Flagstaff Medical Center

National Labor Relations Board - Administrative Judge Opinions

May 20, 2009

28-CA-021509 (N.L.R.B. May. 20, 2009)

JD(SF)-19-09
Flagstaff, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
FLAGSTAFF MEDICAL CENTER, INC.
and Case Nos. 28-CA-21509
28-CA-21637
28-CA-21664

COMMUNICATION WORKERS OF
AMERICA, LOCAL UNION 7019, AFL-CIO
and Case No. 28-CA-21548
NATIONAL NURSES ORGANIZING
COMMITTEE/CALIFORNIA NURSES
ASSOCIATION (NNOC/CNA)
FLAGSTAFF MEDICAL CENTER, INC.,
and SODEXHO AMERICA, LLC, as Joint
Employers
and Case Nos. 28-CA-21704
28-CA-21728
COMMUNICATION WORKERS OF
AMERICA, LOCAL UNION 7019, AFL-CIO
Mara-Louise Anzalone, Esq., Phoenix, AZ,
for the General Counsel
Steven D. Wheeless, and Alan M. Bayless
Feldman, Esqs., of Steptoe & Johnson LLP,
Phoenix, AZ, for the Respondents
Stanley M. Gosch, Esq., of Richard Rosenblatt
& Associates, L.L.C., Greenwood Village, CO,
for Communications Workers of America
Donald W. Nielsen, Esq., Fresno, CA, for
California Nurses Association
JD(SF)-19-09
2
DECISION
Statement of the Case
Gerald A. Wacknov, Administrative Law Judge: Pursuant to notice a hearing
in this matter was held before me in Flagstaff, Arizona on 16 days between the dates of
May 6, 2008 and September 25, 2008. The captioned charges filed by Communication
Workers of America, Local Union 7019, AFL-CIO (CWA), were filed between the dates
of August 7, 2007 and January 14, 2008. The charge filed by National Nurses
Organizing Committee/California Nurses Association (CNA) was filed on September 4,
2007. On February 29, 2008, the Regional Director for Region 28 of the National Labor
Relations Board (Board) issued a final complaint and notice of hearing, entitled Third
Consolidated Complaint and Notice of Hearing, alleging violations by Flagstaff Medical
Center, Inc. (Respondent or FMC), and Sodexho America, LLC (Respondent or
Sodexho) of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended
(Act). The Respondents, in their answers to the complaint, duly filed, deny that they have
violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to call, examine, and
cross-examine witnesses, and to introduce relevant evidence. Since the close of the
hearing, briefs have been received from Counsel for the General Counsel (General
Counsel), and counsel for the Respondents. Upon the entire record,1 and based upon
my observation of the witnesses and consideration of the briefs submitted, I make the
following:
Findings of Fact
I. Jurisdiction
The Respondent FMC, an Arizona corporation with an office and place of
business located in Flagstaff, Arizona, is a hospital engaged in the business of providing
acute medical care and medical services. In the course and conduct of its business
operations the Respondent FMC annually derives gross revenues in excess of
$250,000, and annually purchases and receives good valued in excess of $50,000
directly from points outside the State of Arizona. It is admitted and I find that FMC is, and
at all material times has been, 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.
The Respondent Sodexho, a Delaware limited liability company, with an office
and place of business in Flagstaff, Arizona, is engaged in the business of providing
hospital facility management services for hospitals in various locations throughout the
United States. In the course and conduct of its Arizona business operations Sodexho
annually derives gross revenues in excess of $250,000 and annually purchases and
receives goods valued in excess of $50,000 directly from points outside the State of
Arizona. It is admitted and I find that the Respondent Sodexho is, and at all times
material has been, and employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act .

1 The General Counsel’s unopposed motion to correct the transcript is hereby granted.
JD(SF)-19-09
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II. The Labor Organizations Involved
It is admitted, and I find, that the CWA and the CNA are, and at all times material
herein have been, labor organizations within the meaning of Section 2(5) of the Act,
III. Alleged Unfair Labor Practices
A. Issues
The principal issues in this proceeding are whether Respondent FMC and
Respondent Sodexho are joint employers, and whether Respondent FMC and/or
Respondent Sodexho, have violated and are violating Section 8(a)(1) and (3) of the Act.
B. Facts
1. Background
FMC is a hospital located in Flagstaff, Arizona. It employs approximately 2000
employees and is one of three hospitals in a health care system organized under a
corporate parent, Northern Arizona Healthcare.
Sodexho provides hospital management services and other types of services for
hospitals throughout the United States. FMC has contracted with Sodexho to provide
two types of services. Sodexho managers oversee day-to-day operations in one
department, Environmental Services, commonly referred to as the housekeeping
department; however the housekeeping employees are hired and employed directly by
FMC. Further, during the CWA organizing campaign involved herein, FMC began
contracting with Sodexho to provide both the manager and the employees for another
hospital function, known as transport services. Transport service employees provide
transport services for patients while they are in the hospital, transporting them to and
from various departments for tests and other procedures, and to their vehicles upon
being released from the hospital.2
Prior to the matters involved herein, the CNA conducted an organizing campaign
among the nurses employed by FMC. An election was held in which the CNA did not
prevail. The CNA filed election objections, and a second election has been directed.
The CNA has taken the position that the re-run election should be postponed pending
the resolution of the instant matter which concerns a separate organizing campaign by a
different union, the CWA, among ancillary service employees.
While there are approximately 400 ancillary service employees in seven
departments, the employees involved in this proceeding primarily consist of employees
in two of those departments: Employees in the Environmental Services (EVS) or
housekeeping department provide cleaning and linen services throughout the hospital;

2 It is alleged that this subcontracting to Sodexho of patient transport work, formerly
provided directly by FMC, was not motivated by lawful business considerations, but
rather was designed to chill union activity among the ancillary services employees in
violation of the Act, causing them to fear that their jobs, too, might be contracted out if
they continued to seek union representation.
JD(SF)-19-09
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there are approximately 64 employees in this department. Employees in the Dietary
Department, also known as the Nutrition Services Department, provide food services,
including the operation of the kitchen and cafeteria; nutrition assistants and dieticians
who provide patient food services are also dietary department employees. There are
approximately 30 employees in this department.
At all times material herein, Janine Drake has been the director of the Dietary
Department. Drake and all supervisors under her authority are FMC employees
At times material herein,3 Vivian Kasey was the director of EVS until her
departure, at which time she was succeeded by Joe Brown. Two supervisors or
managers also assisted Kasey and Brown in EVS, namely, Linda Keeler and Rosemary
Yazzi. These four named individuals have been employed directly by Sodexho; however
the housekeeping employees under their supervision are directly employed by FMC.
2. Joint Employer Allegation
It is alleged that Respondent FMC and Respondent Sodexho are joint employers.
The Respondents rely upon Lee Hospital, 300 NLRB 947 (1990), in which case the
Board found, under circumstances analogous to the facts herein, that AAI, an entity
hired to run a hospital’s anesthesiology department, was not a joint employer with the
hospital. The Board, after reviewing the relationship between the hospital and AAI,
finding that the hospital independently determines labor relations policy and sets the
wages, salary and fringe benefits for the anesthesiology nurses, concluded “we do not
find that AAI shares or codetermines those matters governing the essential terms and
conditions of employment to an extent that it may be found to be a joint employer."
The agreement between FMC and Sodexho requires FMC to “hire, discharge or
discipline Supervised Employees upon Sodexho’s reasonable request if such action is in
accordance with FMC’s employment policies and procedures.”
Roger Schuler is FMC’s vice-president for ancillary services, which includes
EVS. Schuler testified that FMC has contracted with Sodexho to provide leased
managers and supervisors for the EVS department. These managers and supervisors,
according to Schuler, play no role in formulating policy as it relates to hiring criteria,
terms and conditions of employment, rates of pay, performance appraisal criteria and
raises, and discharge and disciplinary criteria. All these matters are dictated to
Sodexho’s managers and supervisors through FMC’s policy manual which Sodexho has
no input in formulating. Further, upon the recommended discharge of an EVS employee
by a Sodexho manager, Schuler has final authority to determine whether the employee
should be discharged, and exercises the same authority over Sodexho managers that he
exercises over FMC managers. In summary, FMC requires strict conformity by Sodexho
with all FMC policies and guidelines pertaining to the employer-employee relationship,
and Sodexho has no independent authority to modify or deviate from the parameters
established by FMC. There is no contrary record evidence that is inconsistent with
Schuler’s testimony.

3 All dates or time periods hereinafter are within 2007 unless otherwise indicated.
JD(SF)-19-09
5
Accordingly, on the authority of Lee Hospital, I find that FMC and Sodexho are
not joint employers as alleged, and I shall dismiss this allegation of the complaint. 4 See
also Richmond Convalescent Hospital, Inc., 313 NLRB 1247, 1260-61 (1994).
3. Contracting Out the Patient Transport
Function to Sodexho
The complaint alleges that on or about August 3, FMC subcontracted its patient
transport work to Sodexho in violation of Section 8(a)(3) and (1) of the Act
Prior to August, FMC had a decentralized and departmentalized system for
handling inpatient transporting services. It employed four ancillary services employees
who were assigned to the Radiology department; these employees, who ultimately
transitioned over to Sodexho (infra), performed patient transport services exclusively for
radiology patients, transporting them to and from their hospital rooms for various
radiology tests and procedures. Other inpatients requiring similar transporting services,
including assistance from their rooms to their vehicles upon dismissal from the hospital,
were transported within the hospital by a variety of hospital personnel, particularly
nurses. Because there was no centralized and dedicated patient transport department
and because of the lack of a computerized tele-tracking transport system, nursing
employees would be utilized on an ad-hoc basis for often time-consuming transport
functions and would thereby be under-utilized for their primary nursing functions. This
was inefficient, costly to the hospital, inconvenient for the patients who would have to
wait for transport assistance, and added to the work of the nurses who thereby had less
time to devote to their patients.5
FMC had been exploring a solution to this problem since 2004, as extensively
detailed in the record. In February, FMC’s executive board made the final decision to
contract with Sodexho to perform the patient transport functions with Sodexho
employees rather than FMC employees; in May, the contract was entered into with
Sodexho; and in August, Sodexho assumed the patient transport function, and installed
and fine-tuned an automated computer system, including remote pager devices to
summon and keep track of transport employees throughout the hospital so that they
could be utilized in the most efficient manner. The four FMC transport employees
became Sodexho employees and, in addition, Sodexho began directly hiring additional
transport employees. All the employees were trained by Sodexho and began wearing
Sodexho uniforms.6 It was anticipated that transport employees who exclusively

4 The cases cited by the General Counsel are inapposite, generally, in they do not deal
with employers who contract with management companies to manage all or a portion of
the employer’s business operations and supervise the work of the employer’s
employees: See NLRB v. Browning-Ferris Industries, 691 F.2d 1117 (3rd Cir. 1982);
Paramus Ford, Inc., 351 NLRB No. 53 (Oct. 31, 2007); Riverdale Nursing Home, 317
NLRB 881, 882 (1995);
5 Record evidence shows that the nurses, who were involved in an organizing campaign
by the CNA, were very much in favor of a centralized patient transport system as this
would relieve them of additional work responsibilities.
6 As originally planned, Sodexho would be hiring 20 such transport employees, but
because of budgetary problems this number was reduced to 10, and the remainder of
the transport work continued to be done by FMC nurses or other staff.
JD(SF)-19-09
6
performed this type of work would acquire expertise in handling a variety of transport
situations that would enhance patient safety.
The General Counsel does not maintain that the new transport system was
unnecessary or not a marked improvement over the prior method of transporting
patients, but maintains that FMC should have itself set up the system in-house,
furnishing its own managers and hiring the necessary employees; or, at the least,
contracting out to Sodexho only the managerial and computerized functions of the new
department, while retaining and hiring FMC employees to transport patients. Contracting
out the entire project, so that transport employees are Sodexho employees and no
longer employees of FMC, it is argued, has a “chilling effect” upon the union activity of
the dietary and housekeeping employees7 because such contracting out would
reasonably cause them to be fearful that their jobs, too, might be subcontracted to
Sodexho or some other entity if they continued to engage in union activity.
Since 2004, Douglas Umlah has been executive director of strategic projects for
Northern Arizona Healthcare, the parent corporation of FMC. Umlah testified that since
the fall of 2004, he has been directly involved with the ongoing process that culminated
in the subcontracting of FMC’s patient transport function to Sodexho. The decision to do
so was made on February 13, at FMC’s weekly Senior Management Team meeting, and
the contract with Sodexho was signed on May 7. Umlah testified extensively regarding
the evolution of this program, and the entirety of his testimony need not be recounted
here. He visited two hospitals in Phoenix with Ruth Eckert, FMC’s director of nursing
services, and was impressed with their patient transport systems, operated by Sodexho.
He then contacted Sodexho for pricing on Sodexho’s tele-tracking products: basically an
automated dispatch system to facilitate the dispatching of patient transporters. He
realized from his on-site visits, “that FMC really…didn’t have the expertise to set up and
run a program like this.”
Umlah recommended that FMC contract with Sodexho for similar services. Thus,
as set forth above, FMC already had an ongoing relationship with Sodexho; further,
Sodexho offered a complete program, including software it utilized for implementing the
automated system, that was successfully in operation at other hospitals; and in addition,
because of the ongoing relationship with Sodexho, FMC was offered a discount on the
necessary software. While there was continuing discussion regarding whether FMC or
Sodexho should be the employer of the patient transport employees, Umlah testified that
it was generally understood that Sodexho would, at the least, be contracted to install and
manage the system.
William Bradel became FMC’s president in April, 2006. Bradel testified that
Umlah brought him up to date regarding the patient transport project. Bradel endorsed
the idea because he understood that FMC’s “homegrown” departmentalized model was
inefficient. As a result, in the late Summer of 2006, Bradel contacted colleagues at three
different hospitals. He inquired about their models of patient transport, and, in particular,
regarding the efficacy of contracting out the entire operation, so that the contractor would

7 There is no record evidence that the Union was attempting to organize the transport
employees, and the General Counsel does not appear to contend that FMC contracted
out the work to Sodexho in order to preclude the Union from organizing the four
transport employees.
JD(SF)-19-09
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be the employer of the transport employees, as contrasted with outsourcing only the
management component. Bradel testified:
[T]hese hospital administrators that I talked with said that it has to be a
complete—for maximum performance and patient safety that they felt that
their experience with having the management and the employees all
under one umbrella was the most successful…this is a very important
decision. It’s a costly decision. It’s –for FMC it’s over a half a million
dollars [apparently annually] of straight overhead to the hospital and we
wanted to make sure that we did this right.
According to Bradel, beginning in September 2006, (prior to the commencement of the
Union’s organizing campaign), he decided to proceed with the project and to implement
the full patient transport model by contracting out the entire operation, including the
employee component. He directed Umlah to continue working on the project.
Joseph Fitzhenry is a Sodexho employee. He began working at FMC on July 23,
as the manager of patient transportation, and worked in that position until June 23, 2008.
He was hired to develop and conduct oversight of the program. He was mentored by
another Sodexho manager who was an interim startup person at FMC prior to
Fitzhenry’s arrival. Sodexho began transporting patients on August 3, with five transport
employees, the four former FMC transporters8 and one additional employee who had
been hired by Sodexho from the outside. Thereafter Sodexho hired additional
employees. By the first week of September there were 10 transport employees. One of
the tranporters at any given time was assigned as a dispatcher to dispatch the other
employees throughout the hospital. Fitzhenry testified that:
Sodexho was hired in as kind of a one-stop shop in order to be able to
provide all of the training and oversight of its employees, taking care of all
of its own HR issues, and then to provide safe and reliable patient
transportation for the patients throughout the medical center.
Asked whether there was any advantage to this method of operation, Fitzhenry testified:
Well, when you buy the whole package, what you’re getting is you’re
getting a complete program. You’re having something where that
particular outfit is coming in. They’re providing all of their recruiting,
hiring, firing, disciplining, payroll, compensation, benefits, all of those
sorts of factors. And it also increases the accountability of the staff to that
manager.

8 Fitzhenry testified that these four employees were given a one-day orientation and it
was made clear to them that their terms and conditions of employment were not subject
to FMC any longer; rather, they were employees of Sodexho and subject to a whole new
set of rules. According to Fitzhenry, Sodexho employees are instructed to relate to FMC
supervisors, “Only in the sense that, you know, we’re going to all be, I guess, a team
player. We’re going to work together for the common benefit of the patient.” In the event
of a problem, FMC supervisors would contact Fitzhenry directly. This happened from
time to time. In the event of an immediate patient safety issue, one of the FMC nurses
could so advise and/or correct the Sodexho transport employee, depending upon the
circumstances.
JD(SF)-19-09
8
The General Counsel argues that the timing of FMC’s decision to implement the
system is suspicious in that it coincides with and overlaps the Union’s organizational
campaign. Thus, although the record evidence shows that the decision was made on
February 13, 2006 at the weekly Senior Management Team meeting, there is a later
reference to the matter in the April 24 minutes of the Senior Management Team. The
General Counsel points out that at the April 24 meeting, ”Doug [Umlah] presented
proposal in putting time line, service scope, financial information, pros and cons of
outsourcing.”9 And the minutes also state, “Senior management team supports
outsourcing.”
The General Counsel asked Patricia Crofford about the meaning and significance
of this language. Crofford, as director of human resources, regularly attended the Senior
Management Team meetings but was not a member of the Senior Management Team.
Crofford testified that the outsourcing decision had been made in February, prior to the
time FMC had knowledge of any union activity, but there were “additional discussions
ongoing between February and April, regarding the specifics of the decision,” and Umlah
“continued his reinforcement of his belief that …the patient transport subcontracting was
best for Flagstaff Medical Center.” General Counsel did not ask Umlah about this even
though Umlah testified after Crofford. Thus the only testimony regarding this matter is
that of Crofford.
The contract with Sodexho was signed on May 7, two weeks after the
aforementioned April 24 meeting. Umlah had been negotiating that contract with
Sodexho for quite some time. It is reasonable to assume, absent any contrary evidence,
that up until the date the contract with Sodexho was executed, FMC could have changed
its mind; and that the discussion at the April 24 meeting and the references in the
minutes simply served as reinforcement and validation that FMC’s earlier February
decision was the correct one. Accordingly, I find without merit the General Counsel’s
argument that the decision to contract with Sodexho was not made until April 24, at a
time when the Union’s organizing campaign was well under way. Further, even
assuming arguendo the decision to contract with Sodexho was not finalized until
April 24, there is no evidence the decision was motivated by unlawful considerations.
General Counsel, maintaining that FMC could have simply contracted out the
management component to Sodexho, retaining the employee component to itself, goes
on to argue that FMC must have decided to outsource the employee component for
discriminatory reasons, namely, to cause its dietary and housekeeping employees to
fear that their jobs, too, might be contracted out because of, or in retaliation for, their
union activity.10 While it is possible that FMC could have contracted out only the
management component, or conceivably could have developed and implemented its
own in-house patient transport system without contracting out any component, this is not
what it decided to do. The Respondent’s witnesses, whom I credit, are experienced

9 The transcript, at page 1472, line 16, is hereby amended as follows: “frozen kinds of
outsourcing” is changed to “pros and cons of outsourcing.”
10 This theory is somewhat problematical. Thus, employees’ fears that their jobs will be
contracted out is customarily cause for concern because they fear they will lose their
jobs. However, in the instant situation, the FMC employees who performed patient
transport work did not lose their jobs, but rather continued to perform patient transport
work at the same location for Sodexho rather than FMC.
JD(SF)-19-09
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hospital professionals with expertise in hospital administration, and Sodexho’s patient
transport system is a sophisticated system that had been tried and tested at other
hospitals. After exhaustive consideration, they decided that contracting out the entire
operation to Sodexho was in the best legitimate business interest of FMC. There is no
contrary evidence.
The contention by the General Counsel that FMC had an ulterior, unlawful motive
in contracting out the patient transport work and would not have done so in the absence
of the Union’s organizing drive, is contradicted by persuasive, substantial and
uncontroverted record evidence. Accordingly, I shall dismiss this allegation of the
complaint.
4. The June 29 and July 6 Meetings Conducted
by Bradel and/or Schuler
It is alleged that FMC’s president, Bill Bradel, and FMC’s vice-president for
ancillary services Roger Schuler, during the course of a dietary department employee
meeting held on June 29, unlawfully solicited grievances and made statements violative
of the Act to a group of about 25 or 30 dietary employees; further, it is alleged that a
follow-up meeting on July 6, FMC further violated the Act by favorably resolving some of
the employees’ concerns raised at the July 29 meeting.
At the outset of the July 29 meeting, Schuler stated that he and Bradel were
there to find out any issues, concerns or problems that employees had. Several
employees raised concerns. Schuler advised them that he would look into the matters
they raised and would get back in touch with them, hopefully within ten days.
Bradel, according to the testimony of employees Shawn White, Paula Souers,
and Lydia Sandoval, all outspoken union advocates, told the assembled employees that
he knew there was some union activity in their department, mentioned that he was
aware of their union organizer “friend” who conspicuously spent time at a table in the
cafeteria attempting to speak with employees, stated that he wanted them to think about
unionizing because if they went union there would be no further meetings like this one,
and further stated that they could solve the issues among themselves and did not need a
third party brought in. During the meeting the union advocates disputed some of
Bradel’s remarks and defended the Union. White took issue with Bradel’s “third party”
remark, saying that there would not be a third party because an employee committee
would represent the employees during contract negotiations. According to White, this
cause Bradel to remark, “if you think you’re going to sit down across the table from me
and negotiate a contract, you’re wrong.”11
Bradel testified that this was the first opportunity he had had to meet with this
particular group of employees. He and Schuler opened the meeting by soliciting
feedback from the employees to learn what was working well and what improvements
could be made. Initially, no employees spoke up and Bradel, in an effort to solicit their
input, said:

11 Dale Mackey, another witness called by the General Counsel, testified that Bradel
said, “he wouldn’t be there if there was anybody coming in and representing the union.
He would not attend it. He made that very specific…He would not attend the meeting.”
JD(SF)-19-09
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We really want to hear what you have to say. We’ve been conducting
these meetings in other departments and we’ve got some really good
feedback, so please speak up…
Then employees began expressing their concerns. Some of their concerns were
addressed by Schuler on the spot, and some were deferred until later. After this segment
of the meeting, Bradel again said that he appreciated the direct contact with the
employees and it was valuable to build that relationship. He said he knew there was
some union activity in that department, and “that we appreciate the direct activity and
that if we had a union that it would be difficult to have that same direct communication
and I didn’t think that, that would be necessary for FMC.” An employee then spoke up
and said he felt the employees needed representation. This prompted Bradel, who
believed that he would not be one of FMC’s representatives at the negotiating table, to
say something to the effect that if there was a union, “I would not be negotiating with the
union,” or, “you won’t be negotiating with me.” Bradel denies referring to the union
organizer in the cafeteria as their union organizer “friend” or “little friend,” as this simply
is not a remark he would have made.12
According to Schuler, Bradel said “that he appreciated the interchanges with
staff…expressed his view that direct interchange like this might not be possible if a third
party was involved.” Further, before the employees left the meeting, Schuler told them
he would look into their issues and get back to them at a follow-up meeting. The follow-
up meeting was held on July 6. Bradel was not present. Schuler addressed the issues
that had been raised by the employees at the June 29 meeting.
Schuler testified that the June 29 meeting was a department staff meeting with
dietary employees,13 that in the four and a half years he has been vice president of
ancillary services he has attended and participated in approximately 10 such meetings
with dietary employees, and has attended and participated in approximately 50 to 70
similar meetings among ancillary services employees. Department staff meetings are
conducted monthly, and Schuler attempts to attend as many meetings as he can. The
meetings follow essentially the same format: the director asks the employees whether
there are any issues or concerns they want to raise, and Schuler invites similar inquiries.
The same format was followed at the June 29 meeting, although the director of the
department was not present. Schuler testified that these meetings provide management
with an opportunity to find out from employees “what’s on their mind, what are their
relevant issues, concerns, opportunities we might have to follow up on those issues and
concerns.” Schuler testified, “If it’s a question that can be answered, the question is
answered at that time. If not, the response is that we’ll follow up and get back to them.”
The process of following up on employee concerns, as was done at the July 6 follow-up
meeting was no different than the process that was customarily followed.
About a month prior to the June 29 meeting, Schuler introduced Bradel to
ancillary services employees at four other meetings: security and PBX employees, plant
operations and facilities employees, therapy services employees, and housekeeping

12 According to Schuler, Bradel did not specifically refer to any union organizer in the
cafeteria. Whether or not Bradel made such a remark is irrelevant, and therefore a
credibility determination is unnecessary.
13 Customarily the director of the department conducts the meeting; however Drake did
not attend this particular meeting.
JD(SF)-19-09
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department employees. The housekeeping employees’ meeting, similar to the
aforementioned dietary department meeting, was held in McGee Auditorium.
Bradel, according to Schuler, has attended some 20 other open forum meetings,
as distinguished from departmental meetings, where Bradel was introduced by someone
other than Schuler; all employees are invited to these open forum meetings. Further,
according to Schuler, Bradel has held some 12 departmental staff meetings with nurses.
Schuler testified:
Bill [Bradel] was a very big advocate of rounding.14 He spends a lot of
time out in the department meeting with employees. He has, as I
mentioned yesterday, meetings that he calls Bagels with Bill where he
would invite certain departments to meet with him in the cafeteria in small
groups. He has departmental meetings that he goes to meet the staff.
He has open forums that are open to anybody in the hospital for—for
them to get to know him better and for him to describe hospital issues.
In addition to the foregoing, Schuler promotes his own open door policy and receives
visits from about ten employees each week who come to his office with personal or
departmental problems or concerns.
Schuler’s testimony stands unrebutted, and there is no contrary evidence.
The General Counsel points out that the dietary department head, Janine Drake,
was not at the June 29 meeting, but that Bradel was at the meeting. Drake’s absence
seems irrelevant, and the presence of Bradel and Schuler is consistent with their
presence at many similar employee meetings. Accordingly, I find that the format of the
June 29 meeting was no different that the format of the numerous meetings with staff,
including ancillary services employees, which occurred well prior to the instant union
activity. I shall dismiss this allegation of the complaint.
I further find that the follow-up process during the July 6 meeting was similarly
consistent with FMC’s practice of providing answers and resolutions to employees’
concerns that could not be immediately addressed at the June 29 meeting. Therefore, as
there is no evidence that the Respondent initiated the practice of soliciting and
attempting to resolve employee concerns in response to its employees’ union activity,
the fact that it continued this past practice during the course of the union activity is not
violative of the Act.15 I shall also dismiss this allegation of the complaint. Cf. Southern
Maryland Hospital, 276 NLRB 1349 (1985), cited by the General Counsel.

14 “Rounding,” according to Schuler, is a formal, pro-active, systematic, ongoing process
whereby management team members circulate throughout the various departments, and
engage the employees in dialogue “to determine what’s going well, what needs
improvement…what issues and concerns do they have in their department…an
opportunity to get feedback from the staff and respond to those issues.”
15 Moreover, under the circumstances, it appears unnecessary to discuss particular
matters that were resolved.
JD(SF)-19-09
12
I credit the testimony of Bradel. However, even assuming arguendo the
accuracy of the employees’ recollection of Bradel’s remarks at the meeting,16 it is not
unlawful to advise employees that if they went union there would be no further meetings
during which employee concerns were solicited and/or resolved, or to suggest that FMC
and the employees could resolve their own issues without the intervention of a third
party. See, Sunrise Health Care Corp., 334 NLRB 903, 906-07 (2001); Tri-Cast, Inc.,
274 NLRB 377, 377 (1985); Ben Venue Laboratories, Inc., 317 NLRB 900, 900 (1995).17
Regarding the remark by Bradel that “he” would not be negotiating with the
Union, the employees could have reasonably understood Bradel to mean what he
intended, namely, that although he was personally available to meet with employees at
such departmental meetings, he would not be one of FMC’s representatives at the
negotiating table. Bradel did not state at that meeting, nor insofar as the record shows
did any representative of FMC ever state, that FMC would not negotiate with the CWA or
the CNA if either union was selected as the employees’ collective bargaining
representative. I shall dismiss this allegation of the complaint.
5. Additional Alleged Violations by FMC
A. Section 8(a)(1) Allegations
Alleged interrogation of Paula Souers: The CWA union campaign started in
October 2006. Paula Souers was at that time a nutrition assistant in the dietary
department. Souers, as an ”organizer” for the Union, testified that she “gave information
to people, handed out flyers, and answered questions…and went to meetings.” Further,
she sometimes wore a CNA (California Nurses Association) button at work, as she also
supported the CNA in its efforts to organize the Respondent’s nurses. She is “sure”
management was aware of her support for the Union, as she “was open about it” from
the beginning; and in October 2006, on the day she found out about the first [CWA]
union meeting, she invited her immediate supervisor, Lisa Dominguez, to attend the
meeting with her.
The next time she discussed the union with a supervisor was some four months
later, on February 23, during a periodic evaluation with Sarah Klein-Mark, nutrition
services coordinator. Souers testified she believed Kline-Mark knew she was an open
union supporter as of that date as she didn’t hide the fact and readily promoted the
Union to her co-workers.

16 Both Bradel and Schuler gave a more nuanced account of Bradel’s remarks regarding
this matter: Bradel testified he stated that “if we had a union it would be difficult to have
that same direct communication,” and Schuler similarly testified Bradel said, “that he
appreciated the interchanges with staff…expressed his view that direct interchange like
this might not be possible if a third party was involved.”
17 The General Counsel relies upon other cases: Tipton Elec. Co., 242 NLRB 202, 205-
06 (1979), enfd. 621 F.2d 890 (8th Cir. 1980); Reidbord Bros. Co., 189 NLRB 158, 162
(1971); Graber Manufacturing Company, Inc., 158 NLRB 244 (1966), enfd. 382 F.2d 990
(7th Cir. 1967). To the extent these cases are inconsistent with the foregoing cases, it
appears they do not reflect current Board law. See discussion in Member Brown’s
dissenting opinion in Ben Venue Laboratories, supra.
JD(SF)-19-09
13
The discussion took place in Klein-Mark’s office. Kline-Mark, who was at this
period in time having similar meetings with other nutritional assistants, described the
purpose of the meeting with Souers as follows: “The purpose was to recognize her as a
high level employee and to continue to provide her with encouragement and let her know
how good of a job she was doing in her current position.” It was a fifteen-minute
conversation and each spoke about 50 per cent of the time. Klein-Mark complemented
Souers for being a “high performer “ (the highest ranking), said that she was a good
nutrition assistant, cared for her patients, and took her job seriously. She then asked
Souers if she had any issues or concerns.
Kline-Mark testified there was general discussion about the work of the
department, and Souers expressed some work-related concerns: that she wished there
were more nutritional assistants so she would have more time to spend taking food
orders from her patients; that she felt some of the kitchen dietary employees were not
being trained properly; and that she thought Bill Bradel, the Respondent’s president,
didn’t think very highly of the nutrition department or the environmental services
department.18 Regarding this latter comment, Souers elaborated by referring to some
negative remarks she understood Bradel had made about certain employees being “from
the wrong side of the tracks.” Klein-Mark testified that she then, “in context,” asked
Souers, “what she thought a union could do as far as relationships between the nutrition
staff and the nursing staff.” 19 Souers replied she didn’t feel comfortable talking about the
union. Klein-Mark said it was “okay to have an open dialogue about it.”20 Souers again
said she didn’t want to talk about it. After this response, Klein-Mark “let it go.”
Souers testimony regarding this part of the conversations differs markedly from
that of Kline-Mark. According to Souers, 21 after expressing her concerns, she “thinks”
Klein-Mark asked, “how do you feel about the union.” Souers said, “I don’t think you can
ask me that.” Klein-Mark said, “it was okay, that it was just my opinion.” Souers “thinks”
she said, ”I don’t feel comfortable talking about it.” Then Klein-Mark said, “It’s okay. It’s
just your opinion.” Then Souers finally said, “I’m for it.” Kline-Mark asked, “ Okay, why?”
Then Souers explained that she had worked with a union before years ago and liked it,
that she thought it would be a good

18 On page 22 of her brief the General Counsel seeks to amend the complaint by adding
an additional allegation as a result of Souers’ being cautioned to avoid spreading
“malicious gossip” about Bradel. As this amendment was not proposed during the
course of the hearing, and FMC has thereby been denied the opportunity to present
evidence, the General Counsel’s request to amend the complaint is denied.
19 Klein-Mark felt that Souers was expressing her concerns and, knowing that Souers
supported the nurses’ efforts because she had worn a CNA button, was curious and
“wanted to see what her opinion was about what the union could do to help with
relationships between nutrition services and nursing staff and Bill Bradel.”
20 Klein-Mark testified that she had undergone labor relations training on about four
occasions by a firm that had been hired by the Respondent to handle the union
campaign, and understood that “it was okay to talk about facts about the union, people’s
experiences that they may have had and also opinion that they may have had.”
21 Souers testified that only one part of the interview “stuck out in her mind,” namely the
part about the union, and that she did not “remember clearly” the other parts of the
conversation.
JD(SF)-19-09
14
thing for Flagstaff Medical Center, and good for the patients, that the people in the
kitchen and housekeeping departments have no voice or way they can contribute, and
that the hospital hired individuals that they could exploit and take advantage of. Klein-
Mark said she didn’t agree.
Klein-Mark concluded the meeting by again telling Souers what a good employee
she was, and how good of a job she was doing; and Souers, in turn, said she thought
Kline-Mark was doing a good job as a supervisor as well. Then the two hugged, and the
meeting ended. Asked about the hug, Kline-Mark explained that although she had five
to seven similar meetings with other employees, none of the other meetings ended in a
hug; that she had hired Souers a year earlier and felt close to Souers; and that Souers
was “more than just an employee” as the two had considerable daily communications,
and had talked about Souer’s family and other non-work related matters, and had
“connected.” Thus, to Kline-Mark it was more than simply a compulsory work-related
interview, and the hug was an expression of this relationship.22
As noted, the only discrepancy of significance concerns Klein-Mark’s alleged
interrogation of Souers about union matters. On this point I credit the testimony of Kline-
Mark who appeared to be a forthright witness with a complete recollection of the entire
conversation. This is in contrast to Souer’s less comprehensive account of the meeting.
It seems unlikely that Kline-Mark would point-blank ask Souers, “how do you feel about
the union,” because Kline-Mark already knew the answer to that question as Souers
was a staunch union advocate. Accordingly, the ensuing scenario described by Kline-
Mark is the more probable. Asking Souers, a known union advocate, in the context of
discussing work-related matters, what she believed a union could accomplish, does not
constitute coercive interrogation; this is particularly true given Kline-Mark’s simultaneous
excellent evaluation of Souers and her expression of affection for Souers. I shall dismiss
this allegation of the complaint. See Aladdin Gaming, LLC, 345 NLRB 585, 611 (2005);
Enloe Medical Center, 345 NLRB 874, 876-77 (2005).
Alleged interrogation of Lydia Sandoval: Lydia Sandoval works in the dietary
department. Sandoval testified that in early March, as she was cashiering in the café,
she was also carrying on a running conversation, between customers, with Dietary
Director Drake. At this point she had not worn any union button, nor had she otherwise
indicated that she was a union advocate. During the intermittent, ongoing conversation,
lasting off and on some 20 to 25 minutes, Drake, according to Sandoval, said the nurses’
union (CNA) was “foolish” and “asked my opinion on what I thought the union [the CWA]
could do for us that FMC couldn’t or wasn’t already doing.” It is unclear whether Drake
made the statement and asked the question at the same time or at different times during
the running conversation. Sandoval replied that she would support the Union and the
Union would be better for everybody. Sandoval testified she had a good working
relationship with Drake and the two have always been cordial and friendly.
Drake, who acknowledged that in March she had no reason to believe Sandoval
might be a union supporter, denies that this conversation occurred.

22 Souers characterized the hug differently: “I hugged her because I felt that she was
trying to do her best in a tough situation.”
JD(SF)-19-09
15
I credit Sandoval’s testimony. In March, Drake had no reason to suppose that
Sandoval was a union advocate, and it is reasonable for Sandoval to have presumed
that Drake’s inquiry was calculated to discern whether Sandoval supported the Union. In
this regard, it is significant that FMC managers and supervisors, including Drake, were
asked by FMC’s management consulting firm to report whether or not employees under
their supervision appeared to favor the Union. I find that Drake coercively interrogated
Sandoval regarding her union activity. By such conduct, FMC has violated Section
8(a)(1) of the Act.
Lydia Sandoval also testified that in March or April, apparently following her
conversation with Drake, supra, Sandoval went to Supervisor Auggie Robledo’s office to
ask him about a work-related matter. Sandoval testified that after discussing the work-
related matter, Robledo said he wanted to ask her something. He said the conversation
was just between the two of them. He said that he’d never worked with a union before
and wanted to know what it was like to work with a union. He asked what the union did
for us.23 Sandoval told him that the telephone company union represented the
employees, and pointed out a particular difficulty that she had had with a co-worker at
FMC, suggesting that if there had been a union at FMC it would have been there to
support her. Then she and Robledo just talked “about the pros and cons of the union.”
Robledo asked, “if I felt it was necessary to bring in a union to the hospital, if we had that
many problems or whatever.” Sandoval said, “Yes, definitely.” The conversation lasted
ten or fifteen minutes.
Sandoval has known Robledo for the six years she has worked at the hospital,
and they worked together as co-workers prior to the time Robledo became a supervisor.
They have a warm and friendly relationship and talk about non-work-related matters.
Sandoval sometimes refers to him affectionately in Spanish as “mi hijo,” meaning my
son. Robledo did not testify regarding this conversation, but did testify about his close
relationship with Sandoval.
I find that Robledo’s initial interrogation of Sandoval about her prior experiences
with a union while working for a former employer was not coercive; obviously Robledo
knew about Sandoval’s prior employment, and Robledo’s inquiry was innocuous and
clearly was not designed to elicit a response that would cause Sandoval to declare
whether she was for or against union representation in general, or at FMC in particular.
However, I find that Robledo coercively interrogated Sandoval later on during the same
conversation when he directly asked her if she felt it was necessary to bring a union into
the hospital. By such conduct FMC has violated section 8(a)(1) of the Act.
Alleged interrogation of Laverne Gorney: Laverne Gorney testified that sometime
during the course of the union campaign (Gorney was unsure of the month), in the
kitchen, Drake spoke to her about the Union and said to her, “There will be dues to be
paid. And once you join the Union you can’t come back to work here.” And, according to
Gorney, Drake also said, “You have to file paperwork with the National Labor Relations
Board to come back to work here.”

23 Sandoval, prior to her employment with FMC, worked for a CWA-unionized telephone
company. Sandoval does not know how Robledo became aware of this fact..
JD(SF)-19-09
16
Drake denies having a personal conversation with Gorney about the Union, and
denies making the statements attributed to her by Gorney. Gorney did not at all impress
me as a credible witness. Her memory was faulty and her testimony was inconsistent.
She did not know when the event happened, and first testified that she was alone in the
kitchen with Drake, while later testifying that Supervisor Mike Martin was present and
she had to ask him to explain what Drake was talking about. Moreover, the comments
Gorney attributed to Drake do not make sense standing alone, and Gorney did not
provide an explanation or context for them. I credit Drake. I shall dismiss this allegation
of the complaint.
Alleged interrogation of Ana Nez and Laverne Gorney: Ana Nez worked in the
dishwashing department. Nez testified that in March she and co-worker Laverne Gorney
had a brief conversation with Klein-Mark, a nutrition coordinator who had no supervisory
authority over kitchen employees.24 According to Nez, Kline-Mark approached them and
said, “Why are you going to vote for the Union.”25 Nez replied, “I will tell you the truth. I
am abused in this work environment. So I am going to vote for the Union.” Then, not
knowing who Klein-Mark was, Nez asked Klein-Mark whether she was going to vote for
the union. Kline-Mark said no, that she could not vote because she was a manager.
Kline-Mark handed them a piece of paper that apparently they did not read and threw in
the trash. Gorney did not say anything.
Gorney, who also works in the dishwashing department, testified that she does
not really know Kline-Mark. Gorney testified that Kline-Mark entered the kitchen,
introduced herself as a nutrition coordinator, gave Gorney and Nez pieces of paper, and
asked Nez, “Are you going to vote for the Union?” Nez said, “ Yes.” Kline-Mark replied,
“Do you not appreciate your jobs? Why would you want to vote for the Union.” Nez
replied she had undergone abuse on the job, and then said, “I have some complaints
filed on me. And I don’t appreciate that.” Kline-Mark said, “We should continue this
conversation in private, such as my office.” Nez declined, saying that she was busy at
the time and wanted to leave right away after work.
Kline-Mark testified the incident occurred on February 9. She was instructed by
Schuler to go to the kitchen and distribute and/or read from a letter from Hospital
President Bradel regarding a re-run CNA election. She approached Nez and Gorney,
who were not occupied with work at the time, and read the following sentences to them
from the letter, dated February 9, in order to let them know what the letter was about:
I’d like to give you an update on the situation with the new union election
ordered this week by the National Labor Relations Board. At this time, we
have received no communication from the NLRB regarding a date for the
new election.

24 I do not credit Nez’s testimony that she was wearing a union lanyard around her neck,
as union buttons and lanyards were not distributed to union supporters until July 16;
moreover, Gorney did not recall that Nez was wearing a union lanyard..
25 Initially, Nez was testifying through a Navaho interpreter. Asked to do her best to
testify in English, Nez said in English that Kline-Mark said, “What do you think about the
Union. Are you going to vote for the Union.”
JD(SF)-19-09
17
…FMC [has] requested the election be carried out as quickly as possible
so that nurses can once again express their opinion about union
representation.
Kline-Mark then gave the employees copies of the letter. Nez asked Kline-Mark whether
she was going to vote for the union. Kline-Mark said she could not vote because she
was a supervisor. There was no further conversation.
I credit the testimony of Kline-Mark. Kline-Mark appeared to be a credible witness
with a clear recollection of the incident, and the testimony of Nez and Gorney was
inconsistent. Further, the letter Kline-Mark read to the employees did not deal with the
CWA organizing campaign or an election among dietary employees. It is therefore
unlikely that Kline-Mark would have asked these employees how they intended to vote,
as no election in which they would have been eligible to vote was imminent or, insofar as
the record shows, even petitioned for by the CWA. And it is also unlikely that Kline-Mark
would have invited Nez to her office to discuss complaints against Nez, as testified to by
Gorney but not by Nez, as Kline-Mark had no supervisory authority over Nez. I shall
dismiss this allegation of the complaint.
Alleged prohibition against discussing wages: Heather Craig is a nutrition
assistant. She takes patient orders and delivers food trays to patients. Craig testified
that during a conversation with Kline-Mark, who at the time had stepped down from her
supervisory position, Craig mentioned she had been talking with Marilyn, a co-worker,
who had told Craig that she was receiving a higher base wage which reflected the fact
that she had past experience in food service. Craig then wondered why she, too, had not
received a commensurate wage for her similar prior experience in food service.
According to Craig, Kline-Mark replied, “we weren’t even supposed to be discussing
what we earn.”
Kline-Mark testified that Craig asked her why another nutrition assistant who had
the same experience as she did was getting paid more. Kline-Mark said she would look
into it with Drake. She asked Drake about the matter. Drake, in turn, said she would
look into the pay discrepancy with human resources, adding, “employees shouldn’t be
talking about their wages with each other.” Kline-Mark then related this conversation to
Craig, and “let her know that she shouldn’t be talking about wages with other
employees.” I find that by this statement Craig was indirectly advised by Drake, through
Kline-Mark, that it was impermissible for employees to discuss wages with other
employees.
In Lafayette Park Hotel, 326 NLRB 824, 826 (1998), the Board states:
…discussion of wages is part of organizational activity and employers
may not prohibit employees from discussing their own wages or
attempting to determine what other employees are paid. (Citations
omitted.)
Accordingly, I find that by such conduct FMC has violated Section 8(a)(1) of the Act.
The complaint alleges that, similarly, Supervisor Auggie Robledo, production
manager in the dietary department, instructed employees not to discuss their wages with
other employees. In this regard, Robledo’s affidavit states:
JD(SF)-19-09
18
I usually tell employees at the beginning of each [performance evaluation]
meeting that their evaluations and their raises are confidential and should
be kept to themselves and I remind them not to leave the evaluation
around because it is confidential.
Robledo confirmed during his testimony that this is generally what he tells employees
during their performance evaluations, but emphasized that what he means to relate to
the employees is that their evaluations are “confidential for me” and that he is not going
to divulge confidential information to other employees. While there is certainly a
significant discrepancy between what he tells employees and what he means to relate to
them, I shall rely upon his affirmation both in his affidavit and his testimony, and find that
employees would reasonably understand they are prohibited from discussing their
wages with co-workers. 26 I find that by such conduct FMC has violated Section 8(a)(1)
of the Act.
Alleged surveillance of Barbara Mesa: Barbara Mesa, an outspoken union
advocate, would conspicuously spend her 30-minute lunch period and two 15-minute
breaks every day at a table in the cafeteria, socializing and engaging in union-related
business with Union Organizer Scott Barnes and other employees who also congregated
at that same cafeteria table on a regular basis; other employees would sometimes just
briefly stop by to talk or pick up union flyers. Mesa testified she was sitting at the union
table in the cafeteria, which she occupied daily as an open and active union adherent,
when she observed Bradel pointing at or towards her, getting up from his chair, circling
the union’s table at which Mesa was seated, and then returning to his seat.
Bradel, who often eats in the cafeteria, recalled no such incident. Bradel testified
that on occasion he will acknowledge someone at the cafeteria entrance by pointing to
the person, which might make it appear he is pointing at the union’s table, and will on
occasion get up and walk behind the union’s table to speak with the individual; and
further, he will sometimes get up from his table, go to the food line or elsewhere, and
return to his table in a roundabout fashion which would make it appear that he was
circling the union’s table. Bradel denies singling out Mesa as a union proponent in the
cafeteria.
I shall dismiss this allegation. I credit Bradel’s testimony. Whatever Mesa
observed, it is too improbable that Bradel was attempting to single out Mesa as a union
adherent and cause her discomfort in such a bizarre and immature fashion, namely, by
pointing at her and then literally walking a circle around her table.
Alleged threat of loss of scheduling flexibility: The complaint alleges that
Supervisor Lisa Dominguez threatened employees with loss of scheduling flexibility if the
Union succeeded in its organizing campaign. Heather Craig, a nutrition assistant in the
dietary department, testified that in June, she and several other nutrition assistants were
working in the diet office. Their direct supervisor, Dominguez, was also present. As they
were working, according to Craig, they were engaged in general non-work-related
conversation, as it was customary to talk about personal or non-work subjects while
working. Craig mentioned the Union, and said she thought it wold be beneficial for the

26 Further, this comports with Drake’s direction to Kline-Mark; as noted, Drake, as
director of the dietary department, is Robledo’s superior.
JD(SF)-19-09
19
Union to come in and represent the employees. Dominguez replied “that she had just
gotten out of a meeting with Jeanine [Drake] and that Jeanine had told her if we got the
Union in that we would no longer be able to switch shifts and that our schedules would
be set.” Craig said, “ Oh, my gosh. Are you serious?” Dominguez responded, “that’s
what Jeanine had told her.” The other employees in the room also indicated their
surprise. According to Craig, “We couldn’t believe it.” Craig was very emphatic that
Dominguez said employees would not be able to switch shifts, rather than “may not be
able to switch shifts…”
Dominguez, contrary to the testimony of Craig, testified that during the
aforementioned colloquy in the diet office Dominguez told the employees she had no
problem with employees switching shifts, but that flexibility could change if the Union
came in.
Craig appeared to have a very specific and comprehensive recollection of the
conversation, and was emphatic that her version of the conversation was the correct
one. I credit Craig. However, in agreement with FMC’s analysis of this issue in its brief, I
find that the employees could have reasonably understood that the statement, “if we got
the Union in that we would no longer be able to switch shifts and that our schedule
would be set,” was intended to relate what the Union would do to scheduling flexibility,
not what FMC would unilaterally do. The practice of employees switching shifts among
themselves, which insofar as the record shows occurred on a regular basis, was
obviously advantageous for both the employees, who could find a substitute when they
needed time off, as well as for FMC, as the practice would minimize scheduling
difficulties; clearly the employees recognized that FMC would be reluctant to unilaterally
change a practice that benefited itself. I find that the employees could have reasonably
understood that the statement did not imply that FMC “may or may not take action solely
on [its] own initiative,”27 bur rather conveyed Drake’s assessment of working conditions
under a union contract. Accordingly, I find the statement did not constitute a threat to
retaliate against employees if they brought in the Union, 28 and I shall dismiss this
allegation of the complaint.
Alleged banning of photo-taking: It is alleged that FMC banned the use of
cameras at work for discriminatory reasons. Patsy Crofford, vice president of human
resources for Northern Arizona Healthcare, FMC’s parent organization, testified that in
April, three months before an updated portable electronic equipment policy was issued,
NAH personnel began a review of existing policy for FMC and another NAH hospital
regarding patient privacy matters. This review was precipitated by an incident in one of
the critical care units: a visitor had taken photos with a cell phone camera of a patient,
other visitors in the patient’s room, and some of the FMC staff. The prior policy did not
address the use of cell phone cameras or certain unrelated concerns, namely, that
certain other portable equipment could present safety issues if used by hospital staff
during work time. Regarding the use of cameras, Crofford testified that inpatients and
outpatients move throughout the hospital campus, inside and outside of campus
buildings, often wearing only street clothes, and it can not be determined whether a
person is a patient, family member, or visitor. The updated policy, according to Crofford,
that simply prohibits photography in general anywhere on hospital premises, was

27 NLRB v. Gissel Packing Co., 395 U.S, 575, 618 (1969). As the Court states, at p. 619,
the focus is on “what did the speaker intend and the listener understand?”
28 See Maestro Café Associates, Ltd. 270 NLRB 106, 108 (1984).
JD(SF)-19-09
20
designed to assure that “we never had a picture taken that had a patient inadvertently or
consciously walking by and included in that picture.”
The updated policy, entitled “Telephone, Cell Phone and Other Portable
Electronic Equipment,” is as follows:
The use of portable electronic equipment including, but not limited
to CD players, iPods, MP3 players, or cameras during work time is
not authorized. The use of cameras for recording images of
patients and/or hospital equipment, property, or facilities is
prohibited.
Contrary to the contention of the General Counsel, there is no evidence the old
policy was revised because of Mesa’s activities. Mesa’s testimony that she took a photo
of Bradel at a group meeting, or her uncertainty regarding whether or not she showed a
photo of her locker to hospital security personnel29 to document that someone had been
rummaging through her locker, is insufficient to show FMC was aware that Mesa used
her cell phone to take photos in or around the hospital. And assuming arguendo the
Respondent was aware of Mesa’ photo-taking activities, and further, assuming arguendo
that such photo-taking constituted union or concerted activities, 30 the evidence does not
show the revised policy was in response to such activities. Rather, I find, the revised
policy was motivated by lawful business considerations designed to resolve the
legitimate patient privacy concerns described by Crofford.
The General Counsel also maintains the policy is overly broad and limits
employees’ Section 7 rights. It does not appear that the policy, on its face, would likely
have a chilling effect on employees’ Section 7 rights, as the specific right to take photos
in the workplace would not reasonably seem to come to mind as an inherent component
of the more generalized fundamental rights of employees set forth in Section 7 of the
Act. However, it is clear that FMC may not utilize this policy, specifically designed to
protect patient privacy, for purposes inimical to the Act. Thus, FMC may not interpret the
policy to prohibit employees from engaging in legitimate union-related activity such as,
for example, taking photos of hospital bulletin boards, or unsafe working conditions, or a
gathering of employees at the union table in the cafeteria, unless patient privacy is
compromised. See Lutheran Heritage Village-Livonia, 343 NLRB 646, 646-7 (2004);
Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). I
shall dismiss this allegation of the complaint.31
Alleged unlawful warning to Lydia Sandoval: The complaint alleges that
Supervisor Frances Otero, a lead cook in the dietary department, unlawfully admonished
Lydia Sandoval for engaging in union solicitation in the kitchen. Sandoval is a dietary
employee. Sandoval testified that in late summer, after finishing her shift, she did not

29 Mesa testified she “may” have done so.
30 FMC further argues in its brief that Mesa’s foregoing use of her cell phone camera did
not constitute union or protected concerted activity.
31 The following cases cited by the General Counsel are inapposite: The Loft, 277 NLRB
1444, 1461 (1986); Automatic Screw Products, Co., 306 NLRB 1072 (1992). These
cases deal with rules that, on their face, prohibit employees from engaging in concerted
activity, namely, discussing wages with co-workers; conversely, taking photos may or
may not be concerted activity, depending on the circumstances.
JD(SF)-19-09
21
leave the premises but rather waited for another employee, Mary Karlovits, to come on
shift in order to request that Karlovits sign a petition for the Union. Supervisor Otero, in
the serving area in the kitchen, asked Sandoval why she was still there. Sandoval said
that she had a gift for Karlovits, a candle that she had brought back for her from
vacation. While this was true, Sandoval did not tell Otero about the petition. After
Karlovits arrived, Sandoval engaged her in a conversation, and apparently took out the
petition that she had hidden in a book, to present to Karlovits. While they were
conversing, Otero approached and said, according to Sandoval, “I thought you were
going to give her a present. If this is what you wanted, then leave…you can come back
when Mary is on her break.” Sandoval said she was off the clock. Otero replied that
Karlovits was on the clock. Otero, according to Sandoval, said she was not going to
report this incident, but that she would if it happened again. Sandoval then left the
premises.
Otero testified that when Karlovits arrived at work Otero briefly spoke with her
about work-related matters. Otero then began performing other duties, assuming that
Sandoval would be on her way after only a brief exchange with Karlovits. About 15
minutes later she observed Sandoval and Karlovits talking in a kitchen working area.
Otero did not see a candle, but she did see that Sandoval had some paperwork in her
hand. Believing that the two had been talking for 15 minutes, she told Sandoval to leave,
advising her she could come back and talk to Karlovits when Karlovits was on her break.
Sandoval replied that she did not intend to come back, as Karlovits’ break was not until
much later. Then Sandoval left. Otero testified that she did not say anything about
reporting Sandoval; that, although she knew Sandoval was a union supporter, there was
no mention of the union; and that she has never permitted an on-duty employee to stop
working and talk to a non-working employee for an extended period of time, such as 15
minutes, because employees need to be working.
I credit Otero’s testimony. The restriction Otero placed on Sandoval was not
imposed to discourage organizational activity. Rather, I find, by asking Sandoval to leave
Otero acted for legitimate business reasons, namely, to put and end to the 15-minute
disruption of Karlovit’s work regardless of the nature of their discussion. I shall dismiss
this allegation of the complaint. Brigadier Indus., 271 NLRB 656, 657 (1984). The case
cited by the General Counsel, Cast-Matic Corporation, 350 NLRB 1347, 1354-5 (2007) is
inapposite.
Alleged unlawful warning to Paula Souers: The complaint alleges that
Supervisor Frances Otero, a lead cook in the dietary department, unlawfully admonished
Paula Souers for engaging in union solicitation in the kitchen. Otero testified that she
observed Souers, an off-duty dietary department nutrition assistant, in the kitchen area,
with papers in her hand, talking to several different employees “for a very extensive
amount of time,” estimated by Otero to be about 30 minutes. Otero had observed
Souers in the kitchen area off and on over this period of time but, believing that the
conversations would be brief, did not tell Souers to leave the kitchen because chatting
for a minute or two is permitted.32 Finally, Otero told Souers she should not be disrupting
the employees while they are working, and Souers left the kitchen.

32 Current off-duty dietary employees, but not other employees, were permitted to come
into the kitchen area to check their mail, pick up a paycheck, and briefly exchange
pleasantries with on-duty employees.
JD(SF)-19-09
22
Souers admitted she was engaged in union solicitation on this occasion, and
further testified on cross-examination as follows:
Q. On at least one occasion in July of 2007, you were in the kitchen proper
where food is prepared and you were talking to employees while off duty for
approximately 30 minutes. Is that true or false.
A. I don’t remember.
Q. It could have happened?
A. It could have.
Drake testified as follows regarding the matter:
In this instance, it was an extensive amount of time, and disrupted the
kitchen where Frances [Otero] was having a hard time getting everybody
to get their work done that day, and both Auggie [Robledo] and Frances
had reported it or discussed it with me, after the incident.
I find that Souers was disrupting the work of the kitchen employees for an
extended period of time and that Otero admonished her for doing so. I shall dismiss this
allegation of the complaint.
Alleged unlawful banning of Barbara Mesa from the kitchen: The complaint
alleges that Otero unlawfully banned Mesa from the kitchen and from speaking to
kitchen employees during their working time. Otero, encountering Mesa, a housekeeping
department employee, talking in the kitchen to an on-duty kitchen employee, told Mesa
she could not be there as she had no business in the kitchen, and walked Mesa out of
the department. Otero testified she has never permitted any non-kitchen employee to be
in the kitchen, because, “I don’t think that any non-kitchen employee has any business in
the kitchen because they could be a distraction or disruption to the other employees if
people are just coming in and out of the kitchen at freewill.” Contrary to the testimony of
Mesa, Otero testified she instructed Mesa to leave the kitchen because she should not
be there, and did not say, “You are not allowed in here to talk to those employees.”
Shawn White, a union supporter, admitted that non-kitchen employees or employees
who have no business in the kitchen are not allowed in the main kitchen area.
Regardless of the words Otero may have used in requesting Mesa to leave the
kitchen, it is clear that non-kitchen employees are not permitted in the kitchen area for
any reason. Employees are aware of this rule. Further, there is no evidence the rule
was designed to exclude employees for other than legitimate business reasons, as it
makes sense that to indiscriminately permit any of FMC’s several thousand employees
to enter the kitchen and converse with kitchen employees would not be conducive to the
efficient operation of the kitchen. The General Counsel maintains that Otero has made
exceptions to this rule in certain instances, for example, permitting Mesa to be in the
kitchen to solicit for the United Way campaign, or permitting Robledo’s girlfriend, a
nurse, to visit with Robledo in the kitchen area. Regarding visits by Robledo’s girlfriend,
Otero testified she was not aware of such visits. Regarding Mesa’s soliciting for the
United Way campaign in the kitchen or elsewhere, the employer may permit such
charitable solicitations on an ad hoc basis without negating an otherwise legitimate
exclusionary rule. See Hammary Mfg. Corp., 265 NLRB 57 (1982); Zurn/N.E.P.C.O., 345
NLRB 12, 14 (2005). Accordingly, I shall dismiss this allegation of the complaint.
JD(SF)-19-09
23
Alleged threats, surveillance and disparagement of the Union by Supervisor
Otero: The complaint alleges that during a conversation in the cafeteria, Otero
threatened employees, gave the impression she was engaging in surveillance of their
union activities, and disparaged the Union. The evidence shows that while Otero was
sitting at a table in the cafeteria with Souers, Mesa, and Heather Boardwell, three overtly
active union adherents, Souers asked Otero why she had been told that she could not
enter the kitchen or the cafeteria when she was off duty.33 Otero, according to Souers,
replied that Souers could not go into the kitchen because people had been complaining
that “We were pressuring them about the Union”; however Otero expressed surprise that
Souers was not permitted to enter the cafeteria. Mesa’s testimony differs from that of
Souers. According to Mesa, Otero responded to Souers’s question as follows: “Well,
you must have done something wrong that they are not allowing you in there.” Otero
denied making either statement. Otero testified that in response to Souers question, she
said she did not know why Souers could not go to the cafeteria or the kitchen, and did
not know who told her that. At some point, according to the testimony of both Souers
and Mesa, Otero said “everybody knows that you, Shawn (White), and Heather
(Boardwell) are the [union] pushers.” Otero denies making this statement. Then, later,
toward the end of the conversation, Boardwell asked why management assumed
everything the three employees were doing was union business, as they could in fact
just be talking about the Arizona Diamondbacks. Otero testified she replied as follows to
this question: “I think you are discussing things that you shouldn’t be discussing,
because every time I come around the corner you scatter like cockroaches.” Then she
added, “Don’t get me wrong. I am not saying that you are like cockroaches,” and she
said to Heather, I am not calling you cockroaches.” Boardwell, according to Otero,
acknowledged this disclaimer, saying, “I know.” Boardwell did not testify, and neither
Mesa nor Souers denied that Otero said she was not calling them cockroaches. Otero,
during her testimony, said that she was merely using this phrase as a descriptive figure
of speech, rather than as a personal reference, and her disclaimer to the employees
supports her testimony.
The testimony of Mesa and Souers differs, and I am unable to credit either
account. I credit Otero and find she said she did not know why Souers could not enter
either the kitchen or the cafeteria while off duty. Further, even if Mesa’s account should
be credited, Otero’s response that Souers must have done something wrong to be
prohibited from entering the kitchen while off duty is no more than speculation on Otero’s
part; thus, Otero, by the very nature of her alleged answer to Souers’s question, made it
clear that she was unaware of what Souers was talking about. Assuming arguendo that
Otero, referring to the four named employees, said everyone knew they were “the union
pushers,” I find this statement is not violative of the act. The statement was
unthreatening; abundant record evidence amply demonstrates that in fact the named
employees openly identified themselves as union activists, campaigned in favor of the
Union, and frequented the union table in the cafeteria; and indeed the named employees
must have known, by the very nature of their conspicuous efforts on behalf of the Union,
that it was common knowledge they were in fact the leading union proponents. Finally, I
find that Otero, realizing her utterance about cockroaches could be deemed offensive,
pointedly told the employees her reference to cockroaches was not personal or intended
as an insult. I shall dismiss these allegations of the complaint.

33 I have found above that Drake did not make such statements to Souers.
JD(SF)-19-09
24
Alleged threat and interrogation by Manager Drake: In August, Mattie Martinez,
a recently hired employee, was going through an orientation process in the dietary
department as a nutrition assistant. Martinez testified that Jeanine Drake, while showing
her bulletin boards containing both union material and FMC material, told her there was
information on both sides to read about, and that the Union would make a lot of claims
that aren’t true. Then, according to Martinez, Drake “asked me about if anyone had
talked to me about the union at all there.” Martinez said yes. Drake asked her who. Not
wanting Drake to know she favored the Union and not wanting to reveal the name of a
union supporter, Martinez instead named her friend, an employee she believed to be
against the Union. According to Martinez, she did not believe this response would
reflect unfavorably on her friend. Drake, according to Martinez, said she was surprised,
as she knew the individual named by Martinez was anti-union. Drake continued, asking
Martinez whether anyone else had talked to her about the Union. Martinez said no.
Martinez further testified that either during the same conversation or the day before
during lunch, Drake said, “That it is possible for a union to provide a raise to the people
in the union that are also in the department, but because there’s just a certain budget
that they have that they were going to have to let people go if that was the case.”
Martinez, as the last person hired, understood Drake to be telling her she would be the
first fired in this eventuality.
Drake testified that during the orientation process, as she was showing Martinez
the union bulletin board, she asked Martinez whether she had heard about the Union,
but did not ask her to identify anyone who may have spoken to her about the Union.
Regarding the union, Drake told her, “that there was postings [from the Union]…and that
the hospital had informational bulletins and that she needs to get the facts about the
union and make her own decision.” Drake denies saying anything to Martinez regarding
the possibility of job loss due to budgetary considerations as a result of unionization.
I credit the testimony of Martinez, who appeared to have a clear recollection of
her conversation(s) with Drake. It is unlikely that Martinez would have fabricated a
scenario that was as detailed, specific and plausible, even to the point of causing her
consternation as she attempted to evade Drake’s questions. Further, it appears that
Martinez, during her testimony, was attempting to formulate accurate responses; thus,
on direct examination, she volunteered that she was not sure on which occasion Drake
cautioned her about layoffs. I find that FMC has violated Section 8(a)(1) of the Act by
coercive interrogation, and by threatening that unionization, resulting in wage increases
for some employees, would cause the layoff of newly hired employees as a result of
budgetary considerations.34
Alleged unlawful monitoring and restricting employees from ED break room: The
complaint alleges that on August 19, FMC supervisors and a security guard unlawfully
prevented employees from engaging in union activity in the emergency department
break room. FMC admits the underlying facts, namely that employees Ed Gorney and
Shawn White, wearing FMC identification and also union buttons, were asked to leave

34 I do not find Drake also created the impression of surveillance of employees’ union
activities by advising Martinez that Drake knew the employee named by Martinez did not
favor the Union; such a statement, without more, does not necessarily imply that Drake
acquired this knowledge as a result of surveillance of employees’ union activities; in any
event, this would not affect the remedy, as other instances of surveillance have been
found herein.
JD(SF)-19-09
25
the secure ED break room, where they had been admitted by emergency room
employees. During shift change, emergency department employees regularly enter and
exit the break room to get coffee, and pass through to adjacent locker rooms. Also, there
is apparently a CNA union bulletin board in or near the break room.35 I credit the
testimony of White and Gorney and find that during the incident they were precluded
from passing out union literature and/or a union petition to some five employees who
had entered or exited the room.
FMC acknowledges that Gorney and White were mistakenly asked to leave the
break room. However, that particular matter was rather quickly resolved. Several
supervisors apologized to Gorney and White, and within an hour or so they were again
back in the break room speaking to employees on behalf of the Union without further
incident that day.
However two days later another similar incident occurred. Shawn White and
Paula Souers, both wearing FMC identification and union buttons, entered the ED break
room about 6:30 a.m., around shift change, to inform employees about the Union and
request them to sign an organizing petition. They were admitted to this area by
emergency room employees. They set some union fliers out on the sofa and were
approached by Ashley Peak, a clinical coordinator and supervisor in the ED. Peak
asked what they were doing there, and they said they were there to distribute union fliers
and inform people about the Union. Peak said they were not allowed in a locked break
room. White explained what had happened two days before, and advised Peak that
non-emergency department employees were authorized to engage in union activity in
any non-patient, non-work area throughout the hospital, including the ED break room.
Peak replied that ED employees’ personal belongings were in or adjacent to the break
room, that things had been stolen, that she did not feel comfortable with them remaining
there by themselves, and she did not intend to leave them alone in the room. Peak
remained in the room and worked on paperwork at a table about ten feet away, and,
according to White, “basically monitored Paula and I while we were in there.” While
Peak was sitting there, employees would come in and talk to her about things; and
sometimes Peak would leave the room for a few minutes and then return. As a result,
the recruitment efforts of White and Souers proved futile, as it was apparent that the
presence of Peak made the employees uncomfortable.
After a while another clinical coordinator, Lindy Turley, also a supervisor, came
by and, prior to observing White and Souers, removed a union notice from a hallway
bulletin board, placing it on an adjacent union bulletin board that happened to be behind
an open door, Turley said, “That’s where it goes.” This notice, worded “Sign a Petition
Today,” had been placed there earlier by White and Souers before they entered the
break room that morning. Turley did not say anything to White or Souers, and both she
and Peak remained in the break room at a table; on occasion one of the two would exit
the room for a short time and then return and occupy the table. They did this over the
course of approximately 40-minutes to an hour while White and Sauers remained there.
Finally White and Souers left, as it was apparent that no employees were willing to
speak to them in front of Peak and Turley.

35 Insofar as the record shows, only emergency department nurses use the break room,
and apparently White and Souers were simply interested in getting nurses to support the
separate organizing efforts of dietary, housekeeping, and other ancillary services
employees.
JD(SF)-19-09
26
The above evidence presented by the General Counsel stands unrebutted, as
FMC proffered no witnesses regarding this matter. I find that even if Peak had a
genuine concern about protecting employees’ property, her continual presence in the
break room, together with Turley, was unwarranted; thus, White and Souers, although
unknown to Peak, were no more suspect than any other FMC employees who were
authorized to use the break room, and there was no showing that the break room was
continuously monitored during other shift changes. Further, White and Gorney were not
similarly monitored two days earlier. Accordingly, while the August 19 incident was
diligently resolved, FMC engaged in similar conduct just two days later. Therefore,
contrary to FMC’s position, I find there was no effective repudiation of the August 19
incident, as on both occasions employees were effectively precluded and/or inhibited
from promoting the Union in the ED break room. On the basis of the foregoing, I find
FMC has violated Section 8(a)(1) of the Act by prohibiting employees from engaging in
union activity in the ED break room, and by monitoring and engaging in surveillance of
the union activities of employees in the break room.36
Alleged unlawful installation of surveillance camera: The complaint alleges that
FMC installed a surveillance camera in the cafeteria directly above the table occupied by
Barns and other union supporters in order to monitor their union activities. Patsy
Crofford, Vice President of Human Resources for Northern Arizona Healthcare, testified
that since at least March 2006, a year or so prior to the time the Union began its
organizing campaign, there had been a surveillance camera at that particular location,
as well as at other locations in the cafeteria. At some point the camera above the union
table had malfunctioned, and it was replaced. There was no new installation of an
additional camera in the cafeteria after the advent of the Union. There is no contrary
evidence. I shall dismiss this allegation of the complaint.
B. Alleged Section 8(a)(3) Violations
Alleged change to Lydia Sandoval’s schedule and work assignment: The
complaint alleges that FMC changed the work schedule and work assignment of Lydia
Sandoval in retaliation for her union activity. Sandoval, a day shift dietary employee,
worked on the day shift (from 6:00 a.m. until 2:30 p.m.) in the kitchen and cafeteria area
primarily preparing and serving food. In March, after Manager Drake and Robledo
became aware of her support of the Union, she was transferred to a later shift (from
11:00 a.m. to 7:30 p.m.).
Robledo testified Sandoval was transferred for various reasons: The grill cook
was complaining that Sandoval, who was supposed to be helping him serve the omelets
he prepared while customers were waiting at the counter, could not rely on Sandoval to
be at her station. Sometimes Sandoval would “disappear” for a half-hour or even longer.

36 Contrary to the position of the General Counsel, I do not conclude the facts warrant a
finding that Peak engaged in unlawful interrogation by asking what the employees were
doing there, or that Peak disparaged the Union by stating she was uncomfortable
leaving White and Souers in the room alone because of prior instances of theft. Nor do I
find that Turley violated the Act by removing the notice posted by White and Souers and
by repositioning it to the bulletin board designated for union messages; there is no
complaint allegation that FMC had deliberately obscured the union bulletin board for
unlawful purposes.
JD(SF)-19-09
27
This was a big problem for the grill cook, who frequently complained. And customers,
who had only a limited amount of time before work, also complained they were having to
wait too long. As a result, Robledo repeatedly admonished Sandoval for this, and
reported the matter to Drake. Further, the “presentation cook”, who was to prepare food
in front of customers during the lunch and dinner period, began work at 11:00 a.m., but
was not being kept busy with food orders particularly during the dinner hours, and was
underutilized. Therefore, it was decided to transfer the presentation cook to the early
shift so that he could assist the grill cook in preparing omelets and other food in front of
the customers; this would keep the presentation cook busy as, apparently, he would also
help serve the food he and the grill cook were preparing. It would also bring in more
revenue, as the cafeteria could introduce specials, prepared by the presentation cook, in
order to draw customers. And it was decided to change Sandoval’s shift to a later time
so that, in addition to food preparation, she would be able to assist with the catering,
apparently setting up and/or bringing food to various groups in or around the cafeteria or
hospital as, according to the uncontroverted testimony of Robledo, Sandoval was very
knowledgeable about the catering end of the business. 37 Robledo testified that
Sandoval’s union activity played no part in the decision to transfer her to the later shift. I
credit this testimony of Robledo. There is no contrary evidence.
There is no contention that Sandoval is dissatisfied with her work assignments on
the later shift. However, she apparently maintains that as a result of vision problems she
has difficulty driving at night, and, in addition, she simply prefers the earlier shift so that
her nights are free. Regarding the matter of driving at night, the record shows that in the
winter it is just as dark at 5:00 a.m., when Sandoval drives to work, as it is a 7:30 p.m.,
when she now gets off work.38 Regarding the fact that she prefers to work the early
shift, she was in fact given this option by Robledo, but, as she would no longer be
assisting the grill cook, part of her new duties would be to wash dishes. Sandoval, not
wanting to wash dishes, declined, and opted to remain on the later shift.
FMC presented cogent, persuasive evidence in support of its position that
Sandoval’s transfer to the later shift was motivated by legitimate business exigencies,
rather than in retaliation for being pro-union. I shall dismiss this allegation of the
complaint.
Alleged modification of Laverne Gorney’s work schedule: The complaint alleges
that FMC modified Laverne Gorney’s work schedule in retaliation for her union activity.
Gorney, who has worked for FMC for over ten years, testified that for the last two years
she had been washing pots and pans in the dishwashing department. Although she
worked weekend shifts (Saturday or Sunday) “quite a few” times during the year, she
customarily worked only Monday through Friday with relatively few assigned weekend
shifts. Beginning in June, however, at about the time her union activity on behalf of the
CWA became generally known, she was assigned three or four Saturday and/or Sunday
shifts per month. This was very unusual.

37 Sandoval admits that the grill cook warned her about being away from her assigned
workstation, and answered, “Yes” to the following question: “And you remember that
Auggie [Robledo] also mentioned to you a couple or three times that you needed to be
out serving the customers and that you were disappearing or weren’t at your work
station, and he counseled you about that, didn’t he?”
38 Further, the record shows that Sandoval does drive at night to play bingo or for other
social purposes.
JD(SF)-19-09
28
While Gorney’s complaints about her schedule change are somewhat difficult to
understand, it appears that her principal complaint is not that she was required to work
more Saturday or Sunday shifts, but rather that Drake, manager of the dietary
department, made the schedule changes without first consulting her. However, insofar
as Gorney’s testimony is understandable, Drake had always made such schedule
changes without consulting the dietary employees, and this had always irritated Gorney
well prior to her union activity. Thus, Gorney testified that she, as well as other dietary
employees, were treated similarly: “Anything we say, she [Drake] doesn’t listen to us.
She didn’t check with me. But she is the boss. And that is her way.”
Gorney, acknowledging that Drake changed the schedules of other employees at
the same time, testified the job duties of the others remained the same, whereas only
her job duties changed. Attempting to explain this, Gorney testified she had been
accustomed to performing only one job task during her Monday through Friday shifts
(washing pots and pans), whereas the particular weekend shifts to which she was
assigned required that she perform various job tasks, apparently because fewer
employees worked during the weekend. Gorney testified that because she was unable
to complete certain tasks before having to begin the next one (she was neither asked the
nature of these tasks, nor was she asked why she was unable to complete them), she
felt “confused” or perhaps frustrated. However, she later seemed to recant this
testimony. Thus, on cross-examination, Gorney testified she did not feel confused about
her job duties; rather she was simply irritated that she had not been consulted prior to
the time her schedule and/or job duties were changed.
There is no evidence that Gorney’s weekend job duties were more taxing or
difficult than her weekday job duties, or that her alleged inability to complete the
assigned weekend tasks was other than systemic and applicable to all employees who
were assigned to that particular weekend shift, or that she was criticized or warned
about any work-related deficiencies after being assigned weekend shifts. Further, only
four of Gorney’s 20 shifts per month were weekend shifts; thus, the great majority of
Gorney’s shifts continued to be weekday shifts.
The Respondent’s work rules state: “…employees may be required to work
different hours, shifts, overtime, holidays and weekends, as the workload
necessitates…There can be no guarantee that an employee will remain on any of the
three shifts or that the employee will always have certain days off.”
It appears that Drake has unilaterally changed Gorney’s schedule over the years
without first consulting Gorney. While the monthly scheduling records show that in fact
Gorney was assigned more weekend shifts beginning in June, at a time when Gorney’s
union activity was known to Drake, there simply is no probative evidence showing that
the change in Gorney’s schedule and/or job duties in June was motivated by unlawful
considerations.39 Accordingly, I shall dismiss this allegation of the complaint.
Alleged subjecting Dale Mackey to more onerous working conditions: The
complaint alleges FMC subjected Dale Mackey to more onerous working conditions in
reprisal for his union activity. Mackey has worked in the dietary department since about

39 Indeed, in about August, Gorney and others volunteered to accept additional hours of
work.
JD(SF)-19-09
29
2004. He is the only utility aide, a special job designation designed specifically for
Mackey due to certain disabilities, including a stroke that has affected his short-term
memory. He has multiple duties: while in the kitchen he removes trays, utensils, dishes
and trash from the cafeteria conveyor belt, discards the trash, and washes the trays,
dishes and utensils, apparently by putting them in dishwashers. When working in the
cafeteria he sweeps and mops the dining room floor, cleans tables, straightens and
wipes down the chairs, and empties trash receptacles. And primarily during the summer
months, when cafeteria customers use the outside patio tables, he similarly sweeps the
patio, cleans the seven patio tables, and empties the two patio trash receptacles.
Mackey began wearing a CWA badge on a lanyard in June or July. Drake,
according to Mackey, asked him whether he knew about the Union. He replied that he
had once been in a union and liked it because the employees got better raises. Drake
said she didn’t like the union, and, according to Mackey, “looked sort of upset” and just
dropped the subject. About a week later, Drake brought in a paper about union matters,
and read something to him about management rights and Indian tribes.
The complaint alleges Mackey was subjected to more onerous working
conditions in retaliation for his union activity. A composite of the testimony of Drake and
Robledo shows the following: The lunch period in the cafeteria begins at 11:00 a.m. and
continues until 2:00 p.m., at which time the cafeteria is closed to customers until it
reopens at 2:30 p.m. The cafeteria becomes increasingly busy throughout the lunch
period, and is apparently at its busiest during the hour or so before it closes. Mackey’s
half-hour lunch break, from 1:30 to 2:00 p.m., coincided with the busiest time, and at
2:00 p.m., when he returned from his lunch break, he was overwhelmed with work
because at that point he had two jobs to do in the short time before the cafeteria
reopened: to finish clearing off the conveyor belt that was usually loaded with trays and
dishes of customers who were leaving the cafeteria before it closed, and to sweep and
mop the cafeteria floor so that it would be dry by 2:30 p.m. when the cafeteria reopened.
Because Mackey had trouble completing both of the aforementioned duties in the time
allotted, it was decided to change his lunch break to 11:00 a. m., when the cafeteria was
least busy, so that he would be working during the busiest part of the lunch period when
he was most needed; and to give him a 15-minute break at 1:30 p.m. (instead of a 30-
minute lunch break), so that from 1:45 p.m. until shortly after 2:00 p.m. he could
complete his job of clearing the conveyor belt and, as soon thereafter as possible, begin
sweeping and mopping the cafeteria floor.
Drake and Robledo deny that the change to Mackey’s schedule was motivated
by his support for the Union. While acknowledging that Mackey is kept busy and has
many varied duties to perform in and around the cafeteria, they maintain that changing
Mackey’s lunch schedule helps the efficiency of the cafeteria operation, gives Mackey
fifteen additional minutes to clear the conveyor, and also lessens Mackey’s anxiety
about having sufficient time to sweep and mop the floor in a timely fashion.40 And,

40 Robledo testified that Mackey is slow in doing his work, and is so forgetful that
Robledo must reminded him several times each day what he is supposed to do or what
he has forgotten to do. Further, according to Robledo, Mackey always complains, or
“nags” about the amount of work he is given and his inability to complete it. Indeed,
Mackey admitted he has always had trouble getting things done in the afternoon ever
since he started working for FMC; that he sometimes receives help from other
employees or supervisors; and that when he complains to Robledo about his inability to
JD(SF)-19-09
30
consistent with the testimony of Drake and Robledo, Mackey also testified that the lunch
break change has enabled him to keep up with the trays and dishes on the conveyor
belt: “…when I have an early lunch, I can keep up with it, but when I had [lunch] before
at 1:30 I couldn’t.”
I credit the testimony of Drake and Robledo. Both gave convincing accounts of
the rationale for changing Mackey’s lunch break. Further, although Mackey can not
always complete all the jobs assigned to him, it is clear that he has not been warned or
reprimanded or otherwise counseled for any work-related deficiencies; rather, he is
simply advised to do the best he can. Also, it is noteworthy that no other employees
have suffered adverse consequences because of their union activity, and it is unlikely
that FMC would single out Mackey as the sole recipient of discriminatory treatment.41 I
shall dismiss this allegation of the complaint.
Alleged unlawful negative appraisal to Paula Souers: The complaint alleges that
Drake issued Souers an unwarranted negative appraisal and restricted her from
speaking to her coworkers. On August 10, approximately 10 days after Souers was
asked to leave the kitchen by Supervisor Otero, supra, Drake presented Souers with her
annual job performance evaluation. Also present during the meeting was Nutrition
Services Director Sheila Walsh, who had been hired only four days earlier. Drake
invited Walsh to the meeting so that she could observe how Drake performed annual
evaluations. Drake, who described Souers as a good employee and wrote many
complimentary comments about Souers in other sections of the evaluation, gave her a
lower rating (“needs improvement”) on one portion of the evaluation, stating under the
commentary section:
You understand patient confidentiality.42 You recorded a staff meeting
without permission from the personnel attending which is against HR.
Policy 10-4: “No employee will tape record a meeting or any other
conversation that occurs in the work place without the express written or
verbal consent of all attendees of the meeting or participants in the
conversation. Failure to do so will result in disciplinary action.”43
You need to conduct off work business in public areas and not interfere
with employees during their shifts.
Souers testified that she asked Drake what she meant by the sentence, “You need to
conduct off work business in public areas and not interfere with employees during their
shifts.” Drake replied, according to Souers, “that means you cannot come into the
kitchen when you’re not scheduled for work.” Souers disagreed, saying she could be in
the kitchen while off-duty so long as she had her employee badge and identification.
Drake said no. And Drake further said, according to Souers, that Souers was not
permitted in the café, apparently meaning the cafeteria, on her days off, and that Drake

do everything that is expected of him, Robledo does not give him warnings or
reprimands, but simply tells him to do the best he can.
41 Mackey complains that the change to his lunch schedule has lessened by 15 minutes
the time he has to socialize with his friends at 1:30 p.m. While this may be correct, it
simply is an incidental consequence of the more pressing considerations set forth above.
42 This is a positive rather than negative evaluation.
43 There is no complaint allegation regarding this incident, and no suggestion by the
General Counsel that this criticism of Souers was unwarranted.
JD(SF)-19-09
31
didn’t want her talking to Shawn White, another union supporter, who works in the grill
area of the cafeteria, or Richard, apparently another union supporter, who works in the
sandwich area of the cafeteria.
Drake and Walsh testified that Drake did not make the forgoing remarks
attributed to her by Souers. I credit their testimony. Both Drake and Walsh appeared to
be forthright witnesses with clear recollections of the 30-minute meeting. Further, it is
highly unlikely that Drake, who knew Souers to be one of the Union’s most active
proponents, would have formulated special exclusionary and no-talking rules, applicable
only to Souers and no other employees, that are patently contrary to the established
work rules for kitchen employees.
I find the negative appraisal issued by Drake to Souers was warranted as a result
of Souers’s disregard for well-established and lawful work rules that limited kitchen
conversation between on-duty and off-duty kitchen employees to relatively brief
exchanges. I do not find, as the General Counsel contends, that by counseling Souers to
“conduct off work business in public places and not interfere with employees during their
shifts,” Drake was referring solely to union solicitation. Rather, I conclude that Drake was
referring to the 30-minutes Souers spent in the kitchen during which time, regardless of
the nature of Souers’ “off work business,” Souers was interfering with the work of
kitchen employees. I further find that Drake did not impose other restrictions on Souers
or tell her she could not speak to other employees who worked in the cafeteria. I shall
dismiss these allegations of the complaint.
5. Additional Alleged Violations by FMC/Sodexho
A. Alleged Section 8(a)(1) Violations
Alleged surveillance of Barbara Mesa and others: As noted above, Barbara
Mesa, an outspoken union advocate, would conspicuously spend her 30-minute lunch
period and two 15-minute breaks every day at a table in the cafeteria, socializing and
engaging in union-related business with Union Organizer Scott Barnes and other
employees. Mesa testified that one day while she was with Barnes at the union’s table
in the cafeteria, she observed EVS Director Vivian Kasey, who was some 20 feet away
from Mesa’s table, standing with her arms crossed, looking at Mesa with an “I see you ”
expression on her face, apparently intended to indicate disapproval of Mesa’s
association with the Union. This unnerved Mesa to the point that Mesa moved to the
other side of the table so that her back was turned toward Kasey and she “wouldn’t feel
her watching.”
Kasey, a Sodexho employee who was no longer working at the hospital at the
time of the hearing, was unable to testify in this proceeding because of medical
problems. However, in her comprehensive Board affidavit44 Kasey generally denies
intentionally singling out or staring at Mesa in the cafeteria. Record evidence shows that
the personal and/or working relationship between Kasey and Mesa, at least from Mesa’s

44 Pursuant to Respondents’ motion, and over the General Counsel’s objection, I
determined it abundantly clear, as documented by her physician, that Kasey was unable
to testify as a result of a serious medical condition. Accordingly, I received Kasey’s
Board affidavit, dated December 21, 2007, in evidence, and made it a part of the record
as substantive evidence in lieu of her testimony.
JD(SF)-19-09
32
perspective, was strained. Indeed, Mesa had recently stepped down from the position of
a supervisory lead housekeeper because of a disagreement with Kasey, who according
to Mesa, waived her badge in Mesa’s face and asserted her authority over Mesa, saying,
“That is why I am the director and you are not.”
I shall dismiss this allegation of the complaint. Although I credit Mesa’s
testimony, I am unable to conclude that Kasey’s preoccupation with Mesa was, under
the circumstances, union-related rather than work-related.
Alleged surveillance and monitoring of Barbara Mesa: As noted, Mesa spent her
lunch periods and all of her break periods in the cafeteria at the union table. It was not
required that employees clock out or in for lunch or their breaks. Mesa testified that near
the beginning of April, her day-shift lead, Bernice Valencia, a supervisory FMC
employee, approached her one day after lunch and said, “Vivian [Kasey] told me to
come and tell you that you are exceeding your breaks in the cafeteria, it was along the
lines, with the Union people.” Mesa said, “Yeah, right. I haven’t been. I know there is
(sic) [surveillance] cameras” in the cafeteria. Valencia, according to Mesa, agreed,
saying, “I know you haven’t been.”
Valencia did not testify in this proceeding. Kasey’s affidavit states that from time
to time she would have Valencia relay messages to employees, and does recall
personally warning a number of employees during the course of monthly staff meetings
that they were exceeding their break and lunch periods; however, she does not recall
sending Valencia to speak directly with Mesa regarding this matter.
I credit the testimony of Mesa. As both Mesa and her supervisor, Valencia,
agreed that Mesa had not been exceeding her breaks, I find that the cautioning or
reprimand was unwarranted and that Mesa could reasonably believe it was motivated by
her activities on behalf of the Union. Also, I find that by implying Mesa’s conduct was
being monitored, whether or not this was the case, Kasey created the impression of
engaging in surveillance of Mesa while she was engaged in union activities at the union
table in the cafeteria. Therefore, I find that by such conduct FMC, through Kasey as
FMC’s agent, has violated Section 8(a)(1) of the Act.
Alleged warning to Melissa Demmer and Barbara Mesa: Melissa Demmer, a
housekeeper, testified that in mid-July, Kasey approached her as she was eating lunch
in the cafeteria at the union table with Mesa and Union Representative Barnes.
According to Demmer, Mesa was generally known as Barne’s “sidekick.” Demmer
testified that Kasey came over, looked around, and then, while looking directly at
Demmer said, “Be careful about who you hang around,” adding, “Unions are corrupt.”
Mesa testified regarding the same incident: Mesa waived to Kasey, and Kasey
approached the union table. Prefacing her remarks with the explanation that she could
say whatever she wanted as she only had three days left to work, Kasey then told
Demmer “to be careful who she hung out with or which side she picked or something
along those lines, because they could get you in trouble.” Mesa replied in Demmer’s
defense that Demmer was an intelligent person and could make an informed decision.
Kasey suggested that Demmer come and talk to her in her office.
Kasey’s affidavit states:
JD(SF)-19-09
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I do not recall any date near the time I was departing FMC in
7/2007, in which I approached the union table in the cafeteria and
had some interaction or discussion with employees at that table. I
did not warn people to be careful who they hang out with or
suggest to any FMC worker that they could get in trouble for
hanging around at the union table or for being seen with the union
supporters.
I credit the testimony of Demmers and Mesa and find that Demmers could
reasonably interpret Kasey’s remarks to be a cautionary warning to Demmers that her
association with union advocates could adversely affect her in an unspecified manner.
Further, I find Kasey’s statement also constitutes a similar, albeit indirect, admonition to
Mesa. By such conduct, FMC, through Kasey as FMC’s agent, has violated the Act as
alleged.
Alleged unlawful surveillance and interrogation by Manager Linda Keeler: The
complaint alleges that in January 2008, Linda Keeler, a Sodexho manager, engaged in
surveillance of Mesa, and unlawfully interrogated Mesa regarding an incident in the
break room. Mesa testified that another employee informed Mesa that Keeler “just took
a picture of you guys in the break room.” Later that day Mesa asked Keeler about this.
Keeler, according to Mesa, explained that she had tried to take a picture but the camera
didn’t work, and asked who told Mesa that. Mesa said it didn’t matter who told her that.
Keeler testified that six employees, not including Mesa, were in the break room
when they should have been working. She told the six employees it was time to get back
to work, and conspicuously pretended to take a picture of them with her cell phone
camera as the photo would capture the clock on the wall and document that they were
sitting in the break room at a time they should have been working. Mesa was not in the
room. I credit Keeler’s testimony. Moreover, as there was no union activity or protected-
concerted activity involved in this scenario, Keeler’s question to Mesa appears to be no
more than an innocent, spontaneous query that could not reasonably be regarded as
unlawful interrogation. I shall dismiss this allegation of the complaint.
B. Alleged Section 8(a)(3) Violations
Alleged unlawful changing of Barbara Mesa’s work schedule: The complaint
alleges that FMC and Sodexho discriminated against Mesa by denying her vacation
request and changing her work schedule. Thus, after her union activity was widely
known, Mesa was required to work forty hours per week, and in addition, to work every
weekend. FMC and Sodexho maintain that denying Mesa’s vacation request and
changing her work schedule were in accordance with FMC’s personnel policies that
were applied in a similar manner to all employees.
On June 18, Joe Brown, a Sodexho employee, assumed Kasey’s position and
became interim director of housekeeping. At that point Brown became responsible for
that department’s 64 full-time employees. Alice Colorado continued to be the
department secretary, and Linda Keeler continued to be a day shift supervisor. Kasey,
who was leaving the position, oriented Brown into the day-to-day things he needed to
know to successfully continue running the department.
JD(SF)-19-09
34
Brown soon learned of Mesa’s support for the Union. Prior to Brown’s tenure
Mesa had voluntarily stepped down as a supervisory lead housekeeper and had become
the only relief housekeeper. Brown testified he believed Mesa to be a highly proficient
and skilled employee, and sometime prior to July 4, asked Mesa if she would help out as
a lead over the July 4 holiday period. Mesa declined, explaining she could not do so
because she supported the Union.
As Brown became more familiar with problems in the department, it became
apparent that more housekeepers needed to be hired. The current housekeepers were
working considerable amounts of overtime, thereby increasing the department’s
expenditures, and the hospital was not being kept as clean as possible due to lack of
personnel coupled with inefficient scheduling of the workforce. In Brown’s view, the
scheduling of housekeeping employees seemed more to benefit the requests of the
employees rather than the needs of the hospital. His end goal was to have people
working to benefit the needs of the hospital, rather than vice-versa.
Scheduling of employees, according to Brown, had to be fair, balanced and
consistent; and having the correct number of people working each day, so that all the
areas of the hospital could be cleaned on a daily basis, would also make the hospital
cleaner. When he started in June there were 15 positions open, and he hired as many
employees as he could. From July 10 to August 28 he hired a minimum of ten
housekeepers, and when he left in October only one position remained open.
Mesa, as a supervisor under Kasey, had worked every other weekend. On the
weekends she did not work she also had the following Monday off, thus in effect having
a three day weekend every other week.45 Further, apparently as an accommodation to
her, Kasey permitted Mesa to work 32 rather than 40 hours per week. After Mesa
stepped down as a supervisor, becoming the only relief housekeeper, she continued
working the same schedule she had worked as a supervisor. Relief housekeepers or
“floaters,” are employees who do not have regularly assigned areas to clean.
After July 10, Brown hired at least four additional relief housekeepers. They
were required to work each weekend in order to fill in for other non-relief employees who
had the weekend off and, insofar as the record shows, were required to work 40 hours
per week. Similarly, Mesa, also a relief housekeeper, was assigned weekend shifts and
a 40-hour workweek. Brown testified it would have been unfair to the other floaters to
require them, but not Mesa, to work every weekend, and that Mesa’s schedule was
changed to benefit the hospital. Mesa complained about the change, and Brown offered
her a position as regular housekeeper with an assigned area to clean; this position
would permit Mesa to have every other weekend off. He also told her that if she wanted
to remain a relief housekeeper, she would have to work every weekend, but could pick
her successive two days off during the week. However, in either event, Mesa would
have to work 40 hours per week. Mesa declined both offers. There is no showing that
Brown has permitted any other housekeepers, whether regular or relief, to work less
than 40 hours per week.

45 The Respondents’ brief acknowledges that Brown’s testimony in this regard was
incorrect, and that Brown erroneously testified Mesa had, in effect, a four-day weekend
off every other week.
JD(SF)-19-09
35
Brown testified that Mesa also complained to him in mid-July that her vacation
request, submitted July 10 for a vacation extending from July 22 to July 29 in order to
attend her daughter’s softball tournament in Phoenix, had been denied by her
supervisor, Keeler. Mesa requested that Brown overrule Keeler’s denial. Brown
discussed the matter with Keeler and agreed with Keeler that Mesa’s request should be
denied as the hospital was short-staffed by 12 employees during the period Mesa
wanted off. In accordance with FMC’s practice, Mesa was given the option of finding a
substitute, in which case her request would be granted. She did not find a substitute.
According to Brown, other employees’ vacation requests were also denied during the
same time for the same reason.
I credit Brown’s testimony. Brown gave cogent, persuasive reasons for taking the
action he did, and there is no showing that Brown harbored any animosity toward Mesa.
Brown, not Kasey, changed Mesa’s work schedule and affirmed the decision to deny
Mesa’s vacation request. Brown was determined, I find, as the new interim director of
housekeeping, to treat all employees similarly, and to apply FMC’s personnel policies
equally and in accordance with the best interests of the hospital. He was unwilling to
make exceptions or to give Mesa or any other employee preferential treatment. I shall
dismiss these allegations of the complaint.
Alleged unlawful discharge of Michael Conant: The complaint alleges that
FMC/Sodexho discharged Michael Conant, a housekeeping employee, because of his
activity on behalf of the Union. Conant, who cleaned rooms after patients were
discharged, worked for FMC for 2 years. Insofar as the record shows, the only union
activity attributable to Conant is the fact that he wore a union button at work during July,
the last month of his employment. He had had a poor attendance record prior to his
wearing a union button, and had received several corrective actions under FMC’s no-
fault absenteeism policy, including a verbal warning, a written warning, and a three-day
suspension. Then, after a series of 4 unscheduled absences from May 18 to July 27, he
was discharged by Brown on August 1. It appears unnecessary to discuss either
Conant’s absentee history or the parameters of FMC’s absentee policy, as the General
Counsel does not dispute the fact that Conant’s absenteeism warranted his discharge in
accordance with FMC’s policy. However, the General Counsel maintains that, as
demonstrated by an analysis of FMC’s past practice, Kasey had not strictly adhered to
FMC’s absentee policy, and therefore Brown, too, should have been guided by Kasey’s
example. 46
As noted above, Brown took over Kasey’s role as director of housekeeping for
Sodexho. Assuming arguendo that during Kasey’s tenure there was a lack of uniformity
in her interpretation or implementation of FMC’s absentee policy, the record shows that
Kasey played no role in Conant’s termination. Rather, the matter was brought to
Brown’s attention by Colorado, his secretary. The recommendation to discharge Conant
was made by Brown and, after review, was approved by Schuler. Brown testified he
acted in accordance with FMC’s explicit absentee policy, and was not influenced by any
union activity in which Conant may have been engaged. The record shows that Brown,

46 The Respondents disagree with the accuracy of the General Counsel’s analysis and
the conclusions drawn therefrom, and further maintains there could be a variety of
discrete reasons, including mere inadvertence or perhaps the press of more immediate
departmental concerns requiring attention, underlying any inconsistencies in the
enforcement of the policy.
JD(SF)-19-09
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from the inception of his tenure with FMC, attempted to enforce FMC’s policies with
consistency because it was important that all employees be treated equally. There is no
showing that Brown has granted leniency to any employee who has failed to comply with
FMC’s absenteeism policy. I credit Brown’s testimony. I shall dismiss this allegation of
the complaint.
Alleged unlawful written warning to Haskielena Begay: The complaint alleges
that FMC/Sodexho unlawfully issued housekeeping employee Haskielena Begay a
written warning for having two unscheduled no-fault absences on successive days,47
and, in addition, a three day suspension for failure to call in during one of those two days
she was absent. These occurrences were brought to Brown’s attention. Brown testified
that when Begay returned to work he summoned her to his office in order to investigate
the matter. Brown asked her what had happened over the weekend. Begay said she
was not able to come in. Brown said he understood that on one of those days she was a
“no call/no show,” and advised her that a violation of this nature was a “big deal.” Begay
said she just didn’t have her cell phone. Begay did not deny this conversation.
Thereafter, Brown instructed Begay’s supervisor, Keeler, a Sodexho manager, to issue
the warning and the suspension. There is no question that the warning and suspension
complied with FMC’s absentee policy.
On Begay’s next workday, shortly after she arrived at work, Keeler gave her the
written warning, which Keeler had signed. Begay testified that she began wearing a
union lanyard or button that very day, and that Keeler observed it with a look of
disapproval as the two were speaking. Keeler denies this, stating she did not observe
Begay wearing any union identification that day. Then, the record shows, it was not until
several hours later, after Begay’s union sympathies were allegedly known, that Keeler
presented Begay with the second document, also signed by Keeler, advising Begay of
her three-day suspension. Begay asked Keeler why she did not receive the two
documents at the same time, and Keeler replied, according to Begay, “Well, I didn’t
know how to suspend people.”
The General Counsel, acknowledging the initial warning had been prepared prior
to the time Begay arrived at work, takes the position that Keeler and/or Brown had
intended to give Begay only the single written warning, but then, within two hours of
learning Begay was a union proponent, added a three day suspension as retaliation for
her union activity. The warning and suspension are certainly related, and the record
does not show why both the warning document and the suspension document were not
given to Begay at the same time. I nevertheless credit Brown’s testimony that he did not
know of Begay’s union activity at the time he instructed Keeler to issue the two
documents. Brown, during his meeting with Begay, several days prior to the time she
allegedly exhibited her preference for the Union, pointedly advised her that, in particular,
he considered her no-call/no-show to be a “big deal.” Nothing in the initial warning
issued by Keeler referenced this fact. It is reasonable to conclude that from the outset,
and not because of her union activity, Brown intended to impress upon Begay the
seriousness of her infraction.48 The suspension document issued to Begay is a written
restatement of his succinct verbal admonition. Thus the document states, inter alia:

47 Begay had previously received a verbal warning for absences.
48 I credit Brown’s testimony that he regarded Begay highly, and wanted to impress upon
her the serious implications of her actions, as he did not want to lose her as an
employee. Begay continued working in the housekeeping department until January
JD(SF)-19-09
37
Haskielena must properly notify the department before the start of her
shift. The department counts on her presents (sic) as an employee to be
here or to call so we could fill her position in her absents (sic).
Haskielena absenteeism No Call No Show are considered very serious
and may lead to termination if not Corrected. Haskielena should take this
warning very seriously.
I find that the second document presented to Begay, incorporating her three-day
suspension, was consistent with Brown’s earlier admonition, and was not, as the
General Counsel contends, an afterthought designed to punish Begay for supporting the
Union. I shall dismiss this allegation of the complaint.
Conclusions of Law and Recommendations
1. FMC and 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.
2. Sodexho is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
3. The Unions are labor organizations within the meaning of Section 2(5) of the
Act.
4. FMC has violated Section 8(a) (1) of the Act as found herein.
The Remedy
Having found the Respondent Flagstaff Medical Center, Inc., has violated and is
violating Section 8(a)(1) of the Act, I recommend that it be required to cease and desist
therefrom and from in any other like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights under Section 7 of the Act. I shall
also recommend the posting of an appropriate notice, attached hereto as “Appendix.”
ORDER49
The Respondent, Flagstaff Medical Center, its officers, agents, successors, and
assigns, shall:

2008, when she voluntarily accepted a position with FMA in another department as a
patient care technician.
49 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in
Section 102.48 of the Rules, be adopted by the Board and all objections to them shall be
deemed waived for all purposes.
JD(SF)-19-09
38
1. Cease and desist from:
(a) Interrogating employees about their union activity on behalf of the
Communications Workers of America.
(b) Engaging in surveillance of employees or monitor their union
activities.
(c) Warning employees that they should be careful about associating
with union advocates.
(d) Telling employees that they should not discuss their wages with
other employees.
(e) Threatening employees that if the Union negotiates a raise for
employees, budgetary considerations would cause the layoff of recently
hired employees.
(f) Prohibiting employees from engaging in union activity in the
Emergency Department break room.
(g) In any like or related manner interfering with, restraining , or coercing
employees in the exercise of the foregoing rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action, which is necessary to effectuate the
purposes of the Act:
(a) Within 14 days after service by the Region, post at its Flagstaff,
Arizona facility copies of the attached notice marked “Appendix.”50
Copies of the notice, on forms provided by the Regional Director for
Region 28 after being duly signed by FMC’s representative, shall be
posted immediately upon receipt thereof, and shall remain posted for 60
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by FMC to ensure that the notices are not altered, defaced,
or covered by any other material.

50 If this Order is enforced by a judgment of the United States Court of Appeals, the
wording 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.”
JD(SF)-19-09
39
(b) Within 21 days after service by the Regional Office, file with the
Regional Director for Region 28 a sworn certification of a responsible
official on a form provided by the Region attesting to the steps that FMC
has taken to comply.
Dated: May 20, 2009.
Gerald A. Wacknov
Administrative Law Judge
JD(SF)-19-09
40
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT interrogate employees about their union activity on behalf of the
Communications Workers of America.
WE WILL NOT engage in surveillance of employees or monitor their union activities.
WE WILL NOT warn employees that they should be careful about associating with union
advocates.
WE WILL NOT tell employees that they should not discuss their wages with other employees.
WE WILL NOT threaten employees that if the Union negotiates a raise for employees,
budgetary considerations would cause the layoff of recently hired employees.
WE WILL NOT prohibit employees from engaging in union activity in the Emergency
Department break room.
JD(SF)-19-09
41
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in
the exercise of the foregoing rights guaranteed them by Section 7 of the Act.
FLAGSTAFF MEDICAL CENTER, INC.
(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, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
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, 602-640-2146.
JD(SF)-19-09
42
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
FLAGSTAFF MEDICAL CENTER, INC.
and Case Nos. 28-CA-21509
28-CA-21637
28-CA-21664

COMMUNICATION WORKERS OF
AMERICA, LOCAL UNION 7019, AFL-CIO
and Case No. 28-CA-21548
NATIONAL NURSES ORGANIZING
COMMITTEE/CALIFORNIA NURSES
ASSOCIATION (NNOC/CNA)
FLAGSTAFF MEDICAL CENTER, INC.,
and SODEXHO AMERICA, LLC, as Joint
Employers
and Case Nos. 28-CA-21704
28-CA-21728
COMMUNICATION WORKERS OF
AMERICA, LOCAL UNION 7019, AFL-CIO
TABLE OF CONTENTS
Page
DECISION……………………………………………………………………………… 2
Statement of the Case………………………………………………………………… 2
Findings of Fact………………………………………………………………………... 2
I. Jurisdiction………………………………………………………………………….. 2
II. The Labor Organizations Involved………………………………………………. 3
III. Alleged Unfair Labor Practices………………………………………………….. 3
A. Issues………………………………………………………………………………. 3
B. Facts………………………………………………………………………………… 3
1. Background………………………………………………………………………… 3
2. Joint Employer Allegation………………………………………………………… 4
3. Contracting Out the Patient Transport Function to Sodexho…………………. 5
4. The June 29 and July 6 Meetings Conducted by Bradel and/or Schuler……. 9
5. Additional Alleged Violations by FMC…………………………………………… 12
JD(SF)-19-09
43
A. Section 8(a)(1) Allegations………………………………………………………. 12
B. Alleged Section 8(a)(3) Violations………………………………………………. 26
5. Additional Alleged Violations by FMC/Sodexho……………………………….. 31
A. Alleged Section 8(a)(1) Violations………………………………………………. 31
B. Alleged Section 8(a)(3) Violations………………………………………………. 33
Conclusions of Law and Recommendations……………………………………….. 37
The Remedy…………………………………………………………………………… 37
ORDER…………………………………………………………………………………. 37
APPENDIX………………………………………………………………………………