’s
inferences of animus were not warranted.11
The judge first inferred animus from the timing of Ar-
royo’s reassignment and the “suddenness” of the Re-
spondent’s decision to enforce an existing policy against
family members working on the same shift. In reaching
these conclusions, however, the judge failed to give suffi-
cient weight to the facts surrounding Herring’s decision to
reassign Arroyo to a different shift—in particular the facts
that Herring had only recently become the EVS Depart-
ment director and based his reassignment of Arroyo on ad-
vice from the Respondent’s human resources department.
Since starting in the EVS director position, Herring, in
conjunction with his direct superior, had been reviewing
the numerous employees under his direction and seeking
to improve workflows, assignments, and schedules. At
some point, Harold Young, the department’s evening su-
pervisor, informed Herring that the Arroyos were married
and stated that this could cause scheduling problems on
the second shift. According to Herring, he was aware that
some companies had restrictions on family members
working together, and he therefore contacted the human
resources department for assistance. The human resources
department informed Herring that the Respondent indeed
maintained a policy prohibiting, among other things,

Respondent’s discrediting of Van Winden creates any doubt that the
judge herself implicitly discredited Van Winden’s testimony regarding
Herring’s knowledge of and feelings about Arroyo’s union activity.
Therefore, it is not necessary to remand this issue to the judge for a more
specific credibility resolution.
Contrary to her colleagues, Member McFerran questions whether Van
Winden’s testimony is, in fact, discredited. After setting forth the sub-
stance of Van Winden’s testimony, the judge stated that the “Respondent
discredited Van Winden’s testimony on a number of issues” and later
stated that she did not rely on Van Winden’s testimony. It is unclear to
Member McFerran if the judge herself actually discredited Van Win-
den’s testimony or if she did not rely on it because the Respondent
thought it discredited. If the judge discredited Van Winden’s testimony,
Member McFerran would defer to that determination in the absence of a
reason not to do so. However, if only the Respondent discredited the
testimony and the judge did not actually make a credibility determina-
tion, Member McFerran believes that such a determination would need
to be made as the credibility of Van Winden’s testimony is potentially
outcome determinative on the matter of Arroyo’s reassignment. Given
the lack of clarity, Member McFerran would remand this issue to the
judge for a specific credibility resolution regarding Van Winden’s testi-
mony.
“related persons,” including spouses, from being em-
ployed on the same shift and apparently advised Herring
that Arroyo should be reassigned to a different shift than
his wife. Consistent with this advice, Herring reassigned
Arroyo to the day shift. In light of these facts, unlike the
judge, we find that the timing of the decision to reassign
Arroyo to be of negligible evidentiary weight. See, e.g.,
Caribe Ford, 348 NLRB 1108, 1109 (2006).
The judge also found that Herring’s limited investiga-
tion into the Arroyos’ situation warranted an inference of
animus. Although it is true that Herring did not inquire
into the specific details of the Arroyos’ marriage or their
tenure with the Respondent, it is not clear to us how that
warrants an inference of animus based on the record evi-
dence before us.12 Concerned about the existence of a pol-
icy prohibiting family members from working together,
Herring raised the matter to human resources and was ad-
vised, based on the Respondent’s policy, that Arroyo
should be reassigned. Under the circumstances, Herring’s
actions give us no reason to question the adequacy of his
investigation. See Frierson Building Supply Co., 328
NLRB 1023, 1023–1024 (1999) (finding that judge’s in-
ference of animus was not warranted where a new super-
visor discharged an employee for poor work performance
as soon as it came to the supervisor’s attention).
Finally, the judge took issue with Herring’s reliance on
a concern about vacation scheduling issues with the Ar-
royos in reassigning Miguel Arroyo to a different shift.
Specifically, the judge found that this amounted to pretext
since the Arroyos had apparently never requested vacation
leave at the same time.13 Again, however, the judge failed
to account for the broader circumstances of the case. Alt-
hough Herring’s initial concern may have been about
11 In light of our conclusion that the judge’s inferences of animus
were not warranted and thus that the General Counsel did not satisfy his
initial Wright Line burden, we find it unnecessary to pass on whether the
judge properly inferred that the Respondent had knowledge of Arroyo’s
union activity.
12 In drawing inferences from the Respondent’s investigation, the
judge was apparently troubled by the fact that EVS Supervisor Roe knew
about the Arroyos’ marriage for 10 years but the Respondent never took
any action consistent with the policy against the couple. There is no ev-
idence in the record, however, to suggest that Roe, a low-level supervisor
who did not directly supervise Arroyo, shared this knowledge with other
members of the Respondent’s management team. Similarly, the judge
relied on the fact that no one in human resources testified as to how long
that department might have known Arroyo and his wife worked the same
shift. But the General Counsel had the burden to put forth evidence in
support of his initial burden, and he did not call any witnesses to show
that anyone in human resources knew about the Arroyos’ marriage prior
to Herring raising the matter to them.
13 In two sentences at the end of her analysis, the judge also found
that Herring’s decision to reassign Arroyo instead of his wife somehow
warranted an inference of unlawful motivation. In our view, the judge’s
reasoning is too vague and insubstantial to sustain an inference of animus
or discriminatory motivation.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vacations and staffing coverage, the ultimate decision to
reassign Miguel Arroyo was based on the Respondent’s
policy against “related persons” working the same shift
and the recommendation from human resources to reas-
sign him.
In light of the foregoing, we find that the judge erred in
inferring animus.14 As a result, we find that the judge
erred in concluding that the General Counsel met his ini-
tial burden under Wright Line of proving that Arroyo’s
shift reassignment was discriminatorily motivated.15 We
thus dismiss the allegation that the Respondent violated
Section 8(a)(3) by reassigning Arroyo to a different shift.
AMENDED CONCLUSIONS OF LAW
Delete the judge’s Conclusions of Law 6 and 11 (i) and
(ii) and renumber the remaining paragraphs accordingly.
AMENDED REMEDY
The Respondent excepts to the judge’s recommended
remedy requiring a public reading of the notice by a Board
agent or responsible management official. The Board will
order a notice-reading remedy “where the violations are
so numerous and serious that the reading aloud of a notice
is considered necessary to enable employees to exercise
their Section 7 rights in an atmosphere free of coercion, or
where the violations in a case are egregious.” Postal Ser-
vice, 339 NLRB 1162, 1163 (2003). Here, a notice-read-
ing remedy is neither necessary nor appropriate to remedy
the violations in this case because the Board’s traditional
remedies suffice to inform employees of the Respondent’s
unlawful conduct. See, e.g., Bodega Latina Corp. d/b/a

14 Our dissenting colleague would adopt the judge’s finding that Ar-
royo’s shift reassignment was unlawful. In so doing, she essentially
agrees with the judge’s decision to infer knowledge and animus from the
circumstances surrounding the reassignment decision. As discussed
above, however, we do not find that the judge’s inferences were war-
ranted.
15 Contrary to her colleagues, Member McFerran would not find Ar-
royo’s shift reassignment to be a proper, nondiscriminatory action by a
new supervisor. Instead, applying Wright Line, she would find the reas-
signment to be an unlawful action that served as the opening act of the
Respondent’s subsequent campaign of unfair labor practices designed to
stymie the collective-bargaining process and punish union supporters.
See supra 1–2 (adopting judge’s findings of various violations of the
Act); and Coffman v. Queen of the Valley Medical Center, supra, 895
F.3d at 730 (court noting numerous instances in the record where the
Respondent engaged in retaliatory and hostile acts against union support-
ers). Specifically, as to the General Counsel’s initial burden, she would
find that Arroyo engaged in union activity and, even assuming there is
no direct evidence of knowledge or animus, see supra fn. 10, she would
find, as the judge did, that the circumstantial evidence here warrants an
inference of knowledge and unlawful motivation. As an initial matter,
although not specifically relied on by the judge, Herring’s general
knowledge of the union campaign warrants an inference of knowledge
of Arroyo’s union activity. See, e.g., Montgomery Ward & Co., 316
NLRB 1248, 1253–1254 (1995), enfd. 97 F.3d 1448 (4th Cir. 1996). In
addition, as the judge found, the timing of the reassignment during the
El Super, 367 NLRB No. 34, slip op. at 1 (2018). We ac-
cordingly amend the judge’s remedy to remove the notice-
reading remedy.16
In addition, we note that in remedying the Respondent’s
unlawful unilateral changes, the judge did not address the
related computation of backpay or the tax and social secu-
rity remedies in her recommended remedy. Instead, she
addressed them in the recommended Order. We therefore
amend her recommended remedy to clarify that the make
whole relief ordered in connection with the Respondent’s
unlawful unilateral changes shall be computed in accord-
ance with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010). We further amend her
recommended remedy to clarify that the Respondent shall
be required to compensate the affected unit employees for
the adverse tax consequences, if any, of receiving lump-
sum backpay awards, and to file with the Regional Direc-
tor for Region 20, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years. AdvoServ of New Jersey, Inc., 363 NLRB
No. 143 (2016).
ORDER
The National Labor Relations Board orders that the Re-
spondent, Queen of the Valley Medical Center, Napa, Cal-
ifornia, its officers, agents, successors, and assigns shall
1. Cease and desist from
mail-ballot voting period, the suddenness of the decision to reassign Ar-
royo based on a policy that had been in place since 1977, the limited
nature of the investigation into the Arroyos’ long-standing schedule ar-
rangement, and the pretextual reasons for the discharge all warrant infer-
ences that the Respondent knew of Arroyo’s activity and bore animus
towards that activity. Having found that the General Counsel met his
initial burden, Member McFerran would find, in agreement with the
judge, that the evidence of pretext here means that the Respondent nec-
essarily cannot meet its rebuttal burden. See, e.g., Golden State Foods
Corp., 340 NLRB 382, 385 (2003). As a result, she would adopt the
judge’s finding that the Respondent violated Sec. 8(a)(3) by reassigning
Miguel Arroyo to a different shift.
16 Unlike her colleagues, Member McFerran would adopt the judge’s
recommended notice-reading remedy. She agrees with the judge that the
Respondent’s unfair labor practices were widespread, serious, and
demonstrated the Respondent’s clear intent not to honor its bargaining
obligations under the Act. In addition, she notes that the judge’s recom-
mended notice-reading remedy is consistent with the remedy ordered by
the district court in the related Sec. 10(j) injunction proceeding, a remedy
ultimately affirmed by the Ninth Circuit. In these circumstances then,
Member McFerran would find that a notice reading is appropriate “to
dissipate as much as possible any lingering effects of the Respondent’s
unfair labor practices,” and will allow the employees to “fully perceive
that the Respondent and its managers are bound by the requirements of
the Act.” Homer D. Bronson Co., 349 NLRB 512, 515 (2007) (internal
quotes omitted), enfd. mem. 273 Fed. Appx. 32 (2d Cir. 2008).
QUEEN OF THE VALLEY MEDICAL CENTER 5
(a) Withdrawing recognition from National Union of
Healthcare Workers (the Union) and failing and refusing
to bargain with the Union as the exclusive collective-bar-
gaining representative of the unit employees.
(b) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining rep-
resentative of the Respondent’s unit employees.
(c) Changing the terms and conditions of employment
of its unit employees without first notifying the Union and
giving it an opportunity to bargain.
(d) Refusing the requests of employees for union rep-
resentation during investigatory interviews they reasona-
bly believe may result in discipline.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit concern-
ing terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a signed
agreement:
All nonprofessional employees, including technical em-
ployees, employed by the Respondent at its facilities lo-
cated at 1000 Trancas Street, 980 Trancas Street, 3448
Villa Lane, and 3421 Villa Lane in Napa, California; but
excluding all other employees, skilled maintenance em-
ployees, business office clerical employees, confidential
employees, guards, and supervisors as defined in the
Act.
(b) Furnish to the Union in a timely manner the infor-
mation requested by the Union on the following dates:
(i) December 15, 2016, and January 24, 2017 requests
for information related to changes to Renee Frogge’s
linen duties;
(ii) January 10, 2017 request for information to bargain
a full collective-bargaining agreement;
(iii) March 3, 2017 request to Interim Director of Surgi-
cal Services Diane Kriegel for information related to
possible changes for Sterile Processing Department em-
ployees;

17 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
(iv) March 21, 2017 request for information regarding
the pharmacy;
(v) March 21, 2017 request for information regarding
the Environmental Services Department and policies re-
lated to disciplinary action; and
(vi) March 21, 2017 request for information regarding
productivity calculations in patient access services.
(c) Rescind the changes in the terms and conditions of
employment for its unit employees that were unilaterally
implemented on the following dates:
(i) On March 24, 2017, regarding the Respondent’s re-
fusal to allow the Union to schedule meeting rooms at
the Respondent’s facility;
(ii) On April 5, 2017, regarding the change of schedules
for Sterile Processing Department employees; and
(iii) On or about April 21, 2017, regarding the Respond-
ent’s abrogation of the kitchen construction agreement.
(d) Make all affected unit employees whole for any loss
of earnings or benefits suffered as a result of the Respond-
ent’s unilateral changes, in the manner set forth in the rem-
edy section of the judge’s decision as amended in this de-
cision.
(e) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 20,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years for each
employee.
(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 facilities in Napa, California copies of the attached no-
tice marked “Appendix.”17 Copies of the notice, on forms
provided by the Regional Director for Region 20, after be-
ing signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
If the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since December 15,
2016.
(h) Within 21 days after service by the Region, file with
the Regional Director for Region 20 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.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. November 25, 2019
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT withdraw recognition from National Un-
ion of Healthcare Workers (the Union) and fail and refuse
to bargain with the Union as the exclusive collective-bar-
gaining representative of our employees in the bargaining
unit.
WE WILL NOT refuse to bargain collectively with the Un-
ion by failing and refusing to furnish it with requested in-
formation that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT change your terms and conditions of em-
ployment without first notifying the Union and giving it
an opportunity to bargain.
WE WILL NOT refuse the requests of employees for un-
ion representation during investigatory interviews they
reasonably believe may result in discipline.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL recognize and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following appropriate unit
concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a
signed collective-bargaining agreement:
All nonprofessional employees, including technical em-
ployees, employed by the Employer at its facilities lo-
cated at 1000 Trancas Street, 980 Trancas Street, 3448
Villa Lane, and 3421 Villa Lane in Napa, California; but
excluding all other employees, skilled maintenance em-
ployees, business office clerical employees, confidential
employees, guards, and supervisors as defined in the
Act.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on the following
dates: December 15, 2016; January 10, 2017; January 24,
2017; March 3, 2017; and March 21, 2017.
WE WILL rescind changes in terms and conditions of
employment for our unit employees that were unilaterally
implemented on the following dates: March 24, 2017;
April 5, 2017; and April 21, 2017.
WE WILL make unit employees whole for any loss of
earnings and other benefits resulting from the unilateral
changes in terms and conditions of employment, plus in-
terest.
QUEEN OF THE VALLEY MEDICAL CENTER 7
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 20, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee.
QUEEN OF THE VALLEY MEDICAL CENTER
The Board’s decision can be found at
www.nlrb.gov/case/20-CA-191739 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.
Marta Novoa, Esq., for the General Counsel.
Ellen Bronchetti and Philip Shecter, Esqs., for the Respondent.
Jonathan Siegel and Latika Malkani, Esqs., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
SHARON LEVINSON STECKLER, Administrative Law Judge. On
January 20, 2016, Charging Party National Union of Healthcare
Workers (NUHW) (Union) filed a charge in Case 20–CA–
191739 against Respondent Queen of the Valley Medical Center
(Respondent). The Union filed first and second amended
charges in Case 20–CA–191739 respectively on February 1 and
17, 2017. The Union filed a charge against Respondent in Case

1 The last dates for hearing were scheduled twice for October but
rescheduled each time due to severe wildfires in the Napa Valley, Cali-
fornia region, which affected Respondent’s operations and its witnesses’
availability.
2 Although I have included citations to the record to highlight partic-
ular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations, but rather upon my review and
consideration of the entire record for this case. My findings of fact en-
compass the credible testimony, evidence presented, and logical infer-
ences. The credibility analysis may rely upon a variety of factors, in-
cluding, but not limited to, the context of the witness testimony, the
weight of the respective evidence, established or admitted facts, inherent
probabilities, and reasonable inferences that may be drawn from the rec-
ord as a whole. Double D Construction Group, 339 NLRB 303, 303–305
(2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Auto-
motive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56
20–CA–196271 on April 3, 2017. The Union filed two more
charges, in Cases 20–CA–197402 and 20–CA–197403, on April
21, 2017.
Counsel for the General Counsel (General Counsel) issued
against Respondent a consolidated complaint on May 31, 2017,
and an amendment to the consolidated complaint on June 15,
2017. General Counsel issued a second amendment to the con-
solidated complaint on July 24, 2017. Respondent filed timely
answers to the consolidated complaint and its amendments.
The alleged unfair labor practices involve Respondent’s ac-
tions surrounding the Union’s petition to represent nonprofes-
sional employees in Respondent’s Napa Valley, California facil-
ities. The primary issue is whether, in violation of Section
8(a)(5), Respondent refused to recognize the Union or withdrew
recognition after the Union won an election and the Board denied
Respondent’s request for review of the election. Respondent,
denying that the Union was properly certified and that the Union
is the bargaining unit’s 9(a) representative, concedes that it re-
fuses to bargain with the Union. General Counsel, citing meet-
ings and agreements reached after the Regional Director certified
the Union as the 9(a) representative, maintains that Respondent
withdrew recognition from the Union.
The consolidated complaint also alleges several instances of
Respondent refusing to provide information. It further alleges
that Respondent violated the Act regarding scheduling and
changes of duties for two employees in the sterile processing de-
partment and 8(a)(3) violations for two employees in the envi-
ronmental services department. Hearing in this matter was held
on August 7 —11, August 23—25, and November 1 and 2,
2017.1 All parties had the opportunity to present testimony and
evidence and file briefs. After carefully considering the parties’
briefs and the record evidence, I hereby make these
FINDINGS OF FACT2
I. JURISDICTION AND UNION STATUS
Respondent, a California corporation, operates an acute care
hospital with facilities located at and near 1000 Trancas Street in
Napa, California. During the past 12 months, Respondent has
performed health-care services valued in excess of $250,000 and
has purchased and received goods valued in excess of $5000 di-
rectly from sources located outside the State of California. I
therefore find that Respondent is an employer within the
Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings regarding any wit-
ness are not likely to be an all-or-nothing determination and I may be-
lieve that a witness testified credibly regarding one fact but not on an-
other. Daikichi Sushi, 335 NLRB at 622.
When a witness may reasonably be assumed to be favorably disposed
to the party, an adverse inference may be drawn regarding any factual
question on which the witness is likely to have knowledge. International
Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d 720
(6th Cir. 1988). This is particularly true where the witness is the Re-
spondent’s agent. Roosevelt Memorial Medical Center, 348 NLRB
1016, 1022 (2006). Testimony from current employees tend to be par-
ticularly reliable because it goes against their pecuniary interests when
testifying against their employer. Gold Standard Enterprises, 234 NLRB
618, 619 (1978); Georgia Rug Mill, 131 NLRB 1304 fn. 2 (1961); Gate-
way Transportation Co., 193 NLRB 47, 48 (1971); Federal Stainless
Sink Division, 197 NLRB 489, 491 (1972).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meaning of Section 2(2), (6), and (7) of the Act and is a health
care institution within the meaning of Section 2(14) of the Act.
The parties stipulated, and I find, that Charging Party Union
is a labor organization within the meaning of Section 2(5) of the
Act.
II. BACKGROUND
Respondent’s facilities consist of a main hospital, a wellness
center, additional buildings for imaging and outpatient surgery,
and a separate building for community outreach. Respondent
was part of the Saint Joseph’s Health Center until July 2016,
when it merged into Providence Saint Joseph Health. Respond-
ent employs approximately 1150 employees, with approximately
420 employees in the certified bargaining unit involved here.3
Larry Coomes serves as Respondent’s president. The Human
Resources (HR) Director is Donna Schelling. HR Director Schel-
ling has worked for Respondent for 33 years in various HR ca-
pacities. For the last 5 years, she has been HR director. She
oversees the day to day operations in HR, such as recruitment,
on-boarding, employee relations, compensation and benefits,
and, to a certain extent, labor relations. (Tr. 1840.) Two of
Schelling’s direct reports were also involved in these events: HR
Ministry Partner Kathy Hutchinson; and, HR Manager Jill Gruet-
ter.
Bill Candella, the Director of Labor and Employee Relations,
reports to a different vice-president than Schelling. Candella’s
responsibilities include negotiating all collective bargaining
agreements within the health care system and handling griev-
ances and unfair labor practices. He has negotiated numerous
agreements and resolved grievances. He also holds a law license
but has not worked as an attorney.
The environmental services department (EVS) is led by Kevin
Herring, currently the Director of Environmental Services and
Facilities. During these events, he directed two supervisors,
Shari Roe and Harold Young, and, until December 2017, the
landscaping facilities with Ardy Van Winden.
The Union’s organizer working with the bargaining unit is
Hilda Poulson. In addition to assisting with organizing employ-
ees, postelection she represents employees in investigatory meet-
ings and negotiates over local worksite issues. She served as
primary field organizer in the unionization campaign. Poulson
reports to Dan Martin, the assistant to the Union president. Once
the Union won the election, Poulson became the Union’s repre-
sentative, working closely with the bargaining unit employees on
a day to day basis. Martin was in charge of negotiating the col-
lective-bargaining agreement.
III. UNION FILES A PETITION FOR NONPROFESSIONAL EMPLOYEES
AND WINS A MAIL BALLOT ELECTION
On October 4, 2016, in Case 20–RC–185503, the Union filed
a petition to represent approximately 420 non-professionals in
Respondent’s Napa Valley facility. (Jt. Exh. 2.)4 Approximately
20 employees served on the organizing committee. Shortly after
the Union filed its petition, the Union provided Union lanyards,

3 Not at issue in this matter is the bargaining unit of registered nurses,
represented by the California Nurses Association.
4 Abbreviations in this decision are: “Tr.” for transcript; “GC Exh.”
for General Counsel exhibit; R. Exh.” for Respondent exhibit; “CP Exh.”
buttons and badge holders to its organizing committee members,
who in turn distributed the paraphernalia to interested employ-
ees. Employees also distributed flyers after October 4. HR Di-
rector Schelling observed approximately half of the employees
she saw wore union buttons or lanyards. (Tr. 1845–1846.)
A number of hospital departments involved heavily with the
organizing efforts included dietary, sterile processing, house-
keeping (also called environmental services, or EVS), and res-
piratory therapy. The Union maintained a special Facebook page
regarding the employees it sought to represent.
On November 15, 2016, after a mail ballot election, the votes
were counted. The Tally of Ballots reflects that, of the approxi-
mate 419 eligible votes, 202 votes were cast for the Union and
132 votes were cast against the Union, a difference of 70 votes.
Twelve ballots were void and the 33 challenged ballots were in-
sufficient to affect the election’s outcome. (Jt. Exh. 4; Jt. Stip.
¶8.) On November 22, 2016, Respondent filed objections to the
election with the Acting Regional Director. Among its 21 objec-
tions, Respondent contended that a number of employees were
denied opportunities to vote and the number of missing mail bal-
lots affected the outcome.
On December 22, 2016, a month after the objections were
filed, the Acting Regional Director dismissed the objections and
challenges and certified the Union was certified as the exclusive
bargaining representative of the following group of employees:
All nonprofessional employees, including technical employ-
ees, employed by [Respondent] at its facilities located at 1000
Trancas Street, 980 Trancas Street, 3448 Villa Lane, and 3421
Villa Lane in Napa, California; but excluding all other employ-
ees, skilled maintenance employees, business office clerical
employees, confidential employees, guards, and supervisors as
defined in the Act.
(Jt. Exh. 6; Jt. Stip. ¶10.)
On January 9, 2017, Respondent filed with the Board a request
for review of the Regional Director’s decision to certify the Un-
ion. (Jt. Exh. 7.) The Board, in an unpublished decision dated
February 28, 2017, denied Respondent’s Request for Review.
(Jt. Exh. 8.)
Once the tally of ballots reflected that the Union won the elec-
tion in November 2016, the Union prepared for its representa-
tional duties. It put together a group of approximately 20 em-
ployees for its bargaining team representatives. The union bar-
gaining team representatives were to participate in contract ne-
gotiations and collect information from fellow bargaining unit
members regarding what issues were important to contract nego-
tiations. Each department elected its bargaining team representa-
tive. The bargaining unit employees also elected departmental
“leads.” In addition, Poulson continued to meet with employees
in the cafeteria and other areas of Respondent’s properties.
Throughout these events, the Union loosely characterized Re-
spondent’s actions as a refusal to recognize; however, the events
for union exhibit; “Jt. Exh.” for joint exhibit; “Sub. Exh.” for exhibits
related to the subpoena issues; “Stip.” for stipulation; “GC Br.” for Gen-
eral Counsel brief; “R. Br.” for Respondent brief; and, “CP Br.” for union
brief.
QUEEN OF THE VALLEY MEDICAL CENTER 9
themselves are the gravamen of whether the case is a failure to
recognize (test of certification) versus a refusal to bargain or
withdrawal of recognition.
Poulson was now the Union representative for this bargaining
unit. She met with bargaining team representatives each month.
The meetings were conducted at Respondent’s facility. Poulson
reserved the meeting rooms by contacting HR Director Schel-
ling. Schelling typically asked Poulson how many people the
meeting would need to accommodate. Schelling then assigned
the meeting room within the facility. At least three such meet-
ings were held.
IV. THE UNION REQUESTS TO NEGOTIATE THE “FULL COLLECTIVE-
BARGAINING AGREEMENT”
While Poulson handled the day-to-day issues with Respond-
ent, Dan Martin, the Union’s assistant to the director, worked
towards negotiating a collective-bargaining agreement.
A. The Union Requests Information to Negotiate a Collective-
Bargaining Agreement
Union request
On January 10, 2017, Martin sent a letter to HR Director
Schelling. Martin cited the December 22, 2016 decision in which
the Union was the certified bargaining representative for the 420-
employee bargaining unit. The letter specifically told Respond-
ent that it was required to negotiate with the Union regarding any
changes to employees’ wages, benefits and working conditions,
which could not be implemented unilaterally. (Jt. Exh. 12.) The
letter identified the Union’s goal to prepare to negotiate “a full
collective bargaining agreement” and stated the Union was mak-
ing an information request needed for negotiations, reserving the
right to make additional information requests later. In this letter,
Martin requested:
1. Information regarding bargaining unit members. For each
member of the bargaining unit represented by the Union, please
provide the following:
(a) Gender
(b) Race/ethnicity
(c) Shift differential pay rate and/or premiums and wage dif-
ferentials in lieu of benefits;
(d) Benefited status (e.g., benefited or non-benefited);
(e) Health insurance coverage level (e.g., employee only, em-
ployee plus spouse, employee plus children, family);
(f) The number of hours worked by pay code (e.g., straight
time, overtime) during the past 12 months;
(g) Seniority date;
(h) Date of birth
(i) Home address;
(j) Home telephone number;
(k) Cell phone number; and
(l) E-mail address.
2. Personnel Handbooks and Regulations: Please provide
copies of any personnel handbooks, written rules, regulations,
policies or procedures governing bargaining-unit employees, in-
cluding those applicable to particular departments, work units or
shifts.
3. Health and Welfare Benefits: Please provide:
(a) A copy of the current Plan Document and Summary Plan
Description for each plan available to bargaining-unit mem-
bers;
(b) Monthly premiums for each coverage level (employee
only, employee plus child, employee plus spouse, family);
(c) Monthly premium contributions required from a full-time
and part-time employee for each coverage level (employee
only, employee plus child, employee plus spouse, family); and
(d) The number of employees enrolled in each plan and at each
coverage level.
4. Retirement Plans. Please provide: The Audited Financial
Statement and Trustees’ Report for the three most recent years
available for each plan.
5. Cost of Benefits to Employer. Please provide the total an-
nual costs to the Employer for 2014, 2015, and 2016 for:
(a) Retirement;
(b) Health Coverage;
(c) Dental Coverage;
(d) Vision Coverage;
(e) Life Insurance; and
(f) Long Term Disability.
6. Bargaining-Unit Work Hours and Payroll. Please provide
the total annual hours and total annual payroll for the bargaining
unit for 2015 and 2015 in aggregate and by classification.
7. Bargaining-Unit Non-Work Hours. Please Provide the to-
tal annual hours for the following items for 2014, 2015, and
2016:
(a) PTO [sic, paid time off] and/or vacation
(b) Sick Leave and/or Extended Sick Leave
(c) Education Leave
8. Staffing Matrix. Please provide staffing matrices and the
number of staff by classification for each shift and work station.
9. Employee Turnover. Please provide:
(a) The total number of staff hired, terminated and remaining
during 2014, 2015 and 2016; and
(b) The employee turnover rates for 2014, 2015, and 2016.
10. Health and Safety Information. Please provide:
(a) A copy of the OSHA 200/300 logs and unedited Sharps
Injury Log for each of the past three years; and
(b) The current Blood Born Pathogen Control Plan and Injury
and Illness Prevention Plan.
11. Registry/Temporary Personnel. Please provide:
(a) The number of Registry personnel utilized during 2014,
2015, and 2016; and
(b) Expenditures on Registry/Temporary and other supple-
mental personnel during 2014, 2015 and 2016 by classification.
(Jt. Exh. 12.)
2. Respondent’s answer to the information request and the
Union’s continued efforts
Candella testified that he received the information request but
put it into a folder until he received an unfair labor practice
charge about it: Because Respondent intended not to bargain, he
did not find the information request to be a pressing matter. (Tr.
1567–1678.) Candella’s representation of Respondent’s posi-
tion was contradicted by Respondent’s communications with the
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union. Nonetheless, by February 10, Respondent was supplying
some of the information.
On January 17, 2017, Interim Respondent CEO Larry Coomes
emailed to all employees a memorandum about the bargaining
status. It announced Respondent’s decision to appeal the Re-
gional Director’s decision regarding the representation case.
Simultaneously, he committed to go forward with “good faith
bargaining” during the appeal period and anticipated the Union
would request to begin negotiations. (CP Exh. 1; stipulation at
Tr. 1144.)
On January 30, Martin contacted HR Manager Schelling about
the information request. Schelling stated the information request
had been sent to the “labor department.” Martin again emailed
Schelling on February 6 for the information.
By letter dated February 10, 2017, HR Director Schelling
stated, “On behalf of [Respondent], this responds to your Janu-
ary 10, 2017 letter requesting information in preparation for the
upcoming negotiations for an initial collective bargaining agree-
ment covering employees represented by the [Union]. The
amount of information requested was quite voluminous. I have
enclosed the responsive documents and information we have
gathered to date. [Respondent] is gathering additional responsive
information and will supplement this response.” A number of
items, however, were considered objectionable. Schelling stated,
“[W]e are prepared to bargain in good faith with the NUWH over
the scope and/or relevance of such request, and will reconsider
our objections if provided with an explanation establishing the
relevance of the request and/or the reason for this seemingly
overbroad, unduly burdensome and/or oppressive scope.” (Jt.
Exh. 22.) Respondent provided: the job descriptions (Item 2); a
summary plan description for its 403(b) plan (Item 5); the name,
address and telephone number of the workers’ compensation car-
rier (Item 13); and no prior bargaining agreements exists for
these employees (Item 15). Respondent advised it was gathering
information and would provide the OSHA 200/300 logs and un-
edited sharps injury logs for the previous 3 years and the blood-
borne pathogen control plan and injury and illness prevention
plan (Item 11).
For information request Item 1, Respondent partially provided
the information. Respondent disclosed the first and last name,
title, department, shift and typical number of hours worked per
pay period. The remaining information for Item 1 would be sup-
plemented as Respondent was gathering information, except for
the health insurance coverage. Schelling contended that Re-
spondent could not provide the specific health insurance cover-
age for the individuals due to privacy concerns under HIPAA but
offered “to discuss other alternatives to reach an accommodation
that provides you the information you need while allowing us to
comply with our HIPAA obligations.” (Jt. Exh. 22.)
For a number of the Items requested, Respondent stated the
requests were overly broad and unduly burdensome; yet Re-
spondent agreed to provide information for year 2016 only, but

5 Respondent contends that this statement shows the Union knew Re-
spondent was not bargaining before this date. However, the context of
the correspondence between Martin, Candella, and Schelling shows Mar-
tin was dealing only with the bargaining of an overall collective-bargain-
ing agreement and not the day-to-day issues with which Poulson dealt.
not years 2015 and 2014 as requested. These requests were for:
annual costs of benefits to employer (Item 6); bargaining-unit
work hours and payroll (Item 7); bargaining unit non-work hours
(e.g., PTO or vacation, sick leave, education leave) (Item 8); and
employee turnover—responsive information provided only for
2016 (Item 10). For Item 3, personnel handbooks and regula-
tions, Schelling wrote that she assumed the Union was referring
to the HR policies and would provide those.
On February 16, 2017, Martin emailed Schelling, with a copy
to Candella and Bibby, regarding information not yet received.
Martin generally stated the information not received was “pre-
sumptively relevant” for bargaining. He also clarified that the
information related only to the bargaining unit. He listed all
items not received, including for all years requested and the in-
formation Schelling’s email said was in process of being gath-
ered. Regarding health insurance, still was missing each em-
ployee’s level of coverage, and still was missing the health plan
and summary plan description for each plan available to the bar-
gaining unit members, monthly premiums and contributions and
the number of employees enrolled in each plan and at each cov-
erage level. (Jt. Exh. 26.) On February 27, Martin called Schel-
ling about the information request and Schelling said she was
“not in the loop” regarding collection of information and Can-
della was the person collecting the information. Martin then
emailed Candella, reminding him that it had been over a month
and a half since he made the request and could not begin the bar-
gaining process until the information was received. Candella re-
plied that he had more information for him and was working on
the request. (Jt. Exh. 27.) Nothing was said about the pending
Board review. On March 1, Respondent provided more of the
information identified in the January 10 request. Still, many
items had not been provided to the Union.
B. After the Board Denies Respondent’s Request for Review of
the Representation Case, Respondent Refuses to Bargain Un-
less the Union Agrees to Certain Conditions
On about February 28, 2017, Candella learned that the Board
rejected Respondent’s request for review of the representation
case. On March 1, 2017, Martin contacted Candella and stated
he would send Candella proposed bargaining dates to negotiate
a collective-bargaining agreement. Although he was aware of the
Board’s decision of the previous day, Candella just said “okay.”
(Tr. 1532.) On the same day, Martin emailed Candella the pos-
sibility of two dates for an initial bargaining session.5 (Jt. Exh.
32.) Candella provided some of the information regarding the
bargaining unit on March 1, but never mentioned what Respond-
ent intended to do about the Board’s decision on Respondent’s
request for review.
On March 7, 2017, Martin emailed John Bibby, Respondent’s
HR vice president for the Northern California region, and in-
formed him that “it appears as though Queen of the Valley man-
agement is dragging its feet in commencing the negotiating pro-
cess with its employees represented by [Union].” Martin cited
This conclusion is further supported by Respondent’s March 16, 2017 to
Martin, which Respondent stated was “in response to your request for
information and request to begin bargaining an initial collective bargain-
ing agreement . . . .” (Jt. Exh. 34.)
QUEEN OF THE VALLEY MEDICAL CENTER 11
that about 2 months before, on January 10, he made an infor-
mation request to prepare for negotiations and gave the history
of the information request. He noted Candella sent a scant
amount of information the previous week. Martin also cited that
he made a proposal for dates of negotiation to Candella but had
no response. Vice President Bibby, by email the same day, in-
formed Martin: “I will reach out to the labor team we will get
you a response on the dates, along with the information.” (Jt.
Exh. 33.)
The response to Martin’s March 7 email came in the form of
a letter, dated March 16, 2017, from Michael Garrison, senior
labor counsel to Respondent’s parent company. Garrison said he
was “suggest[ing] a path forward that allow the Medical Center
to continue its appeal while avoiding any unnecessary delay.”
(Jt. Exh. 34.) Garrison again cited Respondent’s beliefs about
the unfairness of the mail ballot election and its position to con-
tinue to appeal the matter. Garrison proposed the following:
• [T]he parties stipulate to a new in-person election to be
held at the Medical Center in 30 days. This will ensure
that eligible voters’ voices are heard and that all votes are
counted;
• If the Union is unwilling to do this, to fulfill its promise to
continue the appeal the Medical Center will have no
choice procedurally but to engage in a “technical refusal
to bargain.” Doing so will allow the Board to issue a final
appealable order that can be reviewed by the courts; and
• To avoid undue delay during the appeal, we are willing to
discuss the terms of a collective bargaining agreement
with the mutual understanding that it will only take effect
if and when all of the Medical Center’s appeals in court
are denied. If the Medical Center’s appeals are granted,
the tentative agreement will not take effect and the parties
will follow the court’s direction.
According, if the Union is unwilling to stipulate to a new in-
person election, we propose that the parties agree to the follow-
ing:
• The Medical Center will formally notify the Union that it
believes the unit certification was faulty and, therefore,
the Medical Center will refuse to bargain with the Union
so that it can pursue its review of the certification in the
courts. The Union will file an unfair labor practice charge
alleging the Medical Center has refused to bargain, which
the Medical Center will not deny. The Medical Center’s
sole defense will be that the underlying certification was
faulty and invalid. The parties will do everything reason-
ably possible to expedite the processing of the case and
the issuance of a final decision by the Board to ensure the
court process is not delayed;
• Notwithstanding the technical refusal to bargain, the
Medical Center and the Union will sit down and discuss
the terms of a tentative collective bargaining agreement
that will not take effect unless and until all of the Medical
Center’s appeals in the courts have been exhausted in a
manner unfavorable to the Medical Center. If the appeals

6 Respondent never offered any new information about the represen-
tation case. I sustained objections on questions that would lead to a
are resolved in the Medical Center’s favor, the tentative
agreement will have no force and effect and
• The Union agrees that it will not claim the negotiations
described in the previous bullet point constitute recogni-
tion of the Union or create any binding legal obligation to
bargain with the Union.
(Jt. Exh. 34.)
This letter was the first time that Respondent put conditions
upon any bargaining with the Union and set forth a plan to pro-
ceed with a technical refusal to bargain.
On March 21, 2017, HR Manager Schelling encapsulated Gar-
rison’s proposals in a memo to Respondent’s employees and vol-
unteers. Schelling stated: “Not only are we committed to getting
a final resolution to our appeal as quickly as possible, we are
committed to proceeding with discussions regarding terms of a
collective bargaining so we can keep the negotiation process
moving forward as well in the event our appeal is denied by the
courts.” (Jt. Exh. 35.)
On March 24, 2017, Schelling then emailed Pouslon about a
number of inquiries made by Poulson and the union representa-
tives about issues for the “service and technical employees,” but,
finding no response from the Union regarding its March 16 pro-
posal, Respondent declined all Union requests to meet. Schel-
ling informed Poulson, “[W]e strongly believe the mail ballot
election caused employees’ free choice not to be honored, which
resulted in a flawed Board certification. We are committed to
having that decision reviewed by the courts. Because the certi-
fication is flawed, we cannot recognize the NUWH as the exclu-
sive representative of the employees until this legal issue is re-
solved.” (Jt. Exh. 37.) In addition, Schelling directed Poulson
and the representatives to contact her rather than any other man-
agers. (Jt. Exh. 37.)6
Respondent has not met with the Union regarding wages,
hours and terms and conditions of employment since it issued the
March 16 letter. (Stip. at Tr. 936–937.) Poulson still meets with
employees in the cafeteria. However, she has faced a few in-
stances in Respondent’s hallways when Respondent’s managers
told Poulson she should not talk to employees or that she should
not be present. Poulson cited one instance when she was in front
of bathrooms on the first floor of the hospital, near the kitchen;
a manager asked to see her badge, which she did not have, and
the manager told her to leave. (Tr. 946.) Poulson also testified
that she was not permitted to request meeting rooms at Respond-
ent’s facility for this bargaining unit.
The Union and the bargaining unit employees conducted pub-
lic appearances on radio and a vigil and attempted to reach CEO
Coomes about Respondent’s refusal to bargain any further. The
Union frequently used language in communications to employ-
ees and the public that Respondent should recognize and bargain
with the Union. As of the last day of hearing, Respondent con-
tinued to refuse to negotiate with the Union.
rehash of the previous representation case, other than the bare facts serv-
ing as foundation.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C. On March 21, 2017, the Union Makes Three More
Information Requests
The Union issued three more information requests. The Un-
ion never received the information as requested. Respondent’s
answer contended it had no obligation to do so because it never
recognized the Union.
1. Information request to the pharmacy
On March 21, 2017, Poulson emailed Pharmacy Director Neill
Barker and HR Director Schelling with a cease-and-desist de-
mand and a request to meet and bargain over intended changes
to the pharmacy technician duties. The email also included a
request for the following information:
1. How management will ensure that all employees are
properly trained to perform these new duties;
2. How employees are supposed to manage these additional
duties given their already overwhelming workload;
3. If it is [Respondent]’s intention to rotate all [technicians];
4. If the plan is to rotate one [technician] per shift to cover
[medicine] reconciliation duties, or assign an additional em-
ployee per shift; and
5. If the rotation will happen by seniority.
Poulson included an explanation about the duties at issue, not-
ing that rotation of medication reconciliation rotation changes
constituted a change to employees’ working conditions. (GC
Exh. 17.) On April 3, Poulson again asked to meet, offering
April 5 as a specific date. She sent this message to Schelling and
Barker. On April 5, Barker, despite the inclusion of Schelling
on Poulson’s email, replied by email, “At this institution HR is
the only entity that can bargain with a union.” (GC Exh. 17.) By
this time, Respondent had made clear that it was no longer rec-
ognizing the Union.
2. Information request to EVS
On March 21, 2017, the Union, by Poulson, emailed HR Di-
rector Schelling and EVS Director Herring with a request for the
following information:
1. The introductory period policy for Respondent;
2. The probationary period policy for Respondent; and
3. Any policies or procedures regarding discipline or termina-
tion for Respondent.
Poulson explained why she wanted the information: “. . . in-
quiring on behalf of a recently terminated employee . . . . I am
just trying to make sure that I understand the current policies in
place so I can offer her the correct information/advice.” (GC
Exh. 17.) On April 3, Poulson emailed the two managers about
receiving a response to her information request, but never re-
ceived any response. (GC Exh. 17.)
3. Information requests for patient access services
The Union emailed Patient Access Services Manager Taylor

7 In the Order Denying the Stay, Judge Yvonne Gonzalez Rogers
stated:
[Respondent]’s argument that it was not permitted to present evidence
relative to the irreparable harm factor is not supported by the record.
Petitioner submitted evidence of irreparable harm regarding loss of un-
ion support and unilateral changes, in the moving papers. It is this
and HR Director Schelling a request for the following infor-
mation:
1. Any policies Respondent has on file which deal with
productivity;
2. Any documents or guidelines explaining how productivity
is calculated.
Taylor responded that she would check with HR about the pro-
tocol for providing the requested information. (GC Exh. 17.) On
April 3, Poulson emailed Taylor, with HR Director Schilling
copied. Again, Poulson asked Taylor whether the information
would be provided. This time, Taylor directed her to human re-
sources. (GC Exh. 17.) The Union never received any of the
requested information and apparently never met over the issue.
D. General Counsel Obtains Injunctive Relief in Federal
District Court
General Counsel alleged additional violations in different ar-
eas of the hospital, some of which occurred before Respondent’s
determination to seek a test of certification, and others that con-
tinued afterwards. These allegations involve further information
requests, unilateral changes, threats and discrimination based
upon protected concerted activities and/or union activities, and
one Weingarten situation.
A number of these allegations were included when General
Counsel petitioned federal district court for an injunction pursu-
ant to Section 10(j) of the Act. The court granted the injunction
on November 30, 2017. Coffman v. Queen of the Valley Medical
Center, 17-cv-05575-YGR (N.D. Cal. 2017). Respondent
moved for a stay pending appeal, which the district court denied
on December 5, 2017. Chilling effects of Respondent’s actions
were litigated as part of the action for injunctive relief. Coffman
v. Queen of the Valley Medical Center, Case 17-cv-05575-YGR
(N.D. Cal. November 30, 2017). In Coffman v. Queen of the
Valley Medical Center, Case 17-cv-05575-YGR, Order Denying
Motion for Stay of Injunction Pending Appeal (December 5,
2017), the district court judge again found that General Counsel
submitted evidence of irreparable harm regarding loss of union
support and unilateral changes.7
V. CHANGES IN SCHEDULES AND DUTIES IN THE EVS DEPARTMENT
The complaint alleges schedule and duty changes for two em-
ployees in the Environmental Services Departments (EVS): Mi-
guel Arroyo and Renee Frogge, who initially worked in linen
distribution on the second shift. The employees in EVS normally
work on potentially three shifts: 8 a.m. – 4:30 p.m. (first shift);
4 p.m. - 12:30 p.m. (second shift); and 11 p.m. - 7:30 a.m. (third
shift).
On June 6, 2016 Herring began working for Respondent as
director of environmental services and grounds. In December
2016 he also became director of facilities. His initial duties in-
cluded directing and supervising employees who disinfect and
evidence upon which the Court relied in reaching its decision. In re-
sponse to the moving papers, [Respondent] characterized the evidence
as insubstantial and disingenuous, but did not offer its own evidence on
this factor. Although [Respondent] objected to the petitioner’s rebuttal
evidence on this factor, which objection the Court overruled, [Respond-
ent] did not seek to present its own evidence at or before the hearing.
QUEEN OF THE VALLEY MEDICAL CENTER 13
sanitize patient rooms, the remainder of the hospital, and several
offsite buildings. He directly supervised two supervisors, Harold
Young (evening supervisor) and Sheri Roe (day supervisor), and
indirectly supervised about 40 housekeepers.8 Roe directly su-
pervises approximately 19 employees working the day shift.
Upon his increased responsibilities for facilities, he also acquired
responsibility for the maintenance and construction projects in
the facility and one more direct report, Eric Roe, the manager of
facilities.
When Herring came on board, he and Regional Director of
Environmental Services Gordon Douglas discussed improving
workflows and day-to-day assignments and schedules. Herring
testified that one issue would be whether an employee could be
utilized in a more localized area rather than half of the hospital.
(Tr. 451.) Workflow examines logistics for an area assignment
to be conducive for patient care and safety. They discussed
workflows in the emergency and surgery departments and linen
distribution. Herring testified that Douglas specified that he
wanted to examine consolidating linen distribution from two
shifts to one. In June and July 2016, Herring, with Supervisors
Roe and Young, “walked” all hourly housekeepers’ schedules to
determine how much time was spent on tasks in different areas
and where time was not spent efficiently.9
A. Respondent Changes Arroyo’s Shift Schedule so that it No
Longer Coincide with His Wife’s
Miguel Arroyo10 and his wife, Yolanda, worked in EVS on the
evening shift. Supervisor Sherri Roe knew Miguel Arroyo was
married to his wife, who worked the same shift, for at least 10
years. Arroyo worked as a lead housekeeper and cleaned a fixed
area while working the evening shift. The Arroyos carpooled
together to work. Arroyo’s union activities included wearing a
lanyard at work, which also appeared in a Facebook picture.11
EVS Director Herring testified he and Arroyo had one conversa-
tion regarding the Union, and that Arroyo was the one who
brought up the topic. Herring found Arroyo to be a good worker
and had no problems with his performance.
According to EVS Director Herring, Harold Young12 told him
that the two were married and the second shift possibly could
have problems with scheduling if the two wanted to take vaca-
tion at the same time. Herring testified that he contacted the hu-
man resources department to clarify what were the rules about
spouses working in the same department on the same shift. A
day later, Herring testified that HR Manager Jill Gruetter advised
him that Respondent had a long-standing policy, which she pro-
vided to him. In effect since 1977, the policy addressed “em-
ployment of related persons” with a purpose of “prevent[ing]
problems of supervision, safety, security and morale . . . .” (R.

8 The department also had a groundskeeper until December 2016.
9 Herring testified that three housekeepers were assigned, full-time,
to the Emergency Department. Based upon his study of the area, the
housekeepers’ schedules, which added another housekeeper to the third
shift, were changed in July 2016. On January 24, 2017, Poulson sent a
cease-and-desist letter to Respondent about the changes in the house-
keepers’ schedules in the ED. (R. Exh. 52.) For the Operating Room,
the schedules were changed but did not go into effect until November
2016.
10 Arroyo was not called to testify.
Exh. 24.) The policy defines related persons as “husband, wife,
child, step-child, parent, step-parent, grandparents, mother/fa-
ther-in-law, aunt, uncle, sister, brother, sister/brother-in-law,
niece, nephew and cousin.” (R. Exh. 24.) It then states:
. . . .
4. Applications for employment from close family rela-
tives will be considered along with other qualified applica-
tions when vacancies occur.
5. A relative of a current employee may be hired for a po-
sition in the same unit/department in which the employee is
working, but not on the same shift.
6. No employee will be allowed to transfer to a unit/depart-
ment on the same shift to which a relative is currently as-
signed.
7. In no case will an employee be placed in a unit/depart-
ment in which a relative is a supervisor or manager, regard-
less of shift.
8. If two employees in the same work unit and/or on the
same shift marry, attempts will be made to comply with the
intent of this policy by placing the employees on different
shifts. Ample time is to be allowed so as not to adversely
affect patient care.
9. Regardless of assignment, no supervisor will complete a
performance evaluation for a relative.
(R. Exh. 24.)
Respondent presented no evidence showing any previous pol-
icy enforcement, or that Arroyo supervised his wife¸ much less
gave her any performance evaluations.
On November 7, 2017, EVS Director Herring determined that
Miguel Arroyo’s shift assignment had to be changed. Herring,
with Supervisor Young present, advised Arroyo that he would
now be scheduled to cleaning a number of areas on the day shift.
Arroyo allegedly told Herring that he was aware of the policy
but wanted the evening shift because the couple could save
money on transportation and he earned the evening differential.
Herring testified that he told Arroyo he understood but “due to
the changes that are happening, this is one of the many issues we
have to address and fix.” The change went into effect on Mon-
day, November 15, 2016. (R. Exh. 25.)13 Herring admittedly
never asked how long the couple was married or asked to verify
documentation in Arroyo’s file about the relationship. He also
did not ask HR what, if any, records existed to reflect how long
the couple was married. (Tr. 1969.)
On November 14, 2016, Poulson issued a cease and desist let-
ter to EVS Director Herring and Human Resources Vice Presi-
dent Bibby for Arroyo’s and Frogge’s working schedules.
11 General Counsel points out that Yolanda Arroyo did not appear in
any Facebook pictures. It is unknown whether she wore a lanyard.
12 By the time of the hearing, Young was no longer working for Re-
spondent. Respondent never indicated whether he was subpoenaed to
appear.
13 Herring testified that the notes in R. Exh. 25 were taken by Young
and placed in Arroyo’s file. I admitted it as a business record but do not
rely upon it. (Tr. 522.) It impliedly is written by Young but has no sig-
nature or identification that Young was the author.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Poulson characterized the changes as unilateral and abrupt and
significant. (Jt. Exh. 9.) Herring and Bibby, in turn, forwarded
the email to HR Director Schelling. Schelling wrote back that
discussion was needed with the EVS director and then Respond-
ent would be in touch. (Jt. Exhs. 9, 10.)
On December 9, 2016, Poulson contacted Schelling and asked
whether Human Resources had investigated the changes and of-
fered specific dates and times to “bargain over these changes.”
(Jt. Exh. 10.) Poulson advised that should management not honor
the cease and desist request the Union would file an unfair labor
practice charge. (Jt. Exh. 10.) HR Director Schelling, by email
dated December 14, offered either December 20 or 21. She told
Poulson, “Let me know what works for you and I’ll get this set
up with the manager and our labor team member.” (Jt. Exh. 10.)
The meeting included changes for Frogge as well, and the parties
agreed to meet on December 20. However, Poulson did not raise
the change to Arroyo’s schedule at the January or February meet-
ings with EVS about Frogge.
EVS Director Herring testified that he needed to enforce the
policy in order to avoid understaffing on the same shift when
both took vacation. However, years of vacation requests re-
vealed that Miguel Arroyo and his wife never requested the same
vacation dates, even at the time he learned the couple worked the
same shift. He also admitted he could have moved Arroyo’s wife
to a different shift instead of moving his second shift lead but did
not consider it. (Tr. 1971.) Nor does the record demonstrate that
Miguel Arroyo’s lead duties affected Yolanda, plus Young was
the actual evening supervisor.
Herring testified that in December 2016, Arroyo requested a
change in duties from trash to floor cleaning and Herring was
able to accommodate Arroyo’s request, which involved a sched-
ule change. Herring did not notify the Union of the change to
Arroyo’s schedule. (Tr. 539–540.)
B. Changes to Renee Frogge’s Duties
1. Frogge’s duties and the linen department in EVS
Renee Frogge worked in the environmental services depart-
ment (EVS) from July 2007 until April 2017, when she resigned.
For most of the relevant time, Frogge’s direct supervisor was
Harold Young. Over the years she had different assignments,
including linen delivery and cleaning different areas throughout
the hospital. When Herring arrived in 2016, Frogge primarily
made linen supply deliveries. Three housekeepers covered linen
distribution: Frogge primarily worked a traditional evening shift;
Maria Padilla, the traditional day shift; and, Frogge, Padilla, and
Olga Gargeda covered the weekend linen shifts, which were 11
a.m. to 7:30 p.m. Saturday and Sunday. (Tr. 455–456.) Roe re-
called that the hospital had two linen shifts for her entire 32-year
tenure. (Tr. 1173.)
The linen supply job involved delivery of linen to the various
clinical areas. The housekeepers took inventory of the linen in
each area on a paper form. Upon returning to the department,
they then entered the inventory data into the computer, which
took 1-2 hours per shift. The first and second shift linen delivery

14 The cleaning might include utilizing a specialized robot to clean
room contaminated with bacterium Clostridium difficile (C. diff.).
Cleaning these rooms also involves changing cubical curtains.
housekeepers also assisted with cleaning rooms post-discharge14
and setting up meeting rooms.
In early September 2016, Herring added “turndown service”
to Frogge’s second shift duties, which involved checking patient
rooms and emptying the trash; Herring apparently told Frogge
she did not have enough work on the second shift.
2. Herring determines that the linen department could operate
more efficiently
EVS Director Herring discussed departmental changes with
Supervisor Roe, which Roe testified occurred shortly after Her-
ring began in June 2016. Regarding the linen changes, Herring
told Roe that, with only one person covering weekends, the de-
partments should only need one person during the week. (Tr.
1153–1154.) In August 2016, Herring and Roe made rounds
with Padilla on the day shift to check linen delivery and stock in
the different departments. (Tr. 1155.) Herring and Roe then met
with Supervisor Young about doing the same on the evening
shift with Frogge. (Tr. 1157–1158.) At the end of August, after
observing Frogge’s deliveries, Herring, Roe and Young again
met about how to condense the linen deliveries to one person and
how to change the schedule to accomplish the goal. The decision
was to change the linen delivery shift time to 11 a.m. to 7:30 p.m.
during the weekdays, the same as the weekend linen delivery.
Herring also discussed the linen systems with two vendors,
Medline and Mission Linen. (Tr. 492.) Although he kept no
notes of these conversations, Herring discovered that linen in-
ventories could be kept per electronic tablet, which saved the
linen housekeeper from entering the information into the com-
puter each shift and thereby decreasing hours of duplicative
work. Three tablets were ordered in August 2016. Roe did not
know why the three tablets were needed for tracking the linen.
(Tr. 1162.)
During late August 2016, the vendors met with some manag-
ers and linen housekeepers. After speaking with the housekeep-
ers on linen supply duties, Herring, Young and Roe determined
that the linen department on the weekends was operating effec-
tively with only one person and the weekday shift could be lim-
ited to the same hours with one person working 11 a.m. to 7:30
p.m.
On September 2, 2016, the vendors again met with the EVS
managers, a lead housekeeper, Maria Padilla and Frogge. Dur-
ing the meeting, the managers and vendors discussed changing
to one linen housekeeper, changing the shift time, and how the
changes would be implemented. (Tr. 493–494, 1164.) The train-
ing also introduced the electronic tablet.
Herring’s affidavit reflects that shortly after the meeting to im-
plement changes, Frogge spoke to Young and Herring to request
to stay on the second shift, 4 p.m. to 12:30 a.m. She was told she
could not work those hours and perform linen services because
of the consolidation, but instead could remain on the shift and
perform float duties. According to his affidavit, Frogge chose
not to go to the 11 a.m. to 7:30 p.m. linen shift. (Tr. 558–559.)
Herring testified that, within a few days after the September 2
meeting, he asked Padilla, who worked at the facility for 20 years
QUEEN OF THE VALLEY MEDICAL CENTER 15
and had seniority, whether she wanted to take the new 11 a.m.
linen shift. Padilla accepted the change in schedule.15
About the second week of September, Herring, with Young
present, advised Frogge that her 4 p.m. – 12:30 a.m. shift would
remain unchanged but she would not be performing linen duties;
instead she would be working in the float pool, to cover assign-
ments on the second shift when another assigned housekeeper
was off on a day.16 Herring reported Frogge said okay and the
changes were to take place in mid-November 2016. The imple-
mentation, however, was delayed because Herring ordered a spe-
cial linen cart to accommodate the change in volume of linen to
be delivered at one time.17 In the meantime, in early November
2016, Respondent received the linen carts it needed to proceed
with the schedule change for linen delivery. (Tr. 1165.)
The new linen cart arrived at the facility shortly before Re-
spondent removed Frogge from the linen position. (Tr. 657.)
When Frogge used the cart, she found it more efficient and less
stressful for her back. (Tr. 657.) General Counsel points out that
the weekend shift was using the old cart for the 11 a.m. to 7 p.m.
shift and Respondent did not need to wait until the new cart ar-
rived.
Frogge could not recall the exact dates when she was removed
from the linen position and placed in a full-time float position;
she could not say when this occurred in relationship to the elec-
tion. She testified that, after 5 weeks of covering vacations by
performing float duties, she asked Supervisor Young when she
would be returned to her linen position. Young told her the even-
ing linen position was eliminated and she instead would work as
a full-time floater. (Tr. 622–623, 628.) The full-time float posi-
tion involved more traditional housekeeping duties of cleaning
beds, floors and lights and handling biohazardous waste and
other trash.
3. Frogge’s union activities
Frogge was active during the unionization campaign, includ-
ing wearing union paraphernalia (buttons and lanyard) on her
scrubs and having her picture posted on the Union’s Facebook
page, showing her support of unionization. Poulson’s testimony
places the public campaign evident in early October 2016.
Frogge wore a union button on her scrubs at the beginning of the
unionization campaign until the election, during which time she
spoke with Supervisor Young every day. Frogge also discussed
unionization with other employees when she passed out flyers in
the cafeteria and hallways during her lunchbreak. Frogge testi-
fied that, while she engaged in flyer distribution and discussions
in the cafeteria, Jill Gruetter and HR Director Schelling came in
the cafeteria. She participated in delivering petitions to HR Di-
rector Schelling and others in human resources. (Tr. 612.) Four
other second shift EVS employees also wore union parapherna-
lia. Herring could not recall when he learned the employees were

15 The lead housekeeper, who sometimes covered the linen spot,
would remain on days except when she performed linen duties to cover
Padilla.
16 Herring later testified that he was unsure that he told her what her
duties would be other than the duties would include not linen.
circulating a petition or when the petition was filed. (Tr. 507–
508.)
EVS Director Herring specifically recalled, in response to a
leading question and its followup, that another float employee,
affected by the subsequent schedule changes, volunteered her
views on the Union to him. That employee, Olga Gregada,
worked as the linen float and also on the day shift for floor care.
Herring testified that Gregada walked up to him one day and said
she did not need another voice and she only needed support from
administration and the hospital. (Tr. 1954–1955, 1967–1968.)
4. The Union asks to bargain about changes to Frogge’s
schedule and makes an information request
On November 14, 2016 (the day before the votes were
counted), Poulson, in an email to EVS Director Herring, re-
quested that Respondent cease and desist from making the uni-
lateral changes in scheduling and shift changes to the EVS de-
partment, including the changes to the linen department. (Jt. Exh.
9.) In mid-December 2016, Poulson contacted HR Director
Schelling about meeting with her regarding Frogge’s assign-
ments. Candella also wanted involvement in the process and
subsequently was included.
On December 15, 2016, Poulson emailed a request for Decem-
ber 20 meeting and further requested that, before the meeting,
Respondent provide information regarding Frogge’s reassign-
ment:
• How long has it been the case that there have been two
designated linen positions at Queen of the Valley?
• On what date was the linen position Renee Frogge previ-
ously held first posted, and on what date did Renee as-
sume that position?
• Job descriptions for the linen positions, including the job
description for the linen position previously held by
Renee, as well as the new job description for the new linen
position currently held by Maria Correa.
• Any evidence that workload in linen has decreased dras-
tically in the past 2-3 months.
• Any hospital policies which cover linen handling and
laundry, including any staff trainings.
(Jt. Exh. 11.)
Poulson testified that the information was needed to bargain
about the changes to Frogge’s job. On January 12, 2017, Poul-
son, by email to Schelling and Candella, re-requested the infor-
mation as no information had been provided. (GC Exh. 6.) The
information was not provided before the parties conducted a
meeting about Frogge’s schedule on January 24, 2017. (Tr. 69.)
5. Meetings on January 24, 2017 and February 13, 2017
regarding Frogge’s assignments
On January 24, 2017, Poulson met with Labor/Employee Re-
lations Director Candella,18 HR Director Schelling, HR Manager
17 Roe testified that, after the September 2 meeting, she learned that
the carts would not be available in September.
18 Candella testified that these meetings were not bargaining because
Respondent did not recognize the Union as the exclusive bargaining rep-
resentative and he wanted to “make sure that the employees who had
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gruetter, and EVS Director Herring regarding schedule and duty
changes for Renee Frogge. Poulson began the meeting by pre-
senting Candella with an unfair labor practice charge regarding
discrimination against employees for union activity and unilat-
eral changes in EVS for, among other things, scheduling. She
explained that the charge was filed but she would prefer to re-
solve the issues there. (Tr. 346.) Candella provided Poulson with
a general job description for the EVS department and stated no
other information existed on file. (Tr. 72.) Poulson testified that
she stated that the change to Frogge’s working conditions were
a unilateral change and asked for justification for eliminating a
linen position. She questioned whether the linen volume or pa-
tient volume had changed. EVS Director Herring stated that the
change was necessary to improve patient room turnover times.
Frogge spent a few minutes explaining her job duties and how
linen delivery did not change how quickly patient rooms could
be cleaned post-discharge from the rooms. According to Poul-
son, Candella indicated that Frogge’s working conditions
changed and asked for a remedy. Poulson stated the remedy
would be to return Frogge to her linen position. Candella, how-
ever, testified that Frogge was more concerned about having a
set schedule. (Tr. 1488.) Poulson offered to meet again if Re-
spondent would give some data to support its decision to elimi-
nate the position. Candella stated that Respondent’s representa-
tives would discuss among themselves and get back in touch
with Poulson at a later date. Poulson testified that Respondent
stated it would “get back to us very soon.” (Tr. 354.) Neither
party made any written proposal.19
On about February 13, the parties met again regarding Frogge.
Poulson and Frogge were present for the Union. Respondent was
represented by HR Director Schelling, Labor/Employee Rela-
tions Director Candella and Facilities Director Herring. Poulson
reminded Respondent’s representatives that it did not cease and
desist regarding changes to Frogge’s working conditions and
asked whether Respondent had further information about the jus-
tification for the change. Candella stated Respondent had no fur-
ther information about its justification and that Respondent
would not re-institute Frogge to her linen assignment. Poulson
and Frogge caucused and came back with a verbal proposal to
have a new permanent, fixed assignment for Frogge. Herring
indicated that it might be possible. He and Candella agreed to
explore the idea. In addition to Frogge’s work condition
changes, the parties also discussed employees missing breaks in
EVS. At the end of the meeting, Candella stated he would re-
spond regarding the Union’s proposal.
On February 17, Candella emailed Poulson with a fixed as-
signment offer for Frogge to work in the MRI offices, stating

requested that she be there heard it from us again.” He also opined that
the Union issued “political hit pieces.” (Tr. 1481.) These opinions hold
no weight.
19 Respondent carefully phrased Candella’s questions to conclude the
meetings were only to resolve the unfair labor practice charges; thus,
Candella testified that the meeting was scheduled to resolve the unfair
labor practice and present the situation again to the employees. At this
point, however, his testimony also demonstrated that the meeting was the
first time he had seen the unfair labor practice charge. (Tr. 1485–1487.)
He was asked leading questions about further meetings to resolve the
unfair labor practice charges. Candella also testified that the meeting
“We would like to get this, and the ULP, resolved asap so that
we can focus on the other issues we have with NUHW.” (R.
Exh. 16 at QVMC 3079.) On February 22, Poulson emailed back
to Candella and Schelling that Frogee was not interested in the
proposed assignment because another employee would be dis-
placed and Respondent had not presented data or evidence to jus-
tify the elimination of Frogge’s position. Poulson countered
with a different area that could be covered, and also raised that
employees could then take their 15-minute breaks, which was
also discussed at the prior meeting. Id.
On February 23, Candella, by email, rejected the Union’s
counterproposal. Candella stated that Respondent “[could not]
make NUHW’s counter proposal regarding the fixed duties as-
signment work.” Candella then explained the reasons why the
fixed duties assignment did not work. He instead offered a “pre-
existing area assignment and continue to see what can be done.”
Candella asked for a fast response as the Board had a timeline
for Respondent’s answer regarding the unfair labor practice
charge. (R. Exh. 16.) Poulson emailed back that the Union was
not willing to withdraw the unfair labor practice charge and did
not want to require a less-senior employee to be “bumped” from
a fixed assignment. Poulson further noted, “Management has
failed to provide any explanation for why Renee’s linen
hours/work went away.” (R. Exh. 16 at QVMC 3088.)
According to Herring, around March 2017,20 Frogge allegedly
asked Herring and Young to switch her to permanent schedule to
clean the first, second, and third floor of the MRI building. They
agreed and she remained in that schedule until she resigned her
employment with Respondent. (Tr. 537.) Herring did not notify
the Union of the change to Frogge’s schedule. (Tr. 538.) Frogge
denied that she requested a transfer to the MRI building and took
the assignment only because of an attempted settlement for her
removal from linen; she also testified that she never had a direct
conversation with Herring whether she would accept or wanted
to perform duties in the MRI building. (Tr. 635–636.)
Frogge eventually resigned her position with Respondent and
left to work at a facility where Young was working.
C. Evidence Regarding Possible Animus in the
EVS Department
1. Huddle discussions about the Union
EVS Director Herring testified that, during the month before
the election, he discussed the Union with the employees in hud-
dles several times. Huddles are group meetings with employees,
usually about topics for interest and training for employees and
lasting for 10 to 35 minutes; they take the place of departmental
meetings. Some of the huddles have invited speakers for various
was not a negotiation because he took no notes and he regularly takes
notes in negotiations. However, he admitted he was meeting in the pres-
ence of the union representative. I do not credit his conclusion that the
meeting, or others, could not have been negotiation because he did not
take notes.
20 Due to scheduling issues, Herring was called twice to testify in
Respondent’s case in chief. During his first appearance, Herring re-
quired leading questions to be able to testify to the date. On his second
appearance, he could only identify that it was in spring 2017, and that
was to a leading question as well.
QUEEN OF THE VALLEY MEDICAL CENTER 17
hospital departments; others talk about daily census and any is-
sues a supervisor finds important.
Herring stated employees brought up the topic of the Union.
Herring did not specifically answer whether he had a script, but
admitted he had documentation. He could not recall any specific
topic included in the documentation, nor could he call a specific
conversation. (Tr. 1949–1950.) He then testified that he did not
tell employees that if the Union was elected, he could not talk to
them anymore. (Tr. 1952.)
2. Van Winden’s testimony
Ardy Van Winden, a longtime grounds foreman, resigned
from employment in December 2016. He stated he was against
the Union and told his supervisor so.
While employed, he attended daily morning meetings with his
supervisor, EVS Director Herring, and day EVS Supervisor
Sheri Roe. In November 2016, after the petition was filed, Van
Winden testified that Herring said he thought the Union was
overreaching and he would rather not have a third party involved
with employee discussions. Van Winden testified that he agreed
with Herring. On two to three occasions, around the first week
of November, Herring identified two employees, Miguel Arroyo
and Renee Frogge, as union supporters. According to Van Win-
den, Herring was disappointed that Arroyo was in the union’s
Facebook posting and thought Arroyo would have opposed the
union, but then realized he was prounion. In a later meeting, Van
Winden testified that Herring directed Roe to examine Arroyo’s
schedule and see if there was any way to change it, because Her-
ring wanted to make sure that Arroyo knew he was hurt by sup-
porting the union. Herring further stated he would check with
Jill Gruetter in HR about changing the schedule. During the sec-
ond week of November, Herring allegedly stated that he discov-
ered that Arroyo and his wife were both working the same shift
and wanted to switch Arroyo’s shift so that Arroyo would have
difficulty. Roe said that it would be difficult because the family
only had one vehicle and had children in day care.
Regarding Frogge, Herring allegedly stated that Frogge was
prounion and very vocal about it. Herring not only wanted to
change her shift but change her duties to a float schedule. Alt-
hough Van Winden was familiar with some other names of other
EVS employees identified as union supporters in the hearing, he
testified that he never heard EVS Director Herring threaten to
take action against them or heard him identify them as union sup-
porters. Roe never made any comments.
Respondent discredited Van Winden’s testimony on a number
of issues, including the circumstances surrounding his resigna-
tion. Van Winden also hit the “like” button on the Union’s Fa-
cebook page on certain articles after he was no longer employed.
3. Frogge’s testimony
In December 2016, during the period of time after Poulson re-
quested to meet and bargain over Frogge’s assignment, Frogge
was called into EVS Director Herring’s office. Herring, Harold
Young and Sherri Roe met with Frogge around 4:15 p.m. Her-
ring said he would not allow anyone to harass his people. (Tr.
634.) Frogge asked if this conversation was going to lead to dis-
cipline and implied she needed union representation. Frogge
said Herring became angrier and asked twice, “Is this how you’re
interpreting this?” He then said, “Do you see me writing down
anything? Union or no union, I’m going to run this department
as I see fit.” Herring then went back to his computer and told
her to have a nice day. Frogge returned to her work assignment.
(Tr. 634.) Herring denied ever making threats and Roe testified
in line with Herring.
VI. RESPONDENT NOTIFIES AND MEETS WITH THE UNION OVER
LAYS OFF AN INTERPRETER AND A POINT OF CARE COORDINATOR
On February 9 and 10, 2017, Director of Employee Advocacy
and Labor Relations Candella notified Poulson that Respondent
was laying off two bargaining unit employees, an interpreter and
a point of care coordinator. He offered to discuss the matter on
February 13, 2017, and provided a copy of the policy. Again,
Candella said nothing of the representation case in relationship
to the notification or offer to discuss. (Jt. Exhs. 17, 18.)
Candella admitted that the Union was not notified about the
decision to lay off these employees before it made the decision.
(Tr. 1492.) The notification included that the point of care coor-
dinator was to be notified on February 10 that her position was
being eliminated. The interpreter’s job would be eliminated on
February 15. The Union did not meet with Respondent, or re-
quest to bargain, between February 9 and the point of care coor-
dinator’s layoff on February 10. (Tr. 424.) These employees
were the only employees in their respective job classifications.
On February 13, the parties discussed the interpreter’s layoff.
(Tr. 424–425.) Before the meeting, Poulson sent Candella a list
of questions about the layoffs, such as what factors necessitated
the layoff, and would the affected individual receive severance
payments. (Jt. Exh. 19.) At the meeting, Candella provided
Poulson with the layoff policy and otherwise verbally answered
Poulson’s questions. (Tr. 425.) The parties did not reach any
agreement after 30-45 minutes of discussion. (Tr. 426.) Poulson
sent to Candella an email labeled “action items we agreed to.”
The email addressed some issues in the February 13 meeting, but
did not include anything about the layoffs. Poulson did not pur-
sue the matter further.
VII. RESPONDENT NOTIFIES AND MEETS WITH THE UNION
REGARDING THE EFFECTS OF THE KITCHEN
CONSTRUCTION PROJECT
Before the Union filed its petition and was certified, Respond-
ent had plans for construction in certain areas, one of which in-
volved kitchen construction. The State of California ordered
kitchen construction to be completed or Respondent could face
fines or risk licensing problems. The renovation plans not only
affected the 40 to 50 employees working in the kitchen and caf-
eteria, but also employees who used the cafeteria.
In early 2016, Respondent submitted tentative renovation
plans to the State, which were approved in early summer 2016.
(Tr. 1850–1851.) After State approval of the plans, Respondent
assembled a task force discuss the plans for changes to staffing
and scheduling in the dietary department. The lengthy renova-
tion involved the food service employees’ locker rooms, and
temporarily closing the kitchen and cafeteria.
On January 16, 2017, HR Director Schelling emailed to Di-
rector of Employee Advocacy and Labor Relations Candella and
other managers a plan for the employees’ shifts and assignments,
with the caveat, “This is our ‘best guess at this point in time.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
*Once this actually gets implemented, there will be some learn-
ing and tweaking that need to be done . . . .” (R. Exh. 63.) On
the same date, Candella notified Poulson of the upcoming project
for food services. Candella advised that the construction and
closure would temporarily alter work schedules and work flows.
(Jt. Exh. 13.)21 The locker room was closed on January 16. (Tr.
1497–1498.)
On January 19, after consulting with bargaining team mem-
bers for the dietary department, Poulson requested to bargain the
effects involving the renovation, particularly the temporary clo-
sure of the kitchen and demanded that Respondent cease and de-
sist. (Jt. Exhs. 14(a) and (b)). Poulson pointed out that the
planned closure could have far-reaching implications for the 30
bargaining unit employees in that department and other repre-
sented employees in the facility, such as how employees would
obtain food for purchase. The cease and desist letter also in-
cluded the Union’s request for information: The specific plans
to change the schedules of the kitchen and cafeteria employees
affected by the closure; the anticipated lengths of the closures;
and, plans for feeding the patients and the employees while the
kitchen was closed. Poulson said she did not have sufficient in-
formation about the plans for renovation. Poulson provided dates
for meeting based upon her request to bargain. (Jt. Exhs. 14(a)
and (b).)
The parties met regarding the kitchen construction project on
three dates: January 24, February 13, and February 17, 2017.22
The parties also corresponded between the meetings. None of
the correspondence reflected any reluctance on Respondent’s
part to enter into negotiations, much less due to the representa-
tion case pending before the Board.
For the January 24, 2017 meeting, present for Respondent
were Labor and Employee Relations Director Candella, HR
Manager Grutter, HR Partner Kathy Hutchinson; Director of HR
Schelling, Director of Operations Taylor Rudd and and Director
of Construction Bruce Grey. The Union was represented by
Poulson and two cooks who also serve on the Union’s bargaining
team. Respondent presented the Union with a Statement of As-
sumptions for the changes in the kitchen. Poulson testified that
during the meetings, management discussed job flows and final-
izing plans. (Tr. 370.) Poulson and the cooks examined Re-
spondent’s temporary job flows but did not make a proposal at
that time. Poulson’s understanding was that the job flows might
change over time. (Tr. 422; R. Exh 20.) Regarding food availa-
bility for employees, Respondent stated its plans, which included
hiring food trucks and adding more vending machines and mi-
crowaves in the facility. (Tr. 371.) Poulson found the plans for
providing employees food satisfactory. (Tr. 371.) According to

21 Candella denied that the letter to Poulson was an invitation to bar-
gain or constituted recognition; he instead maintained that the letter was
to promote transparency and avoid any picketing that might disrupt the
construction project. Respondent, further relying upon Candella’s testi-
mony, also contends that Respondent’s decision to have discussions with
the Union was to address employee concerns and “ward off potential
ULP charges. The record contains no evidence of threats of picketing or
possible disruption of the construction project. The events that followed,
with the concurrent documentary evidence, do not support Candella’s
testimony that Respondent did not engage in effects bargaining regarding
the kitchen construction.
Poulson, Grutter stated she would send Poulson the job descrip-
tions plus a memorandum of understanding email. Poulson also
testified that Respondent agreed to return kitchen employees to
their previously assigned posts after the temporary closure and
would meet and bargain over the issue as well. Candella testified
that the words “meet and bargain” were never used, but that
Poulson “might have” said she would have further information
requests. Candella testified that he intended to give information
to employees, but upon further questioning, stated he also pro-
vided information to Poulson. (Tr. 1507.) Poulson sent an email
to confirm the matter. Candella agreed to provide the Union
“something in writing.” (Tr. 1514.)23
On January 27, 2017, Poulson emailed Candella, Schelling
and VP Bibby with thanks for the January 24 meeting and agree-
ing to continue meet and bargain over the effects of the kitchen
construction project. She provided additional dates to continue
the process. (Jt. Exh. 16.) On February 1, Candella advised he
was trying to set up a meeting for the following week. (Jt. Exh.
16.) Notably, the email does not state that the bargaining was
conditioned upon Respondent’s pursuit of its exceptions to the
Board in representation case, or even raise the representation
case at all.
On February 1, 2017 Poulson made another information re-
quest about the kitchen project, including the project contract,
budget, and a list of all job duties for the temporary jobs of the
affected staff. She also included a number of questions based
upon the Assumptions, when the cafeteria would be reopened,
and whether Respondent intended to return all staff to their prior
positions and shifts. She requested a response no later than Feb-
ruary 6. (Jt. Exh. 16.) On February 7, Poulson sent Candella a
followup email, asking when she could expect a response to the
request for information. (Jt. Exh. 16.)
Also, on February 1, 2017 and dates thereafter, kitchen em-
ployees received training for new cleaning duties necessitated by
the construction. Respondent admittedly did not notify the Un-
ion about the training. EVS Director Herring testified that some
EVS employees also had additional duties for cleaning during
this time, such as removal of trash. (Tr. 1943–1944.) Herring
testified that he never met with the Union on made proposals
about these changes. (Tr. 1945.) However, Herring never testi-
fied that he or any other member of management notified the
Union about these changes in the EVS department. (R. Exh. 64;
Tr. 1873.)
On February 10, 2017, in preparation for the next meeting,
Poulson emailed a union proposal to Schelling, Candella, and VP
Bibby. (Jt. Exh. 20.) Poulson further advised that she received
22 Schelling testified neither she nor Candella ever said that they were
negotiating with the Union regarding the kitchen closures. She stated the
purpose of the meetings was to share information with employees, obtain
feedback and employee concerns. (Tr. 1846.) As the bargaining was not
conditioned upon the results of the pending representation case and con-
flicts with the concurrent documentary evidence, this portion of Schel-
ling’s testimony is self-serving and unreliable.
23 When faced with documents labeled “Union proposal,” Candella
denied that these were proposals at all. Nothing in the documents reflects
that Candella took issue with documents labeled “proposal” at the time
of the events. (Tr. 1508–1509.)
QUEEN OF THE VALLEY MEDICAL CENTER 19
some of the information for her request, but still had questions
about what was received.
The parties met again on February 13, 2017. (R. Exh. 18(b).)
On February 14, 2017, Poulson emailed the management nego-
tiators and outlines the “action items agreed to out of yesterday’s
meeting . . . .” Included in the list: Respondent would email
digital copies of jobs descriptions, job flows, and employee
memo presented in hard copy the previous day; “Bill will draft
and submit “management’s counter-proposal to the Union”; and
and agreement to meet again on February 17 “to review manage-
ment’s counter-proposal.”
On February 16, Candella emailed HR Director Schelling with
the copy of Poulson’s email and stated, “Hilda, see the hospital’s
counter on the impact bargaining.” (Tr. 1516; Jt. Exh. 24.) At-
tached were documents labeled as Respondent’s counterpro-
posal, now dated February 14, 2017, with modifications to the
Union’s February 13 proposal. (Jt. Exh. 24.)24 Before the meet-
ing on February 17, the Union responded with another counter-
proposal.
The information request noted in Poulson’s February 14th
email was provided on February 17, 2017. Regarding the re-
quested information, Poulson stated she received enough infor-
mation to reach a tentative agreement. (Tr. 404.)
At the February 17 meeting, Respondent and the Union signed
a Letter of Understanding with the note “Tentative Agreement.”
Schelling was one of the three Respondent signatories. Before
signing the agreement, Respondent caucused and Schelling con-
ferred with Candella, who was not in physical attendance. One
condition of the agreement was that the tentative agreement was
subject to “ratification by the NUHW-represented employees in
the dietary department at the Hospital.” (Jt. Exh. 28.) Schelling
arranged with Poulson a room in the facility in which the Union
could hold a ratification vote. (Tr. 1900.)
Also, on February 17, 2017, Respondent distributed a flyer to
employees about plans for the upcoming kitchen closure. About
February 22, 2017, the Union conducted a ratification vote with
the dietary employees in the main conference room within Re-
spondent’s facility. The employees voted to ratify the agree-
ment. Poulson emailed HR Manager Schelling the results. (Tr.
97–98; GC Exh. 9.)
On about February 27, the kitchen closed.
On April 21, Poulson emailed HR Manager Schelling about
Respondent’s failure to comply with the negotiated agreement.
Two days later, Schelling, by email, denied that Respondent was
bound by the negotiated agreement because the “certification of
the election results is flawed” and Respondent was not recogniz-
ing the Union. Schelling wrote, “[T]he letter of agreement
simply describes the process the hospital intended to follow

24 Candella testified the statement was “probably a mistake.” He
claimed he never intended to call the exchanges impact bargaining but
“more to codify what we were already intending on doing.” (Tr. 1516–
1517.) General Counsel suggests that, given Candella’s vast labor rela-
tions experience, he would not casually use such terms. (GC Br. at 21.)
I agree that Candella’s testimony here is not credible, and I also find the
statements in the documents are admissions against interest of a party-
opponent. Fed.R.Evid. 801(d)(2); Ferguson Enterprises, 355 NLRB
1121 fn. 2 (2010).
during construction, and that remains the hospital’s intention.”
(Jt. Exh. 38.)
The kitchen project also caused changes in the Environmental
Services Department, which handled the trash from the project.
EVS Director Herring admitted that he changed employees’
schedules and duties in relationship to the kitchen project. The
employees received additional training. He further admitted that
Respondent did not notify or bargain with the Union over these
changes.
VIII. RESPONDENT CHANGES SCHEDULES IN THE STERILE
PROCESSING DEPARTMENT
Employees in the Sterile Processing Department (SPD) had a
strong showing for the Union before the election. One of those
employees was Martha McNelis, who has worked for Respond-
ent for over 22 years. For the last 18 years, she worked in the
Central Processing Department as a sterile processing techni-
cian, first in outpatient surgery and then in the operating room
(OR). Before April 2017, McNelis worked a 7 a.m. - 3:30 p.m.
schedule for 9 years; Respondent then changed her start time to
9 a.m. McNelis’s immediate supervisor is Stacy Guck, the super-
visor for sterile processing.
Guck reported to Interim Director of Surgical Services Diane
Kriegel.25 Kriegel directly supervised three additional employ-
ees, including the manager of surgical services, Ralf Jewowor-
ski, and indirectly supervised 130 employees. Kriegel’s duties
included ultimately approving schedules for the various services
reporting to her. Although Guck is still in Respondent’s employ,
Respondent did not call Guck to testify.
A. Duties, Locations and Hours of Work for Sterile
Processing Technicians
The sterile processing department employs technicians as as-
sociate technicians, certified technicians, and case cart techni-
cians. Certified technicians have further education in sterile pro-
cessing than the associate technicians. (Tr. 1203–1204.) The
duties of the associate and certified technicians are not different,
but the certified technician supposedly understands the reasons
why certain processes are needed for sterilization.
The case cart technician assembles carts with sterile supplies
and instruments for the following day’s surgeries. The case cart
technician works with the material management department to
order supplies, then checks in the supplies when delivered to en-
sure the appropriate supplies were sent. The case cart technician
works from 7 a.m. until 3:30 p.m., Monday through Friday.
The sterile processing technicians work in: the main hospital
OR, which is surrounded by six operating rooms and is called
the center core; the location where all sterile supplies are kept;
and/or the outpatient surgery center, across the parking lot from
25 Respondent employed Kriegel through an agency to perform in-
terim OR director duties within Respondent’s facilities. Although hired
in 2015 for surgical services, she did not perform any services related to
surgical services between February and August 2016. Evidence shows
that she performed scheduling of employees as part of her duties during
the relevant time. I find that she is a supervisor pursuant to Sec. 2(11) of
the Act (changing schedules) and an agent pursuant to Sec. 2(13) of the
Act.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the main hospital.26 The sterile processing technician assigned
to the center core ensures that all supplies in the area are stocked
appropriately based upon upcoming surgical schedules, includ-
ing putting away orders and responding to requests from the op-
erating rooms for additional supplies. The center core techni-
cian, who was Amanda David during the relevant time, utilizes
a computerized system for ordering supplies. Operating this
computer system requires further in-house training.27 Others
trained on the system are the supervisor, the lead for sterile pro-
cessing and one additional employee.
The sterile processing technicians’ shifts occur Monday
through Friday from 7 a.m., with the last shift starting at 3 p.m.
ending at 10:30 p.m. However, other shifts are staggered
throughout the day at 8 a.m., 9 a.m., 11 a.m. and 2 p.m. The
SPD technicians may be on call on Saturday and Sunday, 8 a.m.
to 8 p.m.
The main operating room sterile processing technician starts
at 7 a.m. by warming up the machines and by the time shifts are
completed at around 10:30 p.m., the techs have the machines
clean for the next morning. Scheduled surgeries start in both the
main and outpatient operating rooms at 7:30 a.m. (Tr. 1093.)
However, surgeries may occur during the night, in which case
the day shift picks up where the sterile processing employees left
off at 11:30 p.m. (Tr. 1093–1094.)
B. McNelis’s Duties and Locations
When she worked the 7 a.m. shift, McNelis warmed up ma-
chines, such as autoclaves, necessary for sterilizing instruments
for surgical procedures in the main operating room. She was the
only person to work in the main operating room to open sterile
processing. (Tr. 873.) Another sterile processing technician,
Amanda David, another union supporter, began her shift at 6:30
a.m. However, David’s job was different than McNelis: Mindy
made sure that the instrument carts were prepared for upcoming
surgeries; David also attended the morning main operating room
report meeting at 7 a.m. and ordered supplies, which McNelis
did not do. (Tr. 874.)
McNelis now works a 9 a.m. shift in outpatient surgery, but,
if needed, she may be sent to work in the main operating room.
(Tr. 873.) On the 9 a.m. shift in outpatient surgery, she works
with Robin White, another sterile processing technician. White
also had duties in materials management, ordering supplies and
preparing groups of instruments and other equipment for eye sur-
geries. David stated the change put more work upon her in the
main operating room.
C. Changes in the Sterile Processing Department’s
Schedule in 2015
As early as September 2015, when she arrived to begin her
duties with Respondent, Interim OR Director Kriegel noted that
the sterile processing technicians were too heavily staffed in the
early portion of the day and did not have sufficient coverage in

26 The main OR handles the most complicated cases, such as neuro-
surgical cases, heart surgery, and complicated orthopedic cases. The out-
patient surgical center handles elective, nonemergent cases for 4 days per
week; these cases include cataracts and knee arthroscopies. The last
scheduled case in outpatient surgery is supposed to end by 3:30 p.m., but
sometimes runs over its time limits.
the later portion. Four sterile processing technicians, McNelis
and Robin White in outpatient and David and Dawn Wylie in the
main OR, began their shifts early, at 6:30 a.m. and 7 a.m. Kriegel
began discussions with her supervisors by mid-October 2015.
She found that the schedule, as it was, created significant over-
time and a lack of supplies available in the morning because the
sterile processing technicians were not present later in the day to
complete sterilization processes. (Tr. 1233–1234). Kriegel con-
cluded that two technicians were not needed at 7:00 a.m. in out-
patient because outpatient cases did not start until 7:30 a.m. In
November 2015 Kriegel changed Wylie’s schedule to start at 8
a.m.
Nothing in McNelis’s schedule changed at that time. Before
“the holidays” in 2015, Kriegel spoke to McNelis about chang-
ing her schedule in outpatient. McNelis asked why it could not
be Robin White to change. Kriegel explained White had addi-
tional duties and advised McNelis that she desired McNelis to
learn White’s additional duties, which were ordering from mate-
rials management. McNelis stated she had wanted to learn how
to perform those duties. Kriegel told McNelis the training could
start in January but, “I need you to help me out and do this start-
ing in January.” (Tr. 1250). According to Kriegel, McNelis re-
fused to do so and explained she had a part-time job at a nearby
military base. (Tr. 1250.)28 Despite their determination to move
McNelis to an 8 a.m. shift, Guck and Kriegel allowed McNelis
to keep her shift assignment.
Around June or July 2016, Kriegel again considered changing
schedules because the previous changes were insufficient to ad-
dress the outpatient volume. (Tr. 1254–1255.) Kriegel again
discussed the situation with Guck and with the HR department.
Kriegel testified that she discussed the matter with McNelis
again in mid-2016 and held off because McNelis took about a
week off to tend to a sick child. (Tr. 1255–1256.)
After McNelis returned from leave, around the end of 2016,
Kriegel testified she told McNelis to expect a change in her
schedule. Kriegel notes that the department still incurred signif-
icant overtime in outpatient surgery and the sterilizing depart-
ment was not working efficiently with heavier coverage in the
morning, when more coverage was needed later in the day. Ad-
ditionally, SPD lost three employees in the last quarter of 2016;
another part-time sterile processing technician was taking inter-
mittent medical leave. (Tr. 1257–1260.) By the beginning of
2017, Respondent hired three newly certified sterile processing
technicians and, in the meantime, utilized traveling personnel to
cover the gap. Kriegel notified the staff that as soon as these new
employees were trained, they would be added to the rotation and
employees would not be required to work as many weekends on
call. (Tr. 1261, 1266–1267.) However, Kriegel also testified
that the new employees were better qualified for their positions
because of their certifications.
27 The system lacks a scanner, so the technician entering the supply
requests must type in the entire number for each item.
28 R. Exh. 48 is an email that shows Guck spoke to McNelis about
changing her hours, but the change would be to 8 a.m., rather than 9 a.m.,
and Guck documented McNelis’s concern about a second job.
QUEEN OF THE VALLEY MEDICAL CENTER 21
Kriegel testified that the changes necessary at the beginning
of 2017 were because she changed the schedule of the person on
intermittent leave to work on Mondays. (Tr. 1261–1262.)
Kriegel testified that McNelis was the “guru” of the eye instru-
ments but needed her to work until 4:30 p.m. or 5 p.m. each day.
Kriegel testified that she felt that she had been “lenient,” “com-
passionate,” and “collaborative” with McNelis since 2015, but
definitely needed to move McNelis to the later shift in outpatient
surgery, at 9 a.m. Kriegel, apparently in conjunction with Guck,
decided that David could open the main OR by herself at 6:30
a.m. (Tr. 1262–1263.)
D. SPD Employees, Including McNelis, Engaged in Union and
Protected Concerted Activities
McNelis was active in the union campaign. On one or two
occasions, she handed out union pins, union flyers and other un-
ion paraphernalia to her coworkers in the lounges for the operat-
ing room and outpatient surgery during her breaks and lunch pe-
riods. (Tr. 845–846.) She attended one or two union meetings
before the ballots were counted. She also wore union pins, start-
ing in November 2016, every day for a 2-week period. She also
wore a lanyard, which she continues to wear every working day,
5 days per week.
After the ballots were counted, McNelis attended union meet-
ings two to three times per month. Some of the meetings were
held at Respondent’s facility in the rooms by the cafeteria. (Tr.
849–850.) McNelis also met with Organizer Poulson individu-
ally in the cafeteria, located in the facility’s main hallway. After
the meetings, she advised coworkers about the information she
obtained at the meetings. McNelis and Jesse Perla were elected
as the union “leads” for their department. Perla resigned in early
2017, making McNelis the sole lead for her department.
When McNelis had a start time of 7 a.m., she saw Supervisor
Guck every day. Around the time of the election, while McNelis
was working in Central Processing, Guck pointed McNelis’s Un-
ion lanyard and asked why she had to wear it. Guck also stated
she did not have to wear it. (Tr. 852–853.).29 At an unknown
date, Guck also blocked McNelis’s access to talk to a coworker,
Jason, while distributing flyers, with coworker Dawn White pre-
sent. (Tr. 928.)
Guck also spoke with employee Amanda David and asked her
to pass out flyers against the Union. According to David, Guck
said that she knew the Union was coming in, that she was against
it and the Union would hurt the hospital and jobs. Guck specif-
ically said that McNelis could lose her job in outpatient surgery
if the Union came in. (Tr. 1086.) David asked what Guck meant
by the comment; Guck said others wanted McNelis’s job and if
the Union came in, her job would be available. (Tr. 1086.)30
Before and after the election, McNelis and her coworkers had
ongoing problems with Supervisor Guck. In December 2016,
some sterile processing employees met separately with Organ-
izer Poulson, with the topic of discussion about Guck’s behavior
and how to get her to listen to them. (Tr. 1062.) In December

29 In September 2016, before the unionization efforts might have been
known, McNelis was not pleased with Guck’s evaluation of her work.
She talked with Interim OR Director Kreigel but found no satisfaction
with the discussion. She also met with HR Director Schelling, with her
husband present. McNelis documented with her husband’s assistance of
2016 or January 2017, Poulson met with several sterile pro-
cessing employees away from Respondent’s facilities to discuss
further. At this time, the sterile processing employees and Poul-
son put together a petition to circulate on the issues. (Tr. 1064.)
E. The SPD Employees Concertly Complain about
Supervisor Guck
By the end of January 2017, a number of the sterile processing
employees signed a petition about Supervisor Guck’s behavior.
McNelis signed the petition and obtained signatures from
coworkers; she recalled she spoke with five or six coworkers to
obtain signatures. The petition cited Guck’s inappropriate work
conduct as failing to create a collaborative work environment to
the detriment of the patient population. The conduct included
“speaking condescendingly to and yelling at employees,” “mi-
cromanaging and harassing employees, including timing them
and barking orders,” and “not listening to employees when they
raise departmental concerns or serious patient care issues.” The
petition requested a meeting with Guck, Interim OR Director
Kreigel, OR Manager Jeworoswki and HR to “propose ideas to
resolve this issue.” (GC Exh. 11.) The petitions were submitted
to management on January 31, 2017. On the same day, Poulson
sent to Kriegel, Guck, and Schelling an email requesting a meet-
ing. (R. Exh. 49; Tr. 1282.)
The employees heard nothing from Respondent about sched-
uling a meeting. Kriegel testified that she did not respond to
Poulson’s January 31 email because the hospital did not recog-
nize the Union. (Tr. 1282.) By letter dated February 23, 2017,
the employees notified Respondent about its concerns regarding
Guck. They included suggestions on how to improve matters in
the sterile processing department including improving specific
“actions” to improve Guck’s communications, plus training and
staffing within the department. The letter still requested a meet-
ing for discussion. The letter also pointed out that Respondent
could notify either of the central processing department’s shop
stewards. One of the two named shop stewards was McNelis.
(GC Exh. 12.)
One morning in February, McNelis and about 12 to 15
coworkers tried to have a meeting with Guck by marching to
Guck’s office. (Tr. 915.) Although she attended, McNelis was
not working that day and believed that no employee left a work
station unattended to participate. (Tr. 916–917.) Guck had
someone in her office. McNelis could not recall who started the
conversation with Guck, but Guck told the group she could not
meet with them and to come back later. The group asked an ap-
pointment. Shortly thereafter Guck set up an appointment with
them. (Tr. 918.)
By early 2016, Guck and Kriegel told David she was not get-
ting her job done and David complained she had too much to do.
(Tr. 1097.) Around January 1, 2017, the OR management ar-
ranged for an OR nurse to assist with David’s duties. (Tr. 1097.)
To get additional help, in late 2016 or early 2017, David took
it upon herself to informally train McNelis on putting together
what happened and gave a copy of her notes to Poulson. (R. Exhs. 34,
35). McNelis received a merit increase.
30 David testified that these events occurred in August 2016. Given
the timing of the Union’s campaign, these events more likely occurred
in October or November of that year.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
case carts. David found McNelis receptive to the training. The
training was limited to “downstairs,” but not in the OR itself.
David’s appraisal in August or September 2016 also had advised
her that she was to train each person how to pull cases.
In early 2017, Supervisor Guck offered to have McNelis
trained on ordering supplies in order to improve McNelis’s skill
variety. McNelis told Guck she wanted to learn. However,
McNelis reported Guck later told her that she was not interested
in learning. According to McNelis, Guck failed to cover
McNelis’s area so that she could spend time learning and advised
her of such within two weeks of when she was supposed to have
the training. When Guck failed to provide coverage, McNelis
did not ask for the training again. (Tr. 877–878, 895.)
On one occasion, which Respondent characterized as a failure
to follow directions, Guck directed McNelis to make some
changes in an eye tray. McNelis requested that Guck put the
instructions in writing because she did not want to be responsible
to making the charge. McNelis also denied that she raised her
voice during the discussion. Guck told her she would not do so
and reported her to Jeweworski. When Jeweworski asked
McNelis about the exchange with Guck, McNelis stated she did
not refuse the order, but merely wanted it in writing. Jeweworksi
told McNelis it was a communication failure, but stated he
wanted her to be polite with Guck and follow her instructions.
McNelis agreed to do so. (Tr. 887–889.)31
In mid-January 2017, McNelis took approximately one month
of leave to handle a family medical issue. (Tr. 1268.) On Feb-
ruary 24, 2017, McNelis, by phone, notified Guck that she was
ready to return to work. Guck told her to call Interim OR Direc-
tor Kriegel. When McNelis called Kriegel, Kriegel advised
McNelis that her start time now would be 9 a.m. instead of 7 a.m.
McNelis, by email to Kriegel, requested a meeting with her un-
ion representative present. Kriegel forwarded the email to Hu-
man Resources Manager Hutchinson, stating, “And so it begins.”
(Tr. 1309; GC Exh. 24.)
McNelis was concerned about the schedule change because
she had another job at Travis Air Force Base for 5 years. It was
undisputed that Guck knew about McNelis’s other job because
she frequently mentioned it to her. (Tr. 859–860.) McNelis later
discussed with Guck that she needed to keep her 7 a.m. start time
because of her other job and that she really needed the money.
Guck told her to talk to Kriegel.
On February 28, 2017, after McNelis was already advised her
schedule was changed, HR Manager Schelling notified Organ-
izer Poulson of “proposed changes” to the sterile processing de-
partment schedule. Schelling summarized the changes:
• The shift rotation went from weekly to every 3 weeks
• 7a shift changed to 9a to support surgery schedule
• Per Diem days changed from Tues, Wed, Thurs to M,
T, Th one week and M, T,Th, Fr the following, again

31 Respondent presented alleged documentation from McNelis’s per-
sonnel file about the incident, but it did not identify whose handwriting
was on the document, which was dated January 21, 2017. McNelis had
never seen the document before. (Tr. 890–891; R. Exh. 32). Although I
allowed admission of this document, I find it lacks sufficient evidence of
who made the notations and I do not rely upon it for any findings.
Jeweworksi did not testify.
to match surgery needs
• 2 people returning from leave were put into shift ro-
tation
• Call changed from Sat/Sun to Sat only, because one of
the per diems wanted to take Sunday call
(GC Exh. 13.)
Schelling wrote that the schedule changes needed to be effec-
tive for the March 12-April 15 schedule (less than 2 weeks from
the date of notification) and offered to meet 2 days later. (GC
Exh. 13.) One of the schedule changes was moving McNelis
from her 7 a.m. start time to a 9 a.m. start time.32
F. Employees, Including McNelis, Meet with Managers about
Guck and Scheduling
On March 2, 2017, in one of the hospital’s offices, Poulson,
McNelis and five to six of McNelis’s coworkers33 met with HR
Director Schelling, Interim OR Director Kriegel and Kathy
Hutchinson. (Tr. 857, 1070.) Employees identified their major
concerns as Guck’s communication within the department and
the proposed schedule changes. (Tr. 1071.) Poulson initially
spoke for the employee group, identifying that the employees
had concerns about their department. McNelis recalled that the
HR representatives and Kriegel seemed surprised about Guck’s
conduct and Kriegel agreed to take care of it. (Tr. 859.)
In the last 10 minutes of the meeting, the new scheduling plan
was discussed. Poulson was not present during most of this dis-
cussion. Amanda David, a 22-year sterile processing employee
employed as a senior sterile case cart picker34 in the operating
room, was concerned because the proposed schedule changes re-
quired her position to start rotating between employee Jesse
Perla and herself; McNelis was scheduled to start her shifts at 9
a.m. instead of 7 a.m. (Tr. 1073.) The schedule included the new
certified technicians, who were not taking call, and were working
with a certified technician. (Tr. 1332.) Kriegel opined they
could not have been scheduled for a 9:00 a.m. slot because
“they’re not ready.” (Tr. 1333.) However, Kriegel also stated
that the certified technicians were better qualified than uncerti-
fied technicians, such as McNelis, because they understood the
theoretical background of the work.
David also found that the changes placed more work upon her.
David’s schedule now would require her to work 6:30 a.m. to 3
p.m. for 1 week and then work a week of 12 noon to 8:30 p.m.
shifts. However, David found that Respondent’s only reason to
explain the need for 3 p.m. shift was to clean up the department
later, which could be an issue depending on how busy the de-
partment was. The other employees selected David to write the
new schedule, after Poulson left the meeting. Kriegel gave cer-
tain parameters for staffing, such as requiring all persons to work
on the 4 busiest days of the week, per diem personnel only work-
ing on the schedules they selected, and not including the
32 David testified that the department always had rotating shifts. (Tr.
1095).
33 Kriegel testified that all SPD employees were present. (Tr. 1271).
34 The sterile case cart picker pulls items for surgeries the following
day and any additional surgeries that may arise during her shift; she also
ordered and stocked supplies for surgery. David’s supervisor also is
Guck.
QUEEN OF THE VALLEY MEDICAL CENTER 23
travelers. (Tr. 1272.) Kriegel testified that one of the criteria was
that someone would have a 9 a.m. start time, which McNelis re-
fused to do. (Tr. 1272–1273.) Kriegel told McNelis, during the
meeting, that she would have to give 3 days a week with 9 a.m.
start times. (Tr. 1273.) McNelis testified that, in the meeting,
she attempted to explain about her other job, but was not given a
chance to do so.
G. The Union Requests Information Related to Proposed
Changes in SPD and McNelis’s Schedules
On March 3, 2017, Poulson emailed to interim director of sur-
gical services a request of information for evidence to support
Respondent’s asserted operational need for shifting employee
Martha McNelis’s start time. Poulson also requested a followup
meeting on McNelis’s start time. Kriegel, responding by email
to Poulson 3 days later, stated she found no need for the followup
meeting and further stated:
I made it very clear in the meeting in your presence and
again after you left that the schedule changes are dictated
by the volume in both the Main OR and the OSPC.
Everyone in SPD knows very well how these volumes
effect the work load in the department.
(Tr. 1284; GC Exh. 15.)35
HR Director Schelling was copied on the email chain. The
Union received no other response regarding the requested infor-
mation.
H. Respondent Implements Schedule Changes in the Sterile
Processing Department
While planning the schedule, David spoke to all personnel in
the department and planned a schedule she believed met all cri-
teria that Kriegel put forth. (R. Exh. 46). David’s schedule put
McNelis at 7 a.m. every day of the week.
Kriegel agreed to allow the employees to draft a schedule but
required a 3 p.m. shift. (Tr. 923, 1080–1081.) David worked on
the schedule and submitted it to Kriegel. The schedule allowed
McNelis to work at on 7 a.m. shifts for Monday through Friday
based upon McNelis’s belief that she could stay at 7 a.m. David
also eliminated her rotation schedule with Perla.
On about March 9, 2017, David presented her schedule to
Kriegel, who was not pleased with the schedule. Kriegel testi-
fied that the submitted schedule did not meet the department
needs. Kriegel questioned David why she gave McNelis sched-
uled for two 7 a.m. shifts, on Monday and Friday; David ex-
plained that Kriegel had requested 3 days of 9 a.m. shifts and put
McNelis on the busy days36 of the week for 7 a.m. (Tr. 1083.)
David considered that McNelis was needed at 7 a.m. on Mon-
days: After the weekend, instruments might be left dirty and
McNelis could get the autoclaves started at the earlier time, ra-
ther than waiting until 9 a.m., and could prepare for the large
number of orthopedic cases. (Tr. 1083–1084.)
David told Kriegel she spoke with the other employees about

35 Kriegel testified that the other reason she would not meet with
Poulson was because Respondent was not recognizing the Union, but
Respondent’s position was not in the email. Kriegel said she left it out
because she did not want to be “rude.” (Tr. 1285.) As this email issued
the schedule, to which Kriegel remarked that the Union did not
run the hospital. (Tr. 1083.) Everyone otherwise was scheduled
to rotate shifts, but only one week at a time. The 7 a.m. shift was
completely eliminated; instead, Dawn Wiley, a lead technician,
began her shift at 8 a.m. (Tr. 1084.)
The next Friday, Guck presented the new schedule to the ster-
ile processing employees in the department huddle. David testi-
fied that little of the schedule Guck presented was as she pre-
sented it to Kriegel, except for the determination not to rotate
David and Perla. (Tr. 1084.) Poulson and the coworkers at-
tempted to schedule another meeting with Respondent to discuss
it, but Respondent never scheduled a meeting. The schedule
went into effect as Respondent specifically drafted it. Effective
April 4, 2017, McNelis was permanently assigned to the 9 a.m.
– 5:30 p.m., instead of the 7 a.m. – 3:30 p.m. shift in the main
OR and shifting to the outpatient department. (Tr. 1230).
McNelis might be asked to come in earlier than 9 a.m., depend-
ing on sick calls and volume of work. (Tr. 1230.) She also par-
tially covers White’s sterile processing when White is on vaca-
tion; a scrub technician covers the remainder of White’ duties
while she is on vacation. (Tr. 1306–1307.) Kriegel testified that
McNelis was scheduled 5 days a week at 9 a.m., although Kriegel
initially proposed to have her work 3 days per week at 9 a.m.
Kriegel gave this rationale for her determination:
Because I had asked [McNelis] to give me three days,
and she determined that she was not going to do that. So,
by default, I scheduled the schedule five days per week.
(Tr. 1327.)
About April 5, McNelis asked Guck to keep her 7 a.m. shift.
Respondent provided an email, with a reference from Guck
about “Please see the conversation Martha and I had this A.M.”
(R. Exh. 36.) Nothing on the email itself cites an attachment.
Guck’s alleged notes are not signed, but only dated April 5,
2017. McNelis supposedly asked that Guck be more open
minded; however, Guck notes, “I reminded her of the many
times I understood but things have changed.” McNelis stated the
document was inaccurate in several respects. It implied that
Guck explained the policies and said Guck told McNelis needed
to be open-minded, both of which McNelis said Guck did not do.
(R. Exh. 36.) As Guck never testified to dispute McNelis’s ver-
sion, I therefore credit that the document does not completely
support Respondent’s version of events.
As a result of the schedule change, McNelis lost her job at the
military base. (Tr. 861.)
Dawn Wiley, the lead sterile processing technician in the main
OR, currently works 8 a.m. – 4:30 p.m. Amanda David also
works in the main OR, which has not changed. (Tr. 1232–1233.)
Kriegel believed David could start the autoclaves and run the
necessary equipment tests in the main OR because she came in
at 6:30 a.m. (Tr. 1263.) The only change that Kriegel recalled
keeping from David’s proposed schedule was employees rotat-
ing one week, rather than three weeks. (Tr. 1327.) David
before the March 16 letter, I find that the best evidence of Respondent’s
position is not Krieger’s testimony, but the email itself.
36 David testified that Monday and Tuesday were the busiest days of
each week.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testified that the work schedule changes did not decrease her vol-
ume of work, and she now opens the department. She now works
in two places instead of one until a second person arrives at 8
a.m. (Tr. 1119–1120.)
IX. AN EMPLOYEE REQUEST FOR UNION REPRESENTATION
PURSUANT TO WEINGARTEN IS DENIED
Lab employee Jennifer Mini-Bera requested that Poulson at-
tend a meeting with her supervisors about alleged physician
complaints about Mini-Bera’s work. As the meeting could lead
to discipline based upon physican complaint about Mini-Bera’s
work, the parties stipulated the meeting was investigatory in na-
ture. Mini-Bera also asked Laboratory Directory Olive
Romero37 for union representation at the upcoming meeting.
On February 28, 2017, Laboratory Director Romero, who had
experience in dealing with unions, sent Mini-Bera an email
agreeing that she could bring her union representative to the in-
vestigatory meeting. (Jt. Exh. 36.) Mini-Bera contacted Poulson
by email for scheduling purposes. On March 1 Poulson emailed
available dates to Romero and Supervisor Shanay Marquez. (Jt.
Exhs. 29, 36). On March 1, Romero, by email, advised Poulson,
Mini-Bera and other lab supervisors that the meeting would be
scheduled for March 9 at 10 a.m., with Marquez assigned to send
the “invitation” to the meeting. (Jt. Exh. 36 at QVMC-NUHW
0471.) On March 8, Poulson learned from Mini-Bera that the in-
vestigatory interview for the following day was canceled; she
emailed Romero to confirm whether this was correct. (Jt. Exh.
36.) The parties rescheduled for March 21 and Romero intended
to permit Poulson to attend, but Poulson did not receive the invi-
tation to the meeting. (Tr. 198.)38 The meeting was rescheduled
to March 28.
In the meantime, Respondent held a meeting for its managers
on March 24, 2017. Romero testified that they were advised not
to make contacts or acknowledge the Union. Before that time,
no instructions had been provided to Romero about contacts with
the Union. (Tr. 201, 205–206.) Notably, none of the corre-
spondence or discussions inviting Poulson to or excluding Poul-
son from Mini-Bera’s investigatory interview ever mentioned
patient confidentiality. I therefore find that Respondent had no
concerns about patient confidentiality at this time of these
events. On March 28, 2017, HR Director Schelling and Labora-
tory Director Romero emailed Poulson that she could not attend
the investigatory interview.39 Romero also advised Poulson that
they could not meet regarding proposed changes to phleboto-
mists’ schedules because Respondent did not recognize the Un-
ion.
Analysis
In discussing the allegations, I begin with the alleged 8(a)(1)
threat. I next discuss that the Union was indeed the certified bar-
gaining agent, then find Respondent violated its Weingarten ob-
ligations. I provide a detailed discussion about the 8(a)(5)

37 Romero, an admitted supervisor and agent for Respondent, testified
under subpoena in General Counsel’s case-in-chief as an adverse wit-
ness. Respondent did not recall her.
38 On March 21, Poulson reminded Marquez that the lab’s emails to
her were not getting through when sent through Respondent’s secure sys-
tem as Poulson had no email address within the system.
allegations, including the information requests, failure to bar-
gain/withdrawal of recognition, and unilateral changes. I then
discuss the 8(a)(3) allegations, which involve Arroyo, Frogge,
and the SPD. Lastly, I discuss Respondent’s demands for severe
sanctions against the Union for subpoena violations.
I. EVS DIRECTOR HERRING VIOLATED SECTION 8(A)(1) BY
THREATENING EMPLOYEES WITH UNSPECIFIED REPRISALS FOR
UNION ACTIVITIES
Well-established Board precedent directs a Section 8(a)(1) vi-
olation if the employer’s conduct “may reasonably be said to
have a tendency to interfere with the free exercise of employee
rights.” Unbelievable, Inc., 323 NLRB 815 (1997). In assessing
an alleged threat, the Board uses an objective standard: Whether
the statement would tend to coerce a reasonable employee. Hen-
drickson USA, LLC, 366 NLRB No. 7, slip op. at 5 (2018). The
language of the alleged statement does not need to be explicit to
make it a threat, and if so, is assessed in the totality of circum-
stances. Id.
I credit Frogge’s testimony that EVS Director Herring stated
to her, in his office, that she had to stop harassing employees and
the Union was not going to run the department. Frogge’s testi-
mony here was clearly described. Similarly, I discredit Herring
and Roe’s rote denials of threats, and I question whether Roe
would have been called in at 4:15 p.m. as she was the day shift
supervisor. Herring’s statements occurred in the department
head’s office with Frogge’s supervisor standing by. Herring told
her she couldn’t be harassing others. Herring was visibly irritated
when Frogge raised her desire for a union representative if the
discussion was investigative. Herring’s statement was that he
going to do as he saw fit, with or without the Union. The timing
was about 1 month after Poulson demanded to negotiate about
Frogge’s change in assigned duties.
The circumstances are coercive because Frogge was called
into a locus of power—the department head’s office—and the
department head had his second in command present. Network
Dynamics Cabling, Inc., 351 NLRB 1423, 1429 (2007). It was
capped off with an implied threat of futility for seeking union
representation, which also impliedly stated he would not follow
the law regarding negotiations. Emergency One, 306 NLRB
800, 800 (1992). I therefore and a violation of Section 8(a)(1).
II. THE UNION IS THE CERTIFIED REPRESENTATIVE OF THE
BARGAINING UNIT
In an unfair labor practice hearing, Respondent is precluded
from litigating representation case matters that were or could
have been raised during the representation case proceedings. The
parties presented representation case documents in the joint ex-
hibits. Otherwise, I excluded evidence regarding the election.
Wang Theatre, Inc., 365 NLRB No. 33 (2017); Nappe-Babcock
Co., 245 NLRB 20 (1979). Based upon the Board’s rejection of
Respondent’s objections and challenges, which allowed the
39 During the course of these events, Poulson also learned that
Romero intended to make schedule changes and requested to bargain
over them. Romero met with Poulson before any changes took place.
QUEEN OF THE VALLEY MEDICAL CENTER 25
Regional Director’s determination to stand, the Union is properly
certified as the bargaining unit’s 9(a) representative.
Respondent contends that the bargaining unit was not properly
certified as the Section 9(a) representative. Respondent did not
offer to adduce any newly discovered or previously unavailable
evidence. Nor does it present any “special circumstances” that
required me to reexamine the decisions made during the repre-
sentation process. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.
146, 162 (1941); Toyota of Berkleley, 306 NLRB 893, 898
(1992). As a result of the Union’s certified 9(a) status, the Union
has an irrebuttable presumption of majority status during the cer-
tification year. Auciello Iron Works, Inc., 317 NLRB 364, 367
(1995), enfd. 60 F.3d 24 (1st Cir. 1995), affd. 517 U.S. 781, 785–
586 (1996). Respondent relied upon this defense for most of the
alleged unfair labor practices in both hearing and brief, and I find
that Respondent has waived other defenses. Conditioned Air
Systems, Inc., 360 NLRB 789 fn. 2 (2014).
III. HUMAN RESOURCES DIRECTOR SCHELLING AND LAB DIRECTOR
ROMERO VIOLATED EMPLOYEE JENNIFER MINI-BERA’S
WEINGARTEN40 RIGHTS
I credit Laboratory Director Romero’s testimony. She was
called for testimony in General Counsel’s case-in-chief. Her an-
swers were forth-right and she showed no signs of hesitation.
Documentary evidence corroborated her testimony. She also tes-
tified contrary to the interests of her employer.
Weingarten generally finds that an employer’s denial of an
employee’s request for union representation at an investigatory
interview that could result in discipline violates Section 8(a)(1)
of the Act. Weingarten, 420 U.S. at 260 et seq. The parties stip-
ulated, and I find, that the meeting for Mini-Bera could have
been resulted in discipline for Mini-Bera’s work and therefore
was investigatory. Respondent initially planned to permit Or-
ganizer Poulson to attend the investigational meeting and with-
drew its offer because it no longer would permit the Union to
represent its employees. But for the “reminder” at the March 24,
2017 management meeting that the managers were not to engage
with the Union, Lab Director Romero intended to permit Poulson
to attend Mini-Bara’s investigatory meeting. On March 27, HR
Director Schelling cancelled the meeting. The meeting was held
without union representation. This event also occurred after Re-
spondent sent its March 16 letter demanding a test of certifica-
tion. Respondent claims it had no obligation to meet with the
Union due to its continued challenge to the certification process.
(R. Br. at 72).
When an employee requests representation and it is denied af-
ter the union is newly elected, regardless of whether certified at
that point, the employer must honor the request for Weingarten
representation. Five Star Mfg., Inc., 348 NLRB 1301, 1331
(2006), enfd. 278 Fed. Appx. 697 (8th Cir. 2008). The employer
also cannot rely upon its unlawful refusal to recognize or bargain
with the employees’ elected represented to deny Weingarten
rights to an employee. Id., citing Glomac Plastics, Inc., 234
NLRB 1309, 1310–1311 (1978), enfd. 600 F.2d 3 (2d Cir. 1979).

40 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
41 Also see Orthodox Jewish Home for the Aged, 314 NLRB 1006,
1007–1008 (1994) (whether request for information from bargaining
Respondent contends no Weingarten rights attached because
the Board does not extend such rights to non-Union employees.
Respondent relies upon IBM Corp., 341 NLRB 1288 (2004).
This situation has no facts similar to IBM, 341 NLRB at 1295.
Here, not only had the Union won the election, it already was the
certified Section 9(a) representative. Respondent had an obliga-
tion to honor Mini-Bera’s request. Five Star Mfg., supra. There-
fore, by depriving Mini-Bera of her requested Union representa-
tion in an investigatory meeting, Respondent violated Section
8(a)(1) and the dictates of Weingarten, supra.
III. RESPONDENT VIOLATED SECTION 8(A)(5) REGARDING
INFORMATION REQUESTS, BARGAINING AND
UNILATERAL CHANGES
In many respects, the questions about Section 8(a)(5) are the
gateway for a number of the remaining allegations. General
Counsel and the Union contend that bargaining began on several
issues and the Union additionally made a valid request to bargain
a collective-bargaining agreement.
I have already found that the Union is the Section 9(a) repre-
sentative of the stated bargaining unit. Because I find that the
Union is the certified representative, I deal with the information
request allegations. I then discuss whether Respondent’s con-
duct demonstrates a refusal to bargain before and after March 16,
2017. In the remainder of the section, I discuss several of the
alleged unilateral changes.
A. Information Requests
1. Applicable law
When the certified bargaining agent of the employees, re-
quests information, an employer can fulfill its “bargaining obli-
gation under Section 8(a)(5) of the Act” by providing relevant
information. Diponio Construction Co, 357 NLRB 1206, 1217
(2011), citing United Aircraft Corp., 192 NLRB 382, 389
(1971). The rationale for 8(a)(5)’s requirement is:
Employees’ certified representative is entitled to information
that “will enable[ ] the union to negotiate effectively and to per-
form properly its other duties as bargaining representative.”
Oil, Chemical & Atomic Workers Local Union No.6–418 v.
NLRB, 711 F.2d 348, 358 (D.C. Cir. 1983) (internal quotes
omitted). The information requested must be relevant to the
union’s representation, but the threshold for relevance is low.
See NLRB v. Acme Industrial Co., 385 U.S. 432, 437–38, 87 S.
Ct. 565, 17 L.Ed.2d 495 (1967). Information related to the
wages, benefits, hours, working conditions, etc. of represented
employees is presumptively relevant to collective bargaining.
See Oil, Chemical & Atomic Workers, 711 F.2d at 359.
Country Ford Truck, Inc. v. NLRB, 229 F.3d 1184, 1191–1192
(D.C. Cir. 2000), enfg. 330 NLRB 328 (1999).41
Information such as names, addresses, job classifications,
base rate of pay, date of birth, date of hiring, salary rates, benefit
plans, incentive plans, premium pay, vacation entitlements for
each employee, medical insurance information (including types
depends on if relevant to context of the bargaining issue and standard of
relevance is liberal; need not be dispositive of the issue in dispute but
merely have some bearing on it).
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of plans, premiums), job descriptions, scheduling, shift selection
processes, overtime, records of disciplinary notices and/or nega-
tive reviews, rules and regulations and disciplinary procedures,
employee handbooks and personnel manuals are presumptively
relevant and “must be furnished upon request.” Anheuser-
Busch, Inc., 365 NLRB No. 123, slip op. at 2 (2017). Once an
initial showing of relevance is made, an employer has a burden
of proof to demonstrate the lack of relevance or give sufficient
reason(s) “‘as to why he cannot, in good faith, supply such infor-
mation.’” ATV/Vancom of Nevada Ltd. Partnership, 326 NLRB
1432, 1434 (1998), citing San Diego Newspaper Guild Local 95
v. NLRB, 548 F.2d 863 (9th Cir. 1977). Country Ford, supra,
explains the rationale:
The Union sought such information stating that it was
needed “for bargaining purposes,” and Country Ford delib-
erately refused. Thus, NLRB properly concluded that the
Company committed an unfair labor practice. Because the
information requested was “presumptively relevant” for
bargaining purposes, no further explanation was required.
As this Court noted, “the rationale underlying the presump-
tive relevance rule [is to] avoid [ ] . . . ‘potentially endless
bickering ... over the specific relevance of information, the
very nature of which ought to render its relevance obvious.’
“ Id. at 359 fn. 26 (quoting Emeryville Research Ctr., Shell
Dev. Co. v. NLRB, 441 F.2d 880, 887 (9th Cir.1971)).
Vague allegations of a union’s bad faith do not change the
result. Under NLRB precedent, the “good faith” require-
ment is met so long as “at least one reason for the demand
can be justified.” E.g., Island Creek Coal Co., 292 NLRB
480, 489 (1989) (citing Hawkins Construction Co., 285
NLRB 1313 (1987), enf. denied on other grounds, 857 F.2d
1224 (8th Cir.1988)), enforced, 899 F.2d 1222 (6th Cir.
1990) (unpublished table decision).
Even accepting, for the sake of argument, that the Un-
ion’s request was overbroad, this does not excuse the Com-
pany from providing the requested information to which the
Union had an undisputed right. See, e.g., Oil, Chemical &
Atomic Workers, 711 F.2d at 361 (citing Fawcett Printing
Corp., 201 NLRB 964, 975 (1973)). That petitioner knew
that it could satisfy the Union’s information request by only
providing information about bargaining unit employees is
beyond dispute. After Country Ford initially refused to pro-
vide the requested information, Union counsel clarified that
its request applied only to information about represented
employees. Yet petitioner still refused to provide any infor-
mation. The alleged overbreadth of the Union’s information
request is also irrelevant because the Board only found that
petitioner engaged in an unfair labor practice by failing to
provide information about unit employees.
Country Ford, supra.
The only defense Respondent’s brief puts forth about all of the
information requests is that Respondent was not bargaining with
the Union because it was challenging the certification and limits
its information request analysis to Martin’s January 2017

42 When information is clearly relevant, the Board is not required to
determine whether all of it is relevant. Hughes Tool Co., 100 NLRB 208,
request. Improper certification, which Respondent stated in the
answer as the primary reason for not providing information, is
not a valid defense. Anheuser-Busch, Inc., 365 NLRB No. 123,
slip op. at 2; Orni 8, LLC, 362 NLRB 1087 (2015). Because
Respondent provides no other defenses in its brief, much less
discuss the information requests other than the January 10, 2017
request, Respondent waives any alternative defenses.42
2. Complaint paragraphs16 and 17: December 15, 2016 and
January 24, 2017
In December 2016, Poulson requested by email to HR Direc-
tor Schelling and Director of Labor Relations Candella five items
of information regarding Frogge’s schedule change. On January
12, 2017, Poulson re-requested the information.
The requested information was:
• How long has it been the case that there have been two
designated linen positions at Queen of the Valley?
• On what date was the linen position Renee Frogge previ-
ously held first posted, and on what date did Renee as-
sume that position?
• Job descriptions for the linen positions, including the job
description for the linen position previously held by
Renee, as well as the new job description for the new linen
position currently held by Maria Correa.
• Any evidence that workload in linen has decreased dras-
tically in the past 2-3 months.
• Any hospital policies which cover linen handling and
laundry, including any staff trainings.
(Jt. Exh. 11.)
Respondent only provided the job description and said no
other information existed. I find it implausible that Respondent
did not have information on when Frogge initially held the linen
position and may have still had information on when the position
was posted or her application for the position. I find more than
implausible that Respondent, a health care institution inspected
by the Joint Commission on Health Care Organizations, has no
policies covering linen handling. I therefore do not credit Re-
spondent’s blanket assertion that no other information existed.
Respondent is required to make a reasonable effort to provide the
information or otherwise explain why it did not present it. See
generally Hanson Aggregates BMC, Inc., 353 NLRB 287 (2008).
During the meeting of January 24, Poulson testified she ver-
bally requested that Respondent’s representatives, including
Schelling and Candella, provide the information as requested,
despite only receiving a job description. Later, she verbally
asked for evidence of changes in the linen workload to support
its determination of changing Frogge’s assignment. I credit
Poulson’s testimony that she made these requests. She provided
significant context for the requests. Respondent never provided
the information, which is considered necessary and relevant to
the Union’s consideration of these events. Respondent’s defense
that it was not bargaining is unavailing as it had an obligation to
provide information to the certified representative. Failure to re-
spond to these information requests is a violation of Section
210 (1952). However, out of an abundance of caution, I provide some
analysis on relevance.
QUEEN OF THE VALLEY MEDICAL CENTER 27
8(a)(5). Public Service Co. of New Mexico, 360 NLRB 573,
601–602 (2014), enfd. 843 F.3d 999 (D.C. Cir. 2016) (validity
of oral and written requests).
3. Complaint paragraph 18: January 10, 2017 request for
the initial contract
For Martin’s January 10, 2017 information request, Respond-
ent’s brief failed to address the individual information request
allegations. It admits it provided some information but claims it
had no obligation to provide any because of its alleged refusal to
recognize the Union.
The Union made a broad information request in preparation
for negotiating the collective-bargaining agreement. Before
March 2, Respondent provided some information. The parties
agree no information was provided after March 1. Respondent
leaves a large swath of unanswered information. Respondent,
relying upon Candella’s testimony, claims that it began to pro-
vide information to resolve the unfair labor practice charge filed
on February 1, 2017. The information provided on February 10
included certain job descriptions for the bargaining unit and a
copy of the retirement plan. Respondent claims the Union al-
ready had some of the information, such as job descriptions, but
provided it anyway.
An employer has an obligation to provide relevant infor-
mation to a union for contract negotiations. ATV/Vancom, 326
NLRB at 1434. Long-held precedent dictates that employee
names, addresses, job classification of unit employees, wages,
hours and current benefits are necessary and relevant infor-
mation to the Union’s collective-bargaining duties. Dynamic
Machine Co., 221 NLRB 1140, 1142 (1975), enfd. 552 F.2d
1195 (7th Cir. 1977), cert. denied 434 U.S. 827 (1977). Other
necessary and relevant information includes date of hire, gender,
specific descriptions of health plans, life insurance plans, em-
ployee retirement plans, all other benefits (e.g., vacation, paid
holidays, sick leave, funeral leave), and all existing work rules,
regulations and policies. MEMC Electronic Materials, 338
NLRB No. 142 (2003) (not reported in Board volumes), enfd.
363 F.3d 705 (8th Cir. 2004).
For some of the information requests, which were necessary
and relevant information for bargaining, Respondent’s letter to
the Union claimed the requests were overbroad and burdensome,
such as for years other than 2016. Respondent has the burden of
proof to demonstrate the volume requested is excessive. Re-
spondent did not do present any evidence to support its conten-
tion that those requests were overbroad or burdensome. L.I.F.
Industries a/k/a Long Island Fire Proof Door, 366 NLRB No. 4,
slip op. at 1 fn. 1 (2018), citing Mission Foods, 345 NLRB 788,
788–789 (2005).
Regarding Respondent’s claim to the Union that some infor-
mation was confidential, the Board balances a union’s need for
the information “against any legitimate and substantial confiden-
tiality interest established by the employer. The employer who
claims confidentiality has the burden of proving that such confi-
dentiality interests are in fact present and of such significance as
to outweigh the union’s need for the information.” Lenox Hill

43 Respondent is not precluded from raising confidentiality of this
information during the compliance phase. Salem Hospital Corp., 359
NLRB 695 fn. 3 (2013), affd. 361 NLRB 962 (2014).
Hospital, 327 NLRB 1065, 1069 (1999). If that test is met, an
employer is required to bargain with the Union for an accommo-
dation. Id. at 1069; Lenox Hill Hospital, 362 NLRB 106, 106 at
fn. 2 (2015). According to Respondent, HIPAA precludes dis-
closure of individual employee health insurance selections.
Respondent has waived its defense to show that health insur-
ance selections are covered by HIPAA by failing to brief the is-
sue. Even if it did not waive the issue, the information is consid-
ered necessary and relevant to bargaining. McKenzie-Wil-
liamette Medical Center, 362 NLRB 135 (2015), enfd. 671
Fed.Appx. 1 (D.C. Cir. 2016); Laurel Baye Healthcare of Lake
Lanier, LLC, 346 NLRB 159, 161 (2005), enfd. 209 Fed.Appx.
345 (4th Cir. 2006).43
Regarding the temporary employees, Respondent’s initial re-
sponse contended it saw no relevance. When Martin responded
to Respondent’s letter about missing information, he provided no
further rationale for the need for the information. Temporary
employees are not part of the bargaining unit and to obtain infor-
mation about nonbargaining unit personnel, the Union must
show some relevance to the bargaining unit. However, that
showing is minimal. New York and Presbyterian Hospital v.
NLRB, 649 F.3d 723, 729 (D.C. Cir. 2011), enfg. 355 NLRB 627
(2010). Although the Union presumably wants the information
to identify whether temporary employees are performing bar-
gaining unit work (see id.), the record does not reflect that this
goal was shared with Respondent. The Union therefore never
supplied the necessary relevance to Respondent. This portion of
the January 10, 2017 information request is dismissed.
As Respondent provided no information on this request after
March 1, Respondent violated Section 8(a)(5) by not providing
the complete information, with the exception of the information
on the temporary employees.
4. Complaint paragraph 19: March 3, 2017 request to Kriegel
Poulson requested Interim Director of Surgical Services
Kriegel for information to support Respondent’s asserted opera-
tional needs for shifting employee Martha McNelis’ start time.
Respondent’s answer contends the request was never made, yet
on March 6, 2017, Kriegel responded with a curt email that eve-
ryone knew about the operational needs. I therefore find that the
Union made the information request.
The information request was made in the context of staffing
and scheduling changes. Respondent relied upon the rationale
of workload to make the changes. Because the workload and
operational needs are directly relevant to Respondent’s intended
change, Respondent has an obligation to provide the necessary
and relevant information to the Union upon request. Beverly
Health & Rehabilitation Services, 328 NLRB 885, 888 (1999).
As the Union was the certified representative and Respondent
failed to provide necessary and relevant information, Respond-
ent violated Section 8(a)(5).
5. Complaint paragraph 20(a): March 21, 2017
regarding pharmacy
Respondent did not provide any of the other information about
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a planned change in pharmacy employees regarding scheduling.
As noted before, scheduling is a mandatory subject of bargaining
and the information is therefore necessary and relevant. Re-
spondent therefore failed to provide information that was neces-
sary and relevant to the Union’s statutory duties and violated
Section 8(a)(5).
6. Complaint paragraph 20(b): March 21, 2017 Regarding
EVS Request
An employer should furnish upon demand information regard-
ing disciplinary action because it is presumptively relevant to the
Union’s duties, unless the employer rebuts relevance. Grand
Rapids Press, 331 NLRB 296, 329–330 (2000). An employer is
also required to provide policies and procedures. Anheuser-
Busch, 365 NLRB No. 123, slip op. at 2.
Poulson’s request for information clearly states that the pur-
pose of request is advising a bargaining unit employee regarding
discipline. As Respondent raises no issue with relevance and
fails to provide the information, Respondent violates Section
8(a)(5) by refusing to provide presumptively relevant policies to
the certified representative.
7. Complaint ¶20(c): March 21, 2017 regarding patient
access services
The Union requested information about productivity calcula-
tions. Productivity requirements and calculations, whether poli-
cies or guidelines, are presumptively relevant and must be fur-
nished to the Union. Equitable Life Assurance Society, 266
NLRB 732, 734 (1983). Respondent failed to provide any infor-
mation to the certified representative and therefore violated Sec-
tion 8(a)(5).
8. Conclusion regarding information requests
Overall, Respondent claimed its reason that the Union was not
properly certified to avoid providing information that was nec-
essary and relevant to the Union’s duties, despite having pro-
vided some of the information. This defense is not tenable.
DiPonio Construction, supra. In each instance, Respondent vio-
lated Section 8(a)(5) by failing to provide information necessary
and relevant to the Union’s representational duties.
B. Respondent had a Bargaining Obligation to the Union and
the Bargaining Unit
1. Parties’ positions
Respondent contends it always was appealing the election re-
sults, first with the challenges and objections to the Regional Di-
rector and subsequently through its request for review to the
Board and therefore the matter before me was a test of certifica-
tion instead of a withdrawal of recognition: It never recognized
the Union, nor did Respondent bargain with the Union. It points
to the Union’s publicity, including events that occurred after
March 16, 2017, which call Respondent’s actions a failure to rec-
ognize the Union. Respondent also stated that the events that
occurred between the election and the Board’s rejection of Re-
spondent’s request for review are irrelevant, as are the events af-
ter March 16, 2017.
At hearing, Respondent’s counsel repeatedly said why Re-
spondent acted in the above manner was as important as the
events itself. Respondent’s position is that it met with the Union
initially because its values dictate such a response. By March
24, however, when Respondent did not receive the Union’s
agreement to allow a test of certification instead of proceeding
with the remainder of the unfair labor practices, it determined
that it would not continue meeting with the Union over any mat-
ter.
General Counsel offers two theories regarding Respondent’s
conduct here: Respondent refused to bargain; and, in the alter-
native, Respondent withdrew recognition. I find that Respond-
ent failed and refused to bargain with the Union, the bargaining
unit’s certified representative, when it had an obligation to do so,
which the Board has termed a withdrawal of recognition.
2. Applicable law
Once a bargaining unit is certified, an employer is required to
negotiate with the exclusive bargaining representative before
making changes to wages, hours and terms and conditions of em-
ployment. NLRB v. Advertisers Mfg. Co., 823 F.2d 1086, 1090
(7th Cir. 1987). This requirement “is intended to prevent the
employer from undermining the union by taking steps which
suggest to the workers that it is powerless to protect them.” Id.
Because the Union was properly certified as the unit representa-
tive, Respondent was required by law to engage in good faith
negotiations with the Union until a court otherwise determined.
See Thesis Painting, Inc., 365 NLRB No. 142, slip op. at 1 and
footnotes therein (2017) (unfair labor practices occurred and lit-
igated while test of certification case pending before the court of
appeals). For years the Board has held that good-faith bargaining
“presupposes a desire to reach ultimate agreement to enter into a
collective bargaining agreement . . . .’” Vanderbilt Products,
Inc., 129 NLRB 1323, 1330 (1961), citing NLRB v. Insurance
Agent’s Int’l. Union, 361 U.S. 477 (1960).
The alternative to proceeding with good faith bargaining is the
employer engaging in a test of certification (sometimes called a
technical refusal to bargain). To test the certification, an em-
ployer does not recognize the union after its certification and
failure to do so waives the employer’s rights to obtain a review
of the certification:
. . . If the union files unfair labor practices charges for refusal
to bargain, under Section 8(a)(5) of the Action, the employer
may then raise the issue of the propriety of the unit as an af-
firmative defense to the charges. An employer then obtains ju-
dicial review of a certification determination via a review of the
unfair labor practice charges, under Section 10(e) or certifica-
tion determination. [cites omitted]
An employer who fails to follow this procedural course
waives the right to contest certification. That is, in order to
challenger the propriety of a certification, an employer must re-
fuse to recognize a union immediately after the collective bar-
gaining unit has been certified and the union has been elected
as the representative for the bargaining unit. Once an employer
honors a certification and recognizes a union by entering into
negotiations with it, the employer has waived the objection that
the certification is invalid. King Radio Corp. v. NLRB, 398
F.2d 14, 20 (10th Cir. 1968); NLRB v. Blades Mfg. Corp., 344
F.2d 998, 1005 (8th Cir. 1965).
QUEEN OF THE VALLEY MEDICAL CENTER 29
Technicolor Government Services, Inc. v. NLRB, 739 F.2d 323,
326–327 (8th Cir. 1984), enfg. 268 NLRB 258 (1983). Despite
Respondent’s contention that these principles are novel, these are
long-held principles and they continue to apply. See, e.g.,
Schwarz Partners Packaging, LLC d/b/a MaxPak, 362 NLRB
1131 (2015); Fallbrook Hospital, 360 NLRB 644 fn. 2 (2014),
enfd. 785 F.3d 729 (D.C. Cir. 2015).
3. The Union requested bargaining and did not limit its
requests to a CBA
a. What constitutes a request for bargaining and its relation-
ship to recognition
A request for bargaining subsumes a request for recognition.
A request for information also constitutes a request for bargain-
ing, as does a letter requesting to set dates for negotiations. A
letter requesting dates for negotiations also indicates a desire to
negotiate. Eldorado, Inc., 335 NLRB 952, 954 (2001); Biewer
Wisconsin Sawmill, Inc., 306 NLRB 732, 733 fn. 4 (1992);
Money Radio, 297 NLRB 705 (1990). Also see Washington
Beef, Inc., 322 NLRB 398 fn. 1 (1996) (information request sub-
sumes request for recognition). Unfair labor practice charges al-
leging an unlawful refusal to recognize and bargain also reaffirm
any previous requests to recognize and bargain. Id.
A request to bargain does not have to be in any specific form
as long as the communication’s meaning is clear that the request
is to negotiate and bargain over wages, hours and terms and con-
ditions of employment. Midwest Terminals of Toledo Int’l., Inc.,
365 NLRB No. 158, slip op. at 2 (2017); Eldorado, Inc., 335
NLRB at 954. A union carries the burden to make its wish
known with specificity. A lack of specificity would mean a fail-
ure to state topics for discussion or when or where the union
would want the discussions to take place. Prime Service, Inc. v.
NLRB, 266 F.3d 1233, 1238 (D.C. Cir. 2001).
The employer must understand that a demand to bargain is
made. Midwest Terminals, 365 NLRB No. 158, slip op. at 2. If
not specific as a demand to bargain, a request that reflects “‘in-
dicia of a demand, such as a suggested meeting place and time,
proposed topics and a method for reply” would indicate a de-
mand to bargain. Williams Enter., Inc. v. NLRB, 956 F.2d 1226,
1233 (D.C. Cir. 1992).
b. Respondent recognizes and bargains after the Union made
legally valid requests
Despite Respondent’s contention that the events before March
1, 2017 are irrelevant, long-held principals of labor law, the facts
and Technicolor, supra, dictate a different conclusion. Respond-
ent contends that the only relevant period is the period after the
Board rejected its request for review. That period would begin
on March 1, 2017. Because long-standing precedent dictates that
Respondent’s bargaining obligation attached when the Union
won the election and was certified, the suggested March 1 date
is arbitrary. Instead I rely upon the course of events to dictate
appropriate findings. The facts demonstrate that between the
election and March 1, the Union began bargaining with Re-
spondent over such issues as scheduling employees in specific

44 During cross-examination, Candella’s charming demeanor, on dis-
play during direct examination, evaporated. He and Respondent counsel
claimed the cross-examination was abusive, when, in fact, his conduct
departments, effects of layoffs, and the effects of the kitchen clo-
sure. The Union also made information requests about these top-
ics, disciplinary actions, and in preparation for negotiating the
collective-bargaining agreement.
The Union’s requests had no vagueness when demanding to
bargain, whether over issues in a specific department or its de-
mand to bargain its initial collective-bargaining agreement with
its concurrent information request. The Union’s requests to bar-
gain from the specific departmental issues usually included a
cease and desist over specific topics and requested meetings.
Poulson provided available meeting times, either in the initial
demand to bargain or the followup emails. Respondent an-
swered the Union’s requests for meetings. It also met and nego-
tiated with the Union on a number of issues, as demonstrated
above. The course of events here leaves no question that the Un-
ion repeatedly asked to bargain over different issues and listed
times of availability for meetings. The Union’s demands to bar-
gain included cease-and-desist language, requests to bargaining
over reassignments, schedule changes and effects bargaining re-
garding the kitchen construction.
I cannot rely upon Respondent’s witnesses’ claims that Re-
spondent never recognized or negotiated with the Union. The
standard of evidence in a Section 8(a)(5) allegation is objective.
Respondent infers the matter has a component of subjective evi-
dence, claiming it is part of its “totality of circumstances.” I al-
lowed Respondent to enter the evidence as relevant to its de-
fense, but find the testimonies of subjective intent undercut the
witnesses’ credibility and ultimately Respondent’s claims that
no bargaining ever took place. In examining testimony from
Candella, Kriegel and Schelling that Respondent never “negoti-
ated” with the Union, the testimony is in direct conflict with the
contemporaneous documentary evidence. Candella testified that
from November 2016 through the end of February 2017, Re-
spondent’s decision was not to bargain for a collective-bargain-
ing agreement. (Tr. 1461, 1463, 1468). Candella reasoned Re-
spondent made no preparations to negotiate a collective bargain-
ing agreement was because Respondent did not accept the elec-
tion results and therefore did not recognize the Union. (Tr.
1467).44 HR Director Schelling agreed that Respondent did not
establish a bargaining committee to deal with the Union. Not-
withstanding these opinions and subjective self-serving hind-
sight, the cumulative contemporaneous documentary infor-
mation is the best evidence. Respondent’s actions demonstrate
that it understood that the Union demanded to bargain on a num-
ber of occasions. The kitchen construction process not only
demonstrates the Union’s specificity, but also demonstrates Re-
spondent bargained without reserve over the topic. Respondent
met with the Union and, in February 2017, signed an agreement
with the Union about the kitchen renovations. The documents
exchanged during this process are labeled proposal and counter-
proposals. Respondent never conditioned discussions with the
certified bargaining agent, nor did it condition the ultimate
kitchen agreement upon the outcome of the representation case.
The course of events and the contemporaneous documents,
seemed contrived and preplanned. Respondent tried the same thing when
EVS Director Herring was recalled, and Herring found no offense.
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
including the kitchen red-line version submitted by Candella and
the ultimate signed agreement in the kitchen, EVS and SPD dis-
cussions demonstrate Respondent bargained with the Union. In
January 2017, Interim CEO Coomes’ letter to employees, before
the Board’s ruling, stated Respondent would bargain in good
faith with the Union during its appeal to the Board. It said noth-
ing about a test of certification.
Regarding the kitchen agreement, Respondent contends that
only Candella was authorized to make agreements with the Un-
ion. Before the hearing, no one raised with the Union that the
kitchen construction agreement was invalid because Candella
was not at the final negotiation session. None of this was evident
in the contemporaneous documentation and no one testified that
it was raised during the discussions about kitchen construction.
In addition, Schelling consulted with Candella. Schelling could
not recall Respondent’s representatives raising the Union’s cer-
tification during the kitchen discussions.
Respondent understood the Union intended to bargain over a
complete collective-bargaining agreement: On February 10,
2017, HR Director Schelling responded to Martin and included
specific language that answering the information request for “up-
coming negotiations for an initial collective bargaining agree-
ment covering employees represented by the [Union].” Re-
spondent then included some of the responsive documents. (Jt.
Exh. 22). These responses, including the provision of at least
some of the requested information through March 1, recognizes
the Union as the certified bargaining agent of the bargaining unit.
Although Candella never provided “all the information” to Mar-
tin, he did provide some. Schelling’s correspondence admits that
the information was to be used in negotiations for a collective-
bargaining agreement, also demonstrating Respondent’s under-
standing that the information was a request to recognize and bar-
gain.
The documents also demonstrate Respondent planned to pro-
vide information for negotiating a collective bargaining agree-
ment and indeed provided some of that information.45 Respond-
ent, in some cases, met its lawful requirements by meeting and

45 Respondent’s brief contends that, because it only provided some of
the information, it had not recognized or bargained with the Union. This
statement instead turns into more of an admission that it indeed gave
some information but failed to give the remainder.
46 Respondent contends the facts leading up to Respondent’s denial
of Mini-Bera’s right to representation cannot be used to prove its failure
to bargain because the consolidated complaint did not specifically allege
it. Respondent therefore claims a lack of due process. (R. Br. at 72, fn.
15). The facts only show recognition of the Union’s position as the cer-
tified bargaining agent and the requirement to allow union representa-
tion, rather than bargaining itself. Respondent’s claim of lack of due
process also is not supported. Two initial charges, 20–CA–196271 filed
April 3, 2017, and 20–CA–197403 filed April 21, 2017, allege Respond-
ent’s withdrawal of recognition and failure to bargain. (GC Exhs 1(j)
and (p)). The consolidated complaint alleges the refusal to allow repre-
sentation during an investigatory meeting as a violation of Section
8(a)(1). The Second Amendment to the Consolidated Complaint alleges
that Respondent withdrew recognition on March 24, 2017 and in the al-
ternative, refused to recognize and bargain after the same date. (GC Exh.
1(y)). The Second Amendment to the Consolidated Complaint suffi-
ciently described Respondent’s failure to recognize the Union. Respond-
ent’s answer to the Second Amendment denies that the allegations are
discussing matters with the Union, such as the effects bargaining
in kitchen construction agreement, which Respondent signed
without condition. Until Garrison’s letter of March 16, 2017,
none of these events were conditioned upon the results of Re-
spondent’s request for review to the Board, much less a test of
certification.
Respondent’s failure to allow Mini-Bera union representation
after agreeing to permit it supports a finding that Respondent rec-
ognized the Union and then withdrew recognition. Respondent
previously cited IBM for the proposition that non-represented
employees are not entitled to Weingarten representation in in-
vestigatory meeting. These events primarily occurred after
March 1, 2017, the date Respondent’s brief sets as the beginning
of the relevant period of refusing to bargain. Its initial acquies-
cence to the Union’s demand to allow a union representation to
Mini-Bera in the laboratory during an investigatory interview
and its withdrawal of its agreement to allow representation is ev-
idence of its refusal to recognize the Union after March 24.46
This finding is bolstered by the Lab Director Romero’s admis-
sion that she did not know until after the March 24 meeting that
she could not continue as planned with the investigatory inter-
view. Ultimately HR Director Schelling is the person who in-
formed the Union that it could not participate in Mini-Bera’s in-
vestigatory interview. As admitted supervisors and agents,
Schelling, the laboratory director and the laboratory supervisor
bound Respondent with their actions. These events demonstrate
that Respondent was recognizing the Union, and then stopped.
Garrison’s March 16 letter, laying out Respondent’s plan to
seek a test of certification, occurred in mid-March 2017, after
much of the bargaining over the issues other than the actual full
collective bargaining agreement, occurred. Respondent’s attor-
ney made clear it will seek a test of certification and mentions
nothing of the past meetings and agreements
Respondent also claims that the negotiation process never
started between the parties because of Martin’s March 1 email to
Candella, requesting negotiations for an “initial bargaining ses-
sion.” However, the documents, and those that following, reflect
sufficiently described, but again maintains it did not recognize the Union.
Respondent maintains its refusal to allow Mini-Bera representation was
because it did not recognize the Union. This answer implies that Re-
spondent was aware that the facts when related to recognition. The la-
boratory director admitted that the basis for inviting Poulson to the meet-
ing was to allow an employee to have union representation, as requested.
By late March 2017, Respondent then contended it was not recognizing
the Union. Much of the evidence regarding Mini-Bera’s status was sub-
mitted by joint exhibit and was litigated thoroughly at hearing. Mini-
Bera and her supervisor testified early in the proceedings, which had
breaks between weeks of the hearing, so Respondent had opportunity to
call additional witnesses if it so desired. The matter was fully litigated
at hearing and Respondent had sufficient notice of the facts, which relate
to the allegations that Respondent no longer recognized the Union after
March 24, 2017. Fremont Medical Center, 347 NLRB at 1900 (closely
related to other allegations). Also see Tasty Baking Co. v. NLRB, 254
F.3d 114, 122 (D.C. Cir. 2001), enfg. 330 NLRB 560 (2000) (no due
process violation as employer had sufficient opportunity to cross-exam-
ine witnesses and put on its own case to rebut the allegations); Davis
Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1169 (D.C. Cir. 1993). How-
ever, even if this set of events regarding Respondent’s withdrawal of
recognition is ignored, my decision would not change.
QUEEN OF THE VALLEY MEDICAL CENTER 31
that Martin sought to begin negotiation of the collective-bargain-
ing agreement only, and did not refer to those any of the negoti-
ations Poulson, as the “on the ground” Union representative,
conducted. (R. Br. at 45–46). Respondent also cited Poulson’s
March 7, 2017 Google Group message that the Union sent man-
agement some dates to begin the bargaining process. (R. Br. at
16, citing R. Exh. 54). However, looking at the dates requested
for bargaining, the dates refer to those requested for bargaining
the collective bargaining agreement. When taken in context of
the course of communications, Respondent’s cite misinterprets
the events. Beyond the specific requests to bargain, the Union
made several information requests, among which was Martin’s
specific request for information for negotiation of a collective-
bargaining agreement and to which Respondent provided some
information.
Likewise, Respondent argues that a March 2 meeting with
SPD employees and Kriegel does not demonstrate bargaining.
Respondent claims, had it been bargaining, “[Respondent]
would have insisted that Dan Martin—the NUHW’s lead nego-
tiator—be present when negotiating changes with the employ-
ees.” (R. Br. 45–46). Respondent’s statement is troublesome on
two levels. First, the statement is purely speculative. Respondent
never raised Poulson’s authority to bind the Union, either during
negotiations or during the hearing. Embossing Printers, 268
NLRB 710, 721 (1984), enfd. 742 F.2d 1456 (6th Cir. 1984).47
Respondent had no problem previously negotiating and signing
an agreement with Poulson, who negotiated the kitchen closure
agreement as the Union representative and bound the Union with
her signature. It never raised Poulson’s status while discussing
any of the other mandatory subjects, such as Frogge’s shift as-
signment or the two laid off employees. Secondly, this statement
demonstrates a misunderstanding of an employer’s authority to
select the Union’s representative in bargaining. It is well estab-
lished that an employer must recognize the agents of the employ-
ees’ collective-bargaining representation. The union’s selection
of bargaining representatives is the union’s internal affair, absent
any special circumstances. Postal Service, 280 NLRB 685, 690
(1986), enfd. 841 F.2d 141 (6th Cir. 1988); Harley Davidson
Motor Co., 214 NLRB 433 (1974). Also see: People Care, Inc.,
327 NLRB 814, 824–825 (1999) (employer refusing to meet
with union attorney unlawful as no special circumstances, such
as obstructionist conduct, shown); Caribe Staple Co., Inc., 313
NLRB 877, 889–890 (1994). Failure to meet with the union’s
agents robs employees to select the representatives of their own
choosing. Postal Service, 280 NLRB at 690. An employer can-
not insist to impasse on the composition of the union’s bargain-
ing representative as it is a nonmandatory subject. Latrobe Steel
Co., 244 NLRB 528, 532 (1979). Respondent raises no evidence
of any special circumstances that would warrant Martin’s pres-
ence rather than David or Poulson, who left the employees’
meeting with Kriegel. The meeting on March 2 continued as
David took the lead and Respondent points to no evidence that it
questioned David’s authority to continue. As such, Respondent

47 The alternative is that Respondent admits it had no desire to reach
agreements regarding matters of wages, hours and terms and conditions
of employment, contrary to the requirement of good-faith bargaining in
Vanderbilt Products, supra. Its actions and contention that the Union did
has no basis to determine who represents the Union in negotia-
tions and has no evidence to support its contention.
An unfair labor practice charge about bargaining subsumes a
request for recognition. Therefore, Respondent’s claim that it
met with the Union and provided information strictly to resolve
unfair labor practice charges does not support a finding that Re-
spondent was not recognizing and bargaining with the Union.
Respondent then admits it acted upon the unfair labor practice
charge, which means it recognized the Union’s authority to re-
solve an unfair labor practice charge and the issues underlying
that charge. Candella testified that he agreed to meet with the
Union to avoid a possible unfair labor practice charge or picket-
ing during the kitchen construction project. When Respondent
agreed to meet with Poulson regarding Frogge’s change in work
assignment, it had limited knowledge of the unfair labor practice
charge until the meeting: Poulson then presented the charge to
Respondent’s representatives. Poulson apparently did not file a
charge about the elimination of the two positions and the layoff
of the two affected employees, yet Respondent met over those
after Candella notified Poulson and offered a date for meeting.
Later, Candella asked for a quick answer to Respondent’s rejec-
tion of the Union’s counterproposal. The underlying matter re-
mained Frogge’s assignment. Despite being an unfair labor
practice charge, Poulson and Respondent were negotiating over
a mandatory subject of bargaining: Frogge’s work assignment,
which could affect the work assignments of other bargaining unit
employees within the EVS department. Candella stated he met
with the Union over effects bargaining in the kitchen to avoid
picketing. Again, the pattern shows Respondent met and bar-
gained over the mandatory subjects of employee layoffs, shifts
and duties.
Respondent also contends it had not recognized the Union be-
cause Candella was attempting to resolve unfair labor practice
(ULP) charges by providing some information to the Union. The
information requests and subsequent responses also show the
Union demanded to bargain and Respondent recognized and bar-
gained with the Union in kind. The attempts to resolve the unfair
labor practices show recognition and bargaining, not the other
way around. See Washington Beef, supra.
Respondent also maintains that the Union’s entire campaign
to get recognition, which continued after Respondent issued its
March 16 letter, is an admission that Respondent never recog-
nized the Union. The Union’s corporate campaign, like many
others, was not novel and Respondent shows nothing that would
make the campaign unprotected. Prime Health Service, LLC
d/b/a Encino Hospital Medical Center, 364 NLRB No. 128, slip
op. at 17 (2016). I find that the Union’s efforts are part of its
campaign to obtain compliance with bargaining and look to some
of Respondent’s examples. First, Respondent cites the Union’s
December 16, 2016 letter sent to the Board of Trustees, stating
that Respondent’s objections were delaying the certification of
the union. (R. Br. at 16, citing R. Exhs. 53 and 59). However,
the Union’s statement is accurate: During the time the Regional
not represent a majority of the bargaining unit employees then infer that
Respondent was bargaining with a minority union, which is unlawful un-
der Sec. 8(a)(2) of the Act. NLRB v. Albany Steel, Inc., 17 F.3d 564, 568
(2d Cir. 1994).
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Director considered Respondent’s objections to the election, no
certification would issue. Only after the Regional Director de-
nied the objections did the certification of representative issue.
Therefore, the Union’s statement, that Respondent’s objections
delayed certification, is true. See generally Board Rule Section
102.69. Many of the Union’s post-March 16 documents call for
Respondent to recognize the Union and bargain in good faith.
(R. Br. 10–17.) To say that these statements show Respondent
never recognized or bargain with the Union is a fallacy. Any
statements the Union made after March 16, 2017 that Respond-
ent was not recognizing or bargaining are accurate.
Respondent cites a few cases to contend that it was privileged
to bargain to a certain extent while continuing to challenge the
election and certification. Respondent states:
In Fred’s, a technical refusal to bargain case, the employer at-
tempted to defend itself by arguing that while its appeal was
pending, it simultaneously bargained in good faith with the un-
ion and reached an agreement. 343 NLRB at 138. The Board
found that the employer unlawfully refused to bargain because
it continued to contest the validity of the certification in its an-
swer to the complaint, communicated its intention to test the
union’s certification and had not disavowed this intention de-
spite its willingness to engage in negotiations. The Board’s
reasoning is straightforward and obvious: “an employer ‘may
negotiate with or challenge the certification of the Union; it
may not do both at once.’” Id. at 138 (quoting Terrace Gardens
Plaza, 91 F.3d at 225).
Respondent’s analysis of Fred’s includes a factual statement
that the employer attempted to defend itself by arguing that while
its appeal was pending, it simultaneously bargained in good faith
and reached an agreement. (R. Br. at 34–35, citing Fred’s, supra,
at 138.) Further delving into the facts, however, the union there
requested bargaining in November 2003; apparently the em-
ployer initially refused to bargain, then finally commenced bar-
gaining, leaving a period in which the employer did not bargain.
The period of refusing to bargain violated Section 8(a)(5). Alt-
hough Respondent here maintained its intent to pursue a test of
certification, it did not refrain from bargaining with the Union
about issues that were related to wages, hours and terms and con-
ditions of employment, reached agreements, and provided some
information to prepare for contract negotiations. Fred’s, 343
NLRB at 138.
Fred’s relies upon a few cases. In one of those cases, Over-
land Trans. System, Inc., 323 NLRB 491 (1997), enfd. 187 F.3d
637 (6th Cir. 1999), another case of a test of certification, the
underlying issue in the representation cases involved whether the
two employers were a single employer. After certification, an
attorney for one of the entities bound both entities when he of-
fered dates to bargain. Overland itself never offered to bargain
and the parties never entered into negotiations. 187 F.3d 637.
The facts from Overland are significantly different than those
here, where Respondent agreed to bargain in good faith despite
its desire to challenge the certification. As noted in Fred’s, su-
pra, citing Terrace Gardens Plaza, Respondent cannot do both.
Another case Respondent cites is GKN Sinter Metals Inc., 343
NLRB 315 (2004) (summary judgment). The employer there
contended that no further action was needed on summary
judgment because it now recognized the union and was willing
to negotiate. It too cites the same principle from Terrace Gar-
dens Plaza. The Board noted that the employer never disavowed
its quest to test the union’s certification and could not have good
faith negotiations under those circumstances. Id. Again, appar-
ently the employer had not yet engaged in any negotiations de-
spite its offer. Similarly here, Respondent has never disavowed
its March statements that it seeks a test of certification and, un-
like the cases, Respondent never entered into any good faith ne-
gotiations for the collective-bargaining agreement. Neither
Fred’s nor GKN reached a Federal court of appeals for the rest
of the test of certification.
Respondent also misplaces reliance upon Desert Toyota, 346
NLRB 99, 105 (2005) (Desert Toyota III). The Board relied
upon a prior finding in a case issued the same day that the em-
ployer did not have an obligation to bargain. Desert Toyota, 346
NLRB 132 (2005) (Desert Toyota II). Desert Toyota III was
based upon the Board’s decision in Desert Toyota II, in which
the Board dismissed the 8(a)(5) and (1) allegations because the
employer had no obligation to bargain. Respondent cites to the
administrative law judge’s decision, which was reversed by the
Board and therefore nonprecedential. In addition, the Board in
the present case has already ruled that the bargaining unit was
properly certified. Respondent therefore has a bargaining obliga-
tion that was not present in Desert Toyota III.
4. Respondent did not follow the required procedures to obtain
a test of certification
Based upon Technicolor, supra, in order to obtain a test of cer-
tification, Respondent was supposed to refuse to meet and bar-
gain immediately (emphasis added). Instead Respondent did the
converse of what it is required to obtain a test of certification.
Respondent not only stated its willingness to negotiate—Re-
spondent actually negotiated with the Union within the period
immediately after the election and certification of representative.
The discussions started with attempting to meet regarding
Frogge, which Poulson initiated the day before the vote count,
and the parties emailed about dates in December 2016. Regard-
ing the kitchen changes and the layoff of two employees, Re-
spondent appropriately notified the Union and held bargaining
discussions. At almost 3 months after the Union was certified as
the bargaining agent, Respondent then demanded the Union to
allow it to pursue the test of certification. Respondent has
waived its right to obtain a test of certification by failing to refuse
immediately to meet and bargain. It further violated Section
8(a)(5) by refusing to meet and negotiate after the March 16 let-
ter. Respondent’s failure to bargain after March 16 constitutes an
unlawful refusal to bargain. Technicolor, supra. This unlawful
refusal to bargain continues to present.
Respondent contends it never waived its right to a test of cer-
tification because any waiver must be clear and unmistakable.
Respondent’s contention is directly contradicted by stated long-
standing law: An employer waives its rights to invalidate the
election and certification when it “honors a certification and rec-
ognizes and begins bargaining with the certified representative.”
King Radio Corp. v. NLRB, 398 F.2d 14, 20 (1968). As de-
scribed above, Respondent consistently acted with its
QUEEN OF THE VALLEY MEDICAL CENTER 33
commitment to enter into negotiations and recognized the certi-
fied bargaining agent of the bargaining unit.
Respondent’s waiver argument misplaces reliance upon
United Steelworkers v. NLRB, 536 F.2d 550, 555 (3d Cir. 1976)
and Terracon, Inc., 339 NLRB 221, 223 (2003), affd. sub nom.
Operating Engineers, Local 150 v. NLRB, 361 F.3d 395 (7th Cir.
2004). First, Steelworkers, 536 F.2d at 555, states the general
principle that the waiver of a statutory right must be clear and
unmistakable. True, but Steelworkers occurred in interpretation
of contractual rights in the collective-bargaining agreement of an
already recognized bargaining unit.48 In Terracon, supra, no
election was held; the matter related to the employer’s review of
union cards and whether the employer made a commitment to
bargain in a single conversation. Terracon, supra, however,
states that an employer’s statements or conduct can show a
“commitment to enter into negotiations with the union [may con-
stitute] an implicit recognition of the union. [cites omitted]” Id.
Respondent’s conduct shows more than an implicit recognition
of and bargaining with the Union. Therefore, these cases provide
no guidance regarding Respondent’s denial that it waived it
rights to a test of certification.
By requiring the Union to allow Respondent to seek a test of
certification or face a situation in which Respondent would not
bargain, Respondent “implicitly threaten[ed]” the Union. Ter-
race Gardens Plaza v. NLRB, 91 F.3d 222, 226 (D.C. Cir. 1996).
By March 16, 2017, the date of Garrison’s letter, Respondent had
engaged in negotiations with the Union and reached agreements
on issues. It then again asked the Union to acquiesce to a test of
certification; it stated it would bargain during the time of the test
of certification. According to the letter, any agreements reached
would be held in abeyance pending a circuit court’s determina-
tion. Respondent’s statement, then, is a request for conditional
bargaining, which is a permissive subject of bargaining. Profes-
sional Transportation, Inc., 362 NLRB 534 (2015). The Union
declined to agree with Respondent’s demand to seek the test of
certification. Respondent then stopped all discussions and nego-
tiations with the Union. Respondent’s continued refusal to rec-
ognize and bargain with the Union violates Section 8(a)(5). Wil-
liams Energy Co., 218 NLRB 1080 fn. 4 (1975) (any further un-
ion requests to employer for bargaining are futile and unneces-
sary). Similar events are considered a withdrawal of recognition,
and I so find here. Schwarz Partners, 362 NLRB 1131, 1132–
1133, citing Technicolor, supra.
D. Respondent Also Made Unlawful Unilateral Changes
1. Applicable law
Section 8(a)(5) and Section 8(d) define the duty to bargain
collectively, which requires an employer “to meet . . . and confer
in good faith with respect to wages, hours, and other terms and
conditions of employment.” NLRB v. Katz, 369 U.S. 736, 742–
743 (1962). A violation of Section 8(a)(5) does not require a
finding of bad faith. Id. at 743 and 747. A unilateral change acts
no differently than a “flat refusal” to bargain by skipping out on
a union’s input when the union has so requested to do so. Id. at

48 On remand, the Board found the employer violated Section 8(a)(5)
by adjusting grievances without providing the union the chance to be
present. Dow Chemical Co., 227 NLRB 1005 (1977).
743. An unlawful unilateral change “frustrates the objectives of
Section 8(a)(5),” because such a change “‘minimizes the influ-
ence of organized bargaining’ and emphasizes to the employees
‘that there is no necessity for a collective bargaining agent.’”
Pleasantview Nursing Home v. NLRB, 351 F.3d 747, 755 (6th
Cir. 2003) (quoting Katz, supra at 744, and Loral Defense Sys-
tems-Akron v. NLRB, 200 F.3d 436, 449 (6th Cir. 1999)); Mercy
Hospital of Buffalo, 311 NLRB 869, 873 (1993). Katz occurred
in a newly certified unit, just as in the situation at hand.
Once the Union won the election, Respondent was required to
refrain from unilateral changes in wages, hours and working con-
ditions unless it notified and bargained to impasse with the Un-
ion. Northwest Graphics, 342 NLRB 1288, 1297 (2004), citing
Mitchellace, Inc., 321 NLRB 191 (1996) and LoveJoy Industries,
309 NLRB 1085 (1992). The only exceptions to this rule are
limited to two: When the union attempts to delay bargaining;
and, economic exigencies requiring prompt action. RBE Enter-
prises of S.D., Inc., 320 NLRB 80, 81, (1995). The economic
exigencies do not extend to loss of accounts or contracts, operat-
ing at a competitive disadvantage or supply shortages. Id. In-
stead, the economic exigency occurs due to an unforeseen event
that has a major economic effect and therefore requires the em-
ployer to engage in “immediate action.” Id. 81–82 (cites omit-
ted). If such exigencies occur and are not of the sort that relieve
the employer of its bargaining obligations, the employer still
must give the union notice and an opportunity to bargain. Id. at
82.
Any unilateral changes Respondent made between the time of
the election and time of certification are unlawful.49 Respond-
ent’s brief states that the Union and Respondent did not hold
meetings for at least of 90 percent of the employees and “most
of the departments forged ahead with changing the terms and
conditions of their employees’ employment without first con-
tacting the Union.” (R. Br. at 49 fn. 8). Because the Union was
ultimately certified, Respondent was not privileged to make such
unilateral changes. Toyota of Berkeley, 306 NLRB 893, 894
(1992), citing Mike O’Connor Chevrolet, 209 NLRB 701 (1974),
enf. denied on other grounds 512 F.2d 684 (8th Cir. 1975).
2. Respondent made unlawful unilateral changes in EVS in re-
sponse to the kitchen construction project
The Board may find an unalleged violation “if the issue is
closely connected to the subject matter of the complaint and has
been fully litigated.” Pergament United Sales, 296 NLRB 333,
334 (1989), enfd. 920 F.2d 130 (2d 1990). “This rule has . . .
particular force where the finding of a violation is established by
the testimonial admissions of the Respondent’s own witnesses.”
Id.
EVS Director Herring, Respondent’s witness, admitted he
made changes to schedules and duties of the EVS employees
without notifying or bargaining with the Union. The changes are
closely related to the events related to the kitchen. Respondent’s
brief admits it made changes without notification to the Union
other than this one.50 It just so happened that Herring testified to
50 Respondent’s brief states that Respondent made a number of
changes before its January 16, 2017 notification to the Union. One of
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this one. Respondent had an obligation to keep the status quo
unless it notified and, upon request, bargained with the Union to
a lawful impasse. Bottom Line Enterprises, 302 NLRB 373, 374
(1991), enfd. mem. 15 F.3d 1087 (9th Cir. 1994). This admission
constitutes an unlawful unilateral change.
3. The unilateral changes Respondent made after the Union did
not agree to Respondent’s demand for a test of certification
a. The kitchen construction agreement and the
effects bargaining
The parties’ February 2017 agreement regarding effects bar-
gaining over the kitchen construction project covered a number
of issues, including temporary layoffs, changes in work duties,
and changes in shifts. All of these, as negotiated, were manda-
tory subjects of bargaining. As noted above, the parties indeed
negotiated and signed an agreement in February 2017. Then, in
April 2017, after Respondent’s March 16 letter, Respondent de-
termined it had not negotiated an agreement in the signed docu-
ment and it had no obligation to notify the Union of intended
further changes, much less meet and bargain. Respondent again
relies upon the test of certification argument as above. This
change shows a shift in Respondent’s position, after Respond-
ent’s March 1 timeline. It again serves as evidence of Respond-
ent’s refusal to meet and bargain with the Union. I find that Re-
spondent violated Section 8(a)(5) when it unilaterally notified
the Union that it would not abide by the negotiated and signed
agreement.
b. Union access to meeting rooms
Respondent also violated Section 8(a)(5) of the Act by no
longer permitting the Union to utilize meeting rooms for meet-
ings. HR Manager Schelling had permitted the Union to utilize
its facilities until Respondent no longer recognized or bargained
with the Union. Access was granted and access was taken away.
The meeting rooms that Schelling assigned did not interfere with
production or patient care, and Respondent provided no evidence
otherwise. Further, Poulson testified without contradiction that
managers told her that she should not be in the building.51
General Counsel argues that Respondent’s actions here are
material and substantial by limiting the Union’s access to bar-
gaining unit employees. I agree. “An incumbent union’s access
to unit employees for purposes of representation ‘is a mandatory
subject of bargaining.’ Unbelievable, Inc., 323 NLRB at 817
(1997), enfd. in part, 118 F.3d 795 (D.C. Cir. 1997).” North Me-
morial Health Care v. NLRB, 860 F.3d 639, 648–649 (8th Cir.
2017), enfg. in relevant part 364 NLRB No. 61 (2016). This ac-
tion constitutes a fait accompli,52 as Respondent never notified
or met and bargained with the Union, the certified representative,
before it implemented the change on a mandatory subject of bar-
gaining. Respondent violated Section 8(a)(5) by unlawfully and
unilaterally deciding not to allow the Union to schedule meeting
rooms for access to bargaining unit employees.

the examples at hearing was changing schedules of 6 bargaining unit em-
ployees. (R. Br. at 48, citing Tr. 1867–1868.) Given the requirement of
notification and bargaining upon request with the Union postelection,
Respondent’s example is akin to another admission against interest.
c. SPD employee schedules
The Act requires an employer to refrain from imposing new
and different working conditions on the bargaining unit employ-
ees without giving the Board-certified representative notice and
opportunity to bargain over any decision that could affect the
employees’ working conditions. See generally Indiana Hospi-
tal, 315 NLRB 647, 661 (1994). Changes in employee work
shifts are mandatory subjects of bargaining. Meat Cutters Local
1289 v. Jewel Tea Co., 381 U.S. 676, 691 (1995); United Cere-
bral Palsy of New York City, 347 NLRB 603, 607 (2006).
Changes in shift starting times or ending times are material, sub-
stantial and significant changes to terms and condition of em-
ployment. Mitchellace, Inc., 321 NLRB 191, 195 (1996).
Respondent, through Schelling, notified the Union of
McNelis’s schedule change after it already notified McNelis.
Despite attempts to discuss the matter, Kriegel rebuffed Poul-
son’s efforts, including her request for information that would
show how the shift changes were necessary. Respondent then
made the unlawful changes to scheduling without further discus-
sions with the Union, after Respondent decided that it was not
recognizing the Union.
As previously noted, Respondent cannot rely upon its defense
that it never recognized the Union. Respondent does not main-
tain that it bargained to impasse regarding the scheduling. I
agree with General Counsel that, after considering about these
changes for at least a year, Respondent implemented them with-
out completing any bargaining with the Union. Kriegel’s expla-
nation of workload as the reason for change is faulty in two re-
spects: First, she failed to provide the information to demon-
strate to the Union about the workload affecting the schedules,
which precludes any finding of impasse; and secondly, no exi-
gency could have existed if Respondent had been considering
these changes for a year. See RBE, supra; Thesis Painting, Inc.,
365 NLRB No. 142, slip op. at 1 (2017); Quality Health Services
of P.R., Inc. v. NLRB, 873 F.3d 375, 387–388 (1st Cir. 2017),
enfg. 363 NLRB No. 164 (2016). The schedule changes altered
the status quo and Respondent had an obligation to bargain with
the Union upon request.
E. Conclusion Regarding the Bargaining Allegations
Respondent acceded to the Union’s requests to meet and bar-
gain over several issues and to provide at least some information.
Prime among the negotiations was the parties’ agreement regard-
ing effects bargaining on the kitchen construction project, which
Respondent unlawfully denied and refuses to abide by in April
2017. It permitted the Union to use conference rooms and then
no longer granted the Union permission to do so, which also was
a mandatory subject of bargaining. These issues were mandatory
subjects of bargaining, such as work schedules, layoffs and du-
ties. It also acted as if it intended to proceed with the collective-
bargaining contract negotiations, at least until the Union would
not agree to its terms for a test of certification. By providing
51 Respondent contends that no evidence is on record that it no longer
permitted the Union to schedule meeting rooms.
52 The definition of fait accompli is that Respondent has already made
up its mind what it intends to do. See Comau, Inc., 364 NLRB No. 48,
slip op. at 3 fn. 11 (2016).
QUEEN OF THE VALLEY MEDICAL CENTER 35
information, Respondent recognized the Union as the exclusive
bargaining agent. In none of these situations does Respondent
raise the issue of emergencies requiring immediate action per
RBE, supra. The entire course of conduct demonstrates that Re-
spondent violated Section 8(a)(5) by failing to provide infor-
mation, making unilateral changes, and withdrawing recogni-
tion.
In addition to these 8(a)(5) violations, General Counsel al-
leges violations of Section 8(a)(3).
IV. SECTION 8(A)(3) ALLEGATIONS REGARDING EMPLOYEES IN
ENVIRONMENTAL SERVICES DEPARTMENT AND STERILE
PROCESSING DEPARTMENT
General Counsel alleges two changes to schedules in EVS:
Miguel Arroyo and Renee Frogge. For the Sterile Processing
Department, the change to everyone’s schedule is alleged as well
as for McNelis. I first discuss applicable law under Wright Line,
then discuss Arroyo, Frogge, and the SPD department.
A. Applicable Law
In the situations alleged, General Counsel contends adverse
employment actions were the result of discrimination for union
activities. Respondent provides possible legitimate business rea-
sons for the actions it took. In determining whether adverse em-
ployment actions are attributable to unlawful discrimination, the
Board applies the analysis set forth in Wright Line, 251 NLRB
108 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982).53 The Wright Line framework requires proof
that an employee’s union or other protected activity was a moti-
vating factor in the employer’s action against the employee. 251
NLRB at 1089. The elements required to support such a showing
are union or protected concerted activity, employer knowledge
of that activity, and union animus on the part of the employer.
Fremont-Ridout Health Group, 357 NLRB 1899, 1902 (2011);
Consolidated Bus Transit, 350 NLRB 1064, 1065 (2007), enfd.
577 F.3d 67 (2d Cir. 2009).
Proof of animus and discriminatory motivation may be based
on direct evidence or inferred from circumstantial evidence.
Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004);
Purolator Armored, Inc. v. NLRB, 764 F.2d 1423, 1428–1429
(11th Cir. 1985). Because direct evidence of unlawful motivation
is seldom available, the General Counsel may rely upon circum-
stantial evidence to meet the burden. See Naomi Knitting Plant,
328 NLRB 1279, 1281 (1999). A showing of animus need not
be specific towards an employee’s union or protected concerted
activities. Colonial Parking, 363 NLRB No. 90, slip op. at 1 fn.
3 (2016). Animus can be inferred from the relatively close tim-
ing between an employee’s protected concerted activity and his
discipline. Corn Bros., Inc., 262 NLRB 320, 325 (1982) (timing
of discharge within a week of union organizing meeting evidence
of antiunion animus); Sears Roebuck & Co., 337 NLRB 443, 451
(2002) (timing of discharge, several weeks after employer
learned of protected concerted activities, indicative of retaliatory

53 This burden shifting was approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
54 Arroyo did not appear as a witness. The administrative law judge
retains discretion in deciding not to draw an adverse inference. Under-
writers Laboratories v. NLRB, 147 F.3d 1048, 1054 (9th Cir. 1998). But
motive); La Gloria Oil & Gas Co., 337 NLRB 1120 (2002) (tim-
ing of discipline imposed 4 months after service on bargaining
team and ULP hearing appeared suspect).
Factors which may support an inference of antiunion motiva-
tion include employer hostility toward unionization, other unfair
labor practices committed by the employer contemporaneous
with the adverse action, the timing of the adverse action in rela-
tion to union activity, the employer’s reliance on pretextual rea-
sons to justify the adverse action, disparate treatment of employ-
ees based on union affiliation, and an employer’s deviation from
past practice. Purolator, 764 F.2d at 1429; W.F. Bolin Co. v.
NLRB, 70 F.3d 863, 871 (6th Cir. 1995), denying rev. 311 NLRB
1118 (1993).
An employer does not satisfy its burden merely by stating a
legitimate reason for the action taken, but instead must persuade
by a preponderance of the credible evidence that it would have
taken the same action in the absence of the protected conduct.
Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996); T & J
Trucking Co., 316 NLRB 771 (1995). If the employer’s reasons
are found to be pretextual—reasons that are false or not in fact
relied upon—the employer fails to sustain its burden and the in-
quiry is terminated. See, e.g., Lucky Cab Co., 360 NLRB 271,
275–276 (2014) (“finding of pretext defeats an employer’s at-
tempt to meet its rebuttal burden”); Servicios Santiarios de
Puerto Rico d/b/a AA-1 Portable Toilet Services, 321 NLRB
800, 804 (1996); Caruso & Ciresi, Inc., 269 NLRB 265, 268
(1984). When pretext is found to be the case, dual motive no
longer exists. La Gloria Oil, 337 NLRB at 1124.
B. Miguel Arroyo54
Herring was the only witness testifying about why the policy
had to be enforced. Herring testified credibly that he did not ask
about the length of the marriage. He apparently never asked how
long everyone knew that the couple was married. However, I do
not credit Arroyo’s statements to him, which sounded rehearsed.
However, I credit Herring’s version that he told Arroyo, “things
were changing,” which was similar language Guck used months
later in her memo about McNelis.
Respondent did not ask for testimony about these events from
HR Manager Schelling or Supervisor Roe. For the witnesses it
presented, Respondent did not ask questions about the investiga-
tion into Arroyo’s transfer to the day shift as enforcement of the
policy. Supervisor Roe admittedly knew Arroyo’s marital status
for at least 10 years; Respondent asked her no questions about
the shift reassignment for Arroyo to the day shift, which she su-
pervised.55 It also asked no questions on direct testimony from
HR Manager Schelling regarding whether anyone in the HR de-
partment reviewed Arroyo’s file before EVS Director Herring
inquired about his marital status. Respondent’s failure to make
inquiries of Schelling and Roe warrant an adverse inference that
any testimony from the two Respondent witnesses would not
have been favorable to it. Servicios Santarios, 321 NLRB at 803.
Respondent did not call a number of witnesses who may have
see NLRB v. MDI Commercial Services, 175 F.3d 621, 628 (8th Cir.
1999). I take no adverse inference for Arroyo and instead rely upon a
number of representations made by EVS Director Herring.
55 Over objections, I asked how long Supervisor Roe knew about the
marriage.
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
been able to corroborate Herring and were still under its control.
The adverse inference rule applies only when a party fails to call
a witness “who may reasonably be assumed to favorably dis-
posed to the party. [cite omitted]” Queen of the Valley Hospital,
316 NLRB 721 fn. 1 (1995); Love’s Barbeque Restaurant No.
62, 245 NLRB 78, 106–107 (1979) (unexplained failure to pro-
duce corroborating witness allows inference that the witness
would not have supported uncorroborated testimony), enfd. in
relevant part sub nom. Kallmann v. NLRB, 640 F.2d 1094 (9th
Cir. 1981). Respondent failed to present any other witness about
the investigation into the marriage and ultimate enforcement of
the policy regarding married employees working on the same
shift. Respondent did not call a number of witnesses to corrob-
orate events, such as anyone in HR to corroborate Herring’s tes-
timony about application of the marriage policy or any record of
the interview with Arroyo. Respondent called no one else from
Human Resources about Herring’s investigation and why the
policy had to be enforced at that time: Given the failure of Re-
spondent to call these witnesses and the apparent open
knowledge of the marriage identified by Roe, I take an adverse
inference from Respondent’s failure to call witnesses within its
control to corroborate Herring. I conclude that Respondent’s
failure to call corroborative within its control indicates that if
called, those persons would have testified adversely to Respond-
ent. Ryder Student Transportation Services, 333 NLRB 9, 13
(2001); Champion Rivet Co., 314 NLRB 1097, 1105 (1994).
Respondent suggests that I make an adverse inference that
General Counsel did not call former supervisor, Young, who al-
legedly witnessed the exchange but is no longer within Respond-
ent’s control. Respondent too failed to call its former supervisor,
who allegedly informed EVS Director Herring of the Arroyos’
marriage and was Young’s supervisor, to corroborate its case-in-
chief. I therefore make no adverse finding regarding any party’s
failure to call Young.
Arroyo was a union supporter and apparently wore union gear.
Herring had general knowledge about the Union campaign, hav-
ing addressed the matter with employees. Without direct evi-
dence to show Respondent’s knowledge56 and antiunion animus
regarding Arroyo, circumstantial evidence establishes those two
elements. Kajimi Engineering & Construction, 331 NLRB 1604,
1604 (2000) (knowledge); NLRB v. So-White Freight Lines, Inc.,
969 F.2d 401, 408–409 (7th Cir. 1992), enfg. 301 NLRB 223
(1991) (animus).57 Respondent’s knowledge and antiunion ani-
mus is inferred based upon several factors: Timing; the sudden-
ness of the decision, particularly given the history of knowledge
of the marriage; Respondent’s limited investigation; false reli-
ance upon the vacation schedule; and, failure to explore options
about whether Arroyo’s wife might be moved to the first shift.
Timing of Arroyo’s reassignment creates the first inference.
Herring told Arroyo that he would be reassigned the following
week, which occurred while the election results were pending.
The timing supports a finding that Respondent’s actions were

56 Respondent frequently denied any knowledge of Arroyo’s union
leanings or activities. However, in its brief, discussing the alleged con-
versation between Herring and Arroyo about the Union, Respondent
cites Colonial Parking, 363 NLRB No. 90, slip op. at 7 (2016), then par-
enthetically quotes, “Conversations about union activity between
taken due to Arroyo’s Union sympathies and Respondent’s ani-
mus. Sun Tech Group, Inc. d/b/a St. Thomas Gas, 336 NLRB
711, 718 (2001) (layoff during organizing campaign);
Healthcare Employees Local 399 v. NLRB, 463 F.3d 909, 920
(9th Cir. 2006); Handicabs, Inc. v. NLRB, 95 F.3d 681, 685–686
(8th Cir. 1996) cert. denied 521 U.S. 1118 (1997) (termination
24 days before election showed timing was a factor). Timing
dovetails with the second factor, the suddenness of the decision
and desire to enforce an old policy. Roe knew for 10 years that
the couple was married, no one did anything for quite some time,
and a week before the ballots are counted, EVS Director Herring
decides to reassign Arroyo to the day shift. Herring had been
employed with Respondent for approximately 6 months when he
made this decision, yet suddenly had to enforce this policy. This
too leads to an inference of knowledge and animus. LaGloria
Oil, 337 NLRB at 1124.
The third factor is that Herring’s investigation was extremely
limited. He failed to ask any questions about how long Arroyo
held the position on the same shift with his wife. Allegedly
Young told him that the couple was married. Roe admittedly
knew about the marriage for 10 years, yet Respondent did noth-
ing during that 10-year period. Herring seized upon the policy
to move a valued employee without checking into any of the un-
derlying facts with HR without obtaining a number of underlying
facts, as previously described. He allegedly relied upon HR to
make his determination, yet no one in HR testified to how long
it might have known Arroyo and his wife worked the same shift.
Respondent therefore failed to conduct a meaningful investiga-
tion, which also demonstrates discriminatory intent as well as
pretext. See Andronaco Industries, 364 NLRB No. 142, slip op.
at 14 (2016), citing: Ozburn-Hessey Logistics, LLC v. NLRB, 609
Fed. Appx. 656, 658 (D.C. Cir. 2015), enfg. 357 NLRB 1632
(2011); and, K&M Electronics, 283 NLRB 279, 291 fn. 45
(1987).
The fourth factor is that Herring’s reliance upon scheduling
vacations at the same time is a pretext. General Counsel’s evi-
dence demonstrated that Arroyo and his wife never took vacation
at the same time. It also points out again that Respondent did not
conduct a meaningful investigation before it acted. Respond-
ent’s concerns about the couple taking vacations at the same time
becomes a pretext as it never occurred. Healthcare Employees
Union Local 399, 463 F.3d at 922–923, quoting NLRB v. Dillon
Stores, 643 F.2d 687, 693 (10th Cir. 1981) (“[A] flimsy or un-
supported explanation may affirmatively suggest that the em-
ployer has seized upon a pretext to mask an anti-union motiva-
tion.”).
The fifth factor is that Herring selected Arroyo himself and
did not even explore the possibility of moving Arroyo’s wife to
a different shift. Herring did not consider it and could not give a
reasonable explanation of why he did not.
Respondent’s justifications, enforcement of its policy and the
vacation issue, are unavailing as Respondent’s asserted
employers and employees are considered lawful when they involve open
union supports, in a casual setting, and are unaccompanied by coercive
statements.” (R. Br. at 59.) Respondent instead relies upon Herring’s
alleged conversation with Arroyo in a hallway about the Union.
57 I do not rely upon Van Winden’s testimony for these findings.
QUEEN OF THE VALLEY MEDICAL CENTER 37
justifications are unreliable: Respondent’s contentions here are
undermined and leads to a conclusion that Respondent took its
actions based upon anti-Union reasons. Healthcare Employees
Local 399, 463 F.3d at 922–923. Not only do these reasons
demonstrate knowledge and animus, they also demonstrate that
Respondent’s reasons for suddenly enforcing the policy were
pretextual.
I therefore find that General Counsel established a prima facie
case that Respondent acted with knowledge and animus towards
Arroyo. The same analysis also demonstrates that Respondent’s
actions were pretextual. I therefore find that Respondent vio-
lated Section 8(a)(3) by moving Arroyo from his second shift
lead position to a first shift housekeeping position.
B. Rene Frogge
General Counsel presents a prima facie case regarding
Frogge’s reassignment. At the beginning of the union campaign,
Frogge worked in EVS on a Monday through Friday evening
shift delivering linen and assisting as needed with other house-
keeping matters. Her union activities are not in doubt. She was
involved in the organizing campaign. She wore union parapher-
nalia at work and appeared in a public, on the union Facebook
page video and another Facebook posting. Respondent’s
knowledge of Frogge’s union activities are reflected in her later
conversation with Herring, who accused her of harassing em-
ployees. However, based upon Herring and Roe’s testimonies, I
find no pretext in moving Frogge to a new position elsewhere.
This change was an improvement in the linen delivery system
and in the works before any union activity was open to Herring
or Roe. Herring explained why the changes were needed and
why a different employee, with more seniority, was selected,
which occurred. Frogge’s memory was foggy regarding some of
the exchanges, including training on the iPad. However, I do not
credit Herring’s testimony that Frogge came to him to obtain the
reassignment to MRI, which Frogge vehemently denied.58 Re-
spondent also demonstrated that the change was planned before
it likely had knowledge of Frogge’s union activities, as early as
September.
No one replaced Frogge in an evening shift. Respondent
demonstrates that her work duties were absorbed into one, more
efficient shift. I therefore recommend that the 8(a)(3) allegation
regarding Frogge’s duty changes be dismissed. Martin-Brower
Co., 273 NLRB 803 (1984).
C. Employees Schedules in Sterile Processing Department
1. Credibility
I credit McNelis’s testimony. McNelis had difficulty as Eng-
lish is not her first language, but the testimony was sincere within
that limitation. She was forthright that her husband assisted her
with documentation of events. She did not stray from her de-
scription of events, even during cross-examination and honest
when she could not provide further details. Amanda David, who
explained much of McNelis’s testimony and events surrounding
the schedule changes in the sterile processing department, is

58 Herring’s statement otherwise would have been an admission of
direct dealing, in which he bypassed the Union and dealt with an em-
ployee about a work assignment.
fully credited. She had better recall than McNelis regarding the
meetings with management about Guck and the scheduling dif-
ficulties in central processing. Her testimony explained the
events in a coherent manner and clarified much of what hap-
pened regarding the schedule. With very few minor details, she
was consistent with events Poulson and McNelis described.
I partially credit Kriegel’s testimony insofar as she discussed
the historical events of attempting to change shifts as early as
2015. However, her testimony about the need for placing the
new employees in certain position was confusing, particularly in
light of when Jesse Perla actually left employment. I also do not
credit that she was trying not to be rude when she failed to raise
the Union’s representational status during the scheduling discus-
sions. Guck did not testify, and for the reasons previously stated
for the witnesses who did not appear for EVS, I find that Guck’s
testimony would have been to Respondent’s detriment.
2. Respondent unlawfully changed the SPD employees’
schedules, including McNelis, in retaliation for union activities
As above, a Wright Line analysis is applicable to this scenario
as Respondent puts forth its scheduling needs for its reasons why
SPD schedule had to change.
McNelis and others in the Sterile Processing Department were
open about their Union activities. David and McNelis testified
without contradiction that Supervisor Guck was well aware of
the union activity in SPD. The SPD employees also engaged in
activities after the union certification that showed reaching out
to one another and then to management about the issues within
their department. Although employees had problems with Guck
before that time, the employees engaged in protected activities
to address the issues they saw involving Guck. With the Union’s
help, the SPD employees circulated a petition, obtained signa-
tures and delivered the petition to Interim OR Director Kriegel
in a “march on the boss.” The petition was not based alone upon
personal animus and Guck, an admitted statutory supervisor, had
immediate control over the SPD employees’ working conditions.
See, Atlantic-Pacific Construction Co., 312 NLRB 242, 244
(1993), enfd 52 F.3d 260, 263-264 (9th Cir. 1995) (employee
letter protesting selection or termination of a supervisor pro-
tected concerted activity); Rhee Bros., Inc., 343 NLRB 695, 695
fn.3 (2004) (group complaints about quality of supervision are
directly related to working conditions and therefore part of pro-
tected concerted activities). Testimony regarding Guck’s ani-
mus towards the Union, including threats to McNelis’ job should
the employees select the Union, remain uncontradicted as well.
Respondent does not adequately explain why it did not imple-
ment the desired schedule changes, particularly regarding
McNelis, before the organizing campaign as it sought to make
changes for years. The failure to offer a plausible explanation
defeats Respondent’s reasons for the schedule change. It instead
leads to a conclusion that the schedule changes were for retalia-
tion against Union and other protected concerted activities. WIl-
liamette Industries, 341 NLRB 560, 564–564 (2004). I therefore
find the SPD schedule changes, including those particularly for
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McNelis, were done because of the animus towards unionization
and in violation of Section 8(a)(3).
X. SUBPOENA ISSUES
Respondent, from the beginning of hearing, complained about
the Union’s response to its subpoenas. Throughout the hearing,
I gave Respondent significant latitude to explore its accusations
that the Union failed to provide documents. As the Union points
out, Respondent was particularly interested in supporting a the-
ory that the Union subjectively knew that Respondent was seek-
ing a test of certification. Respondent also made apparent that it
was looking for something in which the Union believed the par-
ties never bargained.
The Union repeatedly provided documents and conducted ad-
ditional searches for documents. Respondent believes that the
Union acted contumaciously and therefore demands that I im-
pose “severe sanctions” upon the Union for subpoena issues as
the sanctions already provided are insufficient. In addition, Re-
spondent demands that General Counsel’s refusal to initiate en-
forcement proceedings against the Union and severe sanctions,
including dismissal of the complaint, should issue because the
parties had an unfair advantage. Respondent also requested that
General Counsel enforce the subpoenas, and General Counsel
declined to do so.
The parties developed and stipulated to a special subpoena file
with 92 exhibits, which is part of the record. During hearing, I
declined to make a finding of whether the Union engaged in con-
tumacious conduct regarding its response to the subpoenas.
The Union maintains that Respondent’s conduct was irrespon-
sible and evidences bad faith. (CP Br. at 34.) In discussing this
matter, I first provide a short background, then deal with Re-
spondent’s demands for sanctions against the Union and General
Counsel, and whether Respondent demonstrated bad faith in its
search for documents.
A. Subpoena Background
About July 26 and 27, 2017, Respondent issued three subpoe-
nas duces tecum, all in care of Union Counsel Malkani: the first,
B-1-XHS7B5, issued to the Union; the second, also a duces te-
cum, issue to the Custodian of Records of the Union; and the
third, B-1-XHSAZX, to the Custodian of Records of the Union.
(Sub. Exhs. 1–3.) By about August 28, the Union received the
three subpoenas. Notably, Respondent failed to include appro-
priate witness fees in each of the subpoenas, making them defec-
tive on their faces and did not serve the subpoenas upon the party
itself.59
On August 1, the Union so notified Respondent on August 1
and, at the same time, initiated meet and confer procedures.
(Sub. Exh. 4.) On August 2, five calendar days before hearing,
Respondent reissued the same subpoenas, with the same num-
bers and attachments, to the appropriate parties. (Sub. Exhs. 5–
7). On August 3, 2017, the Union filed a petition to revoke the
subpoenas. (Sub. Exh. 9). However, by August 3, the meet and
confer discussions seemed promising, with Respondent stating,

59 Board’s Rules and Regulations §102.32 and Zurn/NEPCO, 329
NLRB 484, 486–487 (1999) (requirement of witness fees); Rolligon
Corp., 254 NLRB 22, 23 (1981) (rendered defective on its face and re-
cipient may decline not to comply).
“I think we are in agreement on almost all of the subpoena re-
quests.” (Sub. Exh. 10.) On August 4, 2017, the parties held a
conference call with me. Respondent stated it did not need the
Union’s custodian of records to appear. On Sunday, August 6,
the day before the hearing started, the Union emailed two partial
productions of documents to Respondent. (Sub. Exh. 11.)
To obtain information for the responses provided to Respond-
ent, Attorney Malkani notified Martin, who was considered the
custodian of records in the small Union office. The office does
not actual have any assigned information technology personnel,
but Martin usually relies upon one person to assist with it. Mal-
kani, Martin and Poulson discussed who was involved with the
allegations against Respondent and determined to 6 Union per-
sonnel who would have been involved regarding Respondent,
and thereby directed the subpoena requests for documents to
them. Martin told the additional Union personnel to contact Mal-
kani directly. He also told them to take the matter seriously and
thoroughly and follow up with Malkani. (Tr. 1387.) Martin him-
self did not review the documents found by the other Union em-
ployees. Later, Malkani confirmed to Martin that all those in-
volved in the search for documents followed through with her
and that she received their documents. Martin did not ask the
Union’s political director to search for documents.
Martin conducts union business through his personal com-
puter, as the Union never issued him one. He maintains a file on
the laptop itself regarding Respondent. He was not aware of how
other union employees saved documents for the cases herein.
The Union has no document retention policy to Martin’s
knowledge. (Tr. 1389.)
Malkani testified that, upon each filing of unfair labor practice
charges on behalf of the Union, she instructed Poulson about
maintaining “hall records” related to the allegations in the
charge. In response to the subpoena, on about August 1, Malkani
instructed Poulson to look for all documents related to any com-
plaint allegation, and particularly notes and all electronic files.
Malkani reminded Poulson to maintain and not deleted any files.
Malkani did the same with other union officials, including some
who were above the local level.
About 1 week before hearing, Martin searched various files in
his laptop, including emails and files, in different variations, in-
cluding different names for Respondent and names of manage-
ment personnel with whom he had direct communication. He
also searched his deleted files. Any internal documents regarding
Respondent were kept in the file he kept on Respondent. He also
searched his hard copy files as well as his personal files. He
turned over what he found to counsel. He did not consult with
the person he relies upon to help with information technology.
His practice is to delete text messages on his phone. He did not
recall receiving or sending any emails to bargaining unit employ-
ees. In addition, Poulson conducts Union business through her
personal cellular telephone, which she replaced before the hear-
ing. She did not retain her text messages, although during the
hearing she attempted unsuccessfully to recover them.60
60 Malkani testified that her understanding of the missing texts was
that they were probably covered under relevance and privileges. (Tr.
1710–1711.)
QUEEN OF THE VALLEY MEDICAL CENTER 39
On the first morning of hearing, Respondent called the Un-
ion’s subpoena response “woefully” inadequate. Through its
own search, Respondent stated it discovered that the Union
maintained two Facebook pages, one of which was dedicated for
employees at Respondent’s facility. Respondent was also con-
cerned about press releases. The Union stated it would not pro-
duce unless ordered to do so as it otherwise had pending motions
to quash. I ordered that the Union produce all documents related
to any statements of refusal to bargain or withdrawal of recogni-
tion, which were relevant to the main issues in this hearing. Alt-
hough public social media sites are not privileged, a requesting
party cannot merely “rummage” around in hopes of finding ad-
missible evidence. Malhoit v. Home Depot, 285 F.R.D. at 569.
I did not require the Union to produce all information from all
social media because Respondent could not identify that all of
the information is relevant to the hearing. Holter v. Wells Fargo
& Co., 281 F.R.D. 340, 344 (D. Minn. 2011). By that afternoon,
the Union presented the link to the employees’ Facebook page.61
Respondent was not satisfied and demanded that the Union pre-
sent documents referring to Respondent in PDF format. The Un-
ion presented links to the documents, videos and tweets. Despite
ostensible compliance, Respondent still insisted that it had to
have the documents in PDF format, and stated the Union was not
in compliance with the subpoenas. (Sub. Exhs. 14–16.) The Un-
ion managed to obtain PDF format for some of the documents,
and identified the responses based upon subpoena item numbers.
(Sub. Exhs. 18–20.)
Respondent continued to have issues about the subpoena re-
sponse during the first week of hearing. At this point, Poulson
only partially testified due to other witness scheduling issues. I
directed the parties to meet and confer about the issues. Poulson
also conducted additional searches during the hearing for docu-
ments. One such search found a document in a place Poulson
did not expect. Poulson was mortified and regretful about the
error, and it was obvious that she was not purposeful in the mis-
placement. It was promptly produced to Respondent. Malkani
also prepared privilege review logs, which took 7 hours to pre-
pare before the October 2 order.
By letter, dated August 14, 2017, the Union identified what
Respondent claimed were issues at the end of the first week of
hearing: logs for attorney-client privilege and Berbiglia; certain
Facebook posting; tweets; press releases and public releases; and
certain correspondence with a political party chairperson. (Sub.
Exh. 22.) The Union demonstrated to Respondent, in an August
15 email, that it provided emails for Martin, which Respondent
had contested. Respondent insisted that the Union needed to
identify which documents related to which subpoena requests,
and the Union again pointed out it previously provided the infor-
mation. (Sub. Exhs. 30–31.) Respondent also began requesting
that General Counsel enforce the subpoena, but General Counsel
stated the administrative law judge would have to give a ruling
on the record. (Sub. Exh. 30.) Respondent’s August 15 return
email apologized for its accusations on the Martin emails, which
it finally located; however, it still demanded privilege logs

61 Respondent also delayed in providing attendance records for Ar-
royo to the General Counsel, which were provided the afternoon of the
first day of hearing.
despite the ALJ review of the documents for privilege, de-
manded documents related to the correspondence with the polit-
ical party chairperson, and continued to demand documents be
ordered by subpoena item. Regarding the need for the documen-
tation to the political party chairperson, Respondent stated it was
responsive to the subpoena and did not give any reasoning why
it would be relevant. (Sub. Exh. 32.) During this time, I also
reviewed numerous documents for privileges, and many of the
Union’s withheld documents were indeed privileged.
The Union, after a conference call on August 16, 2017, again
directed personnel at NUHW to search for responsive docu-
ments. On August 18, 2017, Respondent provided a position
statement about compliance, including a statement that the par-
ties believed they had agreed on twenty requests and had only
one request left pending. The position statement detailed the per-
son to whom subpoena directions were given, with some having
minimal contact with the issues in the hearing. The Facebook
search at the beginning of hearing was discussed, and the Union
produced voluntarily any new documents, generated since the
hearing began. (Sub. Exhs. 36–37.)
In regards to subpoena issues, I permitted Respondent to ex-
amine union witness Dan Martin on day 7 of the hearing and
cross-examine Union Counsel Latika Malkani on day 8 of the
hearing.62 Respondent, in response to Martin’s testimony, stated
the Union was “blatantly non-compliant” in its search for docu-
ments.
After examining Martin, Respondent counsel wanted to ques-
tion Martin further. The Union objected, stating that Respondent
had ample opportunity to examine Martin. I scheduled a vide-
oconference to conclude any remaining issues regarding Martin.
Additionally, on that day, Respondent revealed it obtained infor-
mation about a private “listserve” that the Union maintained, ap-
parently only for employees. When asked how Respondent ob-
tained the information, it would not reveal its source.
On day 8, the Union presented Malkani as a witness. Malkani
testified in detail about instructions given to various union em-
ployees and officials to obtain documents and what type of doc-
uments she obtained in return, including specific date ranges to
search for documents. Malkani testified that she probably did
not issue written litigation holds and did not use the term “litiga-
tion hold” when talking to clients about preservation of evidence.
However, she testified that each time she filed a charge, she in-
structed Poulson to preserve emails, hard copy records, and any
records kept in any electronic format, that were related in any
way to the charge. (Tr. 1689). Malkani further testified that she
and Poulson had many verbal communications about what to re-
tain in each charge, based upon what an investigation might
need, and Poulson indicated she would comply. Malkani based
her determination that Poulson would comply upon further dis-
cussions about the charges. In some cases, regarding holding
documents for the charges, Malkani also spoke with Martin.
Martin conveyed to her he did not usually use text messages for
this type of communication.
62 The Union presented Malkani as a rebuttal witness, then Respond-
ent cross-examined her.
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The parties were scheduled to question Martin in a videocon-
ference with a court reporter on September 6, 2017. In an order,
dated August 28, 2017, I ordered the videoconference. I also
ordered Respondent to identify and present to all parties what
documents it believed Charging Party had not presented for sub-
poena compliance and by September 15, 2017, the Union would
present Respondent with additional documents, if any, or hold
documents pending my review for any asserted privileges.63
However, on August 29, 2017, Respondent then issued a num-
ber of subpoenas duces tecum to the Union. Because of the La-
bor Day holiday, the motions to quash would have been due on
September 6, the date of the scheduled videoconference. The
Union, not waiting until the due date, filed Petitions to Revoke
Subpoenas, including the testimony of Martin, on August 30.
(Sub. Exh. 58.) On September 6, after reviewing Respondent’s
motion and the Union’s early motions to quash, with the previous
testimonies of Martin and Malkani, I determined that further
hearing on the matter of the subpoenas was not warranted. I par-
tially quashed Respondent’s most recent subpoenas and can-
celled the videoconference as it would not serve any useful pur-
pose to permit further questioning and the remainder of the
schedule would proceed. My decision was prompted by Re-
spondent seeking two bites at the apple by expanding its inquiry
in the intervening time when the Union had no refusals pending
at the time and Respondent should have asked any further ques-
tions during the hearing.
In response to the prior Order, on September 7, 2017, Re-
spondent provided a list of 10 areas of documents it believed to
be missing. The Union presented documents for review. On
October 2, 2017, I issued another Order Partially Quashing Re-
spondent’s Subpoenas Duces Tecum B-1-XHS7B5 and B-1-
X1HSGP, and Quashing Subpoena Duces Tecum B-1-
XHSAZX. I reviewed that the Union presented 573 pages of
documents for in camera review. Only 8 pages belonged to the
recently identified Google group listserve, and all were protected
by Berbiglia. Any documents that had no probative value or
were duplicative were withheld. However, I ordered that the
Charging Party to provide privilege logs of the withheld docu-
ments by October 6, 2017.
In the October 2 Order, I also noted that the ligation hold and
subpoena search instructions may have been limited and/or un-
clear to the Union. I ordered that the Union could present no
further evidence about the subject matter sought by the subpoe-
nas and produced only on September 15, 2017. I also did not
permit the Union to cross-examine any witnesses to the extent
that the content dealt with the Union’s September 15 production.
Respondent also wanted documents from listed persons, and the
Union stated that no documents existed. To the extent that those
documents did not exist, I quashed the subpoenas. Regarding
documents that Respondent continued to state it needed regard-
ing the political party chair, the Union stated again it did not have

63 Respondent raised no objections to my ex parte reviews and dis-
cussions with the Union regarding their alleged privileges.
64 NLRB v. Interstate Builders, Inc., 351 F.3d 1020, 1028–1029 (10th
Cir. 2003) gives general background on subpoenas:
Section 11(1) of the Act governs the issuance of subpoenas in NLRB
proceedings. This section provides that “[t]he Board, or any member
it. I additionally found that Respondent’s desire to have these
documents held no probative value and quashed the subpoena to
that extent. I also denied Respondent’s demand that the Union
provide its position statements sent to General Counsel. Re-
spondent repeatedly demanded drafts, and I quashed that request.
I also addressed that Respondent, at least through September 7,
sought any witness statements and witness documents from the
Union, particularly of Arroyo, and to avoid further confusion on
the matter, I addressed it and quashed the subpoena. I also stated
that, with the extent of the Order, I saw no need to request the
Regional Director to enforce the subpoenas. No further exami-
nation on the record regarding the subpoenas would be permit-
ted. (Sub. Exh. 83.)
In response to the Order, Respondent maintained it had not
had a fair opportunity to explain and analyze the Union’s non-
compliance with the subpoenas. It also maintained that the sanc-
tions I placed upon the Union were insufficient. During the hear-
ing I had indicated that I would have briefing before the hearing
resumed. However, as events wore on, I ordered otherwise. Re-
spondent did not believe that this was fair and wanted to continue
to litigate the subpoena matter by briefing it before the hearing
continued. Respondent, however, did not identify what, if any-
thing, was missing after my Order. (Sub. Exh. 86.) I did not order
briefing to continue and, on the record, stated any subpoena is-
sues should be part of the final brief.
Respondent replied twice to the October 2 Order, one of which
was to respond to the Union’s correspondence. (Sub. Exhs. 84–
86.) Respondent contended that the sanctions provided were ev-
idence that I had determined the Union engaged in contumacious
conduct. (Sub. Exh. 86).
As ordered, on October 6, 2017, the Union produced its 41-
page privilege log. (Sub. Exh. 87.) When we resumed the hear-
ing in November, Respondent asked to be heard on the subpoena
matters and I denied that request. My reason for doing so was
because Respondent had more than adequate time to raise issues
through its prior correspondence, including Sub. Exhs. 84 and
86. Respondent, when questioning Poulson on recall in early
November, attempted to question further on the subpoenas,
against my explicit Order. On the record I again denied ordering
the Regional Director to seek enforcement of Respondent’s sub-
poenas in Federal court.
B. Applicable Law
Respondent, as the requesting party for the subpoenas, has the
burden of proof to demonstrate noncompliance. Sisters’ Came-
lot, 363 NLRB No. 13, slip op. at 8 (2015), citing R.L. Polk &
Co., 313 NLRB 1069, 1069–1070 (1994), affd. sub nom. Auto
Workers Local 174, Autoworkers v. NLRB, 74 F.3d 1240 (6th
Cir. 1996). The administrative law judge has authority to sanc-
tion parties who fail to comply with the Board subpoena and is a
matter of the judge’s discretion. Teamsters Local 917 (Peerless
Importers, Inc.), 345 NLRB 1010, 1011–1012 (2005).64
thereof, shall upon application of any party to [its] proceedings, forth-
with issue to such party subpoenas requiring the attendance and testi-
mony of witnesses .in such proceedings. . . .” 29 U.S.C. § 161(1). On
application of the subpoenaed party, “the Board shall revoke[ ] such
subpoena if in its opinion the evidence whose production is required
does not relate to . . . any matter in question in such proceedings, or if
QUEEN OF THE VALLEY MEDICAL CENTER 41
The requesting party may request relevant documents in the
responding party’s control, so long as the request describes the
desired items with “reasonable particularity.” Mailhoit v. Home
Depot, U.S.A, Inc., 285 F.R.D. 566, 569 (C.D. Calif. 2012).
Broadly stated demands do not describe with sufficient particu-
larity so that a reasonable person would know what is expected
to produce under Fed.R.Civ. Pro. 34(b)(1)(A). Id. The party in
receipt of the subpoena has an obligation to make a reasonable
search for responsive documents, whether in paper or electronic
form. Starbucks Coffee Co., Case 01–CA–177856, 2017 WL
2241023 (NLRB), slip op. at 1 fn. 1 unpub. dec. (2017).
Although not yet adopted by the Board, the Sedona Confer-
ence provides a number of principles that primarily deal with
production of electronic documents. A responding party is to
produce documents and electronically stored information (ESI)
with its possession, custody or control. However, those terms
are not defined in the Federal Rules. Courts differ on how to
interpret the terms. The Sedona Conference Commentary on
Rule 34 and Rule 45 Possession, Custody or Control, 17 SEDONA
CONF. J. 467, 484 (2016). In analyzing the handling of the Un-
ion’s pre-litigation business decisions regarding document man-
agement, including ESI, Sedona recommends a two-prong test:
“(1) [A]fter asserting an intention to rely upon modified business
judgment rules presumption, the entity makes good faith disclo-
sures concerning pre-litigation decisions that were made about
documents and ESI and (2) absent indicia of bad faith. Id. at
557–558. The standard applied is objective, including whether
a reasonable inquiry is undertaken. Id. at fn. 150. The modified
business rule presumes that business decisions within the scope
of duties are made in good faith and honest beliefs, and intent
does not drive the discussion. Id. at 558 fn. 151.
The producing party is supposed to place reasonable construc-
tion and make reasonable and diligent searches for responsive
documents. Reinsdorf v. Skechers USA, Inc., 296 FRD 604, 614
(2013). However, these searches do not demand perfection. Id.
Reasonableness is measured by an objective standard and the
Federal Rules of Civil Procedure rely upon a proportionality
standard to do so. Id. at 615 and fn. 8. Therefore, the analysis
requires a determination of whether the responding party’s ac-
tions were objectively reasonable, but not necessarily “error-
free.” Id. at 615. Supplemental responses “do not necessarily
equate to discovery misconduct.” Reinsdorf, 296 FRD at 615.
The Sedona Conference recently identified six principals regard-
ing proportionality:
Principle
1:
The burdens and costs of preserving rele-
vant electronically stored information
should be weighed against the potential
value and uniqueness of the information
when determining the appropriate scope
of preservation.

in its opinion such subpoena does not describe with sufficient particu-
larity the evidence whose production is required.” Id. “Although the
statute explicitly permits the quashing of subpoenas only for irrelevance
or lack of particularity, it does not explicitly exclude other grounds.”
Drukker Communications, Inc. v. NLRB, 700 F.2d 727, 730 (D.C.
Cir.1983). Rather, the statute provides that the Board may also revoke
Principle
2:
Discovery should focus on the needs of
the case and generally be obtained from
the most convenient, least burdensome,
and least expensive sources.
Principle
3:
Undue burden, expense, or delay result-
ing from a party’s action or inaction
should be weighed against that party.
Principle
4:
The application of proportionality should
be based on information rather than spec-
ulation.
Principle
5:
Nonmonetary factors should be consid-
ered in the proportionality analysis.
Principle
6:
Technologies to reduce cost and burden
should be considered in the proportional-
ity analysis.
The Sedona Conference Commentary on Proportionality in
Electronic Discovery, 18 SEDONA CONF. J. 141, 146 (2017).
Proportionality includes addressing whether information is
not reasonably accessible, unreasonably cumulative or duplica-
tive, whether the party has had ample opportunity to obtain the
information, and whether the production would cause “undue
hardship.” Id. at 148. Principle 4’s Comment 4b states that at-
tempts to evaluate the importance of requested information are
fact-specific to the case. In doing so, the efforts may be chal-
lenging because evaluation of the importance of the documents
may not be truly assessed until the documents are produced. 18
SEDONA CONF. J. at 163–165.
After numerous efforts and productions, I determined that the
Union delayed somewhat in its production. I also found that the
testimony reflected problems in the Union’s litigation hold pro-
cedures. I weighed that delay and gave sanctions in my October
2 order. I made no finding of contumacious conduct.
Respondent contends severe sanctions are warranted because
the Union engaged in spoliation. The party demanding sanctions
for spoliation has the burden of proof for proving spoliation.
Reinsdorf, 296 FRD at 626 and cases cited therein.
Spoliation is defined as “destruction or significant alteration
of evidence or the failure to preserve property for another’s use
as evidence [,] in pending or reasonably foreseeable litigation.
Zubulake v. UBS Warburg, LLC, 220 FRD 212, 216 (S.D.N.Y.
2003) (Zubulake IV) (internal quotes omitted). Zubulake IV, 220
FRD at 220 provides a conjunctive three-part test:
A party seeking an adverse inference instruction (or other sanc-
tions) based on the spoliation of evidence must establish the
following three elements: (1) that the party having control over
the evidence had an obligation to preserve it at the time it was
destroyed; (2) that the records were destroyed with a “culpable
state of mind” and (3) that the evidence was “relevant” to the
a subpoena on any other ground which is consistent with the overall
powers and duties of the Board under the Act considered as whole. “In
short, section (11)(1) is not intended as a complete and inclusive cata-
logue of all grounds upon which a Board subpoena may be revoked.”
General Engineering, Inc. v. NLRB, 341 F.2d 367, 373 (9th Cir. 1965).
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
party’s claim or defense such that a reasonable trier of fact
could find that it would support that claim or defense.
Part of Respondent’s spoliation contention is that the Union
failed to preserve documents began when the initial charge was
filed, pursuant to a litigation hold. Instead, one must make a fact-
specific analysis, depending on each case, as the duty to do so
defies attaching a precise point in time. The Sedona Conference
Commentary on Rule 34 and Rule 45 Possession, Custody or
Control, 17 SEDONA CONF. J. 467, 555 fn. 157. Regarding the
second point, Respondent assumes a culpable state of mind.
C. Respondent’s Demands Sanctions for the Union
The Union’s brief developed several pages of the history of
the subpoena fight. Respondent does not develop any of the his-
tory behind the subpoenas and instead states that “a detailed rec-
itation of the facts would inundate this post-hearing brief.” It
instead states it incorporates the 92 subpoena exhibits into its
brief and “requests that the Administrative Law Judge consider
all of these exhibits when determining whether further sanctions
are warranted and when determining the merits of the case.” (R.
Br. 74 at fn. 16.). It then picks and chooses items in the transcript
to bolster its arguments and includes no cites to the exhibits. In
doing so, Respondent has failed to demonstrate that the entire
subpoena history demonstrates that the Union engaged in contu-
macious conduct.
The burden of proof for subpoena noncompliance is upon the
party issuing the subpoena. Sisters’ Camelot, 363 NLRB No. 13,
slip op. at 8 (2015). I fully credit Martin and Malkani, as they
stated what they had done to comply with the subpoenas, even
when their testimony was to their detriment. Testimony from
Martin and Malkani revealed that the Union had not used the
term “litigation hold” and began its search for relevant docu-
ments upon receipt of the first subpoenas. I also considered that
Respondent did not always understand what it was looking for
when it questioned them. At one point, Respondent asked
whether the Union searched for metadata. Martin did not know
what it was and asked Respondent counsel to explain. Respond-
ent counsel was unable to say what metadata was and the judge
provided a brief explanation. I also credit Poulson’s explana-
tions about her telephone and searches for additional documents.
Testimony from Martin, Poulson and Malkini, and their bru-
tally honest answers about searches for documents, do not
demonstrate any culpability and at most, negligence. Malkani
particularly testified in detail about how she verbally instructed
the persons related to activity in the charges when she filed them
on behalf of the Union. Lastly, and perhaps most importantly,
Respondent also presumes the information would have been rel-
evant.
I consider proportionality and find some of Respondent’s de-
mands were not proportional to the information requested. Re-
spondent insisted at the beginning of the hearing that the Union’s
Facebook production must be in PDF form violated principle 2
of proportionality, that the production of sought-after documents
should be generally obtained from the most convenient, least
burdensome, and least expensive sources. The Union gave Re-
spondent the links to the relevant Facebook posts. However, Re-
spondent continued to insist that the Union was required to pro-
duce in PDF format and stated the Union was not in compliance
with the subpoena. Respondent’s repeatedly maintained
throughout hearing and its correspondence that the Union failed
to index its produced documents according to Respondent’s re-
quested items. At that time Respondent’s only reason for its re-
quirement was that its subpoenas so instructed the Union. Re-
spondent’s contention was incorrect as the Union provided num-
bering. Additionally, this matter was not a class action hearing,
which might have necessitated such numbering pursuant to dis-
covery orders. Respondent does not raise this point in its brief
and I consider it waived. Respondent was searching for infor-
mation to support its main defense, that the Union made subjec-
tive statements showing the parties were not bargaining or that
the Union was not recognized. Respondent presumes relevant
evidence was destroyed and I find no basis for that conclusion as
Respondent only cites to testimony rather than the record as a
whole. Respondent never identified any documents that are
missing based upon a reasonable search. For example, Respond-
ent complained that it never received draft documents of flyers
and handbills. I excluded drafts as irrelevant. Respondent main-
tains it is entitled to the drafts, but never states how the drafts
were relevant to the case other than finding it to be a part of its
version of a “totality of circumstances” defense to the with-
drawal of recognition. A draft does not reflect the ultimate po-
sition of the Union, and Respondent has been provided the final
products. This contention does not support a finding of spolia-
tion or purposeful conduct. As pointed out in the transcript and
in this decision, Respondent’s reliance upon subjective evidence
in the Section 8(a)(5) discussion is irrelevant.
Respondent contends that testimony from Martin and Malkani
revealed that the Union had not placed litigation holds. Re-
spondent contends that this failure resulted in spoliation. The
Union contends that, although it did not use the language of “lit-
igation hold,” it properly instruct on retention of documents once
the subpoenas were received. Malkani’s testimony supports the
Union’s finding; Martin, only to the degree involved with prep-
aration of the subpoenas. However, the Union repeatedly pro-
vided documents and privilege logs when ordered to do so. I
reviewed documents in camera and frequently found that most
of the documents were either irrelevant or privileged. In some
cases, I required redaction of the Union’s documents when the
documents revealed Section 7 activity of employees who were
not involved in the matter, which made any such production pro-
tected and/or irrelevant. Respondent cites McDonald’s USA,
LLC, 364 NLRB No. 144, slip op. at 6 (2016) about when the
duty to preserve evidence arose and whether the employer’s liti-
gations holds were adequate. However, outside of Respondent
quoting general principals, the Board ultimately ruled that it was
not necessary to reach those issues because the employer was
required to conduct another search for documents. Further, the
Board determined that it was premature to determine whether the
employer’s attempts at preservation were adequate. Id., slip op.
at 2, fn. 5. I therefore cannot rely upon McDonald’s to reach the
Respondent’s desired conclusion.
I also find no spoliation regarding Poulson’s text messages
when she bought a new cell phone. In hearing, Poulson revealed
that she did not have all text messages during the relevant time
period because she had a new personal cellular telephone and did
not know to retain it. She made another search for the texts,
QUEEN OF THE VALLEY MEDICAL CENTER 43
which could not be recovered. I find that these text messages,
usually between Poulson and employees, are not formal business
records. It is quite plausible that Poulson changed telephones
without retaining all text messages. Spurlino Materials, 353
NLRB at 1214, citing inter alia, Champ Corp. 291 NLRB 803,
803–804 (1988), enfd. 933 F.2d 688 (9th Cir. 1990).65 However,
nothing in the record reflects Poulson made a purposeful deletion
of the texts.
With the eventual production of documents after my Orders,
Respondent must demonstrate what effects, if any, the missing
documents had to prejudice its case. Sisters’ Camelot, 363
NLRB No. 13, slip op. at 9. Poulson’s continued search for doc-
uments revealed one misplaced documents and I find that this
revelation showed a minimal mistake, which was easily cor-
rected. Respondent suffered no prejudice as Poulson produced
the document as soon as she found it. People’s Transportation
Service, 276 NLRB 169, 225 (1985) (additional search revealing
misplaced document produced as soon as discovered). Respond-
ent was not precluded from raising its defenses or finding evi-
dence to support its defenses, however irrelevant I now have
found them to be. Irrelevant evidence, even presuming it was
deleted, does not warrant a spoliation claim. Rengsdorf, 296
FRD at 631.
Respondent states the only sanction levied against the Union
was to prevent its cross-examination of Poulson regarding
Google Group documents. (R. Br. at 78.) This statement mis-
characterized the breadth of the Orders given throughout the
hearing and Respondent’s own understanding of the sanctions.
(Sub. Exh. 84, 86.) The October 2 Order regarding subpoenas
included several sanctions against the Union. To quell any pos-
sible prejudice to Respondent, the sanctions included prohibiting
the Union from cross-examining witnesses regarding any docu-
ments produced after that date and allowing Respondent to call
and recall witnesses regarding recently produced documents.
That Respondent admits it only recalled Poulson indicates the
limits of the relevant information found in the subpoena produc-
tion. In addition, with the delays from the wildfires, Respondent
had from October 2 to November 1 to prepare the remainder of
its case.
During the course of the hearing and intervening events re-
garding the subpoenas, Respondent suggested that I take adverse
inferences for the Union’s failure to produce documents and I
ordered adverse inferences in the last Order, dated October 2,
2017, for the delayed production. By its definition, the adverse
inference rule states “when a party has relevant evidence within
his control which he fails to produce, that failure gives rise to an
inference that the evidence is unfavorable to him.” UAW v.
NLRB (Gyrodyne Co.), 459 F.2d 1329, 1336 (D.C. Cir. 1972).
Additionally, the adverse inference rule may be preferred to a
subpoena enforcement proceeding. In administrative processes,
enforcement proceedings are collateral to the “main event,” here
alleged unfair labor practice hearing, and are likely “costly and
time-consuming.” Gyrodyne, 459 F.2d at 1338–1339. The ad-
verse inference then permits the administrative law judge to

65 Whether the Union ever made an attempt to secure control and
custody of Poulson’s device is questionable and it may not have a legal
right to do so. The Sedona Conference Commentary on Rule 34 and Rule
proceed and find that the failure to produce documents is likely
due to unfavorable information. Id. However, Respondent’s
brief fails to what, if any, adverse inferences should be taken. As
Respondent fails to suggest what appropriate adverse inferences
should be made, I decline to make any. Howard Johnson Co.,
242 NLRB 386, 388 (1979).
For sanctions to apply, not only is the party seeking the docu-
ments required to prove the missing documents would be rele-
vant, the party must also show prejudice to the point it affected
Respondent’s ability to go to trial or “threatened to interfere with
the rightful decision of the case.” Reinsdorf, 296 FRD at 627,
citing Leon v. IDX Systems Corp., 464 F.3d 951, 959 (9th Cir.
2006). While the subpoena fight continued at hearing, Respond-
ent stated it was entitled to documents reflecting what the Union
did and thought, particularly on the bargaining issues. The Un-
ion provided documents about what it did, yet Respondent con-
tinued to demand evidence of the Union’s thought processes, in-
cluding draft documents. Respondent denied that trying to get
into what the Union thought processes was subjective evidence
and affirmatively stated the thought processes were objective.
Respondent to date has not shown a case in which what the union
people “thought” was relevant for any Section 8(a)(5) violation
sought herein. As a result, Respondent failed to demonstrate that
its ability to try the case was affected or could have exculpated
Respondent’s unlawful conduct.
Respondent also contends that it suffered severe consequences
due to the Union’s alleged contumacious conduct regarding the
subpoenas, including recessing twice in the middle of its case.
The contention that the recesses were caused only by the subpoe-
nas is not correct: Much of the scheduling issues were due to
Respondent’s inability to schedule back-to-back weeks. Re-
spondent was given all the time it desired to review affidavits
and prepare its cross-examination. Respondent’s cross-exami-
nations of General Counsel’s witnesses extended hours longer
than Respondent initially estimated. During the first week of
hearing, the Joint Commission on Accreditation of Health Care
Organizations arrived for a surprise assessment of Respondent’s
facility. General Counsel and the Union allowed Respondent to
call EVS Director Herring during the first week as he was wait-
ing for the call, and then he was released to assist with the ac-
creditation review. Respondent was allowed to recall him during
the last days of the hearing as a rebuttal to Frogge’s testimony.
In one situation, Respondent could have called Sheri Roe, who
could provide a short testimony, and did not do so. (Sub. Exh.
50). It was also proposed on day 8 of hearing that Respondent
call HR Schelling and start her testimony as she was present as
Respondent’s corporate representative. Respondent declined to
do so and blamed the subpoenas. (Tr. 1595–1596.) As previ-
ously noted, some of Respondent’s demands exceeded the limits
of proportionality. When Roe testified in the last week of the
hearing, nothing related to any of the Union documents provided
at any time. Respondent was still presenting its case-in-chief in
the last week, and outside of Poulson, did not call anyone else in
response to the documents it received. The delay between the
45 Possession, Custody or Control, 17 SEDONA CONF. J. at 526. Nor is
it likely she had a requirement to preserve information on her personal
device. Id.
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
end of August and the beginning of November occurred partially
when Respondent moved to postpone twice due to wildfires in
the Northern California region, included the area in which Re-
spondent’s facility is located. Furthermore, any delay in produc-
tion does not demonstrate a need for additional sanctions. See
generally Reinsdorf, 296 FRD at 614–615 (2013).66
D. Respondent’s Demands Sanctions for General Counsel
Respondent contends that the sanctions already provided
against Respondent were insufficient because General Counsel
was still allowed to question Respondent witnesses and gained
an unfair advantage against Respondent. Respondent cites that
General Counsel was permitted to cross-examine union witness
Poulson when she was recalled by Respondent, although the Un-
ion was not allowed to examine the witness. Otherwise, Re-
spondent spent the remainder of its arguments against the Union
and provided only one case to support its conclusion regarding
the General Counsel. Respondent also states that sanctions
against General Counsel are warranted because General Counsel
did not seek enforcement of Respondent’s subpoenas upon Re-
spondent’s demands.
Additional sanctions against General Counsel, including dis-
missal of the complaint, are not warranted. First, at hearing, I
denied Respondent’s request to order General Counsel to pro-
ceed with subpoena enforcement. After the Union’s response to
my October 2, 2017 Order, the Union produced documents and
a privilege log. In end, I have found that those Respondent en-
tered into evidence had little, if any, probative, effect. Second,
the Union made clear the extent to which it made its searches and
Respondent’s searches for drafts and the like, which I made clear
in the October 2 order, were irrelevant. Respondent’s request for
search terms in the ilk of “barbeque” served no probative pur-
pose for this hearing. To require a recess to enforce a subpoena
that would reveal little, if anything, would not have been a pru-
dent use of resources and time for any party.
Additionally, Respondent believes denying General Coun-
sel’s questioning of Poulson in the last of the hearing is war-
ranted. I disagree. During the hearing, I reminded Respondent
that the Board recently dealt with such an issue in Marquez Bros.
Enterprises, Inc., Cases 21–CA–039581 and 21–CA–039609,
unpublished decision (September 7, 2017), request for reconsid-
eration denied, unpublished decision (January 17, 2018). Re-
spondent did not address this case in its brief and again relies
upon Prime Healthcare Services-Encino, 364 NLRB No. 128 at
fn. 39. Marquez Bros. was a compliance case in which an ad-
ministrative law judge prohibited the general counsel from ques-
tioning any witnesses other than the compliance officer because
the alleged discriminatees had “failed to fully comply with the
subpoenas duces tecum issued to them.” Id., slip op. at 1. The
decision finds that General Counsel’s role is to not to vindicate
the private rights of the Union; instead, General Counsel is

66 For further sanctions, Respondent also relies upon 675 West End
Owners Corp., 345 NLRB 324, 326 fn. 11 (2005). In that case, Respond-
ent’s owner Uzi Einy66 served subpoenas after the hearing that the judge
had previously revoked. In doing so, he abused Board processes.
67 None of the cases Respondent cites are in the same ballpark with
the conduct here. For example, Respondent cites NHL v. Metro. Hockey
Club, Inc., 427 U.S. 639, 642–643 (1976). The Supreme Court found
responsible to enforce the Act as part of the public interest. Id.,
slip op. at 1–2, citing Alberici-Fruin-Colnon, 226 NLRB 1315,
1316 (1976). Respondent instead mistakenly relies upon Prime
Health Services-Encino, LLC d/b/a Encino Hospital Medical
Center, 364 NLRB No. 128, slip op. at 18 fn. 39. The Board in
Marquez Bros., supra, slip op. at 1 fn. 2, discussed that Prime
Healthcare Services-Encino, supra, has no precedential value re-
garding sanctions against General Counsel as no exceptions were
filed on that point. Additionally, General Counsel does not con-
trol the Union’s conduct and any sanctions against General
Counsel would be considered “unduly harsh.” Marquez Bros.,
supra, slip op. at 1.
Respondent also states that dismissal of the complaint is an
appropriate sanction. Although the Board allows the administra-
tive law judge to apply a variety of sanctions for subpoena non-
compliance, the Board apparently has not dismissed a complaint
based upon subpoena noncompliance. Local 917 (Peerless), 345
NLRB at 1011–1012, citing, inter alia, Smitty’s Supermarkets,
310 NLRB 1377, 1380 (1993) (reinstating complaint after alj
dismissed for charging party’s failure to comply with the sub-
poena duces tecum regarding a document). I balance the need
for sanctions in a situation with alleged noncompliance against
the need to preserve the Board’s mandate in Section 10(c), to
remedy unfair labor practices. Sisters’ Camelot, 363 NLRB No.
13, slip op. at 8. Balancing the gravity of the many unfair labor
practices and the sanctions already given for any possible delay
in providing documents and at most a negligent litigation hold
process, dismissal of the complaint would be an abuse of discre-
tion.67
E. Conclusion Regarding Subpoenas
I find the Union’s conduct regarding its responses to Respond-
ent’s subpoenas was not contumacious. Any destruction of doc-
uments appears inadvertent at best and does not demonstrate a
level of culpability required to sustain a finding of spoliation. In
addition, any requirement for General Counsel to seek subpoena
enforcement was not warranted. Respondent failed to consider
the complete record when making demands in its brief. The
sanctions already provided are more than adequate and Respond-
ent had ample time to prepare its remaining case in chief.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and an em-
ployer in health care within the meaning of Section 2(14) of the
Act.
2. I find, and the parties stipulated, that the following person-
nel are Respondent’s supervisors within the meaning of Section
2(11) and agents within the meaning of Section 2(13) of the Act:
a. Larry Coomes CEO/Interim CEO
b. John Bibby Regional Vice President, Human
dismissal of a case was warranted where the plaintiffs in large part failed
to answer interrogatories over a 17-month period, despite numerous ex-
tension and waiting for days after the due date to give any response. Id.
at 640–641. Plaintiff’s responses to district court were grossly inade-
quate and the plaintiff was warned of the sanctions. Id. at 641–642. The
abuses of the subpoena process in NHL have nothing in common with
the facts of this case.
QUEEN OF THE VALLEY MEDICAL CENTER 45
Resources for Northern Califor-
nia
c. Bill Candella Director, Labor & Employee Re-
lations
d. Jill Gruetter Manager, Human Resources
Ministry Partner
e. Kathy Hutchinson Human Resources Ministry Part-
ner
f. Neill Barker Manager, Pharmacy Operations
g. Ralf Jeworski Manager, Nursing
h. Olive Romero Director, Laboratory
i. Shanay Marquez Supervisor, Laboratory
j. Elizabeth LuPriore Director, Nutrition Sevices/Con-
tract
k. Bruce Kevin Herring Director, EVS and Facilities
l. Stacy Guck Supervisor, Sterile Processing
m. Sherri Roe Supervisor, EVS
n. Harold Young Supervisor, EVS
3. Interim Director Surgical Services Diane Kreigel is a su-
pervisor within the meaning of Section 2(11) of the Act and an
agent of Respondent within the meaning of Section 2(13) of the
Act.
4. Charging Party National Union of Healthcare Workers
(Union) is a labor organization within the meaning of Section
2(5) of the Act.
5. At all times since the Regional Director certified it as the
Section 9(a) representative of the nonprofessional employees on
December 22, 2016, and reaffirmed by the Board on February
28, 2017, the Union has represented a majority of Respondent’s
employees in the following appropriate bargaining unit:
All nonprofessional employees, including technical employ-
ees, employed by [Respondent] at its facilities located at 1000
Trancas Street, 980 Trancas Street, 3448 Villa Lane, and 3421
Villa Lane in Napa, California; but excluding all other employ-
ees, skilled maintenance employees, business office clerical
employees, confidential employees, guards, and supervisors as
defined in the Act.
6. In late December 2017, Respondent, by EVS Director Her-
ring, violated Section 8(a)(1) of the Act by threatening an em-
ployee with futility of unionization.
7. On March 28, 2017, Respondent violated Section 8(a)(1)
of the Act by refusing an employee’s request for union represen-
tation during an investigatory interview, as required by
Weingarten.
8. On the occasions listed below, Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to provide in-
formation to the Union that is necessary and relevant for collec-
tive bargaining:
i. December 15, 2016 and January 24, 2017, related to changes
in Renee Frogge’s linen duties;
ii. January 10, 2017 request for information to bargain full col-
lective bargaining agreement;
iii. March 2, 2017 request for information to Interim Director
of Surgical Services Kriegel, related to possible schedule
changes for SPD employees;
iv. March 21, 2017 request for information regarding the
pharmacy;
v. March 21, 2017 request regarding EVS and policies related
to disciplinary action; and,
vi. March 21, 2017 request regarding productivity calculations
in patient access
9. Since about March 24, 2017, Respondent violated Section
8(a)(5) and (1) of the Act by withdrawing recognition from and
subsequently failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining representative
of the employees in the appropriate unit.
10. Respondent violated Section 8(a)(5) of the Act by unilat-
erally and without bargaining with the Union:
i. Since April 21, 2017, failed to abide by the negotiated and
signed agreement regarding the effects of the kitchen construc-
tion project;
ii. Since March 16, 2017, refusing to permit the Union to use
meeting rooms at Respondent’s facility for Union meetings.
iii. Since April 5, 2017, by changing shift assignments for SPD
employees, including Martha McNelis.
11. By engaging in the following conduct, Respondent com-
mitted unfair labor practices in violation of Section 8(a)(3) of the
Act:
i. On November 15, 2016, changing Miguel Arroyo’s shift and
duties because of his Union activities.
ii. On about April 5, 2017, changing shift schedules for SPD
employees, including Martha McNelis, because of their union
and/or protected concerted activities.
12. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
13. Respondent has not violated the Act in any other manner.
REMEDY
Having found that Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1), (3), and (5) of the
Act, Respondent shall be ordered to cease and desist from such
practices and take certain affirmative action designed to effectu-
ate the policies of the Act. In addition to traditional remedies,
General Counsel seeks a Mar-Jac extension of the certification
year, an order requiring Respondent to bargain by a schedule as
pled in the amendment of the consolidated complaint, reading of
the notice by HR Director Schelling to employees during work-
ing time in the presence of a Board agent, or, in the alternative,
allow the Board agent to read the notice to employees during
working time in the presence of Respondent’s alleged supervi-
sors and agents. General Counsel also requests that the Union
be granted reasonable access to its bulletin boards and all places
where notices to employees are customarily posted and that Un-
ion access to the facility be restored. Lastly, General Counsel
also requests that Respondent reimburse the discriminatees for
consequential damages. I analyze these as traditional and en-
hanced remedies.
I. TRADITIONAL REMEDIES
In order to restore the status quo ante, in light of Respondent’s
withdrawal of recognition and refusal to bargain with the Union,
Respondent must recognize and bargain with the Union for a
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reasonable period of time as the bargaining representative of the
unit employees. Liberty Bakery Kitchen, Inc., 365 NLRB No. 19,
slip op. at 1 (2018), citing Caterair International, 322 NLRB 64
(1996). Where Respondent has withdrawn recognition, the af-
firmative bargaining order remains the remedy for Respondent’s
unlawful conduct. 365 NLRB No. 19, slip op. at 1.
Respondent must bargain upon request with the Union as the
exclusive collective bargaining representative of employees in
the appropriate bargaining unit and embody any understanding
reached in a signed agreement. Respondent is required to meet
to negotiate with the Union at reasonable times and reasonable
places.
The employees who suffered losses due to Respondent’s un-
lawful unilateral changes will receive make whole remedies as
described in the Order. These employees include any changes in
the kitchen after March 24, 2017 and the schedule changes in
EVS on April 5, 2017. Because I also find that Respondent failed
to notify the Union regarding changes in the EVS department, I
order a similar remedy, beginning from the Union’s election as
bargaining representative. Additionally, employees who suf-
fered losses due to Respondent’s violations of Section 8(a)(3)
will receive make whole remedies as described in the Order.
II. ENHANCED REMEDIES
A. Extension of the Certification Year, Per Mar-Jac Poultry
I find that Respondent’s conduct warrants extension of the
certification year for 12 months. Mar-Jac Poultry, 136 NLRB
785 (1962); Fallbrook Hospital Corp., 360 NLRB 644, 645
(2014), enfd. 785 F.3d 729 (D.C. Cir. 2015). The certification
year should be extended when “‘an employer refuses to bargain
with a newly certified union during part of all of the year imme-
diately following certification. In refusing to bargain, an em-
ployer deprives a union of the expediency of bargaining while
the union holds its “greatest strength.” Fallbrook Hospital, 360
NLRB at 645. The factors that must be considered for are the
“nature of the violations, beginning when Respondent starts to
bargain in good faith. The number, extent, and dates of the col-
lective-bargaining sessions, the impact of the unfair labor prac-
tices on the bargaining process, and the conduct of the union dur-
ing negotiations.” Northwest Graphics, Inc., 342 NLRB 1288,
1289 (2004), rev. denied, enfd. 156 Fed.Appx. 331 (D.C. Cir.
2005).
Respondent has a litany of 8(a)(5) violations, the most severe
of which are the refusal to recognize the Union as the employees’
9(a) bargaining representative within approximately 4 months
after the count of votes and refuse to bargain for a collective-
bargaining agreement. It ultimately refused all bargaining be-
cause the Union would not acquiesce to its demand to allow it to
pursue the test of certification claim. Regarding information re-
quests, the first of which was made in December 2016, Respond-
ent only partially responded to some information requests, and
failed to respond to others. It failed to notify the Union about at
least one intended unilateral change.
In March 2017, Respondent stopped all efforts to bargain in
other quarters as well and made at least three known unilateral
changes shortly thereafter. Fallbrook Hospital Corp., 360
NLRB at 645. It never met to negotiate a collective-bargaining
agreement. Respondent’s brief admits to making numerous
changes without first notifying the Union, and these actions, alt-
hough not litigated, cannot go unnoticed. These unfair labor
practices show that Respondent’s efforts to bargain were less
than good faith, and deprived the represented employees and the
Union over a year of good faith bargaining from Respondent.
HTH Corp., 356 NLRB 1397, 1403 (2011). As a result, I order a
12-month Mar-Jac extension to the certification year, to begin
when Respondent begins to bargain in good faith. Thermico,
Inc., 364 NLRB No. 135, slip op. at 4 (2016); Fallbrook Hospi-
tal, 360 NLRB at 645.
B. Bargaining Schedule
I decline to order a bargaining schedule at this point. The tra-
ditional remedies, coupled with the Mar-Jac extension of the
certification year, should permit Respondent and the Union suf-
ficient time to start negotiations. A remedy of a bargaining
schedule has been declined in more extreme cases of surface bar-
gaining and where Respondent’s defenses were fairly frivolous.
The Leavenworth Times, 234 NLRB 649, 672–673 (1978).
Compare Eastern Maine Medical Center, 253 NLRB 224, 248–
249 (1980), enfd. 658 F.2d 1 (1st Cir. 1981) (employer’s unlaw-
ful conduct extended to bad-faith bargaining, destruction of the
bargaining unit, and publication of bargaining steps to the entire
employee population, not just the bargaining unit, which war-
ranted a bargaining schedule). In addition, the district court’s or-
der for injunctive relief requires Respondent to bargain.
C. Notice Reading
Notice readings are considered an effective but moderate
method of reassuring employees and allowing in a “warming
wind of information . . . .” United States Service Industries, 319
NLRB 231, 232 (1995), enfd. 107 F.3d 923 (D.C. Cir. 1997).
“Reading the notice to the employees in the presence of a respon-
sible management official serves as a minimal acknowledgment
of the obligations that have been imposed by law and provides
employees with some assurances that their rights under the Act
will be respected in the future.” Whitesell Corp. 357 NLRB
1119, 1123–1124 (2011). Remedies are warranted when the vi-
olations are serious, persistent and widespread. Id. at 1124.
The gravity of the violations Respondent committed are seri-
ous, as Respondent withdrew recognition and abandoned agree-
ments with the Union under the guise of obtaining a test of cer-
tification. The gravity is further enforced by the district court’s
findings in its determination to grant injunctive relief and to deny
Respondent’s motion to stay. Whitesell Corp., 357 NLRB at
1124 fn. 15. I rely upon the district court’s determination of
chill, a topic I did not permit testimony as not relevant to deter-
mining the merits of the allegations. The district court also re-
quired Respondent to read its order to employees. See Coffman
v. Queen of the Valley Medical Center, supra. In addition to the
district court’s determination of chill, I also consider the extent
and breadth of Respondent’s 8(a)(5) violations: Respondent
failed to provide information on a number of occasions, it made
unilateral changes, generally admitting in its brief to more than
those litigated here; and most of all, withdrew recognition from
the certified bargaining representative of the bargaining unit em-
ployees. Respondent also committed 8(a)(3) violations. One en-
tire job group, the SPD employees was affected not only by the
QUEEN OF THE VALLEY MEDICAL CENTER 47
unilateral changes but Respondent’s violation of Section 8(a)(3).
With the chill and violations found, I find that a notice reading
is warranted here. Although Respondent is not a “repeat cus-
tomer,” with more than one Board order to come, its main viola-
tion of withdrawing recognition and failing to bargain with the
Union has continued. The notice should be read aloud, in Eng-
lish and any other languages that the Regional Director deems
necessary, to the bargaining unit employees during working
hours by a senior management member, or failing that, a Board
agent in the presence of a senior member of management.
D. Union Access to Bulletin Boards
Regarding General Counsel’s request for Union access to the
bulletin board and all places where notices to employees are cus-
tomarily posted, I deny this request. This remedy is applied
when an employer has taken immediate action against the em-
ployees who attempt to aid a union and to do so to make “em-
ployees think twice before doing so again.” U.S. Service Indus-
tries, Inc., 319 NLRB 231, 232 (1995). Poulson has retained the
ability, albeit sometimes restricted, to meet with employees in
the cafeteria. The remedies herein, with the notice reading and
correction of the Union’s access to meeting rooms, should be
sufficient to notify employees of their rights.
E. Consequential Damages
General Counsel proposes that the discriminatees receive con-
sequential damages. Arroyo, for example, had to change shifts
and make additional transportation arrangement, and possibly
other child care arrangements. McNelis lost a second job and its
income. Although these events are due to Respondent’s unlaw-
ful conduct, the Board has yet to require payment for consequen-
tial damages. I am obligated to follow existing Board precedent
for the remedies in this case. Pathmark Stores, Inc., 342 NLRB
378, 348 fn. 1 (2004); Waco, Inc., 273 NLRB 746, 749 fn. 14
(1984). Accordingly, I deny General Counsel’s request for con-
sequential damages.
ORDER
Respondent Queen of the Valley Medical Center, Napa, Cali-
fornia, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Threatening employees with futility for their union and
protected concerted activities.
(b) Failing to honor employees’ requests for union represen-
tation during investigatory interviews.
(c) Changing employees’ shift assignments due to their union
and/or protected concerted activities.
(d) Changing employees’ work duties due to their union
and/or protected concerted activities.
(e) Failing and refusing to bargain in good faith over the terms
and conditions of a collective bargaining agreement with Na-
tional Union of Healthcare Workers (Union) as the exclusive col-
lective-bargaining representative of the employees in the follow-
ing unit:
All nonprofessional employees, including technical employ-
ees, employed by Respondent at its facilities located at 1000
Trancas Street, 980 Trancas Street, 3448 Villa Lane, and 3421
Villa Lane in Napa, California; but excluding all other
employees, skilled maintenance employees, business office
clerical employees, confidential employees, guards, and super-
visors as defined in the Act.
(f) Withdrawing recognition of the Union as the exclusive
bargaining representative of bargaining unit employees within
the certification year bar, without objective evidence that the Un-
ion actually lost the support of a majority of bargaining unit em-
ployees.
(g) Refusing to bargain collectively with the Union by failing
and refusing to furnish it with requested information that is rele-
vant and necessary to the Union’s performance of its functions
as the collective-bargaining representative of the Respondent’s
unit employees.
(h) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act:
(a) Within 14 days from the date of this Order, offer Miguel
Arroyo full reinstatement to his former job on the evening shift,
or, if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or priv-
ileges previously enjoyed.
(b) Within 14 days from the date of this Order, remove from
their files any reference to the unlawful shift reassignment and
loss of lead position for Miguel Arroyo and, within 3 days there-
after notify Arroyo in writing that this has been done and that the
shift reassignment and loss of lead position will not be used
against him in any way.
(c) Make Miguel Arroyo whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him.
(d) Make whole Miguel Arroyo, with interest, for any losses
suffered by reason of the unlawful unilateral changes in terms
and conditions of employment, including but not limited to mak-
ing contributions to employees’ 401(k) accounts that Respond-
ent would have paid but for the unlawful unilateral changes.
(e) Make SPD employees who for any loss of earnings and
other benefits suffered as a result of the discrimination against
them.
(f) The make whole remedy for the unlawful discrimination
suffered by Arroyo and SPD employees, including Martha
McNelis, 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), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010).
(g) The make whole remedy for the unlawful unilateral
changes suffered by the EVS employees and SPD employees,
including Martha McNelis, shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010).
(h) In accordance with Don Chavas, LLC, 361 NLRB 101
(2014), Respondent shall compensate Miguel Arroyo, the
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
kitchen employees and SPD employees affected by the unlawful
schedule and duty changes, for the adverse tax consequences, if
any, of receiving lump sum backpay awards, and, in accordance
with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016),
the Respondent shall, within 21 days of the date the amount of
backpay is fixed either by agreement or Board order, file with
the Regional Director for Region 20 a report allocating backpay
to the appropriate calendar year for each employee. The Re-
gional Director will then assume responsibility for transmission
of the report to the Social Security Administration at the appro-
priate time and in the appropriate manner.
(i) 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 elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(j) On request, bargain with the Union as the exclusive col-
lective-bargaining representative of the unit employees concern-
ing terms and conditions of employment and, if an understanding
is reached, embody the understanding in a signed agreement.
The Union’s certification is extended 12 months from the date
that Respondent beings to comply with this Order.
(k) Before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employees,
notify and, on request, bargain with the Union as the exclusive
collective-bargaining representative of employees in the bar-
gaining unit.
(l) Rescind, upon request of the Union, the changes in the
terms and conditions of employment for its unit employees that
were unilaterally implemented on the following dates:
i. On April 5, 2017, regarding change of schedules for SPD
employees;
ii. On about April 21, 2017, regarding Respondent’s abroga-
tion of the kitchen construction agreement; and,
iii. On March 24, 2017, refusing to allow the Union to schedule
meeting rooms at Respondent’s facility.
(m) Furnish to the Union in a timely manner the information
requested by it on the following dates:
i. December 15, 2016 and January 24, 2017, related to changes
in Renee Frogge’s linen duties;
ii. January 10, 2017 request for information to bargain full col-
lective bargaining agreement;
iii. March 2, 2017 request for information to Interim Director
of Surgical Services Kriegel, related to possible schedule
changes for SPD employees;
iv. March 21, 2017 request for information regarding the phar-
macy;
v. March 21, 2017 request regarding EVS and policies related
to disciplinary action; and,
vi. March 21, 2017 request regarding productivity calculations
in patient access services.
(n) With 14 days after service by the Region, post at its facil-
ities copies of the attached notice marked “Appendix.” Copies
of the notice, on forms provided by the Region Director for Re-
gion 20, after being signed by Respondent’s authorized repre-
sentative, shall be posted by Respondent and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. The Re-
gional Director may determine that the notice be translated into
other languages. In addition to physical posting of paper notices,
notices in each language deemed appropriate shall be distributed
electronically, such as by email, posting on an internet or an in-
ternet site, and/or other electronic means, if Respondent custom-
arily communicates with its employees by such means. Reason-
able steps shall be taken by Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the
event that Respondent has gone out of business or closed any
facility involved in these proceedings, Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice in each
appropriate language to all current employees and former em-
ployees employed by Respondent at any time since December
22, 2016. Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and former
employees employed by the Respondent at Respondent’s facili-
ties at any time since December 22, 2016.
(o) Within 14 days after service by the Region, hold a meeting
or meetings, scheduled to ensure the widest possible attendance,
at which the attached notice is to be read to the employees by a
responsible corporate executive in the presence of a Board agent
or, at Respondent’s option, by a Board agent in the presence of a
responsible corporative executive.
(p) Within 21 days after service by the Region, file with the
Regional Director for Region 20 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that Respondent has taken to comply.
IT IS FURTHER ORDERED that the consolidated complaint is dis-
missed insofar as it alleges violations of the Act not specifically
found.
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 coercively threaten you with futility of unioni-
zation.
WE WILL NOT deny your requests to have representatives of the
National Union of Healthcare Workers (NUHW) present during
investigatory interviews.
QUEEN OF THE VALLEY MEDICAL CENTER 49
WE WILL NOT change your wages, hours, or other terms and
conditions of employment in order to discourage you from en-
gaging in union and/or protected concerted activities.
WE WILL NOT withdraw recognition from and fail and refuse
to recognize the National Union of Healthcare Workers
(NUHW) as the certified bargaining agent of our employees
WE WILL NOT change your wages, hours, or other terms and
conditions of employment, without first notifying the Union and
giving the Union an opportunity to bargain about the changes.
WE WILL NOT fail to provide the Union with requested infor-
mation that is necessary and relevant to its bargaining duties.
WE WILL NOT unilaterally change shift assignments or effects
bargaining agreements without notifying the Union and giving
the Union an opportunity to bargain.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL recognize and, upon request, bargain in good faith
with NUHW, the exclusive bargaining representative of the bar-
gaining unit listed above, and if an understanding is reached, em-
body the understanding in a signed agreement. The unit is as
follows:
All nonprofessional employees, including technical employ-
ees, employed by [Respondent] at its facilities located at 1000
Trancas Street, 980 Trancas Street, 3448 Villa Lane, and 3421
Villa Lane in Napa, California; but excluding all other employ-
ees, skilled maintenance employees, business office clerical
employees, confidential employees, guards, and supervisors as
defined in the Act.
WE WILL, upon request, provide NUHW with information that
is necessary and relevant to its duties as bargaining representa-
tive and WE WILL provide NUHW with the information re-
quested, as described in the Order.
WE WILL restore Miguel Arroyo to his previously assigned du-
ties on the previously assigned shift, or a similarly, and WE WILL
make him whole, and WE WILL remove from his file within 3 days
all references to our unlawful action and notify him in writing
within 3 days that this has been done.
WE WILL restore SPD employees to their previously scheduled
shifts and duties, in effect before April 5, 2017, and WE WILL
make them whole for any losses incurred by our unlawful con-
duct. WE WILL remove from their files within 3 days all refer-
ences to our unlawful actions and notify them in writing within
3 days that this has been done.
WE WILL make whole all EVS and kitchen employees who suf-
fered losses due to our unlawful unilateral changes and WE WILL
remove from their files within 3 days all references to our un-
lawful actions and notify them in writing within 3 days that this
has been done.
WE WILL, upon request of NUHW, restore the terms and con-
ditions of the kitchen agreement.
WE WILL, upon request of NUHW, schedule meeting rooms
for union meetings in our facilities.
QUEEN OF THE VALLEY MEDICAL CENTER
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/20–CA–191739 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, SE., Washington, D.C. 20570, or by calling (202)
273-1940.