Columbia Memorial Hospital

National Labor Relations Board - Administrative Judge Opinions

Jan 12, 2015

03-CA-120636 (N.L.R.B. Jan. 12, 2015)

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Hudson, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
COLUMBIA MEMORIAL HOSPITAL
and Case No. 03-CA-120636
03-CA-122557
1199 SEIU UNITED HEALTHCARE WORKERS 03-CA-124333
EAST 03-CA-124803
03-CA-124816
John Grunert, Esq. and Amy L. Cocuzza, Esq.
for the General Counsel.
Richard P. Walsh, Esq. and Paul E. Davenport, Esq.
(Lombardi, Walsh, Davenport & Amodeo, P.C.)
for the Respondent.
Susan J. Cameron, Esq., (Levy Ratner, P.C.),
for the Charging Party.
DECISION
Statement of the Case
KENNETH W. CHU, Administrative Law Judge. This case was tried in Albany, New York
on July 29, 30, 31 and August 1, 2014 pursuant to a consolidated complaint issued by Region 3
of the National Labor Relations Board (NLRB). The 1199 SEIU United Healthcare Workers East
filed several amended charges on various dates in January, February, March, and April 2014.1
The General Counsel issued a consolidated complaint on April 29 and a subsequent
consolidated complaint on May 28, 2014 further consolidating cases (GC Exh. 1).2 The
Columbia Memorial Hospital (Respondent) filed timely answers denying the material allegations
in the consolidated complaint.
The consolidated complaint alleges that the Respondent violated Section 8(a)(5), (3),
and (1) of the National Labor Relations Act (Act) by disciplining Cindy Northrup for engaging in
Section 7 protected activity; failing to provide requested necessary and relevant information to
the union; maintaining an overly broad organizational ethics confidentiality policy that
reasonably construed to chill employees’ Section 7 rights; implementing a security access card

1 All dates are in 2014 unless otherwise indicated.
2 Exhibits for the General Counsel are identified as “GC Exh.” and the exhibits for the Respondent are
identified as “R.” The closing briefs for the General Counsel, Respondent and the charging party are
identified as “GC Br.,” “R Br.,” and “CP Br.” The transcript testimony is noted as “Tr.”
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policy without bargaining with the union; issuing the access card policy in response to union
activity; and failing to provide Weingarten rights to Kristen Bartholomew.3
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the parties, I make the following
Findings of Fact
I. Jurisdiction and
labor organization status
The Respondent, a corporation, operates as a hospital providing inpatient and outpatient
medical care at its facility in Hudson, New York, where it annually deprives gross income in
excess of $250,000 and purchases and receives goods at its Hudson, New York facility valued
in excess of $5,000 from points outside the State of New York. 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.
The Union is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
The Union is the exclusive collective bargaining representative of the Respondent’s
employees in the following appropriate bargaining unit of
All full-time and part-time registered professional nurses licensed to practice in the State
of New York including per diem registered professional nurses, pharmacists, physical
therapists, medical technologists.
There are approximately 700 bargaining unit employees. The Respondent and the
Union have been party to a series of collective-bargaining agreements for several years, the
most recent being from January 1, 2011 to December 31, 2015 (GC Exh. 2).4 Article 4, Section
8 of the current contract states, in part
A representative of the Union shall have access to the Employer’s premises for the
purposes of conferring with the Employees, Delegates of the Union and/or Employers,

3 Given the amount of testimony and evidence taken throughout the hearing regarding the arbitrator’s
decision on the union’s rights of access to the Respondent’s facility and the grievances filed on behalf of
Cindy Northrup when she was subjected to discipline, I instructed the parties to address whether deferral
to the grievance/arbitration process would be appropriate. Upon review of the arguments presented by
the parties in their closing briefs, I find that deferral to the grievance and arbitration to be inappropriate.
Without going into the merits whether individual issues should be deferred, it is well settled that deferral to
the grievance and arbitration process of the collective-bargaining agreement is an affirmative defense that
must be timely raised in the answer to the complaint or at the trial. Babcock & Wilcox Construction Co.,
361 NLRB No. 132, slip op. at 10 (2014); SEIU United Healthcare Workers-West, 350 NLRB 284 fn. 1
(2007). Therefore, the Respondent’s assertion of this defense after the trial closes is untimely. SEIU
Healthcare Workers-West, above.
4 The parties could not agree as to when the union became the exclusive party representative (Tr. 9).
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provided there is no interruption of service. Such access shall be preceded by
telephone notice to the VP of Human Resources or his/her designee.
The interpretation of Section 8 of the contract was grieved by the union. An arbitrator
decision issued in January 2012 held, in part, that the Respondent violated Section 8 of Article 4
of the contract by denying the union access to the hospital’s premises for the purpose of
conferring with the employees, delegates of the union and/or employer to the extent that the
hospital’s policy regarding access precluded access between the hours of 8:00 p.m. and 6:00
a.m. and precluded access to the public areas (GC Exh. 3 at p. 29).5
B. Credibility
The credibility resolutions herein have been derived from a review of the entire
testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the
witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). A
credibility determination may rely on a variety of factors, including the context of the witness’
testimony, the witness’ demeanor, and the weight of the respective evidence, established or
admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001). Credibility findings need not be all-or-nothing propositions—indeed,
nothing is more common in all kinds of judicial decisions than to believe some, but not all, of a
witness’ testimony. Daikichi Sushi, above.
C. The Testimony of Timothy Rodgers
Timothy Rodgers (Rodgers) testified he was and is employed by the union as the
administrator organizer. He attends labor-management meetings, arbitrations, and union
meetings at the Respondent’s premises. He testified that the union meetings are usually held
on a monthly basis in a public area of the hospital. The meetings are attended by union
delegates and unit employees from 8 a.m. until 12 a.m. Rodgers said that since the unit
employees are only available to attend during a break or after completing their shift, the meeting
would start at 8 a.m. and conclude at12 a.m. so that all employees would have the opportunity
to meet with the organizer or delegate. Rodgers testified that he would notify the Respondent’s
human resources office through his contact person (Susan LoGiudice) usually a couple of hours
to a few minutes before arriving when he plans to enter the hospital. Rodgers said that when he
arrives at the hospital, he would usually enter through the main lobby and sign his name in a
visitor register log near the customer greeter’s area. He said that the greeter’s name was “Jack”
and that it is rare to find a security guard in the main lobby area. Rodgers also said that he has
entered the hospital from a locked side door located on Prospect Avenue during the day by
being “swiped” in with a security access card when accompanied by management officials, who
he identified as Ray Jones, the former vice president of human resources, Kelly Sweeney
(Sweeney), the HR director, and Patricia Finnegan, the current HR vice president (Tr. 304-311).
When Rodgers needed access to the hospital during the night, he would go through the
Emergency Department (ED) entrance after the hospital’s main lobby doors are closed, usually
at 8 p.m. He testified he makes every effort to enter the hospital before 8 p.m. so that he does
not have to use the ED entrance (Tr. 312).

5 The allegation of restricted access to the hospital facility was not raised in this complaint and only
serves as background information for the discipline taken against Cindy Northrup (Tr. 11, 12).
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D. The Discipline of Cindy Northrup
In December 2013, Rodgers was busy with other union matters and the responsibility for
attending the monthly meetings and other union matters at the hospital was given to Rosamaria
Lomuscio (Lomuscio), who was and is the union vice president. Lomuscio said that the monthly
meeting was scheduled for December 26. Lomuscio said that the December 26 meeting was
planned for the entire day and night to enable unit employees to attend after their work shifts,
during their breaks and lunch periods. Usually 7 to 10 employees would attend the meeting at
various scheduled time periods during the day and night (Tr. 44-50).
Lomuscio testified that she informed Sweeney on December 19, 2013 by telephone that
she would be arriving on December 26 to lead the monthly meeting. Lomuscio informed
Sweeney that the meeting would continue past 8 p.m. According to Lomuscio, when Sweeney
objected and said that the union does not have access to the hospital after 8 p.m., Lomuscio
referenced the arbitrator’s decision which did not restrict the union’s access as long as the
meeting was held in a public area of the hospital. Lomuscio reminded Sweeney on December
24 during a grievance proceeding pertaining another matter that the arbitrator’s decision did not
restrict the union’s access time when holding meetings at the hospital. Lomuscio said that
Cindy Northrup (Northrup) was present and overheard her conversation with Sweeney (Tr. 51-
55). Northrup is a staff pharmacist, employed by the Respondent for over 25 years. Northrup
has also been a union delegate for over 15 years.
Sweeney recalled a telephone conversation with Lomuscio on December 19, 2013
regarding the union access to the hospital for December 26. Sweeney denied she was upset
that the union planned to meet after 8 p.m., but she told Lomuscio that her concern was over
the location the union was planning to meet after 8 p.m. When informed that the union planned
to meet in the hospital lobby after 8 p.m., Sweeney informed Lomuscio that the hospital lobby
was not a public area when the hospital was closed. Sweeney said that there are certain
security measures that have to be taken after the union informs her as to the time and place of
the meeting. In this manner, security would then know that the union was authorized to meet
after the hospital had closed and in a public area. Sweeney denied having a second
conversation with Lomuscio on December 24 regarding the December 26 meeting (Tr. 446-
450). Susan LoGiudice, the executive assistant to Sweeney at the time, sent out an email to
the hospital directors on December 26 that the union will be on the premises from noon to 7
p.m. on December 26, but did not mention the union’s presence at the facility after 7 p.m. (GC
Exh. 33).
1. The December 26 Union Meeting
Lomuscio testified that she arrived at the hospital parking garage around 10:20 a.m. on
December 26, 2013 and walked to the hospital main lobby area to sign the visitor log at 10:25
a.m. Lomuscio said that she was greeted by a security guard during her sign-in (GC Exh. 5 at
p. 2). Lomuscio said that that she met with the unit employees in the hospital cafeteria between
10:30 and 7 p.m. and only took restroom and smoke breaks. Lomuscio said that she did not
encounter any security guards but did speak to the director of housekeeping while holding the
meeting in the cafeteria.
Northrup arrived at the cafeteria after her shift around 3 p.m. and conversed with
Lomuscio and other employees. Northrup left shortly afterwards, but arranged to return and
meet with Lomuscio that evening at the hospital. Northrup arrived before 7 p.m. and met with
Lomuscio. They then left the hospital facility for dinner through 70 Prospect Avenue door. After
dinner, they returned to the hospital between 7:45 – 8 p.m. and re-entered the hospital through
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the same 70 Prospect Avenue door. Posted on the door is a sign that reads “Authorized entry
only” (R Exhs. 6, 7), which is visible on the video tape recorded by the door’s surveillance
camera (R. Exh. 14). In order to enter the locked 70 Prospect Avenue door, an employee,
authorized to possess a security access card, would swipe the card through a card reader. The
card reader recorded Northrup’s swipe at 8:01 p.m. It is not in dispute Northrup swiped the card
to allow herself and Lomuscio through the 70 Prospect Avenue entrance that night.
Lomuscio said that she was never informed by the Respondent not to use the 70
Prospect Avenue for access and it was her understanding that it was common practice to allow
employees with access cards to swipe employees and non-employees through that entrance
(Tr. 62). Lomuscio also stated that she was never instructed to use the ED entrance and to sign
in upon entering the premises (Tr. 137). Northrup testified that it was standard practice for her
to swipe employees and non-employees through the locked 70 Prospect Avenue entrance. She
said that she has done so “hundreds of times.” Northrup said that she was never given any
instructions or provided a policy statement on the use of her access card (Tr. 215, 222).
Upon entering the facility, Lomuscio and Northrup headed to the cafeteria to resume
their meeting with the unit employees. Upon discovering that the cafeteria was now closed,
Lomuscio decided to hold the meeting in the front lobby area of the facility. Lomuscio testified
that the lobby was open until 8:30 p.m., but credible testimony from Sweeney and Rodgers
indicated that the lobby was closed at 8 p.m. Nevertheless, the union meeting was held in the
lobby until shortly after 12 midnight. Northrup had already departed from the facility around 9:30
p.m.
During the 8:30 p.m. and midnight timeframe, several employees stopped by to discuss
union matters with Lomuscio. Kim Bishop, a union delegate, also attended part of the meeting.
Lomuscio testified she left the building for a cigarette break on two occasions and Bishop
opened the locked lobby doors to let her back in (Tr. 69). The record also established that a
security guard walked by the lobby and acknowledged the union members and that a
supervisor, Cindy Blair, also passed by the lobby and was introduced to Lomuscio by Bishop
(Tr. 226).
2. The Verbal Warning
Sweeney testified that part of her responsibilities as the HR director is to investigate
employee misconduct. Sweeney said that the first time she became aware that someone was
unauthorized to be in the main lobby on December 26, 2013 was an email from Cathy
DeChance (DeChance), director of nursing operations. DeChance reported to Sweeney that
another supervisor on the night shift of December 26 observed Bishop and a “…union person
were meeting with staff in the lobby from 11-1230 (p.m.) last night” (GC Exh. 33). Sweeney
testified that she was concerned that the union had access to a closed area of the facility and
requested on December 27, 2013 that the chief of security, Michael Hochman (Hochman),
investigate as to how the union gained access to the lobby.
Hochman reported back to Sweeney by email on the afternoon of December 27 and
stated “It appears that the union gained access by using an employee’s swipe card. They
entered the building through the (70) prospect avenue entrance.” Hochman indicated that he
has a copy of the access history record and a video recording of the entrance doorway for that
night. Following this email, Sweeney replied back a few minutes later and asked Hochman who
was the employee that had used the swipe card and whether she could get the access card
report and video tape. Hochman replied a few minutes later that the employee was identified as
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Northrup and he will have someone bring the access card report and video tape to Sweeney the
following Monday (GC Exh. 33; Tr. 445-447, 513-517).
Following a review of the video tape and access card report, Sweeney determined that
Northrup had swiped Lomuscio through the 70 Prospect Avenue entrance at 8:01 p.m.
Sweeney requested that security prepared a video snippet between 8:00 to 8:05 p.m. from the
December 26 surveillance tape (R Exh. 14).
Sweeney said that after reviewing the video tape, she thought that the security and
access policy was violated by Northrup in letting Lomuscio through an unauthorized entry.
Sweeney stated that the policy in place at the hospital since 2008 was that when the facility
doors are locked, the only entrance available for visitors is through the Emergency Department
(ED). Upon entering the ED, visitors would sign in and escorted by security to other parts of the
facility. Sweeney admittedly indicated that this policy was not in writing prior to December 26
(Tr. 454-463).
On December 30, 2013, Lomuscio received a letter from Finnegan that Lomuscio had
unauthorized access to the main lobby on December 26 (GC Exh. 6). The letter reads in part
The purpose of this letter is to inform you that the Union’s inappropriate and
unauthorized access of Columbia Memorial Hospital’s main lobby on Thursday,
December 26, 2013 is currently under investigation.
Lomuscio replied back on January 3 that she was authorized to be in the facility and that
the hospital “…is engaging in inappropriate and unlawful actions by seeking to restrict the
Union’s access rights” (GC Exh. 7; Tr. 74, 75).
On January 2, Northrup was called into a meeting by her supervisor, Shanda Steenburg,
who was and is the director of pharmacy at the hospital. Tracy Johnson (Johnson), a
pharmacist supervisor, was also present at their meeting but did not speak. Steenburg testified
that she received a phone call from Sweeney and asked her to question Northrup about the
December 26, 2013 incident. Steenburg was informed by Sweeney that questioning Northrup
was part of an investigation regarding an access situation. Prior to the meeting, Steenburg was
directed by Sweeney on the questions to ask Northrup (GC 34; Tr. 572, 573). Sweeney testified
she requested that Steenburg conduct the questioning of Northrup because Steenburg was her
supervisor. Sweeney stated that she prepared specific questions for Steenburg to ask
Northrup. She denied telling Steenburg the purpose of the interview or that it was an
investigation regarding access (Tr. 465; 520, 521).
Northrup was pointedly asked by Steenburg whether she was alone when she swiped
her access card at the 70 Prospect Avenue entrance on December 26. Northrup replied that
she could not recall. Northrup testified that she could not recall letting anyone in after 5:30 p.m.
on that day. Sweeney testified that she reviewed the responses provided by Northrup to
Steenburg. Upon review of the questions and responses, Sweeney felt that the questions she
had prepared for Steenburg to ask Northrup were “too broad” and requested that Steenburg
conduct a second interview with more specific questions. Sweeney thought that the second
interview would allow Northrup an opportunity to explain her answers from the first interview (Tr.
465, 466; 524).
Northrup met with Steenburg and was interrogated a second time on January 3. She
was asked by Steenburg whether she had let anyone in with her at the 70 Prospect Avenue
entrance when she entered using her access card on December 26. According to Steenburg’s
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notes, Northrup repeated that “I don’t recall” three times. Northrup was then specifically asked
by Steenburg if she allowed Lomuscio in the night of December 26, 2013 and Northrup replied
“Do not recall” (GC Exh. 34 at p. 3; Tr. 227-229).
The questions and responses were again reviewed by Sweeney after the January 3
interview. Sweeney said that one of the questions specifically asked whether Northrup had
allowed anyone in with her and Northrup responded that she could not recall. A second
question asked if Northrup allowed Lomuscio in and Northrup again responded that she could
not recall. Sweeney felt that Northrup was not being honest and forthcoming with her answers
to these two questions because Northrup had remembered many specific details, such as time
and events on December 26 but could not remember if she had let anyone or Lomuscio in when
she returned to the facility at approximately 8 p.m. (Tr. 466-468).
On January 3, Lomuscio received a second letter from Finnegan. This letter stated that
after the investigation of December 26, 2013 incident, it was confirmed that it was Lomuscio
who had unauthorized access to the hospital’s main lobby (GC Exh. 8). By letter dated January
7, Lomuscio stated that the union had not violated the collective-bargaining agreement
regarding access (GC Exh. 9).
Northrup met with Steenburg on January 8 and was issued a verbal warning,
memorialized on a Corrective Action Process (CAP) document. The CAP process is a
procedure to issue discipline. The CAP counseling stated that the “employee has been found to
allow an unauthorized visitor to enter the hospital premises. Additionally, the employee did not
require the visitor to sign in.” Northrup replied that the disciplinary action was ridiculous, did not
sign the CAP and left the meeting (GC Exh. 10; Tr. 230-232).
Northrup filed a grievance on the same day she received her CAP. The grievance
stated that the hospital was in violation of the collective-bargaining contract and that the
discipline was issued without just cause. Northrup testified that she had conversations with
Lomuscio shortly after receiving her CAP. During her conversations with Lomuscio, Northrup
realized for the first time (after Lomuscio reminded her) that it was Lomuscio who Northrup
allowed through the 70 Prospect Avenue entrance on December 26, 2013 (Tr. 235, 236; 161,
162).
Sweeney testified that she made the decision to discipline Northrup. Sweeney
concluded that Northrup allowed an unauthorized person on the premises against hospital
policy. Sweeney reiterated that all visitors were required to enter the premises through ED, sign
in and be escorted by security. Sweeney concluded that the only way Lomuscio was able to get
in the hospital on the night of December 26 was with Northrup and her access card through the
70 Prospect Avenue entrance (Tr. 468-470).
The grievance was denied at step 1 by Steenburg on January 9 (GC Exh. 11).
Lomuscio mentioned that there was a second step in the grievance process that was denied by
the vice-president of nursing. Lomuscio said that the local delegates would handle the
grievance at steps 1 and 2 with the union not really involved until the 3rd step in the process. At
the 3rd step, a meeting was held on January 28 attended by Northrup, Lomuscio, Rodgers,
Steenburg, Sweeney, and a HR representative. According to Northrup, Lomuscio did all the
talking while Sweeney and Steenburg listened. Lomuscio complained that none of the
information requested by the union regarding visitor’s access policies applied to the December
26 incident. Lomuscio specifically stated that the hospital’s policy on visiting hours did not
pertained to the union because it dealt with patient visitors and industrial representatives visiting
hospital and not situations with union access (GC Exhs. 14, 15; Tr. 85, 87, 90, 91; 237, 238).
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Lomuscio also asked the reason for the discipline and the questions asked of Northrup
by Steenburg. Lomuscio maintained that Sweeney interrupted this discussion and told
Lomuscio that Steenburg did not have to respond. Lomuscio also stated that she viewed the
surveillance video and did observe her and Northrup entering the 70 Prospect Avenue entrance
on December 26, 20013 (Tr. 88-91, 95). Lomuscio maintains that she was not an unauthorized
visitor because the Respondent was on notice that the union would be at the facility all day,
including after 8 p.m. on December 26. The meeting concluded after Lomuscio’s summation as
to why the policies did not apply to her (Tr. 93-97; 242, 243). By letter dated January 31 to
Rodgers, the union was informed by Sweeney that the grievance was denied because the
grievant allowed an unauthorized visitor to enter the hospital premises (GC Exh. 16).
3. The Suspension
Upon her return from vacation on February 9, Northrup was called to a meeting by
Steenburg on February 11 (Tr. 252; R. Exh. 15). Northrup went into Sweeney’s office and
Steenburg read another CAP document to her. The CAP discipline was for a 5 day suspension
for infractions occurring on the dates of January 2, 3, and 28 (GC Exh. 20). The CAP, issued on
February 11 stated
The employee engaged in dishonest behavior by not being forthcoming to questions
asked by the Director of Pharmacy and the Director of Human Resources in two
separate forums.
Northrup asked for a copy of the policy that was violated and Sweeney responded that a
copy will be provided at the 3rd step of the grievance process. Northrup testified that she has
never been disciplined prior to the issuance of the verbal warning and suspension. She denied
engaging in dishonesty and Steenburg never identified the dishonest behavior allegedly
committed by Northrup.
The union received notice of Northrup’s suspension on February 13 (GC Exh. 19; Tr.
104). On behalf of Northrup, the union filed a grievance on February 22 alleging that the
Respondent was in violation of several articles in the collective-bargaining agreement when the
suspension was issued (GC Exh. 21). Pursuant to a request for information for the policy
relating to the suspension, the union received from the Respondent a copy of the organizational
ethics policy. Northrup said that she had previously received a copy of the ethics policy as part
of her last annual evaluation in June 2013 (GC Exhs. 22, 23; Tr. 252-258).
Sweeney testified that she made the decision to discipline Northrup for dishonesty.
Sweeney said that dishonesty is a serious offense and only initially disciplined Northrup with a
verbal warning in order to give her an opportunity to be forthcoming after she spoke with
Northrup. Sweeney stated that during the grievance hearing on January 28, the union
representatives had reviewed the video tapes of Northrup and Lomuscio entering through the 70
Prospect Avenue entrance together and when Lomuscio was in the main lobby area. Northrup
was not present during the viewing of the video tapes. After viewing the tape, the meeting
continued with Lomuscio asking questions of Sweeney about hospital policies regarding access
and unauthorized visitors. Lomuscio also asked Steenburg questions about the two interviews
with Northrup. Sweeney maintained that she allowed, for the most part, Steenburg to answer all
of Lomuscio’s questions (Tr. 471-481). After Lomuscio had completed her questioning,
Sweeney then asked Northrup several questions. Sweeney testified
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I asked Cindy if she worked on December 26th, and she stated that she did work. I
asked her what hours she worked. She stated that she worked 7:00 to 3:00. I asked her
if she came back that night. She stated that she did. I asked her what entrance she
used to enter the building. She stated that she used the Prospect door entrance; and I
asked her if she left Rosa Lomuscio in, and Cindy’s response was she could not recall
(Tr. 481).
Rodgers was present at the January 28 grievance meeting. Rodgers stated that when
Sweeney asked Northrup if she had let in an unauthorized visitor on December 26, Lomuscio
interjected and stated that the question was “asked and answered” during the Respondent’s
investigation. Rodgers also said that when Sweeney questioned Northrup if she had let
Lomuscio in, Lomuscio again interjected and said that the question had already been answered
during the investigation. Rodgers said that Northrup made no responses (Tr. 317, 318).
However, Sweeney determined that Northrup had engaged in three instances of
dishonesty on January 2, 3 and 28 (Tr. 526; GC Exh. 23). Sweeney concluded that Northrup
was not being honest after receiving Northrup’s responses of “I do not recall.” She stated that
the basis for her conclusion was that after the union had viewed the video of Northrup letting in
Lomuscio and her continued failure to recall if she had allowed anyone or Lomuscio through the
70 Prospect Avenue entrance. Sweeney again repeated that dishonesty was a serious offense
with serious consequences. Sweeney mentioned several comparative employees who were
discharged for dishonesty but made the decision to only suspend Northrup based upon her
years of employment with the hospital (R Exhs. 8-11; GC Exh. 27; 481-492).
Discussion and Analysis
It is alleged in complaint that Northrup’s verbal warning and suspension violated Section
8(3) and (1) of the Act. Section 8(3) of the Act prohibits employer interference, restraint, or
coercion of employees for their exercise of the rights guaranteed in Section 7 of the Act. Those
rights include “the right to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to engage in other
concerted activities of the purpose of collective bargaining or other mutual aid or protection.”
Section 8(3) prohibits employers from discriminating in regard to an employee’s “tenure of
employment . . . to encourage or discourage membership in any labor organization.” An
employer violates Section 8(a)(3) by disciplining employees for anti-union motives. Equitable
Resources, 307 NLRB 730, 731 (1992). The General Counsel argues that Northrup’s discipline
was directly caused by the Respondent’s anti-union animus as displayed by its attempt to limit
the hours and locations at the hospital for the union to confer and meet with bargaining unit
employees.
As 8(a)(3) cases generally turn on the question of employer motivation, the Board
and the courts employ a causation test to analyze the merits of such allegations. Wright
Line, 251 NLRB 1083 (1980), approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983); Sea-Land Service, 837 F.2d 1387 (5th Cir. 1988). The Wright Line
test requires the General Counsel to make a prima facie showing sufficient to support an
inference that the employee’s protected conduct motivated the employer’s adverse action.
The General Counsel must demonstrate by a preponderance of the evidence that the
employee was engaged in protected activity, that the employer had knowledge of that
activity, and that the employer’s hostility to that activity “contributed to” its decision to take
an adverse action against the employee. Director, Office of Workers’ Comp. Programs v.
Greenwich Collieries, 512 U.S. 267, 278 (1994); Wright Line, 251 NLRB 1083, 1089
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(1980), enfd. on other grounds, 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).
To rebut the presumption, the Respondent bears the burden of showing the same action
would have taken place even in the absence of protected conduct. See Manno Electric, Inc.,
321 NLRB 278, 280 fn.12 (1996); Farmer Bros., Co., 303 NLRB 638, 649 (1991). To meet this
burden “an employer cannot simply present a legitimate reason for its action but must persuade
by a preponderance of the evidence that the same action would have taken place even in the
absence of the protected conduct.” Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984); Durham
School Services, L.P., 360 NLRB No. 85 (April 25, 2014).
In the matter before me, I find that the General Counsel has made a prima facie showing
that Northrup’s union activity was a motivating factor in the Respondent’s decision to discipline
her. In Tracker Marine, LLC, 337 NLRB 644 (2002), the Board affirmed the administrative law
judge who evaluated the question of the employer’s motivation under the framework established
in Wright Line. Under the framework, the judge held that the General Counsel must establish
four elements by a preponderance of evidence. First, the General Counsel must show the
existence of activity protected by the Act. Second, the General Counsel must prove that the
Respondent was aware that the employee had engaged in such activity. Third, the General
Counsel must show that the alleged discriminatee suffered an adverse employment action.
Fourth, the General Counsel must establish a link, or nexus, between the employees protected
activity and the adverse employment action. In effect, proving these four elements creates a
presumption that the adverse employment action violated the Act.6
There is no dispute that Northrup, as a delegate, was meeting with the union and other
bargaining unit members to discuss terms and conditions of employment on December 26.
There is also no dispute that Respondent had knowledge that the union was meeting with
members for the entire day and night. Although Sweeney disagreed with Lomuscio of the
union’s right to access the facility after 8 p.m., Sweeney knew that Lomuscio and other union
delegates intended to continue meeting after 8 p.m. Applying the Wright Line analysis to
Northrup’s discipline, it is clear that prior to December 26, 2013, Northrup was known for her
union delegate responsibilities and was an open employee advocate for the union. On
December 26, she met with union representatives and bargaining unit members during the latter
part of the day and in the evening until approximately 9 p.m. Through the video surveillance
recording of the lobby area, the Respondent was made aware that Northrup was engaged in
discussions with Lomuscio and other union members. In addition, I find that the timing of the
discipline issued to Northrup, shortly after she engaged in open union activity on December 26
2013, supports an inference that the Respondent’s discipline was motivated by Northrup’s union
activity. State Plaza Hotel, 347 NLRB 755, 755-756 (2006); Toll Mfg. Co., 341 NLRB 832, 833
(2004).
The Respondent has demonstrated its antiunion animus in violation of Section 8 (a)(3)
and (1) in this case. I find that Northrup’s verbal warning and suspension was motivated by her
union activity, and the burden of persuasion shifts to the Respondent to demonstrate the same
action would have taken place even in the absence of the protected conduct. Wright Line,

6 However, more recently the Board has stated that, “Board cases typically do not include [the fourth
element] as an independent element.” Wal-Mart Stores, Inc., 352 NLRB 815, fn. 5 (2008)
(citing Gelita USA, Inc., 352 NLRB 406, 407 fn. 2 (2008)); SFO Good-Nite Inn, LLC, 352 NLRB 268, 269
(2008); also see Praxair Distribution, Inc., 357 NLRB No. 91 fn. 2 (2011).
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above, at 1089.
Turning to the Respondent’s defense, the Respondent contends that Northrup was given
a verbal warning because of her unauthorized use of her access card in allowing Lomuscio
entry to the premise. Northrup’s suspension was justified because she was dishonest for
allegedly not recalling who she had allowed in the facility. Respondent contends that Northrup’s
insistence that she could not recall constituted dishonesty.
Discriminatory motive may be established in several ways including through statements
of animus directed to the employee or about the employee’s protected activities, Austal USA,
LLC, 356 NLRB No. 65, slip op. at p. 1 ( 2010); the timing between discovery of the employee’s
protected activities and the discipline, Traction Wholesale Center Co. v. NLRB, 216 F.3d 92,
99 (D.C. Cir. 2000); evidence that the employer’s asserted reason for the employee’s discipline
was pretextual, such as disparate treatment of the employee, shifting explanations provided for
the adverse action, failure to investigate whether the employee engaged in the alleged
misconduct, or providing a nondiscriminatory explanation that defies logic or is clearly baseless,
Lucky Cab Co., 360 NLRB No. 43 (2014); ManorCare Health Services – Easton, 356 NLRB No.
39, slip op. at 3 (2010); Greco & Haines, Inc., 306 NLRB 634, 634 (1992); Wright Line, 251
NLRB at 1088 fn.12, citing Shattuck Denn Mining Co. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966); Cincinnati Truck Center, 315 NLRB 554, 556–557 (1994), enfd. sub nom. NLRB v.
Transmart, Inc., 117 F.3d 1421 (6th Cir. 1997)).
The record as a whole supports the fact that the Respondent had an intense interest as
to whether in the Union was intending to meet after 8 p.m. on December 26 and I simply do not
believe that Sweeney disciplined Northrup for being dishonest during her investigatory
interviews. Northrup was given a verbal warning for the inappropriate use of her access card.
However, the Respondent failed to show that any other employee had ever been disciplined for
the improper use of his or her access card. Credible testimony from Rodgers and Northrup
indicated that the public had been swiped into the facility by other card holders, including by
Sweeney and the former director of human resources. The record also show that the access
card policy was never reduced to the writing and credible testimony from Northrup indicate that
verbal instructions on the use of the access card has not always been consistently provided to
all card holders. While it is reasonable to assume that the card holder would know not to swipe
someone else in, it is entirely a different matter not to have written objective standards in place
and to discipline an employee for that assumption.
Further, in this instance, the verbal warning was not sufficient discipline and the inquiry
did not end for the Respondent at this point. At the time of the verbal warning, Sweeney had
already identified Lomuscio as the person that Northrup allowed access into the facility. The
subsequent two interviews conducted by Sweeney and Steenburg were not to gather additional
information, but designed to have Northrup admit that she allowed Lomuscio access. Sweeney
testified that she wanted Northrup to admit that she swiped Lomuscio through the entrance.
The two interviews were designed not to gather information but an attempt to charge Northrup
with another infraction, in this instance, the charge of dishonesty because she could not
remember. While it may strain credibility that Northrup could not recall, it is also understandable
and reasonable for an employee not to self-incriminate him or herself. However, that is not
being dishonest. It might be evasion, but the Respondent definitely failed to articulate the
objective standard in defining dishonesty to justify the suspension.
In assessing the Respondent’s defense, I note that the Board has held “[a]n employer
cannot simply present a legitimate reason for its action but must persuade by a preponderance
of the evidence that the same action would have taken place even in the absence of the
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protected activity.” W. F. Bolin Co, 311 NLRB 1118, 1119 (1993). In order to meet the Wright
Line burden of persuasion, an employer must establish that it is consistently and evenly applied
its disciplinary rules. DHL Express, Inc., 360 NLRB No. 87 JD slip op. at 7 (2014). In Septix
Waste, Inc., 346 NLRB 494 (2006), the Board indicated that in order to establish a valid Wright
Line defense, an employer must establish that it is applied its disciplinary rules regarding the
conduct at issue consistently and evenly. Northup has never been subjected to discipline
during her 25 years of employment. In the instant case, the Respondent has produced no
evidence of other employees who have been disciplined for using the access card on behalf of
another individual or for being “dishonest” by failing to recall or refusing to identify someone. In
this regard, the Respondent does not point to any evidence that establishes objective standards
regarding what constitutes “dishonesty” except to provide examples of fraud in constructively
covering up potential harm to a patient and falsifying time cards (R Exhs. 9-11). No examples
were proffered by the Respondent of comparative discipline of employees charged with
dishonesty for refusing to provide an answer during an investigative interview.

Accordingly, the Respondent violated Section 8(a) (3) and (1) of the Act when it failed to
demonstrate that it would have disciplined Northrup in the absence of her protected activity.
E. The Information Request
In preparation for Northrup’s grievance on her verbal warning, the union, through
Rodgers, requested on January 8 following information from the hospital (Tr. 315; GC Exh. 12)7
1. Copies of any video surveillance which the Employer has based on this claim;
2. Copies of the policies regarding visitor’s access;
3. Copies of any and all statements and investigations done on who was allegedly
allowed to access the premises.
On January 27, the Respondent, through Sweeney, provided the following information
with regard to the January 8 information request (GC Exh. 14)
1. The Hospital will make the relevant video surveillance tapes available to the Union for
viewing. Please contact me to schedule a time to view this footage.
2. Copies of the Hospital’s policies regarding visitors’ access.
3. The Hospital has no documents or information in its possession relative to this
request.
In preparation for Northrup’s grievance on the suspension, there was a union request for
information on February 13 by Rodgers to Finnegan for (GC Exh. 22)
1. Copies of any relevant documentation related to the suspension;
2. Copies of any and all previous disciplines;
3. Copies of any and all of the Employer investigation, leading up to the suspension,
including any witness statements received;
4. Copy of Employer policies related to the suspension of the employee.

7 At the start of the hearing, the counsel for the General Counsel withdrew the allegation regarding an
information request for the incident and investigation reports on an alleged infraction that occurred on
January 8 and the unreasonable delay in providing the two reports as stated in paragraph 12 (a) (d) and
(e) of the consolidated complaint (Tr. 35-37).
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In response to the February 13 request for information, the Respondent provided the
following information in a letter with attachments dated February 20 (GC Exh.23)
1. Copies of relevant documentation related to the suspension;
2. Copies of previous disciplines;
3. The Employer does not have witness statements;
4. Copy of the Employer’s policy related to the suspension.
On February 21, Rodgers sent out a second information request on the suspension
grievance (GC Exh. 24). Rodger’s letter for the request did not reference any dissatisfaction
with Sweeney’s February 20 response. The February 21 letter requested the following
information
1. Any and all Information regarding the facts underlying the suspension to be provided
immediately.
2. Copies of any and all disciplines issued to any Employee regarding dishonesty,
regardless of whether they are Union or Non-Union Employees;
3. Copies of any policies regarding dishonesty;
4. Copies of any notes done during the investigation regarding the alleged dishonesty;
5. Copies of any video surveillance used during the interview process;
6. Any and all questions asked during the alleged dishonesty and who the questions
were presented by.
The union’s request for information on February 21 was more specific than its February
13 request. The February 21 request specifically asked for disciplines regarding the dishonesty
as an infraction and included union and non-union employees. The February 21 request had
several new items, including a request for any notes taken and the questions asked during the
investigation and any video recording of the interview process.
The union requested that the information be provided 48 hours before any scheduled
hearings (on the suspension). On March 3, the union reiterated its request for exactly the same
information as in its February 21 request. The March 3 request again asked that the
Respondent provide the information 48 hours before any scheduled hearings (GC Exh. 25). On
the same day, Rodgers sent out another request for information, captioned Additional
Information Request on Northrup’s grievance hearing (GC Exh. 26). In a letter to Sweeney, the
union requested
Copies of any and all Bargaining Unit and Non-Bargaining Unit Employees who have
been disciplined for allowing an unauthorized visitor. (Copies of Actual Disciplines).
In response to the information request of February 21 and March 3, Sweeney replied on
March 5 (GC Exh. 27) as follows
1. The Hospital objects to the demand as it is unclear and ambiguous as to what the
Union is seeking. Notwithstanding that objection and without waiving same, the Hospital
possesses surveillance videos which are available for viewing. Please contact me to
schedule a time to view those videos.
2. Please find attached documents reflecting prior discipline for dishonesty.
3. Please find attached a copy of the Hospital’s policy for organizational ethics.
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4. Notes taken by the Hospital are not disclosable.
5. No surveillance videos of the interview process exist.
6. To the extent the Hospital has documents in response to this demand, they are not
disclosable.
By letter dated March 6 (GC Exh. 29), Rodgers informed Sweeney that the union was
still missing the following information
1. Any and all information regarding the facts underlying the suspension to be provided
immediately;
2. Any and all questions asked during the interview in which Northrup was allegedly
dishonest and who asked the questions;
3. Copies of any and all disciplines concerning Bargaining Union and/or Non-Bargaining
Unit Employees who have been disciplined for allowing an unauthorized visitor.
In response, the Respondent provided the following on March 10 (GC Exh. 30)
1. The information requested is not disclosable.
2. The information requested is not disclosable.
3. None.
Rodgers repined that the union never received any of the video surveillance tapes from
his January 8 request for information. Rodgers said he was informed that the video of Northrup
and Lomuscio entering the 70 Prospect Avenue door was not available at the time of the
request and was not available at the January 28 grievance meeting. The only video observed
by the union was the recording of Lomuscio and Northrup entering the facility lobby and meeting
with the employees. The union’s information request was for all video surveillance tapes and
would have included the recording from the 70 Prospect Avenue camera at the time when
Northrup entered with Lomuscio. Rodgers stated that the union still had not viewed or received
the 70 Prospect Avenue entrance video tape (Tr. 320). Lomuscio testified that the information
provided by the Respondent was not fully responsive because the actual facts underlying the
suspension were not provided; the names of employees who were also disciplined were
redacted in the response; the union never received the video surveillance tapes; and the
Respondent never gave an explanation why the investigative notes were not disclosable (Tr.
115-120).
In contrast, Sweeney testified that the Respondent replied to the to the initial January 8
information request (GC Exhs. 12, 14) and that the union never objected to the response. With
regard to the information request of February 13 (GC Exh. 22), Sweeney stated that the
Respondent fully replied to the request on February 20 (GC Exh. 23). Sweeney stated that prior
to the information request of February 21; the union was already in possession of all the
information made in the earlier requests. Sweeney believed that the February 21 request was
redundant on items already requested. With regard to item 1 of the February 21 request,
Sweeney said that since she had already provided all relevant information on the suspension,
she felt it was unclear and ambiguous as to what the union is seeking. She stated that the
union never clarified the ambiguity of this request with her. With regard to items 4 and 6,
Sweeney believed that the notes were not disclosable because they were taken during an
investigation. Sweeney also believed that the union’s information request of March 3 was
duplicative to the earlier request and information provided by the Respondent. Sweeney said
that she provided the discipline of other employees, the policies and procedures used in the
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discipline of Northrup and the videos. She said there were no statements taken from witnesses
during the investigation and that the only information not disclosed were the notes from the
investigation (Tr. 499-506).
Discussion and Analysis
The General Counsel argues that the Respondent violated Section 8(a)(5) of the Act
when it failed to provide the union’s information request relating to the discipline and grievance
of Northrup. The General Counsel alleges in his closing brief that the Respondent failed to
provide information on four discrete items8
1. Any and all Information regarding the facts underlying the suspension of Cindy
Northrup;
2. Copies of any and all disciplines issued to any Employee regarding dishonesty,
regardless of whether they are Union or Non-Union Employees;
3. Copies of any notes done during the investigation regarding the alleged dishonesty;
4. Any and all questions asked during the alleged dishonesty and who the questions
were presented by.
The Respondent argues that item one was unclear and ambiguous, but was willing to
provide the surveillance videos for viewing. Sweeney believed that the information underlying
the discipline had already been provided and the latest request was duplicative. Sweeney said
that the union never clarified this request to the Respondent. The Respondent also argues that
documents pertaining to prior disciplines of employees were provided to the union on March 5.
Sweeney testified that items three and four were not disclosable to the union because they were
taken during an investigation.
In regard to item one, the union made a second request for the information on March 6
(GC Exh. 29). In response to this request, the Respondent informed the union on March 10 that
the information regarding the facts underlying the suspension of Cindy Northrup was not
disclosable (GC Exh. 30).
The General Counsel argues that the information requested was necessary for the union
to carry out its representative responsibilities under the collective bargaining contract. It is well
established that parties to a bargaining relationship are required, upon request, to provide
certain information within their possession that is relevant and necessary to the union’s
performance of its duties as collective-bargaining representative. NLRB v. Acme Industrial Co.,
385 U.S. 432, 435-436 (1967). It is a violation of 8(a)(5) and (1) of the Act when an employer
fails or refuses to provide information requested. An employer’s refusal to furnish information
pertaining to grievances during the term of the collective bargaining contract is a violation of the
duty to bargain in good faith. Chapin Hill at Red Bank, 360 NLRB No. 27 (2014); Curtiss-Wright,
145 NLRB 152, 156–157 (1963). That information could have helped the union to assess the
merits of the grievance and whether Northrup was discriminated against for her union activity in
comparison to the discipline of other employees. The Board has held that by failing to provide
information necessary to decide whether to proceed with a grievance or arbitration, the
employer violated Section 8(a)(5) and (1) of the Act. Endo Painting Service, Inc., 360 NLRB No.

8 The General Counsel did not allege in the complaint or in the closing brief regarding the refusal of
the Respondent to provide the video surveillance tapes although Rodgers testified that the union never
received the tapes pursuant to the information request.
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61 (20140; Acme Industrial, above; Eazor Express, 271 NLRB 495 (1984); Island Creek Coal
Co., 292 NLRB 490, 491 (1989); Bud Antle, Inc., 359 NLRB No. 140, slip op. at 8, 9 (2013).
The Respondent argues that the information for the underlying facts regarding
Northrup’s suspension was unclear and ambiguous. The Respondent subsequently asserted
that the information was not disclosable. The Respondent also asserts that copies of any notes
done during the investigation regarding the alleged dishonesty and information on any and all
questions asked during the alleged dishonesty and who the questions were presented by were
not disclosable.9 Contrary to the Respondent’s argument that the union was required to clarify
its information demand, it is well settled that an employer is obligated to request clarification if
the initial request was not understood. Azabu USA (Kona) Co., 298 NLRB 702 (1990). Here,
the Respondent failed to request a clarification if it believes that the February 21 and March 6
requests were unclear or that it was duplicative of information already provided.10
With regard to the contention that the information was not disclosable, it is also well
settled that substantial claims of confidentiality may justify refusals to furnish otherwise relevant
information. As the Board explained in National Steel Corp., 335 NLRB 747, 748 (2001)
With respect the confidentiality claim, it is well established than an employer may not
avoid its obligation to provide a union with requested information that is relevant to
bargaining simply by asserting a confidential interest in the information. Rather, the
employer has the burden to seek an accommodation that will meet the needs of both
parties.
Relating to the Respondent’s refusal to provide the outstanding information because it
was not disclosable, the Supreme Court articulated a balancing test for determining an
employer’s duty under the Act to furnish information. The party claiming confidentiality has the
burden of proving that such interests are so significant as to outweigh the union’s need for the
information. Detroit Edison Co., supra. It is well settled that even assuming that the
Respondent has a legitimate privacy or confidential concern over releasing the information, it
was obligated to notify the Union of its concern and to bargain for an accommodation that will
satisfy the Union’s need for the information and the employer’s need to keep the information
confidential. In addition, such claims of confidentiality must be timely raised by the employer so
that the parties can bargain over an accommodation. West Penn Co., 339 NLRB 585 (2003);
Salem Hospital Corp., 358 NLRB No. 95 (2012).
In applying the balancing test articulated in Detroit Edison Co., the Respondent has not
met its burden of providing a rationale that the information underlying the facts of Northrup’s
suspension was confidential or that the redacted names of employees with comparative

9 The Respondent did not challenge the relevance of the requested information.
10 The Respondent also argued that the March 6 request for information regarding the facts
underlying the suspension was an impermissible attempt to obtain discovery for the NLRB hearing and
pending arbitration (R Br. at 39). An employer’s refusal to provide information was proper because of the
timing of the request made it clear that the information was intended to assist the union and the General
Counsel in presenting evidence in support of the unfair labor practice complaint. Sahara Las Vegas, 284
NLRB 337 (1987); see, Unbelievable, Inc. d/b/a Frontier Hotel & Casino, 318 NLRB 857 (1995).
However, my close review of item one in the February 21 request was merely restating the same request
made by the union on January 8, which the Respondent never asked for a clarification and simply felt to
ignore the request believing it to duplicative, unclear and ambiguous. I do not find there was an effort by
the General Counsel to engage in impermissible discovery.
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discipline was somehow a privacy issue. The Respondent has not shown that such interests
are so significant as to outweigh the Union’s need for the information, as well as a duty to seek
an accommodation. GTE California, Inc., 324 NLRB 424, 427 (1997). 11 Here, the Respondent
merely states that the requested information was not disclosable because the information was
part of the investigation.

Accordingly, the Respondent violated Section 8(a)(5) and (1) of the Act when it failed to
provide the Union with relevant information that is necessary to properly perform its duties as
the exclusive bargaining representative. Truitt Mfg. Co., above, and that it has not met its
burden to articulate any confidential concerns that are significant enough to outweigh the
Union’s need for the information or had requested bargaining to accommodate the confidential
nature of the information. Pacific Bell Telephone Co., 344 NLRB 243 (2005); Allen Storage &
Moving Co., 342 NLRB 501 (2004).
F. The Respondent’s Confidential Policy
In response to the union’s request for information of February 13 for a copy of employer
policies related to the visitors’ access to the facility and for the suspension of Northrup, the
Respondent provided a copy of its organizational ethics policy as an attachment to its February
20 response (GC Exh. 23). The ethics policy has been in effect since February 1, 2007 and in
the paragraph captioned CONFIDENTIALITY states
Information relating to patients/residents or which is proprietary to Columbia Memorial
Hospital in any way shall be maintained in a strictly confidential manner. The
Administrative policy on confidentiality shall be adhered to by all Columbia Memorial
Hospital staff members, physicians, volunteers, students, consultants and board
members. I have read and fully understand the information Systems-Access and
Confidentiality policy. Any information, whether patient information, employee
information or corporate information, which is accessed or disclosed in any way other
than in the course of conducting hospital business, is grounds for immediate termination.
Employees are required to read, acknowledge and sign the organizational ethics policy,
as evidenced by Northrup’s signature at the bottom of the policy statement on June 23, 2013
(GC Exh. 23). Sweeney testified that the confidentiality paragraph has been effect since 1996
and that the union (until this time) had never challenged the provision. Sweeney said that no
employees have ever been disciplined for disclosing such information. She said that the
purpose of the provision is to keep confidential any information pertaining to
…patients and potentially relative to other employees…(F)or example, Human
Resources has a lot of information on employees. Our Payroll Department, our Staff

11 The Respondent failed its burden to show that the information regarding the underlying facts of the
suspension was not disclosable except for Sweeney’s assertion that the information was pertaining to the
investigation of the infraction. The Respondent also failed to explain or prove the significance of keeping
confidential by redacting the names of other employees who were disciplined for being dishonest.
Identifying the names of the employees with prior discipline is clearly relevant to the union in showing
disparate treatment. It is well established that information concerning, names, addresses, telephone
numbers, as well as wages, hours worked, personnel files and other terms and conditions of employment
of unit employees is presumptively relevant and should not have been redacted by the Respondent.
Bryant Stratton Bus. Inst., 323 NLRB 410 (1997); Fleming Co., 332 NLRB 1086 (2000).
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Health Department, has a lot of information to employees, and I don’t want that
information shared (Tr. 506, 507).
Discussion and Analysis
The complaint alleges that the confidentiality policy restricts the employees’ Section 7
rights in violation of Section 8(a)(1) of the Act because employee and corporate information
which is accessed or disclosed in any way other than in the course of conducting hospital
business would be grounds for immediate termination. The General Counsel argues that the
Respondent’s confidential information rule violates Section 8(a)(1) of the Act because
employees would reasonably interpret the rule to prohibit their Section 7 right to discuss their
terms and conditions of employment (GC Br. at 37).
The Respondent argues that employees would not reasonably construe the rule to also
prohibit discussing wages and other terms and conditions of employment. The Respondent
argues that the confidential policy has been in existence for over 20 years and has never been
challenged by the union. The Respondent states that the policy is to prevent the disclosure of
patient and employee information other than in conducting hospital business and not to limit the
Section 7 rights of employees. It is not in dispute that the confidentiality policy has been in
effect at least since February 1, 2007. It is also not in dispute that no unit employee had been
disciplined over the disclosure of any confidential information.
The issue is whether the confidentiality rule is unlawfully overbroad because employees
would reasonably construe the language to prohibit Section 7 activity. Lutheran Heritage
Village-Livonia, above. First, there does not appear to be any dispute over the validity of the
portion of the rule that prohibit employees from disclosing acquired confidential or proprietary
information about the Respondent and not to discuss with outsiders such information since that
portion is “…designed to protect the confidentiality of the [the Company’s] proprietary business
information.” See, Mediaone of Greater Florida, 340 NLRB 277, 279 (2003); also, Super K-
Mart, 330 NLRB 263 (1999) (affirming the employer’s “legitimate interest in maintaining the
confidentiality of its private business information”).
Nevertheless, I find that the confidentiality rule that prohibits the disclosure of
confidential information, including patient information, employee information and corporate
information to include the prohibition for employees to discuss their wages and conditions of
employment. This rule, by its terms, prohibits employees from discussing employee
information, such as wages and conditions of employment to any persons on penalty of
discharge.
There are no exceptions to the confidentiality rule which would permit employees to
discuss wages, compensation or any other specific terms and conditions of employment. While
I find that the Respondent apparently sought to prevent the disclosure of proprietary and patient
information, I also find that the Respondent when prohibiting the disclosure of employee
information would also prevent the disclosure of various kinds of information about such items
as wages and working conditions would also be prohibited. In Flex Frac Logistics, 358 NLRB
No. 127 (2012), affd. in relevant part, 198 LRRM 2789 (5th Cir. 2014), the Board restated
established precedent that “…nondisclosure rules with very similar language are unlawfully
overbroad because employees would reasonably believe that they are prohibited from
discussing wages or other terms and conditions of employment with nonemployees, such as
union representatives—an activity protected by Section 7 of the Act,” citing Hyundai America
Shipping Agency, Inc., 357 NLRB No. 80, slip op. at 12 (2011) (finding rule unlawful that
prohibited “[a]ny unauthorized disclosure from an employee’s personnel file”); and IRIS U.S.A.,
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Inc., 336 NLRB 1013, 1013 fn. 1, 1015, 1018 (2001) (finding rule unlawful that stated all
information about “employees is strictly confidential”). The Board has also held that the
maintenance of the policy is an unfair labor practice even absent evidence of enforcement.
Lafayette Park Hotel, 326 NLRB 824 (1998).
Here, the Respondent’s confidentiality rule does not present accompanying language
that would tend to restrict its application. It therefore allows employees to reasonably assume
that it pertains to -- among other things --certain protected concerted activities, such as
communications that are critical of the Respondent’s treatment of its employees. By including
non-disclosure of “employee information,” in its confidential policy, the Respondent leaves to the
employees the task of determining what is permissible and “…speculate what kind of
information disclose may trigger their discharge.” Flex Frac, above at slip op. at 10. In trying to
comply with this restriction, employees would reasonably believe they would not be permitted to
discuss with other employees or union representatives, their wages, benefits and other terms
and conditions of employment. MCPc, Inc., 360 NLRB No. 39 (2014) (the Board held that an
employee handbook stating that “dissemination of confidential information, such as personal or
financial information, etc., will subject the responsible employee to disciplinary action or possible
termination” as an overly broad confidentiality rule and violated Section 8(a)(1) because
employees would construe the rule to prohibit discussion of wages and other terms and
conditions of employment with their coworkers, an activity protected by Section 7 of the Act).12
Accordingly, I find that the Respondent’s maintenance of a rule that prohibits employees
from disclosing employee information has a reasonable tendency to inhibit employees’
protected activity and, as such, violates Section 8(a)(1). The NLS Group, 352 NLRB 744, 745
(2008); Security Walls, LLC, 356 NLRB 396 (2011); and Quicken Loans, Inc., 359 NLRB No.
141 (2013).
G. The Respondent’s Implementation of the Access Card Policy
The organizational ethics policy is routinely signed by the employees during their annual
evaluation. Northrup said that she had previously acknowledged and signed the ethics policy
on June 28, 2013. A copy of the organizational ethics policy with Northrup’s signature was
provided by the Respondent in its February 20 response (GC Exh. 23). Northrup testified that
the organizational ethics policy provided by the Respondent in its March 5 response contained
an added paragraph captioned Access Card made part of the organizational ethics policy (Tr.
256-261; GC Exh. 27). The effective date of the revised organizational ethics policy was
February 26, 2014. The access card provision states
Individuals associated with Columbia Memorial Hospital that have been issued an
Access
Card must ensure that no other Individuals utilize such card or facilitates the access of
unauthorized individuals to secure areas including secured buildings. The Access Card
is the property of Columbia Memorial Hospital and is the responsibility of the card holder.
The Access Card is to be used for business purposes only. If the Access Card is lost or
stolen, the individual may be required to pay a $10.00 replacement fee. Should the card
holder be separated from employment, he/she agrees to surrender the card immediately.

12 In contrast, more narrowly drafted confidentiality rules that do not specifically reference and
restrict information concerning employees and their jobs have been found lawful. Super K-Mart, at 263-
264.
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Failure to do so may result in him/her being charged for the card. Non-adherence to any
of the above restrictions may result in revocation of the Access Card. Any willful
violation of any part of this agreement shall be considered sufficient cause for
disciplinary action against the cardholder, up to and including termination.
The response by the Respondent on March 5 to the information request was the first
time the union was made aware of the written access card policy. Northrup and Lomuscio
similarly testified that they never knew of or was provided a copy of the access card provision
prior to the effective date of the policy on February 26. Lomuscio said that the Respondent
never requested to bargain over the provisions of the access card policy (Tr. 114, 115, 259).
Sweeney testified that the new access card provision became effective on January 6.
Sweeney said that the unauthorized entry of Lomuscio with Northrup’s access card lead to the
development of a written policy which Sweeney maintained has always been verbally told to the
employees. According to Sweeney, the Security Department developed the access card policy
and provided draft language to the HR Department. By email dated January 6, chief of security
Hochman informed Sweeney and other HR officials that a final version of the access card policy
was ready and it became effective on the same date (R Exh. 12). Sweeney testified that HR
determined that the access card provision could appropriately be made part of the
organizational ethics policy and the new ethics policy became effective on February 26.
Sweeney said the access card policy was implemented before any discipline was taken against
Northrup (Tr. 492-497).
Hochman testified that he and another individual from the security department drafted
the language for the card user agreement (R Exh. 12 at p. 2). He testified that he was not
involved in drafting the access card policy itself noted above.13 Hochman felt that it was a
security issue with visitors with unauthorized access entering the facility with an employee’s
access card. He believed that the security incident with Lomuscio solidified the need to put
something in writing to the employees. He denied that the card user agreement was in
response that it was a union person (Tr. 614-619, 621-623).
Discussion and Analysis
The complaint alleges that the Respondent failed to bargain over the access card policy
and implemented the card policy in response to restrain employees from meeting with their
union in violation of Section 8(a)(5)(3) and (1) of the Act. It is not in dispute that the Respondent
did not bargain with the union over the implementation of the access card policy because
Sweeney felt that the arbitrator’s decision allows the employer to implement reasonable rules
regarding union access. Sweeney believed that Respondent was merely codifying in writing the
access card policy that had already been verbalized to employees holding access cards under
the management’s rights article of the collective-bargaining agreement (Tr. 497, 498).
It is well-established that an employer violates Section 8(a) (5) and (1) of the Act by
deviating from, or modifying, the terms and conditions employment established by that
agreement without obtaining the consent of the union. See NLRB v. Katz, 369 U.S. 736, 743,
747 (1962); Amoco Chemicals Corp., 211 NLRB 618 (1974). Even when negotiations for a new
collective-bargaining agreement are not in progress, an employer must give a union notice of an
intended change sufficiently in advance to permit an opportunity to bargain meaningfully about

13 The language in the access card user agreement is identical to the language in the access card
provision made part of the organizational ethics policy.
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the change. Bottom Line Enterprises, 302 NLRB 373, 374 (1991), enfd. mem. 15 F.3d 1087
(9th Cir. 1994); Ciba-Geigy Pharmaceutical Division, 264 NLRB 1013, 1017 (1982), enfd. 722
F.2d 1120 (3d Cir. 1983) (“To be timely, the notice must be given sufficiently in advance of the
actual implementation of the change to allow a reasonable opportunity to bargain”). The
General Counsel has the burden of showing by a preponderance of the evidence that the
Respondent made a unilateral change that was material and substantial. Ampersand
Publishing, LLC, 358 NLRB No. 141, slip. op. at 28 (2012); Fremont Medical Center, 357 NLRB
No. 158, slip op. at 6 (2011).
The Respondent argues that the implementation of the access card policy was a proper
exercise of management prerogative under the management-rights clause of the collective-
bargaining agreement (GC Exh. 2). In its closing brief, the Respondent cited that portion of
Article 3 (Management Rights and Prerogatives) as applicable to this situation
Section 1: Operations of Memorial Hospital and the Director of Employees, including
making and enforcing reasonable rules to assure orderly and efficient operations and
safety…are rights vested exclusively in the employer.
Section 2: The employer reserves the right to establish and administer policies and
procedures related to—the control and regulation of the use of the facility (emphasis
added) (R. Br. at 45, 47).
The Respondent contends that the union waived its right to bargain over unilateral
actions where the employer acts pursuant to a clear and unmistakable management-rights
clause, citing Allison Corp., 330 NLRB 1363 (2000). The Respondent also contends that the
change was not material, substantial and significant to violate the Act. UNC Nuclear Industries,
268 NLRB 841 (1984); Rust Craft Broadcasting, 225 NLRB 327 (1976).
I find that the Respondent made a unilateral change regarding a mandatory subject of
bargaining that was “material, substantial and significant.”14 Katz, above, Crittenton Hospital,
342 NLRB 686 (2004); Bath Iron Works Corp., 302 NLRB 898, 901 (1991). The management-
rights clause reserves the right of the Respondent to establish and administer policies and
procedures regarding the control and regulation of the use of the facility. Conceivably, a
reasonable interpretation of this portion of the management-rights clause would include the
employer’s prerogative to implement regulations assuring the security of the hospital. However,
the Respondent went beyond implementing procedures to maintain the security of the premises.
Here, aside from regulating the use of the access card (which is the employer’s prerogative), the
Respondent included a lost card penalty of $10.00 and threatened discharge of an employee for
violating any portion of the access card policy. The policy now adds a penalty fee and subjects
the employee to discipline. The imposition of a $10.00 fee for a lost access card is a particularly

14 Not every unilateral change in working conditions constitutes a breach of the bargaining obligation.
For examples of employer action held not to have material, substantial, and significant effects, see J. W.
Fergusson & Sons, 299 NLRB 882, 892 (1990) (employer increased the lunchbreak by 5 minutes while
decreasing the employees’ afternoon break by 5 minutes); St. John’s Hospital, 281 NLRB 1163, 1168
(1986), enfd., 825 F.2d 740 (3d Cir.1987) (reimposition of restrictions on smoking and drinking during the
15-minute employee report time); Alamo Cement Co., 277 NLRB 1031 (1985) (change in one employee’s
classification from ‘‘mix chemist’’ to ‘‘assistant chief chemist’’ resulting in ‘‘a slight increase in his hourly
wage,’’ ‘‘sporadic substitution’’ for a supervisor, and his assisting in the preparation of a monthly report);
and Weather Tec Corp., 238 NLRB 1535 (1978) (employer unilaterally ended its practice of paying for the
coffee supplies that the employees used to make the coffee for their morning and afternoon breaks).
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significant change given that the Respondent also announced that failure to comply with the
policy was the type of offense for which discharge is a designated penalty. It is well-settled
Board law that new work rules that invoke discipline are mandatory subjects for bargaining.
Murits Taylor Human Services Systems, 360 NLRB No. 66 (2014); California Offset Printers,
Inc., 349 NLRB 732 (2007).
I also find that the union did not waive its rights to bargain over the implementation of the
access card policy. Under the established standard set forth in Metropolitan Edison Co. v.
NLRB, 460 U.S. 693, 708 (1983), a waiver of statutory rights must be clear and unmistakable.
The burden is on the party asserting a waiver to establish that the parties “unequivocally and
specifically express[ed] their mutual intention to permit unilateral employer action with respect to
a particular employment term.” American Medical Response of Connecticut, Inc., 359 NLRB
No. 144, slip op. at 2 (2013); Murtis Taylor Human Services Systems, above at 4. To meet this
standard, the contract language must be specific and the Board looks to the precise wording of
the relevant contract provisions in determining whether there has been a clear and
unmistakable waiver. Allison at 1365.
Here, the reference to implementing rules and regulations in management-rights clause
affecting orderly and efficient operations and safety, including the control over the use of the
facility is too general and vague to waive the union’s right to bargain over a penalty fee charged
to an employee for a lost access card and the discipline for not abiding to the new policy.
Indeed, the management-rights clause makes no mention to any policies or procedures relating
to penalty fees or discipline of any kind. Therefore, in the absence of any specific language
referencing such fees or discipline, the clause is too vague to constitute a waiver of the union’s
statutory right to bargain over the imposition of this new requirement. Murtis, above
(management-rights clause referencing reasonable rules and regulations does not waive the
union’s right to bargain over a investigative interviews); Frontier Hotel & Casino, 323 NLRB 815,
818 fn. 12 (1997) (management-rights clause allowing respondent to establish work rules did
not privilege it to introduce a rule requiring union representatives to acknowledge their familiarity
with the visitation section of the contract).
The General Counsel also argues that the policy was implemented to “thwart the ability
of its employees to meet with their certified bargaining representative” in violation of Section
89(a)(3) and (1) of the Act (GC Br. at 41).
Contrary to the arguments of the General Counsel, I do not find that the Respondent
violated Section 8(a)(3) and (1) of the Act when the access card policy was implemented in
response to and in order to restrain employees in their exercise of Section 7 activities.
A rule or policy violates Section 8(a)(1) if it can reasonably be read by employees to chill
their Section 7 rights. Lafayette Park Hotel, above, enfd. 203 F.3d 52 (D.C.Cir. 1999); Lutheran
Heritage Village-Livonia, 343 NLRB 646 (2004). The Board’s analytical framework for
determining whether the maintenance of a work rule violates Section 8(a)(1) of the Act was set
forth in Lutheran Heritage Village-Livonia
In determining whether a challenged rule is unlawful, the Board must, however, give the
rule a reasonable reading. It must refrain from reading particular phrases in isolation,
and it must not presume improper interference with employee rights. Consistent with the
foregoing, our inquiry into whether the maintenance of a challenged rule is unlawful
begins with the issue of whether the rule explicitly restricts activities protected by Section
7. If it does, we will find the rule unlawful. If the rule does not explicitly restrict activity
protected by Section 7, the violation is dependent upon a showing of one of the
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following: (1) employees would reasonably construe the language to prohibit Section 7
activity; (2) the rule was promulgated in response to union activity; or (3) the rule has
been applied to restrict the exercise of Section 7 rights.
I find that the access card policy does not explicitly restrict activity protected by
Section 7. The policy, on its face, does not prohibit Section 7 activity. The policy is neutral and
affects all employees holding the access card, including management officials, and not merely
bargaining unit members. The policy merely reaffirmed to the holders of the access card the
simple common sense and reasonable manner in which the card should be used. While the
timing for the implementation of the policy was shortly after Northrup had used her access card
to let Lomuscio in the facility, I credit the testimony of Hochman that the incident was a wake-up
call to put in writing the instructions for the authorized use of the access card and not because it
was motivated and promulgated in response to Northrup’s union activity in using the card to
allow Lomuscio access to the facility or to restrict Section 7 activity. As the General Counsel
points out, the policy has been in place for “many decades” and “thousands of employees,
patients, visitors and other members of the public have entered and exited the facility” (GC Br.
at 43). The employees, public and union representatives will continue to enter and exit the
facility. The policy merely restates what has been in place “for many decades” as to the proper
use of the access card and a reasonable reading of the policy would not construe the language
to prohibit or tend to chill Section 7 activity.
Further, the written policy was not intended to discourage union activity. The
bargaining unit members continued to enjoy the unfettered right to meet with their union
representatives. The policy does not restrict the use of the access card only to bargaining unit
members. I find that a fair reading of the access card policy does not “reasonably tend to chill
employees in the exercise of their Section 7 rights.” Lafayette Park Hotel, above. In Intermet
Stevensville, 350 NLRB No. 95 (2007), cited by the General Counsel, the Board also held that
the employer did not violate Section 8(a)(1) of the Act because the employer’s resolution
opportunity program did not foreclose employees from using other avenues to address their
workplace concerns or require them to invoke the resolution opportunity program first and
therefore it would not reasonably be understood to forestall employees from acting in concert to
deal with management about matters affecting their terms and conditions of employment.
Intermet Stevensville at 1351. Similarly, here, the access card policy would not foreclose
employees from acting in concert with union representatives. The access card policy merely
restricts the use of the card to only authorized users. Therefore, I find that the General Counsel
failed to establish that the rule was promulgated or motivated by protected activity in violation of
Section 8(3) and (1) of the Act.
For the reasons discussed above, I find that the Respondent violated Section 8(a)(5)
and (1) of the Act when it unilaterally implemented a new policy that imposed a penalty fee for a
lost access card and subject to discipline for non-adherence violation to the policy.
I also find that the Respondent did not violate Section (8)(a) (3) and (1) of the Act when it
promulgated the access card policy.
H. Kristen Bartholomew’s Weingarten Rights
Kristen Bartholomew (Bartholomew) has been employed with the Respondent as an x-
ray technologist since 2011. She works in the main hospital facility and also at an outpatient
medical imaging clinic. Bartholomew’s supervisor was Rhonda Makoske (Makoske). Makoske
was and is the director of medical imaging employed by the Respondent. Bartholomew was
not involved in any of the allegations noted above. Rather, the complaint (03-CA-124816)
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alleges that the Respondent refused Bartholomew’s request to exercise her Weingarten rights
to have union representation present during an investigatory interview on March 4, 2014.
Bartholomew said that she is represented by the union, but had no involvement with any union
activities until she was the subject of discipline (GC Exh. 1 at VIII (a), (b) and (c); Tr. 357, 358).
1. The Interview of February 28
Bartholomew testified that on February 28, she was working at the outpatient clinic. She
noticed that the receptionist at the clinic was inputting a data error (the patient’s birth date) into
the computer when she was registering a patient for an examination. Bartholomew said that
she caught the mistake and informed the transcriptionist (“Liz”) to correct the data in the
computer program. According to Bartholomew, Liz informed her that the entire record had to be
deleted and redone. Instead, Bartholomew decided to rescan the data information and was
able to proceed with the examination of the patient.
Bartholomew complained that after the examination was completed, her supervisor
Makoske and Kelly Vorez, the supervisor of the x-ray department, spoke to her about the error
inputting the patient’s personal data. According to Bartholomew, Makoske insisted that the error
was not corrected on the paperwork despite the fact that Bartholomew had circled the corrected
date of birth on every document (Tr. 358-363).
Bartholomew said that Makoske then proceeded to bring up past incidents of wrong data
being entered by Bartholomew. At this point, Bartholomew said that she asked for union
representative. She was allegedly told by Makoske that “…she was just gathering information
and I didn’t need Union Rep.” No additional questioning occurred after this statement was
made by Makoske. Bartholomew said that Makoske would be back and when they next met,
Bartholomew was told to go home by Makoske. Bartholomew was scheduled to work until 4
p.m. on February 28, but instead left work at 10:30 a.m. (Tr. 363).
Makoske testified that Liz was the secretary and that she informed her that Bartholomew
was having some problem with the examination of a patient and that the patient’s date of birth
was incorrectly inputted in the computer. Makoske said she went to see Bartholomew to assess
what happened. She said that there was paperwork scattered around the examination area and
that Bartholomew was visibly upset. She informed Bartholomew that Liz had said there was
some kind of problem. Consistent with Bartholomew’s testimony, Makoske related that she had
rescanned the information and everything was corrected. However, Makoske was not
convinced and asked Bartholomew to gather the paperwork and they would both go through the
patient’s medical record to ensure accuracy of the data. Makoske said that Bartholomew took
about 15-20 minutes to organize the paperwork and Makoske returned for a second time to
meet with Bartholomew. Makoske said that the paperwork was given to Allyson Neefus to make
the corrections in the data system.
Makoske said that Bartholomew was still visibly upset over the incorrect data and
suggested that she take leave for the rest of the day. According to Makoske, Bartholomew did
not want to leave work, but admitted she was stressed and could not think straight and was
afraid she might make another mistake. At this point, Makoske directed Bartholomew to leave
work and she agreed. Makoske testified that Bartholomew did not request union representation
at the second meeting on February 28 (Tr. 432-436).
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2. The Interview of March 4 and
Suspension of Bartholomew
On the morning of March 4, Bartholomew was working at the ultrasound department at
the hospital and met with Makoske in her office. Makoske asked Bartholomew why she had
called Liz on February 28. Bartholomew felt that this interview was going to result in discipline
and asked that the questioning be stopped and told Makoske she wanted a union
representative. According to Bartholomew, Makoske replied that the only time she is allowed to
have a union representative is when she is issued a CAP (disciplinary) form. According to
Bartholomew, she told Makoske that under her “Weingarten Right,” the questioning must stop if
it made her uncomfortable. Makoske then responded that her understanding of Weingarten
rights is incorrect and then proceed to say that Bartholomew was the worse employee she had
ever supervised. Bartholomew said that at this point, the meeting ended and Bartholomew went
back to work (Tr. 364-367).
Bartholomew testified that a “couple of hours later,” she was asked to return to
Makoske’s office. Makoske again asked why Bartholomew had called Liz to fix the computer
error on February 28. Bartholomew again explained that Liz was the person to contact when
there are personal data errors in the computer. Bartholomew said that she did not ask for a
union representative at this meeting because Makoske already said in the earlier meeting that
she was not entitled to union representative. The meeting then concluded.
Bartholomew said that she was called by Makoske for a third time on March 4. Makoske
again asked why Bartholomew had called Liz and Bartholomew gave the same answer. At this
point, Makoske said that she was issuing her a CAP. Bartholomew understood the disciplinary
nature of a CAP, but did not request union representation at this point in the meeting.
Bartholomew said that Makoske had denied her earlier request for union representation and did
not believe her request would be granted at this meeting. This meeting ended with Makoske
telling Bartholomew that she will be terminated before the end of the week (Tr. 367-371).
In contrast, Makoske said there was only one meeting on March 4 regarding the
incorrect patient name. Makoske testified that she called Bartholomew on March 4 to discuss
the February 28 incident. Makoske asked Bartholomew as to how the wrong patient’s name
was on the x-ray images and whether she had followed the procedure in identifying the patient.
According to Makoske, the patient had told Bartholomew that the birth date was incorrect and
that Bartholomew did not make the correction. Bartholomew denied this and said “If I’m going
to be in trouble for this, I want a Union Representative.” Makoske said that the interview ended
at this point. Makoske denied that there were any other interviews or meetings with
Bartholomew on March 4 (Tr. 437, 438).
Makoske said that Bartholomew was disciplined on March 7 and given a 3 day
suspension for failing “…to identify patient properly for ultrasound” (Tr. 436-439; GC Exh. 32).
When Bartholomew met with Makoske on March 7,15 Makoske said Bartholomew could have a
union representative at this time because she was being disciplined. Bartholomew contacted a
union representative at this point (Tr. 371-373).

15 Neefus, supervisor/manager of the x-ray department was present throughout all four meetings with
Bartholomew and Makoske, but said very little in the meetings.
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3. The Prior Discipline of Bartholomew
Bartholomew asserts that Makoske had also previously informed her in November 2013
and February that the only time Bartholomew was entitled to union representation is when
discipline was being issued. 16
Bartholomew testified that she met with Makoske in November 2013 over an incident
where she allegedly burned the skin of a patient. Bartholomew denied the charge and
requested union representation. Makoske told her that she was just asking questions in an
interview. Bartholomew said she subsequently received a verbal warning over this incident.
Bartholomew also testified that she received another discipline on February 28 over an
x-ray she had done on a patient’s foot. Bartholomew met with Makoske on February 24 over
the foot incident and said that she wanted union representation. Makoske replied that she was
merely asking questions of Bartholomew during an investigation over the incident and union
representation was not available to Bartholomew. Bartholomew said that she was subsequently
issued a written warning on February 28 over the foot incident (Tr. 373-378).
Makoske testified that the Respondent received a complaint from a patient in November
2013 that Bartholomew allegedly burned the patient with some gel that Bartholomew had
applied on the patient’s skin. Makoske recalled discussing the complaint with Bartholomew on
November 21, 2013. Makoske said she could not recall if Bartholomew requested union
representation at the meeting (Tr. 426, 427). Makoske said that she met with Bartholomew later
that same day and issued her a CAP for failing ‘…to meet customer service expectations as
evidenced by formal patient complaint.” Bartholomew was disciplined with a verbal warning.
Also noted on the CAP was Bartholomew’s handwritten statement “Denied Union Rep” and
initialed by her. Makoske testified that Bartholomew never requested union representation
when the CAP was issued on November 21 (R Exh. 5; Tr. 428-430).
Makoske said that she continued to have performance deficiencies with Bartholomew
and testified to another incident in February 2014 regarding a foot x-ray of a patient. Makoske
testified that the radiologist informed her that the x-ray done by Bartholomew for the foot was
actually a different part of the patient’s body. Makoske discussed the x-ray with Bartholomew
on February 24. She said that Bartholomew did not request union representation at the
February 24 interview. Bartholomew was disciplined on February 27 with a written warning
with regard to the foot incident (Tr. 430-432).
Discussion and Analysis
The General Counsel alleges that the Respondent violated Section 8(a)(1) of the Act by
denying employee Bartholomew union representation at an investigatory meeting on March 4.
Under Section 7 of the Act, a union-represented employee has the right to the presence and
active assistance at an investigatory interview that the employee reasonably fears may result in
discipline. NLRB v. J. Weingarten, 420 U.S. 251, 257 (1971).
To be sure, great leeway was offered to the General Counsel regarding the specific
events of Bartholomew’s prior disciplines in November 2013 and February in the attempt to

16 The November and February discipline serve only as background information and testimony was
allowed over the objection of the Respondent (Tr. 374).
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establish a pattern that Bartholomew was routinely denied her request for union representation.
However, the complaint only alleges a violation of the Act when Bartholomew was denied
representation on March 4. There are major credibility issues regarding the events of March 4.
The General Counsel argues that there were three separate meetings on March 4 that
constituted investigatory interviews. According to Bartholomew, she testified to three separate
interviews on March 4. The counsel for the Respondent argues that there was only one
interview on March 4 and that Makoske stopped questioning Bartholomew upon her request for
representation.
Upon my review, I find that Makoske to be the more credible witness. Makoske
consistently testified that Bartholomew did not request union representation during the
November and February 24 interviews and she stopped questioning Bartholomew when she
requested union representation on March 4. Makoske interviewed Bartholomew in November
and February 24 regarding her performance deficiencies. Makoske said that Bartholomew
never requested representation during the November interview. In contrast, Bartholomew
maintains that she asked for representation. Bartholomew testified
Did you answer their questions?
Yes.
Did you say anything else?
I did ask for a Union Rep that day and she told she was just—it wasn’t the time or place
and that she was just asking questions plus doing the interviewing.
Now, who is she?
Rhonda (Makoske).
What happened next?
That meeting was ended and she told me it was going to CAPS and it was ended.17
Makoske further testified that Bartholomew never requested representation during the
February 24 interview. In contrast, Bartholomew testified
What questions were asked of you?
She was asking me about the foot and why I didn’t culumniated (sic) the foot. And I
explained to her that the woman had a disease. I clearly remembered the woman.
Did you say anything else during this meeting?
I did ask to—I stopped to get a Union Rep and she said, no, it wasn’t the time or place.
She was asking questions.
What happened next?

17 Tr. 376.
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That meeting ended. She said it was going to go into –she was going to go into CAPS
and see if there was going to e a discipline for that. 18
In an attempt to buttress the alleged violation of Bartholomew’s Weingarten rights on
March 4, the General Counsel (over the objections of the Respondent) presented testimony by
Bartholomew of prior violations of her Weingarten rights during the November and February
investigative interviews. However, the factual record shows that the two incidents did not
establish any alleged pattern leading to the March 4 event. In my opinion, whether or not
Makoske was told by Bartholomew she wanted union representation is not material because it is
clear through Bartholomew’s own testimony that Makoske stopped questioning her once the
request for representation was made in November 2013 and on February 24.
With regard to the events leading to the March 4 interview, Makoske testified that she
spoke to Bartholomew regarding the error to the patient’s birth date on February 28. She said
that Bartholomew did not request union representation at that time. Bartholomew was permitted
to leave work early on February 28. Makoske testified that Bartholomew was distraught over
the patient’s complaint and she suggested that Bartholomew go home. Makoske’s testimony
that Bartholomew was not disciplined for going home early is undisputed.
With regard to March 4, Makoske insisted there was only one interview at 11 a.m. with
Bartholomew. Makoske testified to the following
At what point during this meeting did she (Bartholomew) ask for Union Representation?
After I told her that the patient had said that she had told her that it was the wrong date
of birth and didn’t correct it.
Did you discuss with her any further after she asked for Union Representation about any
of the issues involved with this misidentification issue?
I did not.19
Contrary to the General Counsel’s contentions that “…it is not clear if Makoske asked
Bartholomew more investigatory questions at this first meeting,”20 the testimonial record of
Bartholomew is actually very clear and consistent with Makoske’s testimony that she stopped
questioning Bartholomew upon her request for representation. The General Counsel examined
Bartholomew on this point
Did you say anything else during this interview?
Yes. I asked to stop and have a Union Rep with me and she took off her glasses and
threw them on the desk and she said let me explain to you again why—when you’re
allowed to call the Union and what they’re for. She said the only time I’m allowed to
have a Union Rep is when she’s handing me the CAPS form.
Did you agree with her?

18 Tr. 378.
19 Tr. 438.
20 GC Br. at 44.
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No. I told under the Weingarten Right that I was allowed to stop at any time if I was
uncomfortable.
Did she ask you any more questions during this meeting?
Not during that meeting.21
The incident that created the instant situation occurred on February 28 when
Bartholomew was called to explain the misidentification of a patient’s date of birth. The Board
has constantly held that an interview is investigatory for Weingarten purposes where, as here,
an employee is summoned in front of management to explain her version of the disputed event.
Bentley University, 361 NLRB No. 125 (2014); Titanium Metals Corp. 340 NLRB 766, 774
(2003); Storer Communications, 292 NLRB 894, 897 (1989) (finding meeting investigatory
where the purpose “…was to give the employees an opportunity to tell their side of the story”).
The Court in Weingarten, above provided the rationale for union representation during
investigatory interviews and articulated “Requiring a lone employee to attend an investigatory
interview which he reasonably believes may result in the imposition of discipline perpetuates the
inequality the act was designed to eliminate…” 420 U.S. at 261. The role of the union
representative is to provide assistance and counsel to the employee being interrogated.
However, the curative cupola of Weingarten is not triggered when the need for a union
representative is rendered unnecessary when, as here, the interview was terminated upon the
request for representation. Although the meetings held on February 28 and March 4 were
investigatory interviews, no violation of the Act occurred inasmuch as the interview and
questions stopped upon Bartholomew’s request for representation. By Bartholomew’s own
testimony, the questioning stopped once she requested union representation during the
February 28 investigatory interview. It is also clear that during the March 4 investigatory
interview, Makoske stopped the interview once Bartholomew requested her union
representation.
The remaining issue in dispute is whether there was more than one investigatory
interviews held on March 4. The General Counsel contends there were 3 interviews. The
Respondent argues only one. I agree with the Respondent that there was only one
investigatory interview conducted by Makoske with Bartholomew on March 4.
On this point, I find that Bartholomew to be an untrustworthy witness whose testimony
had many inconsistencies and cannot be fully credited. It is not credible to me that
Bartholomew would testified that she requested a union representative in November 2013 and
on February 24, but also asserted that she was not familiar with her Weingarten rights until she
searched the internet sometime between her February 28 written warning and her March 7
suspension (Tr. 400). In contrast, Rodgers testified that Bartholomew told him that one of the
union activists had showed Bartholomew the Weingarten rights that the union posted on the
bulletin board in November 2013 (Tr. 354). In my opinion, Bartholomew was aware of her
Weingarten rights in November and February and would have affirmatively asserted her right to
union representation based upon this knowledge. The record also shows that the first time she
contacted a union official (Rodgers) was not until March 5. Bartholomew has a history of
disciplinary action and not unfamiliar with investigatory interviews and the CAPS process.
However, she left unexplained as to why she did not contact a union official earlier in November
for assistance. Further, when she asserted that she was denied Weingarten rights in November
and February, she also admitted that the investigatory interviews immediately stopped and she

21 Tr. 365, 366.
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returned to work (testimony, above). With regard to March 4, Bartholomew testified that she
writes down the day’s event in a diary either that same evening or the following day.
Bartholomew’s notes for March 4 did not indicate that there were 3 separate investigatory
interviews. Her notes reflected only one meeting. When queried on this point, Bartholomew
testified
I don’t talk about many things. I mean this is just scribble for me at home to get things
out so I can go to sleep at night (Tr. 415).
It is beyond my reasonable belief that Bartholomew would only reference one
investigatory interview on March 4 in her handwritten notes but neglected or did not find it
significant enough to memorialize the two additional interviews. It is also stretches credibility
that there were additional interviews when Rodgers stated in his Board affidavit that
Bartholomew only described one investigative interview with Makoske (Tr. 412, 413).

Accordingly, I find that the Respondent did not violate Section 8(a)(1) of the Act by
denying employee Bartholomew union representation at an investigatory meeting on March 4.
CONCLUSIONS OF LAW
1. At all material times, the Respondent, Columbia Memorial Hospital, is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, 1199 SEIU United Healthcare Workers East, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the Act by disciplining Cindy Northrup
with a verbal warning and suspension because she engaged in union activity.
4. The Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to
furnish relevant and necessary information for the fair representation of Cindy Northrup in the
grievance process.
5. The Respondent interfered with, restrained and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act, and thus violated Section 8(a)(1) of the Act by
promulgating and maintaining an overly broad work rule that proscribes disclosure of
confidential information, including employee information.
6. The Respondent refused to bargain collectively with representatives of its employees,
and thus violated Section 8(a)(5) and (1) of the Act by unilaterally promulgating an access card
policy.
7. The unfair labor practices described above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
8. The Respondent did not violate Section 8(a)(3) and (1) of the Act when it allegedly
issued the access card policy in response to employees engaged in Section 7 activity and to
discourage employees from engaging in Section 7 activities.
9. The Respondent did not violate Section 8(a)(1) of the Act when it allegedly denied
union representation to Kristen Bartholomew during her investigatory interviews.
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REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, the Respondent having discriminatorily issued a
verbal warning and suspension to Cindy Northrup, must make her whole for any loss of
earnings and other benefits suffered as a result of the Respondent’s unlawful actions against
her. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as 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).
In accordance with the decision in Don Chavas, LLC, d/b/a Tortillas Don Chavas, 361
NLRB No. 10 (2014), my recommended order requires Respondent to compensate Northrup for
the adverse tax consequences, if any, of receiving a lump-sum backpay award and to file a
report with the Social Security Administration allocating the backpay award to the appropriate
calendar quarter(s) for Northrup.
My recommended order requires the Respondent to expunge from its files any and all
references to the unlawful discipline of the aforementioned employee and to notify her in writing
that this has been done and that the unlawful discharge will not be used against her in any way.
In addition, having found that the Respondent violated Section 8(a)(1) of the Act by
maintaining a unlawful overly broad confidentiality rule and access card policy, I find that the
Respondent be ordered to 1) rescind that rule and policy found to be unlawful, and 2) post
“…an appropriate notice at all of its facilities where the unlawful rule and policy had been or is in
effect.” Guardsmark, LLC, 344 NLRB at 812; and DirectTV, 359 NLRB No. 54 (2013).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended22
ORDER
The Respondent, Columbia Memorial Hospital, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening its employees with discipline for engaging in protected concerted
activity.
(b) Disciplining or otherwise discriminating against any employee for engaging in
protected concerted activity.
(c) 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.

22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
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(d) Promulgating and maintaining a provision in its “Organizational Ethics Policy” that
contains the following language: “Any information, whether patient information, employee
information or corporate information, which is accessed or disclosed in any way other than in
the course of conducting hospital business, is grounds for immediate termination.”
(e) Promulgating and maintaining a provision in its “Organizational Ethics Policy entitled,
“Access Card” policy.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Cindy Northrup whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her, as set forth in the remedy section of this decision.
(b) Compensate Cindy Northrup for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file a report with the Social Security Administration allocating the
backpay award to the appropriate calendar quarter(s).
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discipline of Cindy Northrup, and within 3 days thereafter notify her in
writing that this has been done and that the discipline will not be used against her in any way.
(d) If not already done so, rescind or revise the overly broad confidentiality rule and
rescind the access card policy referenced above in (1) (d-e).
(e) 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.
(f) 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
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
in electronic form, necessary to analyze the amount of backpay. Absent exceptions 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 due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its existing facilities and clinics in
the Greater Hudson, New York area copies of the attached notice marked “Appendix.”23 Copies
of the notice, on forms provided by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the pendency of

23 If this Order is enforced by a judgment of the United States Court of Appeals, the words in the
notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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these proceedings, the Respondent has gone out of business or closed the jobsites 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 January 8, 2014.
(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C.
______________________
Kenneth W. Chu
Administrative Law Judge
JD(NY)–02–15
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 the National Labor Relations Act
and has ordered us to post and abide by 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 benefits and protection
Choose not to engage in any of these protected activities
1199 SEIU United Healthcare Workers East (the Union) is the exclusive collective-bargaining
representative of the employees in the following appropriate unit:
All full-time and part-time registered professional nurses licensed to practice in the State
of New York including per diem registered professional nurses, pharmacists, physical
therapists, medical technologists.
WE WILL, before implementing any changes in wages, hours, or other terms and conditions of
employment of unit employees, notify and, on request, bargain with the exclusive collective-
bargaining representative of our employees.
WE WILL rescind the changes in the terms and conditions of employment for our unit
employees that were unilaterally implemented on February 26, 2014.
WE WILL make Cindy Northrup whole for any loss of earnings and other benefits she suffered
as a result of our discrimination against her, plus interest.
WE WILL compensate Cindy Northrup for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file a report with the Social Security Administration allocating the
backpay aware to the appropriate calendar quarters for her.
WE WILL within 14 days from the date of the recommended Order, remove from our files any
reference to the unlawful verbal warning on and suspension on of Cindy Northrup and expunge
it from our records, and within 3 days thereafter, we will notify her in writing that we have done
so and that the discipline will not be used against her in any way.
WE WILL NOT prohibit you from discussing about your wages, earnings, hours of work and
other terms and conditions of employment on your own time and during work hours.
We WILL NOT threaten discipline to you for engaging in protected concerted activity.
WE WILL NOT discipline you or otherwise discriminate against you for engaging in protected
concerted activity.
JD(NY)–02–15
WE WILL NOT maintain or enforce the following confidentiality rule stated in our organizational
ethics policy “Any information, whether patient information, employee information or corporate
information, which is accessed or disclosed in any way other than in the course of conducting
hospital business, is grounds for immediate termination.”
WE WILL NOT maintain or enforce the following rule stated in our organizational ethics policy:
Individuals associated with Columbia Memorial Hospital that have been issued an
Access Card must ensure that no other Individuals utilize such card or facilitates the
access of unauthorized individuals to secure areas including secured buildings. The
Access Card is the property of Columbia Memorial Hospital and is the responsibility of
the card holder.The Access Card is to be used for business purposes only. If the Access
Card is lost or stolen, the individual may be required to pay a $10.00 replacement fee.
Should the card holder be separated from employment, he/she agrees to surrender the
card immediately.Failure to do so may result in him/her being charged for the card. Non-
adherence to any of the above restrictions may result in revocation of the Access Card.
Any willful violation of any part of this agreement shall be considered sufficient cause for
disciplinary action against the cardholder, up to and including termination.
WE WILL NOT refuse or delay in promptly furnishing the information requested by the Union
that is relevant and necessary to the Union’s performance of its duties as the collective-
bargaining representative of the employees in the above unit.
WE WILL NOT in any similar manner interfere with, restrain or coerce our employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
Columbia Memorial Hospital
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
130 S. Elmwood Avenue, Suite 630
Buffalo, New York 14202-2387
Hours: 8:30 a.m. to 5 p.m.
716-551-4931.
JD(NY)–02–15
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/03-CA-120636 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, 716-551-4946.