Crozer Chester Medical Center

National Labor Relations Board - Administrative Judge Opinions

May 13, 2015

04-CA-130177 (N.L.R.B. May. 13, 2015)

JD–07–15
Upland, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CROZER CHESTER MEDICAL CENTER
and Case 4–CA–130177
4–CA–136558
4–CA–138359
PENNSYLVANIA ASSOCIATION OF
STAFF NURSES AND ALLIED
PROFESSIONALS (PASNAP)
William E. Slack, Esq.,
for the General Counsel.
Edward V. Jeffrey, Esq., and Michael J. Passarella, Esq.,
for the Respondent.
Jonathan Walters, Esq.,
for the Petitioner.
DECISION
Statement of the Case
ROBERT A. GIANNASI, Administrative Law Judge. This case was tried in
Philadelphia, Pennsylvania on February 4 and 5, 2015. The complaint alleges that
Respondent violated Section 8(a)(1) of the Act by banning off-duty employees, on June
3, 2014, from engaging in picketing, demonstrations and leafleting, in support of the
Charging Party Union (hereafter the Union or PASNAP), in outside non-working areas
of its property; and by banning an off-duty employee, on September 3, 2014, from
distributing leaflets in support of the Union inside the lobby entrance of Respondent’s
hospital and threatening that employee with unspecified reprisals if she continued to
wear a sign in support of the Union. The complaint also alleges that Respondent
violated Section 8(a)(1) by issuing an e-mail to employees prohibiting them from
supporting striking fellow employees, creating among those employees an impression of
surveillance, and maintaining an unlawfully broad no-solicitation rule. Finally, the
complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to provide the Union with relevant information necessary for its bargaining with
Respondent in connection with its position on staffing issues and in connection with its
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position on temporary replacements hired by the Respondent to continue operations
during a two-day strike by the Union in September 2014. The Respondent filed an
answer, supplemented by amendment during the hearing (Tr. 10-11), denying the
essential allegations in the complaint.
5
After the trial, the General Counsel, the Charging Party and the Respondent filed
briefs, which I have read and considered. I have also read and considered the brief
amicus curiae filed by the Hospital and Healthsystems Association of Pennsylvania
(HHAP). Based on those briefs and the entire record, including the testimony of the
witnesses, and my observation of their demeanor, I make the following10
FINDINGS OF FACT
I. Jurisdiction
15
Respondent, a Pennsylvania corporation, operates an acute care hospital in
Upland, Pennsylvania. During a representative one-year period, Respondent received
gross revenues in excess of $250,000 and purchased and received, at its hospital,
goods valued in excess of $50,000 directly from points outside the Commonwealth of
Pennsylvania. Accordingly, I find, as Respondent admits, that it is an employer within 20
the meaning of Section 2(2), (6) and (7) of the Act. I also find, as Respondent also
admits, that the Union is a labor organization within the meaning of Section 2(5) of the
Act.
II. Alleged Unfair Labor Practices25
A. The Facts
Background
30
Since 2000, the Union has represented a unit of about 550 nurses at
Respondent’s hospital in Upland, near Chester, Pennsylvania. Before 2000, the nurses
were represented by predecessor unions since about 1970. For the past 6 years, the
Union also represented about 50 paramedics employed by Respondent in a separate
unit. The existing collective bargaining agreement between Respondent and the Union 35
in the nurses’ unit expired on June 8, 2014, and the parties have been bargaining for a
successor agreement since April of 2014.1 As of the time of the hearing, the parties had
met more than 15 times, but, as yet, they have not reached a new agreement. Some of
the issues that have divided the parties include staffing issues, pay rates and pension
benefits. Tr. 31-33, 87-90.40
The bargaining team for the Union included Executive Director Bill Cruice, who
was the Union’s chief negotiator, Staff Representative Andrew Gaffney, and several
nurses. The Respondent’s team included Attorney Roger Gilson, who was
Respondent’s chief negotiator, Vice-President of Human Resources Elizabeth (Liz) 45

1 The agreement covering the paramedics expired in December 2014.
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Bilotta, and Human Resources Representatives Tony DiBartolo and Charles Riley. Tr.
31.
Physical Layout of Respondent’s Property and Hospital and Applicable Rules
5
Since several of the complaint allegations deal with access by off-duty
employees engaged in protected concerted activity to Respondent’s exterior and interior
property, it is necessary to describe that property in some detail.
Respondent’s hospital, made up of several buildings over a large campus-like 10
tract, is located off Upland Avenue, a public, two-lane road, with sidewalks on both
sides, that runs from the City of Chester to Upland Township. The speed limit on
Upland is 35 miles per hour and Upland intersects with Medical Center Boulevard, a
two-lane paved road, which is owned by Respondent. Medical Center Boulevard
provides access to hospital buildings and ends in a large, above ground parking garage. 15
Medical Center Boulevard also has sidewalks on both sides and permits SEPTA public
buses to run into hospital grounds, with a bus stop at a point near the parking garage.
There is a left turn lane on Upland Avenue for vehicles going to the hospital, a stop light
at the intersection of Upland and Medical Center Boulevard, and no gate or guard
restricting entrance to the hospital property.20
The hospital’s main entrance is to the left as one enters Medical Center
Boulevard, some 40 or 50 yards from the intersection of Upland and Medical Center
Boulevard and some 30 yards off Medical Center Boulevard. Vehicular access to the
entrance is provided by a circular driveway, with an 8-foot wide sidewalk on the side 25
closest to the hospital entrance.
After one enters the hospital, he or she confronts a lobby area about 20 yards
long and 15 yards wide. To the left is a sitting area and to the right is the admission
office with a separate entrance. At the end of the lobby is an information desk, manned 30
by volunteers. Behind the information desk is a gift shop, with a separate entrance, and
a bulletin board. Off the end of the lobby there are hallways that lead to patient care
areas, as well as to the parking garage.
Respondent does not have a rule restricting access by off-duty employees to the 35
exterior or interior of its property. Indeed, even non-employee representatives of the
Union are permitted, under the last collective bargaining agreement, to engage in union
activity in both the exterior and interior of Respondent’s property, provided they give
advance notice to Respondent’s management. Tr. 85-87. Uncontradicted testimony
shows that off-duty employees had access to both interior and exterior areas of the 40
hospital for all sorts of purposes. Tr. 137-138,143,151-152. And Respondent
conceded, at the hearing (Tr. 125-126), that off-duty employees have the right to leaflet
on its property and that it permits such leafleting.
During the relevant period involved herein, roughly from April through December 45
of 2014, Respondent also maintained a broad no-solicitation rule as part of its
Administrative Policy and Procedural Manual. That rule prohibited employees from
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soliciting patients and visitors “for any purpose on [Respondent’s] property.” The rule
was rescinded and replaced by a valid rule as part of a revision of Respondent’s
Manual. That revision was dated January 30, 2015. Jt. Exhs. 4 and 4(a), Tr. 248-249,
255.
5
The Activities of Off-Duty Employees on June 3
On May 22, 2014, the Union sent a letter to Respondent, over the signature of
Executive Director Bill Cruice, notifying it, as required by Section 8(g) of the Act, that the
Union would be undertaking informational picketing at Respondent’s facility on June 3, 10
2014. The letter listed three different time segments for the activity: 6 a.m. to 8:30 a.m.;
11 a.m. to 1:30 p.m.; and 3:30 p.m. to 5 p.m. Jt. Exh. 11. In accordance with the letter,
the Union, utilizing several non-employee Union representatives and off-duty nurses,
engaged in that activity, whose purpose was to publicize its positions in bargaining with
Respondent. Most of the picketing and leafleting on June 3 took place on the sidewalk 15
off Upland Avenue at the intersection of Medical Center Boulevard. The pickets
congregated at that location shortly before 6 a.m. on the morning of June 3. Tr. 42, 49-
51, 57-59, 70-71.
At some point, between 6 and 6:30 a.m., on June 3, Union Representatives Paul 20
Muller and Jessica Weil led a group of nurses down Medical Center Boulevard on the
sidewalk opposite the hospital entrance. They wore body signs and carried signs on
sticks that were about 36 inches by 24 inches; the signs bore such legends as “Crozer
nurses united for safe staffing now” and “Retirement with Respect.” Tr. 58-61, 104-105,
G.C. Exh. 8. About half the group, some 20 nurses, led by Weil, broke off from the 25
others and crossed Medical Center Boulevard at the first crosswalk leading to the
circular driveway toward the main entrance to the hospital. The remainder of the group,
headed by Muller, continued on the sidewalk down Medical Center Boulevard. When
they reached the crosswalk that led to the parking garage, near the public bus stop,
they were confronted by Liz Bilotta, Chief Nursing Officer Eileen Young and another 30
official of Respondent. Tr. 105. According to Bilotta, she told Muller that she respected
the group’s right to engage in informational picketing, but said, “you can’t do it on
hospital property, and that they needed to go back to Upland Avenue.” Tr. 140. She
also told Muller that the other group headed to the main entrance had to leave for the
same reason. Tr. 341. Young confirmed Bilotta’s account of the exchange with Muller. 35
Tr. 317-320. After a short discussion with Bilotta, Muller called Cruice, who had not yet
arrived on the scene, on his cell phone and received instructions to return to the
intersection on Upland Avenue. Muller then led his group of nurses back to Upland
Avenue. Tr. 105-107, 109-113.
40
The second group of nurses led by Union Representative Weil reached the
hospital entrance and some crossed it before being confronted by Young. According to
Young, she told the pickets there basically the same thing that Bilotta had told Muller,
namely, that the group was not permitted to picket on Respondent’s property and the
pickets should leave the area and return to Upland Avenue. Tr. 320-321. After some 45
discussion, these pickets also left and returned to Upland Avenue. Tr. 106, 109-114,
139-143, 153-155.
JD–07-15
5
At about 7 a.m., Union Representatives Cruice and Gaffney led a group of about
15 to 20 nurses down the sidewalk along Medical Center Boulevard on the opposite
side of the hospital entrance. They were carrying picket signs or wearing body signs
similar to those carried by the earlier group of pickets. Tr. 59-60. After about 20 yards 5
into Medical Center Boulevard, the group was met by Liz Bilotta and Chief Nursing
Officer Eileen Young. They were told that they were on hospital property and they had
to leave. According to Bilotta, she told Cruice that the pickets were not permitted on
Medical Center Boulevard because “it’s private hospital property.” Tr. 342. Cruice told
Bilotta and Young that the Union representatives would leave, but, in his opinion, the 10
off-duty nurses were entitled to be on the property. Bilotta insisted that all the picketers
had to leave the hospital property; after that, everyone left and returned to the public
intersection of Upland and Medical Center Boulevard. Tr. 61-63, 67.2
Later that morning, close to or at about noon, Muller and a single off-duty nurse, 15
Teresa Devlin, went on Respondent’s property, along Medical Center Boulevard, each
with a stack of pro-union leaflets that they intended to distribute. Neither carried or wore
signs, although Devlin may have been wearing a Union shirt. Tr. 107-109, 134-136,
G.C. Exh. 5. As they neared the circular drive leading to the hospital entrance, they
were approached by Security Manager Ryan Clarke. Clarke had been instructed by his 20
superiors that there would be picketing at Upland and Medical Center Boulevard and
“not to stop anything,” but understand what pickets or protesters were doing “if they left
Upland and Medical Center Boulevard.” Tr. 295. When he met Muller and Devlin,
Clarke asked what they were doing. They responded that they intended to pass out
leaflets. Clarke told them that he would have to “check with administration,” presumably 25
to see if leafleting was permissible at that location. Muller and Devlin then said that they
would turn back to the Upland Avenue location and they did (Tr. 296, 304-305, 309).3

2 Many of the findings about these three incidents of picketing on June 3 are based
on testimony from General Counsel’s witnesses. But the findings concerning what
management officials told the pickets when they confronted the pickets is based solely
on the testimony of Bilotta and Young. Although several witnesses for the General
Counsel testified about these confrontations between the pickets and management
officials, there is no serious conflict with the versions of Bilotta and Young that are set
forth above.
3 The above conversation is based on the credible testimony of Clarke, who
appeared from a remote location by video, pursuant to the agreement of the parties.
The video testimony was clear and I was easily able to assess Clarke’s demeanor,
which was impressive. He was no longer employed by Respondent when he testified,
and thus had no particular reason to falsify his testimony or support his former
employer. He answered questions confidently and candidly. In contrast, there were
some inconsistencies in the accounts of Muller and Devlin, who basically testified that
Clarke told them they were not permitted to leaflet in the place they were and ordered
them to leave the hospital premises. Muller did not identify Clarke, but Devlin did,
referring to the name on his badge. Muller also testified that, in his conversation with
Clarke, he made a distinction between him, as a union representative, and Devlin, as an
employee; but Devlin did not corroborate Muller’s testimony in this respect. Nor did
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The Union’s Request for Information About the Joint Committee Survey
On April 9, 2014, The Union, by letter from Executive Director Cruice, requested
certain information from Respondent in connection with its bargaining positions. Among 5
the requests was one for “[c]opies of all JCAHO (Joint Commission on Accreditation of
Hospital Organization) surveys for the past 3 years.” Jt. Exh. 6. Respondent answered
on April 25, 2014. Its answer to the JCAHO request was to refer the Union “to the
Pennsylvania Department of Health website where all JCAHO hospital surveys
conducted at Crozer can be found.” Jt. Exh. 7. The website to which the Union was 10
directed included a July 3, 2013 letter from the Commission to Respondent confirming a
March 2013 unannounced full survey of the Respondent’s hospital for the purpose of
“assessing compliance with the Medicare conditions for hospitals through the Joint
Commission’s deemed status survey process.” The letter suggested that deficiencies in
three areas had been found and corrected. It congratulated Respondent for “effective 15
resolution of these deficiencies” and confirmed Respondent’s Medicare accreditation
with an effective date of March 23, 2013. The corrected deficiencies were listed as Sec.
482.12, Governing Body; Sec. 482.42, Infection Control; and Sec. 482.51, Surgical
Services. Jt. Exh. 31.4
20

Clarke mention this exchange in his testimony. Moreover, I had the impression that
Muller conflated that part of the conversation in which he pointed out the distinction
between the rights of employees and union representative with a similar conversation
he had with other management representatives he encountered earlier in the morning
when he led a group of pickets along Medical Center Boulevard. I do not find that
Muller and Devlin deliberately lied; rather I think that they testified to what they felt at the
time was a restraint, rather than what Clarke actually said to them. Finally, I find
Clarke’s testimony consistent with what I find reasonable in the circumstances: He was
told that the union activity would take place at Upland Avenue and he had checked on
that activity earlier in the morning. It made sense that he wanted to check with his
superiors to see if leafleting would be permitted at a different location, on hospital
grounds near the entrance to the hospital. Indeed, it is clear on this record, that
Respondent’s policy with regard to leafleting by employees was that it was permitted,
certainly in these circumstances where Devlin was not wearing a sign. Tr. 252.
4 According the its public website, which might be different from the public website of
the Pennsylvania Department of Health to which the Union was referred by the
Respondent, the Joint Commission is an independent, not-for-profit entity that surveys,
certifies and accredits health care organizations, particularly for Medicare and Medicaid
purposes. Some of its survey results are publicly available, but most underlying
material is not and it is protected from disclosure by confidentiality concerns. Included
in confidential material is information from the organization to determine compliance
with specific accreditation standards; an organization’s “root cause analysis,” prepared
in response to the Commission’s request; other materials that may contribute to the
accreditation decision; algorithms and information used in the survey; the organization’s
self assessments and related corrective action plan; and the identity of individuals filing
complaints about an organization. Jt. Exh. 32.
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7
In an email to Respondent, dated May 7, 2014, the Union stated that
Respondent’s answer of April 25 was incomplete insofar as it related to the JCAHO
request. The email asked for “the actual survey results delivered to Crozer by the Joint
Commission for the last 3 years. This includes any non-public documents and
correspondence from the Joint Commission and any recommendations or deficiencies 5
identified from the unannounced surveys.” The email continued by referring specifically
to deficiencies in “482.12, governing body; 482.42, infection control; and 482.51,
surgical services.” Jt. Exh. 8.
Respondent answered by letter dated May 16, 2014. In pertinent part, the letter 10
stated as follows: “We do not believe the information requested is relevant or necessary
for management to fulfill its role of bargaining representation. Moreover, the Joint
Commission (TJC) is considered a Review Organization under the Pennsylvania Peer
Review Protection Act 63 P/S. Section 425.l. Thus, any documents, reports or
recommendations prepared or issued by TJC are confidential and protected from 15
disclosure. Furthermore, by disclosing such information, the health system would lose
its peer review privileges.” Jt. Exh. 9.
In a May 19, 2014 response, the Union reiterated its position on the Joint
Commission information, stating that “staffing levels and its impact on patient care and 20
patient safety are central issues in our current negotiations. Among the many other
reasons why this data is relevant, Joint Commission surveys help to pinpoint gaps in
patient care and establish the foundation for the Union’s proposals for improvements in
staffing levels.” Jt. Exh. 10.
25
Union Representative Gaffney viewed the public documents on the Joint
Commission’s website, in accordance with Respondent’s instructions. He construed
them as presenting possible staffing issues that related to the Union’s bargaining
position on staffing. Tr. 34-38. According to Gaffney, the public documents were
insufficient from the Union’s point of view because they did not list the details of the 30
problems with infection control or surgical services that might impact on staffing. Tr. 38-
40, 91-93. He testified that the information requested by the Union would possibly
support its contention in bargaining that more staffing was required. As he testified, the
Union knew from information provided by nurses that there had been some problems
during the Joint Commission survey with infection control and surgical services and that 35
could mean that there was work that nurses were not completing in a timely manner. Tr.
35-40, 92-94. When asked on cross-examination to confirm that Respondent provided
other information on “underlying issues” covered by the Joint Commission report,
Gaffney agreed. See Jt. Exhs. 21-25. But he testified that the Union was not looking
for alternative documents compiled by the hospital, but with documents generated by or 40
for an independent body like the Joint Commission. Tr. 93-101.5

5 Respondent’s chief negotiator, Roger Gilson, also testified that Respondent
provided other information on staffing and incident reports. But these were alternatives
unconnected to the Joint Commission documents that the Union requested. Tr. 363-
364.
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By separate letters dated May 20 and May 27, 2014, Respondent provided the
Union with responses to the request for Joint Commission information. Jt. Exhs. 12 and
28. It continued to question the relevance of the information and asserted that other
information on staffing levels was requested and provided. Respondent also provided
legal authorities and arguments in support of its contention that the Joint Commission 5
information was confidential under Pennsylvania law and under a Board case, Borgess
Medical Center, cited at 342 NLRB No. 109 (2004). The Respondent also asserted that
“[i]f the Hospital disclosed such documents, it would effectively waive the peer review
protection for the institution and those that relied on that protection, when participating
in the quality and peer review processes.” Jt. Exh. 12, p. 4. In addition, the Respondent10
asserted that, “if the Medical Center disclosed the Joint Commission’s non-public
opinions, physicians, nurses and other medical providers could thereafter refuse to
participate and fully disclose their medical opinions in subsequent surveys and other
peer review processes.” Ibid.
15
According to Gaffney’s uncontradicted testimony, the Respondent never provided
the non-public information about the Joint Commission study that the Union requested.
Tr. 40. He also testified that the only offer by Respondent to accommodate the Union’s
request with its alleged confidentiality concerns was in a “brief conversation” between
him and Respondent’s chief negotiator, Roger Gilson, “in the hallway outside of 20
bargaining.” Tr. 40-41. According to Gaffney, Gilson said that maybe there was
something Respondent could do, but he was not sure. Tr. 41.
Gilson also testified about discussions concerning the Joint Commission report in
bargaining, although he did not testify about any separate conversation with Gaffney. 25
Gilson testified that there were two times the issue was discussed “across the
[bargaining] table.” Those discussions, which took place in May (Tr. 367), essentially
replicated the positions of the parties reflected in their written correspondence set forth
above. Tr. 360, 366. Gilson not only adhered to Respondent’s position on
confidentiality, but also insisted that the information was not relevant to bargaining. Tr. 30
364-365. Gilson also testified that he engaged in a sidebar conversation on the subject
with Bill Cruice in the middle of June. According to Gilson, in that conversation, he was
concerned that Respondent’s privilege would be waived if some of the requested
information was provided. He therefore asked whether Cruice could think of any way
the matter could be resolved and apparently none was forthcoming, although Cruice 35
reserved “the right to bring it up again.” Tr. 361-362, 365.6
Aside from his testimony set forth above, Gilson did not testify that Respondent
offered to accommodate the Union’s need for the Joint Commission information. And,
on cross-examination, he conceded that he had never actually seen the Joint 40
Commission report. So neither he nor the Union knew whether or not any part of it
could be redacted to provide an appropriate accommodation. Tr. 366-367. Indeed,
Gilson testified that he repeatedly told the Union bargainers that “we weren’t in a

6 Gilson conceded that the Union never withdrew the information request and Cruise
told him he was not withdrawing it. Tr. 368. Later, the Union informed Gilson that it was
going to file a charge over the failure to provide the information it requested. Tr. 362.
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position where we could give a portion [of the confidential information] without waiving
the privilege for the whole. . . . It was an all or nothing thing.” Tr. 374-375. By his
reference to a privilege, Gilson meant the applicable Pennsylvania statute, which was
referenced in Respondent’s May 27 letter mentioned above. Jt. Exh. 5, Tr. 375-376.7
5
Activity by Off-Duty Employees on September 3, 2014
Pursuant to an August 22, 2014 letter notification to Respondent, the Union
engaged in additional informational picketing and leafleting on September 3, 2014. As
before, the Union set three time periods for the activity: 6 a.m. to 8:30 a.m.; 11 a.m. to 10
1:30 p.m.; and 3:30 p.m. to 5:30 p.m. Jt. Exh. 18, Tr. 157-158. This time, because there
were pending unfair labor practice charges filed by the Union, some dealing with the
June 3 picketing that Respondent hoped to settle, and because the Respondent wanted
to walk back its previous position, it decided to “stand down” and permit picketing and
leafleting on its property. Tr. 249-251, 343-345. Thus, on September 3, the Union and 15
its members picketed along Medical Center Boulevard and outside the hospital entrance
along the circular driveway. Leaflets supporting the Union were also distributed. Tr.
158, 169, 249, 285, 322. The leaflets addressed unfair labor practice charges that had
been filed by the Union as well as the Union’s bargaining position, including a reference
that stated, “Safe Staffing Saves Lives.” G.C. Exh. 6.20
During the first two time periods of union activity, some leafleting also took place
inside the hospital.8 The leafleters were instructed not to block anyone and to hand

7 Section 425.4 of Title 63 of Purdon’s Pennsylvania Statutes and Consolidated
Statutes, titled “Confidentiality of review organization’s records,” provides as follows:
The proceedings and records of a review committee shall be held in
confidence and shall not be subject to discovery or introduction into
evidence in any civil action against a professional health care provider
arising out of the matters which are the subject of evaluation and review
by such committee and no person who was in attendance at a meeting of
such committee shall be permitted or required to testify in any such civil
action as to any evidence or other matters produced or presented during
the proceedings of such committee or as to any findings,
recommendations, evaluations, opinions or other actions of such
committee or any members thereof; Provided, however, That information,
documents or records otherwise available from original sources are not to
be construed as immune from discovery or use in any such civil action
merely because they were presented during proceedings of such
committee, nor should any person who testifies before such committee or
who is a member of such committee be prevented from testifying as to
matters within his knowledge, but the said witness cannot be asked about
his testimony before such a committee or opinions formed by him as a
result of said committee hearings. Jt. Exh. 5.
8 The Respondent also distributed leaflets supporting its bargaining position
throughout the hospital, including placing them on the information desk and on the
bulletin board in the first floor lobby. Tr. 141-147, 149-150, 155-156.
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leaflets only to interested people. Tr. 159. But Respondent was concerned that some
of the leafleters were engaged in what it perceived as picketing inside the hospital.
Human Resources Representative Tony DiBartolo approached some of the leafleters in
the lobby in the early morning session and asked them to remove their body signs.
After DiBartolo’s request, the leafleters did remove their signs, and, according to 5
DeBartolo, they were permitted to continue leafleting. Tr. 230, 240-242, 254. Some
management officials held a meeting at about 2 p.m. in the afternoon where they
discussed the leafleting activity by people with body signs, which had extended to
corridors off the main lobby and included some patient care areas. They also discussed
video tapes of this activity that had been captured by security cameras throughout the 10
hospital interior. Tr. 242-247. DiBartolo attended that meeting, but he himself had
observed some of the activity in other parts of the hospital interior. Tr. 254-258.9
In the third leafleting session, the one in the late afternoon, which is the subject
of the only complaint allegation concerning the September 3 union activity, both Union 15
Representative Janna Frieman and off-duty nurse Carol McNasby positioned
themselves in the lobby, near the information booth and a sign placed in that area by
Respondent. Tr. 161-165, 182-189. See also G.C. Exh. 12. The sign stood on an easel
and was about 3 feet by 2 feet. It highlighted the Respondent’s bargaining position in
the negotiations with the Union. Tr. 275-276. Both Frieman and McNasby were 20
wearing body signs, which were no larger than Respondent’s stationary sign. A picture
of McNasby wearing her sign and carrying leaftets appears in the record as G.C. Exh.
13. The sign hangs down the front of her body on a string from her chest to a point
below her waist; it appears to be about 2 and 1/2 feet in length and about 18 inches
wide. It reads, “Skilled Nurses at Your Bedside, Priceless.” The Respondent’s 25
stationary sign, which is also visible in the exhibit, asks, “Why are nurses picketing
Crozer?” Ibid. 10
Both Frieman and McNasby passed out leaflets. It is also apparent that Frieman
was walking up and down the length of the lobby, whereas McNasby was mostly 30
stationary, moving only a few feet from her position as she was giving leaflets to
interested people near the Respondent’s stationary sign. Tr. 187-188, 191-192. After a
few minutes, Human Resources Representative Charles Riley approached McNasby.

9 DiBartolo also referred to an incident, which he did not observe, but that was
reported to him, where a leafleter inside the hospital upset a burn patient. Tr. 260.
Another witness testified in more detail about this incident. Tr. 287-288. There were
also complaints from people who were confronted by leafleters in the admissions area,
which is a large separate room to the right of the lobby, accessible through doors that
remain open from about 6:30 a.m. to 4 p.m. Tr. 283-290. None of these incidents
involved the leafleting by McNasby in the lobby area, which is discussed below and is
the subject of the only complaint allegation dealing with the Union’s September 3
activity.
10 DiBartolo described the body signs as 28 inches wide and about 3 feet in length.
Tr. 260-261. But, in viewing GC Exh. 13, I believe the sign that McNasby was wearing
was smaller, with the dimensions set forth above in text.
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11
According to McNasby’s uncontradicted testimony, Riley approached her and said that
she and Frieman would “get in trouble” if they “stood there.” Tr. 189.11
A little later, DiBartolo approached McNasby while she was still standing next to
Respondent’s stationary sign. He told her that she could continue her leafleting, but she 5
would have to take her body sign off. Tr. 189-190. At that point, Frieman joined
DiBartolo and McNasby, and engaged DiBartolo in a conversation. Then, Frieman and
McNasby left the lobby area. Tr. 244-246. DiBartolo testified that he approached
Frieman and McNasby on this occasion only after, and as a result of, the 2 p.m.
management meeting. Tr. 265. He also testified that he had observed both of them 10
picketing outside the hospital before they went in to the lobby. Tr. 248-249.12
The Strike of September 21-22, Related Information Request, and Instructions to Non-
Unit Employees Supporting the Strike
15
On September 8, 2014, the Union sent a letter to Respondent notifying it,
pursuant to the requirements of Section 8(g) of the Act, that Union members would be
engaging in a two-day strike beginning at 7:30 a.m. on Sunday, September 21 and
ending at 6:29 a.m. on Tuesday, September 23. Upon the end of the strike, the letter
continued, the Union “makes an unconditional offer to return to work.” G.C. Exh. 2.20
On September 12, 2014, Respondent sent a letter to its nurses, stating, inter alia,
that it had entered into a contingent staffing agreement with a third party to provide
staffing to replace striking nurses. According to Respondent, the staffing company
required a guarantee of 5 days work for the replacements and that this requirement 25
might delay reinstatement of some nurses after the end of the two-day strike. Jt. Exh.
13.
The same day, September 12, the Union responded by fax and email. Jt. Exh.
14. In its response, the Union, in pertinent part, reiterated that its strike would last only 30
two days and also reiterated its unconditional offer on behalf of the nurses to return after
two days. It also requested the following information to verify Respondent’s assertion
that the staffing company required five days of work for the replacements:

11 I credit McNasby’s clear and truthful testimony concerning what Riley told her.
Riley, who was present in the courtroom during the trial, did not testify to contradict
McNasby’s account of their conversation.
12 The above findings about the leafleting in the lobby are based in part on, and
supported by, a video tape of the incident involving Frieman, McNasby, Riley and
DiBartolo, which was received in evidence in the form of a computer thumb drive. R.
Exh. 4, Tr. 266-274. The entire incident lasted about 5 or 6 minutes. I admitted the
exhibit in evidence to the extent that it covered those 5 or 6 minutes, which appear at
the end of the exhibit. But I rejected the remainder of the tape, which reflected other
activity inside the hospital at different times on September 3. However, the rejected part
of the tape remains on the thumb drive because it cannot be segregated from the part
that was admitted in evidence. Tr. 266-279.
JD–07-15
12
1. A true, correct and complete copy of the contract
with the staffing agency(s) referred to in your letter of September
12, 2014.
2. Any and all documents relating in any way to the 5
negotiation of the agreement described above in #1 above,
including but not limited to correspondence, notes, emails,
drafts, proposals, counterproposals, memoranda and any other
writing between employees, agents and/or representatives of
Crozer Chester Medical Center or CKHS, and the temporary10
staffing agency(s) with whom the agreement was made.
3. Copies of any and all contracts Crozer
Chester Medical Center or CKHS has entered into at any time
within the last three (3) years with any temporary employment15
agency or nurse registry for the provision of Registered Nurse
services at Crozer Chester Medical Center.
According to Union Representative Gaffney, the Union made this information
request to verify the 5-day guarantee for replacement workers, to see whether 20
Respondent had initiated the matter, and to see whether other staffing agencies utilized
by Respondent in the past could provide temporary workers without the 5-day
guarantee. Depending upon the answers, the Union could have filed a grievance or
bargained over the matter to support members who might lose work because
replacements were committed beyond the end of the 2-day strike. Tr. 45-48, 84, 101-25
102. The agreement of the parties contained a non-discrimination provision. Tr. 68,
G.C. Exh. 7.
At some point between September 12 and the projected date of the strike, the
parties held a bargaining meeting. At this meeting, according to Gilson, the subject of 30
the temporary replacements was raised. The Union took the position that the nurses
should be reinstated on September 23, immediately after the strike ended. Gilson
responded that that could not happen because of the staffing company’s 5-day
guarantee. He also said that Respondent would reinstate striking nurses “to the extent
there were positions available.” Tr. 370-371.35
The strike took place, in accordance with the Union’s September 8 notification,
on September 21 and 22. Gilson met again with representatives of the Union at the end
of the strike on September 23. Tr. 368-371, Most of the striking nurses were not put
back to work at the end of the strike because, according to Respondent’s agreement 40
with the staffing company supplying replacements, the latter had a guarantee that the
replacements would work 5 days. Gilson conceded that, in his September 23 meeting
with Union representative, he told them that only about 20 of the 550 unit positions were
available to returning strikers as of that date. Tr. 372-373. As a result, the remaining
nurses lost 3 days of pay. It appears that, to date, the Union has not contested this loss 45
either in a grievance proceeding or by filing an unfair labor practice. Tr. 376-377.
JD–07-15
13
On September 21, the first day of the strike, Respondent, through Assistant
EMS Chief Lawrence Worrilow, an admitted supervisor and agent (Tr. 10-11), sent the
following email to its paramedics, who were not on strike and were part of a separate
bargaining unit (Jt. Exh. 15):
5
As all of you are aware, this morning the Nursing Union (PASNAP) began their
job action here at Crozer. Here are a few things to be aware of for the duration
of this job action.
1. You must have your Crozer ID badge on at all times, even if you are in 10
uniform.
2. While on duty you can not show any signs of support, as blowing of the EMS
vehicles hors/sirens, waving/clapping or cheering as you pass by the picket
line.
3. All patients are to be transported to Taylor ED unless the patient/family 15
demand to be transported to Crozer.
4. There are numerous undercover outside security personnel on and around
the property so please do not participate in any activities while you are
working.
20
On October 16, 2014, Respondent’s chief negotiator, Roger Gilson, wrote the
Union’s executive director, Bill Cruice, with respect to the staffing agreement that
contained a minimum five day staffing commitment. He pointed out that, after some
effort, he obtained from the staffing company copies of a redacted agreement, which he
provided the Union in an attachment. The redacted copy of the agreement contained 25
the name of the company, U.S. Nursing, as well as the clauses setting forth the work
guarantee and the confidentiality of the staffing agreement itself. The work guarantee
clause set forth a guarantee for the replacements of “a minimum of five [12 hour day]
Shifts in the first Workweek and four Shifts per work week thereafter.” The redacted
copy did not contain a definition of the “Workweek.” The confidentiality clause provides 30
that the parties will not disclose the contents of the agreement or provide copies to third
parties without the express written permission of the other party, “except to the extent
required by law.” Jt. Exh. 16.
On November 7, 2014, well after the conclusion of the strike, Respondent sent 35
another email to the paramedics (Jt. Exh. 17). In it, Administrative Director Deborah
Love and EMS Chief Robert Reeder apologized for the “erroneous and unauthorized”
email of September 21, which they “disavow[ed] and repudiate[d].” The email
specifically repudiated items 2 and 4 in the earlier email and stated that Respondent
had “taken other appropriate remedial action to ensure that this is not repeated in the 40
future.” Ibid.
On December 19, 2014, the Union sent a letter to Respondent that included,
among other matters, a renewal of its September 12 request “regarding the usage of
temporary nurse staffing agencies.” It stated that the information was needed to 45
“properly enforce” the anti-discrimination provision of the current contract “through
grievances or at the bargaining table.” G.C. Exh. 3.
JD–07-15
14
Respondent answered by letter dated January 23, 2015. It pointed out that “at
the bargaining table and in prior correspondence,” Respondent had told the Union that
its “contract with U.S. Nursing prohibited the Medical Center from disclosing the contract
or its contents to any third party.” Nevertheless, Respondent reminded the Union that it 5
was able to secure permission to disclose a redacted version showing the clauses on
the five day staffing commitment and confidentiality, which it had earlier provided to the
Union. Respondent also mentioned its unsuccessful efforts to secure the other staffing
agreements requested by the Union due to the unwillingness of the companies involved
to waive their confidentiality clauses. G.C. Exh. 4. 10
B. Discussion and Analysis
The Section 8(a)(1) Allegations Dealing with Picketing and Handbilling
15
The complaint alleges four distinct violations dealing with Respondent’s
interference with off-duty employees picketing and leafleting on its property. Three
allegations involve interference with picketing and leafleting by off-duty employees on
June 3, 2014. The first two deal with their picketing, demonstrations and leafleting in
support of the Union’s bargaining positions on Respondent’s property outside the 20
hospital: In the circular driveway in front of the main entrance to the hospital and along
Medical Center Boulevard. Paragraph 7 of the complaint. The third deals with the
leafleting of an off-duty employee in another outside area near the circular driveway.
Paragraph 8 of the complaint. The last allegation in this respect deals with interference
by Respondent on September 3, 2014, with leafleting by an off-duty employee in the 25
inside lobby of the hospital and the threat of reprisal if the employee continued to wear a
sign supportive of the Union on her body. Paragraph 9 of the complaint.
It is significant that the complaint in this case focuses on the rights of off-duty
employees to picket and handbill on Respondent’s property, as it did in Town & Country30
Supermarkets, 340 NLRB 1410, 1413 (2004). As the Board stated in that case, unlike
nonemployee union representatives, employees “are not strangers to the employer’s
property, but are already rightfully on the employer’s property pursuant to their
employment relationship, thus implicating the employer’s management interests rather
than its property interests.” Id. at 1414, citing authorities including Republic Aviation35
Corp. v. NLRB, 324 U.S. 793 (1945) and Hudgens v. NLRB, 424 U.S. 507, 521 fn. 10
(1976). Thus, the Board found off-duty employees could engage in protected activity in
nonwork areas of their employer’s property and the employer violated Section 8(a)(1) of
the Act by prohibiting its off-duty employees from picketing and handbilling near the exit
and entrance of its retail grocery stores. Ibid.40
Both the Supreme Court and the Board have recognized that hospitals have a
special need to provide a tranquil atmosphere to carry out their prime function of patient
care, thus permitting some restrictions on otherwise protected activities of employees,
particularly in interior areas. Beth Israel Hospital v. NLRB, 437 U.S. 483, 507 (1978); 45
NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 779-791 (1979); St. John’s Hospital &
School of Nursing, Inc., 222 NLRB 1150 (1976), enforced in part, 557 F.2d 1368 (10th
JD–07-15
15
Cir. 1997). The Board properly presumes that prohibitions against employee solicitation
and distribution during nonworking time in nonworking areas are unlawful infringements
on protected employee rights, where the “facility has not justified the prohibitions as
necessary to avoid disruption of health-care operations or disturbance of patients.”
Baptist Hospital, supra, 442 U.S. at 779, citing to Beth Israel Hospital. But it is up to the 5
employer to show that the banned activity is necessary to avoid disruption of health care
operations or disturbance of patients. In Baptist Hospital, the Court agreed that the
hospital had not “justified the prohibition of union solicitation in the cafeteria, gift shop,
and lobbies of the first floor of the [hospital].” 442 U.S. at 786-787.
10
With respect to prohibiting employees from wearing union insignia during
protected activity, it is well settled that an employer may not prohibit employees from
wearing union-related insignia or attire unless it demonstrates “special circumstances.”
Boise Cascade, Corp., 300 NLRB 80, 82 (1990). And the burden of proving such
“special circumstances” falls on the employer. Boch Honda, 362 NLRB No. 83, slip op. 2 15
(2015). See also Komatsu America Corp., 342 NLRB, 649, 650 (2004).
In a hospital setting, as illustrated by the Baptist Hospital and Beth Israel cases
discussed above, the employer’s burden to show special circumstances would include
showing a disruption of health care operations or disturbance of patients. More 20
specifically, restrictions on wearing union insignia in immediate patient areas are
presumptively valid, but such restrictions in other areas of a hospital are presumptively
invalid. Saint John’s Medical Health Center, 357 NLRB No. 170, slip op. 1-3 (2011).
See also Healthbridge Management LLC, 360 NLRB No. 118, slip op. 2 (2014). And see
Washington State Nurses Ass’n v. NLRB, 526 F.3d 577, 581-582 (9th Cir. 2008), 25
denying enforcement to Sacred Heart Medical Center, 347 NLRB 531 (2006),
particularly its discussion of Mt. Clemens General Hospital v. NLRB, 328 F.3d 837 (6th
Cir. 2003).
Applying the above principles to the factual findings set forth above, I find that the 30
evidence supports the violations alleged in paragraphs 7 and 9 of the complaint. I find
that the General Counsel has not proved the violation alleged in paragraph 8 of the
complaint.
The violation attributed to Security Manager Clarke
35
My factual findings do not support the violation alleged in paragraph 8 of the
complaint. Based on my credibility determination, I find that Security Manager Ryan
Clarke did not prohibit off-duty nurse Teresa Devlin from leafleting and exclude her from
the property. She and Muller may subjectively have felt some restraint in waiting for
Clarke to get instructions from his superiors on the propriety of the leafleting. But 40
coercion and restraint within the meaning of the Act are measured by objective not
subjective evidence. And Clarke’s words did not objectively amount to coercion or
restraint. It was Devlin’s decision, perhaps with Muller’s support and as a tactical matter,
to leave; whatever restraint was felt as a subjective matter, the incident did not rise to
the level of an unfair labor practice. Even if a technical violation could somehow be 45
found, there is no need for a remedial order on this point, particularly since I find similar
violations below, which do result in a similar remedial order. Moreover, it is clear that
JD–07-15
16
Respondent permits leafleting on its property, particularly outside the hospital, at least
when the employee, like Devlin here, is not wearing a body sign. I shall therefore
dismiss paragraph 8 of the complaint.
The ouster of pickets on the exterior of the hospital5
The other instances of interference with picketing on the exterior of the hospital
grounds on June 3 are covered in paragraph 7 of the complaint. Those are a different
story. There is no serious doubt that the picketing along Medical Center Boulevard and
on the circular driveway near the outside entrance to the hospital was stopped by 10
management officials. The pickets were directed to return to the public area at the
intersection of Upland Avenue and Medical Center Boulevard. Respondent defends its
actions by relying solely on its property interests. Bilotta made it clear in her testimony
that the only reason she gave for ousting the picketers on June 3 was because they
were on hospital property. Young made essentially the same point when she 15
confronted another group of demonstrators. No other reason was given. But it is also
clear that otherwise protected activity, including picketing, by off-duty employees who
are entitled to be on the property, implicates, as the Board has stated in Town &
Country Supermarkets, cited above, “the employer’s management interests rather than
its property interests.” 20
The only evidence, aside from bare property rights, submitted by Respondent to
justify the ouster of off-duty employees from its outside property on June 3 was the
opinion testimony of Chief Nursing Officer Eileen Young. And that testimony arguably
related to disruption of health care operations or disturbance of patients. Young 25
conceded that picketing and leafleting outside the hospital was less a matter of concern
than activity inside the hospital. Tr. 323. Indeed, it is difficult to see how there can be
any disruption of health care operations or disturbance of patients on the sidewalks of
Medical Center Boulevard, which is the functional equivalent of a public street. Young
conceded that activity near from the circular drive leading to the entrance of the hospital 30
was a greater concern than activity further away Tr. 323-326. But, even her concerns
about activity near the entrance were not sufficient to provide the type of rebuttal
required to ban union activity outside the hospital. First of all, when she confronted
picketers on the circular drive outside the hospital entrance on June 3, she did not
mention any concern about patient care. Moreover, her trial testimony about how the 35
Union’s activity at any point outside the hospital might disrupt health care operations or
disturb patients was speculative. That is not enough to provide a defense to the
otherwise protected activity the pickets engaged in here. See Baptist Hospital, supra,
442 U.S. at 787; and Healthbridge Management, supra, 360 NLRB No. 118 at slip op. 2-
3. 40
Moreover, Young testified that her concerns about the impact of projected
picketing, leafleting and demonstrations on patient care or tranquility were presented to
and rejected by Respondent’s management officials, who agreed to permit such activity
on September 3. Tr. 324-326. Thus, whatever the reasons behind the decision to 45
permit picketing and leafleting both inside the hospital and outside on the hospital
grounds on September 3, Respondent did not think patient care or tranquility were
JD–07-15
17
overriding concerns. And, although there is evidence that patient care may have been
affected during some of the union activity inside the hospital on September 3, there is
no evidence that the activity on hospital grounds outside the hospital itself on that date
actually impeded any health care operations or disturbed patients. Accordingly, I find
that Respondent’s prohibition against picketing and demonstrating both on Medical 5
Center Boulevard and in the circular drive outside the hospital entrance on June 3
amounted to violations of Section 8(a)(1) of the Act.
Contrary to Respondent’s contention (Br. 9-23), cases dealing with the rights of
nonemployees to engage in union activities on private property are not applicable here. 10
The relevant complaint allegation is addressed only to the rights of off-duty employees
and the Respondent’s interference with those rights. As the Board clearly held in Town
& Country, off-duty employees are not strangers to their employer’s property and their
rights on their employer’s property are governed by the rights of employees, not those
of nonemployees, whose rights on such property are more restrictive Compare 15
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1988). Moreover, contrary to Respondent’s
further contention, the Board’s discussion of off-duty employee rights in Town & Country
made no distinction between peaceful picketing and distribution or solicitation. Off-duty
employees have broad protections under Board law, subject to precisely limited
exceptions. An employer may bar off-duty employee access to a facility only if the rule 20
(1) limits access solely to the interior of the facility, (2) is clearly disseminated to all
employees, and (3) applies to off-duty employees for all purposes, not just for union
activities. Tri-County Medical Center, 222 NLRB 1089 (1976). See also Saint John’s
Health Center, 357 NLRB No. 170, slip op. 3-6 (2011). As shown in the factual
statement, the Respondent does not have a no-access rule covering off-duty 25
employees. And, as also shown in the factual statement, off-duty nurses were
permitted access to both the exterior and interior parts of hospital property for all sorts
of purposes.13
The ouster of employee McNasby from the hospital lobby30
Turning to the alleged violation on September 3 in Paragraph 9 of the complaint,
I also find that Respondent unlawfully interfered with protected employee activity when
DiBartolo banned off-duty nurse McNasby from continuing her leafleting in the first floor
lobby of the hospital unless she removed her body sign. Respondent conceded that the 35
lobby is a nonwork area where employees, including off-duty employees such as

13 Respondent’s reliance on Providence Hospital, 285 NLRB 320, 322 (1987), a case
that does involve off-duty employee picketing, is unavailing. In finding no violation in an
employer’s picketing ban on its private property, Providence Hospital relied on a no-
longer applicable balancing test under Fairmont Hotel, 282 NLRB 139 (1986), which
involved non-employees. In any event, Fairmont Hotel was overruled in Jean Country,
291 NLRB 11 (1988), on which Respondent also relies (Br. 9-10). But Jean Country, in
turn, was repudiated in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1988). See Sprain
Brook Manor, 351 NLRB 1190, 1192 fn. 8 (2007). Thus, Providence Hospital has no
precedential value on this particular point. The result in Providence Hospital is, in any
event, inconsistent with the more recent Board decision in Town & Country.
JD–07-15
18
McNasby, are permitted to pass out leaflets. Tr. 215. As indicated above, McNasby
was mostly stationary as she handed out leaftets—actually, to only a few people. She
did not interfere with passers-by and was essentially passive, waiting for people to
approach her rather than aggressively approaching people. As also indicated above,
employees who engage in protected activity on their own time in nonwork areas are 5
permitted to wear union insignia and garb, absent special circumstances. Significantly,
the only reason given by DiBartolo for preventing McNasby from leafleting in the lobby
was that she was wearing a body sign supporting the Union’s bargaining position.
McNasby’s sign stated that skilled nurses at patients’ bedsides was “priceless.” No
special circumstances were mentioned by DiBartolo for banning the body sign when he 10
was speaking with McNasby. And no other recognizable special circumstances were
presented at trial to justify prohibiting McNasby from wearing the body sign while
leafleting in the lobby, which is decidedly not a patient care area. See Baptist Hospital,
supra, 442 U.S. at 787, where the Court found insufficient evidence to ban solicitation in
the first floor lobby of the hospital in that case. 15
Indeed, Respondent’s ban is undercut by its simultaneous posting of a large sign
in the lobby, near where McNasby was leafleting, that presented its side of the
bargaining dispute and gave its views why the nurses were picketing. Thus, any attempt
by Respondent to show McNasby’s sign interfered with hospital tranquility appears one-20
sided and hollow.
Respondent asserts (Br. 45-52) that it was entitled to oust McNasby because
wearing the body sign was equivalent to picketing. I reject that notion. The only reason
given for ousting McNasby was that she was wearing a body sign, suggesting that it 25
was the message on her sign, not McNasby’s leafleting or her presence in the lobby
that caused her ouster. Nor was there anything else in McNasby’s activities in the lobby
that made her conduct unprotected or coercive. It is Respondent’s burden to show that
McNasby’s conduct lost the protection of the Act; and that burden cannot be met by
parsing the definition of “picketing” in the context of its use in other sections of the Act 30
that make union conduct an unfair labor practice. In any event, McNasby’s leafleting
activity carried none of the usual attributes of picketing, such as patrolling and
confrontation. Nor can it be viewed as the type of “signaling” that the Board has stated,
“provokes responses without inquiry into the ideas being disseminated and
distinguishes picketing from other forms of communication and makes it subject to 35
restrictive regulation.” Teamsters Local No. 688, 205 NLRB 1131, 1133 (1973). See
also Sheet Metal Workers Local 15 (Brandon Medical Center), 356 NLRB No. 162, slip
op. 2-3 (2011); Southwest Regional Council of Carpenters (Held Properties), 356 NLRB
No. 11, slip op. 1-2 (2010); and Verizon New England, Inc., 362 NLRB No. 24, slip op.
4-5 (2015).1440

14 Some of the cases cited by Respondent and Amicus in support of a broader
reading of the term “picketing” are inconsistent with the more recent Board cases cited
above. See particularly Sheet Metal Workers Local 15, 356 NLRB No. 162, at slip op.
3, fn. 5; and Southwest Regional Council of Carpenters, 356 NLRB No. 11, at slip op. 1-
2.
JD–07-15
19
Respondent’s position is not advanced because McNasby had been picketing or
demonstrating outside the hospital wearing her body sign before she entered the lobby
to leaflet. Her leafleting in the lobby was functionally and geographically distinct. And it
is not significant, as Respondent seems to contend, that Union Representative Frieman
was seemingly patrolling up and down the lobby wearing a body sign at the same time 5
McNasby was leafletting. Whatever Frieman, a nonemployee, was doing in the lobby
did not taint what McNasby was doing. The complaint alleges neither that Frieman was
engaged in protected activity nor that Respondent acted unlawfully toward her. It is
Respondent’s actions vis-à-vis McNasby, an off-duty employee engaged in protected
activity in the lobby, that is the subject of the complaint allegation. See Providence10
Hospital, 285 NLRB 320, 322-323 (1987) (handbilling was functionally and
geographically distinct from picketing elsewhere); and Southwest Regional Council of
Carpenters, cited above, 356 NLRB at slip op. 1, fn. 3, citing Service Employees Local
525 (General Maintenance Service Co.), 329 NLRB 638, 681 (1999), enfd. 52 Fed.
Appx. 357 (9th Cir. 2002) (handbilling is not coercive simply because picketing either 15
precedes or follows it even where no hiatus occurs between the two).
Nor is McNasby’s conduct rendered unprotected because, as Respondent also
contends (Br. 52-55), other demonstrators had leafleted earlier in the day in other parts
of the interior of the hospital, arguably interfering with patient care. That alleged 20
unprotected activity was attenuated from what McNasby was doing in the lobby, clearly
a nonpatient area. It is also clear that the sins of employees who engage in misconduct
during protected activity are not visited on others who engage in protected activity free
from misconduct. See NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964). See also
Beverly Health & Rehabilitation Services, 332 NLRB 347, 348 (2000), enfd. 297 F.3d 25
468 (6th Cir. 2002) (broad rule covering protected conduct unlawful despite its lawful
coverage of unprotected conduct).
Accordingly, I find that Respondent violated Section 8(a)(1) of the Act when it
banned McNasby from leafleting in the hospital lobby unless she removed her body 30
sign. I also find that Respondent similarly violated Section 8(a)(1) when Human
Resources Representative Riley told McNasby she would get “in trouble” if she “stood”
where she was handing out leaflets. His statement, which did not even mention the
body sign, was an implicit threat of reprisal for engaging in protected union activity. See
St. Mary Medical Center, 339 NLRB 381, 384 (2003). 35
The 8(a)(1) Violations Dealing with Employee Solicitation and Support for Striking
Employees
The complaint alleges three separate violations dealing with written documents 40
interfering with the protected rights of employees. Paragraph 11 of the complaint
alleges that, during relevant times, Respondent maintained the following unlawfully
broad rule: “Solicitation of patients and visitors by anyone for any purpose on
[Respondent’s] property is strictly prohibited.” Paragraph 10 of the complaint alleges
that, on September 21, 2014, Respondent sent its paramedics an email stating that they 45
could not show support for striking nurses employed by Respondent in a different unit
by “blowing of the EMS vehicles horns . . . waving/clapping or cheering as you pass by
JD–07-15
20
the picket line.” It also alleges that the email created the impression that Respondent
would be monitoring the protected activity of the strikers and their supporters, thus
further violating the Act.
The no-solicitation rule maintained by Respondent from April through December 5
of 2014 was unlawfully broad. As mentioned above, the Supreme Court has endorsed
the Board’s view that a hospital employer may not ban employee solicitation or
distribution of literature during nonworking time in nonworking areas, where the
employer has not justified the prohibitions as necessary to avoid disruption of health
care services or disturbance of patients. Beth Israel Hospital, supra, 437 U.S. at 507 10
and Baptist Hospital, supra, 442 U.S. at 779-791. Applying these principles, I find that
the no-solicitation rule in this case, which was in effect at all relevant times in 2014, until
its rescission in January of 2015, is unlawfully broad because it was not appropriately
limited in time or location. Moreover, employees are entitled to solicit aid from patients
or visitors so long as it is done on nonwork time and in nonwork areas. See UCSF 15
Stanford Health Care, 335 NLRB 488, 527-528 (2001), enfd. in relevant part, 325 F.3d
334 (D.C. Cir. 2003). Thus, the rule is presumptively unlawful. Nor is there any
evidence of appropriate justification for such a broad rule. The rule does not, for
example, even mention patient care or health care operations. And no evidence was
submitted to show it was required in order to protect patient care or health care 20
operations. In these circumstances, it is clear that the rule infringes on the protected
rights of employees and is thus violative of Section 8(a)(1) of the Act. See Carney
Hospital, 350 NLRB 627, 643-644 (2007); and Doctor’s Hospital of Staten Island, 325
NLRB 730, 735 (1998).
25
In an email to the paramedics on the first day of the nurses’ strike, Respondent
prohibited them from engaging in activity in support of the nurses, specifically
mentioning cheering, waving, blowing horns or other indicia of support as they drove
past picketing nurses. Uncontradicted testimony establishes that Respondent had
never before prohibited signs of support for activity other than union activity. Tr. 192-30
203. Employees, of course, have the protected right to support fellow employees in
their protected activity, including support for their strike. Such acts of sympathy have
been recognized from the early days of the Act, notably in a famous quote from Judge
Learned Hand in NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503,
505-506 (2nd Cir. 1942) (employees making common cause with fellow employees are 35
engaged in protected activity, even though “the immediate quarrel does not concern
them” because the solidarity thus established assures them, if their “turn ever comes,”
of the support of those “whom they are all then helping.”). Thus, prohibiting the
paramedics from acts of support for the strikers interfered with their own protected
activity and violated Section 8(a)(1).15 40

15 Respondent’s contention (Br. 61-62) that the email did not actually coerce
employees is without merit. The test for a violation of Section 8(a)(1) does not turn on
whether any employees were actually coerced, but whether the conduct had the
reasonable tendency to interfere with the exercise of Section 7 rights. See NLRB v.
Illinois Tool Works, 153 F.2d 811, 816 (7th Cir. 1946).
JD–07-15
21
Also violative of Section 8(a)(1) was the email suggestion that security personnel
would monitor such activities, thus creating the impression that their protected activity
was or would be under surveillance. See Sam’s Club, 342 NLRB 620, 620-621 (2004);
and Caterpillar Logistics, Inc., 362 NLRB No. 49, slip op. 2 (2015).16
5
Respondent asserts (Br. 63-64, 67) that it effectively repudiated the unlawful rule
and the unlawful email. Thus, it allegedly repudiated the old no-solicitation rule by virtue
of its issuance a new rule in January of 2015, which, it asserts, is valid. And it
apologized for the offensive email in a subsequent one in which it stated that it
“disavow[ed] and repudiate[d]” the earlier email. The second email was sent almost 7 10
weeks after the offending one, well after the strike that spawned the offending email.
In order for a repudiation to serve as a defense to an unfair labor practice finding,
it must be timely, unambiguous, specific in nature to the coercive conduct, and
untainted by other unlawful conduct. Passavant Memorial Hospital, 237 NLRB 138 15
(1978); and Fresh & Easy Neighborhood Market, 356 NLRB No. 85, slip op. at 9-10
(2011), enfd. 468 Fed. Appx. 1 (D.C. Cir. 2012). In addition, the repudiation or
disavowal must be adequately disseminated to employees and must contain
assurances that, going forward, the employer will not interfere with the exercise of
Section 7 rights. New Passages Behavioral Health & Rehab, 362 NLRB No. 55, slip op. 20
1-2 (2015) and cases there cited.
Respondent’s disavowals did not meet the standards set forth above. The new
no-solicitation rule was unaccompanied by any admission that the old one was unlawful.
And the disavowal of the email to the paramedics was untimely with no assurance that 25
the Respondent would not engage in other unfair labor practices in the future.
Accordingly, I find that none of the unfair labor practices were repudiated sufficiently to
require dismissal of the complaint allegations dealing with the no-solicitation rule and
the email to the paramedics.
30
The Alleged Section 8(a)(5) and (1) Violations Involving Information Requests
The complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act
by failing to provide information requested by the Union in April and May of 2014.
Paragraph 12(a) and (b) of the complaint identifies this information as copies of the 35

16 Respondent asserts (Br. 62) that there can be no unlawful impression of
surveillance because the suggestion that security personnel were watching for
protected activity was simply a suggestion of open observation. But open observation is
itself unlawful if it gives the impression that the employer is doing something out of the
ordinary to observe protected activity. See Loudon Steel, Inc., 340 NLRB 307, 313
(2003). Here, the Respondent sent an email to the paramedics raising the prospect that
security personnel would be watching them as they engaged in protected activity. The
email itself, which specifically referred to protected activity, amounted to something
more than the ordinary passive observation of public open conduct. Moreover, the
suggestion about surveillance was intertwined with an order to avoid protected activity
that, to the recipient, would not be wise to disregard.
JD–07-15
22
Joint Commission’s surveys for the past 3 years and the “actual survey results delivered
to” Respondent by the Joint Commission, including “any non-public documents and
correspondence from the Joint Commission and any recommendations or deficiencies
identified from the unannounced surveys.” The complaint also alleges a violation of
Section 8(a)(5) and (1) by the Respondent’s failure to provide information requested by 5
the Union on September 12, 2014. Paragraph 12(c) identifies this information as copies
of its staffing agreement with respect to strike replacements, including all underlying
correspondence, notes and other writings with respect to the negotiations of that
agreement. It also identifies as requested information copies of other staffing
agreements relating to temporary employment entered into within the last 3 years.10
An employer has the statutory obligation under Section 8(a)(5) of the Act to
provide, on request, potentially relevant information that a union needs for the
performance of its duties as collective bargaining representative. Where that request is
for information pertaining to employees in the bargaining unit, that information is 15
presumptively relevant and it must be provided. In such circumstances, the employer
has the burden of rebutting the presumption and establishing lack of relevance. The
standard for relevance is a “liberal discovery type standard.” Where the requested
information pertains to employees or matters outside the bargaining unit, the union has
the burden of proving relevance. However, that burden is the same: a “liberal discovery 20
type standard.” Lennox Hill Hospital, 362 NLRB No. 16, slip op. at 7 (2015). Accord:
United Parcel Service of America, 362 NLRB No. 22, slip op. 2-3 (2015). See also
McKenzie-Williamette Regional Medical Center Associates, 362 NLRB No. 20, slip op.
2, quoting NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967) for the notion that the
discovery type standard in these cases requires only “the probability that the desired 25
information was relevant and that it would be of use to the union in carrying out its
statutory duties and responsibilities.”
In addition, it is for the union, not the employer, to decide what information can
be of use to it. See FirstEnergy Generation, LLC, 362 NLRB No. 73, slip op. 7 (2015). 30
And a union need not accept an employer’s representations in bargaining. It is entitled
to verify an employer’s assertions. Finch, Pruyer & Co., 349 NLRB 270, 275-277
(2007), enfd. 296 Fed. Appx. 83 (D.C. Cir. 2008).
Where, as here, an employer raises confidentiality concerns, the employer has 35
the burden of establishing a legitimate claim of confidentiality that would justify refusal to
provide the requested information. Medstar Washington Hospital Center, 360 NLRB
No. 103, slip op. 1, fn. 1 and 4 (2014). See also NLRB v. Detroit Edison, 440 U.S. 301
(1979). The Board has recognized that, in assessing whether an employer has
asserted a legitimate confidentiality interest, it may consider state law on the matter. 40
Borgess Medical Center, 342 NLRB 1105 (2004).
Even if a confidentiality concern is established, however, the employer must offer
to accommodate both its concern and its bargaining obligation, “as is often done by
making an offer to release the information conditionally or by placing restrictions on [its] 45
use . . . . [T]he onus is on the employer because it is in the better position to propose
how best it can respond to a union request for information. The union need not propose
JD–07-15
23
the precise alternative to providing the information unedited.” U.S. Testing Co. v.
NLRB, 160 F.3d 14, 21 (D.C. Cir. 1998). Nor do offers of summaries or alternative
documents reflect the type of accommodation required. Id. at 22. Failure to bargain in
good faith about such accommodation amounts to a violation of Section 8(a)(5). Ibid.
See also Borgess Medical Center, cited above, 342 NLRB at 1106, citing authorities. 5
The Joint Commission Information
Although there is no doubt that staffing was an issue in the parties’ negotiations,
Respondent contends (Br. 78-81) that the Union’s request for the Joint Commission 10
information did not meet the liberal standard of relevance applicable in information
cases. I disagree. As Union Representative Gaffney credibly testified, the Union wanted
more staffing and Respondent wanted less staffing. One of the signs used in the June
picketing specifically mentioned staffing issues as one of the Union’s concerns. The
deficiencies mentioned in the public documents included infection control and surgical 15
services. Both implicated the “probability” that the non-public documents would impact
staffing issues. As Gaffney also testified, those deficiencies arguably supported a view
that more nurses were necessary to ameliorate the deficiencies and thus supported the
Union’s need for the information in bargaining. This is sufficient, under applicable case
law, to establish an inference of relevance.1720
I find, however, that the Respondent has established that the Joint Commission
information requested by the Union qualified as confidential under the Board’s decision
in Borgess Medical Center. The Pennsylvania statute dealing with peer review
confidential information covers the Joint Commission report and its deliberations. This 25
is reflected in O’Neil v. McKeesport Hospital, 48 Pa. D. & C.3d 115 (1987); and Young
v. Western Pennsylvania Hosp., 722 A.2d 153, 156 (1998). Therefore, I find that
Respondent did not violate the Act when it initially refused to turn over the non-public
parts of the Joint Commission report and the underlying documents that were
connected to the report.1830

17 Nor has Respondent rebutted the inference of relevance, as it easily could have
by providing a redacted copy of the Joint Commission documents or otherwise
demonstrating that the deficiencies had nothing to do with staffing issues. Indeed, the
Respondent’s chief negotiator never even viewed the non-public documents that
Respondent claimed were not relevant to the staffing issues raised by the Union.
18 The General Counsel and the Charging Party seek to distinguish Borgess Medical
Center on the ground that the Michigan statute involved in that case established a
broader confidentiality bar than the Pennsylvania statute involved here. G.C. Br. at 11-
12; C.P. Br. at 14. Comparing the statute in this case (footnote 7 above) with the
Michigan statute set forth at footnote 4 of Borgess, 342 NLRB at 1105, I am unable to
make that distinction. The thrust of both statutes is the same; indeed, if anything, it
seems to me that the Pennsylvania statute is broader. Nor do I accept the contention
made in both briefs that Respondent’s claim of confidentiality was too vague. It was
based on the applicable statute, which, in my view, adequately supports the claim.
JD–07-15
24
However, I also find, as did the Board in Borgess Medical Center, that
Respondent failed to meet its burden of showing that it offered to bargain about
accommodations that would meet both its bargaining obligation and legitimate
confidentiality concerns. Gilson’s testimony not only shows that Respondent made no
such offer, but also that Respondent took an adamant and unyielding position on the 5
matter. Gilson took an all or nothing position against revealing any of the information.
Indeed, he admitted he did not even see the Joint Commission report so he had no idea
how the report or its underlying documents could be redacted or edited to accommodate
both whatever confidentiality interests were involved and Respondent’s bargaining
obligation. Nor was any consideration given to other alternatives, such as, for example, 10
seeking the Union’s agreement to preserve confidentiality concerns or turning the
documents over to a mediator or another neutral to make whatever redactions that
would preserve confidentiality interests. See the above discussion of the Circuit Court
opinion in U.S. Testing. In these circumstances, I find that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing to bargain in good faith about 15
accommodations to any confidentiality interests regarding the Joint Commission report
and information.19
The Strike Replacement Information
20
As shown in the factual statement, the Union notified Respondent on September
8 that it would be engaging in a 2-day strike beginning on September 21. Four days
later, Respondent notified its employees that it had concluded an agreement with a
staffing company to provide replacements for the striking nurses and the staffing
company required a 5-day guarantee for the replacements. That same day, the Union 25
requested a copy of the agreement, along with underlying documents related to the
negotiations for that agreement, as well as copies of other agreements Respondent had
reached with providers of temporary nurses in the last 3 years.
No information was provided until about 3 weeks later, after the conclusion of the 30
strike, and, even then, Respondent provided only a redacted copy of the agreement.
The copy provided to the Union included the name of the staffing company, U.S.
Nursing, the confidentiality clause, which had assertedly prevented the Respondent
from providing the agreement to the Union, and a clause setting forth the 5-day
guarantee. None of the other information requested by the Union was ever provided, 35
although Respondent later asserted that it tried unsuccessfully to obtain contracts from

19 Respondent claims (Br. 87-91) that Pennsylvania’s peer review statute not only
establishes its confidentiality defense, but also creates a “privilege” that is waived in
toto, if waived in part, thus precluding any accommodation in this case. But
confidentiality under Board law does not mean that a legal privilege recognizable under
federal law has been established. Its citation of BP Exploration, 337 NLRB 887 (2002)
is inapposite. That case involved the well recognized attorney-client privilege. Id. at
889. No such privilege is involved here. In any event, there would be no waiver even
under Respondent’s theory if, in seeking an accommodation, Respondent obtained the
agreement of the Union to provide some but not all of the information. But Respondent
did not seek such an agreement here.
JD–07-15
25
other suppliers of temporary nurses, as requested by the Union, but was rebuffed by the
other parties to the contracts because of confidentiality clauses similar to the one in the
U.S. Nursing agreement.
There is no serious contention that the Union’s request for information about the 5
5-day guarantee was not relevant.20 The Union wanted assurances that the 5-day
guarantee was not a subterfuge to retaliate against striking nurses by denying them 3
days pay after the announced conclusion of their strike. Thus, information about the 5-
day guarantee directly affected the terms and conditions of employment of the staff
nurses represented by the Union. As the Union stated in one of its information 10
requests, it needed the information in order to properly enforce the anti-discrimination
provisions in the collective bargaining agreement either through grievances or in
bargaining. Indeed, the parties actually discussed the 5-day guarantee issue in
negotiations. Nor was the Union required to accept Respondent’s representations about
the 5-day guarantee and who proposed it. See Finch, Pruyn & Co., cited above, 349 15
NLRB at 275-277 (2007).
Time was of the essence here because of the short time period between the
Section 8(g) strike notice and the strike itself. To be useful in this case, the information
would have had to be provided before the strike ended. And here it was not. The 20
evidence shows that the parties met once before the strike on the issue of the
replacements. Gilson notified the Union of the 5-day guarantee, but did not provide the
agreement that contained the 5-day guarantee or any other information that would have
met the Union’s concerns. In these circumstances, the delay in providing relevant
information could have been prejudicial to the Union. It is settled law that an 25
unreasonable delay in providing relevant information is as much a violation as failing to
provide it at all. See Lennox Hill Hospital, cited above, 362 NLRB No. 16, at slip op. 7.21
Respondent’s production of the redacted copy of the U.S. Nursing agreement
was not only untimely and unreasonably delayed, but it did not meet the Union’s need 30
for the entire agreement. The redacted copy does not even contain the date of the
agreement or the definition of a “Workweek.” Most of the agreement appears to have
been withheld. That part certainly had the potential to shed light on the 5-day guarantee
and its context. It is thus relevant information under well-settled Board law.
35
Respondent asserts that it was, and is, unable to provide the complete
unredacted U.S. Nursing agreement or the other contracts for temporary nurses

20 Respondent concedes that the U.S. Nursing agreement was relevant to the
Union’s bargaining needs, but disputes that the underlying documents leading to that
agreement and copies of other temporary staffing agreements are relevant. See Br. 95-
97. As shown below, I disagree with Respondent as to the relevance of the underlying
documents leading to the U.S. Nursing agreement. I do, however, agree with
Respondent that the other temporary staffing agreements are not relevant.
21 I do not make such a finding here, in view of my broader finding, set forth below,
that Respondent violated the Act by failing to provide a full and complete copy of the
agreement.
JD–07-15
26
because of confidentiality clauses in those agreements. Respondent thus raises a
confidentiality defense to the allegations it failed to provide information about the 5-day
guarantee. First of all, the contractual confidentiality clause in the U.S. Nursing
agreement does not cover the underlying information requested by the Union
concerning the negotiations of the agreement. It refers only to the contract itself. Such 5
underlying information, which the Respondent never provided, is likely to shed light on
the origin and necessity of the 5-day guarantee and is thus relevant to the Union’s
position on whether the strikers could return to work at the end of the 2-day strike. In
these circumstances, the Respondent’s failure to provide this relevant underlying
information cannot be excused by confidentiality concerns.10
Moreover, it is not clear to me that the confidentiality clause in the U.S. Staffing
agreement or in other staffing agreements provides a recognizable confidentiality
interest to defeat an otherwise legitimate information request. These are confidentiality
clauses between private contracting parties; there is no recognizable public interest that 15
is apparent in the context of those agreements that would prevent their disclosure to the
bargaining representative of the employees of one of the contracting parties. There is,
for example, no state statute that governs the information such as was present in the
peer review information discussed above with respect to the Joint Commission request.
Nor can I see any reason why the desire of private parties to keep their contracts 20
confidential, without more, should trump a Union’s need for relevant information.
Moreover, the confidentiality clause in the U.S. Nursing agreement specifically excludes
from its coverage information “required by law.” In my view, this exclusion covers
information required by rulings of administrative agencies, such as the Board, whose
orders are enforceable in U.S. Courts of Appeals. Finally, as I have indicated, the 25
confidentiality clause in the U.S. Nursing agreement does not cover the underlying
documents that led to the agreement and that the Union requested and the Respondent
never provided. But, even if it did, since the confidentiality clause does not insulate the
contract itself from being provided to the Union, it would likewise not insulate the
underlying information from being provided. In sum, I reject Respondent’s attempt to 30
show that confidentiality interests override its bargaining obligation to provide relevant
information with respect to the 5-day guarantee for strike replacements.
Accordingly, I find that Respondent violated Section 8(a)(5) and (1) of the Act by
failing to provide the Union with the underlying documents leading to the U.S. Nursing 35
agreement to provide strike replacements and by failing to provide a copy of the full and
complete U.S. Nursing agreement. I therefore sustain those parts of paragraph 12(c) of
the complaint.
In view of my findings above, I do not believe that the other agreements dealing 40
with temporary employees that the Union requested are relevant to the 5-day
guarantee, which was the Union’s main concern. The Union was free to make the
contention in bargaining that Respondent could have used another temporary service
that perhaps would not have required a 5-day guarantee. But I cannot see how having
copies of such agreements would be of any particular help to the Union in making this 45
contention. Nor is there any suggestion that these agreements dealt with strike
replacements or that the companies involved were capable or in the business of
JD–07-15
27
providing strike replacements. I will therefore dismiss the remainder of paragraph 12(c)
of the complaint.
Conclusions of Law
5
1. By banning off-duty employees from picketing, leafleting and demonstrating in
the exterior areas of its property; by banning and an off-duty duty employee
from leafleting in the first floor lobby of its hospital and threatening that
employee if she did; by maintaining a broad no-solicitation rule; and by
prohibiting employees from supporting their striking fellow employees and by 10
creating in those employees an impression that their union support would be
under surveillance, the Respondent has violated Section 8(a)(1) of the Act.
2. By failing to bargain in good faith with the Union over accommodations
between confidentiality concerns in documents related to the Joint 15
Commission (JCAHO) reports requested by the Union and the Union’s need
for such information, Respondent has violated Section 8(a)(5) and (1) of the
Act.
3. By failing to provide the Union with documents leading to the negotiations of20
the staffing agreement between Respondent and U.S. Nursing to provide
replacements during the Union’s September 2014 strike against Respondent,
and by failing to provide the Union with a full and complete copy of the
agreement, the Respondent has violated Section 8(a)(5) and (1) of the Act.
25
4. The above violations are unfair labor practices within the meaning of the Act.
5. Respondent has not otherwise violated the Act.
Remedy30
Having found that Respondent has engaged in certain unfair labor practices, I
shall order it to cease and desist from such conduct and take certain affirmative action
designed to effectuate the policies of the Act.
35
On these findings of fact and conclusions of law, and on the entire record here, I
issue the following recommended22
ORDER
40
The Respondent, Crozer Chester Medical Center, Upland, Pennsylvania, its
officers, agents, successors and assigns, shall

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
waived for all purposes.
JD–07-15
28
1. Cease and desist from
(a) Banning off-duty employees from picketing, leafleting and demonstrating in
the exterior areas of its property; banning off-duty employees from leafleting in the first 5
floor lobby of its hospital unless they removed body signs supporting their union and
threatening them with retaliation if they did; maintaining a broad no-solicitation rule
that interferes with protected activity; and prohibiting employees from supporting their
striking fellow employees and creating an impression that their union support would be
under surveillance.10
(b) Failing to bargain in good faith with the Union over accommodations between
confidentiality concerns in documents related to the Joint Commission (JCAHO) reports
requested by the Union and the Union’s need for such information.
15
(c) Failing to provide the Union with documents leading to the negotiations of the
staffing agreement between Respondent and U.S. Nursing to provide replacements
during the Union’s September 2014 strike against Respondent, and failing to provide
the Union with a full and complete copy of the agreement.
20
(d) 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.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:25
(a) Bargain in good faith with the Union over accommodations between
confidentiality concerns in documents related to the Joint Commission reports
requested by the Union and the Union’s need for such information.
30
(b) Provide the Union with information requested by it in connection with
negotiations between Respondent and U.S. Staffing regarding the five-day guarantee
for strike replacements in September 2014, and provide the Union with a full and
complete copy of the agreement.
35
(c) Within 14 days after service by the Region, post, at its facility in Upland,
Pennsylvania, copies of the attached notice marked “Appendix.” 23 Copies of the
notice, on forms provided by the Regional Director for Region 4, after being signed by

23 If this order is enforced by a judgment of a United States court of appeals, the words
in the notice reading “Posted by Order of the National Labor Relations Board” shall read
“Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.”
JD–07-15
29
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 email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent 5
customarily communicates with employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a 10
copy of the notice to all current employees and all former employees employed by the
Respondent at any time since June 6, 2014.
(d) 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 15
to the steps that the Respondent has taken to comply.
It is further ORDERED that the complaint is dismissed insofar as it alleges violations not
specifically found.
20
Dated, Washington, D.C. May 13, 2015
____________________25
Robert A. Giannasi
Administrative Law Judge
JD–07-15
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT ban off-duty employees from picketing, leafleting or demonstrating in the
exterior areas of our property; WE WILL NOT ban off-duty employees from leafleting in the
first floor lobby of our hospital unless they remove body signs supporting their union or threaten
them with retaliation if they do; WE WILL NOT maintain a broad no-solicitation rule that
interferes with protected activity, and WE HAVE rescinded that rule; and WE WILL NOT
prohibit employees from supporting their striking fellow employees and create an impression
that their union support is under surveillance.
WE WILL NOT fail to bargain with the Union in good faith over accommodations between
confidentiality concerns in documents relating to the Joint Commission (JCAHO) reports
requested by the Union and the Union’s need for such information.
WE WILL NOT fail to provide to the Union documents leading to the negotiations of the
staffing agreement between us and U.S. Nursing to provide replacements during the Union’s
September 2014 strike; and WE WILL NOT fail to provide the Union will a full and complete
copy of the agreement.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL bargain in good faith with the Union over accommodation between confidentiality
concerns in documents related to the Joint Commission reports requested by the Union and the
Union’s need for such information
WE WILL provide information requested by the Union in connection with negotiations between
us and U.S. Nursing regarding strike replacements in September 2014;and WE WILL provide
the Union with a full and complete copy of the agreement.
JD–07-15
CROZER CHESTER MEDICAL CENTER
(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.
615 Chestnut Street, 7th Floor, Philadelphia, PA 19106-4404
(215) 597-7601, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/04-CA-130177 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, (215) 597-5354.