Albany Medical Center

National Labor Relations Board - Board Decisions

May 28, 2004

341 N.L.R.B. 1258 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1258
Albany Medical Center and John Michael Vitale and
AMC Registered Professional Nurses
NYSUT/AFT/AFL–CIO. Cases 3–CA–24094 and
3–CA–24162
May 28, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On December 10, 2003, Administrative Law Judge
Wallace H. Nations issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Albany
Medical Center, Albany, New York, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for Conclusions of Law 3.
“3. By telling its nursing employees that they would
have to renegotiate for a $2 raise that was promised to
them before the Union’s petition was filed, the Respon-
dent unlawfully coerced employees with regard to their
membership in, sympathy for, and support of the Union
prior to the election in violation of Section 8(a)(1) of the
Act.”
2. Substitute the following for paragraph 1(a).
“(a) Telling its nursing employees that they would
have to renegotiate for a $2 raise that was promised to
them before the Union’s petition was filed.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. Further, we do not rely on the judge’s
statement that he “[did] not think the case would turn out differently
whether [he] credited LaPosta’s version or that of Sigond” in affirming
the judge’s credibility findings.
2 We have modified the judge’s Conclusions of Law 3, recom-
mended Order, and notice to more accurately reflect the particular
statement that the judge found to be unlawful.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten that an announced $2-an-hour
pay increase will have to be renegotiated or changed in
any way if you select the Union as your collective-
bargaining representative.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.

ALBANY MEDICAL CENTER
Alfred N. Norek, Esq., for the General Counsel.
Todd Shinaman, Esq., of Rochester, New York, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. This case
was tried in Albany, New York, on September 16, 2003. The
original charge in Case 3–CA–24094 was filed by John Mi-
chael Vitale, an individual, on February 13, 2003. The first
amended charge was filed by Vitale on April 29, 2003, and a
second amended charge was filed by him on May 30, 2003.
The original charge in Case 3–CA–24162 was filed by AMC
Registered Professional Nurses, NYSUT/AFT/AFL–CIO (the
Union) on March 25, 2003. The first amended charge was filed
by the Union on April 30, 2003, and a second amended charge
was filed by the Union on May 14, 2003.1 On June 30, 2003,
Region 3 issued an Order consolidating cases, consolidated
complaint and notice of hearing alleging the Albany Medical
Center (the Respondent or Medical Center) has engaged in
certain activity in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act (Act). The Respondent filed a
timely answer wherein, inter alia, it admits the jurisdictional
allegations and the supervisory and agency allegations of the
complaint.
1 All dates are in 2003 unless otherwise indicated.
341 NLRB No. 145
ALBANY MEDICAL CENTER 1259
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, engages in the operation of
an acute care hospital and in medical education and research
programs at its facility in Albany, New York. The Respondent
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and a
health care institution within the meaning of Section 2(14) of
the Act. Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and the Issues for Determination
Albany Medical Center is an acute care hospital and teaching
center in Albany, New York. There have been two recent cam-
paigns by unions to organize certain of its employees. The first
took place in 2002, and the second in the early part of this year.
The complaint alleges certain conduct by Respondent’s admin-
istrators during the 2003 campaign violated Section 8(a)(1) of
the Act. The allegations of unlawful conduct fall into three
separate and discrete categories. First, Respondent is alleged to
have threatened and taken adverse action against its phleboto-
mist John Michael Vitale for soliciting support for the Union.
Second, Respondent is alleged to have threatened employees
with the loss of existing benefits if they selected the Union in
the election. Third, Respondent is alleged to have threatened
an employee with unspecified reprisal because of her support
for the Union.
Respondent admits that the following persons are supervisors
within the meaning of Section 2(11) of the Act and are agents
within the meaning of Section 2(13) of the Act, and have the
job title noted:

Mary Jo LaPosta Senior Vice-President—
Chief Nursing Officer
Karen Sigond2 Medical Intensive Care Manager
Vanessa Helms Assistant Phlebotomy Supervisor
Christine Dolan Phlebotomy Supervisor

The complaint specifically alleges that Respondent engaged
in unlawful conduct as follows:

1. On or about January 17, by Mary Jo LaPosta,
threatened employees that it would not implement, or
would take away, a promised two-dollar per hour wage in-
crease if they selected the Union as their collective-
bargaining representative.
2. On or about January 17, by Mary Jo LaPosta,
threatened employees with cancellation of the weekend
track program if they selected the Union as their collec-
tive-bargaining representative.

2 This person’s name is spelled in a variety of ways in the record. I
have adopted this spelling as it is the one used in the complaint and in
the Employer’s brief.
3. On or about January 17, by Mary Jo LaPosta,
threatened employees with the loss of vacation time if they
selected the Union as their collective-bargaining represen-
tative.
4. On a date between January 23 and February 6, by
Karen Sigond, threatened employees with unspecified re-
prisals because of their support of the Union.
5. On February 8 and 9, by Vanessa Helms, threatened
employees with unspecified reprisals because of their sup-
port of the Union.
6. On February 9, by Vanessa Helms, threatened to
transfer an employee to another department because of the
employee’s support of the Union.
7. On various dates between February 5 and March 6,
reassigned Vitale from the Inpatient Phlebotomy Depart-
ment to the Outpatient Phlebotomy Department.

As noted above, there were two petitions filed to represent
Respondent’s employees. The case numbers and the dates of
various actions taken with respect to the petitions are as fol-
lows:

Case 3–RC–11168

October 12, 2001—Petition filed by New York Health
& Human Service Union, 1199 SEIU, AFL–CIO (Service
and Maintenance Unit)
September 2, 2002—Decision and Direction of Elec-
tion
September 2, 2002—Order Approving Request to
Withdraw Petition, Canceling Election and Withdrawing
Notice of Election (scheduled for October 16 and 17,
2002)

Case 3–RC–11300

January 10, 2003—Petition filed by Albany Medical
Center Registered Professional Nurses, NYSUT/AFT/
AFL–CIO
January 23, 2003—Stipulated Election Agreement
February 26 and 27, 2003—Dates of Election
March 7, 2003—Certification of Results

B. Facts and Discussion of the Issues Raised by John Vitale
Vitale has been employed by Respondent as a phlebotomist
since 1994. In this role, he draws blood from patients, either on
the hospital’s various floors or in an outpatient office. Both the
inpatient and outpatient phlebotomy services are performed by
the Medical Center’s phlebotomy department. As pertinent, the
department is led by Lois Archer, phlebotomy administrator,
Christine Dolan, phlebotomy supervisor, and Vanessa Helm,
assistant phlebotomy supervisor. Dolan testified that there are
two outpatient labs located on the first floor of the hospital. An
inpatient office is maintained on the hospital’s fifth floor. The
phlebotomy department has about 35 employees. Prior to this
year, Respondent had hired phlebotomists either to work pri-
marily in inpatient service or primarily in outpatient service. It
only used phlebotomists for one department to work in the
other in an emergency situation. It is now trying to integrate
the two departments to make the entire operation more efficient
and productive. It implemented a new staffing plan that calls
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1260
for moving phlebotomists between the two departments and for
changing hours to meet demands of customers.
Dolan testified that about mid-December 2002, a number of
clinics in the hospital announced they were going to cease
drawing blood and would be sending their patients to Respon-
dent’s outpatient lab. As this phased in, there was an increase
of about 27 percent in the outpatient volume. Initially, this
increase was handled in a reactive way that caused a number of
complaints from customers. She then held a meeting with her
inpatient staff and announced that they would be working in
outpatient service more often to meet the increased demand in
that department. This meeting took place about February 6.
Vitale works from 6 a.m. to 2:30 p.m., Monday through Fri-
day with one day off in between after every fourth day and
every other weekend. Prior to February 6, Vitale was assigned
to inpatient phlebotomy and had been so assigned since he was
employed by Respondent. In early February, on Vitale’s shift
the maximum and preferable staffing was six phlebotomists,
though on some days only four were available. His fellow
phlebotomists were Nancy Keary, Mark Brooks, Ana Luis,
Kareen Smith, and Joyce Thomas. There were two other shifts
for phlebotomists, the second and third. The hours of the sec-
ond shift were 2:30 to 11 p.m., and the hours of the third shift
were 11 p.m. to 7 a.m. The staffing level of the second shift
was two or three phlebotomists. On Vitale’s shift, the Respon-
dent employed four phlebotomists in its outpatient office on the
first floor of the hospital. Respondent also employed phle-
botomists at four offsite locations in the Albany area.
Work assignments for inpatient phlebotomists are given to
the employees by computer, which assigns them to certain
units. On the first shift, Vitale was expected to be out on the
units drawing blood by 6:20 a.m. and to be finished with the
morning rounds by 8:30 or 9 a.m.3 He would then take a break
and then go back out for a second round of drawings. He usu-
ally completed this round by 11 a.m. He would then perform a
third round and then take lunch. He would then complete an-
other round and would be done for the day. On a typical day he
would draw blood from 25 to 30 patients. On his lunch and
other breaks, he was not restricted as to where he could take it,
except the limitations of time.
Vitale was involved in both union attempts to represent the
Respondent’s employees. In the first case, 3–RC–11168, he
was head organizing committee member for SEIU 1199,
charged with organizing, getting employees to union meetings,
and communicating information from the Union to employees.
He was present at part of the R-case hearing in this first orga-
nizing effort. During this organizing effort, he was not as-
signed to work in the outpatient phlebotomy office but once.
However, he was counseled by Supervisor Dolan in April 2001
for soliciting support for the Union while he was working and
the employee being solicited was also working.
Respondent’s employee manual states in pertinent part, “So-
licitation by an employee for any cause or organization is pro-

3 The vast majority of blood draws are taken in the first morning
round of blood draws. Following this draw, inpatient phlebotomists are
expected to make regular rounds in their assigned units, respond to
pages for emergency blood draws, and assist coworkers as needed.
hibited during the employee’s working time, or during the
working time of the employee(s) being solicited, and it is pro-
hibited at any time (working or nonworking time) in direct
patient care areas of the Center. The distribution of literature
on Center property is prohibited during their working time or at
any time in direct working areas of the Center.
Vitale was familiar with the Respondent’s solicitation policy,
but testified that he did not think it prohibited him from talking
about the Union during his working time or the working time of
the person he was speaking with, so long as they were not in a
patient care area. Vitale denied soliciting for the Union in pa-
tient care areas. I do not credit this testimony. He testified that
employees regularly talked to one another when working. They
talked about topics of general interest, and sometimes about
unions. He testified that other of Respondent’s employees
constantly came looking for him, or would stop him on rounds
to ask questions about the Union or vent their complaints about
Respondent’s management. Testimony from other witnesses
established that Vitale often initiated these conversations.
When Vitale learned of the second organizing attempt in
2002 by the AMC Registered Nurses, NYSUT/AFT/AFL–CIO,
he went to the Union’s office and met with Megan O’Brien, the
lead organizer for this campaign. He asked how he could help
and he thereafter supported the organizing effort by wearing
union buttons and actively soliciting support for the Union
among Respondent’s employees. Vitale would not have been
in the bargaining unit had the second organizing effort been
successful.
On February 6, Vitale attended a meeting in the phlebotomy
office conducted by Dolan and Helms. Also in attendance were
five or six other phlebotomists. The supervisors discussed the
possibility of increased blood draws in the outpatient office
because some of the doctors’ offices in the hospital were ceas-
ing doing their own blood draws.4 Because of the increased
demand, inpatient phlebotomists were put on notice that they
may have to assist the outpatient office. Vitale worked on a
quality improvement team in phlebotomy and while on that
committee had suggested that he might be a good person to
send to the outpatient office to improve its performance. He
made this suggestion about February 18 or 19.
Thereafter, in the period February 6 to March 27, Vitale was
assigned to work in the outpatient office for 17 of the 40 days
he worked during this period. On the two union election dates,
February 26 and 27, he worked in the outpatient office. On two
occasions in this period, fellow phlebotomist Smith was reas-
signed to the outpatient office, and on three occasions fellow
phlebotomist Keary was similarly reassigned. On one occa-
sion, a phlebotomist named Sarah Guy was reassigned from
inpatient to outpatient. The outpatient office is not open on
weekends. If there is a need for a phlebotomist to draw blood
from a person not a patient in the hospital on a weekend, an
inpatient phlebotomist will perform the blood draw.
Dolan testified that assignment of inpatient phlebotomists to
various departments to provide inpatient service is rotated
among the inpatient staff so that each phlebotomist works an
4 Vitale testified that in fact there has been an increase in the number
of outpatient blood draws in 2003 as compared with 2002.

ALBANY MEDICAL CENTER 1261
equal amount of time in each department over a period of time.
This staffing plan had not been utilized prior to March to assign
inpatient phlebotomists to the outpatient department. Dolan
testified that after March, staffing was reduced in inpatient
service after 10 a.m. to four phlebotomists and that the other
inpatient phlebotomists are sent to outpatient service on a regu-
lar rotation.
According to Vitale, subsequent to March 27, he was not
again assigned to outpatient service until he was assigned to
that service “a little bit” in August. Dolan credibly contradicted
this testimony by Vitale. She testified and I accept that he
worked in the outpatient service on 10 or 12 days in the period
April through June. Other inpatient phlebotomists also worked
in the outpatient service during the same time period.
Prior to February 6, Vitale had occasionally been assigned to
the outpatient office. He testified that in that period of time, he
could refuse the assignment and management would assign
another phlebotomist. The last time Vitale could remember
being assigned to the outpatient office, prior to February 6, was
1 or 2 years ago. He went to help the outpatient phlebotomists
get caught up. This was the only occasion he could remember,
pre-February 6, that he actually worked in the outpatient office.
Post-February 6, on the days when he was reassigned to the
outpatient office, he would complete his first round of inpatient
blood draws, and then report to the outpatient office about 9 or
9:30 a.m. Vitale testified that work in the inpatient service is
very different from work in outpatient service. In outpatient
service, he dealt with persons with organ transplants who get
blood drawn on a regular basis, took urine, stool and throat
samples, and dealt with about 50 children a day. In inpatient
service, he did not do these things, unless he was assigned to
the children’s ward. In inpatient service, he worked on each of
the hospital’s floors as opposed to being in one room in the
outpatient office. In inpatient service, he had regular contact
with Respondent’s other employees, but would have no contact
with them in outpatient service.
Vitale testified that on February 8, he had a conversation
with Supervisor Helms. She told him that during that day, Su-
pervisor Dolan wanted to talk to him with regard to e-mails she
had received accusing Vitale of unionizing on the floors during
his workday. Later that day, he met with Dolan and Helms in
Dolan’s office. Dolan said that she had received a couple of e-
mails accusing Vitale of unionizing on the hospital’s floors and
bashing the Respondent’s CEO, James Barber. Vitale agreed
that he had been doing that. Dolan then specifically accused
him of bashing Barber on floor E4. Vitale agreed that he had
done that and told Dolan that Barber had cut employees’ re-
tirement by 2-1/2 percent and raised their insurance payment.
He asked if he should be applauding Barber for doing these
things. Dolan then stated she had received a complaint from
Nurse Manager Christine Ashbey on floor C5. Ashbey had
complained that Vitale was talking to her nurses at a time when
they were working or trying to work. Vitale admitted that he
had in fact talked to one of her nurses, Christine Varney.
Varney had asked him if the Respondent could take away a
promised $2 raise as it had threatened to do. Vitale told Varney
that Respondent could only take it away in contract negotia-
tions. Vitale testified that this conversation took 2 or 3 min-
utes.
In the meeting with Dolan and Helms, Helms then asked him
why people were so intimidated by him? According to Vitale,
Dolan then said that it was not Vitale who intimidated people,
rather it was what he stood for, a union. Dolan did not recall
Helms asking this question or that she replied as testified to by
Vitale. I do not know if this particular exchange really hap-
pened. Vitale appeared prone to exaggerate or embellish con-
versations, but there is testimony that one of the nurses who
Vitale solicited felt “trapped” by him.
Vitale testified that Helms then said that he needed to work
in the outpatient office for a while. Vitale and the two supervi-
sors had some heated words and he left their office. He worked
that day, the 8th in inpatient service and worked in inpatient
service on February 9 as well. On February 10, he worked in
the outpatient office. He had worked in outpatient service on
February 5 and 6, dates preceding this meeting with Dolan and
Helms.
Dolan testified that she selected Vitale to work more often in
the outpatient office for several reasons. He is a level three
phlebotomist and thus competent to handle any problem that
would be encountered in the outpatient service. She also con-
sidered him to be a very skilled and knowledgeable phleboto-
mist. The outpatient service serves a large number of children
and Vitale is very competent at drawing blood from people in
this age group. She had also received complaints that he had
been disruptive of the workflow in the nursing units, and his
productivity was low compared to other staff. She believed this
lack of productivity was because he was talking with other staff
rather than working. Dolan felt that his skills and time would
be better used in the outpatient service. She also testified that
because of Vitale’s skills, he would have been a prime candi-
date for outpatient service, even in the absence of complaints
about his talking to others and his solicitation.
Dolan testified that in the latter part of 2002, she was receiv-
ing complaints that Vitale was out on the floors creating distur-
bances and interfering with the flow of work. He was accused
of talking to employees while they were working and some of
the talk involved solicitation for the Union. She also received
complaints that he was not providing support to coworkers, was
speaking negatively about the Medical Center’s CEO, and that
Vitale was not answering pages. Dolan testified that she has
never allowed employees to solicit on working time.
Christina Ashbey is nurse manager of the orthopedic and
plastic surgery unit at the Medical Center. She complained to
Dolan that Vitale was spending a lot of time on her unit solicit-
ing for the Union. The staff he solicited complained to her that
he was obstructing their work. They also complained that
Vitale would sit at their workstations where they are supposed
to sit, and that he would use their telephones for personal calls.
She noted that one of her nurses complained that Vitale ap-
proached her while she was preparing medications for a patient
in pain and began speaking about the Union. This nurse felt
“trapped.”
Ashbey herself observed Vitale sitting at nurses’ worksta-
tions interfering with the work of her nurses. She observed him
in patient care areas soliciting nurses for the Union. She testi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1262
fied that on those occasions she observed him, he had initiated
the contact. She testified that Vitale engaged in this contact
from fall of 2002 until the end of February 2003. Since Febru-
ary, Vitale has come to the unit, performed his work and left
without bothering anyone. She testified that he is not as talka-
tive as he had been before.
When Vitale came to work on February 10, a night-shift
phlebotomist, James Wood, told Vitale that he had better watch
his back, that there was a lot of pressure in the office, and that
Mary Jo LaPosta had made a comment that she wanted Vitale’s
head on a silver platter. Wood further told him that the Re-
spondent’s administration was putting immense pressure on
Dolan to get Vitale off the floors until the union election was
over or to get rid of him entirely. Acting on this information, at
about 9 a.m., Vitale went to Helms and confronted her. Ac-
cording to Vitale, he asked Helms if Mary Jo LaPosta had said
that she wanted his head on a silver platter. Again, according
to Vitale, Helms nodded her head in an affirmative way. Ac-
cording to Vitale, Helms said that Phlebotomy Administrator
Lois Archer had asked Helms if there was any place to put
Vitale until this (the union campaign) was over. Helms said
that she considered this an unusual question. Vitale testified
that he answered Helms abruptly and she said, “John, its only a
job. I don’t feel comfortable doing this either.” Dolan and
Helms deny all of Vitale’s testimony about the “head on a sil-
ver platter” and LaPosta denies ever making such a statement.
Dolan also denied being asked by Archer to put Vitale some-
where until the election was over. I credit these denials and
reject this testimony by Vitale. If Archer or Dolan wanted to
get Vitale out of the Medical Center, they could have trans-
ferred him to one of the Center’s satellite offices. In February,
Dolan asked to be transferred to one such satellite office, but
the request was denied.
On Friday, February 14, having worked in outpatient service
on February 10, 12–14, Vitale went to Helms and stated that he
had completed his week in the outpatient office and was not
going to work there anymore. He asked her to send someone
else to work there. According to Vitale, Helms told him not to
put her in an awkward position. Later that day, Vitale was
called into Dolan’s office with Helms. Dolan told him that
Helms had informed her of Vitale’s statement earlier in the day.
Dolan then threatened him with a suspension for insubordina-
tion if he did not report to the outpatient office when assigned
to work there. He asked for time to consult with an attorney
before answering. The next day, Vitale consulted with a David
Slutsky from SEIU 1199. After this consultation, Vitale asked
to be transferred to one of Respondent’s offsite offices near his
home. He was not so transferred and Vitale agreed to work in
outpatient service when assigned.5 As noted earlier, Vitale
suggested to Dolan and Helms the following week that he
would be a good person to send to the outpatient office.

5 During the December 2002 through March 2003 timeframe, some
of Respondent’s hospital phlebotomists were temporarily assigned to its
Schenectady, New York offsite office to fill in for phlebotomists regu-
larly assigned there who were on maternity leave. Vitale was not so
assigned.
Helms remembers Vitale stating that he was going to refuse
to go to outpatient service. She inquired of human resources
how to handle this refusal. Human resources gave her advice
and she met with Vitale and asked if he felt that he was being
asked to do something he was not competent to do, or did he
feel his health was being put at risk. Vitale answered in the
negative. She told him that he would be required to work in the
outpatient department when asked to do so. She remembers
Vitale saying he wanted to seek counsel and left. The follow-
ing day, Vitale reported to her that his attorney had advised him
to follow instructions.
Vitale testified that on February 15 he had a conversation
with Dolan. Vitale was sitting at a table in the breakroom with
employee Steve Scarano, when Dolan came up and said,
“Steve, John’s mad at me, Steve.” According to Vitale, she
then put her hand on his shoulder and said, “If its any consola-
tion to you, Lois Archer and Dr. Rosano don’t feel good about
this either.” Dolan denies making this statement and I credit
her denial.
I believe that the phlebotomy department began to supple-
ment the outpatient phlebotomy service with inpatient phle-
botomists because of a substantial increase in demand in the
outpatient service and the decision to do so had nothing to do
with the union campaign. I believe that Vitale was initially
selected to get the bulk of these assignments to the outpatient
service in part because of his solicitation efforts. However, I do
not find that Vitale’s solicitation on the working floors and in
patient areas on both his working time and that of fellow em-
ployees was protected activity. This activity is in direct viola-
tion of the Medical Center’s lawful no-solicitation policies of
which Vitale was aware. That he testified that he could solicit
anywhere at any time so long as it was not in a patient area
does not give his conduct the protection of the Act. Clearly,
Respondent’s policy prohibits such conduct. It is also clear that
Vitale’s actions did disrupt the work of the Medical Center and
that it had a legitimate reason for wanting him to stop his solici-
tations in work and patient areas during times when he was
supposed to be working and the person solicited was working.
It also had a legitimate interest in improving his productivity by
utilizing the time he was soliciting other employees while he
and they were supposed to be working.
There is nothing in the record to suggest that working in the
outpatient department in any way inhibited Vitale’s ability to
solicit on his breaks and at lunch. He could take breaks and eat
lunch anywhere he did when he worked in the inpatient de-
partment. There is nothing in this record to suggest that the
Medical Center objected to his solicitation efforts when he was
on a break or other nonworking time and the employee being
solicited was likewise on nonworking time and the solicitation
was not in a patient area.6
6 The Supreme Court and the Board have established special rules
restricting otherwise protected activity in the context of health care
facilities. NLRB v. Baptist Hospital, 442 U.S. 773, 784 (1979) (an
employer can prohibit union activity in the corridors and sitting rooms
of a large hospital because such activity “in the presence or within the
hearing of patients may have adverse effects on their recovery.”); Beth
Israel Hospital v. NLRB, 437 U.S. 483 (1978); St. John’s Hospital, 222
NLRB 1150 (1976). These rules recognize a health care employer’s

ALBANY MEDICAL CENTER 1263
There is nothing in the record to suggest that Respondent
was trying to remove Vitale from the Medical Center to inhibit
his ability to engage in protected solicitation for the Union. If it
had wanted to do this, it could have transferred him to one of its
offsite facilities as Vitale himself requested. I believe that its
refusal to transfer him belies any claim that Respondent was
trying to restrict Vitale’s legitimate union activities.7
I cannot find any credible evidence that Vanessa Helms
threatened Vitale or any other employee with unspecified repri-
sals because of their support of the Union nor can I find any
credible evidence that Helms threatened to transfer Vitale or
any other employee to another department because of the em-
ployee’s support of the Union. Helms and Dolan did object to
Vitale about his unprotected solicitation as discussed above.
And they did reassign Vitale to the outpatient department in
part because of his unprotected activities. This is not unlawful
behavior by them and I will recommend the complaint be dis-
missed insofar as it relates to these allegations.
C. Did Respondent Unlawfully Threaten Employees
with Loss of Existing Benefits?
Deborah Busch is a registered nurse who works for Respon-
dent on its medical intensive care unit. She has been employed
by the Medical Center since 1997, with a year of interruption
from about June 2001 to June 2002. Her supervisors are Nurse
Manager Karen Sigond and Assistant Nurse Manager Lisa St.
James. She was eligible to vote in the election and she was one
of the lead employee organizers in the 2003 union campaign.
On January 17, she attended a meeting on her unit with about
eight employees. She described the meeting as an open forum
regarding union activity. Busch testified that Respondent’s
Senior Vice President and Chief Nursing Officer Mary Jo La-
Posta told the employees at this meeting that, “if the Union
were to get in at Albany Medical Center everything would be
wiped clean, we would have to start from scratch.” According
to Busch, LaPosta also told them that the employees would
have to renegotiate for a $2 raise that was promised to employ-
ees before the Union’s petition was filed. On cross-
examination, Busch added that LaPosta also said that “she has
no control once the union comes in whether we get our raise or
not. And that she could not support us getting the raise if the
union did get elected in. That we would lose that as a benefit.
She could not advocate for us to receive that $2 raise at the
bargaining table. She said that it was something we had to
negotiate for . . . what she said was that we would lose our $2
raise if the Union came in because the hospital would not be
able to give it because we would be bargaining at the table.
They were not going to honor that commitment prior to filing
for an election.” According to Busch, LaPosta also stated that
the employees would have to renegotiate their vacation time

compelling interest in providing undisrupted patient care in a tranquil
setting. Accordingly, it is well settled that health care employers are
permitted to ban otherwise protected activity in “immediate patient care
areas.”
7 I also find it not just a little unusual that Vitale now objects so vig-
orously to his assignment in February to the outpatient service, when in
the same month he suggested to management that he would be a good
candidate to be assigned to the outpatient department.
and their weekend track program.8 Busch also said the Union
had no power over the registered nurses and that she was the
voice of these nurses and would represent them.
According to Busch, she challenged LaPosta by saying the
raise could not be taken away and that bargaining would not
start at ground zero. She noted that her father was the retired
president of the local carpenter’s union and had derived many
benefits from the union including a generous pension and
medical coverage.
At this meeting, Sigond handed Busch a booklet published
by the NLRB called “A guide to basic law and procedures un-
der the National Labor Relations Act.” The booklet was left at
the nurse’s station for the nurses to review if they wished.
Busch believed that this booklet was given to the nurses by
management to add weight to what LaPosta told them. How-
ever, Busch reviewed the booklet and agreed with Respon-
dent’s counsel that it does not support what Busch alleges that
LaPosta said in the meeting.
Mary Jo LaPosta is responsible for strategic planning around
patient care for the Medical Center and for day-to-day opera-
tions of the Center as it relates to patient care. In the context of
the union campaign, her role was to speak about the union elec-
tion, the processes of the election and how the Center would
behave during the election process. She had the same role in
the 2001 union organizing campaign. She had studied the Na-
tional Labor Relations Act and had been trained by Respon-
dent’s labor counsel with respect to restrictions on communica-
tions during the campaign. She was aware that she could not
make any promises or threats during the campaign. She and
other members of management, with counsel, had anticipated
questions that might be asked of them and formulated answers
that would be appropriate within the guidelines of the Act.
Questions about the promised $2-an-hour raise were among
those anticipated. LaPosta testified that there is a profound
national nursing shortage and that the Albany, New York area
is at the epicenter of that shortage. Recruitment and retention
of nurses is one of her highest priorities. Giving nurses a $2-
an-hour wage increase was one important component of Re-
spondent’s recruitment and retention strategy. Respondent at
some point in late 2002, had given each nurse a sheet setting
out that employee’s current rate of pay and showing what the
rate would be when Respondent implemented a $2-an-hour
raise on May 18, 2003. LaPosta testified that she believed it
very important to move forward with the wage increase. The
month of May was selected as the time to implement the in-
crease as that month is an active recruiting period for new
nurses.
LaPosta testified that her answers to questions about the pro-
posed raise, as well as questions about other benefits were
couched in terms of what would happen if the Union were certi-
8 The weekend track program is one that is designed to encourage
nurses to work on weekends when the Respondent is typically short
staffed. In general, it offers about 40 hours pay for 24 hours actually
worked on weekends. At the time of this meeting, nurses received 6
weeks’ paid vacation as part of their benefits package. According to
Busch, the nurses were told by LaPosta that this benefit would be
“wiped clean” along with other benefits and would have to be renegoti-
ated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1264
fied and what would happen if it lost the election. She testified
that she told employees that if the Union were certified at that
point in time, there was the possibility that issues around
wages, conditions of work, and compensation must be the sub-
ject to the process of collective bargaining. She told employees
that if the Union were not certified, then the Respondent would
implement the raise in May.
At a meeting she attended with the intensive care unit nurses
on January 17, she was asked whether she was going to give the
raise as proposed. According to LaPosta, she said, “Am I,
Mary Jo LaPosta, going to give you a raise?” “No, this raise is
part of the overall compensation plan for Albany Medical Cen-
ter for 2003.” She told the nurses that it was Respondent’s
intention to move forward with the compensation plan. She
denied saying the Respondent would take away or deny em-
ployees the raise if the Union got in. LaPosta testified that she
“talked about the concept of collective bargaining and did
speak about the fact that in the process of collective bargaining
I did quote out of this particular book (the NLRB guide to basic
law and procedures), that certain things were subject to the
collective-bargaining process and compensation was one of
those things that, as people moved to the table in the process of
collective bargaining, the compensation is part of that.” She
further told the nurses, “I encourage the people to review in-
formation. And I did speak about what collective bargaining
was and what the process was. And (I) said it is bargaining and
bargaining means that in the process of bargaining certain
things were brought to the table. Some things may be in-
creased, some things may decrease. You may get some things,
you may lose some things.”
In response to questions about whether she said during this
meeting that “bargaining would be from the ground up,” or that
“bargaining would be from scratch,” LaPosta answered, “I
don’t believe I used that terminology.” In response to a ques-
tion from me about whether she had in this meeting used the
phrase “wipe the slate clean” or “the slate would be wiped
clean,” she answered “I don’t recall using either one of those
phrases.” LaPosta denied ever stating in the meeting that Re-
spondent would take away the weekend track program and (the
existing) vacation benefit if the union were elected.
In response to a question about her understanding of what
would happen if the Union were certified, she answered, “The
two dollar raise, like dental insurance or our retirement, was a
benefit that was in place at this point in time. And it was an
existing thing that was going to happen to our employees. And
that it was our plan to move forward.” She later added, “My
understanding was as we moved forward in the process of col-
lective bargaining the union could choose to bring to the table a
number of difference issues around wages, compensation, and
benefits. We also, as the Employer, could do that as well, and
then those elements of our benefits package, be it vacation, be it
whatever, could be subject to the process of negotiation.” Ac-
cording to LaPosta, she also told the nurses that the $2 raise
could be subject to negotiation. Vacations and weekend track
were also mentioned.
After Busch spoke out at the meeting, LaPosta told the
nurses, “. . . certain things were brought to the table and other
things were brought to the table and it is a process of negotia-
tion. So, we don’t always get extra things during the process of
negotiation. But employees may lose things as well, or trade
off things for other things.
Nurse Manager Karen Sigond attended the meeting. She tes-
tified that there was a rumor that the wage increase was going
away. One of the nurses inquired about it and according to
Sigond, LaPosta said “there was no plan to take it away as it
was part of the strategic strategy. But then she spoke about the
collective bargaining. So that if the union were voted in, at the
collective bargaining table those kinds of things would be up
for negotiation.” “She didn’t say it (the raise) would be taken
away. She said it would be something that would have to be
discussed at the bargaining table.” According to Sigond, La-
Posta said that “the raise was likely to be back to the table to be
negotiated.” Sigond testified that LaPosta said that vacation
and weekend track were examples of the same types of things
as the $2 an hour raise (things that would have to be looked at
at the bargaining table).
I credit Busch’s account of what LaPosta said at the meeting.
She gave detailed testimony about the meeting and LaPosta
would not flatly deny saying what Busch alleged she said. On
the other hand, I do not think the case would turn out differ-
ently whether I credited LaPosta’s version or that of Sigond.
Employer statements that preexisting terms and conditions of
employment are subject to the collective-bargaining process do
not violate the Act. Mantrose-Haeuser Co., 306 NLRB 377
(1992) (employer statements that employees “take the risks”
with wages and benefits when a union is elected did not consti-
tute an unlawful threat in violation of Section 8(a)(1) of the
Act); Flexsteel Industries, 311 NLRB 257 (1993) (employer
statements “present benefits could be lost” and the “company
could not unilaterally give a wage increase” do not violate the
Act because the statements merely describe “what lawfully
could happen during the give and take of bargaining with the
union”); Bi-Lo, 303 NLRB 749, 749–750 (1991) (employer’s
statements that: “(1) the contract negotiation process was like
horse trading; (2) employees could gain new benefits or lose
existing benefits; and (3) in bargaining for a first contract, there
is greater degree of uncertainty because the parties have no
track record of past negotiations and contracts on which to rely
in forecasting what particular benefits may be gained or lost in
the negotiations” did not violate Section 8(a)(1) of the Act);
Venture Industries, Inc., 330 NLRB 1133, 1140 (2000) (em-
ployer’s statements that benefits could be “put at risk” and that
“if the employees select the [u]nion as their collective bargain-
ing representative, wages, overtime, and benefits become nego-
tiable” were not implicit threats to decrease benefits).
Employer’s “bargaining from scratch” statements do not vio-
late Section 8(a)(1) of the Act when other communications
make it clear that any reduction in wages and benefits will oc-
cur only as a result of the normal give and take of negotiations.
Somerset Welding & Steel, Inc., 314 NLRB 829, 832 (1994). I
believe LaPosta’s comments regarding existing benefits other
than the promised pay increase fall within the allowable pa-
rameters of the Board’s holdings in the cited cases. However, I
believe that her comments regarding the wage increase violated
Section 8(a)(1) of the Act. See Advo System, Inc., 297 NLRB
926 fn. 3 (1990), wherein the Board found that an employer had

ALBANY MEDICAL CENTER 1265
threatened to withhold a scheduled wage increase in violation
of Section 8(a)(1) where, in response to an employee asking
about the increase, the employer’s director of branch operations
stated that if the union was elected “everything would be nego-
tiable. See also Earthgrains Co., 336 NLRB 1119, 1220
(2001). In the meeting with LaPosta, both Busch and Sigond
came away with the clear understanding that the wage increase
would not be implemented if the Union were certified and that
it would then be subject to bargaining. Based on Board’s hold-
ing in Advo Systems, supra, I find LaPosta’s statements con-
cerning the wage increase to be in violation of Section 8(a)(1)
of the Act.
D. Issues Related to Sigond’s Alleged Threat
In late January or early February, Busch had a casual conver-
sation with Sigond. According to Busch, in the course of this
conversation, Sigond commented that if the Union were to get
in that many of the supervisory positions and managerial posi-
tions would be in jeopardy and they could lose their jobs. Ac-
cording to Busch, Sigond also told her that the Union would
interfere with relationships on the unit, which were good. Si-
gond added that management and staff would not be able to
communicate as freely as they had. Sigond commented that she
felt the Respondent had done Busch a favor by rehiring her and
was surprised that Busch was involved in the union campaign.
Sigond was asked “Did you ever have a conversation with
Ms. Busch where you told her or asked her why she wanted to
go and do this and cause problems related to the Union cam-
paign?” Sigond answered, “I don’t remember ever asking her
that question. I remember the day that she’s talking about. I
had actually forgotten about it. I never really approached Deb-
bie [Busch] about any of this union activity.” When prompted
by some more questions, Sigond testified, “Because I really do
not remember the whole conversation, but I know that I did not
say I’m sorry they brought you back. I did not say that.” She
denied telling Busch that she had done her a favor in bringing
her back. Sigond remembered telling Busch that she did not
understand why we’re going through this again. She denied
saying that if the Union got in, that she and other nurse manag-
ers would lose their jobs. She testified that she told Busch that
if the Union got in the relationship between the staff and herself
would be different in the union environment. By this she meant
she would not be able to advocate for the staff as she did in the
nonunion environment which presently existed.
I do not find that Sigond’s comments violate the Act. Ac-
cepting Busch’s version of the conversation, Sigond only
voiced the opinion that management employees might lose their
jobs if the Union were selected. Expressing disappointment or
surprise because of Busch’s support for the Union without an
explicit or implied threat of reprisal for that support does not
violate Section 8(a)(1) of the Act. There was no such threat
directed at Busch or any other member of the proposed bargain-
ing unit. Sigond’s comments that management’s ability to
freely communicate with staff would suffer with the Union in
place and that the Union would interfere with relationships do
not violate the Act. Star Fibers, 299 NLRB 789, 790 (1990);
United Builders Supply Co., 287 NLRB 1364, 1372 (1988).
CONCLUSIONS OF LAW
1. Respondent Albany Medical Center is an employer within
the meaning of Section 2(2), (6), and (7) of the Act and a health
care institution within the meaning of Section 2(14) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By telling employees that pay increases scheduled for im-
plementation in May would be subject to collective bargaining
if the Union were to be selected as the employees’ bargaining
representative, Respondent unlawfully coerced employees with
regard to their membership in, sympathy for, and support of the
Union prior to the election in violation of Section 8(a)(1) of the
Act.
4. The Respondent did not violate the Act in any other man-
ner alleged in the complaint.
5. The unfair labor practices committed by Respondent af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. It is recommended that Respondent
be ordered to post an appropriate notice to employees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, Albany Medical Center, Albany, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that pay increases scheduled for im-
plementation in May would be subject to collective bargaining
if the Union were to be selected as the employees’ bargaining
representative;
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act
(a) Within 14 days after service by the Region, post at its fa-
cility in Albany, New York, copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places

9 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 pur-
poses.
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1266
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since January 17, 2003.
(b) 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.