Kaiser Permanente, Kaiser Foundation Hospitals; Southern California Permanente Group: The Permanente

National Labor Relations Board - Administrative Judge Opinions

May 20, 2013

31-CA-089178 (N.L.R.B. May. 20, 2013)

JD(SF)–24–13
HARBOR CITY, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES
KAISER FOUNDATION HOSPITALS
and Cases 31-CA-089178
31-CA-091298
NATIONAL UNION OF HEALTHCARE WORKERS
Cecelia Valentine, Esq., Los Angeles, CA, for the
Acting General Counsel.
Florice Hoffman, Esq., Orange, CA, for the
Union.
Karen Rooney, Esq., Los Angeles, CA, and
Diana Casares Bell, Esq., Pasadena, CA, for the
Respondent.
DECISION
Statement of the Case
Gregory Z. Meyerson, Administrative Law Judge. Pursuant to notice, I heard this
case in Los Angeles, California on March 25 and 26, 2013. This case was tried following the
issuance of an Order Consolidating Cases, Consolidated Complaint and Notice of Hearing (the
complaint) by the Regional Director for Region 31 of the National Labor Relations Board (the
Board) on December 27, 2012. The complaint was based on a number of original and amended
unfair labor practice charges, as captioned above, filed by National Union of Healthcare
Workers (NUHW, the Union, or the Charging Party). It alleges that Kaiser Foundation Hospitals
(the Respondent, the Employer, the Hospital, or Kaiser) has violated Section 8(a)(1) of the
National Labor Relations Act (the Act). The Respondent filed a timely answer to the complaint
denying the commission of the alleged unfair labor practices.1
All parties appeared at the hearing, and I provided them with the full opportunity to
participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to
argue orally and file briefs. Based on the record, my consideration of the briefs filed by counsel
for the Acting General Counsel, counsel for the Union2, and counsel for the Respondent, and

1 All pleadings reflect the complaint and answer as those documents were finally amended
at the hearing. The General Counsel’s formal documents (G.C. Ex. 1.) contain the charges,
amended charges, and affidavits of service establishing the dates on which those charges and
amended charges were filed with the Board and served on the Respondent, as alleged in the
complaint.
2 Counsel for the Union filed a statement in which she joined in the brief filed by counsel for
the Acting General Counsel.
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my observation of the demeanor of the witnesses,3 I now make the following findings of fact and
conclusions of law.
Findings of Fact
I. Jurisdiction
The complaint alleges, the Respondent’s answer admits, and I find that at all times
material herein, the Respondent has been a corporation engaged in the business of operating
acute care hospitals in the State of California, including a hospital in Harbor City, California (the
Hospital) where it also maintains an office and place of business. This is the only facility
involved in this proceeding. Further, I find that during the 12-month period ending October 30,
2012, the Respondent, in conducting its business operations just described, derived gross
revenues in excess of $250,000; and during the same period of time, purchased and received at
the Hospital located in Harbor City, California, goods valued in excess of $5,000 directly from
suppliers located outside the State of California.
Accordingly, I conclude that the Respondent is now, and at all times material herein has
been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. Labor Organization
The complaint alleges, the Respondent’s answer admits, and I find that at all times
material herein, the Union has been a labor organization within the meaning of Section 2(5) of
the Act.
III. Alleged Unfair Labor Practices
A. Background Facts and the Dispute
The Respondent’s Harbor City facility is also known as the South Bay facility. At the
time of the hearing, certain of the Respondent’s non-supervisory employees at the South Bay
facility were members of a bargaining unit represented by Service Employees International
Union, United Healthcare Workers-West (SEIU-UHW). Those represented employees included
those employed in the Respondent’s Environmental Services (EVS) Department. Accordingly,
at all relevant time periods the SEIU-UHW has been the exclusive collective bargaining
representative for those non-supervisory EVS Department employees. (See Stipulation of
Facts, G.C. Ex. 2.)
I will take administrative notice that since some time in the recent past the National
Union of Healthcare Workers (NUHW) has been seeking to represent the same unit of
employees as is currently represented by the SEIU-UHW. To that end, the NUHW filed a
representation petition with the Agency in Case 32-RC-5775. It is perhaps an understatement

3 The credibility resolutions made in this decision are based on a review of the testimonial
record and exhibits with consideration given for reasonable probability and the demeanor of the
witnesses. See NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). Where
witnesses have testified in contradiction to the findings herein, I have discredited their
testimony, as either being in conflict with credited documentary or testimonial evidence, or
because it was inherently incredible and unworthy of belief.
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to say that these two labor organizations have been engaged in an aggressive, hotly contested
campaign to represent these employees. On February 11, 2013, the Regional Director for
Region 32 issued an Order and Notice of Second Election directing a mail ballot election with a
number of named employers, one of whom is the Respondent, the NUHW, as the Petitioner,
and the SEIU-UHW, as the Intervener, among the unit of employees mentioned above, which
unit includes the Respondent’s non-supervisory EVS Department employees. (Un. Ex.1.) At
the time of the hearing in this matter, that election was still pending.
Maria Bodkin (Bodkin) is an EVS Department employee at the Respondent’s South Bay
facility. She has been employed at that facility in that capacity for approximately 14 years.
Bodkin’s first language is Spanish, however, she testified in English. She declined the offer of
having a Spanish language interpreter, indicating that she understands “almost everything” in
English. Further, it was my observation when watching her testifying that she is fluent in the
English language.
It is undisputed that while Bodkin was represented by SEIU-UHW at her place of
employment, she was, in fact, a very strong, vocal supporter of the NUHW. Her support for the
NUHW was well known among her fellow employees, management, and by the two respective
labor organizations. She distributed to fellow employees petitions, pamphlets, and literature on
behalf of the NUHW and orally attempted to garner support for that labor organization among
her co-workers. In fact, her picture and name were prominently displayed on two pro-NUHW
flyers distributed on the Respondent’s South Bay campus and mailed to employees. (G.C. Ex. 3
& 4.) It is also undisputed that Bodkin frequently spoke up at gatherings of employees and
managers where she was critical of the management in the EVS Department, and where she
raised such issues as a lack of cleaning supplies, inequitable work schedules, the awarding of
overtime, and worker injuries alleged caused by excessive work.
The Respondent has out-sourced the management of the EVS Department to a
company known as Xanitos. The overall responsibility for the Respondent’s EVS Department
rests with Saro Tomasian, the Managing Director, Support Operations, who is an employee of
the Respondent. Working under his direction is Susanne Corlett, Environmental Services
Assistant Director, who is an employee of Xanitos. The Respondent’s answer admits the
supervisory status of both Tomasian and Corlett, as well as that of Heidi Greene, a Human
Relations Consultant employed by the Respondent.
Each morning, before the start of their work shift duties, the EVS Department
housekeepers, approximately 15-20, and some of their supervisors attend a “huddle.” These
huddles are run by a supervisor, and are held in the combined area of the EVS office and a
storeroom. They are intended for the supervisors to inform the assembled employees of
developing issues, to discuss safety matters, matters of concern to the supervisors, and also
matters of concern to the employees. Generally they last from 10 to 20 minutes, after which the
employees begin their housekeeping duties.
The Respondent contends that Bodkin was frequently a disruptive influence at these
huddles, raising issues only of personal concern to her and/or matters that should not have
been discussed in a group setting, sometimes having to do with other employees who could
have raised these issues themselves. Allegedly, Bodkin had a private agenda, delayed the
huddles with issues unrelated to the matters at hand, was disrespectful to the supervisors, and
was loud and rude. It is the position of the Respondent that it’s supervisors who subsequently
spoke to Bodkin regarding her alleged disruptive behavior at the huddles were in no way
intending to restrict any legitimate union or protected concerted activity, but merely to moderate
her behavior so as to cause her to stop disrupting the huddles. Similarly, the Respondent
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contends that its supervisors attempted to counsel Bodkin for distributing petitions and materials
on behalf of the NUHW in work areas of the facility. It denies any attempt to limit Bodkin’s
legitimate protected concerted or union activity, and denies that its solicitation/distribution rules
were overbroad.
On the other hand, counsel for the General Counsel and counsel for the Union allege
that the Respondent’s supervisors who counseled Bodkin regarding her comments at the
huddles and her distribution of petitions and literature on behalf of the NUHW were unlawfully
attempting to limit her legitimate protected concerted and union4 activity in violation of Section
8(a)(1) of the Act. Also, they allege that the Respondent’s supervisors similarly violated the Act
by orally stating an overbroad rule on solicitation and distribution. They suggest that the claim
that Bodkin was disruptive at the huddles was merely a pretext for the Respondent’s unlawful
conduct.
B. Legal Analysis and Conclusions
Section 7 of the Act guarantees employees “the right to self-organization, to form, join, or
assist labor organization…and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection….” Employees are engaged in protected
concerted activities when they act in concert with other employees to improve their working
conditions. Eastex, Inc. v. NLRB, 437 U.S. 556 (1987); NLRB v. Washington Aluminum Co.,
370 U.S. 9, 14 (1962). An employer may not retaliate against an employee for exercising the
right to engage in protected concerted activity. Triangle Electric Co., 335 NLRB 1037, 1038
(2001); Meyers Industries, 268 NLRB 493, 479 (1984). An employer violates Section 8(a)(1) of
the Act when it discharges an employee, or takes some other adverse employment action
against her, for engaging in protected concerted activity. Rinke Pontiac Co., 216 NLRB 239,
241, 242 (1975). It is axiomatic that an employer violates Section 8(a)(1) of the Act when it
interferes with, restrains, or coerces employees for engaging in protected concerted activity.
The Board, with court approval, has construed the term “concerted activities” to include
“those circumstances where individual employees seek to initiate or induce or to prepare for
group action, as well as individual employees bringing truly group complaints to the attention of
management.” Meyers Industries, Inc., 281 NLRB 882 (1986), affirmed 835 F.2d 1481 (D.C.
Cir. 1987), cert. denied 487 U.S. 1205 (1988); See Mushroom Transportation Co., v. NLRB, 330
F.2d 683, 685 (3rd Cir. 1964) (observing that “a conversation may constitute a concerted activity
although it involves only a speaker and a listener” if “it was engaged in with the object of
initiating or inducing or preparing for group action or…it had some relation to group action in the
interest of employees”); See also NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 831
(1984) (affirming the Board’s power to protect certain individual activities and citing as an
example “the lone employee” who “intends to induce group activity”).
It is beyond question that Section 7 of the Act gives employees the right to communicate
with each other regarding their wages, hours, and working conditions. Further, the Board has
consistently held that communication between employees “for nonorganizational protected
activities are entitled to the same protection and privileges as organizational activities.” Phoenix

4 In fact, the complaint does not specifically mention “union activity,” but, rather, only the
more generic “protected concerted activity,” which would by definition include union activity.
Concomitantly, the complaint does not allege a separate violation of Section 8(a)(3) of the Act,
but only of Section 8(a)(1).
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Transit Systems, 337 NLRB 510 (2002); citing Container Corporation of America, 244 NLRB
318, 322 (1979).
Although the Respondent does not concede the matter, in my view there is no doubt that
Bodkin was engaged in concerted activity at the Hospital. She did have an “agenda,” that being
to support the NUHW in its organizing campaign, and to make the SEIU-UHW and the Hospital
management look bad in the eyes of the employees. However, her activities in support of this
agenda were both concerted and protected. When she spoke up at the daily huddles and at
safety meetings and complained about working conditions such as a lack of cleaning supplies,
or being forced to work too quickly and in an unsafe manner, or the inequitable distribution of
overtime, she was speaking about matters that concerned both her and other members of the
bargaining unit. Further, her distribution of flyers and other materials on behalf of the NUHW
was clearly concerted, and, in fact, constituted the most basic form of union and protected
concerted activity. Never-the-less, the question remains whether the conduct of the
Respondent’s supervisors towards Bodkin violated the Act, as an attempt to unlawfully interfere
with, restrain, or coerce her in the exercise of legitimate protected concerted activity.
1. The June 2012 Conversation between Susanne Corlett and Bodkin
Complaint paragraph 6 alleges that in the first or second week of June 2012, Susanne
Corlett, in the Hospital EVS Store Room, instructed [Bodkin] not to engage in protected
concerted activity. The facts concerning this allegation, as well as others in the complaint, are
in dispute. In each instance, the dispute involves the words spoken by various supervisors and
whether the version of the events as told by Brodkin or that version told by various supervisors
is correct. Therefore, it is necessary for the undersigned to determine in each instance the
credibility of the various witnesses to these conversations.
For the most part, I did not find Bodkin to be a credible witness. She seemed mainly
focused on furthering her agenda on behalf of the NUHW, and less so on testifying truthfully. I
believe that she exaggerated and embellished her testimony, at times to a ridiculous degree.
She appeared to be following a script, describing statements that if true would obviously
constitute blatant unfair labor practices, but which any knowledgeable supervisor would be
highly unlikely to make. Further, it is important to note that while Bodkin was clearly on a
campaign to assist the NUHW in its organizing efforts, the hearing revealed no evidence of any
anti-union animus by the Respondent towards the NUHW. To the contrary, it appeared that the
Respondent had remained neutral in the long standing conflict between the NUHW and the
SEIU-UHW.
Bodkin testified about a particular employee “huddle,” which took place in the beginning
of June 2012, and at which Susanne Corlett, Environment Services Assistant Director and an
admitted supervisor, was the person who conducted the session. As noted above, these
huddles were held for generally 10-20 minutes prior to the start of the EVS employees
beginning their cleaning and housekeeping duties. They were designed to give management an
opportunity to raise any issues of concern, to discuss safety, and also so that individual
employees could raise their concerns. From time to time, Bodkin would raise issues of concern
that she had. While various witnesses for the Respondent testified that Bodkin was frequently
loud and rude at these sessions, the record is void of any probative evidence that would
establish the degree of obnoxious behavior on the part of Bodkin as would serve to remove
such conduct from the protections of the Act. For her part, Bodkin denied that she was ever
rude and claimed that because the room where the huddles were held was very noisy, she had
to speak in a raised voice in order to be heard.
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At the meeting in question, Bodkin raised two issues of concern. She complained about
inadequate cleaning supplies, in particular towels, and complained of management failing to
follow contractual seniority on the overtime rotation list. Beyond question, these were matters
related to employee terms and conditions of employment and constituted protected concerted
activity.
Bodkin testified that following this meeting, Corlett indicated that she needed to talk with
Bodkin and the two of them walked about 20 feet away where they proceeded to have a
conversation. In this regard, it is very important to note that when asked on direct examination
by counsel for the General Counsel whether fellow employees were “close enough to hear,”
Bodkin responded, “No, they are about 20 feet away from me.”
According to Bodkin, Corlett said, “Maria, why are you doing this? Don’t stick your face
in this for all these people. You are going to get all of the battles. You are going to be by
yourself at the end. Your co-workers are not going to, you know, support you.” Allegedly,
Bodkin responded, “I am going to be stand up for my-coworkers and I am ready for it.”
Corlett testified that she has chaired huddles where Bodkin was present. According to
Corlett, at such meetings employees are frequently asked whether they have any questions,
and it is not unusual for employees to bring up concerns that they may have. To such questions
supervisors sometimes respond that they will look into the matter and get back to the
employees with an answer. Corlett indicated that management is interested in the concerns
raised by employees during the huddles, and it serves as an opportunity for management and
employees to exchange information.
It was Corlett’s testimony that she has never instructed an employee not to speak up
during a huddle, nor has she ever chastised an employee for speaking up during a huddle. She
acknowledged that from time to time she has been present when Bodkin spoke up in a huddle.
Specifically, she recalled Bodkin speaking on behalf of employees who might be too shy or timid
to bring up a concern themselves. Further, Corlett recalled Bodkin raising issues related to
inadequate supplies, such as towels. She characterized the concerns raised by Bodkin as
“pretty good ideas or issues,” of the type that management would likely respond positively to.
Other employees would also raise similar concerns. Corlett does not attend every huddle.
Corlett testified that she did not recall a huddle during which Bodkin raised a concern
about the assignment of overtime hours to employees. Further, she did not recall ever pulling
Bodkin aside after a huddle to talk with her about something that Bodkin had said at the huddle.
When asked by the Respondent’s counsel whether she had made any of the statements
attributed to her by Bodkin about not bringing certain matters up at huddles, or staying out of
other people’s business, or ending up alone, or words to that effect, Corlett responded,
“Absolutely not.” She then specifically denied each and every statement attributed to her by
Bodkin. Corlett denied ever threatening Bodkin in any way in response to anything that Bodkin
said, whether at a huddle or elsewhere. Also, she denied ever discussing union related
activities with Bodkin.
I found Corlett to be a highly credible witness. She is a graduate of the United States
Military Academy at West Point with a degree in psychology, and served in the army as a
military police officer. She testified in a straight forward, no nonsense manner with clarity and
certainty. Her testimony was reasonable and seemed more probable than not. Although an
admitted supervisor of the Respondent, she is actually an employee of Xanitos, the company
with which the Respondent has contracted to provide the management services for the EVS
Department. Thus, she is unaffected by the organizing efforts of the NUHW and/or the rivalry
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between that Union and the SEIU-UHW. However, the most significant reason for finding her
credible is because, as will be noted at some length later in this decision, she testified candidly
about certain alleged unfair labor practices committed by the Respondent through the
statements of Saro Tomasian, her immediate supervisor. In this regard, she supported the
complaint allegations as alleged by the General Counsel. Such testimony was clearly adverse
to the interests of the Respondent and to Tomasian, demonstrating her propensity to tell the
truth, even when it is contrary to her personal best interests.
Besides Bodkin and Corlett, there were two other individuals who had something to say
regarding the alleged coercive conversation. Noemi Maldonado, an employee in the EVS
Department, testified on behalf of the General Counsel. Her primary language is Spanish and,
so, she testified by means of a Spanish Language interpreter. I found her testimony confusing
and somewhat contradictory. She testified that she has heard Bodkin complain at huddles
about the lack of mops and towels, about employee schedules and overtime rotations, and
about safety and performance issues, specifically that the housekeepers are not “robots.” She
recalled an incident in May or June of 2012, where Susanne Corlett spoke with Bodkin about
comments Bodkin had made during a huddle. At first she seemed to be saying that she heard
the conversation, which would have been contrary to Bodkin’s testimony that no employees
were close enough to overhear it. However, she then made it clear that she had merely been
told later by Bodkin of the substance of the alleged conversation. According to the initial
translation, Bodkin told her that Corlett had said that, “She [Bodkin] shouldn’t be facing the
music, because in the end, she was going to end up alone.” Following an objection by counsel
for the General Counsel, the interpreter changed the translation to Maldonado testifying that
Bodkin said that Corlett had told her [Bodkin] that, “She should stop facing the music on behalf
of others because, in the end, she was going to stand alone.”
Later, during cross-examination, Maldonado acknowledged that during the huddle in
question, Bodkin had only complained about inadequate mops and towels available for the
housekeepers. According to Maldonado, Bodkin had also complained about the way work
assignments were made, about the housekeepers not being robots, and about overtime, but
these matters were raised by Bodkin at some huddles other than the one that allegedly
precipitated the conversation between Corlett and Bodkin. Further, on cross-examination,
Maldonado made it clear that she had not overheard the private conversation between Corlett
and Bodkin, but only Bodkin’s version of that alleged conversation.
I do not give any probative weight to Maldonado’s testimony because it is confusing,
somewhat contradictory, and mostly because Maldonado did not actually overhear the alleged
conversation, but only Bodkin’s version.
The second employee to have something to say about the alleged conversation between
Corlett and Bodkin was EVS Department employee George Briggs. He testified on behalf of the
Respondent and was generally hostile to Bodkin. However, during cross-examination, he
testified that on one occasion he observed Corlett “pull[ing] Bodkin to the side” and telling her
that when they have huddles, “can she please keep her comments to herself, and after the
huddles come to [Corlett] and discuss it with [Corlett], not in front of the whole group…because
what [Bodkin] did was rude and disrespectful….”
Once again, I have decided to give this testimony no probative weight. Briggs never
indicates when this alleged conversation occurred, and, even more significant, his claim to have
overheard the conversation is contrary to Bodkin’s testimony that no employees were close
enough to have overheard the alleged conversation between Corlett and Bodkin in June of
2012. The conversation testified to by Briggs, assuming it occurred at all, may well have
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occurred at some totally different time, and the actions which precipitated it may have been
totally different.
Accordingly, as I have found Corlett to be a much more credible witness than Bodkin, I
have accepted her testimony that the conversation in question that Bodkin alleges took place in
early June of 2012, did, in fact, not occur. The General Counsel has failed to meet her burden
of proof to support this allegation by a preponderance of the evidence. Therefore, I shall
recommend to the Board that complaint paragraph 6 be dismissed.
2. The August 23, 2012 Conversation between Heidi Greene and Bodkin
Complaint paragraph 7(a) and (b) alleges that on about August 23, 2012, the
Respondent by Heidi Greene orally stated an overbroad solicitation and/or distribution rule, and
threatened to discipline [Bodkin] because of her exercise of Section 7 rights. Greene is an
employee of the Respondent, an admitted supervisor, and a Human Resource Consultant.
The Respondent has a written “On Premises Solicitation” policy, effective September 27,
2011. Section 5.1 to 5.5 of that policy describes what employees may and may not do on the
Hospital property. (G.C. Ex. 5.) It is important to note that the General Counsel has not alleged
that this written policy is in anyway unlawful. Rather, the General Counsel alleges that Greene,
in a private conversation with Bodkin, deviated from that written policy and orally announced an
overly broad solicitation and/or distribution rule.
This issue was apparently precipitated by a complaint from Pamela Watson, the SEIU-
UHW Contract Specialist. According to Greene’s testimony, in August of 2012, she was
contacted by Watson who reported that Bodkin had been observed distributing NUHW flyers in
a working area of the Hospital. If true, this conduct would seem to be in violation of section 5.2
of the above cited policy, which section reads as follows: “Employees may not engage in
distribution in working areas at any time. Employees may not engage in distribution in
nonworking areas on working time.” It was clear from the testimony of Bodkin that Watson and
other officials of the SEIU-UHW, the certified exclusive collective bargaining representative of
Bodkin’s bargaining unit, harbor some animosity towards Bodkin because of her support for the
rival NUHW, which was seeking to replace the SEIU-UHW as the exclusive collective bargaining
representative. Greene, as a Human Resource Consultant, was obviously aware of the rivalry
between the two labor organizations, the recent period of organizing activity, the first NLRB
conducted election, the objections to the results of that election filed by the NUHW, and the fact
that a second election had been scheduled.
It is undisputed that Greene contacted Bodkin, told her about the report that she had
received, said that she would like to meet with her to discuss the incident and told Bodkin that
she could bring a union representative with her. Of course, the union representative would have
been a representative of the SEIU-UHW, the exclusive collective bargaining representative of
Bodkin’s bargaining unit. Because of the animosity between Bodkin and that union, she
decided to meet with Greene without a union representative present.
The two women meet in Greene’s office on August 23, 2012. However, there is a
dramatic difference in the two versions of the story as told by Greene and Bodkin regarding the
events that occurred in Greene’s office. At Greene’s request, Bodkin signed a “declination of
representative form.” (Res. Ex. 3.) Greene informed Bodkin that the meeting was investigatory
in nature and its purpose was not to discipline her. Although the language on the form indicates
that the investigation may result in “corrective action,” Green testified that this was simply the
standard and only form used when union representation is declined.
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According to Greene, Bodkin acknowledged that she had been distributing flyers in a
working/patient area of the Hospital, as had been alleged. Greene had with her the two flyers
involved, which were highly critical of both the Hospital management as well as the SEIU-UHW.
The flyers, which were in both English and Spanish, indicated support for the NUHW, and
prominently displayed the photographs of a number of employees, one of whom was Bodkin.
(G.C. Ex. 2 and 3.)
Greene testified that she explained the “On Premises Solicitation” policy to Bodkin and
asked her to sign a copy of the written policy to acknowledge receipt of it. This explanation
included the provision, as found in section 5.2 of the policy, that “[e]mployees may not engage
in distribution in working areas at any time[, and e]mployees may not engage in distribution in
nonworking areas on working time.” (G. C. Ex. 5.) It seemed to Greene as if Bodkin had not
previously been familiar with the policy. Bodkin and Greene read the policy together, and then
Bodkin signed the document acknowledging that she understood it. (G.C Ex. 5.) During the
course of their discussion, Bodkin asked a number of questions about the policy, which
questions Greene answered. According to Greene, she informed Bodkin that in the future
Bodkin would need to comply with the policy in order to avoid corrective action. Greene testified
that the meeting lasted 15-20 minutes and was congenial.
Bodkin’s version of this meeting was very different. According to Bodkin, she
understood Greene’s explanation to mean that she and her co-workers were not to congregate
anywhere on the Hospital campus at anytime. This allegedly included a “bench” outside of the
Vermont Pavilion building, which bench is available for public use and where employees have
traditionally sat to discuss all sorts of subjects, including those of a personal nature. Shocked
by these instructions, Bodkin allegedly asked whether Greene was saying that she could not be
with her co-workers after work, on a bench, or be any other place on the campus, including the
sidewalk. Bodkin testified that Greene responded that she could not.
Allegedly, Bodkin was very surprised by Greene’s statements, which seemed to
contradict Bodkin’s understanding of the Respondent’s policy as a 14 year employee of the
Hospital. Thereafter, she informed her fellow employees and the NUHW that Greene had told
her that employees were not permitted to meet together on the “bench” or after work at other
locations on the campus.
Greene testified that during her meeting with Bodkin she never instructed Bodkin that
she could not talk to her co-workers at work; never told her that she could not solicit in
connection with collective action; never stated a blanket rule that she could not solicit or
distribute flyers before, during, or after work; never told her that she could not sit on the bench
outside the Vermont Pavilion and talk with her co-workers; never told her that she could not talk
with her co-workers on the sidewalk; and never told her that she could not engage or socialize
with her peers. Further, Greene denied telling Bodkin that she could be disciplined if she
passed out flyers again on campus.
Obviously, a credibility determination must be made in order to resolve the dispute
regarding what was said in Greene’s office on August 23, 2012. As I noted earlier in this
decision and for the reasons previously stated, I did not find Bodkin to be a credible witness. I
believe that in this instance as well she is not credible, having at best grossly exaggerated and
embellished Greene’s statements to her. Frankly, it strains credulity to believe that any Human
Resource Consultant would have made such overreaching and ridiculous statements to an
employee, which would so obviously have been a violation of the Act. According to Bodkin,
Greene was telling her that she was prohibited, not only from engaging in legitimate Section 7
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activity, but also from having any social contact with fellow employees at any time and at any
place on Hospital property. This is ridiculous and is totally implausible. It seems to be that
Bodkin’s testimony in this regard was given in an attempt to make the Respondent look as
malevolent as possible so as to aid the NUHW in its organizing efforts.
On the other hand, Greene seemed reasonably credible. Her testimony was straight
forward, and she did not appear to exaggerate or embellish, willingly admitting when she did not
recall something. She is an experienced Human Resource Consultant who logically would have
been very unlikely to have made the statements attributed to her by Bodkin. Her testimony was
reasonable, inherently plausible, and had the “ring of authenticity” to it. Further, she gave no
indication that she was personally hostile to Bodkin or to the NUHW, or favored one union over
the other. Also, no credible, probative evidence has been presented that the Respondent
harbored anti-union animus towards the NUHW, or that the Respondent was anything other
than neutral in the rival organizing campaigns of the SEIU-UHW and the NUHW.
Accordingly, I credit the testimony of Greene over that given by Bodkin regarding the
statements made in Greene’s office on August 23, 2012. I conclude that Greene did not orally
state an overbroad solicitation and/or distribution rule, and did not threaten to discipline Bodkin
based on the exercise of her Section 7 rights, as is alleged in the complaint. Counsel for the
General Counsel has failed to prove these allegations by a preponderance of the evidence.
Therefore, I shall recommend to the Board that complaint paragraph 7(a) and (b) be dismissed.
3. The September 6, 2012 conversation between Saro Tomasian and Bodkin
Complaint paragraph 8 (a), (b), (c) and (d) alleges that on about September 6, 2012,
Saro Tomasian, in a conversation with [Bodkin,] made coercive statements to her about
engaging in protected concerted activity; threatened to discipline her if she continued to engage
in protected concerted activity; impliedly threatened to discharge her if she continued to engage
in protected concerted activity; and prohibited her from discussing her terms and conditions of
employment. Once again the parties disagree as to what was said during this conversation.
However, unlike the earlier disputed one-on-one conversations, there were 3 persons present
for this conversation, namely Bodkin, Tomasian, and Susanne Corlett.
Tomasian, Manager of Support Operations and an admitted supervisor, was responsible
for the EVS Department. He was very familiar with Bodkin, as over the years she had regularly
communicated with him one-on-one about workplace concerns including the EVS employees’
schedules, duties, and responsibilities. Tomasian testified that he had an open door policy and
Bodkin took advantage of that policy to talk with Tomasian about work related issues that
concerned her. According to Tomasian, he was receptive to her concerns and always indicated
to her that he would follow up on the information that she had given him. It appears from the
testimony of both Bodkin and Tomasian that they got along reasonably well, and were respectful
towards each other during these one-on-one meetings.
Tomasian testified that in July and August of 2012, he heard from other supervisors and
some employees that Bodkin was being rude and disruptive during huddles. According to
Tomasian, he observed such behavior himself when he conducted a safety meeting for the EVS
employees on August 15, 2012. The purpose for the meeting was to alert the employees to an
increased rate of injury and to ask for their help in reducing it. At the meeting Bodkin appeared
to blame the increased injury rate on the fact that the management team in the EVS Department
had changed from Kaiser to Xanitos. Tomasian testified that Bodkin addressed him in a “real
aggressive” and “loud” manner. Bodkin testified that in response to Tomasian’s concerns about
safety and request for suggestions on how things might be improved that she commented, “Just
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remember, we are not robots.” This was apparently intended as a comment and/or suggestion
that the housekeepers were being required to work too quickly, and needed to slow down.
In Tomasian’s opinion, Bodkin’s conduct and comments were unacceptable and were
“really dragging the department down.” However, I view Bodkin’s conduct as legitimate
concerted activity, specifically her complaints that the employees were being required to work
too quickly, which caused accidents to happen. Further, the evidence does not demonstrate
that her words or actions towards Tomasian were so obnoxious or improper as to remove them
from the protection of the Act.
According to Bodkin, in early September 2012, fellow EVS employee Rosa Ortiz
complained to Bodkin about her work schedule, specifically excessive consecutive days worked.
Further, Ortiz complained to Bodkin that she had raised the issue with supervisor Corlett, who
was allegedly unresponsive to these concerns. Bodkin asked Ortiz for permission to raise the
issue during a huddle, which permission Ortiz alleged gave. Bodkin testified that following her
conversation with Ortiz, Bodkin raised the issue at a huddle that Corlett was directing. Ortiz was
not present at this huddle. According to Bodkin, she specifically asked about Ortiz’ schedule,
noting that Ortiz was scheduled to work too many days in a row. Corlett responded that the
subject of Ortiz’ schedule would not be discussed during the huddle. However, regardless of
Corlett’s refusal to discuss the matter, I believe that Bodkin was engaged in protected concerted
activity when she raised the issue of a fellow employee allegedly being required to work too
many consecutive days. Clearly this was related to the working conditions of the EVS
Department employees.
These were the events that precipitated Tomasian’s meeting with Bodkin. According to
Bodkin, she was called into Tomasian’s office on September 6, 2012. Present in the office with
Tomasian was supervisor Corlett. Bodkin testified that Tomasian started the meeting by saying
that Bodkin was a good worker, but questioned why she was “causing hostility” in the
department by her “comments.” He mentioned that he had received complaints about her
comments. Specifically, he mentioned the comment that Bodkin had made at a huddle about
the housekeepers not being “robots,” and the fact that she raised the issue of Rosa Ortiz’
schedule. Bodkin testified that Tomasian continued, “Rosa’s schedule is not your business.
Rosa’s schedule is Rosa’s schedule. You [sic] not lead, you [sic] not leader….By doing these
comments, you are digging your own hole.”
According to Bodkin, Tomasian went on the say, “What am I going to answer to my boss
when she asks me why Maria Bodkin causes so [sic] much problems in my department? I don’t
know what to say to her.” Allegedly Tomasian continued, “Next comments that you make, I
don’t care if it is big or little, positive or negative, I am going to take you to HR, Level 4,5 and it is
up to HR [sic] giving you disciplinary---letting you keep your job or not.”
Bodkin testified that Tomasian ended the meeting by “look[ing] at Susanne Corlett,” and
saying, “What we discuss here stays confidential,” to which Corlett allegedly replied, “Yes.”
However, it is important to note that Bodkin did not testify that a similar remark was directed to
her.6

5 According to Bodkin, Level 4 discipline means the employee is ready for termination.
6 While counsel for the General Counsel’s brief (p. 14) indicates that Tomasian issued the
same directive to Bodkin and references page 73 of the transcript, there is no such reference.
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Susanne Corlett supports much of Bodkin’s testimony regarding the conversation in
Tomasian’s office. During cross-examination by counsel for the Union, Corlett admitted that
Tomasian told Bodkin that she was not supposed to speak about other employees’ concerns or
on behalf of other employees at the huddles. He directed her to only talk about her own
concerns. Further, she acknowledged that Tomasian told Bodkin not to “stir up the pot,” or “it
would be addressed.”
Preliminarily, I will note that I did not find Tomasian to be a credible witness. Much of his
testimony regarding the meeting of September 6, 2012 was elicited by means of leading
questions from the Respondent’s counsel, which certainly makes his responses questionable.
Further, the story that he tells regarding this meeting simply does not seem plausible. He
testified that he had received numerous complaints from supervisors and employees about
Bodkin being disruptive at huddles. However, he tries to minimize any references made to
concerted conduct or to warning her not to engage in such conduct. He attempts to portray the
meeting as simply a constructive counseling session designed to get Bodkin to modify her
behavior and not be disruptive, aggressive, or rude, and to be a team player. He testified that
his goal in meeting with Bodkin was to get her to respect management, and he asked her if she
had any future concerns to “please bring them up to management directly.” Also, he
acknowledged that he told Bodkin that her remarks “on behalf of other employees were negative
and causing hostility.”
Tomasian testified that the matter of Bodkin raising the subject of Rosa Ortiz’ work
schedule at a huddle was mentioned during their meeting, but he could not recall whether the
subject of housekeepers not being “robots” as raised by Bodkin at a safety meeting was
discussed on September 6. Further, he could not recall telling Bodkin that she was “digging
[her] own grave,” and he could not recall telling her “not to stir the pot.” He mostly testified in a
general way, becoming specific only when required to do so by the question. However, he did
specifically deny threatening Bodkin with disciplinary action or discharge because of her
conduct; denied saying that the next mistake she made, he would bring her to the Human
Resource Department; denied that he prohibited her from helping co-workers with their
employment problems; and denied asking her to keep their meeting confidential.
Yet, significantly, on cross-examination by counsel for the Union, Tomasian contradicted
some of these denials. Clearly, his testimony was inconsistent. On cross-examination he
admitted saying to Bodkin: “It’s not the first time, I’ve had other complaints. I’m not writing you
up, but it has got to stop. I don’t want to hear inappropriate comments. I don’t want you talking
about anything, but things about you. Don’t bring up issues that don’t concern you. Stop the
hidden messages.”
Although I have previously found Bodkin generally not to be credible, in this instance I do
find her testimony regarding the meeting in Tomasian’s office on September 6, 2012 to be
truthful. It was inherently plausible, and considering the timing of the meeting, being
precipitated by Bodkin’s public comments regarding Rosa Ortiz’ schedule and housekeepers not
being robots, Bodkin’s testimony was certainly more plausible than that of Tomasian.
Additionally, Corlett’s testimony is more supportive of Bodkin than it is of Tomasian. I
previously found Corlett to be credible, and in this instance even more so. She is testifying
about matters that are contrary to Tomasian’s and the Respondent’s interests. While she is
technically an employee of Xanitos, Corlett functions as a supervisor for the Respondent, and it
is certainly in her best interest to stay on good terms with the Respondent as the entity with
which Xanitos has its contract. Accordingly, Corlett’s testimony regarding the meeting in
question should be given significant weight.
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Therefore, having credited the testimony of Bodkin and Corlett, I conclude that counsel
for the General Counsel has met her burden of proof and established by a preponderance of the
evidence the allegations as set forth in complaint paragraph 8(a), (b), and (c). Tomasian’s
statements at the meeting of September 6, 2012, would reasonably have been coercive to
Bodkin, as she was warned that any further protected concerted activity in the form of public
complaints on behalf of bargaining unit employees regarding matters such as work schedules,
the awarding of overtime, and safety concerns would not be tolerated. Further, I find that
Tomasian’s threat to take Bodkin before the Human Resource Department was a clear threat to
discipline her, and impliedly to discharge her, should she continue to engage in protected
concerted activities. There is no legitimate question that Bodkin’s comments made at huddles
and safety meetings about employee work schedules, the awarding of overtime, and safety
concerns involved wages, hours, and working conditions, and, thus, concerted activity. Further,
while Bodkin’s comments and actions may have upset some employees and supervisors, as I
have indicated above, nothing she did was so obnoxious or improper for Bodkin to have
forfeited the protection of the Act.
Accordingly, I find that the Respondent, through the statements made by Tomasian on
September 6, 2012, interfered with, restrained, and coerced employees in the exercise of their
Section 7 rights, thereby violating Section 8(a)(1) of the Act, as alleged in complaint paragraphs
8(a), (b), and (c), and 9.
However, regarding the allegation in complaint paragraph 8(d), I find that counsel for the
General Counsel has failed to meet her burden of proof. There is insufficient evidence to show
that on September 6, 2012, Tomasian prohibited Bodkin from discussing with others the
statements made in his office. As I indicated above, while Tomasian specifically instructed
Corlett to keep the matters discussed at the meeting “confidential,” he did not make the same or
similar admonition to Bodkin. Accordingly, I shall recommend to the Board that complaint
paragraph 8(d) be dismissed.
Conclusions of Law
1. The Respondent, Kaiser Foundation Hospitals, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, National Union of Healthcare Workers, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By the following acts and conduct the Respondent has violated Section 8(a)(1) of the
Act:
(a) Instructing employees not to engage in protected concerted activity;
(b) Threatening to discipline employees because they engaged in protected concerted
activity;
(c) Threatening to discipline employees if the employees continue to engage in protected
concerted activity; and
(d) Impliedly threatening to discharge employees if the employees continue to engage in
protected concerted activity.
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Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent shall be required to post a notice that assures its employees that it will
respect their rights under the Act. In addition to physically posting of paper notices, notices
shall be distributed electronically, such as by email. posting on an intranet or internet site,
and/or other electric means, if the Respondent customarily communicates with its employees by
such means. J. Picini Flooring, 356 NLRB No. 9 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended7
ORDER
The Respondent, Kaiser Foundation Hospitals, its officers, agents, and representatives,
shall
1. Cease and desist from:
(a) Instructing employees not to engage in protected concerted activity;
(b) Threatening to discipline employees because they engaged in protected concerted
activity;
(c) Threatening to discipline employees if the employees continue to engage in protected
concerted activity; and
(d) Impliedly threatening to discharge employees if the employees continue to engage in
protected concerted activity.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days after service by the Region, post at its South Bay facility in Harbor
City, California, copies of the attached notice marked “Appendix”8 in both English and Spanish.
Copies of the notice, on forms provided by the Regional Director for Region 31 after being
signed by the Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where notices to

7 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.
8 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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employees are customarily posted. In addition to physically posting of paper notices, notices
shall be distributed electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since September 6, 2012.
(b) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges
violations of the Act not specifically found.
Dated at Washington, D.C. May 20, 2013
_______________________
Gregory Z. Meyerson
Administrative Law Judge
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
You have the right to join with your fellow employees in protected concerted activities.
These activities include discussing working conditions among yourselves and with
management, forming a union, and making common complaints about your wages,
hours, and other terms and conditions of employment, including complaints regarding
work schedules, the awarding of overtime, and safety concerns.
WE WILL NOT do anything that interferes with these rights. Specifically:
WE WILL NOT instruct you not to engage in protected concerted activity.
WE WILL NOT make coercive statements to you about engaging in protected concerted activity.
WE WILL NOT threaten to discipline you because you engaged in protected concerted activity.
WE WILL NOT threaten to discipline you if you continue to engage in protected concerted
activity.
WE WILL NOT impliedly threaten to discharge you if you continue to engage in protected
concerted activity.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Federal labor law.
KAISER FOUNDATION HOSPITALS
(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.
11500 West Olympic Boulevard, Suite 600
Los Angeles, California 90064-1824
Hours: 8:30 a.m. to 5 p.m.
310-235-7352
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, 310-235-7123.