HF Management Services, LLC a/k/a Healthfirst

National Labor Relations Board - Administrative Judge Opinions

Sep 14, 2017

10-CA-186533 (N.L.R.B. Sep. 14, 2017)

JD–69–17
Charlotte, NC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
HF MANAGEMENT SERVICES, LLC
a/k/a HEALTHFIRST
and CASE 10–CA–186533
LORI A. EBERHART
an Individual
Sarah S. Bencini, Esq. and Lisa Shearin, Esq.,
for the General Counsel.
Andrew P. Marks, (Littler Mendelson, P.C.)
of New York, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. This case was tried in Winston-
Salem, North Carolina on April 19, 2017. The Charging Party, Lori Eberhart filed the charge
giving rise to this case on October 18, 2016. The General Counsel issued the complaint on
January 13, 2017.
The General Counsel alleges that Respondent, by its Chief Executive Officer, Pat
Wang, violated Section 8(a)(1) of the Act by sending all its employees the following email on
July 25, 2016, G.C. Exh. 4.
To: All Employees
Subject: Senior Health Partners
As the third largest provider of Managed Long Term Care (MLTC) in the State, it’s not
surprising that we come under the microscope from time to time. As you may know,
another article that is critical of our service authorization processes at Senior Health
Partners was published today, this time in the Daily News.
You all know from personal experience that the health and well-being of our members is
why we are here. For more than 20 years, Healthfirst has been bringing people together who
believe in our mission to deliver quality, affordable healthcare to underserved New Yorkers.
Nothing about that mission has changed.
JD–69–17
2
We work in a very complex and highly-regulated industry. Managed Long Term Care is
relatively new as a mandatory program and is still evolving. The State made the decision
not all that long ago to convert these services from fee-for-service to managed care to try
and get more consistency and quality in return for its investment of taxpayer dollars. The 5
path to that outcome has not always been clear cut or obvious, though as you know, I am a
believer in tolerating these transitions and doing the best we can because I think the
programs will eventually settle down and be better for beneficiaries overall. In the
meantime, we must constantly strive to ensure that our members have the services they
need according to the rules of the program. In fact, we were already working with the 10
member cited in the article to address her concerns and ensure a full assessment of her
evolving needs.
In light of these recent articles and a program audit of SHP that was conducted this Spring,
we should realistically be prepared for the possibility of additional press on our MLTC 15
program. While I know that articles like this can be distressing or distracting, it is important
to remain focused on our work, which is to serve our members. So rather than add to the
distraction by commenting on each article, I want to encourage you to remember the
fundamentals of our Trailblazer culture and to support our SHP colleagues who are caring,
compassionate, hard-working professionals and may be feeling disheartened by these recent 20
developments. On that note, please give a shout out to our SHP staff who work so hard for
our members every day. I thank you.
Please remember that only designated Healthfirst representatives are permitted to speak
with the press. If you are contacted, please refer the inquiry to Bill McCann 25
(wmccann@healthfirst.org or 212-801-1657) or Cheri Ryan (cryan@healthfirst.org or 212-
549-4515) immediately.
If you are unsure how to handle an inquiry from the public, you can contact Bill, Cheri, or
your supervisor. Please also reach out to your supervisor, your HR Business Partner, or 30
other communication channels with any questions or concerns you may have.
Thank you and best regards.
Pat Wang35
(GC Exh. 4).
It is the following sentence in the email that the General Counsel contends violates
Section 8(a) (1): “Please remember that only designated Healthfirst representatives are permitted 40
to speak with the press.”
For the reasons stated below, I find that Respondent did not violate the Act as alleged.
On the entire record, including my observation of the demeanor of the witnesses, and 45
after considering the briefs filed by the General Counsel and Respondent, I make the following
JD–69–17
3
FINDINGS OF FACT
I. JURISDICTION
Respondent owns and operates not-for-profit managed care organizations that provide 5
health insurance to individuals in New York State who are eligible for Medicare and Medicaid.
One of these organizations is Senior Health Partners, the entity discussed in Pat Wang’s July
25, 2016 email. Respondent’s corporate office is in New York, New York. It also has offices
in North Carolina and Florida, and employees who work out of their homes, including the
Charging Party, who works from her home in North Carolina. In 2016, Respondent purchased 10
and received goods worth more than $50,000 from outside of New York State. Respondent
admits, and I find, that it is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES15
The only alleged unfair labor practice in this case is Pat Wang’s July 25 email, which is
set forth above. The Board has held that an employer violates Section 8(a)(1) when it
maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7
rights, Lafayette Park Hotel, 326 NLRB 824, 825 (1998). As stated above, a rule is unlawful 20
if it explicitly restricts activities protected by Section 7. If this is not true, a violation is
established by a showing that 1) employees would reasonably construe the language to prohibit
Section 7 activity; and/or 2) that the rule was promulgated in response to protected activity
and/or 3) that the rule has been applied to restrict the exercise of Section 7 rights, Lutheran
Heritage Village-Livonia, 343 NLRB 646, 647 (2004). 25
In Lutheran Heritage, the Board retreated somewhat from its prior decisions in light of
the decision of United States Court of Appeals for the District of Columbia in University
Medical Center v. NLRB, 335 F.3d 1079 (D.C. Cir. 2003). In that case the Court declined to
enforce the Board’s decision at 335 NLRB 1318 (2001) regarding a rule prohibiting 30
“disrespectful conduct.” In Lutheran Heritage, the Board stated that it would not conclude that
a reasonable employee would read a rule to apply to Section 7 activity simply because the rule
could be so interpreted.
The only issue in this case is whether or not employees would reasonably construe the
language of Wang’s July 25 email to prohibit Section 7 activity. That email does not explicitly 35
prohibit contacting the press about wages, hours or other terms and conditions of employment.
There is no evidence that the email was sent in response to protected activity or has been
applied to restrict the exercise of Section 7 rights. Indeed, the complaint did not allege any sort
of illegal motive.
I conclude that a reasonable person would not read the July 25 email as broadly as the 40
General Counsel suggests. The subject of the email is “Senior Health Partners.” The first
paragraph makes clear that the email is a response to a New York Daily News article critical of
Senior Health Partners that very day. The email does not mention wages, hours or other terms
and conditions of employment.
JD–69–17
4
Although the test of how a reasonable person would read the email is an objective one,
I note that there is no evidence that any employee, including the Charging Party read it or
would read it to restrict talking to the press about wages, hours and other terms and conditions
of employment.1 I conclude that the General Counsel has not established that the email is so
broad or ambiguous such that it would be so understood by a reasonable person. In this vein, I 5
would distinguish this case from Leather Center, Inc., 312 NLRB 521, 525 (1993), which is
cited by the General Counsel. In Leather Center the rule against talking to the media was
promulgated during an organizing campaign and accompanied by other rules evidencing
antiunion animus.2
On these findings of fact and conclusions of law and on the entire record, I issue the 10
following recommended3
ORDER
The complaint is dismissed.15
Dated, Washington D.C. September 14, 2017
Donna N. Dawson20
Administrative Law Judge

1 There is no dispute that the Charging Party, along with Respondent’s other employees, received
the email in question. In fact, the Charging Party merely testified that she received the email,
and had no further communications with anyone at Healthfirst about any of the issues discussed
in the email. (Tr. 37).
2 The General Counsel asks that I draw an adverse inference from the failure of Respondent to
produce CEO Pat Wang at the hearing. I decline to do so despite the fact that I denied
Respondent’s petition to revoke the General Counsel’s subpoena compelling Wang to appear at
the hearing. Respondent admitted in its answer that Wang is its CEO and that she authored the
July 25 email. It is highly unlikely that she would have testified, as the General Counsel
alleges, that she drafted the email “in response to her concern that employees would seek the
support from the press about their terms and conditions of employment.” This is particularly so
in view of the fact that the General Counsel did not allege that Wang composed and sent the
email pursuant to an illegal motive. Adverse witnesses rarely fall into a party’s hands like an
overripe grape and make their case for them.
Moreover, an adverse inference may not be used as a substitute for affirmative evidence in
establishing a prima facie case, Laird Printing, Inc., 264 NLRB 369, 377 fn. 12 (1982); NLRB
v. Chester Valley, Inc., 652 F.2d 263, 271 (2d Cir. 1981). The General Counsel’s evidence in
this case did not meet its initial burden in establishing a violation of the Act.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
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