Banner Estrella Medical Center

National Labor Relations Board - Administrative Judge Opinions

Oct 31, 2011

28-CA-023438 (N.L.R.B. Oct. 31, 2011)

JD(SF)–43–11
Phoenix, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
BANNER HEALTH SYSTEM d/b/a
BANNER ESTRELLA MEDICAL CENTER
and Case 28-CA-23438
JAMES A. NAVARRO, An Individual
William Mabry, III, Esq., of Phoenix Arizona,
for the General Counsel.
Mark Kisicki, Esq. and Elizabeth Townsend, Esq.
(Steptoe & Johnson) of Phoenix, AZ, for the Respondent.
DECISION
Statement of the Case
Jay R. Pollack, Administrative Law Judge: I heard this case in trial at Phoenix, Arizona,
on August 30-31. On April 7, 2011, James Navarro (Navarro) filed the charge alleging that
Banner Health System d/b/a Banner Estrella Medical Center (Respondent or the Employer)
committed certain violations of Section 8(a)(1) of the National Labor Relations Act (the Act). The
Regional Director for Region 28 of the National Labor Relations Board issued a complaint and
notice of hearing on June 30, 2011, against Respondent alleging that Respondent violated
Section 8(a) (1) of the Act. Respondent filed a timely answer to the complaint, denying all
wrongdoing. The complaint was amended on the second day of trial to add additional Section
8(a)(1) allegations.
All parties have been afforded full opportunity to appear, to introduce relevant evidence,
to examine and cross-examine witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses,1 and having considered the post hearing briefs of
the parties, I make the following.

1 The credibility resolutions herein have been derived from a review of the entire testimonial
record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and
the teachings of NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). As to those
witnesses testifying in contradiction to the findings herein, their testimony has been discredited,
either as having been in conflict with credited documentary or testimonial evidence or because it
was in and of itself incredible and unworthy of belief.
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Findings of Fact and Conclusions of Law
Jurisdiction
Respondent, an Arizona corporation, has been engaged in the operation of a hospital
providing inpatient and outpatient medical care in Phoenix, Arizona. During the twelve months
prior to the filing of the charge, Respondent received gross revenues in excess of $250,000.
During the same period of time, Respondent purchased and received goods valued in excess of
$5,000 which originated outside of California. During the same person of time, Respondent
purchased and received goods valued in excess of $50,000 from outside the State of Arizona.
Accordingly, Respondent admits and I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
I. The Alleged Unfair Labor Practices
A. Background and Issues
Respondent operates a hospital located in Phoenix, Arizona, that provides inpatient and
outpatient medical care. James Navarro has worked for Respondent as a sterile technician for
about three years. The Central Processing Sterile Department (CPSD) employs 13 sterile
processing technicians, operating 24 hours a day, seven days a week, and has three shifts.
Sterile processing technicians are responsible for the proper care and handling of all
surgical instruments. These employees are also required to utilize equipment according to the
manufacturer’s recommendations and hospital policy and perform all functions according to
established policies, procedures, regulatory and accreditation requirements, as well as
applicable professional standards.
On Saturday, February 19, 2011, Navarro was working the day shift. Around 9 a.m. that
morning, Navarro learned that there was a lack of hot water and steam pressure. Navarro
spoke to an employee from Respondent’s facilities department who advised him that the steam
pipe needed to be fixed, that there would not be any hot water, steam pressure or heat.
Navarro then contacted house supervisor Cecilia Dicob and informed her of the steam
pipe problem. Next, Navarro called Ken Fellenz, senior manager of the CPSD department.
Navarro informed that he would not be able to sterilize the surgical instruments due to the
broken steam pipe, that there were six operating surgeries scheduled for that day. He also
informed Fellenz that there were labor and delivery instruments that were going to be used and
that the surgery department had clean surgical instruments for surgeries that day.
Fellenz ordered Navarro to use the Sterrad machine to sterilize the labor and delivery
instruments. The Sterrad machine is a low temperature sterilizer that uses hydrogen peroxide
as the sterilant. The normal procedure is that the Autoclave, a large steam sterilizer is used for
the labor and delivery instruments. The Autoclave could not be used that day because of the
lack of steam. Navarro told Fellenz that he was unaware that the Sterrad machine could be
used, as it was not the established procedure.
After speaking with Fellenz, Navarro began researching whether the Sterrad machine
could be used to sterilize the labor and delivery instruments. Navarro found no documents
supporting the use of the Sterrad machine. He then contacted Muriel Kremb, lead coordinator.
Kremb told Navarro to use hot water from the coffee machine in the break room for the first step
in the cleaning process of the labor and delivery instruments. Navarro stated that these
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procedures were not established protocol and that somebody could get sick. Navarro did not
clean or sterilize the labor and delivery instruments that day.
That day, employee Ruth Hernandez called Navarro to inform him that she might be late
that day. Navarro told Hernandez that she might not have to come in because there was no
steam. Hernandez called Kremb and was told to report to work. When Hernandez arrived at
work, Navarro expressed his concern about the procedures suggested by Fellenz and Kremb.
Navarro stated that he could not find documentation to support the procedure recommended by
Fellenz and Kremb.
On February 20, when Navarro arrived at work he found that all the instruments had
been cleaned. Navarro discussed with employee Curtis Wilks his concerns about using hot
water from the coffee machine.
On February 20, Navarro spoke to house supervisor Dicob on two occasions. Navarro
told Dicob that he wasn’t trying to be insubordinate but that he did not feel comfortable using the
methods directed by Fellenz and Kremb because it was not established procedure. Dicob
answered that she was trying to find a solution to the steam pipe issue. After speaking with
Dicob, Navarro spoke to nurse Mary Hedges. Navarro told Hedges of the procedures he was
instructed to follow and asked Hedges if she had ever seen or heard anything about using the
Sterrad machine or using hot water from the coffee machine. Hedges shared Navarro’s
concerns.
Around noon, Fellenz called Navarro and asked why Navarro had not used the Sterrad
machine as instructed. Navarro stated that he was uncomfortable using that procedure.
Fellenz stated that Navarro was refusing to follow instructions. Navarro stated that he was not
refusing but was uncomfortable. Fellenz angrily stated that Navarro was not doing as instructed
and that they would discuss the matter the following day.
On Monday, February 21, Navarro met with JoAnn Odell, human resources consultant.
Navarro informed Odell that there had been no hot water available and that he was instructed
by Fellenz and Kremb to use hot water from he coffee machine and the Sterrad machine.
Navarro said that he was uncomfortable with this procedure and that he could find no
documentation to support this procedure. Navarro expressed concern for his job.
On the morning of February 21, Fellenz wrote a memorandum concerning the weekend
and his conversations with Navarro. Convinced that Navarro had been insubordinate Fellenz
met with Joan McKisson , director of peri-operative services. Fellenz told McKisson that he
wanted to put Navarro on corrective action for failing to sterilize instruments as instructed by
Fellenz. Fellenz and McKisson met with Odell in her office. Odell advised against corrective
action because there was no procedure in place to support cleaning and sterilization as
suggested by Fellenz. The three agreed that Navarro would be given a non-disciplinary
coaching instead.
Around 2 p.m, Navarro was called to McKisson’s office. Mc Kisson informed Navarro
that Fellenz had accused him of refusing to follow his instructions. Navarro insisted that he had
finally followed instructions. Nonetheless, Navarro was given a coaching. The coaching
document states “James refused to do as instructed by manager and lead tech which directly
affected patient care.’ On June 2, Respondent issued a memorandum stating that the coaching
was removed and would not be part of Navarro’s employment record.
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On February 24, Fellenz called Navarro into his office and gave him a yearly
performance evaluation.2 The performance review consists of two sections: essential functions
and behaviors. On the essential functions section, Navarro’s grade was fully meets
expectations. However, on the behaviors section, Navarro’s rating was not fully meeting
expectations. Navarro objected to the comments in the behavior section. Fellenz credibly
testified that he had filled out the behaviors section based on complaints made to him by
employees who worked with Navarro. Employees Hernandez and Louis Garcia both testified
that they had complained to Fellenz on many occasions about Navarro.
Odell, Respondent’s human resources consultant, spoke to Fellenz and told him that the
evaluation was inconsistent since one half of the evaluation had Navarro not meeting
expectations but on the overall evaluation fully meeting expectations. Fellenz indicated that he
intended that Navarro overall met expectations. Fellenz then issued a revised annual
performance evaluation. Fellenz revised four of the five categories in the behavior section.
Fellenz then graded fully meets expectations in the behavior section and fully meets
expectations in the overall rating.
During the hearing. General Counsel amended the complaint to allege that
Respondent’s confidentiality agreement and interview of complainant form violates Section
8(a)(1) of the Act.
The interview of complainant form is not given to employees. During interviews of
employees making a complaint, Odell asks employees not to discuss the matter with their
coworkers while the investigation is ongoing. I find that suggestion is for the purpose of
protecting the integrity of the investigation. It is analogous to the sequestration rule so that
employees give their own version of the facts and not what they heard another state. I find that
Respondent has a legitimate business reason for making this suggestion. Accordingly, I find no
violation.
Every employee hired by Respondent is required to sign a confidentiality agreement.
The confidentially agreement states:
I understand that I may hear, see and create information that is private and confidential.
Examples of confidential information are;
Patient information both medical and financial,
Private employee information (such as salaries, disciplinary action, etc.) that is not
shared by the employee,
Copyright computer programs, Business and strategic plans Contract terms, financial
cost data and other internal documents.
Keeping this kind of information private and confidential is so important that if I fail to
do so, I understand that I could be subject to corrective action, including termination and
possible legal action.
B. The Coaching and Evaluations
Pursuant to Section 7 of the Act, employees have the right to engage in concerted
activities for their mutual aid and protection. Employees having no bargaining representative
and no established procedure for presenting their grievances may take action to spotlight their

2 The evaluation had been written prior to February 20.
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complaint and obtain a remedy. NLRB v. Washington Aluminum Co., 370 U.S. 9, 12–15 (1962).
Accordingly, an employer may not, without violating Section 8(a)(1) of the Act, discipline or
otherwise threaten, restrain, or coerce employees because they engage in protected concerted
activities.
The Act protects employees who engage in individual action which is “engaged in with
the objective of initiating or inducing group action.” Mushroom Transportation Co. v. NLRB, 330
F.3d 683, 685 (3d Cir. 1964); Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1365
(4th Cir. 1969). Moreover, an employee need not first solicit other employees’ views for his
activity to be concerted. See Whittaker Corp., 289 NLRB at 933-934 (employee was engaged in
concerted activity where, not having had a chance to meet with any employee beforehand, he
made a comment in protest as a spontaneous reaction to the employer’s announcement that no
annual wage increase would be forthcoming). See also Enterprise Products, 264 NLRB at 949-
950; Cibao Meat Products, 338 NLRB at 934. In Bell of Sioux City, 333 NLRB 98, 105 (2001)
the Board found protected concerted activity where an employee complained to fellow employee
that she was treated unfairly. The Board found concerted activity as it involved a speaker and
listeners. In addition, employees do not have to accept the individual’s invitation to group action
before the invitation itself is considered concerted. El Gran Combo, 284 NLRB 1115 (1987).
If the employer can show that the same action would have been taken against an
employee in the absence of his or her protected activity, the employer rebuts the General
Counsel’s prima facie case. Wright Line,251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981 ), cert. denied 455 U.S. 989 (1982).
The clear evidence indicates that Fellenz was angry that Navarro had not followed his
instructions to use the Sterrad machine to sterilize the surgical instruments. He spoke to
Navarro and angrily asked why the employee had not followed his instructions. Navarro stated
that he was not refusing to follow the instructions but he did not follow the instructions. The first
thing the next morning, Fellenz wrote a memorandum reciting his belief that Navarro had been
insubordinate. He spoke with his supervisor McKisson and then Odell the human resources
consultant. It was decided to give Navarro a coaching. Accordingly, I find that Navarro was
given the coaching not because of any protected concerted activity, but solely because Fellenz
believed Navarro had engaged in insubordination.
I find that the performance review given to Navarro was not motivated by any protected
concerted activity. First, the performance review was filled out prior to the concerted activity.
Secondly, Fellenz credibly testified that he was influenced by complaints made by Navarro’s
coworkers. Two coworkers credibly testified that they had made numerous complaints to
Fellenz concerning Navarro.
C. Independent violation of Section 8(a)(1)
Central to the protections provided by Section 7 of the Act is the employees’ right to
communicate to coworkers about their wages, hours and other terms and conditions of
employment. An employer’s rules prohibiting Section 7 activity are a violation of the Act, even if
such rules have never been enforced. Franklin Iron & Medal Corp.,316 NLRB 819, 820 (1994).
In NLS Group, 355 NLRB No. 169 (2010) enfd. 65 F. 3d 475 (1st Cir. 2011) the Board
stated that if a rule does not explicitly restrict Section 7 activity, it is nonetheless unlawful if (1)
employees would reasonably construe the language of the rule to prohibit Section 7 activity; (2)
the rule was promulgated in response to union activity; or (3) the rule has been applied to
restrict the exercise of Section 7 rights. In the instant case Respondent’s confidentiality
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agreement provides that private employee information (such as salaries, disciplinary action,
etc.) that is not shared by the employee is to be kept confidential. Further, keeping this kind of
information private and confidential is so important that failure to do so, could subject an
employee to corrective action, including termination and possible legal action.
In Labinal, Inc.,340 NLRB 203, 209-210 the employer argued there was no violation
because the rule merely prohibited employees from finding out about another employee’s
personal pay information and precluded disclosure of that information absent the employee’s
knowledge or permission. The Board noted,
To prohibit one employee from discussing another employee’s pay without the
knowledge and permission of that employee muzzles employees who seek to engage in
concerted activity for mutual aid or protection. By requiring that one employee get
permission of another employee to discuss the latter’s wages, would, as a practical
matter, deny the former the use of information innocently obtained which is the very
information he or she needs to discuss the wages with fellow employees before taking
the matter to management. Id.
In the instant case, Respondent’s confidentiality agreement prohibits employees from
discussing other employees’ salaries or disciplinary actions, unless such information was
originally disclosed by the original employee. As such it requires an employee to get permission
from another employee to discuss the latter’s wages and discipline, and could reasonably be
construed to prohibit Section 7 activity. Thus under Labinal, supra, I find that the rule in
Respondent’s confidentiality agreement to violate Section 8(a)(1) of the Act.
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by including in its confidentiality
agreement a prohibition against sharing private employee information such as salaries and
discipline.
3. Respondent did not otherwise violate the Act as alleged in the complaint.
4. The above unfair labor practice is an unfair labor practice affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
The Remedy
Having found that Respondent engaged in unfair labor practices, I shall recommend that
it be ordered to cease and desist therefrom and that it take certain affirmative action to
effectuate the policies of the Act.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.3
ORDER
Respondent, Banner Health System d/b/a Banner Estrella Medical Center, its officers
agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining or enforcing the provision in is confidentiality agreement that contains
the following language” Private employee information (such as salaries, disciplinary action, etc.)
that is not shared by the employee.”
(b) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facilities in Phoenix,
Arizona, copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 28 after being signed by Respondent’s authorized
representative, shall be posted for 60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to ensure the notices are not altered, defaced or covered by other material. In the
event that, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facilities involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the attached notice to all current employees and former
employees employed by the Respondent at any time since November 7, 2010. In addition to
physical posting of paper notices, notices shall be distributed electronically such as by email,
posting on an intranet or an internet site, or other electronic means, if the Respondent
customarily communicates with its employees by such manner.
(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 Respondent has taken to comply.
Dated, Washington, D.C. October 31, 2011
_______________________
Jay R. Pollack
Administrative Law Judge

3 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.
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 maintain or enforce the provision in our confidentiality agreement that contains
the following language “Private employee information (such as salaries, disciplinary action, etc.)
that is not shared by the employee.”
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
Banner Health System d/b/a Banner Estrella 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.
2600 North Central Avenue, Suite 1800
Phoenix, AZ 85004-3099
Hours: 8:30 a.m. to 5 p.m.
602-640-.
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, 510-637-3270.