ST. FRANCIS REGIONAL MEDICAL CENTER

National Labor Relations Board - Administrative Judge Opinions

Jun 12, 2013

18-CA-092542 (N.L.R.B. Jun. 12, 2013)

JD–39–13
Shakopee, MN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ST. FRANCIS REGIONAL MEDICAL
CENTER
and Cases 18–CA–92542
18–CA–94066
SEIU HEALTHCARE MINNESOTA
Catherine L. Homolka, Esq. and
Tyler J. Wiese, Esq.
for the Acting General Counsel.
Paul J. Zech, Esq. and
Thomas R. Trachsel, Esq.
for the Respondent.
Brendan D. Cummins, Esq.
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge .1 This case was tried in Minneapolis
Minnesota on March 13, 14, and 15, 2013. SEIU Healthcare Minnesota filed the charge in Case
18–CA–92542 on November 5, 2012 and in Case 18–CA–94066 on December 3, 20122 and the
General Counsel issued an order consolidating cases, consolidated complaint, and notice of
hearing on January 16, 2013. On February 13, 2013, the Acting3 General Counsel filed an
amendment to the consolidated complaint. The amended consolidated complaint alleges that St.
Francis Regional Medical Center (Respondent) violated Sections 8(a)(3) and 8(a)(1) of the Act
by discharging two of its employees because they engaged in union and other concerted

1 Respondent argues that any actions taken by this Board, including its agents and delegates, lack
authority because the court in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013) found the recess
appointments of members Sharon Block and Richard Griffin were unconstitutional and invalid. Thus, the
Board lacks a quorum. Thus, the Board lacks a quorum. I reject this contention. The Board does not
accept the decision in Noel Canning, in part, because it is the decision of one circuit court and there is a
conflict among the circuits regarding this issue. Belgrove Post Acute Care Center, 359 NLRB No. 77, slip
op. ***fn. 1 (2013).
2 All dates are in 2012 unless otherwise indicated.
3 For purposes of brevity, the Acting General Counsel is referenced herein as General Counsel.
JD–39–13
Shakopee, MN
2
activities.4 The amended consolidated complaint further alleges that Respondent violated
Sections 8(a)(5) and 8(a)(1) of the Act by unreasonably delaying providing SEIU Healthcare
Minnesota (Union) with certain information. The amendment to the consolidated complaint
further alleges that Respondent violated Section 8(a)(1) of the Act by interrogating and
threatening an employee with discipline, up to and including discharge, because she engaged in 5
union and other concerted activities. Respondent timely filed answers denying the alleged
violations in the consolidated complaint and amendment to the consolidated complaint.
Respondent’s answer further raised ten affirmative defenses. (GC Exh. 1(g)). The parties were
given full opportunity to participate, to introduce relevant evidence, to examine and cross-
examine witnesses, and to file briefs. On the entire record,5 including my own observation of the 10
demeanor of the witnesses, 6 and after considering the briefs filed by the General Counsel and
Respondent,7 I make the following
FINDINGS OF FACT
15
I. JURISDICTION
Respondent, a medical center engaged in providing acute care and clinical services, with an
office and place of business in Shakopee, Minnesota, annually derives gross revenues in excess
of $250,000 and receives goods valued in excess of $50,000 directly from points outside the 20
State of Minnesota. The Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
At all material times the Union has been a labor organization within the meaning of Section
2(5) of the Act. 25
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
30
The primary issue in these cases is whether Respondent violated Sections 8(a)(3) and 8(a)(1)
of the Act in discharging two of its employees for what Respondent asserts was a violation of its
patient confidentiality policies, which occurred while the employees were engaged in the
investigation of a potential grievance. The General Counsel maintains that these employees were

4 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for Respondent’s
Exhibit; “GC Exh.” for Acting General Counsel’s Exhibit; “CP Exh.” for Charging Party’s Exhibit; “GC
Br.” for the Acting General Counsel’s Brief; and “R Br.” for Respondent’s Brief.
5 I make the following corrections to the transcript: : Tr. 95, L. 14: “indirect” should be “in direct”;
Tr. 95, LL. 8 and 13: “hazard” should be “hazardous”; Tr. 189, L. 12: “SEU” should be “SEIU”; Tr. 315,
LL. 9 and 25: “111” should be “LLL”; Tr. 316, L. 1: “111” should be “LLL”; Tr. 356, L. 20: “Lea”
should be “Leah”; Tr. 366, L. 24 “e-identification” should be “de-identification”; Tr. 390, L. 21: “fact”
should be “face”; Tr. 514, L. 25: “docket” should be “document”; Tr. 520, L. 17: “Lea” should be “Leah”;
Tr. 521, L. 12: “formation” should be “information”; and Tr. 620, L. 20: “or” should be “over.”
6 Although I have included citations to the record to highlight particular testimony or exhibits, I
emphasize that my findings and conclusions are not based solely on those specific record citations, but
rather are based on my review and consideration of the entire record for this case.
7 Charging Party did not submit a brief.
JD–39–13
3
unlawfully discharged for engaging in union activity. Respondent, however, maintains that it
was merely enforcing its legitimate policies in discharging the employees.
An issue also exists as to whether Respondent violated Section 8(a)(1) of the Act in
questioning one of the employees about her grievance investigation and threatening her with 5
discipline for refusing to reveal certain information to Respondent. The General Counsel alleges
that the questioning and threats of discipline violate the Act in that they would reasonably tend to
interfere with, restrain, or coerce employees in their exercise of Section 7 rights. Respondent
asserts that the questioning was lawful in that it was narrowly tailored to its investigation of a
potential patient privacy breach. Furthermore, Respondent asserts that it did not threaten the 10
employee, but merely advised her of the consequences of refusing to cooperate in its lawful
investigation.
Another issue in the case is whether Respondent violated Sections 8(a)(5) and 8(a)(1) of the
Act by unreasonably delaying its response to an information request made by the employees’ 15
union in conjunction with grievances filed regarding their discharges. The General Counsel
asserts that Respondent failed to provide the information in a timely fashion. Respondent asserts
that it responded to the request as expeditiously as possible given the scope of the requests.
As a preliminary matter, Respondent asserts that this case should be deferred to the 20
grievance-arbitration procedure set forth in the parties’ collective-bargaining agreement. The
General Counsel maintains that deferral is inappropriate, given that the case arose in the context
of employees engaging in protected, concerted activity and because the case involves an
allegation of refusal to timely provide information.
25
B. Overview of Respondent’s Operations
Respondent is an acute care and clinical services facility located in Shakopee, Minnesota.
(Tr. 36). Respondent is an affiliate hospital of Allina Health (Allina). (Tr. 35). Allina is a family
of hospitals and clinics located in Minnesota and Wisconsin. (Tr. 35). Allina has offices in 30
Minneapolis, Minnesota. (Tr. 36). Several of Respondent’s functions, including human
resources, health information management, privacy, and labor-management relations, are
supported by Allina. (Tr. 37, 582, 738). Respondent has an onsite human resources department.
(Tr. 37).
35
1. The Health Information Management Department
Respondent’s health information management (HIM) department is divided into two
divisions: operations and transcription. (Tr. 58). Transcription employees transcribe dictation by
physicians into medical records. (Tr. 84–85). During the time period at issue, there were only 40
five employees in the operations division of Respondent’s HIM department; three of these
employees worked full time and two worked part time. These employees held the title of Health
Information Services Assistant (HISA) III. (Tr. 58).
HISA IIIs in Respondent’s HIM department perform four job functions (or workflows), on a 45
rotational basis. (Tr. 86, 167). These functions are outpatient processing, inpatient processing,
receptionist, and release of information (ROI). (Tr. 86, 167). During the course of their
JD–39–13
4
workday, HIM employees have regular access to protected health information (PHI). (Tr. 583).
When HIM employees are performing in inpatient or outpatient processing, they gather paper
medical records and scan them into electronic medical records. (Tr. 86–87). When performing
ROI duties, operations employees review requests for patient records and release the records.
(Tr. 87). 5
2. Management structure
All of the witnesses who testified on behalf of Respondent in this case were employees of
Allina; Respondent did not call any witnesses employed by St. Francis Regional Medical Center. 10
Several Allina departments, and their counterparts in Respondent’s facility, are involved in this
case.
Derek Kang is a Senior Vice President and Chief Compliance Officer of Allina. (Tr. 770).
Jean Wirzbach is Allina’s Corporate Compliance Director. (Tr. 698). Wirzbach reports to Kang. 15
(Tr. 698). Megan Szlechtowski is Allina’s Compliance Manager and was previously
Respondent’s HIM manager (Tr. 696–697). Szlechtowski reports to Wirzbach. (Tr. 698).
Brian Erickson is Allina’s Corporate HIM Director. (Tr. 583). Erickson reports to Allina’s
Chief Information Officer, Susan Heichert. (Tr. 584). Michelle Weiss holds two titles: health 20
information manager and privacy and security lead. (Tr. 402–403). Weiss supports both
functions for Respondent. (Tr. 581; 585). Weiss reports to Erickson. (Tr. 583). Beth Fischer is
Respondent’s HIM manager and reports to Weiss. (Tr. 582–583). Darlene Walsh is a supervisor
in Respondent’s transcription department, part of the HIM department; she reports to Erickson.
(Tr. 85, 450). 25
Mary Selvig is a senior human resources generalist employed by Allina; she supports
Respondent. (Tr. 35). Selvig reports to Allina’s Director of Human Resources, Lisa Schwartz.
(Tr. 445). Leah Schmoyer is a human resources generalist employed by Allina; she is a
coworker of Selvig. (Tr. 300, 521). Anita Nystrom is Respondent’s onsite human resources 30
generalist. (Tr. 296, 446).
Timothy Kohls is Allina’s Director of Labor Relations. (Tr. 737). Sandy Francis and Tim
Ewald are attorneys in Respondent’s Labor Relations Department. (Tr. 739).
35
Respondent admits that Schmoyer, Selvig, and Weiss are its agents within the meaning of
Section 2(13) of the Act. (GC Exh. 1(g)). Erickson, Ewald, Fischer, Francis, Nystrom,
Schmoyer, Schwartz, Walsh, and Wirzbach were not called as witnesses at the hearing.
3. Respondent’s labor relations40
Since 2005, certain of Respondent’s employees have been represented for purposes of
collective bargaining by SEIU Healthcare Minnesota (Union):
All full-time and regular part-time nonprofessional employees employed by 45
Respondent at its Shakopee, Minnesota, facility; excluding all other employees,
office clerical employees, and guards and supervisors as defined by the Act.
JD–39–13
5
(GC Exhs. 1(e) and (g)). The current collective-bargaining agreement between Respondent and
the Union is effective through February 28, 2015. (GC Exh. 12 p. 76). This collective-
bargaining agreement covers six Allina facilities, including Respondent’s. (GC Exh. 12, pp. 1–
2). Each Allina facility has a separate bargaining unit. (GC Exh. 12, pp. 1–2; Tr. 744). 5
Article 7 of the parties’ collective-bargaining agreement contains a 4-step grievance-
arbitration procedure. (GC Exh. 12, pp. 9–12). At the first step of the procedure, entitled “pre-
grievance,” an employee or steward discusses an alleged grievance with his or her manager in an
attempt to resolve the issue. (GC Exh. 12, p. 10). Information requests are common at the pre-10
grievance step. (Tr. 387). If the matter is not resolved at the pre-grievance step, or the second or
third step, it may be submitted to final and binding arbitration. (GC Exh. 12, p. 11). Any action
arising out of the interpretation, application, or adherence to the terms or provisions of the
collective-bargaining agreement or arising out of disciplinary and discharge actions taken by
Respondent are subject to the parties’ grievance and arbitration procedure. (GC Exh. 12, p. 9). 15
The current collective-bargaining agreement has several other articles implicated in this case.
Article 1 (Recognition) prohibits discrimination against an employee based on union
membership or because of the employee’s assertion of rights afforded under the collective-
bargaining agreement. (GC Exh. 12, p. 2). Article 4 (Union Stewards) recognizes the right of 20
union stewards to handle union business at the hospital where they are employed. (GC Exh. 12,
p. 6). Article 6 (Corrective Action and Discharge) requires just cause for initiating corrective
action, discharge, or suspension of an employee. (GC Exh. 12, pp. 8–9).
Jamey Gulley is President of the Union. (Tr. 370). Brenda Hilbrich is the Director of the 25
Union’s Member Action Center (MAC) and education. (Tr. 288). The Union represents
employees at other Allina facilities, including Abbott Northwestern Hospital. (GC Exh. 12). Jeff
Sarro and Valerie Wooten are union stewards at Abbott Northwestern Hospital. (Tr. 198). Liz
Asmus is an internal organizer employed by the Union. (Tr. 213).
30
From 2006 to 2011, Allina and the Union maintained a strategic alliance. (Tr. 373, 759). As
part of the strategic alliance, Allina and the Union worked on numerous joint projects aimed at
improving efficiency; in exchange, the Union was provided enhanced employment security
benefits and neutrality. (Tr. 374, 759). In 2011, Allina advised the Union it was no longer
interested in neutrality or in the Union’s involvement in Allina business decisions. (Tr. 375, 35
760). The strategic alliance was modified and greatly reduced in its scope. (Tr. 373, 760, 766).
Gulley testified that the Union’s relationship with Respondent has become negative since the
strategic alliance dissolved. (Tr. 389). Gulley described the parties’ current relationship as
strained. (Tr. 390).
40
4. Respondent’s policies concerning patient confidentiality
Respondent maintains a myriad of policies directed at ensuring patient confidentiality in
compliance with the Health Insurance Portability and Accountability Act (HIPAA), the
Minnesota Health Records Act, and Minnesota Patient Bill of Rights. (Tr. 774–775). The 45
privacy interests of Respondent’s patients are substantial, and Respondent has a significant
JD–39–13
6
interest in preventing wrongful disclosure of protected health information. See, e.g., 42 U.S.C. §
1320d-6 (prohibiting wrongful disclosure of individually identifiable health information).
The implementing regulations for HIPAA, promulgated by the United States Department of
Health and Human Services (HHS), contain exceptions that permit a covered entity to disclose 5
protected health information without an authorization or consent for purposes of carrying out its
health care operations. 45 CFR §164.501(6)(iii). Health care operations include the resolution of
internal grievances. Id. HIPAA regulations also allow a covered entity to disclose protected
health information without written authorization to the extent such use or disclosure is required
by law. 45 CFR § 164.512. HHS is of the view that HIPAA regulations exempt information 10
otherwise to be supplied under the Act in collective bargaining and in the grievance procedure:
[t]o the extent a covered entity is required by law to disclose protected health
information to collective bargaining representatives under the NLRA, it may do
so without an authorization. Also, the definition of “health care operations” at 15
Sec. 164.501 permits disclosures to employee representatives for purposes of
grievance resolution.
Federal Register, vol. 65, No. 250, 65 FR 82462, 82598 (Dec. 28, 2000). See also Id. at 82485
(referencing “Other Mandatory Federal or State Laws” with specific mention of the Act, and 20
stating: “If a federal law requires a covered entity to disclose a specific type of information, the
covered entity would not need an authorization. . . to make the disclosure.”).
Allina defines Protected Health Information (PHI) as health information that identifies or
could reasonably be used to identify the individual, and relates to: an individual’s physical or 25
mental health or condition; the provision of health care to an individual, or; payment for health
care provided to an individual. (R. Exh. 25). Allina has an obligation to recover improperly
disclosed PHI to protect patient privacy and prevent further unauthorized disclosure. (Tr. 604,
605).
30
Allina’s confidentiality of patient information policy allows for disclosure of PHI only for a
legitimate business reason. (R. Exh. 25). In determining whether a legitimate business reason
exists to access, use, or disclose the information, the employee must consider whether it is the
minimum amount of information necessary to accomplish the intended purpose. (R. Exh. 25; Tr.
420). The investigation of a potential grievance is not listed as a legitimate business reason in 35
the policy. (Tr. 239, 675). Weiss was not sure whether collective-bargaining activity is a
legitimate business reason; however, she testified that the Union is not an Allina business unit
and, therefore, its stewards have no legitimate business reason for disclosing PHI. (Tr. 420, 421).
Allina maintains a de-identification policy. (R. Exh. 30). This policy states that Allina may 40
use or disclose PHI without patient authorization when it is de-identified. (Id.). De-identified
information is PHI that does not identify the individual, or any relatives, household members, or
employers, and from which there is no reason to believe the person can be identified. (Id.).
Redaction is the process of removing information that is individually identifiable. (Id.). It is
Allina’s policy to redact all documents going outside of Allina; the Union is considered outside 45
JD–39–13
7
of Allina. (Tr. 421–422). HISA IIIs in Respondent’s HIM department are not trained on de-
identification or redaction, as these are not part of their job function. (Tr. 420).8
Allina also maintains a “minimum necessary policy” for sharing PHI internally. (Tr. 804).
The minimum necessary standard is that employees should share the minimum amount of 5
information necessary to conduct their purpose in payment, treatment, or operations. (Tr. 804).
Under this policy, internal investigations are a permissible use of patient medical records. (Tr.
428). The term “internal investigation” is not defined in the policy. (Tr. 76). The minimum
necessary policy does not specifically exclude the processing of grievances as being an internal
investigation.9 (Tr. 76). 10
All of the aforementioned policies are those of Allina. However, they apply to all Allina
facilities and, therefore, to Respondent and its employees. None of Allina’s policies prohibit
redacting or sharing PHI for the purpose of investigating a grievance. (Tr. 675).
15
Allina maintains a management tool for investigating violations of its patient privacy
policies. (R. Exh. 28a). Privacy violations fall into three categories: Level 1; Level 2, and; Level
3. (R. Exh. 28a; Tr. 642–643). The alleged breaches of patient confidentiality at issue in these
cases were classified as Level 3, the most serious level of violation. (R. Exhs. 22a and b; Tr.
643). A Level 1 violation is defined as an unintentional violation or carelessness. (R. Exh. 28a). 20
Examples of Level 1 violations include talking loudly about a patient or leaving passcodes in
obvious places. (R. Exh. 28a). A Level 2 violation is defined as intentional use, disclosure, or
access without following proper rules, policies, or procedures. (R. Exh. 28a). Examples of Level
2 violations include accessing PHI of a family member or acquaintance who has given
permission but has not signed an authorization, giving access codes to or signing in for a 25
coworker who has forgotten his or her password. (R. Exh. 28a). A Level 3 violation is defined as
intentional use, disclosure, or access without a permitted business reason, such as curiosity,
personal gain, ill will, or intent to harm a patient or others. (R. Exh. 28a). Examples of Level 3
violations include accessing PHI of a celebrity or high profile patient out of curiosity, accessing
PHI of a coworker to see why the coworker was in the hospital, accessing PHI of a family 30
member or neighbor without permission, or sharing patient information for employee gain. (R.
Exh. 28a). Determining the level of a privacy violation is left to the discretion of an investigative
team. (Tr. 715).10
Corrective actions for the various levels of privacy violations are also set forth in Allina’s 35
management tool. For a first Level 1 violation, managers should provide reeducation, coaching,
or verbal warnings. (R. Exh. 28a). For a first Level 2 violation, managers should deliver

8 De-identification is only to be performed when information is being used for a research study or for
a mandatory report or disclosure to a federal agency.
9 Respondent’s witnesses also referred to this as the “minimally necessary policy.” (Tr. 428).
10 The General Counsel admitted into evidence a version of this same management tool dated July 23,
2010. (GC Exh. 38). Respondent’s witnesses testified that its undated version of the tool was the one in
effect at the time of the events giving rise to these cases. (R. Exh. 28a; Tr. 641). As the language in R.
Exh. 28a is more consistent with the language used in the violation of confidentiality investigation forms
pertaining to Theis and Wolf (R. Exhs. 22a and b), I credit this testimony and have relied upon
Respondent’s version of the management tool in this decision.
JD–39–13
8
reeducation and a written warning or suspension. (R. Exh. 28a). For a first Level 3 violation,
managers should consult with human resources to see if termination is appropriate. (R. Exh.
28a). Not all Level 3 violations result in termination. (Tr. 708). Managers may also consider, in
consultation with human resources, the following factors in deciding the level of discipline:
employee history of corrective action; whether the employee has previously violated 5
confidentiality, and; whether the employee understands the seriousness of the offense and agrees
not to engage in any further violations. (R. Exh. 28a). Human resources and/or labor relations
are charged with overseeing the administration of corrective action in order to ensure system-
wide consistency. (R. Exh. 28a).
10
Allina employs a violation of confidentiality investigation form for investigating patient
privacy policy violations. (R. Exhs. 22a and b). This form contains narrative sections, as well as
boxes that can be checked. (Id.). Relevant here, the form has a check-box section in which to
explain the rationale for termination; all that apply are to be checked. (Id.). The boxes in this
section are labeled: curiosity; coworker access; family or friend access; other; sharing for gain; 15
previous violation; and previous privacy issues. (Id.). Respondent characterized these as
“factors,” none of which are outcome determinative. (Tr. 407–408). Respondent also listed a
number of other “factors” that can be considered in deciding whether to terminate an employee
for a patient privacy violation, including reckless disregard, malice, intent, and whether the
employee completed Allina compliance training. (Tr. 425, 658, 669–670). 20
Respondent’s employees are required to undergo a 45 minute annual training regarding its
policies using the Allina Knowledge Network (AKN), a computer system available to all
employees. (R. Exh. 45; Tr. 69, 94–96, 269). The employees participate in this training and take
a test at the end via computer. (Tr. 96). Disposal of hazardous materials, Allina’s financial 25
assistance program, anti-kickback laws, and other topics unrelated to patient privacy are also
covered in the annual training. (R. Exh. 45; Tr. 95). The privacy issues scenarios are rather
basic. (Tr. 659–660). Employees in Respondent’s HIM department also undergo periodic
informal training as part of monthly staff meetings, some of which concerns patient privacy. (R.
Exh. 42(b); Tr. 173).1130
In the past, Respondent has shared PHI with the Union in responding to information requests.
(Tr. 317). At the hearing, the Union produced four sets of documents that it had received from
Allina containing PHI. (Tr. 322–333; CP Exhs. 1, 2, 3, 4).12 These documents contained the
patients’ names, date of service, diagnoses, dates of birth, procedures, gender, and other PHI of 35
the very type Respondent asserts can be used to identify a patient. (Tr. 322–333). The Union
indicated that it had received other, similar documents containing PHI from Allina. (Tr. 363–
364).13
5. Employment of Meredith Theis and Maria Wolf
40

11 In Allina’s 2012 compliance training, one scenario resulted in the firing of an employee for posting
patient information on Facebook. (R. Exh. 25). Another scenario involves encrypting email messages
containing PHI. (Id.).
12 These documents were admitted under seal to protect the identities of the patients.
13 Selvig erroneously testified that, “Allina would never give an unredacted patient medical record to
a steward pursuant to an information request.” (Tr. 68).
JD–39–13
9
Meredith Theis was employed by Respondent from February 28, 2006 until November 2,
2012, when she was terminated for what Respondent claims was a violation of its patient
confidentiality policies. (R. Exh. 22(b); Tr. 83–84). Theis was a full-time HISA III in
Respondent’s HIM department at the time of her discharge. Theis had never been disciplined
during her employment with Respondent. (Tr. 129). In fact, Theis had been recognized for her 5
good work 10 to 12 times during her employment with Respondent. (Tr. 128–129). As a HISA
III in the HIM department, Theis was regularly required to view medical records. (Tr. 86–87).
Theis was a member of the Union, albeit a passive member. (Tr. 155).
Maria Wolf was employed by Respondent from November 8, 1999, until November 2, 2012, 10
when she was terminated for what Respondent claims was a violation of its patient
confidentiality policies. (R. Exh. 22(a); Tr. 166, 222). At the time of her discharge, Wolf was a
part-time HISA III in Respondent’s HIM department. (Tr. 167–168). Wolf, like Theis, had never
been disciplined by Respondent prior to her discharge. (Tr. 223). Both Wolf and Theis were
supervised by Fischer. (Tr. 90, 168). 15
Wolf was also a union steward from 2005 until the time of her termination. (Tr. 177–178). In
fact, she was the lead steward at Respondent’s facility. (Tr. 178). Wolf served as a union
delegate to the strategic alliance. (Tr. 373). Jamie Gulley, President of the Union, characterized
Wolf as an incredibly effective and tenacious steward. (Tr. 370; 372). 20
Theis admitted that she understood the importance of patient confidentiality and that Allina
takes patient confidentiality very seriously. (Tr. 132). Both Theis and Wolf understood that
Allina maintains policies regarding patient privacy. (Tr. 132, 241). They also admitted they had
completed Respondent’s compliance training. (Tr. 97, 170). Theis knew that Allina has 25
terminated other employees for privacy breaches. (Tr. 147).
6. Events preceding the termination of Meredith Theis and Maria Wolf
In the course of her ordinary workflow, Theis came upon a medical record with the initials 30
“DAW” as the transcriptionist. (Tr. 104). Theis found this odd because she did not know any
transcriptionist employed by Respondent having those initials. (Tr. 106–107). Instead, Theis
knew a supervisor in the transcription department, Darlene Walsh, who had those initials.(Tr.
106, 129). Theis became concerned that a supervisor was performing bargaining unit work, a
potential violation of the parties’ collective-bargaining agreement. (Tr. 107; GC Exh. 12). Theis 35
also knew that bargaining unit members were being required to take unpaid days off (low need
days) and had heard rumors of layoffs due to a low volume of available work. (GC Exh. 7; Tr.
112).
Therefore, Theis made a copy of this medical record and used white correction tape to cover 40
the name, date of birth, medical record number, and patient address on the record. (GC Exh. 7; J
Exh. 2; Tr. 104).14 Theis then put this redacted document into a locked cabinet above her desk

14 Jt. Exh. 2 contains several color coded redactions. Those appearing in yellow are those that Theis
redacted before giving the document to Wolf. (Tr. 101). Allina redacted the portions in red for purposes
of the hearing. (Tr. 187).
JD–39–13
10
for safekeeping. (Tr. 108, 115). Over the following weeks, Theis saw three other documents
bearing the initials “DAW” as the transcriptionist. (Tr. 105, 108). Theis redacted these three
documents in a similar fashion to the first document and stored them in the same locked cabinet
above her desk. (Tr. 108).
5
On September 16, Theis went to see Wolf in the steward office. Theis was on her lunch
break and Wolf was on a paid steward day at the time of the meeting. (Tr. 110–111, 185).
During the meeting, Theis related her suspicion that a supervisor was doing bargaining unit
transcription work. (Tr. 111, 186). Wolf promised to investigate Theis’ suspicion. (Tr. 112,
187). Theis gave the four redacted documents she had collected to Wolf. (Tr. 111, 186–187). 10
Theis believed it was important to give the documents in their entirety to Wolf to assist her in the
investigation. (Tr. 157). Wolf locked the documents in a cabinet inside the steward office. (Tr.
111–112; 188–189).15
Wolf candidly testified that there had been tension between her and Walsh in the past; she 15
had accused Walsh of assault a decade ago. (Tr. 260). However, Wolf’s unrebutted testimony
was that her relationship with Walsh was not strained at the time of the events giving rise to
these cases. (Tr. 259–260).
On September 26, pursuant to the pre-grievance step of the parties’ collective-bargaining 20
agreement, Wolf sent an email to Mary Selvig seeking information regarding whether Walsh was
performing bargaining unit transcription work. (Tr. 196, 236; GC Exh. 7). Wolf attached a copy
of one of the redacted documents provided by Theis to her email in order to expedite her
information request. (Tr. 197; GC Exh. 7; J Exh. 2). That redacted document is identified in the
record as Joint Exhibit 2 and it is crucial to the case because Respondent contends that it is a 25
confidential document that should not have been shared with others, including the Union’s
agents.
Wolf did not encrypt this message. (Tr. 695). She also copied Liz Asmus, Valerie Wooten,
and Jeff Sarro when she sent the email to Selvig. (Tr. 197; GC Exh. 7). Wolf copied Asmus, as 30
she had done in the past. (Tr. 199–200). Asmus was the support person at the Union who
assisted the stewards at Respondent’s facility. (Id.) She copied the other stewards because she
feared that supervisors might also be performing similar unit work at other Allina facilities. (Tr.
200–201).16
35
When Selvig received Wolf’s email, she did not initially open the attachment. (Tr. 451).
Instead, she forwarded it to Erickson so he could start gathering the requested information. (Tr.
450). Erickson forwarded the email to Walsh. (R. Exh. 5). Initially, Erickson replied to Selvig
that transcription supervisors are “working supervisors” who perform transcription work. (R.
Exh. 4). Within 2 hours, Erickson advised Selvig that he had learned that the transcription work 40

15 Respondent concedes that Theis was engaged in union activity when she gave the four redacted
medical records to Wolf in support of a potential grievance. (Tr. 532–533; R. Brf. 59–60).
16 Respondent concedes that Wolf was engaged in union activity when she investigated Theis’
concern. (Tr. 533; R. Brf. 59–60).
JD–39–13
11
at issue had always been done by an outside provider and that Walsh had been working for that
provider when she performed the transcription work. (R. Exh. 5; Tr. 566).17
Selvig later noted that the document attached to Wolf’s information request contained dates
of treatment, diagnosis codes, medications, and other PHI. (J Exh. 2; Tr. 452). Selvig believed 5
that forwarding this attached record to persons who were not employed by Respondent and
Allina was a patient privacy violation. (Tr. 453; 459). She then contacted Erickson and
Szlachtowski about the potential patient privacy violation. (Tr. 453).
On September 26 Erickson went to Weiss’s office and asked that she look into a potential 10
privacy violation by Wolf. (GC Exh. 7; Tr. 594). Weiss looked at Selvig’s email and the
attached document and immediately had privacy concerns. (GC Exh. 7; J Exh. 2; Tr. 516).
Weiss initiated a Compliance 360 (C360) investigation after being advised of the alleged privacy
breach by Wolf. (Tr. 704).
15
7. Investigative meetings with Theis and Wolf
On October 8, Wolf was summoned to a conference room for a meeting with Selvig and
Weiss. (R. Exh. 11; Tr. 203). Sarro acted as Wolf’s union steward at the meeting. (Id.) Laura
Miller, an internal organizer for the Union, and two other stewards employed by Respondent also 20
attended the meeting on behalf of the Union. (Id.). Selvig started the meeting by asking Wolf
why she had sent the information request and attached redacted medical record. (GC Exh. 7; Tr.
204, 466). Selvig also asked Wolf where she had gotten the medical record attached to the
information request. (R. Exh. 11; Tr. 204, 468). At that time, Wolf refused to reveal the name of
the employee from whom she had received the attachment. (Id.). Selvig told Wolf several times 25
that her refusal to reveal the source of the medical record could lead to discipline, up to and
including termination. (R. Exh. 11; Tr. 205, 469–470). 18
Wolf explained that she sent the information request because she was investigating a
member’s concern about a manager performing unit work. (R. Exh. 11; Tr. 205–206). Wolf also 30
explained why she had copied Asmus, Wooten, and Sarro on the email. (R. Exh. 11; Tr. 206).
Selvig asked Wolf if she had shown Joint Exhibit 2 to a transcriptionist. (R. Exh. 11; Tr. 207).
Wolf denied showing the medical record to a transcriptionist, but admitted sending an email to a
transcriptionist inquiring about it. (Tr. 207).19
35

17 Selvig did not relay this information to the Union. (Tr. 567–568). It was not until October 26, 1
month after Wolf made her information request that Respondent provided the information sought without
any explanation regarding the use of an outside transcription service. (GC Exh. 27; Tr. 219–220, 568).
18 Although Wolf testified she did not “refuse” to reveal Theis’ name, she did not, in fact, reveal it.
Clearly, this constitutes a refusal and I do not credit her testimony on this point.
19 Selvig and Weiss testified that Wolf told them she had showed the redacted medical record to a
transcriptionist. (Tr. 469; 607). This is reflected in Selvig’s notes. (R. Exh. 11). Wolf maintains she did
not say she had shown the document to another transcriptionist. (Tr. 191, 207). On this point I credit
Wolf, as I find her to be a generally more credible witness, as discussed infra, and because her testimony
is corroborated by an email she showed to Selvig and Weiss at a subsequent meeting. (Tr. 539). This
issue is material, as Respondent cited Wolf’s refusal to identify the transcriptionist among the reasons for
her discharge. (GC Exh. 24; R. Exh. 22(a)).
JD–39–13
12
Weiss told Wolf that a patient’s date of service constituted PHI and that she had violated
Allina’s policy on de-identification. (Tr. 207–209). Wolf credibly testified that she did not know
that a patient’s date of service constituted PHI and that she had never been trained as such. (Tr.
207–208). Neither Selvig nor Weiss mentioned that she had violated Allina policies by using
and disclosing PHI. (Tr. 209–210). 5
During the meeting, Wolf gave the file containing the documents she received from Theis to
Sarro. (Tr. 210–211). Sarro left the meeting with the four redacted medical records in his
possession. (Tr. 211). Neither Selvig nor Weiss expressed concern that the documents were
given to or removed from the room by Sarro, who was not employed by Respondent. (Tr. 210–10
211). Weiss testified that Wolf gave the documents to Sarro during the meeting and she and
Selvig let him leave the meeting with the documents on “good faith.” (Tr. 674).
Following this first meeting, Selvig sent an email to Wolf again asking the name of the
employee from whom she had obtained the medical records and the name of the transcriptionist 15
to whom she had shown the redacted record. (GC Exh. 8; Jt. Exh. 2; Tr. 212). Wolf received a
similar email from Selvig on October 11. (Tr. 213; GC Exh. 9; R. Exh. 13). Selvig’s second
email gave Wolf until the close of business on October 11 to return the documents.20 (GC Exh. 9;
R. Exh. 13). The October 11 email advised Wolf that she would be subject to discipline, up to
and including termination, should she refuse to comply with Selvig’s directives. (GC Exh. 9). 20
Selvig copied Sarro and Nystrom on her October 11 email and blind copied Kohls, Ewald, and
Francis in Allina’s labor-relations department. (R. Exh. 13).
On October 11, the Union sent an email to Selvig indicating that Wolf had received the
medical records from Theis. (R. Exh. 12; Tr. 216, 478). Selvig forwarded the Union’s email to 25
Schwartz, Kohls, Ewald, and Francis. (R. Exh. 12). That same day, Selvig spoke to Weiss and
Szlachtowski about opening a second C360 investigation on Theis. (Tr. 481–482).
On October 12, after she had received the redacted records from Sarro, Selvig sent a third
email to Wolf seeking the identity of any other person from whom Wolf might have received 30
medical records such as those returned by Sarro and the name of the transcriptionist to whom
Wolf had allegedly shown Joint Exhibit 2. (GC Exh. 10; R Exh. 15; Tr. 215, 483). Wolf
steadfastly maintained she had not shown the documents to anyone, including a transcriptionist.
(GC Exh. 10; Tr. 191, 207). Selvig copied Sarro and Nystrom and blind copied Schwartz, and
Kohls, Ewald, and Francis in Allina’s labor-relations department, on her October 12 email. (R. 35
Exh. 15).
On October 15, Theis attended a meeting in Respondent’s conference room with Selvig,
Weiss, and Gulley. (Tr. 114, 485). During the meeting, Selvig and Weiss asked questions about
the documents Theis had given to Wolf. (Tr. 114, 486). Theis explained she had come across the 40
documents in the course of her daily workflow. (Tr. 115). She stated that she collected the
documents because she had concerns about a supervisor performing unit work. (Tr. 487). She
further stated that she had redacted the documents and locked them in a cubby over her desk. (Tr.
487). Theis did not share the documents with anyone other than Wolf and she did not make any

20 Sarro left the documents Wolf had received from Theis in an envelope at Respondent’s human
resources department on October 11. (Tr. 479).
JD–39–13
13
copies of the documents. (Tr. 488). Theis was questioned by Weiss about redaction and de-
identification. (R. Exh. 17; Tr. 115). Although Theis did not remember any other policies being
mentioned, Weiss may have questioned her about the minimum necessary policy. (R. Exh. 17;
Tr. 116).
5
Theis began examining Allina’s scanning matrix on her breaks and lunch periods. (Tr. 117).
In looking at 74 records in the “A” section of the scanning matrix, Theis located 71 records
containing PHI. (Tr. 118; GC Exh. 4).21
On October 15, Selvig and Weiss had a second meeting with Wolf. (R. Exh. 18; Tr. 216, 10
491). This time Gulley accompanied Wolf to the meeting. (R. Exh. 18; Tr. 216, 376, 491).
Gulley attended to protest what he deemed a “very clear assault on the Union.” (Tr. 377). At this
meeting, Selvig and Weiss questioned Wolf about whether she had attended compliance training.
(R. Exh. 18; Tr. 217). Selvig asked Wolf about the transcriptionist to whom she had allegedly
shown the redacted medical record. (R. Exh. 18; Jt Exh. 2; Tr. 217, 491). Selvig further asked to 15
see an email that Wolf had sent to the transcriptionist. (R. Exh. 18; Tr. 217, 379). Wolf obtained
a copy of the email, redacted the transcriptionist’s name, and provided the email to Selvig.22 (R.
Exh. 18; Tr. 217–218, 380, 492). Selvig and Weiss again stated that the date of service
constituted PHI and that Wolf had violated Allina’s de-identification policy. (Tr. 219, 378, 612).
Gulley asked to see a copy of the policy, as Wolf had never seen it. (Tr. 378). 20
8. Respondent’s investigative team meets
On about October 18, Respondent’s investigative team met for the first time via conference
call. (Tr. 495, 498, 618). Present for the meeting were Selvig, Weiss, Szlachtowski, Wirzbach, 25
Schwartz, and someone from labor relations. (Tr. 495, 618). Respondent’s team made an initial
review of the facts gathered by Selvig and Weiss in their meetings with Theis and Wolf and
applied those facts to Allina’s standards for privacy violations. (Tr. 496, 618). The investigative
team reviewed Theis’ and Wolf’s training records. (R. Exh. 65; Tr. 619–620). The conference
call lasted about an hour, which is longer than normal for such a meeting. (Tr. 498–499). 30
Respondent’s witnesses testified to few specific details of what transpired at this meeting.
On October 26, Respondent’s investigative team met for a second time. (Tr. 497, 639). The
purpose of this meeting was to determine the level of the privacy violation. (Tr. 497–498).
Present at the meeting (either in person or via telephone) were Szlachtowski, Wirzbach, 35
Schwartz, Erickson, Weiss, Selvig, and someone from Allina’s labor relations department. (Tr.
498). The investigative team unanimously determined that Wolf committed a Level 3 privacy
violation by accessing, using, and disclosing PHI and that Theis committed a Level 3 privacy
violation by using and disclosing PHI. (Tr. 499, 639, 706). The attendees also decided that both

21 Theis was not aware, as Respondent maintains, that there are two components to the scanning
matrix: the master scanning book and the scanning matrix. (Tr. 150, 209, 651–652). Only HIM
department employees have access to the master scanning book, the component of the scanning matrix
containing actual patient records. (Tr. 651–652).
22 Selvig’s notes indicate that Allina attempted to recover this email in order to determine to whom it
was sent and whether any documents were attached to it, but was unable to do so. (R. Exh. 18). Selvig
testified at the hearing that there was no attachment to the email shown to her by Wolf. (Tr. 539).
JD–39–13
14
Theis and Wolf should be terminated. (Tr. 501). The meeting lasted about 1 hour, however,
Respondent’s witnesses recalled little about what happened. (Tr. 498–499, 639).
Selvig prepared summary documents regarding Respondent’s investigation. (GC Exh. 24; R.
Exhs. 22a and b; Tr. 500). These documents indicate that Theis and Wolf were discharged for 5
“sharing for gain” and “other” reasons. (GC Exhs. 24 and 25; R. Exhs. 22a and b). The other
reasons included: they did not keep PHI confidential; Wolf intentionally accessed, used, and
disclosed PHI without a legitimate business reason; Theis intentionally used and disclosed PHI
without a legitimate business reason; Wolf knew or should have known that Theis had violated
Allina’s confidentiality of patient information policy, and; Wolf was not fully cooperative during 10
the investigation. (R. Exhs. 22a and b). Both forms cited a number of Allina policies:
Confidentiality of patient information; confidentiality and non-disclosure; minimum necessary
for information disclosure; treatment, payment, operations system policy; de-identification of
patient information; use and disclosure of protected health information; and authorization to
release and disclose patient information. (R. Exhs. 22a and b). 15
Selvig, in collaboration with Allina’s labor relations department, prepared a Corrective
Action form for Wolf following the completion of the investigation. (GC Exh. 11; Tr. 504–505).
This document, indicating that the action being taken regarding Wolf was termination (Level 5),
lists a multitude of reasons for Wolf’s termination, including: she was unable to provide a 20
legitimate business reason for having four patient records in her possession; she was unable to
provide a legitimate business reason for forwarding one of the patient records as an email
attachment to a nonemployee and three other Allina employees; she intentionally accessed, used
and disclosed PHI without a legitimate business reason; she should have been aware that the
employee who gave her the patient documents violated the confidentiality of patient information 25
policy, and; she was not cooperative during the investigation. (GC Exh. 11). A similar document
was completed related to Theis. (GC Exh. 5). This document indicates several reasons for Theis’
termination, including: failure to keep patient information confidential in accordance with
Allina’s confidentiality of patient information policy; use and disclosure of patient records
without a permitted business reason, and; incomplete redaction of the records. (Id.). 30
Despite having already decided the level of privacy violation and to terminate Theis and
Wolf, Respondent’s investigative team met for a third time via conference call on October 30.
(Tr. 506). Present on the call were Wirzbach, Schwartz, a labor relations attorney, Szlachtowski,
Weiss, Selvig, and Erickson. (Tr. 506). Again, none of Respondent’s witnesses could recall with 35
any helpful degree of specificity what was said during this meeting.
9. The termination meetings
Respondent summoned Wolf to a meeting on November 2 at 8:30 a.m. (Tr. 221). Gulley 40
accompanied Wolf to the meeting; Selvig and Weiss attended on behalf of Respondent. (Tr. 222,
381, 509). Gulley protested Wolf’s firing. (Tr. 382). Wolf was provided the corrective action
form by Selvig. (GC Exh. 11; Tr. 222, 382). At 9:00 a.m. on November 2, Theis had her
discharge meeting. (Tr. 121–122). Gulley and Wolf attended the meeting with Theis; Selvig and
Weiss attended on behalf of Respondent. (Tr. 122, 224, 383). Theis’ meeting was similar to that 45
of Wolf. Like Wolf, Theis was provided the corrective action form indicating that she was being
terminated. (GC Exh. 5; Tr. 123, 384).
JD–39–13
15
10. Respondent’s disciplinary policies and Respondent’s handling of other breaches of
patient confidentiality
5
Respondent’s corrective action and discharge policy is incorporated in its collective-
bargaining agreement with the Union. (GC Exh. 12, pp. 8–9). The collective-bargaining
agreement indicates that Respondent shall not initiate corrective action, discharge, or suspend an
employee without just cause. (GC Exh. 12, p. 8). Respondent completes a “SEIU Corrective
Action Procedure Form” when disciplining or discharging an employee represented by the 10
Union. (GC Exhs. 5, 11, 21, 22, 23).
Respondent and Allina have discharged employees for breaching Allina’s patient
confidentiality policies. (GC Exh. 31; R. Exh. 46). An employee at another Allina facility was
terminated for accessing a supervisor’s medical chart and asking coworkers about the 15
supervisor’s medical condition. (R. Exh. 46, p. 6). Another employee was discharged for
accessing medical records without a business reason to do so; however, this employee had been
previously suspended for accessing multiple patient records without a business, operations, or
care need to do so. (R. Exh. 46, p. 9). Numerous employees at another Allina hospital were
discharged for accessing patient records out of curiosity; some of these were records of high 20
profile patients. (R. Exh. 46). Of the 192 pages in Respondent’s Exhibit 46, only 5 of the
corrective action forms appeared to implicate employees of Respondent; of these two were for
the employees involved in these cases. The other three employees of Respondent were
terminated for accessing and disclosing PHI. (R Exh. 46, pp. 152, 161, 167). None of the
employees discharged were engaged in union or other protected, concerted activity at the time 25
they accessed, used, and/or disclosed PHI. (Id.).23
However, other violators have not been fired or have had seemingly severe violations
classified as Level 1 or 2 violations. An employee at another Allina facility was issued a one-
day suspension for accessing patient census data without authority and then posting information 30
about a co-worker gleaned from the census data on Facebook. (GC Exh. 31(g)).24 Another
employee was not terminated after accessing multiple patient records 15 times over a period of
18 months. (GC Exh. 31()). Another Allina employee received a written warning and suspension
for sending an unencrypted e-mail containing PHI to an e-mail address outside of Allina. (GC
Exh. 31(bb)). Another employee was suspended for sharing PHI at a luncheon.25 (GC Exh. 35
31(oo)). An employee of Respondent was given a verbal warning for improperly revealing a
patient’s HIV status. (GC Exh. 31(ww)). Another employee of Respondent was given a written
warning for accessing and changing a patient’s medical chart. (GC Exh. 31(i)). Other employees
were given written warnings for posting patient photos on Facebook and posting comments
about a patient on Facebook. (GC Exhs. 31(h) and (qq)). Still other employees of Respondent 40
were given written warnings and suspensions for improperly accessing and using the medical

23 Since 2010, seven Level 3 privacy breaches have resulted in employee termination by Respondent;
of these employees, two were represented by the Union. (Tr. 518).
24 This employee had received a prior Final Written Warning for an issue unrelated to patient privacy.
25 This employee had been previously terminated by Allina for a HIPAA violation.
JD–39–13
16
records of a patient to fraudulently obtain a medical test for a non-patient. (GC Exhs. 31(p) and
(q)).
In February and March 2012, a privacy investigation was conducted regarding employees in
Respondent’s emergency and HIM departments. (GC Exhs. 22 and 23). An HIM employee went 5
to the emergency room for treatment and left her bra behind when she returned to work. (Id.). A
nurse from the emergency department called the HIM department and advised a coworker of the
patient, that the patient should return to the emergency department and retrieve her bra. (Id.).
The HIM department employee who received the call from the nurse advised two other
coworkers of the patient about the call. (Id.). The nurse received a verbal counseling and the 10
HIM department employee received a suspension for his incident. (Id.). The HIM employee’s
corrective action procedure form indicated that she revealed PHI without a legitimate business
reason. (GC Exh. 22).
11. The grievances and information requests following the terminations of 15
Theis and Wolf
The Union promptly filed grievances over the discharges of Theis and Wolf. (GC Exh. 13;
Tr. 296). The grievances were attached to an email sent to Nystrom and Kohls on November 2.
(GC Exh. 13; Tr. 296). Hilbrich asked to expedite the grievances to Step 1 because it was Allina 20
personnel, not employees of Respondent, who made the decision to terminate Theis and Wolf.
(Tr. 298). Respondent refused to do so. (GC Exh. 15). On the face of each grievance, the Union
requested the following information:
1. Any and all disciplines issued for HIPPA [sic], Level 3 Violations in the past 25
5 years
2. Personnel File
3. Any and all documentation about existence and dissemination of the policy
alleged to [have been] violated by grievant
4. Copy of the policy alleged to [have been] violated30
5. Copies of all investigation notes and rationale for decision to terminate
6. Any and all disciplines issued for violation of the policy alleged to [have
been] violated by the grievant
7. Any and all investigations and results of investigation[s] (discipline or not,
including supervisors) where date of service was not redacted35
8. Copies of all document[s] in Scanning Matrix in current redacted or non
redacted form to determine consistency in application of policy
9. Explanation of what aspect of a patient’s privacy was violated, and the harm
done to said patient (Wolf only). (GC Exh. 13).
40
Hilbrich gave Respondent 1 week to comply with the information requests. (GC Exh. 13; Tr.
299).
On November 7, Hilbrich asked if Respondent would provide the requested information
within the requested time frame. (GC Exh. 14). If so, Hilbrich asked that the first step grievance 45
meetings be scheduled on November 14. (Id.). On November 19, Hilbrich requested an update
on Respondent’s progress in complying with the information requests from Schmoyer. (Id.). As
JD–39–13
17
Respondent had not yet provided any information responsive to her request, Hilbrich asked to
schedule the first step grievance meetings on November 26, 27, or 29. (Id.). Schmoyer
responded that she was not involved in gathering the information, but that she would ask how
things were progressing. (Id.). Schmoyer also asked how much time Hilbrich would need to
review Respondent’s responses to the information requests before the grievance meetings. (Id.). 5
On November 20, Hilbrich replied that if she would not have the information until the next week,
the grievance meetings should be scheduled for the first week of December. (Id.).
On November 21, for the first time, Selvig informed Hilbrich that she was working on the
information requests and would forward the information in the “near future.” (GC Exh. 15; Tr. 10
302). Selvig testified that she met with labor relations regarding responding to the Union’s
information requests because they were “complex.” (Tr. 519). On November 27, Hilbrich again
requested an update on Respondent’s progress in complying with the Union’s information
requests. (GC Exh. 15). On November 29, Selvig responded that Respondent had a reasonable
amount of time to respond to the information requests and that a proper response would require 15
some time. (Id.). Hilbrich sent Selvig another email and asked for a more specific estimate of
when she would receive the information and whether it would be in advance of the grievance
meetings scheduled for December 5. (Id.). Selvig replied that Respondent would be willing to
reschedule the grievance meetings to allow Hilbrich sufficient time to review the information,
which Selvig expected to send early the following week. (Id.). 20
Before sending her response to the Union’s information request, Selvig contacted Wirzbach,
Szlachtowski, and Francis. (GC Exh. 32). Selvig attached copies of the Violation of
Confidentiality Investigation forms for Thies and Wolf. (Id.). Selvig sought input from
Wirzbach, Szlachtowski, and Francis stating, “I want to make sure it’s appropriate that I’ve 25
marked the Termination reason as ‘Sharing for Gain’ and I also marked ‘Other’ with a reference
to see rationale.” (Id.).
On December 4, Selvig provided various documents responsive to the Union’s information
request. (GC Exh. 28). However, instead of providing actual disciplinary records related to other 30
employees disciplined for patient privacy violations, as requested by the Union, Selvig attached a
summary chart regarding discipline. (GC Exh. 16). Selvig’s response further did not provide any
scanning matrix documents. (GC Exh. 28). For the first time, Selvig stated that the scanning
matrix request was overly burdensome and estimated that it would take 150 overtime hours to
gather the documents; Selvig offered to negotiate with the Union concerning this cost. (GC Exh. 35
28; Tr. 306).
Hilbrich did not want to further delay the pre-grievance step meeting regarding the
terminations of Wolf and Theis. (Tr. 308, 359). Therefore, despite having just received a partial
response to her information request the day before, Hilbrich went ahead with the pre-grievance 40
step meetings regarding Theis and Wolf as scheduled on December 5. (Tr. 308).
Hilbrich sent Schmoyer an email on December 6 reiterating her request for the information
that had not yet been provided by Selvig. (GC Exh. 17). Hilbrich limited her request for
scanning matrix documents to those in the “A” section. (Id.). She also asked for actual 45
disciplinary forms instead of the summary chart Selvig had provided. (Id.). On December 18,
Schmoyer indicated that it would take a full day to gather and send documents just from the “A”
JD–39–13
18
section of the scanning matrix; instead Schmoyer offered to send a random sampling of 50 or
100 documents. (GC Exh. 18). Schmoyer indicated that Respondent could not provide the
documents until early January due to the holidays. (Id.). A few days later, Hilbrich sent a
follow-up email to Schmoyer asking for just the first 100 scanning matrix documents. (Id.).
Schmoyer indicated she would send the documents by January 4, 2013. (Id.). Hilbrich received 5
these documents on January 7, 2013, over 2 months after she had requested them. (GC Exh.
30(a)-(lll); Tr. 312).
Both Theis and Wolf applied for unemployment insurance benefits under Minnesota law. (Tr.
162, 225). During the telephone hearing regarding unemployment benefits, Selvig repeatedly 10
cited that both were terminated for access, use, and disclosure of PHI. (Tr. 162–163, 226).
Selvig did not mention Wolf’s alleged history of animosity toward Walsh during the
unemployment hearings. (Tr. 272). Selvig advised the unemployment hearing officer that Theis
would have been terminated regardless of how much of the medical records at issue she had
redacted. (Tr. 163).26 15
The Union and Respondent met for Step 1 grievance meetings regarding the discharges of
Theis and Wolf in January 2013. (Tr. 368). At the time of the hearing, the grievances were
pending arbitration, although a date had not yet been set. (Id.).
20
Discussion and Analysis
A. Credibility Analysis
A credibility determination may rely on a variety of factors, including the context of the 25
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd 56 Fed. Appx. 516 (D.C. Cir. 2003); see also Roosevelt Memorial Medical Center, 30
348 NLRB 1016, 1022 (2006) (noting that an ALJ may draw an adverse inference from a party’s
failure to call a witness who may be favorably disposed to a party, and who could reasonably be
expected to corroborate its version of events, particularly when the witness is the party’s agent).
Credibility findings need not be all-or-nothing propositions—indeed, nothing is more common in

26 Respondent’s counsel strenuously objected to the admission of any evidence regarding the
unemployment hearings based upon a Minnesota law which states, in pertinent part, that testimony at an
unemployment hearing may not be used or considered for any purpose, including impeachment, except by
a local, state, or federal human rights agency. Minnesota Statutes 2012, section 2568.105, subpart 5(c);
(Tr. 77). After considering the arguments of the parties, and a brief provided by Respondent’s counsel, I
allowed the testimony. (Tr. 160–161). State court privileges are allowed in federal proceedings only
when the state law supplies the rule of decision. North Carolina License Plate Agency No. 18, 346 NLRB
293, 294 fn. 5 (2006). Where federal law governs, as it does here, only privileges recognized by the
federal government apply. Id. See also R. Sabee Company, 351 NLRB 293, 294 fn. 5 (2007) (even if
statements are privileged under state law, FRE 501 renders state privilege claims inapplicable in federal
proceedings); Cardiovascular Consultants of Nevada, 323 NLRB 67, 67, fn. 1 (1997) (the Board reversed
an ALJ and received a state court unemployment decision because established Board law holds them to be
admissible, but not controlling.).
JD–39–13
19
all kinds of judicial decisions than to believe some, but not all, of a witness’ testimony. Daikichi
Sushi, 335 NLRB at 622.
My credibility findings are generally incorporated into the findings of fact set forth above.
My observations, however, were that the General Counsel’s witnesses were composed and 5
forthright when they testified. By contrast, Respondent’s witnesses (particularly Selvig and
Weiss) took great pains to assert that Respondent’s commitment to patient privacy is unwavering
and that the investigations and discharges at issue were handled like any other, only to have their
testimony and credibility undermined by documentary evidence and by other witnesses.
10
Respondent’s witnesses evinced a single-minded desire to reiterate the message that Allina
and Respondent take patient privacy very seriously, however, most demonstrated significant
difficulty explaining Allina’s patient privacy policies or HIPAA. None of Respondent’s
witnesses seemed aware that HIPAA regulations permit disclosure of PHI for resolution of
internal grievances or to a collective-bargaining representative as required under the Act. (Tr. 15
264, 796). Selvig was aware that Respondent maintains a de-identification policy, but was
unable to explain it. (Tr. 547). Respondent’s witnesses were also unable to consistently explain
what is meant by the terms personal gain, sharing for gain, legitimate business reason, or intent
as they are used in Allina’s policies. (Tr. 73, 420, 425, 562, 610, 667, 731–732).
20
I did not credit the testimony of Respondent’s witnesses regarding its internal investigation
into the privacy violations at issue in these cases. All of these witnesses demonstrated an
extremely poor recall of what was said at these meetings, some of which lasted over an hour.
Notably, Respondent did not call as witnesses most of those in attendance at those meetings.
Additionally, although an attorney from Allina’s labor relations department being present on 25
every conference call leading up to the discharges, none of Respondent’s witnesses recalled what
might have been discussed regarding Theis and Wolf engaging in union activity. Despite not
remembering with any particularity what was said at any of the meetings, Respondent’s
witnesses did remember several points which might otherwise be helpful to Respondent’s cause,
such as that the discussions were detail-oriented, thoughtful, very extensive, and that the 30
investigative team followed all usual protocols and procedures. (Tr. 464–465, 507). I give very
little weight to the self-serving and non-specific testimony of Respondent’s witnesses regarding
Respondent’s investigation and the decision-making process leading up to the terminations of
Theis and Wolf.
35
I did not find Selvig to be a particularly credible witness. She gave nonresponsive answers
on cross-examination. She frequently refused to answer simple “yes or no” questions with a yes
or a no. (Tr. 551, 554, 556, 567). Selvig refused to admit basic concepts such as that it is typical
for a union to request such information as the reasons for an employee’s termination, personnel
files of discharged employees, or discipline records for employees terminated for similar reasons 40
(responding only that “they may” or “it depends”). (Tr. 558). Her overall demeanor on the
witness stand, almost complete unwillingness to concede even basic premises, and frequent
sparring with counsel for the General Counsel and Charging Party detracted from her overall
credibility.
45
Selvig struggled when presented with documentary evidence that contradicted her hearing
testimony. For example, she initially denied that Theis and Wolf were discharged for sharing for
JD–39–13
20
gain, despite the fact that she checked a box on her investigative form indicating that they were.
(GC Exh. 24, 25; R. Exh. 22a and b; Tr. 53). Later she testified that sharing for gain is “just part
of the form” and “not inclusive of the total reason” for the discharges. (Tr. 73).
Selvig also had a great deal of difficulty explaining what is meant by “sharing for gain.” (Tr. 5
433–434). She provided nonsensical responses to the General Counsel when asked what sharing
for gain meant including that, “typically it’s used as according to the policy to gather something
that is not related to your position, so it would be outside of your realm or role.” (Tr. 53). Even
before the onset of this litigation, Selvig was unsure that Theis and Wolf were sharing for gain.
In an email, Selvig stated, “I want to make sure it’s appropriate that I’ve marked as the 10
[t]ermination reason[] as ‘Sharing for Gain’. . .” (GC Exh. 32). In my view, Selvig was not ever
able to satisfactorily explain why she checked the box indicating that Theis and Wolf were
terminated for sharing for gain.27
I also find that Weiss was not a particularly credible witness. Like Selvig, she frequently 15
sparred with counsel for the General Counsel and Charging Party. She engaged in the following
exchange with counsel for the General Counsel when asked what Respondent may consider in
assessing a Level 3 privacy violation:
Q: Now, the Level 3 policy the most current one that was effective at the time 20
of their terminations, it does not take into account reckless disregard for patient
privacy, does it?
A: No.
Q: Okay. And it does not take into account any sort of malicious intent,
correct?25
A: They can be factors.
Q: Oh, so reckless disregard and malicious intent can be factors?
A: It’s not part of the policy.
Q: So they can be factors, though.
A: Considerations.30
Q: Okay. So they can be considerations. Correct?
A: It’s not part of the policy.
Q: That’s not what I’m asking . . . it is a consideration, right . . .
A: It can be considered in any case.
35
(Tr. 670–671). She also gave contradictory testimony. Weiss initially testified that Theis was
terminated for access, use, and disclosure of PHI in violation of Allina policies; a moment later
she testified that Theis was terminated only for use and disclosure of PHI. (Tr. 417–418). After
testifying about whether Theis and Wolf were terminated for access, use, or disclosure of PHI,
she added, “the whole point is they were not to be using these documents for this.” (Tr. 419). 40
Like Selvig, Weiss also had problems explaining sharing for gain. Weiss admitted that
Respondent indicated on its investigative forms that Theis and Wolf were terminated for sharing

27 Selvig also testified that the decade-old feud between Wolf and Walsh meant that Wolf disclosed
that Walsh was possibly performing bargaining unit work for personal gain. (Tr. 73). However, Selvig
was unable to explain what Theis might have had to gain by exposing this potential contract violation.
JD–39–13
21
for gain, citing Wolf’s alleged personal animosity toward Walsh. (Tr. 677–678). She then
quickly stated that sharing for gain was merely a factor considered by the investigative team and
not the primary reason for the discharges. (Tr. 678).
Weiss also possessed a poor grasp of what was said during Respondent’s investigative 5
meetings regarding Theis and Wolf. In fact, when Weiss was asked specifically what was said
during one such meeting, she refused to answer, stating it would be “hearsay.” (Tr. 679). When
directed to answer the question, she stated, “I honestly can’t recall.” (Tr. 679).
When asked about the definition of legitimate business reason, Weiss testified that it has to 10
be something done under the auspices of an employee’s workflow, and if it were outside of what
their work duties were, it would not be a legitimate business reason. (Tr. 425). Weiss was not
able to reconcile how posting a patient photo or patient information on Facebook or editing a
family member’s medical chart, all of which were found to be lesser violations than those at
issue here, were within the offending employees’ work duties. (GC Exhs. 31(h), (i), (qq)). By 15
way of contrast, Weiss did not explain how Theis, encountering four documents as part of her
regular workflow, would have been outside of her work duties and, therefore, a Level 3 violation
resulting in termination.
I also did not find Megan Szlachtowski to be a particularly credible witness. Like 20
Respondent’s other witnesses, she had a poor grasp of what was said in critical meetings leading
up to the terminations of Theis and Wolf. She testified that Wolf was engaged in union activity
when she sent her information request with the attached redacted medical record to Selvig and
various union representatives. (Tr. 721). She admitted that the investigative team discussed the
employees’ union activity in deciding to terminate them. (Tr. 723). Szlachtowski engaged in the 25
following exchange with counsel for the Charging Party:
Q: Well, did you discuss whether or not union business was a legitimate
business purpose?
A: It was my understanding that . . . the Union was not part of a business unit 30
of Allina.
Q: Now, I’m asking you about what was discussed now . . . In these
conference calls where you’re discussing the termination decision, did you
discuss whether or not a union business purpose was a legitimate business
purpose—for applying this policy?35
A: Yes.
Q: And what did you discuss?
A: That the Union is not considered a business unit within Allina; therefore,
no permitted business reason for sending the information.
Q: And who said that?40
A: It was discussed amongst—I can’t remember who said what.
Q: Tell me to the best of your recollection what was said about whether or not
union business was a legitimate business purpose in that conversation . . .
A: I cannot recall details, other than it was a focus . . . in discussion on if the
information was sent for a business-related reason, and that answer was no.45
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(Tr. 723–774). Clearly, the union activity of Theis and Wolf was discussed during Respondent’s
investigative meetings. However, Szlachtowski, like Respondent’s other witnesses, was not able
to recall specific details of what was said during the meetings or regarding the union activity.
Her failure to recall such critical details detracts from her credibility.
5
Respondent’s efforts to bolster its position through the testimony of Kang were unavailing.
Kang testified that he was not familiar with the facts of these cases. (Tr. 794). He was not
involved in the decisions to terminate Theis and Wolf. (Tr. 795). In addition, Kang did not know
that Allina had been disclosing PHI to the Union until he was informed by counsel for
Respondent on the eve of his testimony. (Tr. 799). He was further unaware of the HIPAA 10
regulations allowing disclosure of PHI to a collective-bargaining representative pursuant to the
Act. (Tr. 796, 798).
Kohls testimony was not particularly relevant to the merits of this case. Instead, his
testimony pertained mostly to the deferral issue and the bargaining relationship between Allina 15
and the Union. He appeared credible and forthright in his testimony.
Hilbrich and Gulley also appeared to testify truthfully. Neither gave testimony that was
rebutted by other witnesses. Hilbrich’s testimony was corroborated by several email messages
exchanged with Respondent. Gulley’s testimony was corroborated by Wolf, who I find to be a 20
credible witness as discussed below. Gulley’s testimony regarding the bargaining relationship
between Allina and the Union was mostly corroborated by Kohls and any differences between
their testimony are really matters of opinion.
Both Theis and Wolf appeared to testify truthfully during the hearing. Both candidly 25
responded to questioning under cross-examination. Theis admitted that she understood the
importance of patient confidentiality and that Allina takes patient confidentiality very seriously.
(Tr. 132). Both understood that Allina maintains policies regarding patient privacy. (Tr. 132,
241). They also admitted they had completed Respondent’s compliance training. (Tr. 97, 170).
Theis knew that Allina has terminated other employees for privacy breaches. (Tr. 147). Wolf 30
candidly admitted that there had been tension between her and Walsh in the past; she had
accused Walsh of assault a decade ago. (Tr. 260). Wolf further admitted that Selvig did not need
to see the redacted medical record in order to respond to her information request. (Tr. 254). She
also admitted that Asmus, Sarro, and Wooten did not need to see the medical record attached to
her information request. (Tr. 255). Therefore, where their testimony conflicts with other 35
witnesses, I credit Theis and Wolf.
B. The Deferral Issue
Whether the Board should defer to the parties’ grievance arbitration procedure is a threshold 40
issue that must be addressed before considering the merits of the complaint allegations.28 The
relevant standard is set forth in Collyer Insulated Wire, 192 NLRB 837 (1971). In Collyer, the
Board explained the competing interests in such cases: [E]ach such case compels an
accommodation between . . . the statutory policy favoring the fullest use of collective bargaining

28 See Sec. 102.35(a)(9) of the Board’s rules.
JD–39–13
23
and the arbital process and . . . the statutory policy reflected by Congress’ grant to the Board of
exclusive jurisdiction to prevent unfair labor practices.” 192 NLRB at 841.
Recently, the Board reiterated the following list of criteria used to assess the competing
policy interests and arrive at a decision on this issue:5
The Board considers six factors in deciding whether to defer a dispute to
arbitration: (1) whether the dispute arose within the confines of a long and
productive collective-bargaining relationship; (2) whether there is a claim of
employer animosity to the employees’ exercise of protected rights; (3) whether 10
the agreement provides for arbitration in a very broad range of disputes; (4)
whether the arbitration clause clearly encompasses the dispute at issue; (5)
whether the employer asserts its willingness to resort to arbitration for the dispute;
and (6) whether the dispute is eminently well-suited to resolution by arbitration.
[Citations and internal punctuation omitted.]15
San Juan Bautista Medical Center, 356 NLRB No. 102, slip op. at 2 (2011).29
The instant case does not arise within the context of a long and productive bargaining
relationship. It appears that the Union had a productive bargaining relationship with Allina 20
between 2006 and 2011, during the life of the strategic alliance. However, more recently, Allina
has largely dismantled the strategic alliance, abandoned its previous position of neutrality, and
become frustrated with the Union’s rejection of its recent proposals. (Tr. 768). Gulley testified
that the relationship between Allina and the Union is now strained. This testimony was not
contradicted by any of Respondent’s witnesses or other evidence. In addition, Respondent’s 25
failure to timely respond to various information requests by the Union reflects poorly on the
relationship between the parties. As such, I cannot find that these disputes arise in the context of
a long and productive bargaining relationship.
Clearly, this case involves a claim of employer animosity to the employees’ exercise of 30
protected rights. Theis and Wolf were discharged for their actions, which arose in the context of
union activity. Theis observed what she believed was a violation of the collective-bargaining
agreement between Respondent and the Union and reported the violation to her union steward;
Wolf, her union steward then attempted to investigate the alleged violation by making an
information request pursuant to the pre-grievance step of that same collective-bargaining 35
agreement. Union grievance filing activity and the filing of information requests are both
protected and concerted activity. Shrock Cabinet Co., 339 NLRB 182 (2003); United States
Postal Service, 345 NLRB 426 (2005). Both Theis and Wolf were subsequently fired as a result
of engaging in protected, concerted activity. Therefore, these cases implicate a claim of
animosity on the part of Respondent to its employees’ exercise of protected rights. 40
The dispute at issue is not well-suited to arbitration. A dispute is well-suited to arbitration
when the meaning of a contract provision is at the heart of the dispute. Collyer, 192 NLRB at
842. Deferral is especially inappropriate in a case where the arbitration involves discipline of
stewards in reprisal for their grievance activities. Union Fork and Hoe Co., 241 NLRB 907, 908 45

29 There is no dispute that factors (3), (4), and (5) favor deferral.
JD–39–13
24
(1979). Furthermore, the Board has reaffirmed that deferral to the grievance resolution process
is inappropriate where the precipitating event leading to an employee’s termination is the
employee’s protected activity. Mobil Oil Exploration & Producing, U.S., 325 NLRB 176
(1997). Respondent would argue that these cases involve interpretation of the just cause
provision of the parties’ collective-bargaining agreement. However, it also involves an alleged 5
derogation of the non-discrimination clause and retaliation against a union steward and another
union member for engaging in protected, concerted activity. Thus, I find that this case is not
well-suited to arbitration.
Moreover, the Board does not traditionally defer failure to provide information cases to 10
arbitration. Hospital San Cristobal, 356 NLRB No. 95, slip op. at 1, fn. 3 (2011). See also
Rochester Gas & Electric Corp., 355 NLRB 507 (2010) (“deferral is not appropriate as the
[c]omplaint alleges violations of Section 8(a)(5) of the Act for failing and refusing to provide
information”). The Board has also stated a preference for resolving an entire dispute in a single
proceeding and does not favor the piecemeal deferral of complaint allegations. Id. The 15
information requests at issue here would not have been made but for Respondent’s discharge of
Theis and Wolf; they are linked. Thus, piecemeal deferral as suggested by Respondent would
run up against Board policy to resolve an entire dispute in a single proceeding. 15th Avenue Iron
Works, 301 NLRB 878, 879 (1991), enfd. 964 F.2d 1336 (2d Cir. 1992).
20
Respondent’s reliance on Altoona Hospital, 270 NLRB 1179 (1984) in support of its deferral
argument is misplaced. I find Altoona Hospital to be distinguishable from the instant cases.
Although Altoona Hospital involved the discipline of an employee for disclosing confidential
information in contravention of the respondent’s work rules, it is factually dissimilar to the
instant cases. The offending employee in Altoona Hospital, a receptionist in the hospital’s 25
emergency department, was issued a written warning for patient complaints regarding her
allegedly rude and discourteous behavior. 270 NLRB at 1179. The employee then disclosed the
identity of one of complainants to a private investigator, who called the mother of the patient
involved. The employee was fired for disclosing the information to the private investigator. Id.
The facts in this case involve two employees engaging in union activity. Moreover, the Board in 30
Altoona Hospital decided that case under the standards set forth in Spielberg Mfg. Co., 112
NLRB 1080 (1955) and Olin Corp., 268 NLRB 573 (1984), which involve postarbital deferral.
Therefore, I find that the Board’s holding in Altoona Hospital is inapposite to these cases.
I find that deferring this case to arbitration would be inappropriate. The factors set forth in 35
San Juan Bautista Medical Center, 356 NLRB No. 102, slip op. at 2 (2011) weigh against
deferral. In addition, the Board traditionally does not find deferral of information request cases
appropriate and disfavors piecemeal litigation. Therefore, I find that deferral of these cases to
the parties’ grievance-arbitration procedure is inappropriate and move on to deciding the merits
of the cases. 40
C. Respondent Violated the Act in Interrogating and Threatening Wolf
The evidence establishes, and I find, that Respondent violated the Act by interrogating Wolf
and threatening her with discipline for refusing to reveal the name of the employee who provided 45
her with documentary evidence that a member of management was possibly performing
bargaining unit work. I further find that Respondent violated the Act by interrogating Wolf and
JD–39–13
25
threatening her with discipline for refusing to identify any other employee with whom she had
shared or discussed such evidence. I also find that Respondent violated the Act by threatening
Wolf with discipline if she failed to assist Respondent in retrieving the documents.
The Board considers the totality of the circumstances in determining whether the questioning 5
of an employee constitutes an unlawful interrogation. Rossmore House, 269 NLRB 1176 (1984),
enfd. sub nom. Hotel Employees Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The
Board has additionally determined that in employing the Rossmore House test, it is appropriate
to consider the factors set forth in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964): whether
there was a history of employer hostility or discrimination; the nature of the information sought 10
(whether the interrogator was seeking information to base taking action against individual
employees); the position of the questioner in the company hierarchy; the place and method of
interrogation, and; the truthfulness of the reply. The Bourne factors should not be mechanically
applied or used as a prerequisite to a finding of coercive questioning, but rather used as a starting
point for assessing the totality of the circumstances. Westwood Health Care Center, 330 NLRB 15
935, 939 (2000).
The Bourne factors weigh in favor of a finding that the interrogations violated the Act. On
October 8, Respondent summoned Wolf to a meeting in its conference room. At this meeting,
Wolf was questioned by Selvig and Weiss; both of whom who are agents of Respondent and 20
employed by its overarching parent company, Allina. In addition, Weiss is the supervisor of
Fischer, who is the supervisor of Wolf. Thus, Weiss is two levels above Wolf in the corporate
hierarchy. In addition, Weiss and Selvig sought information from Wolf on the identity of
another employee. When the identity of Theis was finally revealed to Weiss and Selvig, action
was swiftly taken against Theis. Thus, the Bourne factors weigh in favor of a finding of coercive 25
questioning by Weiss and Selvig on October 8.
Respondent’s questioning of Wolf on October 8 was designed to determine with whom Wolf
had engaged in protected, concerted activity. In applying the Bourne factors, the Board seeks to
determine whether under all of the circumstances the questioning at issue would reasonably tend 30
to coerce the employee at whom it was directed so that he or she would feel restrained from
exercising rights protected by Section 7 of the Act. Westwood Health Care Center, 330 NLRB
935, 941 (2000). At time Weiss and Selvig questioned Wolf, they knew that she had received
the redacted medical records from a union member in her capacity as steward and that she was
using those records to investigate a potential contract violation. Threatening her with discipline 35
for failing to reveal the identity of the member from whom she had received the documents, and
thus with whom she had engaged in protected, concerted activity, would reasonably tend to
coerce her so that she would feel restrained in exercising her Section 7 rights. As such, I find
that Respondent’s October 8 interrogation of Wolf violated Section 8(a)(1) of the Act.
40
On October 11, Selvig sent Wolf an email threatening her with discipline if she did not
identify the union member from whom she had received the redacted medical records and the
transcriptionist to whom she had allegedly shown one of the documents. (GC Exh. 9). Selvig
also directed Wolf to assist Allina in retrieving any documents she had given to others. On
October 12, Selvig sent Wolf a similar email threatening her with discipline if she did not 45
identify the transcriptionist to whom she had allegedly shown one of the redacted medical
records she had received from Theis and the names of any other person to whom she had
JD–39–13
26
provided patient records. (GC Exh. 10). That these interrogations did not take place in person is
of little consequence. Selvig used Allina’s official email system to send her messages. In
addition, although Selvig was not a member of Wolf’s direct chain of command, she was a senior
human resources generalist at Allina and well above Wolf’s position in the corporate hierarchy.
Although Respondent cites to its duty to recover PHI, no evidence was offered that this was done 5
in other investigations and no testimony was elicited on the recovery of PHI in other cases. (Tr.
604). Again, Selvig’s actions in threatening Wolf with discipline for failing to reveal the identity
of the member from whom she had received the documents, the identity of the transcriptionist to
whom she had allegedly shown one of the documents, and if she did not assist Respondent in
recovering any outstanding documents, would reasonably tend to coerce her so that she would 10
feel restrained in exercising her Section 7 rights. Thus, I find that the October 11 and 12 threats
during the interrogations of Wolf violated Section 8(a)(1) of the Act.
D. Respondent Violated the Act in Discharging Theis and Wolf
15
The evidentiary record establishes, and I find, that Respondent terminated Theis and Wolf for
engaging in union and protected, concerted activity. As an initial matter, I find that Theis and
Wolf were engaging in protected, concerted activity when Thies provided evidence that she
believed established a contract violation to Wolf. I further find that Wolf was engaged in
protected, concerted activity when she sent an information request to Selvig regarding the 20
purported contract violation. Union grievance filing activity and the filing of information
requests are both protected and concerted activity. Shrock Cabinet Co., 339 NLRB 182 (2003);
United States Postal Service, 345 NLRB 426 (2005). The Board has held that in presenting and
processing a grievance, a union steward retains the protection of the Act, except in cases of
extreme misconduct in the performance of their union duties. Union Fork & Hoe Co., 241 NLRB 25
907 (1979).
When an employee is disciplined or discharged for conduct that is part of the res gestae of
protected concerted activities, the pertinent question is whether the conduct is sufficiently
egregious to remove it from the protection of the Act. Aluminum Co. of America, 338 NLRB 20 30
(2002). In making this determination, the Board examines the following factors: (1) the place of
the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst
or alleged misconduct; and (4) whether the conduct was provoked by an employer’s unfair labor
practice. Standard Hotel, 344 NLRB 558, 558 (2005) citing Atlantic Steel Co., 245 NLRB 814,
816 (1979). For an employee to forfeit the protection of the Act while processing a grievance, 35
the employee’s behavior must be so violent, or of such obnoxious character, as to render him or
her wholly unfit for further service. Clara Barton Terrace Convalescent Center, 225 NLRB
1028, 1034 (1976).
All of the Atlantic Steel factors weigh in favor of a finding that Theis and Wolf did not forfeit
the protection of the Act. The discussions at issue took place in face-to-face meetings in 40
Respondent’s conference room or by way of an email message sent on Allina’s email system.
The matter discussed was Wolf’s investigation of the possible contract violation discovered by
Theis. Wolf was pursuing an information request pursuant to the grievance procedure of the
parties’ collective-bargaining agreement. The nature of the misconduct was twofold: the
discovery and retention of medical records possibly showing that a manager was performing 45
bargaining unit work, and; the disclosure of a partially redacted medical record containing PHI to
JD–39–13
27
a union representative and two union stewards at another Allina facility. The actions of Theis
and Wolf in this case were not of such a nature to render them unfit for further service. Instead,
they were attempting to investigate a potential contract violation. The Board has held other
violations of an employer’s rules protected. A union steward’s forging of the names of other
employees on a grievance has been found protected. Roadmaster Corp., 288 NLRB 1195 5
(1988); Allied Aviation Fueling of Dallas, LP, 347 NLRB 248 (2006) (signing another
employee’s name to a grievance seeking to protect bargaining unit work held to be protected).
The conduct of Theis and Wolf did not rise to a level approaching that of a crime, such as
forgery. Finally, the actions of Theis and Wolf were provoked to some degree by the actions of
Respondent. Walsh, a supervisor, was performing transcription work, albeit for an outside 10
transcription service. Theis and Wolf were investigating this possible contract violation. In sum,
under the four-factor Atlantic Steel test, I cannot conclude that the actions of Theis and Wolf
caused them to lose the protection of the Act.30
Furthermore, Respondent has not made a clear showing that Theis and Wolf violated the 15
plain language of its confidentiality of patient information policy. Respondent’s witnesses
testified that Theis used and disclosed PHI and Wolf accessed, used, and disclosed PHI without a
legitimate business reason. However, I note that Respondent does not define legitimate business
reason in its policy and Respondent’s witnesses could not consistently provide a definition.
Similarly, Respondent does not define such other relevant terms as intent and sharing for gain. I 20
must construe these ambiguities against Respondent. It is well settled that any ambiguity in a
rule or policy will be construed against its promulgator. Salon/Spa at Boro, Inc., 356 NLRB No.
69, slip op. at 27 (2010); Bryant Health Center, 353 NLRB 739, 745 (2009).31
In their briefs, the General Counsel and Respondent further analyze the discharge allegations 25
using the burden shifting approach set forth in Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393, 395 (1983).32 It is clear that the Wright Line
analysis, “is inapplicable where, as here, an employer undisputedly takes action against an
employee for engaging in protected conduct; in such cases, the inquiry is whether the employee’s 30
actions in the course of that conduct removed the employee from the protection of the Act.”
Fresenius USA Mfg., 358 NLRB No. 138, slip op. at 4 fn 7 (2012).
However, I find that even analyzing the facts in these cases under the burden shifting analysis
in Wright Line, violations of the Act are established. Under Wright Line, the General Counsel 35
bears the initial burden that the respondent’s decision to take adverse action against an employee
was motivated, at least in part, by antiunion considerations. Camaco Lorain Mfg. Plant, 356

30 That Theis and Wolf were mistaken as to the existence of a contract violation does not render their
activity unprotected. The reasonableness of workers’ decisions to engage in concerted activity is
irrelevant to the determination of whether a labor dispute exists or not. Odyssey Capital Group, 337
NLRB 1110, 1111 (2002), citing NLRB v. Washington Aluminum, 370 U.S. 9 (1962).
31 The Act recognizes the enforcement of collective-bargaining agreements as legitimate.
Additionally, the implementing regulations for the HIPAA Privacy Rule recognize the Act’s legitimacy in
this regard as they permit disclosure of PHI for the resolution of grievances or to a collective-bargaining
representative as required under the Act. 45 CFR §164.501(6)(iii); 45 CFR § 164.512.
32 Respondent did not address the Atlantic Steel standard in its brief.
JD–39–13
28
NLRB No. 143, slip op. at 4 (2011). Antiunion animus may be inferred from the record as a
whole, including disparate treatment. Id. If the General Counsel establishes discriminatory
motive, the burden shifts to the employer to demonstrate that it would have taken the same action
absent the protected conduct. Id.; ADB Utility Contractors, 353 NLRB 166, 166–167 (2008), enf.
denied on other grounds, 383 Fed. Appx. 594 (8th Cir. 2010); Intermet Stevensville, 350 NLRB 5
1270, 1274–1275 (2007); Senior Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000).
When the evaluation of the General Counsel’s initial case, or the respondent’s defense,
includes a finding of pretext, this defeats any attempt by the respondent to show that it would
have discharged the discriminatee absent his or her union activities. Rood Trucking Co., 342 10
NLRB 895, 895 (2004); La Gloria Oil & Gas Co., 337 NLRB 1120, 1124 (2002). This is
because where the evidence establishes that the reason given for the respondent’s action is
pretextual—that is, either false or not relied upon—the respondent fails by definition to show
that it would have taken the same action for that reason. Id. Thus, there is no need to perform the
second part of the Wright Line analysis. Golden State Foods Corp., 340 NLRB 382, 385 (2003). 15
See also Sanderson Farms, Inc., 340 NLRB 402 (2003).
The General Counsel has met his initial burden in under the Wright Line test. As stated
supra, the activities of Theis and Wolf were both protected and concerted. Respondent was well-
aware of the protected concerted activity of Theis and Wolf when it discharged them. Selvig 20
received one of the redacted medical records at issue attached to an email from Wolf bearing the
subject line. “Information Request/Pre-Grievance.” (GC Exh. 7). The email plainly stated that
the Union believed Walsh, a supervisor, was performing bargaining unit transcription work, a
possible contract violation. Both Theis and Wolf informed Respondent’s representatives that the
documents were supplied to Wolf in her capacity as a steward. The privacy violations allegedly 25
committed by Theis and Wolf grew out of their union activity.
This case rests on Respondent’s motivation. Evidence of suspicious timing, false reasons
given in defense, failure to adequately investigate alleged misconduct, departures from past
practices, tolerance of behavior for which the employee was allegedly fired, and disparate 30
treatment of the discharged employee all support inferences of animus and discriminatory
motivation. Relco Locomotives, Inc., 358 NLRB No. 37. slip op. at 14 (2012). Several factors
establish that Respondent discharged Theis and Wolf based on their protected conduct.
Respondent’s repeated interrogations of Wolf regarding her grievance investigation provide 35
strong evidence of animus toward her union activity. As discussed above, Respondent
coercively questioned Wolf about her union activity on three occasions. Unlawful interrogations
supply evidence of union animus. Wynn Las Vegas, 358 NLRB No. 80, slip op. at 6 (2012).
Therefore, I find these repeated interrogations provide evidence of antiunion animus and direct
evidence of hostility towards Wolf’s union activity. Respondent coercively questioned Wolf on 40
October 8, 11, and 12 to determine with whom Wolf had engaged in protected, concerted
activity. On those occasions, Respondent threatened Wolf with discipline up to and including
discharge, if she failed to reveal the names of those with whom she had engaged in union
activity. As I have found, threatening her with discipline for failing to reveal the identity of the
members with whom she had engaged in protected, concerted activity, would reasonably tend to 45
coerce her so that she would feel restrained in exercising her Section 7 rights and thus violated
the Act.
JD–39–13
29
Respondent’s multiple and shifting justifications for the terminations of Theis and Wolf
provide further evidence of its unlawful motive. When an employer is unable to maintain a
consistent explanation for its conduct, but rather resorts to shifting defenses, “it raises the
inference that the employer is ‘grasping for reasons to justify’ its unlawful conduct.” Meaden 5
Screw Products Co., 336 NLRB 298, 302 (2001), citing Royal Development Co. v. NLRB, 703
F.2d 363, 372 (9th Cir. 1983). See also Master Security Services, 270 NLRB 543, 552 (1984)
(animus demonstrated where an employer used a multiplicity of reasons to justify disciplinary
action). Respondent advanced a multitude of reasons for its discharges of Theis and Wolf in its
investigative documents and corrective action forms. Although Selvig testified that Theis and 10
Wolf were terminated for violating Allina’s confidentiality of patient information policy, this
policy was never mentioned in Respondent’s investigative meetings with Theis and Wolf. (Tr.
612). In the investigatory meetings with Theis and Wolf, they were repeatedly questioned about
Allina’s de-identification policy. However, at the hearing, Selvig and Weiss both testified that
Theis and Wolf did not violate the de-identification policy.33 15
In responding to the Union’s information request, Selvig listed the following policies as
having been violated by Theis and Wolf: Confidentiality of patient information; confidentiality
and nondisclosure; minimum necessary for information disclosure; treatment, payment,
operations system policy; de-identification of patient information; use and disclosure of 20
protected health information; and authorization to release and disclose patient information. (R.
Exhs. 22a and b). When asked to explain which policies were violated by Theis and Wolf,
Selvig testified that confidentiality of patient information was the key policy and the only one
actually violated by Theis and Weiss. (Tr. 42–44).
25
Respondent’s disparate treatment of Theis and Wolf provides further evidence of
Respondent’s unlawful motivation. The record is replete with evidence that other employees
were treated less harshly for privacy violations seemingly more egregious than those at issue
here. Other employees were not discharged for: accessing patient census data without authority
and then posting information about a coworker gleaned from the census data on Facebook (GC 30
Exh. 31(g)); accessing multiple patient records 15 times over a period of 18 months (GC Exh.
31(zz)); sending an unencrypted email containing PHI to an email address outside of Allina and
mailing letters containing PHI to the wrong address on two separate occasions (GC Exh. 31(bb));
sharing PHI at a luncheon (GC Exh. 31(oo)); improperly revealing a patient’s HIV status (GC
Exh. 31(ww)); accessing and changing a patient’s medical chart (GC Exh. 31(i)); posting patient 35
photos on Facebook and posting comments about a patient on Facebook (GC Exhs. 31(h) and
(qq)), and; improperly accessing and using the medical records of a patient to fraudulently obtain
a medical test for a nonpatient. (GC Exhs. 31(p) and (q)). Clearly, numerous employees were
treated less harshly than Theis and Wolf for violating Respondent’s patient privacy rules.
40
I further note that Respondent’s repeated claims of absolute commitment to patient privacy
are unconvincing. If Respondent has an unconditional commitment to protecting PHI, it is
inconceivable that Selvig and Weiss would have let Sarro leave the October 8 meeting with the

33 I would note that Allina’s de-identification policy is inapplicable to these cases as the policy only
applies to records redacted as part of a research study or for a mandatory report or disclosure to a federal
agency.
JD–39–13
30
four partially redacted medical records in his possession. Sarro was not an employee of
Respondent; instead, he attended the meeting as Wolf’s union steward. According to the
testimony of both Selvig and Wolf, Sarro would have not had a legitimate business reason to
possess the records. In addition, Respondent itself has disclosed PHI to the Union in the past.
(CP Exhs. 1, 2, 3, 4). Therefore, Respondent’s patient privacy policies are not absolute and I 5
reject Respondent’s arguments that they provide a lawful basis for the discharges of Theis and
Wolf.
Respondent argues, by way of an affirmative defense, that Theis and Wolf lost the protection
of the Act by violating HIPAA, the HHS HIPAA Privacy Rule, and state laws. (GC Exh. 1(g)). I 10
have discussed the exceptions to the HIPAA Privacy Rule related to the Act, supra. HIPAA
regulations contemplate disclosure of PHI for collective bargaining purposes pursuant to the Act.
Any state statute in conflict with the Act would be preempted. Furthermore, I note that
Respondent did not claim that it discharged Theis and Wolf for violating HIPAA, but for
violating its own rules and policies. I do not find that Respondent has submitted sufficient 15
evidence to sustain any affirmative defense based upon HIPAA, or any state law.
Furthermore, I find that the case of Beckley Appalachian Regional Hospital, 318 NLRB 907
(1995), cited by Respondent, is distinguishable from these cases. In Beckley, the hospital
maintained a rule that “information is absolutely confidential” and that any disclosure of 20
confidential information to persons outside of the hospital was prohibited. 318 NLRB at 908.
The rule in these cases is not nearly so straightforward. Furthermore, the employee in Beckley
sought out information she would not have been entitled to in the normal course of her work. Id.
However, in the instant cases, Theis came upon the medical records bearing Walsh’s initials as
the transcriptionist during the normal course of her workflow. Therefore, I find the Beckley case 25
distinguishable from these cases.
Respondent cites Montgomery Ward & Co., 146 NLRB 76 (1964), in support of its argument,
however, it is also distinguishable from the instant cases. Although an employee of Montgomery
Ward was fired for providing confidential information to a union, several facts distinguish it. 30
First, the employer’s ban on providing information in Montgomery Ward & Co. was absolute.
146 NLRB at 78–79. However, in the instant cases, Respondent’s rules are not so
straightforward or absolute. More importantly, Respondent had never advised Theis or Wolf that
redaction and disclosure of PHI of the sort they performed was impermissible. Therefore, I find
Montgomery Ward & Co. inapposite to these cases.35
In addition, Bell Federal Savings & Loan Assn., 214 NLRB 75 (1974), also cited by
Respondent, is distinguishable from these cases. The employee in Bell Federal Savings & Loan
Assn., was suspended for revealing that the bank president had spoken to his legal counsel
numerous times. 214 NLRB at 78. The employee in Bell Federal Savings & Loan Assn. was not 40
engaged in grievance investigation activities when she revealed her boss’ discussions with
counsel. 214 NLRB at 78. It was noted that the employee in Bell Federal Savings & Loan Assn.
could not have gleaned the information about the telephone calls from information openly
available at work. Id. In this case, Theis encountered the medical records at issue in the normal
course of her work. 45
JD–39–13
31
With this foundation, I find that this is a case involving pretext. I find that the General
Counsel has established, by a preponderance of the evidence, that Theis and Wolf were not fired
for violating Allina’s patient privacy policies, as alleged by Respondent. Instead, I find that
Respondent’s proffered reasons for terminating Theis and Wolf were pretextual—that is, they
were false. Rather, the evidence shows that Respondent terminated Theis and Wolf in retaliation 5
for engaging in union activity. Where a reason for discharge is found to be false, I can and do
infer that the true motive lies elsewhere—namely, their union activity. Shattuck Denn Mining
Corp., 362 F.2d 466 (9th Cir. 1966). Therefore, I find that their discharges violated Sections
8(a)(3) and 8(a)(1) of the Act.
10
E. Respondent Violated the Act in Unreasonably Delaying Providing Information
The evidentiary record establishes, and I find, that Respondent violated the Act in
unreasonably delaying providing information responsive to Hilbrich’s November 2 information
request. Section 8(a)(5) of the Act provides that it is an unfair labor practice for an employer “to 15
refuse to bargain collectively with the representatives of its employees.” 29 U.S.C. §158(a)(5).
An employer’s duty to bargain includes a general duty to provide information needed by the
bargaining representative in contract administration. A-1 Door & Building Solutions, 356 NLRB
No. 76 slip op. at 2 (2011). Generally, information concerning wages, hours, and other terms
and conditions of employment for unit employees is presumptively relevant to the union’s role as 20
exclusive collective-bargaining representative. See Southern California Gas Co., 344 NLRB
231, 235 (2005). By contrast, information concerning extra unit employees is not presumptively
relevant; rather, relevance must be shown. Shoppers Food Warehouse Corp., 315 NLRB 258,
259 (1994). The burden to show relevance, however, is “not exceptionally heavy,” Leland
Stanford Junior University, 262 NLRB 136, 139 (1982), enfd 715 F.2d 473 (9th Cir. 1983); 25
“[t]he Board uses a broad, discovery-type standard in determining relevance in information
requests.” Shoppers Food Warehouse, 315 NLRB at 259.
An unreasonable delay in furnishing such information is as much of a violation of Section
8(a)(5) of the Act as a refusal to provide the information. Monmouth Care Center, 354 NLRB 30
11, 51 (2009), reaffirmed and incorporated by reference, 356 NLRB No. 29 (2010), enfd. 672
F.3d 1085 (D.C. Cir. 2012). It is well established that the duty to furnish requested information
cannot be defined in terms of a per se rule. Good Life Beverage Co., 312 NLRB 1060, 1062 fn.
9 (1993). Rather, what is required is a reasonable good-faith effort to respond to the request “as
promptly as circumstances allow.” Id. See also Woodland Clinic, 331 NLRB 735, 737 (2000). 35
In evaluating the promptness of an employer’s response, the Board considers the complexity and
extent of the information sought, its availability, and the difficulty in retrieving the information.
West Penn Power Co., 339 NLRB 585, 587 (2003), citing Samaritan Medical Center, 319 NLRB
392, 398 (1995), enfd. in relevant part 394 F.2d 233 (4th Cir. 2005).
40
Immediately following the terminations of Theis and Wolf, Hilbrich filed grievances with
accompanying information requests. Most of the information sought was presumptively
relevant. The personnel files of Theis and Wolf, the policies (and training on those policies)
alleged to have been violated by Theis and Wolf, investigative notes and rationale for the
decision to terminate Theis and Wolf, and an explanation of the violation and patient harm that 45
had allegedly been committed by Wolf are all related to the terms and conditions of employment
of the two bargaining unit employees at issue in these cases. The Union’s other requests,
JD–39–13
32
concerning comparative discipline and Respondent’s investigations of similar allegations, were
also relevant. Inasmuch as the Union was investigating Respondent’s consistency in enforcing
its privacy and disciplinary policies, this information was relevant and necessary to the Union’s
role in representing its members. Information regarding a misconduct investigation, even of
nonunit employees, is relevant to establishing whether there has been disparate treatment of 5
employees. SBC California, 344 NLRB 243, 246 (2005).
The scanning matrix documents sought by the Union were also relevant and necessary to the
Union’s role as exclusive collective-bargaining representative of the unit. The Union was
investigating whether Theis and Wolf were treated fairly by Respondent and whether their 10
discharges were proper. Respondent’s agents repeatedly mentioned redacting and de-identifying
PHI in their meetings with Theis and Wolf. Allina’s de-identification policy and other
confidentiality policies apply equally to all Allina employees. Thus, it was not unreasonable for
the Union to seek other examples of improper redaction or de-identification of PHI by
Respondent’s other employees and maintained on an Allina website. 15
Respondent’s replies to the Union’s information requests were untimely. As stated above,
Hilbrich made her information request on November 2. She received a partial response to her
request on December 4, the day before the pre-grievance step meetings regarding Theis and
Wolf. Selvig did not include the actual comparative disciplinary records sought by the Union, 20
instead substituting a summary chart. Also, for the first time on December 4, Selvig notified the
Union that its request for scanning matrix documents was overly burdensome and asked the
Union to share in the cost of producing the scanning matrix documents. Hilbrich reduced the
amount of scanning matrix documents being sought twice, once on December 6 and again on
December 21. Nevertheless, she did not receive the scanning matrix documents until January 7, 25
over 2 months after her initial request.
It is well established that the duty to furnish requested information cannot be defined in terms
of a per se rule. Good Life Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993). Rather, what is
required is a reasonable good-faith effort to respond to the request “as promptly as circumstances 30
allow.” Id. Respondent could have gathered most of the records requested quickly and provided
them to the Union. In fact, Selvig testified that personnel files are stored electronically and can
be retrieved using an employee number. (Tr. 71). Respondent could have also requested an
accommodation related to the rather voluminous initial request for scanning matrix documents;
instead Respondent waited over a month to do so. The burden of formulating a reasonable 35
accommodation is on the employer. United States Testing Co. v. NLRB, 160 F.3d 14, 21 (D.C.
Cir. 1998) citing Tritac Corp., 286 NLRB 522, 522 (1987).
Based on the record in this case, including the extent, lack of complexity, and availability of
the information sought, I conclude that Respondent, had it been so inclined, could have 40
responded to most of the Union’s information request regarding Theis and Wolf within the week
originally requested by Hilbrich and delayed unreasonably by waiting over 2 months to do so.
Absent evidence justifying delay, even a delay of several weeks may constitute a violation. See
United States Postal Service, 359 NLRB No. 4, slip op. at 3 (2012) (1-month delay
unreasonable); United States Postal Service, 308 NLRB 547, 551 (1992) (4-week delay 45
unreasonable); International Credit Service, 240 NLRB 715, 718–719 (1979), enfd in relevant
JD–39–13
33
part 651 F.2d 1172 (6th Cir. 1981) (6-week delay unreasonable); Monmouth Care Center, 354
NLRB 11, 52 (2009), enfd. 672 F. 3d 1085 (D.C. Cir. 2012) (6-week delay unreasonable).
Respondent’s argument that the Union did not protest the timeliness of its response to the
November 2 information request is without merit. A request for information may be made orally 5
or in writing and does not need to be repeated. Bundy Corp., 292 NLRB 671, 672 (1989). In any
event, Hilbrich sent several emails to Selvig and Schmoyer seeking compliance with her
November 2 information request. In addition, any attempt by Respondent to excuse its delay due
to the holidays in November and December is meritless. The Board has found that the United
States Postal Service had unreasonably delayed providing information to an employee union 10
despite heavier than normal mail volumes at the end of the year. United States Postal Service,
359 NLRB No. 4, slip op. at 3 (2012). Therefore, I find that the delay by Respondent was
unreasonable and violated Sections 8(a)(5) and 8(a)(1) of the Act.
Respondent argues, by way of an affirmative defense, that the information request allegations 15
are barred by the doctrines of Accord and Satisfaction. (GC Exh. 1(g)). This defense lacks merit.
An employer violates the Act not only when it refuses to supply information in response to a
valid request, but also which it unnecessarily delays providing the information. Britt Metal
Processing, 322 NLRB 421, 425 (1996), enfd mem. 134 F.3d 385 (11th Cir. 1997); Tennessee
Steel, 287 NLRB 1132 (1988). The doctrines of Accord and Satisfaction do not excuse 20
Respondent’s unreasonable delay in providing information to the Union.
In addition to the affirmative defenses discussed above, Respondent raised a number of other
affirmative defenses. (GC Exh. 1(g)). Specifically, Respondent alleges that the complaint fails to
state a claim upon which relief can be granted, Respondent has been denied due process of law, 25
the complaint is barred because the Charging Party Union filed to properly serve Respondent, the
Agency’s position and issuance of complaint are not substantially justified, and there is no basis
for the Agency to seek special remedies. (Id.). I note that Sec. 102.14 of the Board’s Rules and
Regulations provides that the charging party shall be responsible for the timely and proper
service of the charge. However, the Board and the courts have historically held that service by 30
the Board’s regional office is sufficient, so long as it is timely. See T.L.B. Plastics Corp., 266
NLRB 331 fn. 1 (1983) and the cases cited there. Respondent does not deny that it was timely
served with the charge by the Board’s regional office. In addition, Respondent presented no
evidence supporting its other affirmative defenses at the hearing and the affirmative defenses
were not raised in Respondent’s brief. As Respondent seems to have abandoned these remaining 35
affirmative defenses, I will not address them further.
Finally, I am not, as is argued by Respondent in its brief, creating a rule by which employees
are free to rifle through confidential medical records where doing so advances the policies of the
Act. I do not question Respondent’s need to enforce its privacy policies; the issue here was how 40
Respondent dealt with its employees who allegedly violated those policies. Instead, I find only
that in the circumstances of these cases, Respondent violated the Act in interrogating,
threatening, and discharging its employees.
CONCLUSIONS OF LAW45
1. Respondent has been an employer engaged in commerce within the meaning of
JD–39–13
34
Section 2(2), (6) and (7) of the Act.
2. The Union has been a labor organization within the meaning of Section 2(5) of
the Act.
5
3. Respondent violated Section 8(a)(1) of the Act when it interrogated and
threatened Maria Wolf on or about October 8, 11, and 12, 2012.
4. Respondent violated Sections 8(a)(5) and 8(a)(1) of the Act when it unreasonably
delayed providing information requested by the Union pursuant to its information 10
request of November 2, 2012.
5. Respondent violated Section 8(a)(3) and 8(a)(1) of the Act when it discharged
Meredith Theis and Maria Wolf.
15
6. By engaging in the unlawful conduct set forth in paragraphs 3, 4, and 5 above,
Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1), 8(a)(3), and 8(a)(5), and Section 2(6) and (7) of the Act.
7. Deferral to the parties’ grievance-arbitration procedure is not appropriate in this 20
case.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall 25
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
The Respondent, having discriminatorily discharged employees Meredith Theis and
Maria Wolf, must offer them reinstatement and make them whole for any loss of earnings and 30
other benefits. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No.
8 (2010).
35
For all backpay required here, Respondent shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar quarters. Respondent shall also
compensate the discriminatees for the adverse tax consequences, if any, of receiving one or more
lump-sum backpay awards covering periods longer than 1 year, Latino Express, Inc., 359 NLRB
No. 44 (2012). 40
Further, Respondent shall be required to remove from the personnel files of Meredith
Theis and Maria Wolf any reference to their unlawful terminations, and advise them in writing
that this has been done. In addition, Respondent shall be required to cease and desist from
engaging in unlawful discriminatory conduct and to post an appropriate notice, attached hereto as 45
an “Appendix.”
JD–39–13
35
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended34
ORDER5
The Respondent, St. Francis Regional Medical Center, Shakopee, Minnesota, its officers,
agents, successors, and assigns, shall
1. Cease and desist from 10
(a) Interrogating employees about their involvement in union or other protected, concerted
activities.
(b) Threatening employees with discipline for failing to disclose the identity of employees 15
who engage in union or other protected, concerted activities.
(c) Discharging or otherwise discriminating against any employee for engaging in union or
protected, concerted activity.
20
(d) Unreasonably delaying in providing information requested by the Union that is relevant
and necessary for the Union to fulfill its role as the exclusive collective-bargaining
representative of unit employees.
(e) In any like or related manner interfering with, restraining, or coercing employees in the 25
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Meredith Theis and Maria Wolf 30
full reinstatement to their former jobs or, if those jobs no longer exists, to substantially
equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed.
(b) Make Meredith Theis and Maria Wolf whole for any loss of earnings and other benefits 35
suffered as a result of the discrimination against them, in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any reference to
the unlawful discharges, and within 3 days thereafter notify the employees in writing that 40
this has been done and that the discharges will not be used against them in any way.

34 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–39–13
36
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 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 electronic form, necessary to analyze the amount of backpay due under the terms of this 5
Order.
(d) Within 14 days after service by the Region, post at its facility in Shakopee, Minnesota
copies of the attached notice marked “Appendix.”35 Copies of the notice, on forms
provided by the Regional Director for Region 18, after being signed by the Respondent’s 10
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. In addition to physical posting of paper notices, the notices shall
be distributed electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its 15
employees by such means. Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current employees and former 20
employees employed by the Respondent at any time since October 8, 2012.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.25
Dated, Washington, D.C. June 12, 2013
30
_____________________________
Melissa M. Olivero
Administrative Law Judge

35 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 United States Court of Appeals Enforcing an Order of the 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 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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT interrogate employees about their involvement in union or other protected,
concerted activities.
WE WILL NOT threaten employees with discipline for failing to disclose the identity of
employees who engage in union or other protected, concerted activities
WE WILL NOT terminate any employee for engaging in activities on behalf of any union,
including SEIU Healthcare Minnesota, or for engaging in other concerted activities protected
under Section 7 of the Act.
WE WILL NOT refuse to recognize and bargain in good faith with Service Employees
International Union Healthcare Minnesota (the Union) as the exclusive collective-bargaining
representative of our employees in the following appropriate unit:
All full-time and regular part-time nonprofessional employees employed by St.
Francis Regional Medical Center at its Shakopee, Minnesota, facility; excluding
all other employees, office clerical employees, and guards and supervisors as
defined by the Act.
WE WILL NOT unreasonably delay in providing information requested by the Union that is
relevant and necessary for the Union to fulfill its role as the exclusive collective-bargaining
representative of unit employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Meredith Theis and Maria Wolf full
reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously
enjoyed.
WE WILL make Meredith Theis and Maria Wolf whole for any loss of earnings and other
benefits resulting from their discharge, less any net interim earnings, plus interest compounded
daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Meredith Theis and Maria Wolf for the adverse tax consequences, if any,
of receiving one or more lump-sum backpay awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful discharges of Meredith Theis and Maria Wolf, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has been done and that the discharges will not
be used against them in any way.
ST. FRANCIS REGIONAL MEDICAL CENTER
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
Towle Building, Suite 790, 330 Second Avenue South, Minneapolis, MN 55401-2221
(612) 348-1757, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (612) 348-1770.