Columbia Memorial Hospital

National Labor Relations Board - Administrative Judge Opinions

Nov 10, 2015

03-CA-142160 (N.L.R.B. Nov. 10, 2015)

JD(ATL)–21–15
Hudson, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
COLUMBIA MEMORIAL HOSPITAL
and Case 03-CA-142160
KIMBERLY BISHOP, an Individual
and Case 03-CA-144364
1199 SEIU UNITED HEALTHCARE
WORKERS EAST
Charles Guzak and John Grunert, Esqs.,
for the General Counsel.
Richard P. Walsh, Jr., and Paul E. Davenport, Esqs.
(Lombardi, Walsh, Davenport & Amodeo, P.C.),
for the Respondent.
Jay Jaffe, Esq. (1199 SEIU Law Department),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This case was heard in Albany,
New York, on May 5 and 6, 2015. The complaint alleged that the Columbia Memorial Hospital
(the Hospital or Respondent) violated Section 8(a)(1), (3) and (5) of the National Labor
Relations Act (the Act) via: its Business Conduct policy; disciplining Kimberly Bishop and
denying her transfer; and failing to provide requested information to 1199 SEIU United
Healthcare Workers East (the Union).
On the entire record,1 including my observation of the demeanor of the witnesses, and
after thoroughly considering the parties’ briefs, I make the following:

1 The Board previously found that the Hospital violated Sec. 8(a)(3) by disciplining Cindy Northrup because
of her Union activities. See Columbia Memorial Hospital, 362 NLRB No. 154 (2015).
JD(ATL)–21–15
2
FINDINGS OF FACT2
I. JURISDICTION
The Hospital, a corporation, operates a medical center in Hudson, New York. Annually, 5
it derives gross revenues exceeding $250,000, and purchases and receives goods exceeding
$5,000 directly from points outside of New York. It 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. It also admits,
and I find, that the Union is a labor organization, within the meaning of Section 2(5) of the Act.
10
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Union and Hospital have enjoyed a longstanding bargaining relationship. The Union 15
is the exclusive collective-bargaining representative of the following bargaining unit (the unit):3
All full-time and regular part-time registered professional nurses [RNs] ….
including per diem registered nurses, pharmacists, physical therapists, medical
technologists and histology technologists employed by …. [the Hospital] …..20
excluding all confidential employees, all human resource employees, all data
processing …. employees, all clerical employees …., all maintenance employees,
all administrative employees, all department secretaries, all professional
employees, guards, supervisors …. and all other employees.
25
(GC Exh. 2). The parties’ most recent contract runs until December 31, 2015 (the CBA).
Timothy Rodgers, Union Organizer, represents the unit in grievances, arbitrations and
negotiations. He is aided by Union delegates, who process grievances and enforce the CBA.4
B. Information Request – Melded Seniority List30
In early 2013, Rodgers requested the unit’s melded seniority list. He stated that the CBA
defines this list as a roster containing bargaining unit, classification, and unit (i.e. departmental)
seniority.5 See (GC Exh. 2 at Art. 7). The CBA legislates where different seniorities apply,6 and
requires the Hospital to provide a melded seniority list twice annually. (Id.). Between 35

2 Unless otherwise stated, factual findings arise from joint exhibits, stipulations and undisputed evidence.
3 The Union also represents a separate unit of the Hospital’s service and technical workers, who are not at
issue.
4 Union delegates are unit employees, who serve as shop stewards.
5 “Bargaining unit seniority” is “the length of time an Employee has been continuously employed … [at] the
Hospital.” (Id. at Art. 7, Sec. 1(a)). “Classification seniority” is the “length of time an Employee has
worked continuously as a [unit employee].” (Id. at Art. 7, Sec. 1(b)). “Unit based seniority” is … an
employee’s “most recent date of hire [in their present] … unit [or department].” (Id. at Art. 7, Sec. 1(c)).
6 “Bargaining unit seniority … appl[ies] … for all benefits where length of service is a factor.” (GC Exh. 2
at Art. 7, Sec. 6(a)). “Classification seniority shall apply to shift rotation, layoffs [and] recalls.” (Id. at Art.
7, Sec. 6(b)). “Unit based seniority shall apply to transfers, promotions, and vacation scheduling.” (Id. at
Art. 7, Sec. 6(c)).
JD(ATL)–21–15
3
September 2013 and April 2015, the parties exchanged several communications regarding the
melded seniority list; these exchanges are described below:
Date(s) Sender Receiver Summary
Sept. 30, 2013 Hospital Union Letter reporting Union’s ongoing melded seniority list request.
Oct. 3, 2013 Union Hospital Letter confirming an Oct. 8 meeting to discuss the issue.
Jan. 9, 20147 Hospital Union Letter enclosing a list containing only bargaining unit seniority.
Mar. 18 Union Hospital Letter reiterating Union’s ongoing melded seniority list request.
Mar. 18 Hospital Union Letter relating that creating a list is a “time consuming endeavor.”
April 25 Hospital Union Letter confirming Hospital’s availability to meet in May about the list.
May 1 Hospital Union Confirming May 5 meeting to discuss the melded seniority list.
May 22 Hospital Union Letter stating that list is an “arduous task” because of computer issues.
Sept. 2 Union Hospital Letter lamenting about delay and giving Hospital a Sept. 5 deadline.
Sept. 8 Hospital Union Letter stating that the Hospital will continue its efforts.
Nov. 21 Union Hospital Letter lamenting the Hospital’s delay and giving it a new Dec. 2 deadline.
Dec. 31 Union Hospital Email lamenting the ongoing delay and giving Hospital a new deadline.
Jan. 8. 2015 Union Hospital Letter stating that the Union will seek arbitration over the issue.
Jan. 26, 2015 Hospital Union Letter enclosing a list containing only classification seniority.
Apr. 30, 2015 Hospital Union Letter enclosing an incomplete list with bargaining unit, classification and
unit seniority for some employees.
(GC Exhs. 3–22A; R. Exhs. 14–15). 5
Rodgers related that the Hospital’s April 30, 2015 attempt to provide a complete list was
deficient in two ways. First, although it contained all 3 seniorities, it failed to list all unit
employees.8 See (GC Exh. 22A). Second, it neglected to sufficiently identify the departments
where employees were assigned, i.e. it only listed “Dept ID” and “Contract ID,” which made it 10
impossible to decipher unit seniority without a key. Since April 30, 2015, the Hospital has not
provided a corrected list resolving these deficiencies. Rodgers added that the Union has been
hampered by the Hospital’s recalcitrance and has several pending arbitrations involving seniority
matters. The Hospital did not rebut Rodgers’ credible testimony about the April 30, 2015 list’s
deficiencies, or challenge its relevance; such testimony has, thus, been credited. 15
Kelly Sweeney, Director of Human Resources, testified that problems with the Human
Resources Information System (HRIS), and the Union’s lack of clear guidance, delayed the
production of the list.9 She related that the Hospital hired an outside consultant to assist. Bryan
Melino, a Report Writer, who prepares reports from the Hospital’s HRIS databases, prepared the 20
April 30, 2015 list. He related that he worked on this project from September 2014 to April
2015, and logged about 10 hours per week. He added that the Hospital’s delay in preparing a
complete melded seniority list was largely caused by a software conversion in 2010, which made
it extremely difficult to access historical personnel data for certain unit employees.
25

7 All dates are in 2014, unless otherwise stated.
8 Rodgers related that the list was incomplete because it described only 525 of 775 unit employees. (Tr.
115).
9 Her contention that she needed the Union’s guidance to understand what a melded list was is incredible,
given that the CBA clearly defined the 3 seniority levels and “melded” is commonly understood to mean
combined.
JD(ATL)–21–15
4
C. Business Conduct Policy
The General Counsel has alleged that portions of the Hospital’s Business Conduct policy
are unlawful; this policy provides, inter alia, as follows:
POLICY: 5
[Employees] are entitled to respectful treatment in … [the] workplace. Being
respectful means being treated honestly and professionally …. A respectful
workplace is …. a working environment that is free of inappropriate behavior ….
10
GUIDELINES:
A respectful workplace:
[The] … Hospital is committed to providing a workplace in which the dignity of 15
every individual is respected. [H]arassment and inappropriate behavior will not
be tolerated ….
Inappropriate behavior:
20
Our goal is to have a work environment where we all treat each other respectfully
and professionally. Any unprofessional or disrespectful behavior, even if not
illegal, interferes with that goal and will not be tolerated ….
Achieving a respectful workplace:25
[The] … Hospital expects respectful and professional behavior at all times ….
Remember that your actions reflect upon you, and … [the] Hospital.
(GC Exh. 25). 30
D. Bishop Discipline
Bishop, an RN and Union Delegate, was disciplined under the Business Conduct policy.
Her discipline was connected to a conversation with Sarah Every, a Respiratory Therapist, 35
concerning the Hospital’s Bi-Level Positive Airway Pressure (BIPAP) policy.
1. September 11 Email
On September 11, Bishop emailed Cindy Northrup, another Union Delegate. Her email 40
related that unit members were alarmed about an RN’s recent discipline under the BIPAP
policy,10 and had several questions and concerns. (GC Exh. 23.)

10 In August, a unit RN was disciplined for violating the BIPAP policy, while transferring a patient.
JD(ATL)–21–15
5
2. September 14 Discussion with Every About the BIPAP Policy
In furtherance of her investigation into the BIPAP policy, on September 14, RN Bishop
approached Respiratory Therapist Every, and asked to speak to her while Every performed a
patient’s respiratory evaluation.11 Every consented, and Bishop then inquired about the BIPAP 5
policy and connected disciplinary issue. Their conversation lasted only a few minutes.
Every stated she mistakenly believed that Bishop had a patient care concern, and was
somewhat blindsided, when she asked about the BIPAP policy as a Union delegate. She said that
she felt “interrupted” by this line of questioning, and averred that her ability to attend to her 10
patient became compromised.12 She indicated that she declined to reply to Bishop because she
did not wish to become enmeshed in Union business.13 She reported that Bishop then relented
and departed. Every reported Bishop to Kathy Huron, Director of Patient Safety, who, in turn,
directed her to file a complaint with the Human Resources department.
15
Bishop described the conversation as cordial and unremarkable. She denied interfering
with patient care and insisted that Every was initially happy to talk, until she realized that their
conversation involved a “Union” issue.
Inasmuch as Every averred that Bishop hindered patient care, and Bishop denied any 20
interference, a credibility determination must be made. For several reasons, I credit Bishop.
First, if conversing with a coworker would have truly jeopardized patient care, Every, a
professional, would have simply declined Bishop’s solicitation. Every’s initial willingness to
talk undercuts any allegation of compromise. Second, Every’s credibility was further strained by
her admitted bias against the Union. Third, beyond Every’s isolated claim of compromise, there 25
is no corroborating evidence of actual patient harm. Lastly, I found Bishop to be a credible
witness, with a strong, thoughtful, and cooperative demeanor.
3. Discipline – Verbal Corrective Action
30
On October 16, Nurse Manager Kathy Hazen and Nursing Recruiter Cathy DeChance
confronted Bishop about Every’s complaint. Bishop, who was surprised, denied jeopardizing
patient care.14 On October 30, Bishop received a verbal corrective action for, “inappropriate
behavior – breach of business conduct policy.” (GC Exh. 24); see also (GC Exhs. 26–27).15
Union delegate Northrup averred that workplace conversation is generally unrestricted.35

11 The patient was chronically aided by a ventilator and unable to perceive their discussion.
12 She agreed that she is periodically interrupted during patient procedures by phone calls and other matters.
13 Every conceded that she felt negatively about the Union, but denied that such feelings prompted her
complaint.
14 During this meeting, DeChance replied, “now you know how we feel when we get a grievance from you.”
(Tr. 185). Neither Hazen nor DeChance testified; Bishop’s credible testimony on this point was, thus,
credited. Douglas Aircraft Co., 308 NLRB 1217 (1992) (failure to call a witness “who may reasonably be
assumed to be favorably disposed to the party, [supports] an adverse inference … regarding any factual
question on which the witness is likely to have knowledge.”).
15 In a separate statement, Hazen said that Bishop was disciplined for creating a “safety concern.” (GC Exh.
28).
JD(ATL)–21–15
6
E. Job Transfer
On October 3, the Hospital posted 2, part-time, RN positions in the maternity unit.
(GC Exhs. 29, 31). The postings described, inter alia, these prerequisites: an RN degree and
licensure; understanding of nursing procedures; BLS certification;16 and a year of medical-5
surgical experience. (Id.).
On October, 7, Bishop, who satisfied the jobs’ prerequisites, applied for both slots.
(GC Exhs. 30, 32). She interviewed on October 16 with Nurse Manager Deb Rugen17 and
Charge Nurse Amy Clark.18 She stated that, although the interview went well, she was rejected. 10
(GC Exh. 33). She later learned that an RN without medical surgical experience, Concetta
Ferrari, was hired. She surmised that her rejection was connected to her Union activities.
Clark made the decision to reject Bishop. She explained that maternity RNs require
strong critical thinking and teamwork skills, and a long-term commitment to the field. She 15
added that she is a strong proponent of hiring RNs with bachelor’s degrees, which she believes
enhances critical thinking. Regarding her decision to not offer Bishop the first slot, she
explained that Olga Lee, Ferrari, and Bishop applied. She stated that Ferrari was hired because
she adeptly handled a critical thinking exercise, held a BA degree, had plans to obtain a
midwifery degree, and possessed a demonstrable commitment to maternity. Regarding her 20
decision to not hire Bishop for the second position, she recollected Bishop, Amy Snowden and
Colleen Daley applying. She explained that Snowden was chosen because she had superior unit
seniority under the CBA, which is an objective contractual mandate. She opined that Bishop
was, however, a poor candidate because she performed feebly on the critical thinking exercise,
did not have a BA degree, and lacked long-term maternity goals. She stated that the medical 25
surgical experience requirement had been previously removed from the job description, and was
errantly included in the job posting.19 See (R. Exh. 12) (revised job description dated June 12,
2014, which preceded the posting at issue). She contended that Bishop’s Union activities were
irrelevant, and noted that the maternity floor already has many strong Union supporters.
30
I fully credit Clark’s testimony about the interview and her hiring rationale. Clark was a
very credible witness, who appeared committed to hiring the best possible candidates for her
department. Regarding the first position, it is plausible that an employer would desire someone
like Ferrari, who held a BA degree and demonstrable commitment to maternity, as opposed to a
candidate without a BA degree or such commitment. It is also equally credible that poor 35
performance on a critical thinking exercise, which was a key component of the interview,
undermined Bishop’s candidacy. Regarding the second position, it is equally believable that
Clark selected Snowden on the basis of her superior unit seniority, which is a non-invidious
criterion required by the CBA.

16 “BLS” is basic life support.
17 Deb Rugen is no longer employed by the Hospital.
18 In January 2015, she was promoted to Director of Women’s Health Services.
19 The revised job description was sent to Rodgers on June 12, who did not challenge receipt. The General
Counsel and Union did not challenge this testimony; Clark’s unrebutted testimony on this point is, thus,
credited.
JD(ATL)–21–15
7
III. Analysis
A. Deferral to the CBA’s Arbitration Procedure
5
The Hospital’s contends that deferral under Collyer Insulated Wire, 192 NLRB 837
(1971) is appropriate; this position is invalid.20 Deferral is appropriate when:
(1) the parties’ dispute arises within the confines of a long and productive
collective-bargaining relationship; (2) there is no claim of employer animosity to 10
the employees’ exercise of Section 7 rights; (3) the parties’ agreement provides
for arbitration in a very broad range of disputes; (4) the parties’ arbitration clause
clearly encompasses the dispute at issue; (5) the party seeking deferral has
asserted its willingness to utilize arbitration to resolve the dispute; and (6) the
dispute is well suited to resolution by arbitration.15
San Juan Bautista Medical Center, 356 NLRB No. 102, slip op. at 2 (2011).
Deferral is inappropriate herein under the second, fourth and sixth factors. Factor 2 does
not support deferral, given that several allegations involve Union animus. Nissan Motor Corp., 20
226 NLRB 397, fn.1 (1976). Factor 4 does not support deferral, inasmuch as that it is unclear
whether the Business Conduct policy allegation is covered by the CBA’s arbitration clause.
Lastly, factor 6 does not support deferral because information issues generally cannot be
deferred. Team Clean, Inc., 348 NLRB 1241, fn. 1 (2005). Deferral is, therefore, unwarranted.
25
B. Section 8(a)(1) – Business Conduct Policy21
The Business Conduct policy is unlawful because it repeatedly and overbroadly
proscribes “inappropriate,” “unprofessional,” and “disrespectful” workplace conduct. The Board
has held that analogous limitations are verboten. See, e.g., First Transit, Inc., 360 NLRB No. 72, 30
slip op. at 2–3 (2014)(“discourteous or inappropriate attitude or behavior to … employees”);
2 Sisters Food Group, Inc., 357 NLRB No. 168, slip op. at 2 (2011)(“inability or unwillingness
to work harmoniously with other employees”); Knauz BMW, 358 NLRB No. 164 (2012)
(“courtesy rule,” which prohibited “disrespectful” conduct); Southern Maryland Hospital,
293 NLRB 1209, 1222 (1989), enfd. in relevant part 916 F.2d 932, 940 (4th Cir. 1990) 35
(“derogatory attacks on . . . hospital representative[s]”); Claremont Resort & Spa, 344 NLRB
832 (2005) (“negative conversations”). The Board has found that such prohibitions are
unlawfully overbroad, and “sufficiently imprecise … [to] encompass any disagreement or
conflict among employees, including those related to discussions and interactions protected by
Section 7.” 2 Sisters Food Group, supra, slip op. at 2. 40

20 Deferral is a threshold question, which must be decided before the merits of the unfair labor practice
allegations can be considered. L.E. Myers Co., 270 NLRB 1010, 1010, fn. 2 (1984).
21 This allegation is listed under complaint pars. 6 and 10.
JD(ATL)–21–15
8
C. Section 8(a)(1) and (3) – Bishop’s Verbal Warning and Rejected Applications22
1. Bishop’s Verbal Warning
The Hospital independently violated Section 8(a)(1) of the Act, when it issued a verbal 5
corrective action to Bishop under the Business Conduct policy. The Board has held that:
Discipline imposed pursuant to an unlawfully overbroad rule violates the Act in
those situations in which an employee violated the rule by (1) engaging in
protected conduct or (2) engaging in conduct that otherwise implicates the 10
concerns underlying Section 7 of the Act. Nevertheless, an employer will avoid
liability for discipline imposed pursuant to an overbroad rule if it can establish
that the employee's conduct actually interfered with the employee's own work or
that of other employees or otherwise actually interfered with the employer's
operations, and that the interference, rather than the violation of the rule, was the 15
reason for the discipline. . . . It is the employer's burden, not only to assert this
affirmative defense, but also to establish that the employee's interference with
production or operations was the actual reason for the discipline. In this regard,
an employer's mere citation of the overbroad rule as the basis for discipline will
not suffice to meet its burden. Rather, assuming that the employer provides the 20
employee with a reason (either written or oral) for its imposition of discipline, the
employer must demonstrate that it cited the employee's interference with
production and not simply the violation of the overbroad rule.
Continental Group, Inc., 357 NLRB No. 39, slip op. at 6 (2011) (citations omitted).25
Bishop was disciplined under the unlawful Business Conduct policy for engaging in
protected concerted activity (i.e. investigating collective concerns about the BIPAP policy).23
The Hospital failed to meet its burden and show that Bishop interfered with its operations. As
stated, Every’s testimony on this point was not credited. Additionally, Bishop’s verbal 30
corrective action conspicuously failed to cite actual interference with patient care, and solely
labeled her conduct as “inappropriate.” I, thus, find that her discipline was unlawful.24
2. Bishop’s Rejected Transfer Applications
35
The Hospital did not violate Section 8(a)(1) and (3), when it rejected Bishop’s
applications. Although the General Counsel adduced a prima facie case, the Hospital established
that she would have been rejected, irrespective of her protected activities.

22 These allegations are listed under complaint pars. 7 and 11.
23 See, e.g., Anco Insulations, Inc., 247 NLRB 612 (1980); The Loft, 277 NLRB 1444, 465 (1986).
24 It is unnecessary to also decide whether the discipline dually violated Sec. 8(a)(3) because the resulting
remedy would be unaltered. See Tri-Tech Services, Inc., 340 NLRB 894, 895–96 (2003).
JD(ATL)–21–15
9
a. Legal Framework
The framework for analyzing whether allegedly discriminatory actions violate 8(a)(1) and
(3) violations is provided under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line, the General Counsel must first 5
demonstrate, by a preponderance of the evidence, that the worker’s protected conduct was a
motivating factor in the adverse action. The General Counsel satisfies this initial burden by
showing: one’s protected activity; employer knowledge of such activity; and animus.
If the General Counsel meets his initial burden, the burden shifts to the employer to prove 10
that it would have taken the same adverse action, even absent the protected activity. Mesker
Door, 357 NLRB No. 59, slip op. at 2 (2011). The employer cannot meet its burden, however,
merely by showing that it had a legitimate reason for its action; rather, it must demonstrate that it
would have taken the same action, absent the protected conduct. Bruce Packing Co., 357 NLRB
No. 93, slip op. at 3–4 (2011). If the employer's proffered reasons are pretextual (i.e., either false 15
or not actually relied on), the employer fails by definition to show that it would have taken the
same action for those reasons regardless of the protected conduct. Metropolitan Transportation
Services, 351 NLRB 657, 659 (2007). On the other hand, further analysis is required if the
defense is one of “dual motivation,” that is, the employer defends that, even if an invalid reason
might have played some part in the employer’s motivation, it would have taken the same action 20
against the employee for permissible reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411
F.3d 212, 223 (D.C. Cir. 2005).
b. Prima Facie Case
25
The General Counsel made a prima facie showing that the Hospital’s rejection of
Bishop’s applications was unlawfully motivated. She engaged in protected activity, when she
investigated the BIPAP policy as a Union delegate. The Hospital was aware of such activity.
Animus is demonstrated by the Hospital’s unlawful issuance of discipline for this activity.25
30
c. Affirmative Defense
The Hospital persuasively met its burden and showed that it would have rejected Bishop,
absent her protected conduct. First, it demonstrated that it properly denied Bishop’s application
for the first position, which was tendered to Ferrari. Clark, as noted, credibly testified that 35
Ferrari was a stronger candidate, who adeptly handled a critical thinking exercise,26 held a BA
degree in nursing from a 4-year institution,27 had concrete plans to obtain a midwifery degree,
and possessed a demonstrable long-term commitment to the maternity specialty.28 Bishop, on

25 Additionally, the Board has held that the Hospital unlawfully disciplined Cindy Northrup because of her
Union activities; this violation further demonstrates animus. Columbia Memorial Hospital, supra, 362
NLRB No. 154.
26 Clark credibly testified that maternity RNs exercise substantial autonomy and need strong critical thinking
skills. She stated that the exercise, which covered an emergency scenario, played a great role in her hiring
decision.
27 Clark credibly stated that a 4-year nursing degree provides significant critical thinking training.
28 The General Counsel’s contention that Bishop should have been awarded the first position on the basis of
her greater bargaining unit or Hospital seniority is misplaced, inasmuch as only unit seniority is relevant
JD(ATL)–21–15
10
the other hand, performed poorly on the critical thinking exercise, held only a 2-year degree, had
no plans to obtain a midwifery degree, and lacked a demonstrable long-run commitment to
maternity. Second, the Hospital showed that it legitimately rejected Bishop’s application for the
second position, which was given Snowden, on the basis of Snowden’s superior unit seniority.29
I find, accordingly, that this allegation should be dismissed. 5
D. Section 8(a)(5) – Melded Seniority List Request30
The Hospital violated Section 8(a)(5), when it unreasonably delayed providing portions
of, and failed to provide other components of, the melded seniority list. An employer must, 10
generally, provide requested information to a union, whenever there is a probability that such
information is necessary and relevant to its representational duties. NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967). This duty encompasses the obligation to provide relevant grievance-
processing materials. Postal Service, 337 NLRB 820, 822 (2002). The standard for relevancy is
a “liberal discovery-type standard,” and the sought-after evidence should solely have a bearing 15
upon the disputed issue. Pfizer, Inc., 268 NLRB 916 (1984). Information, which concerns unit
terms and conditions of employment (e.g. seniority), is, “so intrinsic to the core of the employer-
employee relationship” that it is presumptively relevant. York International Corp., 290 NLRB
438 (1988). The Board has also held that unreasonable delays in providing information are “as
much of a violation of Section 8(a)(5) of the Act as a refusal to furnish the information at all.” 20
Woodland Clinic, 331 NLRB 735, 736 (2000), citing Valley Inventory Service, 295 NLRB 1163,
1166 (1989). Month-plus delays that are unaccompanied by legitimate excuse are, thus,
unlawful. See, e.g., Pan American Grain, 343 NLRB 318 (2004), enfd. in relevant part, 432 F.
3d 69 (1st Cir. 2005) (3-month delay); Bundy Corp., 292 NLRB 671, 672 (1989) (2 months).
25
The Hospital unlawfully failed to respond to the melded seniority request. The list was
relevant because the CBA utilized various seniority levels to determine competing rights for
layoffs, recalls, benefits, transfers and other matters. The list, thus, straightforwardly met the
Board’s broad discovery standards. Regarding the delay, the Hospital took almost a year to
provide staggered pieces of an ultimately incomplete list.31 In spite of its complaints about 30
ongoing HRIS difficulties, the resulting delay remained inexcusable. Pan American Grain,
supra. Regarding its failure to supply a complete list, it has, to date, failed to provide a list
describing the entire unit, or one that clearly shows unit seniority.32 I find, accordingly, that the

under the CBA in determining transfers, and both Bishop and Ferrari lacked unit seniority in the maternity
department.
29 As stated, the CBA requires that, “Unit based seniority shall apply to transfers.” GC Exh. 2 at Art. 7, Sec.
6.
30 This allegation is listed under complaint pars. 8–9, and 12.
31 Although the record shows that the Union’s first request was on September 30, 2013 (see (GC Exh. 3)), the
complaint and underlying charge focused upon the Union’ July 2014 request. (GC Exh. 1).
32 As stated, the April 30, 2015 list, contained only 525 out of roughly 775 unit employees, and made unit
seniority indecipherable by listing numbers for “Dept ID” and “Contract ID,” without accompanying
definition.
JD(ATL)–21–15
11
Hospital violated the Act by unreasonably delaying its partial response, and by, to date, wholly
failing to provide a complete list.
Conclusions of Law
5
1. The Hospital is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
10
3. The Hospital violated Section 8(a)(1) of the Act by maintaining a Business
Conduct policy in its Policy and Procedure Manual, which prohibited, “inappropriate,”
“unprofessional,” and “disrespectful” exchanges amongst workers.
4. The Hospital violated Section 8(a)(1) of the Act by issuing Kimberly Bishop a 15
verbal corrective action.
5. The Union is, and at all times material times was, the exclusive representative of
the employees for the purposes of collective bargaining within the meaning of Section 9(a) of the
Act in the following appropriate collective-bargaining unit:20
All full-time and regular part-time registered professional nurses including per
diem registered nurses, pharmacists, physical therapists, medical technologists
and histology technologists employed by the Hospital at its Hudson, New York
medical center, excluding all confidential employees, all human resource 25
employees, all data processing employees, all clerical employees, all maintenance
employees, all administrative employees, all department secretaries, all
professional employees, guards, supervisors and all other employees.
6. The Hospital violated Section 8(a)(1) and (5) of the Act by delaying its provision 30
of, and failing and refusing to provide, relevant and necessary information to the Union in the
form of a complete melded seniority list, which has been requested since at least July 14, 2014.
7. The unfair labor practices set forth above affect commerce within the meaning of
Section 2(6) and (7) of the Act.35
8. Deferral of these matters to arbitration is unwarranted.
Remedy
40
Having found that the Hospital committed unfair labor practices, it is ordered to cease
and desist and to take certain affirmative action designed to effectuate the policies of the Act.
Given that the Business Conduct policy is maintained on an organization-wide basis, it must post
a notice at all of its facilities where its unlawful policy has been, or is, in effect. Longs Drug
Stores California, 347 NLRB 500, 501 (2006); Guardsmark, LLC, 344 NLRB 809, 812 (2005). 45
JD(ATL)–21–15
12
Its duty to rescind or modify the unlawful policy is governed by Guardsmark LLC, supra.33 The
Hospital, having unlawfully issued Kimberly Bishop a verbal corrective action, shall expunge
from its records any reference to this discipline, provide written notice of such expunction, and
inform her that its unlawful conduct will not be used against her as a basis for future personnel
related actions. The Hospital must provide a complete melded seniority list to the Union, to the 5
extent that such information has not already been tendered. It shall also distribute remedial
notices electronically via email, intranet, internet, or other appropriate electronic means to its
employees, in addition to the traditional physical posting of paper notices, if it customarily
communicates with workers in this manner. See J Picini Flooring, 356 NLRB No. 9 (2010).
10
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended34
ORDER
15
Columbia Memorial Hospital, Hudson, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
20
a. Maintaining a Business Conduct policy in its Policy and Procedure
Manual, which prohibits, “inappropriate,” “unprofessional,” and “disrespectful” exchanges
amongst coworkers.
b. Issuing verbal corrective actions or otherwise issuing other discipline to 25
employees because they have engaged in union or protected concerted activities.
c. Delaying in providing, and failing and refusing to provide, relevant and
necessary information requested by the Union in the form of a complete melded seniority list.
The appropriate bargaining unit is:30
All full-time and regular part-time registered professional nurses including per
diem registered nurses, pharmacists, physical therapists, medical technologists
and histology technologists employed by the Hospital at its Hudson, New York
medical center, excluding all confidential employees, all human resource 35
employees, all data processing employees, all clerical employees, all maintenance
employees, all administrative employees, all department secretaries, all

33 “The Respondent may comply with our Order by rescinding the unlawful provisions and republishing its
employee handbook without them. We recognize, however, that republishing the handbook could entail
significant costs. Accordingly, the Respondent may supply the employees either with handbook inserts
stating that the unlawful rules have been rescinded, or with new and lawfully worded rules on adhesive
backing which will cover the old and unlawfully broad rules, until it republishes the handbook without the
unlawful provisions. Thereafter, any copies of the handbook that are printed with the unlawful rules must
include the new inserts before being distributed to employees.” Guardsmark, supra at 812 fn. 8.
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(ATL)–21–15
13
professional employees, guards, supervisors and all other employees.
d. In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
5
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
a. Rescind or modify the language of the Business Conduct policy in its
Policy and Procedure Manual, to the extent that it prohibits, “inappropriate,” “unprofessional,” 10
and “disrespectful” exchanges amongst coworkers.
b. Furnish all current employees with inserts for the Policy and Procedure
Manual that
15
1. Advise that the unlawful rules have been rescinded, or
2. Provide the language of a lawful rule, or publish and distribute a
revised Policy and Procedure Manual that
20
i. Does not contain the unlawful rule, or
ii. Provides the language of lawful rule.
c. Within 14 days from the date of the Board’s Order, remove from its files
any reference to Kimberly Bishop’s verbal corrective action, and within 3 days thereafter, notify 25
her in writing that this has been done and that her discipline will not be used against her.
d. Provide to the Union a complete melded seniority list, to the extent that it
has not already done so.
30
e. Within 14 days after service by the Region, post at its Hudson, New York
facility copies of the attached notice marked “Appendix.”35 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 and maintained for 60 consecutive
days in conspicuous places, including all places where notices to employees are customarily 35
posted. 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, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Respondent has gone out of business or closed 40
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 July 14, 2014.

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.”
f. Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided
steps that it has taken to comply.
5
Dated Washington, D.C.
10
JD(ATL)
14
by the Region attesting to the
November 10, 2015
–21–15
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 a Business Conduct policy in our Policy and Procedure Manual,
which prohibits, “inappropriate,” “unprofessional,” and “disrespectful” exchanges amongst
coworkers.
WE WILL NOT issue verbal corrective action, or otherwise discriminate against you because
you support the Union or any other labor organization, or engage in other protected concerted
activity.
WE WILL NOT delay the provision of, or fail to provide, relevant and necessary information in
the form of a melded seniority list requested by the Union, as the exclusive bargaining
representative of the employees in the following appropriate unit:
All full-time and regular part-time registered professional nurses including per
diem registered nurses, pharmacists, physical therapists, medical technologists
and histology technologists employed by the Hospital at its Hudson, New York
medical center, excluding all confidential employees, all human resource
employees, all data processing employees, all clerical employees, all maintenance
employees, all administrative employees, all department secretaries, all
professional employees, guards, supervisors and all other employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in
the exercise of the rights set forth above.
WE WILL rescind or modify the language in the Business Conduct policy in our Policy and
Procedure Manual to the extent that it prohibits, “inappropriate,” “unprofessional,” and
“disrespectful” exchanges amongst coworkers.
WE WILL furnish all of you with inserts for the current Policy and Procedure Manual that:
1. Advise that the unlawful Business Conduct policy above has been rescinded, or
2. Provide the language of a lawful Business Conduct Policy, or publish and
distribute revised Policy and Procedure Manual that:
a. Does not contain the unlawful provision, or
b. Provide the language of a lawful provision.
WE WILL, within 14 days from the date of the Board's Order, remove from our files any
reference to the unlawful verbal corrective action issued to Kimberly Bishop, and we will, within
3 days thereafter, notify her in writing that this has been done and that her discipline will not be
used against her in any way.
WE WILL furnish to the Union, to the extent we have not already done so, a complete melded
seniority list.
COLUMBIA MEMORIAL HOSPITAL
(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.
Niagara Center Building, 130 South Elmwood Avenue, Suite 630, Buffalo, New York 14202
(716) 551-4931, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/03-CA-142160 or by using
the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary,
National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.
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, (716) 551-4946.