NORTH MEMORIAL HEALTH CARE

National Labor Relations Board - Administrative Judge Opinions

Sep 3, 2015

18-CA-132107 (N.L.R.B. Sep. 3, 2015)

JD-49-15
Robbinsdale, MN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NORTH MEMORIAL HEALTH CARE
and Cases 18-CA-132107
18-CA-133944
18-CA-135228
SEIU HEALTHCARE MINNESOTA
____________________________________
NORTH MEMORIAL HEALTH CARE
and Case 18-CA-132818
MINNESOTA NURSES ASSOCIATION
Florence I. Brammer, Esq., and
Abby E. Schneider, Esq.,
for the General Counsel.
John C. Hauge, Esq., and
Thomas R. Trachsel, Esq.,
(Felhaber, Larson, Fenlon &
Vogt, P.A.), Minneapolis,
Minnesota,
for the Respondent.
Justin D. Cummins, Esq.,
(Cummins & Cummins),
Minneapolis, Minnesota,
for the Charging Parties.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. I heard these consolidated cases in
Minneapolis, Minnesota, from February 2 to 5, 2015. The SEIU Healthcare Minnesota (the
SEIU) filed the charge in case 18-CA-132107 on July 3, 2014, and an amended charge in that
JD–49–15
2
case on August 21, 2014. The SEIU filed the charges in cases 18-CA-133944 and 18-CA-
135228 on August 4, 2014, and August 22, 2014, respectively. On September 30, 2014, the
SEIU filed the amended charge in case 18-CA-135228. The Minnesota Nurses Association (the
MNA) filed the charge in case 18-CA-132818 on July 15, 2014. The Regional Director for
Region 18 of the National Labor Relations Board (the Board) issued the consolidated complaint 5
and notice of hearing on October 27, 2014.1
The complaint alleges that the Respondent, North Memorial Health Care, unlawfully
interfered with union activity and made unlawful unilateral changes in practices in violation of
Section 8(a)(1) and Sections 8(a)(5) and (1) of the National Labor Relations Act (the Act) when 10
it limited the ability of the SEIU and the MNA to access public and non-public areas of the
Respondent's hospital facility for union activities, including activities relating to the Unions' joint
informational picketing near the facility on June 24, 2014. The complaint also alleges that the
Respondent violated Section 8(a)(3) and (1) by discharging employee Melvin Anderson
because of his union activities. The Respondent denies that it committed any violation of the 15
Act, and contends that it was simply requiring the Unions to engage in their activities in the
manner provided for by the relevant collective bargaining agreements and consistent with past
practice, and that it terminated the Anderson for legitimate, nondiscriminatory, reasons.
On the entire record, including my observation of the demeanor of the witnesses, and 20
after considering the briefs filed by the parties, I make the following findings of fact and
conclusions of law.
FINDINGS OF FACT
25
I. JURISDICTION
The Respondent, a Minnesota non-profit corporation with an office and place of business
in Robbinsdale, Minnesota, operates an acute care hospital where it annually purchases and
receives goods and services valued in excess of $50,000 directly from suppliers located outside 30
the State of Minnesota and earns gross revenues in excess of $500,000. The 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 and that the SEIU and the MNA are both labor organizations within
the meaning of Section 2(5) of the Act.
35
II. ALLEGED UNFAIR LABOR PRACTICES
A. BACKGROUND
The relevant events in this case took place in and around the Respondent's acute care 40
hospital facility in Robbinsdale, Minnesota (the facility). The SEIU represents a bargaining unit
of about 800 service employees at the facility. This unit has been in place for over 60 years.
The SEIU also represents three smaller units there: a pharmacist unit with about 30 members; a
licensed practical nurse (LPN) unit with about 20 members; and a home health aide and home
health clerical worker unit with about 50 employees. The Respondent bargains with the SEIU 45
as part of a multiemployer group that includes seven other hospitals. The second union
involved in this case, the MNA, represents a unit of approximately 980 registered nurses

1 Case 18-CA-133721, was originally part of the consolidated complaint, but, on the
Respondent's motion, was severed for deferral to arbitration by the January 8, 2012, order of
Deputy Chief Judge Arthur Amchan.
JD–49–15
3
employed by the Respondent. During the relevant time period, collective bargaining
agreements were in effect for all of the SEIU and MNA units.
Many of the allegations in this case concern the Respondent's efforts to limit the Unions'
activities inside the facility in late June 2014 when the SEIU and the MNA joined forces to 5
engage in joint informational picketing outside the facility. Both of these unions are large – the
SEIU's contracts cover approximately 43,000 workers in Minnesota, and the MNA has
approximately 20,000 members in Minnesota, Iowa and Wisconsin. The stated objective of their
joint picketing, which brought approximately 500 picketers to a public park adjacent to the
facility, was to highlight concerns that the Respondent had compromised patient care by making 10
changes to staffing levels. The areas where the Respondent was particularly aggressive in
limiting union activities included the lobby and atrium inside the main public entrance to the
facility,2 the public cafeteria, employee break rooms, and a bulletin board in the sterile
processing and dispensing (SPD) department. To prevent union activity in the these areas, the
Respondent took steps that included, but were not limited to, summoning local police to the 15
facility, banning two union representatives from the facility for a 1-year period,3 stationing staff
"greeters" at entrances who were directed to require individuals who entered wearing union
shirts to either cease displaying the shirts or leave the facility, having security officers and
management personnel direct individuals to remove their union shirts or leave the facility, and
escorting union representatives to the security office and/or out of the facility.20
In its efforts to limit union activity at the facility in June 2014, the Respondent took the
position that SEIU officials could not engage in union activity in the cafeteria or other public
areas of the facility that employees frequented, but rather were entitled to do so only in two
areas that the Respondent had "designated" for such purposes. One of the two areas 25
designated by the Respondent for union activity was in the lower level beneath the lobby, and
the second was near an underground tunnel to a parking facility. As compared to the main
entryway, cafeteria, and break rooms, these were out-of-the-way areas where employees were
not known to congregate. Neither designated area had doors that could be closed to provide
privacy. The Respondent did not consider the two designated areas to be "public," and provided 30
no signage on the main floor directing employees to them, but there were no security measures
that would prevent a random visitor to the hospital or staff that was not in the bargaining unit
from entering the designated areas. The SEIU could also ask to reserve other areas of the
facility for particular events and the Respondent frequently agreed to such requests. For its
part, the MNA had the use of an enclosed office on the lower level of the hospital.35
The Respondent's agents also took the position that, although there were numerous
bulletin boards at the facility on which information was posted for employees, the SEIU was only
permitted to post information for the service unit and the LPN unit on a single bulletin board that
the Respondent designated for that purpose. This bulletin board was located in proximity to the 40

2 The waiting areas for the facility's surgical, imagining, and heart and vascular services
departments are located one or two levels above the main entrance lobby, but within sight and
sound of that lobby.
3 The Respondent's officials refer to banning individuals from the facility under threat of
arrest as "trespassing" those individuals. The Respondent communicates the ban by issuing a
written "Trespass Warning" to the individual. The trespass warnings issued in this case state
that the named individual is to leave the Respondent's premises, that the warning is to remain
in effect for a period of a year, and that failure to comply will result in arrest and prosecution
under state law.
JD–49–15
4
public cafeteria, but on a low-traffic hallway.4 In addition, the Respondent took the position that
an employee in the SPD unit could not post union information on the bulletin board in that unit.
B. History Regarding Union Access to Facility
5
The record shows that for a number of years prior to the time of the alleged violations,
union representatives regularly visited the public cafeteria and made themselves available there
to unit employees who wanted to talk to them while on break. Jamie Gulley (SEIU president),
Linda Hamilton (MNA president), Frederick Anthony (non-employee SEIU organizer), Joseph
McMahon (non-employee MNA labor specialist) and Karlton Scott (non-employee MNA labor 10
specialist/organizer) all credibly testified to this. McMahon and Scott visited the facility one to
three times every week to engage in such activities. Anthony visited the facility every day or
every other day and usually went to the cafeteria. These gatherings in the cafeteria generally
involved employees who chose to approach the union representatives – they were not meetings
in the sense of involving prearranged times for one or more union representatives to make a 15
presentation to an assembled group of unit members. The non-employee representatives, like
other visitors to the facility, were not required to clear security, sign-in, or identify themselves in
order to enter the main lobby and public cafeteria.
The Respondent does not claim, and the record does not suggest, that the activities of
non-employee representatives of either the SEIU or the MNA in the cafeteria on June 23, June 20
24, and August 21, 2014, were disorderly or disruptive to patients or visitors. Although Jeffrey
Cahoon, the Respondent's director of employee and labor relations, and other Respondent
officials were aware of the SEIU’s activities in the cafeteria, the Respondent generally did not
interfere with those activities prior to June 23, 2014. Indeed, when Cahoon saw non-employee
union representatives in the cafeteria during that earlier period he would sometimes engage 25
them in union business. The Respondent did not have any rules generally prohibiting
employees and visitors from discussing particular subjects in the cafeteria.
In two instances involving somewhat unique circumstances, the Respondent did
interfere with activity by SEIU representatives in the cafeteria prior to June 2014. Neither of
these is alleged to be a violation in this litigation. One occurred on September 10, 2013, when 30
Anthony tried to hold a scheduled stewards' meeting – a larger, pre-arranged, group meeting of
about 10 individuals – in the cafeteria after the Respondent cancelled the reservation that
Anthony had made for a private room at the facility. George Wesman (Respondent's labor
relations representative) confronted Anthony about holding the meeting in the cafeteria and
ejected him from the facility. In a September 18 letter, the Respondent's attorney asserted that 35
Anthony had violated the collective bargaining agreement by attempting to hold the stewards’
meeting in the cafeteria and warned "that any future violations on this issue will result in the
[Respondent] taking appropriate action including having Mr. Anthony removed from the
[Respondent]'s property." In the letter, the Respondent took the position that under the contract,
the SEIU could only conduct union business in the two areas that the Respondent had 40
designated, unless the Respondent allowed it to reserve another area.
On October 30, 2013, the Respondent and the Union met regarding issues raised by the
September 10 incident, including an unfair labor practices charge and a grievance filed by the
Union regarding the cancellation of the reservation for a private room. Present for the
Respondent were Cahoon, Wesman, and attorney Thomas Trachsel.5 Present for the SEIU 45

4 There is also a separate designated bulletin board in the pharmacy department for the
pharmacists unit, and one in the home health employees' department for the home health
employees' unit.
5 Attorney Trachsel is also trial counsel for the Respondent in this litigation.
JD–49–15
5
were James Bialke (SEIU chief of staff) and Anthony. The Respondent's representatives stated
that the facility did not want group meetings to take place in the cafeteria, and asserted that the
SEIU had to use the two areas that the Respondent had designated for such purposes, or
obtain the Respondent's approval to reserve another area. Cahoon and Trachsel testified that
the Respondent informed the SEIU that management considered it acceptable, however, for the 5
Union’s non-employee representatives to gather with unit members in the cafeteria when those
gatherings only included two or three individuals. Wesman testified that there is no prohibition
on union representatives talking to employees in the cafeteria about union matters, and that
such interactions only become a problem when, in the Respondent's view, they rise to the level
of a "meeting."10
Another pre-June 2014 instance in which the Respondent objected to activities by union
representatives in the public cafeteria occurred on November 18, 2013. Gulley, who was at the
time running for president of the SEIU, had publicized that he would be available in the cafeteria
that day at a specific time to discuss his candidacy with members who wished to meet with him.
In the cafeteria, Gulley sat at a table where he was accompanied by another candidate for union 15
office and by Anthony. At some point, Cahoon and Wesman confronted the candidates, and
Cahoon said he was "disappointed" that they were having a union meeting in the cafeteria.
Gulley responded that they were not there on union business, but rather were there on their
personal vacation time and acting in their personal capacities regarding the upcoming election.
Gulley stated that he was only planning to be present in the cafeteria for another 15 minutes 20
and would appreciate being allowed to finish what he was doing. Cahoon did not interfere
further that day, but later, in a November 25, 2013, letter to Bialke (SEIU chief of staff), Cahoon
asserted that Gulley and the others had been carrying out union activity in the cafeteria in
violation of the collective bargaining agreement. He stated that the Respondent had the "right
to designate where in the facility union representatives are – and are not – permitted to engage 25
in permitted activities." Cahoon warned that unless the SEIU provided an "explanation" for the
November 18 activities, and unless the Respondent was "satisfied" with that explanation, the
Respondent might take further action that would include "trespassing union agents and barring
them from further access, filing charges with the NLRB, seeking enforcement of the collective
bargaining agreement, and/or pursuing other legal and equitable relief."30
Bialke, in a January 24, 2014, correspondence to Cahoon about this dispute, stated that
Cahoon had evidenced a "total failure to understand our rights to engage with our members,"
and that the SEIU had "nowhere . . . given up our rights under the National Labor Relations Act
to have access to public areas and specifically the cafeteria." He acknowledged that the 35
Respondent had repeatedly tried to "restrict this access," but stated that "we have not agreed to
that." The SEIU president, Jamie Gulley, testified that the "designated areas" are two "non
public" areas where the Union can operate in addition to the cafeteria and other public areas at
the facility – not to the exclusion of the public areas.
40
The record does not show that, during the relevant time period, either the Respondent or
the Unions ever gave notice or an opportunity to bargain regarding proposed changes to the
practices regarding union use of the cafeteria or other areas at the facility that were open to the
general public. Cahoon and Wesman made conclusory statements to Anthony and other SEIU
officials asserting that the Union was only permitted to engage in union activities in areas that 45
the Respondent had authorized for that purpose, but did not represent this as a proposed
change that the SEIU could bargain over.6 The Respondent did not show that it has a generally

6 See Respondent's Exhibit Number (R Exh.) 13 (August 29, 2008, letter from Cahoon to the
SEIU), R Exh. 32 (March 30, 2009, memorandum from Wesman to SEIU), R Exh. 33 (July 9,
2009, letter from Wesman to the SEIU), R Exh. 38 (October 3, 2012, from Wesman to SEIU).
JD–49–15
6
applicable policy or practice of prohibiting gatherings or solicitations in the cafeteria, or that it
has ever interfered with a non-union-related gathering of any size in the cafeteria. Nor has the
Respondent claimed that it has a generally applicable policy that limits the topics that visitors
are permitted to discuss in the cafeteria. In addition, while the record shows the instances
discussed above when the Respondent attempted to limit use of the cafeteria by non-employee 5
SEIU representatives, the record does not show that, prior to June 2014, it had ever taken
action to limit use of the cafeteria by non-employee MNA representatives.
The evidence showed that in addition to meeting with employees in the public cafeteria,
non-employee representatives of the Unions have, on a continuing basis since at least 2010,10
regularly entered employee break rooms on patient care units to update union information on
bulletin boards and/or speak briefly with unit members who were on break in those areas.
McMahon, Anthony, Scott, Gulley, Hamilton, and Anderson all gave confident and credible
testimony in this regard. McMahon and Anthony both circulated through the hospital to update
bulletin board information on a regular basis and, prior to the events of 2014, management did 15
not interfere with these activities. The evidence showed that the doors to the employee break
rooms are generally kept locked, but could be opened by entering a combination. Often the
non-employee union representatives gained access to the break rooms by identifying
themselves to personnel at the nursing station or charge desk on the unit and stating that they
needed to update union information on the bulletin boards. The individuals who provided 20
assistance to them were nurse managers, health unit coordinators or bargaining unit
employees. None of these persons notified Cahoon that they were allowing non-employee
union representatives to enter the break rooms. The Respondent had not, prior to the time of
the alleged violations, told the non-employee union representatives either that they were
prohibited from entering the break rooms or that they were permitted to do so. 7 In order to reach 25
these break rooms, the union representatives would have to walk down hallways on which
patient rooms were located. The break rooms were small and generally each had a table that
could accommodate approximately eight individuals. Although the Respondent had not
previously told Anthony that he was prohibited from accessing the break rooms, Wesman did,
during a December 16, 2013, discussion about the use of larger meeting rooms, tell Anthony 30
that he could not use certain meeting rooms because he was not permitted on patient care
floors.
Witnesses for the Respondent conceded that union information was posted on the
bulletin boards in the break rooms. A number of the Respondent's witnesses, including 35
Cahoon, security supervisor Edwin Markey, unit nurse manager Laurie McQuilkin, also testified
that they had never noticed, or been informed about, non-employee union representatives
entering employee break rooms on patient care units to make such postings. I credit that
testimony, but also conclude that it does rebut the credible testimony of multiple union
representatives that – with the assistance of nurse managers, charge nurses, and bargaining 40
unit employees – they regularly accessed bulletin boards in employee break rooms on patient
care units. Although union representatives engaged in these activities on at least a monthly
basis, the activity would not have taken long to complete and it is plausible that the union

7 Cahoon and Wesman testified that it was not within the authority of the health unit
coordinators or nurse managers to decide to allow non-employee union representatives to
access break rooms on patient care floors. The Respondent did not identify any provision in the
collective bargaining agreement or other writing setting forth this limitation. Nor did the
Respondent show that, prior to June 2014, it had ever notified nurse managers, health unit
coordinators or other staff that they lacked authority to decide when to allow non-employees to
access the employee break rooms. On the other hand, SEIU officials Bialke and Anthony both
testified that they dealt with Cahoon and Wesman when it came to access issues at the facility.
JD–49–15
7
representatives engaged in the conduct that they described without being observed by the
Respondent's witnesses. Based on my assessment of the credibility of the witnesses, and the
record as a whole, I conclude that this was the case here.
The first record evidence of conflict between the Respondent and the SEIU regarding 5
access to bulletin boards occurred in February 2014 and concerned a bulletin board in a locked
break room on a cardiac intensive care unit known as “4 SW.” In order to reach this break room
an individual would have to traverse the nurse’s station, an area that non-employees who were
visiting patients would not generally enter. Anthony told Marlys Chesney, the nurse manager of
the 4 SW unit,8 that the SEIU had used a bulletin board on that unit in the past, but that the 10
bulletin board was removed during remodeling and was not replaced. Chesney agreed to
replace the bulletin board and told Anthony that he could place SEIU information there at any
time. Thereafter, however, Chesney told Anthony that the Respondent’s human resources/labor
relations officials had informed her that if Anthony wanted to post something he would have to
submit the material to Cahoon or Wesman and that they would decide whether to post it. 15
Wesman, in a February 10, 2014, memorandum to Anthony, accused Anthony of making a
unilateral change to the collective bargaining agreement by arranging with Chesney to place the
bulletin board in the 4SW unit. Wesman stated that this was a "non-designated" area. Anthony
had not previously informed Cahoon or Wesman that the SEIU was accessing this locked break
room, or sought their approval to do so. 20
It is important in this case to note not only the evidence that was presented, but also
some evidence that was not. The Respondent did not introduce a written policy or contract
provision that prohibited non-employee visitors from accessing the employee break rooms
where bulletin boards were located, or from posting on those bulletin boards. Nor did the 25
Respondent show that, prior to February 2014, it had ever advised health unit coordinators,
nurse managers or others working on the patient care units that they did not have authority to
allow non-employee union visitors to enter the employee break rooms. Anthony and Scott
repeatedly accessed the employee break rooms without being told by the Respondent's
management that this was a problem.9 There was no evidence that non-employee union 30
representatives from the SEIU or the MNA had ever caused a disruption on patient care units or
when entering the break rooms where bulletin boards were located. To the contrary, Cahoon,
Markey and other officials testified that they were not even aware that this union activity was
taking place on a regular basis prior to June 2014.
35
Individuals have worn purple SEIU shirts and red MNA shirts inside the Respondent’s
facility on numerous occasions. This had not been challenged by the Respondent prior to June
24, 2014. The Respondent does not claim that it has a dress code applicable to off-duty
employees and non-employees visiting the facility's main entryway and cafeteria.
40
C. CONTRACT LANGUAGE AND REJECTED PROPOSALS
At the time of the alleged violations in the case, the contract between the SEIU and the
Respondent for the service workers unit contained the following provision:

8 The parties stipulated that Chesney was a supervisor under Section 2(11) of the Act.
9 In one instance in February 2011, SEIU steward Lu Hendrickson notified Wesman that the
SEIU would be holding a scheduled 2-hour meeting in a particular break room at the facility.
Wesman responded that the break room could not be used for that purpose because it was not
an area designated by the Respondent for the SEIU's use. Tee Mclenty, executive vice
president of the SEIU, responded that the SEIU did not agree with Wesman's interpretation of
where the SEIU could hold meetings.
JD–49–15
8
Bulletin Boards Available – Union Representative Access5
Bulletin boards in the Hospital shall be made available to the Union for the
purpose of posting business notices. The business agent for the Union or the
employees' designate shall have access at all reasonable times to such bulletin
boards, and to such other nonpatient nonpublic areas to be designated by the 10
Hospital to discharge the employee's duties as representative of the Union.
The contracts between the Respondent and the SEIU regarding the other three, much smaller,
SEIU-represented units at the facility (LPNs, pharmacists, home healthcare workers) have
language that is similar to this.10 15
The record shows that during past contract negotiations both the SEIU and the
Respondent have sought, without success, to modify the contract language regarding access to
bulletin boards. In January 2014, the multiemployer group, through which the Respondent
bargains, proposed to modify the contractual language to provide that the SEIU could only use 20
two bulletin boards specifically designated by the Respondent, that only a single agent of the
SEIU would have access to the boards, that the agent would have to give the Respondent 24
hours before posting anything, and that the Respondent had the right to remove postings that it
considered inappropriate or unrelated to official union business. The SEIU did not agree to this
proposal. For its part, the SEIU, in collective bargaining negotiations in 2009 and 2012,25
proposed to modify the contract language to provide that SEIU bulletin boards would be
provided in "all designated work areas." Just as the SEIU did not agree to the Respondent’s
proposal to create new limits on the SEIU’s posting activity, the Respondent did not agree to the
SEIU’s proposal to expand the posting activity.
30
At the time of the alleged violations, the Respondent's contract with the MNA included
the following language regarding access to bulletin boards at the facility:
The Employer will provide multiple bulletin board spaces in locations accessible
to nurses for the posting of meeting notices and related materials.35
Despite the fact that the Respondent’s officials made statements to both SEIU and MNA
representatives regarding areas at the facility “designated” for union activity, the Respondent
has not pointed to any language in the MNA agreement that mentions areas "designated" for
union activities. In addition, the parties have not shown that either the MNA or the Respondent 40
made proposals to modify the bulletin board language in their agreement.

10 The provision in the home healthcare workers contract is identical except that it states that
the Respondent will make bulletin boards available in both the hospital and the home health
office. The provision in the LPN contract is similar except that it provides that access to the
bulletin will be provided both to the Union and to "duly appointed Stewards." The provision in the
pharmacists’ contract refers to the availability of "a bulletin board" (singular), rather than of
bulletin boards (plural), and states that both the Union and "the duly appointed Steward," shall
have access to the board.
JD–49–15
9
D. INFORMATIONAL PICKETING AND RESPONDENT'S PLANNING
The MNA and the SEIU notified the Respondent, on June 4 and June 12, 2014,
respectively, that they would engage in informational picketing on public property adjacent to the
facility on June 24, 2014. Both Unions informed the Respondent that the purpose of the 5
picketing was "to promote safe staffing levels so that every patient can receive the quality care
they deserve." The Respondent's pre-picketing assessment was that the Unions' action would
likely attract a large number of picketers, but would have no impact on the facility’s ability to
provide patient care services and that the Respondent would, from a patient care perspective,
operate just like any other day. Cahoon, in a June 18, pre-picketing, memorandum to the facility 10
staff stated, "[the Respondent] has no reason to believe that the picketers will engage in any
improper conduct." Both Cahoon and David Abrams – the vice-president of human resources11
– testified that this was a true statement. In one written communication leading up to the
picketing, Cahoon informed Abrams that he had gotten "one union's full attention," and Abrams
responded, "That's because you're one scary dude." Cahoon responded "Boo!"15
Jeff Wicklander, the Respondent's vice-president of operations at the time of the
picketing,12 planned to have a number of mechanisms in place on June 24 to control the
picketing activity. On that day, the Respondent supplemented his normal security force of 20
uniformed guards with an additional 12 or 13 uniformed guards from a private security company.20
The Respondent also erected a temporary fence to separate the facility's private property from
public property and positioned cameras to face the picketing activity. In addition, the
Respondent created a schedule for members of its staff to serve as "greeters" present at three
locations inside the facility during the picketing. This was not a regular assignment at that
facility. The greeters and the security guards were instructed to, inter alia, approach anyone25
who entered the facility wearing a red MNA shirt or a purple SEIU shirt, or carrying a sign, and
direct such individuals to either cease displaying the shirt/sign or exit the building. The
Respondent does not have a standing policy on what non-employees or off-duty employees are
allowed to wear at the hospital. According to Wicklander, the objective of these preparations
was to prevent the picketing activity from coming inside the facility, to avoid any disruption of 30
day-to-day operations, and to maintain a calm and healing environment.
E. EVENTS OF JUNE 23, 2014
On June 23, 2014 – the day before the informational picketing – Anthony and Scott 35
arranged to meet in the cafeteria with the intention of working together to place information
about the picketing activity on bulletin boards at the facility. When Anthony arrived at the
cafeteria, Scott was not present yet and Anthony purchased lunch then sat at a table in the
cafeteria and began eating. Anthony was wearing a purple shirt – the SEIU color – but did not
display any union signs or other material. He did not circulate in the cafeteria to initiate 40
conversations. He had union information flyers in a closed folder and when an employee
approached him with questions about the picketing he would remove a flyer from his closed
folder and hand it to the employee. When Scott arrived, Anthony had not finished his meal, and
so Scott sat at the table with him and began working on a laptop computer while Anthony ate.
Scott had worked on the laptop computer in the cafeteria in the past without being disturbed.45
During the time that Anthony and Scott were in the cafeteria, a number of employees
approached them and engaged in small talk. There were a number of union members at tables
near to Anthony and Scott and some of these individuals had union flyers, but the two were not

11 Wesman reports to Cahoon. Cahoon reports to Abrams.
12 Subsequently, in October 2014, Wicklander became the Respondent's president.
JD–49–15
10
engaging those union members. There were also union flyers on some of these tables and it is
likely that these had been left by employees who obtained them from Anthony.
At some point Cahoon and Wesman approached the table where Anthony and Scott
were sitting. Cahoon and Wesman were familiar with Anthony, but did not know Scott. At the 5
time they approached, Anthony was talking to Harold Evenson, an SEIU steward, who had
asked Anthony a question. Scott was not talking to anyone. Cahoon, said: "Well, Fred, it looks
like you are having a meeting here. I am disappointed by that. As you know, there are
designated areas for this. You know where those are, where you can go and do this. You can
also reserve a meeting room for that purpose." Cahoon asked Scott who he was, and Scott 10
said that he was an MNA organizer. Anthony told Cahoon that he was not having a meeting,
but was eating lunch when an off-duty steward asked him a question. For his part, Scott
pointed out to Cahoon that he was not, in fact, talking to any MNA members, and Cahoon
acknowledged that this was true. Nevertheless, Cahoon maintained that they were having a
meeting, noting that Anthony had union flyers with him and that Scott was using a laptop15
computer. Cahoon opined that it was not a "coincidence" that a representative of the SEIU and
a representative of the MNA were together in the cafeteria on the day before the informational
picketing. Before leaving the cafeteria, Cahoon stated that he was going to have to think about
how to respond to what had occurred and mentioned the possibility that the Respondent would
file unfair labor practices charges.1320
After leaving the cafeteria, Cahoon called McMahon, the MNA representative he was
used to dealing with, and complained that that he had encountered Scott and Anthony in the
cafeteria the day before the picketing. He reported to McMahon that Scott was behaving
politely and not meeting with MNA members. McMahon asked why the representatives’ 25
conduct was a problem, and Cahoon responded, "Well, it doesn't seem like a coincidence that
they are meeting here together." Cahoon told McMahon that the Respondent "was going to
take aggressive action and send a strong message" in reaction to what had occurred in the
cafeteria. Cahoon said the he did not know whether on the day of the picketing the Unions
would "storm the hospital and disrupt patient care areas." McMahon indicated to Cahoon that 30
this concern was farfetched. Cahoon said, "Well, you never know," to which McMahon
responded that he knew that the unions would not storm the facility and disrupt patient care.
After Anthony finished his meal, he and Scott took an elevator up to the top floor of the
facility – the seventh floor – with the intention working their way down the floors posting the 35
latest information on the bulletin boards in the employee break rooms. Cahoon and Wesman
observed Anthony and Scott waiting for the elevator in the lobby and Cahoon immediately
contacted the Respondent's security manager, Rick Ramacher. Ramacher, in turn, used his
radio to call for two additional security guards.
40
Anthony and Scott gained access to the break room on the seventh floor by identifying
themselves to personnel at the nurses' station on that unit. Next they went to an employee
break room that was on a trauma and specialty care unit on the sixth floor. This unit has glass
walls so that one can see into the patient rooms from the hallways. Once again, Anthony and
Scott gained access to the break room by identifying themselves to a staff member at the 45
nurses' station, in this case a bargaining unit employee. They updated information on the
bulletin board in the employee break room on that unit. Then an SEIU member who was on
break in the room asked a question about the picketing and Anthony handed that employee

13 The Respondent subsequently filed an unfair labor practice charge that related to
Anthony's activities at the facility on June 23. The Respondent's charge was dismissed by the
Regional Office of the NLRB and the Respondent's appeal of that dismissal was rejected.
JD–49–15
11
some printed material. At this point, Cahoon, Wesman, and Ramacher entered the break room.
Cahoon stated that Anthony and Scott were not supposed to be there and that they were
conducting union business in a non-designated area. He referenced the discussion earlier that
day in the cafeteria and told Anthony, "[N]o matter how much we try, you continue to violate the
contract, continue to be in areas that are not designated." One of the Respondent's officials 5
stated that the Robbinsdale police department was being called, and that the Respondent was
banning/trespassing both Anthony and Scott from the facility.
From there, the Respondent's officials escorted Anthony and Scott to an elevator and
then to the security office on the facility’s main floor. They were accompanied the entire way by10
Cahoon, Wesman, and Ramacher. For some of the route to the security office, Anthony and
Scott were also flanked by two uniformed security guards.14 On the way to the security office,
Anthony and Scott passed, and were recognized by, a number of bargaining unit members.
Scott repeatedly asked what he had done wrong, and was told either that he was in a part of the
hospital where he was not supposed to be, or that it was not a "coincidence" that he and 15
Anthony were together in the hospital on the day before the picketing. A security officer
prepared written trespass warnings and the Respondent had an officer of the Robbinsdale
Police Department present the warnings to Anthony and Scott. These documents contain
identical language warning Anthony and Scott that they were banned from the Respondent's
premises for a period of 1 year and would be arrested if they failed to comply with the warning. 20
The documents both provide the following explanation for their issuance: "Conducting business
in unauthorized areas & after being told to stay out of public/patient areas." Once they received
these documents, Anthony and Scott were both escorted out of the facility by police officers
and, at the time of trial, the Respondent had not allowed either to return to the facility. Wesman
testified that if either were to return before the expiration of the 1-year period they would be 25
arrested. Cahoon testified that the decision to ban Anthony and Scott was based on the
"activity we saw . . . in the cafeteria, and the fact that they were up on a patient care unit."15
The Respondent's June 23 efforts to limit the dissemination of information about
picketing was not limited to interrupting the activity of non-employee union representatives, but 30
also extended to the activity of an employee, Melvin Anderson. Anderson, an SEIU steward for
over seven years, placed a flyer about the informational picketing on the bulletin board in the
SPD department where he was assigned. The SPD department is not a patient care area, but
rather one where medical instruments are sterilized and organized for use elsewhere in the
hospital. Anderson had posted notices on that bulletin board in the past and prior to June 23 35
the Respondent had never interfered. In fact, Judith Gubbins, the SPD manager, sometimes

14 Cahoon and Wesman testified that they, along with Ramacher, accompanied Anthony and
Scott to the security office, but that there were no other security guards with them. I find the
recollections of Anthony and Scott that two security guards accompanied them for portions of
the walk more credible than the contrary recollections of Cahoon and Wesman. Anthony and
Scott both testified calmly and with certainty and specificity on this point and were not
undermined during cross examination. In addition, Wesman himself testified that Ramacher
used his radio to call for two more security guards when Anthony and Scott were seen
proceeding to patient care floors. Thus it is not surprising that security guards met up with
Ramacher and the others when they escorted Anthony and Scott from the patient care floor to
the security office. Ramacher was not called to testify.
15 The Respondent did not give the Unions notice or an opportunity to bargain over the
decision to ban Anthony and Scott for a 1-year period, and neither Union has asked to bargain
over the ban. By letter dated December 15, 2014, the SEIU asked the Respondent to conduct a
telephonic step 2 grievance meeting regarding the ban relating to Anthony, but the Respondent
declined to meet telephonically.
JD–49–15
12
rearranged the union materials that were on the bulletin board. He had also seen the
Respondent post information about its own collective bargaining proposals on the bulletin board.
On June 23, however, Wesman contacted Gubbins and told her that the SEIU posting on the
SPD bulletin board was impermissible because it was not on an "authorized" bulletin board.
Gubbins responded to this by returning the posted union information to Anderson, and telling 5
him that he was not permitted to place such information there. Gubbins told Anderson,
however, that it would be permissible for him to post other types of information for employees,
such as invitations for free entry to a zoo.
10
F. EVENTS OF JUNE 24, 2014
The next day – June 24 – the MNA and the SEIU engaged in joint informational picketing
in a public park near the Respondent's facility. At some point that day, Wesman confronted
Anderson in the facility’s atrium and asked if he was the one who had put SEIU information on 15
the bulletin board in the SPD department.16 Anderson said that he had posted the information
and that "we've been posting on that board since before I was a steward." Wesman accused
Anderson of violating the contract. Anderson asserted that his action in posting the information
was consistent with past "practice," and Wesman responded "[s]o that means then, I can go
ahead and break the contract . . . as long as nobody knows about it." Wesman mentioned that 20
Anthony had been banned from the facility, and asked Anderson whether Anthony was involved
in the SPD department posting. When Anderson answered, Wesman challenged Anderson's
account by describing what Wesman said he had "watched" Anderson and Anthony doing.
Then Wesman confronted Anderson with statements that Wesman claimed Anthony had made
about the SPD department posting. At around this point in the conversation Anderson stated: "I 25
won't post, Matter of fact, I just quit all of it. I'm done with it all. . . . You won, George. Y'all
won." Anderson complained to Wesman that union members were paying dues and were
entitled to receive information about union activities "that they should be a part of." Wesman
responded: "[T]hat's why we have the designated boards. And not only that, we got these two
designated areas." Wesman opined that "if you give SEIU one little break, then they just take 30
advantage of it," to which Anderson responded "I haven't taken advantage of nothing." The
conversation ended with Anderson stating: "Alright, I just quit. I quit. Period. You won't hear
from me from no union stuff. Period. Somebody else can do it. Alright. You won." Wesman
said "It's not a win," and Anderson answered "It is. I quit."
35
That same day, Richard Geurts, an off-duty registered nurse and member of the MNA
bargaining unit, entered the facility wearing the same type of red MNA shirt as many of the
picketers. Photographs of the picketing indicate that these shirts had the MNA insignia on the
front, were blank on the back, and did not bear any picketing slogans or reference to the Unions'
criticisms of the Respondent.17 Geurts was walking alone, and was not carrying signs or 40
noisemakers or chanting. He was in the atrium area on the way to an employee locker room to
retrieve his lunch when he was approached by Abrams – a senior human resources executive
who helped plan the Respondent's response to the picketing event. Abrams did not recognize
Geurts or know whether he was an employee, patient, or family member. Abrams told Geurts

16 The record contains a complete transcript of this conversation. The General Counsel
presented the transcript to the Respondent in advance of trial and then modified it based on the
Respondent's input. At trial, the transcript was received into evidence without objection.
General Counsel Exhibit Number (GC Exh.) 23.
17 Wicklander stated that all he knew about the MNA shirts that he had decided not to allow
individuals to wear in the facility during the picketing was that they were red in color and said
"MNA."
JD–49–15
13
that he was not allowed to wear the MNA shirt in the facility that day. Geurts asked Abrams
who he was, and Abrams said that he was the Respondent's vice president of human
resources. Geurts asked whether Abrams wanted him to take the shirt off right there in the
lobby. Abrams either told Geurts to take the shirt off immediately, or said that he did not care
whether he did so, and Geurts responded by removing the shirt, leaving him bare-chested in the 5
public lobby. Geurts had a non-union shirt in his possession and he put that on shortly after
removing the MNA shirt, although the testimony indicates that Abrams did not know that Geurts
had the second shirt with him. The exchange between Geurts and Abrams was observed by at
least one union member, Kevin Morse, and Morse later brought the incident to the attention of
union officials. Abrams testified that he believed having Geurts remove his shirt in the public 10
lobby was consistent with the Respondent's purported intent of maintaining a calming and
healing environment during the picketing because doing so "create[d] the potential for less
disruption than an argument or a confrontation over how the shirt was removed." However,
Wicklander conceded that having a person remove his or her union shirt in the entrance area
would itself be a "disruptive act" if, like Geurts, the person did not have another shirt 15
underneath.
The balance of the relevant incidents on June 24 concern the Respondent's repeated
efforts to restrict the activities of two upper level union officials – MNA president Linda Hamilton
and SEIU president Jamie Gulley. These officials had responsibilities that went well beyond the 20
Respondent's facility, but they were present on June 24 because of the informational picketing.
The MNA entity of which Hamilton is president has approximately 20,000 members and the
SEIU entity of which Gulley is president represents approximately 43,000 individuals.
After participating in the joint picketing during the morning, Hamilton and Gulley entered 25
the facility around mid-day and headed towards the public cafeteria. Hamilton was wearing a
red MNA shirt and Gulley was wearing a purple SEIU shirt. They were not chanting or carrying
signs, bullhorns or noisemakers. There is no evidence that they were being disruptive. As they
walked to the cafeteria, a number of SEIU members approached Gulley with questions about
union matters (including about Anthony being banned from the facility), and some employees 30
had brief, inconsequential, interactions with Hamilton. Once in the cafeteria, Hamilton and
Gulley purchased lunch and sat at a table. They had not arranged to meet any union members
in the cafeteria, but did mean to be available if members wished to approach them with
questions, especially since Anthony and Scott had been banned and were not in the facility to
answer questions. These conversations did not disrupt anyone else's meals. Wesman, who 35
knew Gulley but did not recognize Hamilton, saw the two in the cafeteria and proceeded to sit
down at a nearby table and watch them. A number of union members stopped to ask Gulley
and Hamilton questions.
After they finished their meals, Gulley and Hamilton left the cafeteria and walked out 40
towards the main entrance. While walking, Gulley and Hamilton were approached by Morris,
who told him that the Respondent had required Geurts to remove his MNA shirt in the lobby.
While the three were having this conversation, a uniformed security guard approached and
stated that they could not wear their union shirts in the facility. Morris told the security guard
that Hamilton and Gulley were the presidents of the MNA and the SEIU. Gulley asked the 45
security guard if he was removing them from the facility for wearing union shirts. The security
guard said he would be back shortly, and then walked away. Gulley waited outside a coffee
shop near the main entrance while Hamilton visited a restroom. While he was waiting, the
security guard returned, along with a second, more casually dressed, security guard, who
Gulley understood to be a supervisor. The second security guard told Gulley that he could not 50
be in the facility that day with his union shirt on. He also asked Gulley if he was the individual
who had been banned from the facility the prior day. Gulley identified himself to the two guards
JD–49–15
14
as the president of the SEIU and asked if they were removing him from the facility for wearing a
union shirt and talking to members. The guards said that they would consult with the human
resources department, and then they left.
Following this exchange, Hamilton rejoined Gulley and they purchased coffee at the 5
lobby coffee shop. A nurse manager, Germaine Edinger, who was acting as one of the
Respondent's special picket-day "greeters" and an agent of the Respondent, approached Gulley
and Hamilton in the hallway and asked them to change their shirts or cover them. Gulley
responded, "Thank you, no." Then Edinger said "if you are unable to do that that, we would ask
. . . that you leave the building, please." She offered to escort them to the exit. Gulley declined 10
the invitation. Then Hamilton and Gulley headed towards the cafeteria with the intention of,
once again, being available if union members wished to approach with questions. Hamilton also
hoped that their presence in the cafeteria would remind members to participate in the picketing
activity. They had coffee with them.
15
When Hamilton and Gulley arrived at the cafeteria they were surrounded by
approximately six security guards, at least one of whom was a supervisor who tried to block
their path. The supervisory guard told Hamilton and Gulley that they could not conduct union
business in the cafeteria and told them that there were designated areas in the facility for such
activities. Hamilton asked him to define "union business." Then Gulley said that he had been 20
having conversations with members in the cafeteria for as long as he had been with the SEIU
and that he intended to do what he had "historically done in the past." The supervisor security
guard offered to escort them from the premises. Gulley asked if they were removing him from
the premises, "because if you are not going to remove us from the premises, then I am going to
talk with members." Hamilton and Gulley maneuvered past the security guards and approached25
a table where between three and seven union members were already seated. Gulley and
Hamilton had not arranged to meet with these individuals, but Gulley asked if he and Hamilton
could sit down with them and have a break. Someone at the table agreed, and Gulley and
Hamilton sat down.
30
One of the members sitting at the table asked a question, but at that point they were
interrupted by Cahoon who approached with Wesman and security supervisor Ramacher.
Cahoon said that the union representatives and employees could not conduct union business in
the cafeteria. Hamilton asked Cahoon what he meant by "union business," but Cahoon did not
answer. Ramacher asked if they were "here to cause trouble" and Hamilton responded 35
"absolutely not." Then Ramacher asked if they were "planning to go to the units," and Hamilton
replied "no." Someone asked Hamilton to identify herself and she did and explained that she
was associated with the MNA. Cahoon told Gulley, "I am very disappointed in you, very
disappointed in you for conducting union business in the cafeteria." Gulley responded, "Chill
out, Jeff, I am just having a conversation with some members that I know." Cahoon said "Well, 40
are you talking about the Twins, are you talking about union business, just what?" Gulley
responded, "Jeff, I think you know that it is illegal for you to ask me that question while I am
sitting here with these members." Cahoon stated that, since they were in a public cafeteria,
there was nothing to stop him from sitting down next to them. Gulley responded, "That is true,
this is a public cafeteria . . . . [b]ut if your intention is to surveil our conversation to determine if I 45
am talking about the Twins or talking about the Union, then that would also be illegal." Then
Cahoon sat down three to six feet away from Gulley and monitored his activities. Wesman and
Ramacher sat down with Cahoon. After this, the employees who were sitting at the table near
Gulley and Hamilton stopped talking and some or all of them left. Then Hamilton and Gulley left
the cafeteria and the facility. This visit to the cafeteria lasted about 10 minutes. Both Gulley 50
JD–49–15
15
and Hamilton had, in the past, participated in numerous conversations about union business
with off-duty unit members while inside the facility without interference from the Respondent.18
G. MELVIN ANDERSON TERMINATED ON JUNE 27, 2014
5
Anderson worked for the Respondent for eleven years in various capacities, most
recently in the SPD department preparing the sterile instrument kits that are used in operating
rooms. The Respondent terminated him on June 27, 2014, citing his record of tardiness as the
reason. As recounted above, on June 24 (the day of the informational picketing), Wesman
initiated a confrontational exchange with Anderson about a union notice Anderson posted on the 10
bulletin board in the SPD department. At the time of his termination, Anderson had been an
SEIU steward for 7 years. He was also a member of the SEIU's contract bargaining committee,
and one of two employees at the facility who served on the SEIU executive board. As steward,
Anderson participated in grievance meetings on behalf of members about five times each
month. He had had many union-related interactions with Wesman over the years and the two 15
had sometimes disagreed.
The record shows that while Anderson had significant strengths as an employee, he
also had a serious tardiness problem.19 Anderson's issues with getting to work on time began
early in his employment and, despite repeated criticism from the Respondent, those problems 20
persisted with only minor interruptions during his decade plus tenure at the facility. Gubbins, his
direct supervisor in the SPD department, credibly testified that tardiness problems were
particularly troublesome in that department because of the costly operating rooms delays that
could result if sterile instruments were not provided in a timely manner. Anderson's tardiness
problem was noted in the annual performance reviews that the Respondent gave him in 2005, 25
2006, 2007, 2009, 2010, 2011, 2012,20 and 2013.21 In approximately April or May 2014,
Anderson received his most recent annual review. In this review, Gubbins stated that Anderson
had been tardy 89 times during the period – 78 times for less than 5 minutes and 11 times for
more than 5 minutes – which was more than twice the number of instances reported in his 2012
and 2013 evaluations. He received the lowest rating, i.e. "not acceptable," in the category that 30
covered tardiness. In the comments section of the 2014 evaluation, Gubbins wrote:
Melvin and I have had numerous conversations about his tardiness. Melvin
understood that he is in violation of the established Tardiness
Guidelines . . . and agreed to hold himself accountable to arrive at work on time 35
following his suspension.

18 As discussed above, the Respondent had once interfered with Gulley in the cafeteria, but
that was at a time when he was on leave from his SEIU position and was present in his personal
capacity to campaign for union office.
19 I do not discuss Anderson's record of absenteeism. The undisputed evidence was that
discipline for tardiness and discipline for absenteeism proceed along completely separate tracks
in the Respondent's system. The Respondent’s witnesses stated that Anderson's record of
absenteeism was not a factor in the decision to terminate him.
20 The 2012 evaluation notes that Anderson had been tardy 34 times during the 12-month
period, and gives him a rating of "marginal" in the category that encompasses tardiness, but
also states that Anderson had shown "significant improvement" in that category.
21 The 2013 evaluation notes that Anderson had been tardy 38 times during the 12-month
period, states that there has been "significant improvement" since a suspension was imposed,
but gives him the lowest rating, i.e., "not acceptable," in the category that encompasses
tardiness.
JD–49–15
16
After review of the 12 month attendance calendar there is little evidence of signs
of improvement, and he continues to be in violation of the Tardiness Guidelines.
Melvin has had only two pay periods in the past 12 months when he has been on
time to work every day. The expectation is to be changed and in the department
at the start of his shift. 5
It is my responsibility to notify Melvin immediately that this behavior is
unacceptable and is in violation of the established Tardiness Guidelines.
Acountability and Teamwork are both important values and expectations to
achieve both for himself and the Team he is part of.
10
An attachment to the evaluation noted that Anderson needed to "improve immediately" and that
the target date for improvement was "now." General Counsel Exhibit Number (GC Exh.) 29
(Individual Development Planning Template). These comments were more pointed on the
subject of tardiness than had been those appearing in any of the eight prior evaluations that
were made part of the record. However, Anderson received favorable ratings in most of the 15
areas covered by the same 2014 evaluation. Gubbins gave Anderson the highest possible
rating – "mastery" – in the Teamwork/Partner category and the second highest rating – "solid" –
in the three remaining categories.
The Respondent also issued tardiness-based discipline to Anderson on several 20
occasions. This discipline included a written warning on January 7, 2008, a verbal warning on
January 25, 2011, verbal warnings on April 18 and June 13, 2012, a written warning on July 10,
2012, a written warning on November 30, 2012, and a 1-day suspension on July 1, 2013.22 All
of these disciplinary notices list both the number of times Anderson was late by over 5 minutes
and the number of times he was late by less than 5 minutes. The 2008 disciplinary notice25
warned Anderson that "Discernible patterns of tardiness may serve as an indication of an
absenteeism problem and may result in an acceleration of the Formal Performance
Improvement process."
The Respondent's tardiness guidelines, which were mentioned in Anderson's disciplinary 30
notices and of which he was aware, have been in effect since at least April 5, 2008. The
guidelines include a chart setting forth the number of times that an employee who, like
Anderson, is working full-time can have tardiness “occurrences” of 5 minutes or more before
triggering various levels of discipline. That chart indicates that a full-time employee will be
subject to: coaching at 6 occurrences; a verbal warning at 9 occurrences; a written warning at 35
12 occurrences; a suspension without pay at 15 occurrences; and termination at 18
occurrences. This disciplinary chart does not indicate that any level of discipline is appropriate
based on tardiness of less than 5 minutes, however, the guidelines include the following
language:
40
For the purpose of performance improvement, any clocking 5 minutes or later
than the scheduled start time will be considered serious and subject to the
Formal Performance Improvement process. Clocking in less than 5 minutes will
be addressed during the annual performance appraisal. However, a discernible
pattern of lateness less than 5 minutes may also be addressed through the 45
Formal Performance Improvement Process. Tardiness will be tracked on a
rolling 12 month period, counting back from the most recent occurrence or
tardiness.

22 The July 1, 2013, suspension document references a prior suspension on January 9,
2013, but the record does not contain a disciplinary document for a January 9 suspension and
does not establish whether any such suspension was based on tardiness.
JD–49–15
17
Consideration may be given for prior attendance and/or work history, any
unrecognized FMLA issues, or any unknown or special considerations that may
be presented.
GC Exh. 25(b) (emphasis in original). These tardiness guidelines are not part of the collective 5
bargaining agreement covering the unit of which Anderson is a member.
On June 9, 2014, Gubbins began to explore the possibility of assessing additional
discipline for Anderson's ongoing tardiness. The record shows that despite the warning
contained in the performance evaluation that Anderson received in May 2014, he continued to 10
have tardiness problems in May and June. The record shows that he was tardy on May 5, 7,
14, 26, and 29, and on June 4, 9, and 11.23 In a number of these instances he was late by less
than 5 minutes, but in others he was considerably later. At the same time the records are
reasonably read as showing at least some improvement in this regard. Anderson’s May
performance evaluation stated that he had been tardy a total of 89 times during the preceding 15
12 months, while his June termination notice stated that he had been tardy a total of 80 times
during the 12 months preceding June 13, 2014.
On June 9, Anderson clocked in 45 minutes late, and it was that day that Gubbins sent
an email to Stacey Sylvester, who oversaw attendance matters for the Respondent, and asked 20
for advice on whether the appropriate discipline was a written warning or another suspension.
In the email, Gubbins noted the 45-minute tardiness, and also stated that Anderson had been
more than 5 minutes late on 12 occasions during the last rolling 12-month period. The next day,
Sylvester told Gubbins that what was appropriate under the tardiness guidelines was a written
warning, unless it should be "bumped up to another suspension" given that he had already been 25
suspended once. She suggested that Gubbins contact Wesman since Anderson "is in the . . .
union." The next day, June 11, Gubbins forwarded to Wesman the email exchange with
Sylvester in which Gubbins and Sylvester had discussed the possibility of imposing either a
written warning or a suspension. Gubbins asked Wesman for his recommendation. Wesman
responded later that day by requesting additional information about Anderson’s tardiness 30
record, and Gubbins supplied that information. After receiving the information, Wesman, in a
June 11 email, asked Gubbins “What would you like to do?” He did not make a
recommendation about the appropriate level of discipline or suggest that the range of discipline
that Gubbins and Sylvester had been considering (written warning or suspension) was too
lenient. In a June 12 email, Wesman reminded Gubbins that "tardiness is separate from 35
attendance and has to be handled separately," but, once again, he did not make a
recommendation or suggest that the range of discipline being discussed was too lenient.
On June 19, Gubbins again contacted Sylvester by email, asking whether Anderson
could be suspended for 2 days at this point given, inter alia, that he was suspended previously, 40
his tardiness record was "not good," and he had been attempting to excuse absences by using
Family and Medical Leave Act (FMLA) leave at a time when he had exhausted his FMLA
allotment. Sylvester indicated she needed more information. On June 25, Gubbins sent an
email to Sylvester supplying some additional information and proposing to suspend Anderson
without pay for 2 days. That email stated in part:45
With 13 occurrences of tardy greater than 5 minutes and 71 less than 5 minutes
where do we go from here[?] Based on the guidelines can we do a 2 day unpaid

23 The record does not show exactly when in May the annual evaluation was presented to
Anderson, and it is not possible to tell how many of the instances of tardiness in May occurred
after that evaluation.
JD–49–15
18
suspension? Since there is a discernible pattern of consistently being late. If so,
send me the paperwork. When I asked George [Wesman], he asked me what I
wanted to do[.] I want to move forward as this is not fair to his co-workers.
Sylvester again indicated that she thought Gubbins should consult with Wesman5
Later on June 25, Gubbins forwarded a draft disciplinary notice to Wesman that would
have imposed a 2-day unpaid suspension on Anderson for tardiness and in the transmittal email
asked "How does this look to you?" Wesman responded 16 minutes later, stating: "Judy, I do
not agree. Termination is more than warranted and we will lose consistency when others are 10
terminated for much less." This June 25 email from Wesman was the first time in the record
where the possibility of terminating Anderson for tardiness was mentioned in any of the
discussions leading to the action.24 This email was sent just one day after the confrontational
exchange that Wesman initiated with Anderson about a union posting on the SPD bulletin
board, and also a day after the informational picketing. The record indicates that Anderson had 15
not been tardy at all between June 12 (when Wesman did not challenge the range of discipline
being considered by Gubbins) and June 25 (when Wesman challenged that level of discipline as
insufficiently harsh and suggested that only termination would suffice).
After receiving Wesman's advice that Anderson be terminated, Gubbins forwarded the 20
email chain to her supervisor, Kendall Hicks and asked: "George [Wesman] is suggesting
termination after reviewing the attached. The grid says termination at 18 occurrences but the
significance of the <5 minute occurrences is a discernible pattern??" Gubbins was not required
to follow Wesman's advice about what level of discipline she should impose. In this case,
however, without waiting to hear back from Hicks, Gubbins changed her draft discipline from a 25
2-day suspension to the termination that Wesman recommended. Gubbins testified that, in her
view, what made Anderson worthy of termination was that even after Anderson's most recent
performance evaluation he had continued to be tardy, including for 45 minutes on one occasion.
Gubbins denied that Wesman, or anyone else in management, told her that Anderson should be
terminated because of his union activity (as opposed to his tardiness), or that Anderson's union 30
activity influenced her own decision. She did not, however, claim that she would have
terminated Anderson if Wesman had not objected to her plan to impose a lesser level of
discipline.
On June 25, Gubbins forwarded a copy of a draft termination notice for Anderson to 35
Wicklander. Under the Respondent's procedures, Gubbins was required to obtain Wicklander's
approval prior to suspending or terminating a supervisee. Later that day, Wicklander responded
"I support." When Gubbins verbally communicated this to Hicks, Hicks stated that he had not
yet reviewed Gubbins’ email asking him about the appropriate level of discipline, but that
Gubbins should proceed with the termination given that Wicklander had approved it. The 40
termination notice stated, inter alia:

24 Gubbins gave vague testimony that it is possible to construe as stating that Wesman had
recommended termination at some point "between June 12 and June 25." Upon carefully
reviewing this testimony, I conclude that it does not indicate that Wesman recommended
termination prior to June 25 because "between" June 12 and June 25 may reasonably be
understood as encompassing June 25. Also the question to which Gubbins was responding
when she stated that Wesman recommended termination was "What discipline did Mr. Wesman
think was appropriate for Mr. Anderson?" That question does not expressly, or by reasonable
inference, refer back to the prior testimony about the June 12 to June 25 period. See Transcript
at Page(s) (Tr.) 577 lines 2 to 7.
JD–49–15
19
Since your last Formal Performance Improvement (Suspension) on tardiness on
July 13, 2013 you have had 11 more occurrences of coming to work late 5
minutes or greater and 69 occurrences less than 5 minutes. We have been more
than patient with you and have allowed you ample time to correct your tardiness
problem. The 80 occurrences in which you have come to work late meets or 5
exceeds the maximum number allowed per the tardiness guidelines for a 80
h[ours ]p[er ]p[ayperiod] full time employee to be suspended.
Due to your continued pattern of tardiness your employment at N[orth ]
M[emorial ]H[ealth ]C[are] is being terminated immediately. 10
The termination notice was identical to the draft suspension notice that Gubbins had originally
prepared, except for those portions discussing the level of discipline being imposed. Although
the termination was not prepared until June 26, it was dated June 16 because that was the end
of the most recent pay period, and Gubbins was basing Anderson's tardiness figures on the 12-15
month rolling period that ended on June 13, 2014.25
On June 27, Gubbins brought Anderson to her office and told him that he was
terminated for tardiness. Anderson responded that he did not believe his tardiness record
justified termination under the tardiness guidelines. Gubbins said, "Melvin, we are not 20
terminating you for occurrences, we are terminating you for a pattern of tardiness." Anderson
asked for a copy of the documentation that the Respondent was relying on. Gubbins provided a
printed spreadsheet that noted, inter alia, Anderson's clock-in time for every workday from June
17, 2013 to June 13, 2014. Anderson made handwritten notes recording the date and clock-in
time of instances when the documentation indicated that he had been tardy during the 12-month 25
period. Anderson's notes show approximately 80 instances of tardiness during the 12-month
period, of which 11 were “occurrences” of 5 minutes or more. The SEIU grieved Anderson's
termination and Wesman denied that grievance. In an email dated August 20, 2014, the SEIU
asked to move the matter of Anderson's termination to arbitration, but neither side has
requested an arbitration panel.2630
The Respondent and the General Counsel both presented evidence regarding the
Respondent's treatment of other employees who had records of arriving late for work. Of the six
employees that the Respondent introduced evidence about, two were terminated. The
disciplinary document for one of the terminated employees is dated January 22, 2011, and 35
notes that the employee had been suspended for tardiness on December 6, 2010, and that
during the 6-7 week period since then had been late by 5 minutes or more an additional nine
times. Respondent's Exhibit Number (R Exh.) 70. The disciplinary notice states that the
individual had been tardy a total of 35 times during the last 12 months, but it is not clear whether
this refers only to tardiness of 5 minutes and greater, or to all instances. The other termination 40
notice, dated March 20, 2012, states that during the past 12 months the individual had been late
by 5 minutes or more on 35 occasions, and had a total of 79 instances of tardiness. R Exh. 69.
Previously, on July 1, 2011, the Respondent had issued this same employee a disciplinary
notice stating that she had been late by 5 minutes or more on 62 occasions during the past 12
months. At that time the Respondent did not terminate the employee but warned that she would 45
be terminated the "next time she is late or doesn't punch in." In addition, on April 5, 2011, the

25 The disciplinary documents in the file include other instances where, as with Anderson,
tardiness-related discipline was dated days, or weeks, prior to the date the discipline was
presented to the employee.
26 Under the collective bargaining agreement covering Anderson, both the SEIU and the
Respondent had the right to submit the grievance to arbitration.
JD–49–15
20
Respondent imposed a 3-day unpaid suspension on this employee, stating that during a period
of approximately 8 months, she had been late by more than 5 minutes a total of 44 times, and
by less than 5 minutes 24 times. The Respondent issued a written warning dated April 16,
2009, to a third employee, this time stating that the employee had, during the past 12 months,
been late by 5 minutes or more 15 times, and late by less than 5 minutes 33 times. R Exh. 67. 5
A fourth employee received a suspension notice on February 17, 2012, which stated that the
Respondent had previously given her a written warning for tardiness, and yet during the past
five pay periods – a period of 10 weeks – she had been late a total of 21 times of which 10 were
for 5 minutes or more. A fifth employee received a 1-day, unpaid, suspension dated June 16,
2012, and the suspension notice stated that the employee had received two prior written 10
warnings, and that during the past 4 months she had been late by 5 minutes or more 17 times
and by less than 5 minutes an additional 23 times. R Exh. 72. The sixth employee received a
written warning for tardiness, dated July 16, 2014, which stated that the Respondent had twice
before met with her about the issue and that from June 6 to July 11 she had been late by more
than 5 minutes four times and late by less than 5 minutes five times. Wesman did not 15
recommend a more severe level of discipline than the supervisor proposed in any of these
instances. Human resources, the area in which Wesman works, is consulted about discipline for
tardiness, but it is not clear in how many of the above instances Wesman performed a review.
The General Counsel submitted disciplinary records regarding a number of employees 20
who had problems with tardiness in 2013 and 2014, but were not terminated. GC Exh. 32. One
employee received a written warning on July 16, 2013, which stated that she had had 15
occurrences of tardiness in a 12-month period. The warning does not state whether this only
included tardiness of greater than 5 minutes, or whether it included all tardiness. A second
employee received a written warning dated November 3, 2014, which stated that she arrived an 25
hour and 20 minutes late for work that day and that she had five occurrences in the past year.
A third employee received a verbal warning on July 8, 2014, which stated that she had received
prior "informal and formal performance improvement" because of tardiness, but that she had
eleven "occurrences" of tardiness in the past 12 months. A fourth employee received a verbal
warning dated October 8, 2013, stating that during a period of less than 3 months she had been30
over 5 minutes late for work 16 times, and 1 to 5 minutes late 27 times. In the case of a fifth
employee, the Respondent issued a written warning dated December 11, 2013, which stated
that during a period of less than 3 months the employee had been late to work by 5 minutes or
more on nine occasions and 1 to 4 minutes late on 16 occasions. A sixth employee was
terminated on July 16, 2014, after being tardy 74 times since May 6, 2013. The termination 35
notice does not state whether all of these are occurrences of greater than 5 minutes or more.
Prior to being terminated, this employee received a "last and final warning."
The record shows that during the period leading up to Anderson's termination there were
a number of other union stewards at the facility and none of the other stewards was disciplined 40
or discharged at around the same time. The record does not show, however, that any of the
other stewards had either recently been confronted by Wesman about their union activities or
were known by Wesman to be actively involved in preparations for the informational picketing.27

27 In its brief, the Respondent asserts that all of the other union stewards were promoting the
informational picketing activity. Brief of Respondent at Page 77. However, the record citation
that the Respondent provides for this – Tr. 687-688 – does not support it. Indeed that portion of
the record does not show that Wesman believed any other steward was involved in promoting
the picketing and certainly does not show that he believed any were as actively involved as he
knew Anderson to be. See Ibid. (Wesman is asked whether any of the other stewards were
involved in union activities leading up to the informational picketing, and he responds "They may
have been.").
JD–49–15
21
Nor was it shown that, during the period around June 2014, Wesman had been consulted about
discipline proposed for any of the other stewards.
The Respondent's tardiness guidelines explicitly call for consideration of the employee's
work history in assessing discipline for tardiness. Neither Gubbins nor Wesman explained what, 5
if any, consideration was given to Anderson's strengths as an employee (a number of which
Gubbins acknowledged) or his long tenure with the Respondent. Wesman testified that "we try
to be as fair as we can," and take into account "individual circumstances" such as length of
service and whether the tardiness took place over a long period of time, but did not state if, or
how, this was done in Anderson's case. When initially asked whether the Respondent 10
considered the quality of an employee's work when deciding on discipline for tardiness he
answered "[n]o," but when pressed he said that whether or not the Respondent takes the
employee's work quality into account "depends" based on "[m]anagerial discretion and, yes, HR
would be consulted."
15
H. RESPONDENT PREVENTS ANDERSON FROM ENGAGING IN
UNION ACTIVITY IN THE CAFETERIA ON AUGUST 21, 2014
After the Respondent terminated Anderson, the SEIU hired him as an internal organizer.
The SEIU assigned him to four facilities, including the Respondent's – from which management20
had recently banned Anthony. Anderson entered the Respondent's facility in the afternoon on
August 21, 2014, and proceeded to the cafeteria. He brought a small, rolling, backpack in which
he had various union flyers and materials. As he walked, he talked to employees and in some
cases handed them union materials. He purchased a cup of coffee in the facility's lobby and
then proceeded to the cafeteria where he sat at a table at which a number of SEIU members25
were present. While still in the cafeteria, Anderson noticed an employee, Linette Combs, with
whom he was not acquainted and who was sitting alone having lunch. Anderson approached
her and said, "I never met you before, you must be new." He told her his name and said that he
was an internal organizer with the SEIU. Combs was, in fact, a new employee and neither she,
nor Anderson, knew whether the SEIU represented her.2830
Anderson had been speaking to Combs for about 5 minutes, a conversation that Combs
testified was not unpeaceful, when Wesman approached them. No one else was in the
immediate vicinity. Wesman did not introduce himself to Combs, but asked to speak to
Anderson. Anderson indicated that he needed some time to wrap up his conversation with 35
Combs and gather his things. Anderson gave Combs his business card and union flyers. Then
Anderson said that Wesman should speak to him in front of Combs so that she could witness
what was said.29 Wesman told Anderson that he wanted to talk in private and Anderson
followed Wesman towards the exit of the cafeteria. Wesman told Anderson that he was "not
allowed to conduct union business and activities in the cafeteria." Anderson said that he was 40
acting consistently with "a long standing practice," and Wesman countered that "[w]e have
never allowed the unions in our cafeteria." Wesman stated that the Respondent was "not going
to tolerate [Anderson's] continued breaking of the contract, and holding meetings in the
cafeteria," and that this was going to be Anderson's "final warning" and that if he continued he

28 Combs was not, in fact, represented by the SEIU.
29 Anderson claimed that Wesman was loud and acted in a physically aggressive manner
during this exchange, but Wesman denies that. Combs' testimony was supportive of Wesman
in this regard, and Chelsa Boyd, a friend of Anderson's who was present in the cafeteria, gave
testimony that lent support to Anderson's account. After reviewing the testimony, and
considering the demeanor of the witnesses, I do not find a basis for crediting Anderson's and
Boyd's accounts over Wesman's denial and Comb's testimony supportive of that denial.
JD–49–15
22
"would be trespassed and arrested." On the way out of the cafeteria a former co-worker of
Anderson's indicated curiosity about what was going on and Anderson answered that he was
"being kicked out." Once Wesman had led Anderson from the cafeteria, a security guard
escorted Anderson out of the facility. Other than this incident, no manager or supervisor had
ever interfered with Anderson's conversations in the cafeteria or told him what he could or could 5
not talk about there. Employees frequently discussed matters involving the SEIU while they
were in the cafeteria, and one such employee, Chelsa Boyd, credibly testified that she was not
aware of any restriction on what they talked about there.
In the immediate aftermath of this incident, Wesman identified himself to Combs and had 10
her turn over the flyers that Anderson had provided.
I. COMPLAINT ALLEGATIONS
The complaint alleges that the Respondent violated Section 8(a)(1) of the Act: on about 15
February 10, 2014, by denying an SEIU representative access to a bulletin board designated for
use by the SEIU in the unit known as "4SW"; on June 23, 2014, when Cahoon threatened a
representative of the SEIU, a representative of the MNA, and employees, that they were
prohibited from engaging in union discussions in the cafeteria and threatened to file charges if
discussions about unions continued; on June 23, 2014, when Cahoon, in a break room and in 20
the presence of employees, threatened representatives of the SEIU and the MNA that they were
engaged in trespass by entering the break room and posting information on a bulletin board
there; on June 23, 2014, by removing SEIU representative Anthony and MNA representative
Scott from its facility and banning them from the facility for one year; on June 23, 2014, when
Gubbins prohibited an employee from posting information relating to informational picketing on a 25
bulletin board in the SPD area; on June 24, 2014, when the Respondent, by its security guards,
surrounded and followed representatives of the SEIU and MNA in order to interfere with their
ability to meet and talk to employees; on June 24, 2014, when the Respondent’s security guards
and two of its nurse managers, in the presence of employees, threatened representatives of the
SEIU and the MNA that they had to leave the hospital because they were wearing shirts with 30
union insignia on them; on June 24, 2014, when Cahoon prohibited representatives of the SEIU
and the MNA from discussing those unions with employees in the cafeteria; on June 24, 2014,
when Cahoon and Wesman engaged in surveillance of employee union activity in the cafeteria;
on June 24, 2014, when Abrams, in the facility lobby, instructed an employee to immediately
remove an MNA shirt, thereby requiring the employee to walk shirtless to the locker room; on 35
June 24, 2014, when Wesman interrogated an employee about union activities, including
whether the employee posted information about informational picketing, and threatened that the
employee's union activities were under surveillance; and on August 21, 2014 when Wesman, in
the cafeteria and in the presence of employees, threatened to have an employee/union
representative arrested if he conducted union business in the cafeteria again, and had the 40
employee escorted out of the facility by security guards.
The complaint also alleges that through much of the same conduct alleged to violate
Section 8(a)(1), the Respondent also violated Section 8(a)(5) and (1) because that conduct
constituted changes in terms and conditions of employment about which the Respondent had 45
not bargained in good faith. Specifically, the complaint alleges that the Respondent violated
Section 8(a)(5) and (1): on about February 10, 2014, when it denied an SEIU representative
access to a bulletin board designated for use by the SEIU in the area known as "4SW" without
giving the SEIU notice and an opportunity to bargain; on June 23, 2014, when Cahoon, in the
cafeteria, prohibited a representative of the SEIU, a representative of the MNA, and employees50
from engaging in union discussions, without giving the SEIU and the MNA notice and an
opportunity to bargain; on June 23, 2014, when Cahoon, in a break room and in the presence of
JD–49–15
23
employees, stated that representatives of the SEIU and the MNA were engaged in trespass by
entering the break room and posting information on a bulletin board there, without giving the
SEIU and the MNA notice and an opportunity to bargain; on June 23, 2014, when the
Respondent removed SEIU representative Anthony and MNA representative Scott and from its
facility and banned them from the facility for one year without giving the SEIU notice and an 5
opportunity to bargain;30 on June 23, 2014, when Gubbins prohibited an employee from posting
information in the SPD area without giving the SEIU notice and an opportunity to bargain; on
June 24, 2014, when Cahoon prohibited representatives of the SEIU and the MNA from
discussing union matters with employees in the cafeteria without giving the SEIU and the MNA
notice and an opportunity to bargain; and on August 21, 2014, when Wesman threatened to 10
have an employee/union representative arrested if he conducted union business in the cafeteria
again, without giving the SEIU notice or an opportunity to bargain.
The complaint also alleges that the Respondent violated Section 8(a)(3) and (1) on June
27, 2014, by terminating Anderson because of his protected union and concerted activities. 15
III. ANALYSIS AND DISCUSSION
A. DEFERRAL ARGUMENT20
The Respondent contends that, under Collyer Insulated Wire,31 I should defer every one
of the numerous claims alleged in the complaint to resolution through the parties' grievance and
arbitration process. The General Counsel counters that none of the claims are appropriate for
deferral. Whether deferral to arbitration is appropriate is a threshold question that must be 25
decided in the negative before the merits of the unfair labor practice allegation can be
considered. L.E. Myers Co., 270 NLRB 1010, 1010 fn. 2 (1984). The deferral defense and the
merits may be addressed in the same hearing and the same decision, see, e.g., Faro Screen
Process, Inc., 362 NLRB No. 84 (2015), and that is what I do here.
30
The Board has stated that deferral is appropriate when the following factors are present:
(1) the parties' dispute arises within the confines of a long and productive
collective-bargaining relationship; (2) there is no claim of employer animosity to
the employees' exercise of Section 7 rights; (3) the parties' agreement provides 35
for arbitration in a very broad range of disputes; (4) the parties' arbitration clause
clearly encompasses the dispute at issue; (5) the party seeking deferral has
asserted its willingness to utilize arbitration to resolve the dispute; and (6) the
dispute is well suited to resolution by arbitration.
40
San Juan Bautista Medical Center, 356 NLRB No. 102, slip op. at 2 (2011); Wonder Bread, 343
NLRB 55, 55 (2004).32 Deferral is not appropriate in the instant case because the second,

30 The complaint alleges that the Respondent failed to meet its bargaining obligations to the
SEIU in violation of Section 8(a)(5) and (1) when it removed and banned SEIU representative
Anthony and MNA representative Scott. The complaint does not allege that this conduct
violated the Respondent's bargaining obligation with respect to the MNA, even though one of
the two banned individuals was an MNA representative.
31 192 NLRB 837, 839 (1971)
32 In Babcock & Wilcox Construction Co., 361 NLRB No. 132 (2014), the Board made certain
modifications to the standards for deferral to arbitration, but stated that the new standards would
generally only be applied prospectively and not to cases, such as the instant one, that were
JD–49–15
24
fourth, and sixth factors set forth by the Board are not present. Regarding the second factor,
this is decidedly not a case where there is no claim of animosity to employees' exercise of
Section 7 rights. Rather, the General Counsel explicitly claims that the Respondent's conduct
was an example of "over-the-top animus toward these unions and toward the employees'
Section 7 rights." Transcript at Page(s) (Tr.) 11. The General Counsel argues that the 5
Respondent reacted to the SEIU's and MNA's unprecedented joint picketing activity by
"escalating its animus-driven conduct" and committing "a catalog of 8(a)(1) surveillance,
interrogation, threats, interference" and other violations directed at the Unions' protected
activities at the facility. Tr. 8ff. In addition, the claim that Anderson was discriminatorily
discharged because of his union and protected concerted activities encompasses an allegation10
that the Respondent was motivated by unlawful animus towards those activities.33 According to
the General Counsel's theory, Anderson was discharged as part of a wave of animus-driven
conduct occasioned by the joint picketing and which was directed at Anderson because of his
known protected activities as a union steward and official, including those in support of that
picketing. See Mobil Oil Exploration & Producing, 325 NLRB 176, 177-178 (1997) (deferral is 15
not appropriate when the precipitating event leading to an employee's termination is the
employee's protected activity), enfd. 200 F.3d 230 (5th Cir. 1999); see also Nissan Motor Corp.,
226 NLRB 397, fn.1 (1976) (the very nature of a case dictates nondeferral when it involves
discipline of steward in reprisal for grievance activities). It is not clear to what extent I am
required to weigh the evidence relating to animus at this point, as opposed to simply noting that 20
the General Counsel claims animus, since that evidence goes to the merits of the complaint and
whether deferral is appropriate is a pre-merits inquiry. At any rate, for the reasons discussed in
the section of this decision analyzing the merits, there is ample evidence that the Respondent
bore animus towards the union activities of the SEIU and MNA.
25
The sixth factor set forth by the Board is also not met because the disputes are not well-
suited to resolution by arbitration. "A dispute is well suited to arbitration when the meaning of a
contract provision is at the heart of the dispute." San Juan Bautista, supra; see also Collyer,
192 NLRB at 842. Deferral is not appropriate when any contract provisions that are involved
are unambiguous. Ibid. The majority of the complaint allegations in this case revolve around the 30
Respondent's efforts to prohibit employees and non-employee representatives from engaging in
union activities in the facility's cafeteria, lobby, and bulletin board areas. Contract language is
not at the heart of those allegations. Contrary to the Respondent's suggestion, neither the SEIU
contracts nor the MNA contract contains any language whatsoever that prohibits the Unions
from accessing those, or any other areas, at the facility for the purpose of engaging in union 35
activities. The contractual provisions that the Respondent relies on to justify the prohibitions do
not state limitations on union activities, but rather impose affirmative duties on the Respondent
to provide certain access. Specifically, the contracts with the SEIU require the Respondent to
provide access at all reasonable times to bulletin boards at the facility and to "nonpatient
nonpublic" areas "designated" by the Respondent for purposes of the SEIU's representational 40
activities. Likewise, the contract with the MNA obligates the Respondent to "provide multiple
bulletin board spaces in locations accessible to nurses for the posting of meeting notices and
related materials." These provisions do not set forth prohibitions on union activity at the facility
or indicate that the affirmative obligations that the Respondent is agreeing to undertake are in
derogation of any of the rights that the SEIU, the MNA, and unit employees have under Section 45
7, Section 8 (a)(1), (3) and (5) of the Act or relevant case law.

already pending at the time the change was announced.
33 See Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied, 455 U.S. 989 (1982), approved in NLRB v. Transportation Corp., 462 U.S. 393 (1983).
JD–49–15
25
To the extent that the Respondent means to suggest that statutory access rights have
been implicitly surrendered by the failure of the parties to mention them in the contracts, that
argument is foreclosed by the Board’s holding that Section 7 rights are “not waived by their
absence from the governing collective-bargaining agreement,” Chevron U.S.A., Inc., 244 NLRB 5
1081, 1085 (1979), and that a labor contract will not be seen as surrendering such rights
“unless” such surrender is “expressed in clear and unequivocal language,” Textron Puerto Rico,
107 NLRB 583, 587 (1953). See also Johnson-Bateman Co., 295 NLRB 180, 184 (1989) (“It is
well settled that the waiver of a statutory right will not be inferred from general contractual
provisions; rather, such waivers must be clear and unmistakable.”). The contract language 10
pointed to by the Respondent does not even suggest the surrender of such rights, much less
express such surrender in the necessary clear and unequivocal language. In fact, Bialke,
writing to the Respondent on January 24, 2014, emphasized that the SEIU had never “given up
our rights under the National Labor Relations Act to have access to public areas and specifically
the cafeteria.” This is not to say that the Respondent is foreclosed from arguing that it can 15
lawfully restrict protected activities in certain areas of the facility, but only that the question must
be analyzed under the relevant statutes and case law and does not present a legitimate dispute
about the interpretation of contract language. Disputes such as these, which turn primarily on
the interpretation of statute and case law are not, "eminently well-suited to resolution by
arbitration," and are not deferred by the Board. Avery Dennison, 330 NLRB 389, 390-39120
(1999) ("The Board's policy against deferral in matters of statutory interpretation is well
established. Moreover, established Board policy also disfavors bifurcation of proceedings that
entail related contractual and statutory questions, in view of the inefficiency and overlap that
may occur from the consideration of certain issues by an arbitrator and others by the Board.").
25
In reaching the conclusion that the disputes at issue here are not suited to arbitration, I
considered that the General Counsel has stated that the Respondent, by prohibiting non-
employee union representatives from accessing employee break rooms and updating the union
information on bulletin boards, made a unilateral change from the established practice under the
contractual language. However, while this argument references the contractual language, its 30
resolution does not turn on that language, which sheds no meaningful light on the subject.
While the SEIU and MNA contracts both discuss access to bulletin boards, neither includes any
language providing that the Unions may access every bulletin board at the facility or identifying
which bulletin boards are available for the Unions’ use. Nor do those contracts make any
reference to break room access. Indeed, in the case of the MNA, the contract language only 35
discusses nurses having access to bulletin boards, and does not discuss non-employee MNA
representatives such as Scott. The question of whether the Respondent made a unilateral
change by prohibiting the SEIU and MNA from accessing particular break rooms and bulletin
boards turns on the evidence regarding the employees' past practice not on the interpretation of
ambiguous contract language. 40
Contractual language is also not at the heart of the dispute relating to the Respondent's
decision to terminate Anderson. Resolution of that claim does not require interpretation of an
ambiguous contract provision, but rather analysis of the evidence of discrimination and of the
Respondent’s explanation for the termination. There is a contract provision in the SEIU contract 45
for the service workers unit that prohibits discrimination against an employee on the basis of
"membership or nonmembership in the Union," but that is too narrow to cover the claim
regarding Anderson's termination. The General Counsel is not contending that Anderson was
discriminated against solely for being a member of the SEIU, but rather that he was
JD–49–15
26
discriminated against because of his extensive activism on behalf of the SEIU.34 Moreover, the
Respondent's tardiness standards are not set forth in the collective bargaining agreement.
The factor requiring that the employer's arbitration clause clearly encompass the dispute
is not met either. The grievance and arbitration procedures set forth in the SEIU contracts 5
covering the large service workers unit and the home health workers unit provide that that
process is available for disputes "relating to the interpretation of or application of the express
terms and provisions of" the contract. The SEIU contracts covering the LPN unit and the
pharmacists have similar language, which limit application of the procedure to disputes "relating
to the interpretation of or adherence to the terms and provisions" of the contracts. Similarly, the 10
grievance and arbitration provision in the contract with the MNA provides that it applies to "any
controversy arising over the interpretation of or the adherence to the terms and provisions of
this Agreement." As discussed immediately above, the disputes over access that give rise to
most of the complaint allegations are not about the interpretation and application of ambiguous
provisions in the contract, but rather over the evidence regarding past practice and the alleged 15
changes to that practice, and the interpretation of the relevant legal authority. Moreover, even if
one assumes that the 8(a)(5) allegations regarding access to particular bulletin boards and
break rooms is encompassed by the contractual arbitration clauses, that would not mean that
the grievance/arbitration process would cover the 8(a)(1) allegations that the Respondent used
threats, interrogation, surveillance, and trespass/bans to pressure non-employee union officials20
to limit their Section 7 activities, nor would the arbitration process provide a remedy for any such
violations. Therefore, the claims regarding access presented here are not clearly encompassed
by the grievance and arbitration procedures in the SEIU and MNA contracts.
Regarding the claim that the Respondent's discharge of Anderson was discriminatory in 25
violation of Section 8(a)(3), the same conclusion is appropriate. I considered that the collective
bargaining agreement that applies to Anderson states that discharge decisions may be
challenged through the grievance/arbitration process as being "without just cause." See GC
Exh. 2 at Page 25, Article 9. However, that inquiry would only go part of the way towards
resolving the question, presented by the complaint, of whether discrimination in violation of the 30
Act led the Respondent to discharge Anderson. Indeed, even if in the grievance process the
Respondent were to show that a nondiscriminatory reason sufficient to justify Anderson's
discharge exists (in other words that "just cause" exists) that would not rebut a prima facie case
of discrimination unless the employer showed that it would, in fact, have discharged Anderson
on that nondiscriminatory basis absent his union activities. Monroe Mfg., 323 NLRB 24, 27 35
(1997). Likewise, even if the Respondent could not establish that just cause existed for
Anderson's discharge, that would not mean that the evidence showed that the real reason was
Anderson’s union activity.
Finally, I doubt that this dispute can fairly be characterized as occurring within the40
confines of a long and productive collective-bargaining relationship. The SEIU and the
Respondent have had a collective bargaining relationship since the 1940s, and it is fair to
assume that this relationship has been productive at various times, but the record suggests that
when the violations are alleged to have occurred the relationship had taken a decidedly
unproductive turn. The relationship between the Unions and the Respondent had deteriorated 45
to the point that within the matter of a few days around the June 24 picketing the Respondent
decided it was necessary to, inter alia: ban organizers for the SEIU and the MNA from the

34 Obviously the "no discrimination" provision in the SEIU contract would not reach the
access issues, since that provision applies only to an "employee," and Anthony, Scott, Gulley,
and Hamilton were not employees at the time the Respondent interfered with their Section 7
activities.
JD–49–15
27
facility under threat of arrest; discharge a union steward who was on the SEIU's executive
committee and bargaining committee; and attempt to eject the presidents of the SEIU and the
MNA from public areas of the facility and interfere with and monitor those officials’ conversations
with union members. Regardless of whether one believes that the Respondent’s actions were
justified, such clashes are hard to square with the existence of a productive current relationship. 5
Moreover, during the same few days, the Respondent's director of employee and labor relations
told an MNA official that he was preparing for the possibility that the unions might "storm" the
hospital and "disrupt patient care areas" and the Respondent's labor representative chastised
an SEIU steward by stating, inter alia, that if you "give SEIU one little break, then they just take
advantage of it." These circumstances indicate that the relationship between management and 10
the Unions had become toxic at the time of the alleged violations.
The only one of the six factors that is clearly present here is the one requiring that the
Respondent assert its willingness to resort to arbitration. At the hearing, Cahoon emphatically
stated that the Respondent was willing to expeditiously arbitrate any complaint allegations that 15
the Board might defer in this case. Tr. 792-793. Although the Respondent has declined to
allow grievance meetings to occur by phone so that a banned union organizer could participate
in that manner, it did indicate a willingness to hold the meetings off the premises with the
participation of the banned organizer. Thus, I find that this factor is present.
20
Under the factors set forth by the Board, I find that it is not appropriate to defer any of
the claims at issue in this case. The only claims regarding which a grievance arbitration
decision might conceivably be enlightening are the Section 8(a)(5) claims relating to SEIU
access to bulletin boards in break rooms at the facility. As discussed above, I find that those
claims are not appropriate for arbitration, but even if one assumes that, in isolation, they were 25
deferrable, I would not defer because those claims are highly intertwined with, inter alia, the
nondeferrable: Section 8(a)(1) claims regarding bulletin board access; Section 8(a)(5) claims
regarding access to the bulletin boards; Section 8(a)(5) and Section 8(a)(1) claims regarding
activities in the cafeteria and other public areas of the facility; and Section 8(a)(5) and Section
8(a)(1) claims relating to the Respondent's decision to ban union representatives based on 30
union activities. The Board declines to defer where the deferrable allegations are inextricably
related to non-deferrable allegations. Windstream Corp., 352 NLRB 44, 44 fn.1 (2008), affd.
after remand, 355 NLRB 406 (2010). Given the overlap, deferral of the dispute regarding
Anthony's break room activities would result in the type of inefficient, piece-meal, resolution that
the Board has consistently avoided. Daimler Chrysler Corp., 344 NLRB 1324, 1324 fn.1 (2005) 35
(Board disfavors piece-meal deferral of complaint allegations); Avery Dennison, 330 NLRB at
390-391 ("Board policy . . . disfavors bifurcation of proceedings that entail related contractual
and statutory questions, in view of the inefficiency and overlap that may occur from the
consideration of certain issues by an arbitrator and others by the Board.").
40
B. INTERFERENCE WITH NON-EMPLOYEE UNION ORGANIZERS
USE OF THE CAFETERIA ON JUNE 23 AND 24
1. SECTION 8(A)(1)
45
a. Prohibition on Union Activities in the Cafeteria: The General Counsel alleges that the
Respondent interfered with union activities protected by Section 7, and violated Section 8(a)(1):
on June 23, 2014, when Cahoon told Anthony and Scott that they were prohibited from
discussing union matters in the cafeteria with unit employees and threatened that the
Respondent might file an unfair labor practices charge if such discussions continued; and again50
on June 24, 2014, when the Respondent's security guards surrounded Gulley and Hamilton in
the cafeteria to keep them from meeting and talking with employees, when Cahoon told Gulley
JD–49–15
28
and Hamilton that they were prohibited from discussing union matters with employees in the
cafeteria, and when Cahoon, Wesman and security supervisor Ramacher surveilled Gulley's
and Hamilton's conversations with employees in the cafeteria. The Supreme Court and the
Board have both recognized that health care facilities have an interest in preventing patients
from being disturbed, but have held that a health care facility presumptively violates Section 5
8(a)(1) by prohibiting union activities in locations that are not immediate patient care areas. Beth
Israel Hospital v. NLRB, 437 U.S. 483 (1978); St. John’s Hospital & School of Nursing, Inc., 222
NLRB 1150, 1150-1151 (1976), enfd. in part, 557 F.2d 1368 (10th Cir. 1997). The employer has
the burden of rebutting that presumption by showing that the union activity in a non-patient care
area would cause disturbance or disruption. NLRB v. Baptist Hospital, 442 U.S. 773, 781 10
(1979). In NLRB v. Babcock & Wilcox, the Court held that an employer acts unlawfully when it
discriminatorily denies union representatives access to its property while permitting others
access for similar activities. 351 U.S. 105, 112(1956); see also BE&K, 329 NLRB 717, 724
(1999) (same) , enfd. 246 F.3d 619 (6th Cir. 2001), judgment reversed on other grounds 536
U.S. 516 (2002); New Jersey Bell Telephone Co., 308 NLRB 277, 281 (1992) (“It has long been 15
established, however, that a denial of access for Section 7 activity may constitute unlawful
disparate treatment when a property owner permits similar activity in similar, relevant
circumstances.”); Davis Supermarkets, Inc. 306 NLRB 426, 426-427 (1992) (Supreme Court’s
decision in Lechmere “does not disturb the Court’s statement in [Babcock] that “an employer
may validly post his property . . . if [it] does not discriminate against the union by allowing other 20
distribution.’”).
In Baptist Medical System the Board applied these legal standards and found a violation
of Section 8(a)(1) in a case that, like the instant one, concerned the lawfulness of a hospital's
attempt to stop union representatives from using the facility’s public cafeteria for the purpose of 25
engaging in union-related discussions with employees. 288 NLRB 882 (1988), enf. denied 876
F.2d 661 (8th Cir. 1989). The Board explained:
[T]he Respondent violated Section 8(a)(1) by ordering non employee union
organizers . . . to leave its public cafeteria. The Respondent operates the
cafeteria for use by the general public as well as by employees for their meals 30
and breaks. At the time they were ejected, [the two non-employee union
organizers] were using the cafeteria in a manner consistent with its purpose,
meeting with off-duty employees while eating in the restaurant. The Board and
the courts have traditionally held that solicitation in restaurants cannot be
prohibited when, as in this case, the conduct of the nonemployee union 35
organizers is consistent with the conduct of other patrons of the restaurant.
Dunes Hotel & Country Club, 284 NLRB 871 (1987); Harold's Club, 267 NLRB
1167 (1983), enfd. 758 F.2d 1322 (9th Cir. 1985); Ameron Automotive, 265
NLRB 511 (1982); Montgomery Ward & Co., 263 NLRB 233 (1982), enfd. as
modified 728 F.2d 389 (6th Cir. 1984); Montgomery Ward & Co., 256 NLRB 80040
[(1981)],35 enfd. 692 F.2d 1115 (7th Cir. 1982); Marshall Field & Co., 98 NLRB 88
(1952), enfd. as modified 200 F.2d 375 (7th Cir. 1952). To hold otherwise would
license a property owner to prohibit a union organizer from utilizing its restaurant
solely because the organizer was discussing organizational activities. Such a
prohibition, which discriminates on the exclusive basis of the union's organization 45
activity, flies in the face of the Supreme Court's admonition against discrimination

35 In Montgomery Ward the Board held that an employer violated Section 8(a)(1) by
prohibiting union representatives from meeting with employees in its public cafeteria where
those representatives were not creating a disturbance and were using the cafeteria in a manner
consistent with its purpose.
JD–49–15
29
on this basis when determining the propriety of access restrictions. [citing
Babcock & Wilcox]. The Respondent could not prevent [the two non-employee
union organizers] from using its public restaurant in an orderly way, not disruptive
of its business.
5
Baptist Medical System, supra.
I find that in the instant case, as in Baptist Medical, the Respondent violated the Act by
discriminating against the union-related conversations that non-employee union representatives
Anthony, Gulley, Hamilton and Scott were attempting to have with employees in the facility's 10
public cafeteria on June 23 and 24. The Respondent's cafeteria, like the one in Baptist
Medical, was in a medical facility, but was open to the general public as well as to employees.
The record indicates that at the times in question the union representatives were using the
cafeteria in an orderly, non-disruptive, manner. Specifically, the union representatives were
sitting at tables conversing with small groups of off-duty employees. They were not carrying 15
signs, using noisemakers or amplification equipment, chanting, or marching. They were not
going from table to table to solicit employees or making a general offer of union materials to
every employee who passed them. The record does not suggest that union officials attempted
to commandeer a section of the cafeteria for their exclusive use by blocking it off or displaying
signs or banners that would discourage others from entering the area. Indeed, Cahoon made 20
clear that exactly the same cafeteria gathering that Gulley and Hamilton took part in on June 24
would have been fine with the Respondent as long as it did not involve the discussion of union
matters, but rather was confined to a non-union subject such as the Minnesota Twins baseball
team. The fact that the Respondent’s objection was based solely on the union content of the
conversations is further shown by the fact that the Respondent did not take any action to 25
prohibit Scott’s activities with employees in the cafeteria and elsewhere prior to discovering that
he was a union representative. Indeed, the Respondent’s defense that it did not previously
condone Scott’s union activity is based on the assumption that it was unable to distinguish
Scott’s union activities from the permitted activities of non-union visitors until management
discovered that he was a union organizer. See Brief of Respondent at Pages 28-30 and 134-30
135. Thus, Scott's activities with employees in the cafeteria, and his other union activities at the
facility, were not of a type that the Respondent would have prohibited if not for the fact that
those activities concerned union matters. I find that nothing distinguished the small, orderly,
conversations between union representatives and unit members that the Respondent reacted to
with such hostility on June 23 and 24 from other gatherings of cafeteria visitors except for the 35
fact that the Respondent knew that union representatives were present and that union topics
would likely be discussed. The Respondent’s actions were unlawful not only because they
discriminatorily interfered with the union representatives, but because they discriminatorily
interfered with employees who, while on break, chose to ask the union representatives about
the upcoming picketing event. See Jensen Enterprises, Inc., 339 NLRB 877, 878 (2003) (“[A]n 40
employer violates the Act when employees are forbidden to discuss unionization, but are free to
discuss other subjects unrelated to work.”).
The conclusion that the Respondent’s interference with union discussions in the public
cafeteria was discriminatory is buttressed by the fact that the Respondent did not show that it 45
had a written policy or practice that prohibited non-employee visitors from gathering together or
with off-duty employees in the cafeteria to discuss any non-union subject. Indeed the
Respondent did not show that it had ever prohibited an orderly, non-disruptive, cafeteria
gathering of any size where such gathering did not include a union representative. The
Respondent nevertheless suggests that the discrimination in this case should be viewed 50
differently than in Babcock & Wilcox, supra, Beth Israel, supra, and Baptist Medical System,
supra, because of the Supreme Court's intervening decision in Lechmere, Inc. v. NLRB, 502
JD–49–15
30
U.S. 527 (1992). In Lechmere, the Court ruled that an employer did not violate Section 8(a)(1)
by excluding non-employee organizers from its property during an initial organizing campaign
where other reasonable means of access to the employees existed and there was an
established policy prohibiting all non-employees (including, the Court noted, girl scouts and the
salvation army) from engaging in activities on its premises. Ibid. The Respondent's citation to 5
Lechmere is not persuasive in the present circumstances for a number of reasons. First, the
Court's Lechmere holding does not extend to situations, like the instant one, where the unions
are not campaigning to represent employees, but rather are the employees’ recognized
bargaining representatives.36 See, Fred Meyer Stores, Inc., 359 NLRB No. 34, slip op. at 2
(2012) (Lechmere applies to initial union organizing, not where the union is the collective 10
bargaining representative and the contract has an access policy);37 CDK Contracting Co., 308
NLRB 1117 (1992) (same); Wolgast Corp., 334 NLRB 203 (2001), enfd. 349 F.3d 250 (6th Cir.
2003), cert. denied 541 U.S. 936 (2004) (same). Second, the holdings in Baptist Medical
System, supra, and Montgomery & Ward, supra, both squarely rest on the nondiscrimination
rule that the Supreme Court set forth in Babcock & Wilcox, supra, and the Board has made 15
clear that that rule continues to apply after Lechmere. See New Jersey Bell Telephone Co., 308
NLRB 277, 281 (1992) (“the Lechmere decision does not disturb the Court's statement in
Babcock & Wilcox that an employer acts unlawfully when it discriminates by denying a union
access while permitting access to other organizations”); Davis Supermarkets, Inc., 306 NLRB at
426-427 (same).38 Unlike the employer in Lechmere, who showed that its prohibition extended 20
to all non-employees, the evidence here is that the Respondent only prohibited gatherings of the
type at-issue here when it knew that union matters were likely being discussed. Therefore, I
conclude that the standard described in Baptist Medical System, supra, and the cases it relies
on such as Montgomery & Ward, is controlling. In the instant case the Respondent, in clear
violation of the Babcock & Wilcox rule, and the holding in Baptist Medical, prohibited non-25
employee union representatives from engaging in orderly, non-disruptive, gatherings with
employees in a public cafeteria that was not an immediate patient care area when union matters
were a topic of conversation, but permitted similar gatherings that were not union-related.
As discussed above in the analysis of the request for deferral to arbitration, I also reject 30
the Respondent’s contention that the unions, in the relevant collective bargaining agreements,

36 This distinction makes the case for union access even stronger here than in Baptist
Memorial since the union there was not the representative of employees at the facility, whereas
the SEIU and the MNA represented over 1800 employees at the Respondent’s facility.
37 This decision was issued by the 2-member Board that was subsequently invalidated by
the Supreme Court in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). Upon de novo review, a
validly constituted Board affirmed the holding and rationale of the original decision. 362 NLRB
No. 82 (2015).
38 The Respondent contends that in Farm Fresh, Inc. t/a Nicks’, 326 NLRB 997 (1998), the
Board held that the Montgomery & Ward line of cases was effectively overruled by Lechmere.
Brief of Respondent at Pages 96-97 fn.106. However, the Farm Fresh case relied on by the
Respondent was remanded to the Board by the Court of Appeals for the D.C. Circuit and in its
post-remand decision the Board explicitly stated that it was not holding that Montgomery &
Ward was overruled by Lechmere. Farm Fresh, Inc., 332 NLRB 1424, 1425 (2000). The
Respondent cites two other post-Lechmere cases in which the Board held that the employer
was permitted to enforce a no-solicitation/no-distribution rule to prohibit union activity on or near
its property. Brief of Respondent at Page 96-97 fn.106, citing Wal-Mart Stores, 349 NLRB 1095
(2007) and Raley’s Inc., 348 NLRB 382 (2006). In those cases, unlike here, the employer was
not the recognized bargaining representative of employees at the facility and the employer was
enforcing the restriction in a manner that was not shown to discriminate between union and
nonunion activity.
JD–49–15
31
surrendered their Section 7 rights in public areas of the facility. The Respondent has not
pointed to any language in those agreements that surrenders the Unions’ Section 7 rights, much
less any that does so in the clear and unequivocal language required for such a waiver to be
effective. Johnson-Bateman Co., 295 NLRB at 184; Textron Puerto Rico, 107 NLRB at 587.
The SEIU contracts state that, at all reasonable times, the Respondent must provide the SEIU 5
with access to nonpatient nonpublic areas designated by the Respondent, but do not state a
single prohibition on SEIU access or suggest that the SEIU is agreeing to surrender any access
rights it has under Section 7 of the Act. No reference at all is made to the SEIU’s rights in the
public areas of the facility, such as the lobby and cafeteria. In the case of the MNA, the contract
imposes an obligation on the Respondent to provide multiple bulletin boards at the facility for the 10
use of nurses, but does not state, or suggest, that the MNA has surrendered any of its Section 7
rights at the facility.39
For these reasons, I conclude that the Respondent violated Section 8(a)(1) when on
June 23, 2014, it prohibited Anthony and Scott from having union-related conversations with 15
employees in the public cafeteria, on June 24, 2014, when it prohibited Gulley and Hamilton
from having union-related conversations with employees in the public cafeteria, and on June 24,
2014, when its agents physically interfered with Gulley and Hamilton in the cafeteria in order to
prevent them from meeting with, and talking to, employees.
20
b. Threat to File Unfair Labor Practice Charge: The General Counsel also alleges that
the Respondent violated Section 8(a)(1) on June 23, 2013, when Cahoon threatened to file
unfair labor practice charges based on Anthony’s and Scott’s activities in the cafeteria. The
Respondent subsequently filed an unfair labor practice charge over the access issue and the
Board dismissed that charge. Depending on the circumstances, the Board will sometimes find a 25
violation of Section 8(a)(1) when an employer threatens to file an unfair labor practices charge
with the Board in reaction to union-related activity. The Board found a violation in Flamingo Las
Vegas Operating Company, 360 NLRB No. 41 (2014), when the employer threatened to file an
unfair labor practice charge against an employee who was a union proponent and who had
asked other employees how they had voted after the union failed to garner a majority of votes in 30
a representation election. In Sheller-Globe Corp., 296 NLRB 116 (1989), the Board found a
violation when an employer threatened to file an unfair labor practice charge against an
employee who was also the union president unless that employee would agree to sign off on
action “necessary to further [the employer’s] illegal plan to eliminate the unit.” On the other
hand, in Interstate Food Processing, 283 NLRB 303 (1987), the Board upheld the finding that an 35
employer did not violate the Act when it reacted to employee complaints that union solicitations
were distracting them from their work by asking the union president to investigate the
complaints and stating that the employer would file “charges” (understood to mean unfair labor
practice charges) if the complaints were true and the conduct continued. The conclusion that
no violation had occurred was based, inter alia, on the fact that the employer’s statement could 40
reasonably be interpreted to mean that it would file an unfair labor practices charge against the
union, not the individual, and that such a statement was not a violation “except, perhaps, under
egregious circumstances.” The Supreme Court has recognized the necessity of guaranteeing
the public coercion-free access to the Board’s processes through the charge-filing process. See
NLRB v. Marine & Shipbuilding Workers Local 22, 391 U.S. 418, 424 (1968) and Nash v. Florida 45
Industrial Commission, 389 U.S. 235, 238 (1967). In the instant case, the General Counsel

39 Since I find that the Respondent’s conduct prohibiting SEIU and MNA activities in the
cafeteria violated Section 8(a)(1) for the reasons discussed above, I do not reach the General
Counsel’s arguments that the conduct would also have violated Section 8(a)(1) because it was
witnessed by unit employees and because the rule regarding access had not been clearly
disseminated before it was enforced.
JD–49–15
32
alleges that the Respondent violated the Act when it threatened to file an unfair labor practice
charge about the access issue, not when it, in fact, filed such a charge. Nevertheless, given the
strong public policy in favor of unimpeded access to the Board’s processes, I believe that
extreme caution is warranted before acting to penalize any party, including an employer, for
discussing the possibility of seeking resolution of a labor dispute through the Board’s processes.5
Given the circumstances present here, I conclude that this is not an egregious case
where it is appropriate to find that the employer violated the Act by threatening to avail itself of
the Board’s processes. I note that Cahoon communicated the alleged threat to non-employee
union organizers, whereas in the cases relied upon by the General Counsel, the employers 10
communicated the alleged threats to their own employees. See Flamingo Las Vegas Operating
Company, supra, Sheller-Globe Corp., supra, and Postal Service, 350 NLRB 125 (2007). An
employer’s expression of disapproval of an individual’s union activities is less coercive when
that individual is a non-employee since the employer does not possess the same power that it
does over an employee’s livelihood. Moreover, where, as here, the possibility of unfair labor 15
practice charges is communicated to a non-employee union organizer it is fair (even more so
than in Interstate Food Processing, supra) to understand the Respondent as threatening to file a
charge against the union, not the individual.
For the reasons discussed above, the allegation that the Respondent violated Section 20
8(a)(1) on June 23, 2014, when it threatened to file an unfair labor practices charge should be
dismissed.
c. Surveillance in the Cafeteria: The General Counsel alleges that the Respondent
violated Section 8(a)(1) by engaging in surveillance of Gulley and Hamilton on July 24, 2014, in 25
the cafeteria in order to interfere with their ability to meet and talk with employees. Under Board
precedent, “management officials may observe public union activity, particularly when such
activity occurs on company premises, without violating Section 8(a)(1) of the Act, unless such
officials do something out of the ordinary.” Arrow Automotive Industries, 258 NLRB 860 (1981),
enfd. 679 F.2d 875 (4th Cir. 1982) (Table); see also Durham School Services, 361 NLRB No. 30
44, slip op. at 1 (2014) (observation of union activities in a public area was unlawful surveillance
when manager “was observing employees in way that was out of the ordinary”). Such “out of
the ordinary” surveillance of union activity in public places includes an employer’s “unreasonably
close” observation of organizers as they finish their lunches. Montgomery Ward & Co., 692
F.2d 1115, 1128 (7th Cir.1982), enfg. 256 NLRB 800 (1981).35
The Respondent’s observation of Gulley’s and Hamilton’s conversations with employees
in the cafeteria constituted more than ordinary observation of public union activity and clearly
rises to the level of unlawful surveillance. Cahoon and the others were not casually observing
but rather intentionally and aggressively using surveillance to intimidate employees and chill 40
union conversations. Cahoon began this exchange by telling Gulley, Hamilton, and employees
that the union activities they were engaging in were prohibited. When this pressure did not have
the desired effect, Cahoon tightened the screws by telling the gathering of union representatives
and employees that he was going to sit right next to them. He then proceeded, along with
Wesman and Ramacher, to situate himself in close proximity to the union representatives and 45
employees, and to conspicuously monitor their conversation. An employer violates Section
8(a)(1) when a supervisor observes union activity in a public area where, as here, the
supervisor’s purpose for being at the location is to observe the union activity. Aero Corp., 233
NLRB 401, 405 (1977), enfd. 581 F.2d 511 (5th Cir. 1978). The unusual proximity from which
Cahoon and the others observed the union officials’ conversations – only a few feet away –50
significantly heightened the coercive effect of that observation. See Flexsteel Industries, 311
NLRB 257 (1993) (employees should be free to participate in union activities without fear that
JD–49–15
33
members of management are “peering over their shoulders, taking note of who is involved in
union activities, and in what particular ways”) and Montgomery Ward & Co., supra. These
management activities were out of the ordinary and had the tendency to unreasonably chill the
exercise of Section 7 rights. Fairfax Hospital, 310 NLRB 299, 310 (1993), enfd. 14 F.3d 594 (4th
Cir. 1993) (Table), cert. denied, 512 U.S. 1205 (1994). It is not at all surprising that when5
Cahoon and the other company officials began to conspicuously eavesdrop the employees
stopped talking and soon left the area.
The conclusion that the Respondent’s surveillance violated Section 8(a)(1) is consistent
with prior decisions in which the Board found that an employer’s observation of public union 10
activity was sufficiently “out of the ordinary” to constitute unlawful surveillance. In Hoschton
Garment Co., 279 NLRB 565, 566 (1986), the Board found that the Respondent had engaged in
unlawful surveillance at a plant entrance when it “did not merely observe union activity, but
rather attempted to prohibit [an employee] from distributing handbills to employees on public
property, and that [the supervisor] stood very close to [the employee] for the duration of the 15
handbilling.” Similarly, in the instant case Cahoon not only observed the protected union activity,
but unilaterally announced a prohibition on that activity before beginning the surveillance. The
three Respondent officials situated themselves very close to the activity in an effort to chill
employees from speaking to Gulley and Hamilton. In Sands Hotel & Casino, 306 NLRB 172
(1992), enfd. 993 F.2d 913 (D.C. Cir. 1993) (Table), the Board found that an employer violated 20
the Act when guards observed public union activity using binoculars. In the instant case, the
Respondent’s officials also took steps to get an intrusive, close-up, view of union activity in a
public area, although they did this not through the use of a mechanical device but through
physical proximity. If anything, this physical presence was a more coercive and intimidating
intrusion than that represented by the use of binoculars in Sands Hotel.25
In Sands Hotel, it was also noted that there was no evidence that the Respondent's
“conduct was based on safety or property concerns.” 306 NLRB at 172. Similarly, the
Respondent did not show that it had a legitimate basis for the intrusive surveillance in this case.
Even assuming that the Respondent was motivated by a good faith, but mistaken, belief that it 30
was addressing violations of a lawful company rule, that would not change the outcome
because the Respondent’s motivation is not relevant here. The Board has noted that it applies
an “objective standard” when deciding whether an employer’s conduct “tends to interfere with
the free exercise of employee rights,” and does not consider the employer’s “motivation.” See
Miller Electric Pump & Plumbing, 334 NLRB 824 (2001). In Days Inn Management Co., 306 35
NLRB 92, 92 fn.3 (1992), the Board found that the employer had not engaged in unlawful
surveillance, but only after noting that the employer: had not disrupted contact between
employees and the union; was not able to overhear conversations between employees and the
union; and had not attempted to talk to union representatives. In the instant case, those same
factors weigh in favor of finding the surveillance unlawful. Cahoon interfered with the 40
conversations that employees were having in the public cafeteria with their union
representatives by confronting those representatives and stating that the union activities were
prohibited, and then positioning himself where he could overhear any union subjects being
discussed.
45
For the reasons discussed above, I conclude that the Respondent violated Section
8(a)(1) of the Act on June 24, 2014, by coercively surveilling union activities in the cafeteria.
2. SECTION 8(A)(5) AND (1)
50
The General Counsel alleges that the Respondent’s conduct in the cafeteria on June 23
and 24, 2014, in addition to violating Section 8(a)(1), also violated Section 8(a)(5) because that
JD–49–15
34
conduct constituted a unilateral change in the established practice regarding non-employee
union representatives’ use of the cafeteria for union activities. Where, as here, employees are
represented by a union, their employer violates Section 8(a)(5) of the Act by making a unilateral
change regarding a mandatory subject of bargaining. NLRB v. Katz, 369 U.S. 736, 747 (1962);
Whitesell Corp., 357 NLRB No. 97, slip op. at 53 (2011); Ivy Steel & Wire, Inc., 346 NLRB 404, 5
419 (2006); Mercy Hospital of Buffalo, 311 NLRB 869, 873-874 (1993); Associated Services for
the Blind, 299 NLRB 1150, 1164-1165 (1990); Bethlehem Steel Co. (Shipbuilding Div.), 136
NLRB 1500, 1503 (1962).
The Board has held that where an employer unilaterally denies or reduces the union’s 10
ability to access unit employees for purposes of representation the unilateral action or change is
material in nature. Turtle Bay Resorts, 355 NLRB 1272, 1272-1273 (2010); Frontier Hotel &
Casino, 323 NLRB 815, 817-818 (1997), enfd. in pertinent part 118 F.3d 795 (D.C. Cir. 1997);
Ernst Home Centers, Inc., 308 NLRB 848, 848-849 (1992); American Commercial Lines, 291
NLRB 1066, 1072 (1988). Under Board precedent, even when an employer accuses a union 15
agent of misconduct, the employer is required to give the union notice and an opportunity to
bargain before changing rules regarding the agent’s access so that the parties can work
together to arrive at a solution to the problem. Frontier Hotel & Casino, 323 NLRB at 817. For a
change in a mandatory subject of bargaining to trigger the duty to bargain, that change must be
“material, substantial, and significant.” Crittenton Hospital, 342 NLRB 686 (2004); Bath Iron 20
Works Corp., 302 NLRB 898, 901 (1991).
The dispute about whether the Respondent made an unlawful unilateral change in this
case when it prohibited non-employees’ union activities in the cafeteria on June 23 and 24
raises two questions: (1) whether there was an established practice regarding non-employee 25
representatives of the SEIU and the MNA using the cafeteria for union activities, and (2)
whether the disputed actions represented a material change from that established practice.
Regarding the first of those questions, I begin by noting that none of the relevant labor contracts
address the subject of union activities in the facility’s cafeteria or other public areas. This does
not end the inquiry, however, because the prohibition on unilateral changes to mandatory 30
subjects of bargaining applies to established past practices even if they are not incorporated in
a collective bargaining agreement. KGTV, 355 NLRB No. 213, slip op. at 12 (2010); Golden
State Warriors 334 NLRB 651, (2001), enfd. 50 Fed. Appx. 3 (D.C. Cir. 2002); Exxon Shipping
Co., 291 NLRB 489, 493 (1988). It is the General Counsel’s burden to show the existence of
such a practice. National Steel & Shipbuilding, 348 NLRB 320, 323 (2006), enfd. 256 Fed. 35
Appx. 360 (D.C. Cir. 2007).
In this case, the evidence of past practice is different for the MNA and the SIEU and
therefore must be addressed separately. Regarding the MNA, the evidence showed that prior
to June 23 the Respondent had treated the activities of non-employee MNA representatives 40
visiting the cafeteria or other public areas of the facility in the same manner as it treated the
activities of other non-employee visitors. How were other non-employee visitors treated? They
were not required to clear security, sign-in, or identify themselves or their affiliation, in order to
enter the cafeteria. The Respondent did not monitor their discussions and had not placed
restrictions on what they could discuss while visiting the cafeteria. This is exactly how the MNA 45
representatives were treated prior to June 23. MNA representatives Hamilton, McMahon and
Scott all visited the facility and had conversations with others in the cafeteria without ever being
interfered with by the Respondent. The Respondent did not show that, prior to June 23, it had
ever asserted to the MNA that special restrictions applied to non-employee MNA organizers
when they were in public areas of the facility.50
JD–49–15
35
This did not change until officials of the Respondent confronted Scott in the cafeteria on
June 23 and Hamilton in the cafeteria on June 24. On those dates, the Respondent’s officials
asked the union representatives to identify themselves and then attempted to prohibit them from
sitting with, or talking to, other persons visiting the cafeteria. The record shows that, at the time
the Respondent’s agents accosted Scott they took the position that non-employee union 5
representatives visiting the facility could not have discussions with employees or about union
matters except in the nonpublic locations that the Respondent had designated for such activity.
The record indicates that, with respect to the MNA, this location was an office on the lower level
of the facility. I conclude that the Respondent’s prohibition on MNA activities in public areas of
the facility represented a change from the Respondent’s established prior practice of allowing 10
non-employee MNA representatives, like members of the public in general, to sit among others
in the cafeteria without being required to identify themselves, without being monitored, and
without having their conversations limited by subject.
In addition, I find that by banishing the MNA representatives from the public cafeteria15
where off-duty unit employees congregated, and confining them to a location on the lower level
that was not a regular gathering place, the Respondent made a material, substantial and
significant change in the ability of union representatives and the employees they represented to
access one another at the facility. See, e.g., Turtle Bay Resorts, 355 NLRB at 1272-1273;
Frontier Hotel & Casino, 323 NLRB at 817-818 Ernst Home Centers, Inc., 308 NLRB at 848-849 20
American Commercial Lines, 291 NLRB at 1072. Previously employees could access their
union representatives either through casual, impromptu, interactions in the cafeteria, or by
arranging to meet those representatives in the more out-of-the way location designated by the
Respondent. Many employees would no doubt be less likely to access their representatives in
the latter manner for a number of reasons, including because it required some planning and 25
because approaching the location designated by the employer for union activity would render
such activity conspicuous. The Respondent did not give the MNA notice or an opportunity to
bargain before making this change regarding a mandatory subject of bargaining, but rather
presented the prohibition as a fait accompli. Waiver of the right to bargain based on a union’s
failure to request bargaining will not be found where, as here, the union was not given advance 30
notice of the change and/or where the notice presented the change as a fait accompli. Eby-
Brown Company, 328 NLRB 496, 570-571 (1999); Dorsey Trailers, Inc., 327 NLRB 835, 858
(1999), enfd. in part 233 F.3d 831 (4th Cir. 2000); Jaydon, Inc., 273 NLRB 1594, 1601 (1985);
Ciba-Geigy Pharmaceuticals Division, 264 NLRB 1013, 1017-1018 (1982), enfd. 722 F.2d 1120
(3d Cir. 1983).35
With respect to access by non-employee SEIU representatives, the record shows that
there was a history of disagreement between the Respondent and the Union about the extent to
which non-employee SEIU representatives could engage in union activities in the cafeteria.
Despite, the areas of dispute, the record shows that prior to June 23 there was no dispute that 40
non-employee SEIU representatives were permitted, at a minimum, to engage in conversations
in the cafeteria that did not rise to the level of conducting a “meeting.” In communications with
the SEIU, the Respondent took the position that non-employee SEIU representatives could
have conversations about union matters in the cafeteria with one or two other individuals at a
time. Moreover, prior to June 23, human resources officials observed such conversations and 45
took no action to prevent them. To the contrary, Cahoon himself sometimes used such
occasions as an opportunity to engage the SEIU representative in union-related conversations.
Based on the evidence, I find that the Respondent had an established practice of permitting
non-employee Union representatives to talk about union matters with one or two other
individuals in the cafeteria at a time. 50
JD–49–15
36
On June 23 and 24, the Respondent attempted to prohibit SEIU representatives Anthony
and Gulley from having union-related discussions with employees in the cafeteria. In neither of
instances was either representative talking to more than one or two individuals at a time about
union business. On June 23, when Cahoon told Anthony that he was engaging in unlawful
union activity in the cafeteria, Anthony was sitting at a table and talking with a single off-duty 5
SEIU steward, Harold Evenson. A third individual, Scott was at the table, but he was not talking
with anyone or participating in the conversation between Anthony and Evenson. There were
also persons at nearby tables and while the record suggests that Anthony had previously
responded to questions from some of those persons, he was not addressing, or being
addressed by, them at the time he was speaking with Evenson. Regarding the subsequent 10
June 24 incident in the cafeteria, the evidence showed that the Respondent’s security
guard/agents attempted to block Gulley from even proceeding into the cafeteria – at which
juncture it was not possible to know whether he would address more than two other individuals
at the same time. Gulley managed to maneuver around the security guards and, although he
had not arranged to meet anyone, he approached employees who were on break at one of the 15
cafeteria tables and asked to sit down. There were between three and seven employees sitting
in proximity to one another, but the record does not show that they were all part of a single
group or conversation. At any rate, neither Gulley nor Hamilton attempted to address the
nearby employees collectively about union business. After Gulley sat, one of the employees
present asked him a question. It was at that point that Cahoon, Wesman, and Ramacher, 20
confronted Gulley, and stated that he was improperly conducting union business in the
cafeteria. Then the Respondent’s officials engaged in conspicuous and unlawful surveillance
with the purpose and effect of interfering with union-related communications.
I find that on June 23 and 24, at around the time of the informational picketing, the 25
Respondent unilaterally changed the existing practice regarding SEIU activities in the cafeteria.
The Respondent had an established practice of permitting non-employee SEIU representatives
to discuss union matters in the cafeteria in groups of up to, at least, two and three at a time.
Beginning on June 23, it prohibited such conversations even when only two or three individuals
were conversing. Although on June 23 and 24, there were other individuals seated at nearby 30
tables or otherwise in proximity to the cafeteria conversations, the Respondent’s prior
communications to the SEIU had not required that a representative who was having an
otherwise permissible conversation in the cafeteria maintain a certain distance from
nonparticipating individuals. It is hard to see how a union representative could comply with such
an additional requirement since, as Cahoon’s surveillance makes clear, in a public cafeteria one 35
cannot control who sits near to him or her. An off-duty unit employee’s permitted conversation
with his or her non-employee SEIU representative could, at any point, become a violation of the
Respondent’s new rule simply because other individuals sat down nearby or subsequently
addressed the union representative with their own questions. For this reason, as well as for the
reasons discussed regarding the MNA, the Respondent’s unilateral change to the SEIU’s ability 40
to access employees in the cafeteria for representational purposes was material, substantial
and significant. Turtle Bay Resorts, supra; Frontier Hotel & Casino, supra; Ernst Home Centers,
Inc., supra; American Commercial Lines, supra. The Respondent made this material,
substantial and significant change to a mandatory subject of bargaining without giving the SEIU
notice or an opportunity to bargain.45
The Respondent denies that it changed any established practice regarding union access
to unit employees in the cafeteria, but argues that even if it did so, any such changes did not
trigger a bargaining obligation because they were not material, substantial and significant. I
have considered that argument but, as alluded to above, find that it is not persuasive. Board 50
precedent indicates that any change that actually reduces the union’s access to represented
employees is a material, substantial, and significant change for purposes of Section 8(a)(5).
JD–49–15
37
See, e.g., Frontier Hotel, supra (“Any change that actually interferes with contractually agreed
employee access to the unit collective-bargaining representatives for representational purposes
is a material change.”), citing Ernst Home Centers, supra. The reason that the Board did not
find an obligation to bargain in the cases relied on by the Respondent – Selkirk Metalbestos,
321 NLRB 44 (1996) and Peerless Food Products, 236 NLRB 161 (1978) – was that in each of 5
those instances the Board determined that the employer had not made a change that in any
way reduced the union’s access to represented employees. In Selkirk, the Board stated that it
did not find a violation because “the record fails to show any factual basis to support a finding
that the Union’s access to employees was less restrictive or more confidential before the
change” than it was after the change. 321 NLRB at 44 fn. 2.40 Indeed, in Frontier Hotel, the 10
Board clarified that in Peerless “the Board found no violation because it found no evidence that
the employer actually had applied, or intended to apply, the rule so as to reduce the access of
union representatives to employees for any representational purpose.” 323 NLRB at 818. The
circumstances of the present stand in stark contrast to those in Selkirk and Peerless because
here the Respondent specifically aimed its new rule at union representatives and reduced the 15
ability of union representatives and represented employees to access each other at the facility
through impromptu, informal, interactions. Where that is the case, the Board, has distinguished
Peerless and found a violation of Section 8(a)(5). Frontier Hotel, supra (Board distinguishes
Peerless and finds a violation because “[i]n the present case . . . the Respondent’s new
restriction was specifically aimed at union representatives and it actually resulted in denying 20
employee access to the representatives on the day the restriction was imposed.”). I find that
given the facts here, and the applicable precedent, Selkirk and Peerless are not controlling and
that a violation has been shown.
For the reasons discussed above, I find that, on June 23 and 24, 2014, the Respondent 25
made unilateral changes in violation of Section 8(a)(5) and (1) when it imposed new restrictions
on discussions in the public cafeteria between unit employees and non-employee
representatives of the MNA and the SEIU.
C. INTERFERENCE WITH UNION ACCESS TO BULLETIN BOARDS30
The General Counsel also alleges that the Respondent violated Section 8(a)(1) and
Section 8(a)(5) and (1) on February 10, 2014, and June 23, 2014, when it interfered with non-
employee union representatives’ access to employee break rooms on patient care units.

40 In Selkirk, the established practice was that a union representative could discuss
grievances with involved employees by announcing himself at the reception desk and then
being escorted to the lunchroom by a plant manager. The allegedly material change in that case
occurred when the plant manager escorted the union representative to a conference room,
rather than the lunchroom, to meet with the involved employees. Unlike in the instant case, it
had not been the practice in Selkirk for union representatives to enter the facility without notice
to the employer and have impromptu, casual, interactions with employees in the lunchroom.
Thus the change in Selkirk was only a matter of the specific room that the plant manager
provided for a pre-arranged meeting with a designated individual. The change that the
Respondent made here was not simply one of location, but one that largely eliminated the
established practice allowing union representatives and represented employees to have
impromptu, casual, interactions in the public cafeteria where off-duty employees congregated.
Moreover, the Respondent’s new rule did not merely change the location of access from one
room to another, but reduced the number of locations since the representatives and employees
had previously had the option of meeting either in the cafeteria or in the nonpublic areas
designated by the Respondent, and now were being limited to only the designated nonpublic
areas.
JD–49–15
38
1. SECTION 8(A)(1)
On June 23, 2014, the Respondent prohibited non-employee union representatives
Anthony and Scott from accessing locked employee break rooms on patient care units. 5
Anthony and Scott were attempting to access these rooms in order to post union information on
bulletin boards and have brief interactions with off-duty unit employees, and the General
Counsel alleges that the Respondent’s denial of such access interfered with Section 7 activity in
violation of Section 8(a)(1) of the Act. After considering the evidence and arguments submitted
by the parties, I find that the Respondent did not violate Section 8(a)(1) by prohibiting non-10
employee union representatives from accessing these locked employee break rooms. As
discussed above, in the Baptist Medical and Montgomery Ward & Co. cases, the Board found
that employers violated Section 8(a)(1) when they prohibited non-employee union
representatives from using areas on their property for union-related activities where those
areas were open to the general public and the representatives were using the areas in a 15
manner consistent with usage by other non-employee visitors. The break rooms at issue here,
however, were not areas open to the public, but rather locked rooms on patient care units. Non-
employees who wished to enter these rooms would have to pass by a nursing station, walk
down a hallway lined with patient rooms, and persuade a staff member to unlock the break room
door using a code that was distributed to hospital staff. There was no evidence that the 20
Respondent permitted members of the general public to use these employee break rooms and
the fact that the rooms were kept locked strongly suggests that it did not permit such usage. I
find that the General Counsel has not shown that the Respondent was discriminatorily denying
access to the non-employee union representatives in a manner inconsistent with its treatment of
other non-employee visitors to the hospital, and therefore find that a violation is not shown 25
under NLRB v. Babcock & Wilcox, supra, and Baptist Medical and Montgomery Ward & Co.
Absent such circumstances, and where, as here, the union has other reasonable means of
accessing employees and has not secured a contractual right to the additional access sought, it
is appropriate to revert to the general rule under which employers may exclude non-employee
union organizers from nonpublic areas on company property. Babcock & Wilcox, 351 U.S. at 30
112-113; North Hills Office Services, 345 NLRB 1262-1263, 1262 (2005). The General
Counsel cites no cases showing that, where other reasonable means of reaching employees
exist, an employer cannot restrict a non-employee union representative’s access to nonpublic
areas of a hospital in the absence of a prior agreement between the parties, an established
practice, or evidence of discrimination.35
In reaching this conclusion, I considered Board decisions holding that employee break
rooms, even those that are on patient care units and in proximity to immediate patient care
areas, are not immediate patient care areas for purposes of Beth Israel Hospital, supra, and
Baptist Hospital, and therefore that an employer presumptively violates Section 8(a)(1) by 40
prohibiting union activity in such areas. St. Margaret Mercy Healthcare Centers, 350 NLRB 203,
203 and 209 (2007), enfd. 519 F.3d 373 (7th Cir. 2008); Baptist Medical Center/Health Midwest,
338 NLRB 346, 349 and 376 n. 37 (2002). However, while the Respondent cannot lawfully
prohibit off-duty employees from engaging in union activities in their break rooms, it can prohibit
unauthorized members of the public from entering these or other restricted areas of the hospital. 45
See North Hill Office Services, supra. 41 The analysis would be different if the record showed

41 I am not persuaded by the General Counsel’s contention that the denial of access
violated Section 8(a)(1) because the Respondent ejected Anthony and Scott from the break
room in the presence of a unit employee. The fact that an employee is present does not
preclude an employer from removing unauthorized non-employees from restricted areas on
company property. See North Hills Office Services, supra, and Chemtronics Inc., 236 NLRB
JD–49–15
39
that the Respondent was discriminating between non-employee union representatives and
other members of the public, but, as noted above, that was not shown with respect to the break
rooms. Cf. Babcock & Wilcox, supra (employer acts unlawfully when it discriminatorily denies
union representatives access to its property while permitting others access for similar activities).
5
Regarding, the prior, February 10, 2014, incident in which the Respondent denied
Anthony access to the bulletin board on the cardiac intensive care unit known as 4 SW, the
General Counsel has also failed to show a violation. In that case not only was the bulletin board
in a locked break room on a patient care unit, but it was situated in such a way that it could only
be reached after passing through the nurse’s station – an area that members of the public did 10
not have to enter in order to visit patient rooms.
For the reasons discussed above, I conclude that the evidence does not show that the
Respondent violated Section 8(a)(1) on February 10, 2014, or June 23, 2014, when it denied
non-employee union representatives access to a locked employee break room on patient care 15
units at the facility.
2. SECTION 8(A)(5) AND (1)
The General Counsel also alleges that the Respondent made an unlawful unilateral 20
change when it prohibited Anthony and Scott from accessing a locked employee break room on
June 23, 2014, and when it prohibited Anthony from accessing the bulletin board in a locked
employee break room in the 4 SW patient care unit on February 10, 2014. Where employees
are represented by a union, their employer violates Section 8(a)(5) and (1) of the Act by making
a unilateral change regarding a mandatory subject of bargaining. NLRB v. Katz, supra; Whitesell 25
Corp., supra; Ivy Steel & Wire, Inc., supra; Mercy Hospital of Buffalo, supra; Associated
Services for the Blind, supra; Bethlehem Steel Co. (Shipbuilding Div.), supra. The question
here is whether the prohibition on access to the locked employee break rooms by non-employee
union representatives constituted a change. For the reasons discussed below, I find that it did
not. 30
As noted above, the relevant collective bargaining agreements do not give the SEIU or
the MNA the right to access bulletin boards in locked employee break rooms on patient care
units. The SEIU contracts state that union representatives will have access to bulletin boards,
but do not state that union representatives will have access to every bulletin board at the facility. 35
Nor do they state, either specifically or in general terms, that SEIU representatives will have
access to the bulletin boards in the locked employee break rooms on patient care units at the
facility. As far as the collective bargaining agreement between the Respondent and the MNA
goes, the relevant language there states that the Respondent will provide bulletin board spaces
accessible to nurses for the purpose of posting meeting notices and related materials. This40
language, like that in the SEIU contracts, does not state that every bulletin board at the facility
will be accessible for such activities or that the bulletin boards in locked employee break rooms
are among those that must be accessible. Indeed, the MNA language does not address access
by non-employee union representatives at all. As discussed above, during bargaining the
Respondent and the SEIU have both proposed changes to the contract provision on access to 45
bulletin boards – the Respondent offering language that would create additional restrictions that
are not in the current contracts and the SEIU offering language that would create additional

178 (1978).
JD–49–15
40
union rights to access that are not stated in the current contracts. Neither side has obtained the
other side’s agreement to these proposals regarding access to bulletin boards.
Even though the applicable collective bargaining agreements do not provide that non-
employee union representatives of the SEIU and the MNA will have access to the locked 5
employee break rooms on patient care units, the Respondent’s prohibition would still constitute
a change if there was an established past practice allowing such access. KGTV, Inc., supra;
Golden State Warriors, supra; Exxon Shipping Co., supra. In this case, the General Counsel
has failed to prove the existence of such a practice. It is true that non-employee representatives
for the MNA and the SEIU had a history of accessing the locked employee break rooms on 10
patient care units for the purpose of posting union information and having brief interactions with
off-duty employees. However, the record also shows that those non-employee union
representatives were doing this without the knowledge of the responsible officials in the
Respondent’s labor relations department – Cahoon and Wesman. The evidence showed that
Cahoon and Wesman had never authorized non-employee union representatives to access the 15
employee break rooms, and did not show that any other official in the labor relations department
had authorized such access. To the contrary, although the Respondent had not specifically
discussed access to the employee break rooms on patient care units with Anthony, Wesman
had informed Anthony of the Respondent’s position that Anthony was prohibited from entering
patient care floors at all. In addition, there was no evidence that the Unions or the 20
Respondent’s staff had ever informed the labor relations department that non-employee union
representatives were accessing the employee break rooms on patient care floors. As discussed
above in my findings of fact, I credit the testimony of the Respondent’s labor relations officials
that they were unaware that this was going on prior to the incidents giving rise to the alleged
violations.42 The Board has declined to find that an employer unilaterally changed a past 25
practice where, as here, the employer was unaware of the supposed past practice. Regency
Heritage Nursing & Rehabilitation Center, 353 NLRB 1027-1028 (2009);43 BASF Wyandotte
Corp., 278 NLRB 173, 180 (1986).
There was testimony that in at least some instances the persons who previously 30
granted the non-employee union representatives access to the locked break rooms were nurse
managers or health unit coordinators. However, SEIU officials Bialke and Anthony both testified
that it was understood that Cahoon and Wesman of the labor relations department were the
company officials who dealt with questions about SEIU access at the facility. Moreover, the
General Counsel did not elicit testimony from a single nurse manager or health unit coordinator 35
who had unlocked a break room for one of the non-employee union organizers. Thus one can
only guess at the basis upon which such individuals believed they were acting when they took
that action. Finally, while the evidence showed that nurse managers and health unit
coordinators had unlocked employee break rooms for non-employee union representatives, it
did not show that they (as opposed to unit employees) had done so with any frequency or that 40
they had done so with sufficient frequency that their actions could conceivably have amounted
to an established past practice.

42 This is different from the situation regarding the cafeteria, since Cahoon had not only seen
non-employee union representatives in the cafeteria on numerous occasions, but had initiated
conversations about union business when he found such a representative in the cafeteria.
43 This decision was issued by a two-member Board that was later found to be invalidly
constituted. See New Process Steel v. NLRB, 560 U.S. 674 (2010). A validly constituted three-
member Board subsequently affirmed the two-member Board in Regency Heritage Nursing &
Rehabilitation Center, 355 NLRB No. 103 (2010), enfd. 437 Fed. Appx. 65 (3d Cir. 2011).
JD–49–15
41
I find that the evidence fails to show that the Respondent made an unlawful unilateral
change on either February 10, 2014 or June 23, 2014, when it acted to prohibit non-employee
union representatives from accessing the locked employee break rooms on patient care units at
the facility. The complaint allegation that such actions violated Section 8(a)(5) and (1) should
be dismissed.5
D. RESPONDENT’S DECISION TO EJECT ANTHONY
AND SCOTT AND IMPOSE A 1-YEAR BAN.
On June 23, 2014, after Cahoon interrupted Anthony’s and Scott’s union activities in the 10
cafeteria and employee break room, the Respondent ejected Anthony and Scott from the facility
and banned them from re-entering for a period of 1 year. The complaint alleges that these
actions by the Respondent violated Section 8(a)(1) and Section 8(a)(5) and (1) of the Act.
Cahoon testified that the decision to ban Anthony and Scott was based on the "activity 15
we saw . . . in the cafeteria, and the fact that they were up on a patient care unit." There was no
contrary testimony or other evidence showing that the Respondent would have removed and
banned Anthony and Scott based solely on their presence on a patient care unit and without
regard to the activity in the cafeteria. In Frontier Hotel & Casino, the Board held that an
employer violates the Act by denying union representatives access to its facility because of their 20
failure to comply with an unlawfully imposed rule. 323 NLRB at 818. Under that precedent, the
Respondent acted unlawfully when it prohibited Anthony’s and Scott’s union activities in the
cafeteria and therefore the Respondent acted unlawfully by denying them access to its facility
for failing to comply with that unlawful prohibition. Ibid.; see also Double Eagle Hotel and
Casino, 341 NLRB 112, 112 fn. 3 (2004) (employee discipline that is based on an invalid no 25
access rule is itself unlawful), enfd. 414 F.3d 1249 (10th Cir. 2005), cert. denied 546 U.S. 1170
(2006); Flambeau Airmold Corp., 334 NLRB 165, 167 (2001) (when an unlawfully implemented
work rule is a factor in employee discipline, that discipline itself violates Section 8(a)(5) of the
Act). Since the removal and ban also interfered with the ability of unit employees and their
chosen representatives to communicate about union matters, the conduct also interfered with 30
Section 7 rights in violation of Section 8(a)(1).
The Respondent’s decision to remove Anthony and Scott from the facility for 1 year
would be a violation of Section 8(a)(5) and (1) even if the cafeteria prohibition on which it was
based was not itself unlawful. The Board has held that an employer violates Section 8(a)(5) by 35
refusing to allow a non-employee to access its facility to perform his or her duties as a union
representative. The Modern Honolulu, 361 NLRB No. 24, slip op. at 2 (2014); Neilmed
Products, Inc., 358 NLRB No. 8, slip op. at 1, fn. 2 (2012); Claremont Resort & Spa, 344 NLRB
832, 832 and 835 (2005); see also Fitzsimons Mfg. Co., 251 NLRB 375, 379 (1980) (“It is well
established that each party to a collective-bargaining agreement has both the right to select its 40
representative for bargaining and negotiations and the duty to deal with the chosen
representative of the other party.”), enfd. sub nom. Auto Workers v. NLRB, 670 F.2d 663 (6th
Cir. 1982). An employer can justify such action only if “there is ‘persuasive evidence that the
presence of the particular individual would create ill will and make good-faith bargaining
impossible.’” Neilmed Products, supra, quoting KDEN Broadcasting Co., 225 NLRB 25, 35 45
(1976). Under this standard, the Board has held that union representatives could not be denied
access to an employee’s premises even after engaging in misconduct that was rather serious.
For example, in Neilmed Products, the Board found a violation where the employer denied
access to a union representative who had yelled angry comments at employees crossing a
picket line and had broken the windshield of a passing car. In Claremont Resort & Spa, supra, 50
the Board found that an employer could not refuse to deal with a union representative even after
that representative had attempted to physically force her way into a meeting between an
JD–49–15
42
employee and a manager. 344 NLRB at 832 fn. 2. In Victoria Packing Corp., the employer was
found to have acted unlawfully by refusing further access to a union representative who yelled
“I’m going to get you and your . . . company” at the company’s owner after being told that he
could not talk to employees during work time. 332 NLRB 559, 599-600 (2000). In another case,
Long Island Jewish Medical Center, an employer violated the Act by banning a union 5
representative from its facility after the representative cursed at managers and lightly shoved
one of them. 296 NLRB 51, 70-72 (1989). The Board has withheld its approval for employer
action banning union representatives from its premises except in cases involving egregious
representative misconduct. See, e.g., Sahara Datsun, 278 NLRB 1044, 1046-1047 (1986)
(employer could lawfully refuse to deal with union representative who had contacted the 10
employer’s bank with unsupported allegations of financial impropriety by employer’s managers),
enfd. 811 F.2d 1317 (9th Cir. 1987); Fitzsimons Manufacturing Company, 251 NLRB at 379-380
(employer could lawfully exclude union representative who engaged in an unprovoked physical
attack on company’s personnel director).
15
In this case, the Respondent banned Anthony and Scott for conduct that was in no way
violent or disruptive and which was, in significant part, within their rights under the Act.
Anthony’s and Scott’s conduct did not begin to approach the types of egregious misconduct
present in those unusual cases where the Board found that an employer could lawfully ban the
employees’ chosen representative from its facility. Moreover, the Respondent banned MNA 20
representative Scott without previously informing him or the MNA that union activities in the
cafeteria or employee break rooms were frowned upon by the Respondent, much less that the
Respondent considered them so egregious as to warrant banning him from the facility. In
Anthony’s case, the record does reveal a history of friction regarding the limits of his right to
access the facility to represent SEIU members. Nevertheless, Anthony was not shown to have 25
ever behaved in a disruptive or threatening manner, and certainly not to have engaged in
unprovoked physical violence or other egregious misconduct of the sort that the Board has
found can justify banning a union representative from the employer’s facility. What Anthony did
was hold, in a polite if persistent manner, to the SEIU’s view regarding its Section 7 rights at the
facility, rather than acquiesce to the employer’s more restrictive (and with respect to the 30
cafeteria, incorrect) view. Under the applicable standards, Anthony’s conduct does not come
close to justifying the Respondent’s decision to prohibit him from entering the facility to provide
representation to bargaining unit employees.44
The Respondent violated Section 8(a)(1) and 8(a)(5) and (1) on June 23, 2014, when it 35
ejected Anthony and Scott from its facility and banned them from returning for a period of 1
year.

44 In its brief, the Respondent contends that its decision to remove and ban the two union
representatives from the facility did not violate Section 8(a)(5) because the Unions never sought
to bargain over those decisions. In the circumstances present here, a Section 8(a)(5) violation
is shown because the punishment was imposed pursuant to a rule that was adopted in violation
of Section 8(a)(5) and because the punishment interfered with employees’ right to choose their
own representative, regardless of whether there was a refusal to bargain over the specific
punishment imposed. Even if such a showing was required, I would find a violation since the
Respondent presented its decision as a fait accompli without giving the Unions advance notice
an opportunity to bargain. See Eby-Brown Co., supra; Dorsey Trailers, supra; Jaydon, Inc.,
supra; Ciba-Geigy Pharmaceuticals Division, supra. Immediately upon confronting Anthony and
Scott in the break room, the Respondent’s officials announced that the two union
representatives were being banned from the facility and that police were being called.
JD–49–15
43
E. ALLEGATIONS REGARDING RESPONDENT’S PROHIBITION ON ANDERSON’S POSTING
INFORMATION ABOUT PICKETING ON BULLETIN BOARD IN HIS WORK AREA.
The General Counsel alleges that, on June 23, 2014, the Respondent violated Section 5
8(a)(1) and 8(a)(5) and (1) when Gubbins told Anderson that he was prohibited from posting
union information on the bulletin board located in the unit where he worked. The evidence
showed that Anderson, a union steward for 7 years who was also on the SEIU bargaining
committee and executive board, had placed a flyer regarding the imminent picketing activity on
a bulletin board in the SPD department where he worked. The SPD department was not a 10
patient care area of the facility, but rather one where medical implements were sterilized and
prepared for distribution. It is clear that the bulletin board was not in an area that employees
were prohibited from entering because the employer and others routinely posted information for
employees on it. For example, the Respondent posted information there for employees
regarding its bargaining proposals. Anderson had posted information regarding SEIU activities 15
on the bulletin board in the past and Gubbins was aware that the information was there. On
June 23, the day before the informational picketing, Wesman told Gubbins that the SEIU was
not permitted to post on the bulletin board. Gubbins, in turn, informed Anderson that he could
not place SEIU information on the bulletin board and also removed the information that
Anderson had posted and returned it to him. She told Anderson, however, that it would be 20
permissible for Anderson to post other information such as flyers about a promotion providing
hospital employees with free admission to a zoo. The next day, Wesman confronted Anderson,
asked him if he had posted the union flyer that Gubbins found on the SPD bulletin board and,
after Anderson said that he had posted it, Wesman told him that doing so was prohibited.
Anderson informed Wesman that even before Anderson became a steward approximately 7 25
years earlier, it was the SEIU’s practice to post information on that bulletin board. Wesman
accused Anderson of violating the contract by posting there and said that Anderson’s position
meant that “I can go ahead and break the contract . . . as long as nobody knows about it.”
1. SECTION 8(A)(1)30
The General Counsel alleges that the Respondent violated Section 8(a)(1) by prohibiting
employee Anderson from posting union information on a bulletin board that was used to
communicate with employees and that was in the area where Anderson was assigned to work.
That location was not an immediate patient care area. Therefore, under the Supreme Court’s 35
decision in Beth Israel Hospital, supra, the prohibition on the display of union information there
is presumptively unlawful. The employer has not rebutted that presumption by showing that the
posting caused a disruption of patient care or a disturbance to patients. Baptist Hospital v.
NLRB, 442 U.S. at 781 (the employer has the burden of showing that union activity in a non-
patient-care areas would cause disturbance or disruption). Moreover, in this case unlawful 40
discrimination is shown since the Respondent prohibited the union posting while stating that it
was permissible to post information about nonunion activities such as a promotion involving free
admission to a zoo. Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th Cir. 1983)
(in case involving a bulletin board, the Board finds a violation because the employer prohibited
union posting while permitting other types of postings by employees); Container Corp. of 45
America, 244 NLRB 318, 318 fn. 2 (1979), enfd. in part 649 F.2d 1213 (6th Cir. 1981) (same).
I find that the Respondent violated Section 8(a)(1) on June 23, 2014, when it prohibited
Anderson from posting union information on the bulletin board in the department where he
worked. 50
JD–49–15
44
2. SECTION 8(A)(5) AND (1)
The General Counsel alleges that when Gubbins prohibited Anderson from posting SEIU
information on the bulletin board in the SPD department the Respondent not only violated
Section 8(a)(1), but also made a unilateral change in violation of Section 8(a)(5) and (1) of the 5
Act. Based on my review of the record, I find that the General Counsel has failed to
demonstrate that there was an agreement or established practice regarding employee posting
at that location. As discussed with respect to the other allegations regarding posting discussed
above, the labor contracts between the Respondent and the SEIU do not provide that the SEIU
has the right to post on all bulletin boards at the facility or that it has the right to access specific 10
bulletin boards of the SEIU’s choosing, such as the one in the SPD department. Moreover,
although I find that Gubbins, the SPD manager, had permitted the SEIU to post information on
the bulletin board for a period of time, this was done without the knowledge of the officials in the
labor relations department with whom the SEIU dealt about such matters. Under all the
circumstances present here, I conclude that the evidence fails to demonstrate the existence of 15
an established past practice permitting the SEIU to post on the SPD bulletin board, and
therefore fails to establish that a unilateral change occurred when Gubbins prohibited Anderson
from continuing to make such posts. The SEIU has the right to post there, but that right is
conferred by Section 7 and 8(a)(1) of the Act, not the labor contracts or an established practice.
20
The allegation that the Respondent made a unilateral change in violation of Section
8(a)(5) and (1) when it prohibited Anderson from posting SEIU information on the bulletin board
in the SPD department should be dismissed.
F. ALLEGATION THAT WESMAN UNLAWFULLY 25
INTERROGATED AND THREATENED ANDERSON ON JUNE 24.
The General Counsel alleges that Wesman, during the June 24 interaction that he
initiated with Anderson, violated Section 8(a)(1) by coercively interrogating Anderson and
threatening surveillance. I find that these allegations are established. 30
An interrogation is unlawful if, in light of the totality of the circumstances, it reasonably
tends to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.
Mathews Readymix, Inc., 324 NLRB 1005, 1007 (1997), enfd. in part 165 F.3d 74 (D.C. Cir.
1999); Emery Worldwide, 309 NLRB 185, 186 (1992); Liquitane Corp., 298 NLRB 292, 292-293 35
(1990). Relevant factors include: whether the interrogated employee was an open or active
union supporter, whether proper assurances were given concerning the questioning, the
background and timing of the interrogation, the nature of the information sought, the identity of
the questioner, and the place and method of the interrogation. Stoody Co., 320 NLRB 18, 18-19
(1995); Rossmore House Hotel, 269 NLRB 1176, 1177-1178 (1984), affd. sub nom. Hotel 40
Employees Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Based on my consideration
of the record as a whole, I conclude that a violation is shown under the Board’s standard.
Wesman was not Anderson’s immediate supervisor, but rather an upper level official in the labor
relations department with facility-wide authority. This fact would tend to add to the coercive
impact of the questioning. At the time that Wesman confronted Anderson with questions about 45
his protected posting activity, the matter had already been addressed between Anderson and
his immediate supervisor, Gubbins, pursuant to Wesman’s instruction. Thus the subsequent
questioning by Wesman seemed to have little if any purpose other than to make Anderson
uncomfortable about the posting activity that the Respondent already knew he had engaged in.
Wesman intensified the intimidation by referencing the Respondent’s decision, one day earlier, 50
to punish Anthony with a 1-year ban for, inter alia, posting union information on a bulletin board.
This would reasonably suggest to Anderson that the Respondent might punish him for the
JD–49–15
45
posting activity that Wesman was questioning him about. The level of coercion was further
heightened when Wesman challenged Anderson’s account of his posting activity by mentioning
what he said he had watched Anderson doing and by confronting him with statements that
Wesman said Anthony had made regarding that activity.
5
Wesman failed to mitigate the coercive tenor of the interrogation by assuring Anderson
that he could answer without fear of reprisal. To the contrary, by referencing the punishment
meted out to Anthony just one day earlier for related activity, Wesman gave just the opposite
impression. It is not surprising that, by the end of the interrogation, Anderson felt it was
necessary to tell Wesman that the intimidation had been successful and that he was going to 10
quit his union activities. See, e.g., Wilshire Plaza Hotel, 353 NLRB 304, 318 (2008) (fact that
union supporter reacts to interrogation by refraining from future union activity is “best indication
that [the] interrogation had been coercive and had achieved the desired result”).
In reaching the conclusion that the interrogation was unlawfully coercive, I considered 15
the fact that Anderson was an open union supporter. Anderson’s willingness to openly engage
in certain union activities would weigh on the side of finding that questioning him about those
open activities was not coercive. In this case, however, Wesman did not limit himself to
questioning about things Anderson had chosen to engage in openly. Rather Wesman used
assertions about what the Respondent purportedly knew from surveillance, and from 20
interviewing Anthony, to contradict Anderson and pressure him to admit to activities that
Anderson had either chosen not to reveal or had not actually engaged in.
Based on the totality of the circumstances, I conclude that Wesman’s questioning had a
reasonable tendency to interfere with, restrain or coerce Anderson’s union activities, and also 25
served as a warning to Anderson that his union activities were under surveillance. Robert F.
Kennedy Medical Center, 332 NLRB 1536, 1539-1540 (2000) (“When an employer creates the
impression among its employees that it is watching or spying on their union activities,
employees’ future union activities, their future exercise of Section 7 rights, tend to be
inhibited.”); see also Flexsteel Industries, 311 NLRB at 257 (employee should be free to 30
participate in union activities “without the fear that members of management are peering over
their shoulders, taking note of who is involved in union activities, and in what particular ways.”).
I find that the Respondent violated Section 8(a)(1) on June 24, 2014, when Wesman
coercively interrogated Anderson about his union activities and indicated that such activities 35
were under surveillance.
G. PROHIBITION ON WEARING
UNION SHIRTS INSIDE FACILITY.40
The General Counsel alleges that the Respondent violated Section 8(a)(1) on June 24,
2014, when Abrams (vice-president of human resources) directed Geurts (off-duty employee) to
stop displaying his union shirt in the facility’s public atrium area and when a nurse manager and
security guards told union representatives Gulley and Hamilton that they could not display their 45
union shirts in the facility’s public lobby. The Supreme Court and the Board have both
recognized that hospitals have a legitimate interest in providing a tranquil atmosphere for their
patients. To that end, such employers have been granted leeway to restrict the display of union
insignias in immediate patient care areas. Beth Israel Hospital v. NLRB, 437 U.S. at 507;
NLRB v. Baptist Hospital, Inc., 442 U.S. at 779-781; St. John’s Hospital & School of Nursing, 50
Inc., 222 NLRB at 1150. However, the same leeway does not exist regarding locations that are
not immediate patient care areas. In those areas, a medical facility presumptively violates the
JD–49–15
46
Act by prohibiting individuals from wearing union insignia. NLRB v. Baptist Hospital, 442 U.S. at
781; Healthbridge Management LLC, 360 NLRB No. 118, slip op. 1-2 (2014), enfd. 2015 WL
4909945 (D.C. Cir. Aug 18, 2015). An employer may rebut that presumption by showing
special circumstances – in particular that the display of union insignias is disrupting health care
operations or disturbing patients. Baptist Hospital, 442 U.S. at 781; Beth Israel Hospital, 437 5
U.S. at 507.
The Respondent has not presented any evidence that rebuts the presumption that it
violated Section 8(a)(1) by interfering with Geurts’, Gulley’s, and Hamilton’s right to display
union insignias in a location at the hospital that was not an immediate patient care area. There 10
was no evidence showing that by wearing union shirts in the lobby of the facility these
individuals were in any way disrupting health care operations or disturbing patients. The shirts
had union insignias on them, but no picketing slogans or criticisms of the Respondent. Rather
than point to any evidence of a disturbance or disruption, the Respondent notes that the union
shirts at issue were the same as those that were being worn by the persons participating in the 15
informational picketing in a park near the hospital’s campus. The Respondent does not explain
if, or how, those circumstances caused the wearing of union shirts in the facility’s public lobby
and atrium to become disruptive to patient care or disturbing to patients. During their time
inside the facility Geurts, Gulley and Hamilton were not chanting, carrying signs, using
noisemakers or amplification devices, accosting other visitors, parading in large groups, or 20
otherwise engaging in conduct that might arguably be disruptive or disturbing to persons at the
facility for treatment. If anything, it was the Respondent who risked causing a disturbance by
confronting these individuals about their union shirts. Even Wicklander, the Respondent’s
president, conceded that, given that Geurts did not have a shirt on underneath his union shirt, it
caused a disturbance to have him remove the union shirt in the facility’s public atrium. Under 25
the circumstances, and although antiunion motive is not necessary to show a violation of
Section 8(a)(1) in this context,45 the record suggests that management was motivated in this
instance by hostility towards the union activity, not by sincere concerns about maintaining a
tranquil atmosphere for patients.
30
I find that the Respondent violated Section 8(a)(1) on June 24, 2014, by prohibiting an
off-duty employee and two non-employee union representatives from wearing shirts with union
insignias in the public lobby and atrium of the facility.
H. ALLEGATION THAT THE RESPONDENT DISCRIMINATORILY35
TERMINATED ANDERSON IN VIOLATION OF SECTION 8(A)(3) AND (1)
The General Counsel alleges that the Respondent violated Section 8(a)(3) and (1) on
June 27, 2014, when, citing Anderson’s record of tardiness, it terminated Anderson’s
employment. Under the Board's Wright Line decision, in cases alleging discrimination in 40
violation of Section 8(a)(3) and (1), where motivation is at issue, the General Counsel bears the
initial burden of showing that the Respondent's decision to take adverse action against an
employee was motivated, at least in part, by antiunion considerations. 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. (1982), approved in NLRB v.
Transportation Corp., 462 U.S. 393 (1983). The General Counsel may meet this burden by 45
showing that: (1) the employee engaged in union or other protected activity, (2) the employer

45 It is settled that the test of interference, restraint and coercion under Section 8(a)(1) does
not turn on the employer's motive or on whether the coercion succeeded or failed; the test is
whether the employer engaged in conduct which, it may reasonably be said, tends to interfere
with the free exercise of Section 7 rights. Medcare Associates, Inc., 330 NLRB 935, 940 fn. 17
(2000).
JD–49–15
47
knew of such activities, and (3) the employer harbored animosity towards the Union or other
protected activity. Camaco Lorain Mfg. Plant, 356 NLRB No. 143, slip op. at 3-4 (2011); ADB
Utility Contractors, 353 NLRB 166, 166-167 (2008), enf. denied on other grounds, 383 Fed.
Appx. 594 (8th Cir. 2010); Intermet Stevensville, 350 NLRB 1270, 1274-1275 (2007); Senior
Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000); Regal Recycling, Inc., 329 NLRB 5
355, 356 (1999). Animus may be inferred from the record as a whole, including timing and
disparate treatment. Brink's, Inc., 360 NLRB No. 136, slip op. at 1 fn. 3 (2014); Camaco Lorain
Mfg. Plant, supra.; see also Gaetano & Associates, 344 NLRB 531, 532 (2005) (animus may be
inferred from timing), enfd. 183 Fed. App. 17 (2d Cir. 2006), Davey Roofing, Inc., 341 NLRB
222, 223 (2004) (same). If the General Counsel establishes discriminatory motive, the burden 10
shifts to the employer to demonstrate that it would have taken the same action absent the
protected conduct. Camaco Lorrain, supra; ADB Utility, supra; Intermet Stevensville, supra;
Senior Citizens, supra.
The evidence supporting the General Counsel’s prima facie case could hardly be 15
stronger. Anderson was a known union activist – serving not only as a steward for the Union,
but also sitting on its contract bargaining committee and its executive board. The Respondent,
and in particular labor relations officials like Wesman, were well aware of these activities. In
addition, on June 24 – only one day before Wesman for the first time advocated that Anderson’s
decade long history of tardiness warranted termination – Wesman confronted, and unlawfully 20
interrogated and threatened, Anderson about his union activity. Wesman was also part of the
small cadre of Respondent officials that was involved in, inter alia, the unlawful interference with
the union activities in the cafeteria on June 23 and 24. In addition to this evidence of animus
very closely connected to Anderson’s termination, the unlawful acts already found above
demonstrate the Respondent’s pervasively hostile attitude towards union activities relating to 25
the informational picketing. The evidence shows that Anderson was engaged in union activity,
that the Respondent was aware of that activity and bore hostility towards it and, therefore, the
General Counsel has met its initial burden of showing that the Respondent's decision to
terminate Anderson was motivated, at least in part, by antiunion considerations.
30
Since the General Counsel has met its initial burden, the burden falls on the
Respondent to show by a preponderance of the evidence that it would have terminated
Anderson even in the absence of his protected activity. Camaco Lorrain, supra; ADB Utility,
supra; Intermet Stevensville, supra; Senior Citizens, supra. The Respondent cannot meet this
burden by simply showing a legitimate reason for the termination, but rather must show that it 35
would have taken the same action for that legitimate reason even in the absence of the
protected activity. Monroe Mfg., 323 NLRB at 27; T & J Trucking Co., 316 NLRB 771, 771
(1995), enfd. 86 F.3d 1146 (1st Cir. 1996) (Table). The record indicates that, on about June 27,
Anderson’s supervisor, Gubbins, would likely have imposed some type of discipline on
Anderson even if she did not know about his protected activity. However, the record shows that 40
the discipline imposed would, at most, have been a 2-day suspension if not for the fact that
Wesman challenged the level of discipline that Gubbins planned and argued for Anderson’s
termination. On June 9, Anderson was late for work and Gubbins decided at that time that
some level of discipline should be considered. She was considering either a written warning or
a suspension. She sought the advice of both Sylvester and Wesman on that question. On June 45
10, Sylvester told Gubbins that what appeared to be appropriate under the tardiness guidelines
was a written warning unless Anderson’s prior suspension warranted “bumping” the discipline
up to the suspension level. On June 11 and 12, Wesman, after obtaining background
information about Anderson’s tardiness issues, responded to Gubbins but did not make any
recommendation about the appropriate level of discipline and, more tellingly, did not suggest 50
that the range of discipline that Gubbins and Sylvester had been considering (verbal warning or
suspension) was insufficiently harsh. Instead he asked Gubbins what she wanted to do.
JD–49–15
48
Gubbins concluded that a 2-day suspension without pay was the appropriate level of
discipline and she prepared a draft disciplinary notice for Anderson to that effect. Discipline of
that kind had to be reviewed by the labor relations department and, on June 25, Gubbins
forwarded the draft disciplinary notice imposing a suspension to Wesman and asked him “How 5
does this look to you?” This was only one day after Wesman unlawfully confronted Anderson
about his activity in support of the informational picketing. Within minutes of receiving Gubbins’
draft suspending Anderson, Wesman responded as follows: “Judy [Gubbins], I do not agree.
Termination is more than warranted and we will lose consistency when others are terminated for
much less.” Until that point – just one day after Wesman unlawfully interrogated and threatened 10
Anderson – neither Wesman, nor anyone else involved in the discussions, had raised the
possibility that Anderson would be terminated. The Respondent did not show that Gubbins had
considered proposing termination during the discussions from June 9 to 24. After receiving
Wesman’s communication pressing for Anderson’s termination, Gubbins altered the disciplinary
notice to impose termination rather than suspension, although she left the notice otherwise 15
unchanged. On June 27, Gubbins terminated Anderson and provided him with the disciplinary
notice.
Based on the above, I find that Anderson would not have been terminated if not for the
fact that Wesman challenged Gubbins’ decision to impose lesser discipline and argued that 20
Anderson had to be terminated. The question then narrows to whether the Respondent has
shown by a preponderance of the evidence that Wesman would have taken that action in the
absence of Anderson’s protected activity. I conclude that the Respondent has not met its
burden in that regard. Prior to unlawfully confronting Anderson about his protected activities on
June 24, Wesman had not suggested that the range of discipline Gubbins was discussing with25
Sylvester – written warning or suspension – was inappropriate and had not argued for
termination. The Respondent did not show that anything happened between June 11 (when
Wesman expressed no disagreement with the warning-suspension discipline range) and June
25 (when Wesman objected to that discipline range and argued for termination) that would
explain a change in outlook other than the fact that Anderson was involved in the informational 30
picketing and had taken issue with Wesman’s intimidation tactics on June 24. To the contrary,
the evidence is that Anderson had no additional incidents of tardiness between June 11 and
June 25.
In addition, although Anderson’s tardiness problems stretched back a decade, and 35
although Anderson had received discipline for those problems in the past, the Respondent did
not show that Wesman had ever before argued that the level of discipline should be more
severe. Indeed, although there was conclusory testimony that, for persons other than
Anderson, Wesman had sometimes advocated for a stricter level of discipline than that which
was proposed by a supervisor, the Respondent did not introduce evidence showing that 40
Wesman’s intervention in any such cases involved employees similarly situated to Anderson or
that the intervention was comparably harsh.
Moreover, in the case of Anderson, Wesman could only justify termination by departing
from the disciplinary chart in the tardiness guidelines. As Sylvester advised Gubbins, 45
Anderson’s record of 11 occurrences of over 5 minutes only warranted a written warning
according to that chart. In order to terminate Anderson, it was necessary to depart from the very
specific framework laid out in the disciplinary chart and invoke vague language providing that
discipline could also be imposed based on a “discernible pattern of lateness less than 5
minutes.” That language does not mention termination or specify what level of discipline will 50
result from such a pattern or from specific numbers of latenesses of less than 5 minutes.
JD–49–15
49
Both sides introduced evidence regarding the discipline imposed on other employees for
tardiness. That evidence, which is set forth in some detail earlier in this decision, is inconclusive.
In many instances it does not make clear whether the tardinesses were of more or less than 5
minutes (and thus does not show where they fall under the disciplinary chart in the tardiness
guidelines), and in other instances it bases discipline on a period shorter than the rolling 12-5
month period that is set forth in the guidelines and was used in disciplining Anderson.
Moreover, it appears to include examples both of employees who received discipline short of
termination even though their conduct was at least as severe as Anderson’s under the tardiness
guidelines and of employees who were terminated for conduct comparable to Anderson’s.46 It is
also the case that Anderson’s circumstances were somewhat unusual in that he was an 10
employee of 11 years who was considered very capable in most respects, but had problems
with tardiness for essentially the entire period of his employment, and who the Respondent had
not previously sought to terminate. The comparator evidence was not complete enough to
assess the extent to which Anderson’s history differed from that of the comparators in those
respects and, at any rate, the Respondent’s witnesses did not clarify what weight was given to 15
Anderson’s longevity or positive attributes as an employee when the decision to terminate him
was made.
To sum up, I find that although the evidence shows that in June 2014 the Respondent
would likely have issued some discipline to Anderson absent his protected activities, the 20
Respondent has failed to rebut the strong evidence indicating that he would not have been
terminated if not for the Respondent’s, and in particular Wesman’s, hostility towards Anderson’s
union activity. As discussed above, Wesman had been involved with the discussions on the
question of whether to warn or suspend Anderson earlier in June, but it was not until the day
after he unlawfully confronted Anderson about his union activity that Wesman registered any 25
objection to the warning/suspension level of discipline or advocated that Gubbins should, in a
departure from the disciplinary chart in the tardiness policy, terminate Anderson.
For the reasons stated above, I conclude that the Respondent unlawfully discriminated
against Anderson based on his union activities in violation of Section 8(a)(3) and (1) when it30
terminated him on June 27, 2014.
I. ALLEGATION THAT THE RESPONDENT VIOLATED SECTION 8(A)(1) AND
SECTION 8(A)(5) AND (1) ON AUGUST 21, 2014, WHEN IT EJECTED ANDERSON FROM THE
FACILITY FOR ENGAGING IN UNION ACTIVITY IN THE CAFETERIA AND THREATENED ARREST.35
The General Counsel argues that on August 21, 2014, the Respondent violated Section
8(a)(1) and Section 8(a)(5) and (1) of the Act when Wesman ejected Anderson from the facility
because of his union activity in the cafeteria, and also threatened to have Anderson arrested if
he conducted union business in the cafeteria again. At the time of these actions, Anderson’s 40

46 These records show an instance in which an employee was not terminated even though,
unlike Anderson, she had enough occurrences of over 5 minutes to trigger termination under the
disciplinary chart. Specifically, on July 1, 2011, an employee who had 62 tardiness occurrences
of 5 minutes or more during the relevant 12-month period was considered for termination but
given only a warning. R Exh. 69. The record shows that the employee was also late by less
than 5 minutes on numerous occasions. This employee’s tardiness record when the
Respondent decided to issue the warning was at least as bad as Anderson’s was when the
Respondent terminated Anderson for 11 occurrences of 5 minutes or more, and his numerous
latenesses of less than 5 minutes. On the other hand, the evidence showed that on July 16,
2014, another employee was terminated based on a record of 74 latenesses over approximately
14 months.
JD–49–15
50
employment had already been terminated by the Respondent and he was present as a non-
employee SEIU organizer. The analysis and relevant case law is the same with respect to
Anderson as it was for the other non-employee SEIU representatives whose activities in the
cafeteria the Respondent unlawfully interfered with on June 23 and 24. As in the earlier
instances, Anthony was engaging with small groups of employees in the public cafeteria in a 5
non-disruptive manner that was consistent with the way other visitors were using the cafeteria.
Although the employee who Anderson had been speaking to, Combs, was not a bargaining unit
employee, this was not known to either of them at the time and, at any rate, Combs testified that
the conversation was not unpeaceful. Therefore, the Respondent violated Section 8(a)(1) when
Wesman used ejection and threats of arrest to prevent Anderson from participating in orderly, 10
non-disruptive, gatherings in a cafeteria that was open to the general public, while permitting
comparable gatherings in the same location as long as union representatives and union
subjects were not involved. See Babcock & Wilcox, supra, and Baptist Medical, supra.; see
also Fred Meyer Stores, 359 NLRB No. 34, slip op. at 2 (2012), reaffirmed by 362 NLRB No. 82
(2015) (employer violated Section 8(a)(1) when it prohibited union representatives from talking 15
to employees on the store floor and threatened to have the union representatives arrested or
removed from the store) and Frontier Hotel & Casino, 309 NLRB 761, 766 (1992) (Board affirms
ALJ's finding that ejection of union representatives from the hotel's premises interfered with
union-related communications and violated Section 8(a)(1)), enfd. in relevant part 71 F.3d 1434
(9th Cir. 1995).20

The Respondent violated Section 8(a)(1) when on August 21, 2014, when it interfered
with Anderson’s union activities by ejecting him from the facility and threatening to have him
arrested.
25
The General Counsel also alleges that the Respondent’s interference with Anderson’s
activities August 21 constituted a unilateral change to an established practice regarding union
access and therefore violated Section 8(a)(5) and (1). At the time that Wesman interrupted
Anderson’s activities he was talking to only one other individual – a type of activity that the
Respondent, including labor relations officials Cahoon and Wesman, had known about and 30
permitted prior to the events of late June. Moreover, Wesman’s statement to Anderson on
August 21 was not that union gatherings above a certain size were prohibited, but rather that
there was a blanket prohibition on union business and activities in the cafeteria and that unions
were not allowed in the cafeteria. The Respondent did not give the SEIU notice and an
opportunity to bargain before implementing this prohibition, which was a change from the prior 35
practice regarding SEIU access to, and use of, the cafeteria. A unilateral change that denies or
reduces union access to unit employees, as this change did, is material in nature and a violation
of Section 8(a)(5) and (1). Turtle Bay Reports, 355 NLRB at 1272-1273; Frontier Hotel, 323
NLRB at 817-818; Ernst Home Centers, 308 NLRB at 848-849; American Commercial Lines,
291 NLRB at 1072.40
For the reasons discussed above, the Respondent made a unilateral change in violation
of Section 8(a)(5) and (1) on August 21 when it prevented and prohibited Anderson from
engaging in union activity in the cafeteria that was open to the general public.
45
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section 50
2(2), (6) and (7) of the Act.
JD–49–15
51
2. The SEIU and the MNA are labor organizations within the meaning of Section 2(5) of
the Act.
3. The claims in this case are not appropriate for deferral to the parties’ grievance and
arbitration procedures. 5
4. The Respondent violated Section 8(a)(1) of the Act: on June 23 and June 24, 2014,
when it prohibited non-employee representatives of the SEIU and the MNA from having non-
disruptive union-related conversations at the facility while in a cafeteria that was open to the
general public; on June 24, 2014, when the Respondent physically interfered with the ability of 10
non-employee representatives of the SEIU and the MNA to meet with, and talk to, employees at
the facility while in a cafeteria that was open to the general public; on June 24, 2014, by
coercively surveilling the conversations that non-employee representatives of the SEIU and the
MNA had with employees; on June 23, 2014, when it ejected non-employee union
representatives Anthony and Scott from its facility and banned them from returning for a period 15
of 1 year; on June 23, 2014, when it prohibited employee Anderson from posting union
information on the bulletin board in the sterile processing department where he worked; on June
24, 2014, when the Respondent coercively interrogated employee Anderson about his union
activities and threatened that such activities were being surveilled by the Respondent; on June
24, 2014, when it prohibited an off-duty bargaining unit employee and two non-employee union 20
representatives from wearing shirts with union insignias while in locations that were not
immediate patient care areas; and on August 21, 2014, when it interfered with a non-employee
SEIU representative’s union activities in a cafeteria that was open to the general public by
ejecting him from the facility and threatening to have him arrested.
25
5. The Respondent violated Section 8(a)(5) and (1) of the Act: on June 23, June 24,
and August 21, 2014, when it unilaterally imposed restrictions on the activities of non-employee
representatives of the MNA and the SEIU in the public cafeteria at the facility; and on June 23,
2014, when pursuant to the unlawfully imposed restriction it ejected non-employee union
representatives Anthony and Scott from the facility and banned them from returning for a period 30
of 1 year.
6. The Respondent unlawfully discriminated against Melvin Anderson based on his
union activities in violation of Section 8(a)(3) and (1) when it terminated him on June 27, 2014.
35
7. The Respondent was not shown to have committed the other unfair labor practices
alleged in the complaint.
REMEDY40
Having found that the Respondent engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act. The Respondent, having discriminatorily discharged Anderson, must offer
him full and immediate reinstatement and make him whole for any loss of earnings and other 45
benefits. To the extent that a preponderance of the evidence of record, or adduced in a
compliance proceeding, shows that absent its discriminatory animus the Respondent would, on
or about June 27, 2014, have imposed the 2-day suspension proposed by Gubbins or other
discipline affecting compensation, the backpay award will be reduced accordingly. Backpay
shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest 50
at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). The
JD–49–15
52
Respondent shall file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters and shall also compensate the discriminatee for the adverse tax
consequences, if any, of receiving one or more lump-sum backpay awards covering periods
longer than 1 year, Latino Express, Inc., 359 NLRB No. 44 (2012).
5
In addition to other standard remedies, the General Counsel seeks imposition of an
extraordinary remedy – that either Cahoon or Wesman be required to read the attached notice
aloud to employees during working time. The Board has stated that such a requirement is not
warranted except where the General Counsel shows that other remedies will be insufficient.
Chinese Daily News, 346 NLRB 906, 909 (2006), enfd. 224 Fed. Appx. 6 (D.C. Cir. 2007). The 10
evidence does not show that the employer has an extensive prior history of violations or of
noncompliance with cease-and-desist orders. Since the evidence does not show that the
traditional remedies will be insufficient in this case, I decline to recommend the extraordinary
remedy sought by the General Counsel.
15
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.47
ORDER20
The Respondent, North Memorial Health Care, Robbinsdale, Minnesota, its officers,
agents, successors, and assigns, shall
1. Cease and desist from 25
(a) Prohibiting representatives of the SEIU and/or the MNA from engaging in non-
disruptive activities with employees, or other union representatives, while at the Robbinsdale,
Minnesota, facility (the facility) in areas that are open to the general public.
30
(b) Physically interfering with the ability of representatives of the SEIU and/or the MNA to
meet with, and talk to, employees at the facility in areas that are open to general public.
(c) Coercively surveilling the activities that representatives of the SEIU and/or the MNA
engage in at the facility. 35
(d) Ejecting non-employee representatives of the SEIU and/or the MNA from the facility,
banning such individuals from the facility, and/or threatening to have such individuals arrested
because they engage in non-disruptive activities at the facility in areas that are open to the
general public. 40
(e) Prohibiting employees in the sterile processing department at the facility from posting
information about union matters on the bulletin board in that department.
(f) Coercively interrogating employees about their union activities and/or threatening that 45
the Respondent has placed such activities under surveillance.

47 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD–49–15
53
(g) Prohibiting off-duty employees and/or non-employee union representatives from
wearing clothing with union insignias in locations at the facility that are not immediate patient
care areas.
(h) Unilaterally changing the terms and conditions of employees represented by the 5
SEIU and/or the MNA without notifying the representative and giving it an opportunity to
bargain.
(i) Unilaterally imposing restrictions on the non-disruptive activities of non-employee
representatives of the SEIU and/or the MNA in areas at the facility that are open to the general 10
public.
(j) Ejecting and/or banning non-employee representatives of the SEIU and/or the MNA
from the facility for violating unlawfully imposed restrictions on union activity.
15
(k) Discharging or otherwise discriminating against any employee for supporting the
SEIU or any other union.
(l) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.20
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Immediately rescind the restrictions unlawfully imposed on the union activities of non-
employee union representatives.25
(b) Immediately rescind the restrictions unlawfully imposed on employees’ posting of
union information on the bulletin board in the sterile processing department.
(c) Immediately rescind the restriction unlawfully placed on the wearing of clothing with 30
union insignias in locations at the facility that are not immediate patient care areas.
(d) Immediately rescind the trespass notices/warnings issued to SEIU representative
Frederick Anthony and MNA representative Karlton Scott, and notify them that this has been
done. 35
(e) Within 14 days from the date of the Board’s Order, offer Melvin Anderson full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
40
(f) Make Melvin Anderson whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him in the manner set forth in the remedy section of the
decision.
(g) Within 14 days from the date of the Board’s Order, remove from its files any 45
reference to the unlawful discharge, and within 3 days thereafter notify the employee in writing
that this has been done and that the discharge will not be used against him in any way.
(h) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the 50
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
JD–49–15
54
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(i) Within 14 days after service by the Region, post at its facility in Robbinsdale,
Minnesota, copies of the attached notice marked “Appendix.”48 Copies of the notice, on forms 5
provided by the Regional Director for Region 18, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted, including all bulletin boards in break rooms located on units where
bargaining unit employees work. In addition to physical posting of paper notices, the notices 10
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 15
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 June 23, 2014.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges 20
violations of the Act not specifically found.
Dated, Washington, D.C. September 3, 201525
PAUL BOGAS
Administrative Law Judge
30

48 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.”
JD–49–15
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT prohibit representatives of SEIU Healthcare Minnesota (SEIU) and/or
Minnesota Nurses Association (MNA) from engaging in non-disruptive activities with you or with
one another at the Robbinsdale, Minnesota, facility (the facility) in areas that are open to the
general public.
WE WILL NOT physically prevent representatives of the SEIU and/or the MNA from
meeting with, and talking to, you in areas at the facility that are open to general public.
WE WILL NOT watch or monitor the conversations that representatives of the SEIU
and/or the MNA have with you, or one another, at the facility.
WE WILL NOT eject representatives of the SEIU and/or the MNA from the facility, ban
such individuals from the facility, and/or threaten such with arrest because they engage in non-
disruptive activities in areas at the facility that are open to the general public.
WE WILL NOT prohibit employees in the sterile processing department at the facility
from posting information about union matters on the bulletin board in that department.
WE WILL NOT coercively interrogate you about union activities and/or threaten that we
are watching or monitoring such activities.
WE WILL NOT prohibit off-duty employees and/or non-employee union representatives
from wearing clothing with union insignias in locations at the facility that are not immediate
patient care areas.
WE WILL NOT unilaterally change the terms and conditions of employees represented
by the SEIU and/or the MNA without notifying the representative and giving it an opportunity to
bargain.
WE WILL NOT unilaterally impose restrictions on non-disruptive activities by
representatives of the SEIU and/or the MNA in areas at the facility that are open to the general
public.
JD–49–15
WE WILL NOT eject and/or ban representatives of the SEIU and/or the MNA from the
facility for violating unlawfully imposed restrictions on union activity.
WE WILL NOT discharge or otherwise discriminate against any employee for supporting
the SEIU or any other union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL rescind the restrictions unlawfully imposed on the activities of union
representatives.
WE WILL rescind the restrictions unlawfully imposed on employees’ posting of union
information on the bulletin board in the sterile processing department.
WE WILL rescind the restriction unlawfully placed on the wearing of clothing with union
insignias.
WE WILL rescind the trespass notices/warnings that we issued to SEIU representative
Frederick Anthony and MNA representative Karlton Scott and notify them that this has been
done.
WE WILL, within 14 days from the date of this Order, offer Melvin Anderson full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Melvin Anderson whole for any loss of earnings and other benefits
resulting from his discharge, less any net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Melvin Anderson for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove from our files any
reference to the unlawful discharge of Melvin Anderson, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the discharge will not be used against him
in any way.
NORTH MEMORIAL HEALTH CARE
Dated By
(Representative) (Title)
JD–49–15
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.
Towle Building, Suite 790, 330 Second Avenue South, Minneapolis, MN 55401-2221
(612) 348-1757, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/18-CA-132107 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (612) 348-1770.