Mt. Clemens General Hospital

National Labor Relations Board - Board Decisions

Mar 31, 2005

344 N.L.R.B. 450 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 54
450
Mt. Clemens General Hospital and RN Staff Council,
Office and Professional Employees International
Union, Local 40, AFL–CIO. Case 7–CA–46087
March 31, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On January 7, 2005, Administrative Law Judge C.
Richard Miserendino issued the attached decision. The
Respondent filed exceptions and a supporting brief.1 The
General Counsel filed cross-exceptions and a supporting
brief.2
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,3 and conclusions, and to adopt the recommended
Order as modified and set forth in full below.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Mt. Clemens General Hospital, Mt. Clem-
ens, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from

1 As discussed below, on March 15, 2005, the Respondent withdrew
its exceptions to the judge’s findings.
2 On March 25, 2005, the General Counsel filed a motion to with-
draw his exception to the judge’s decision to dismiss the allegation that
the Respondent violated Sec. 8(a)(5) and (1) by failing and refusing to
furnish to the Union information about nonunit employee Jodie
Zablowski, including corrective actions, verbal warnings, and griev-
ances issued against her. We grant that motion. Consequently, the
only exception before the Board is the General Counsel’s exception to
the judge’s failure to conform his recommended Order and notice to his
finding that the Respondent violated Sec. 8(a)(5) and (1) by refusing to
furnish to the Union Joy Johnson’s personnel file, the names and posi-
tions of interns and externs, and the number of general beds that were
added to specialized hospital units.
3 The Respondent initially excepted to the judge’s finding that it
violated Sec. 8(a)(3) and (1) by refusing to rehire Union President
Kasper-Monczk because of her union activities. On March 10, 2005,
the General Counsel notified the Board that the parties wished to settle
that allegation. The General Counsel simultaneously moved the Board
to sever and remand that allegation to the Regional Director. On March
15, 2005, the Respondent withdrew its exception to the judge’s finding.
On March 17, 2005, the Board granted the General Counsel’s motion to
sever and remand that allegation. Consequently, that issue is no longer
before the Board.
4 We have modified the judge’s recommended Order to conform to
his unfair labor practice findings. Specifically, we shall order the Re-
spondent to furnish the information that it unlawfully refused to furnish
to the Union. Additionally, we shall delete the provisions in the rec-
ommended Order and notice regarding the Respondent’s refusal to
rehire Kasper-Monczk because that issue is no longer before us.
We have also substituted a new notice for that of the judge.
(a) Failing and refusing to furnish to the RN Staff
Council, Office and Professional Employees Interna-
tional Union, Local 40, AFL–CIO (the Union), upon
request, Joy Johnson’s personnel file, the names and po-
sitions of interns and externs, and the number of general
beds that were added to specialized hospital units, all of
which information is relevant and necessary for the Un-
ion to perform its statutory duties.
(b) In any like or related manner interfering with, re-
straining, 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 purposes of the Act.
(a) Furnish to the Union the information set forth
above.
(b) Within 14 days after service by the Region, post at
its facility in Mt. Clemens, Michigan, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent since March 28, 2003.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

5 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MT. CLEMENS GENERAL HOSPITAL 451
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail or refuse to furnish to the RN Staff
Council, Office and Professional Employees Interna-
tional Union, Local 40, AFL–CIO (the Union), upon
request, Joy Johnson’s personnel file, the names and po-
sitions of interns and externs, and the number of general
beds that were added to specialized hospital units, all of
which information is relevant and necessary for the Un-
ion to perform its statutory duties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL furnish the Union with the information set
forth above.
MT. CLEMENS GENERAL HOSPITAL
Ingrid L. Kock, Esq., for the General Counsel.
John P. Hancock Jr., Esq., of Detroit, Michigan, for the Re-
spondent.
Scott A. Brooks, Esq., of Detroit, Michigan, for the Charging
Party Union, RN Staff Council, OPEIU, Local 40.
DECISION
STATEMENT OF THE CASE
C. RICHARD MISERENDINO, Administrative Law Judge. This
case was tried in Detroit, Michigan, on May 10, and July 7–8,
2004. The consolidated amended complaint alleges that since
August 18, 2003, Mt. Clemens General Hospital (Respondent
or Hospital) has violated Section 8(a)(3) of the Act by refusing
and failing to rehire Vicki Kasper, a former employee and the
current president of the RN Staff Council, Office and Profes-
sional Employees International Union, Local 40, AFL–CIO
(Charging Party Union or Union). It further alleges that the
Respondent violated Section 8(a)(5) of the Act by unilaterally
changing the terms of a tax sheltered annuity program without
bargaining with the Charging Party Union and by failing and
refusing to provide certain information requested by the Union.
The Respondent’s timely answer denied the material allega-
tions of the amended consolidated complaint. All parties have
been afforded a full opportunity to appear, present evidence,
examine and cross-examine witnesses, and file posthearing
briefs.
On the entire record, including my observation of the de-
meanor of the witnesses, as well as my credibility determina-
tions based on the weight of the respective evidence, estab-
lished and admitted facts, inherent probabilities, and reasonable
inferences drawn from the record as a whole, and after consid-
ering the briefs filed by the General Counsel, the Respondent,
and the Charging Party Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is an acute care hospital lo-
cated in Mt. Clemens, Michigan. In the 12-month period ending
December 31, 2003, the Respondent received gross revenues in
excess of $250,000 and purchased goods valued in excess of
$50,000 from points located outside of the State of Michigan,
which were shipped directly to its Mt. Clemens, Michigan facil-
ity. The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The Respondent admits and I find that the RN Staff Council,
OPEIU, AFL–CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
1. Did the Respondent unlawfully refuse to rehire Vicki
Kasper-Monczk?
2. Did the Respondent unlawfully change the terms of a tax
shelter annuity (TSA) pension plan without affording the Union
a meaningful opportunity to bargain over the same?
3. Did the Respondent unlawfully fail and refuse to provide
the Union with information concerning the following: changes
to the tax shelter annuity; Jodie Zablowski’s personnel file;
nurse externs and nurse interns; Joy Johnson’s personnel file;
and the reclaiming of in-patient beds?
B. The Refusal to Hire Vicki Kasper
1. Facts
Vicki Kasper-Monczk (Kasper) is a registered nurse and the
president of the Charging Party Union. She was employed by
the Respondent from 1992 through July 11, 2003, when she
voluntarily resigned.1
In 2000, while employed by the Respondent, Kasper volun-
tarily transferred from a full-time RN position to a “contingent”
B nurse position. Under the collective-bargaining agreement, a
contingent B nurse is required to work a minimum of 16 hours
per 28-day schedule, including 8 weekend hours. (GC Exh. 2,
art. 9;Tr. 28, 420.) Up until January 2003, contingent nurses
were allowed to bid on any shift not taken by a full-time or
regular part-time nurse. Once awarded a shift, the successful
bidder would retain that shift. (Tr. 29.)
a. Kasper is assigned to the night shift
and goes out on union leave
In January 2003, the Respondent discontinued allowing con-
tingent nurses to bid shifts and to self-schedule themselves.
Instead, it began assigning them to shifts on a variable basis.2

1 Kasper remained the Union president, even though she resigned her
employment with the Respondent. (Tr. 66.)
2 The change prompted the Charging Party Union to file a grievance
and an unfair labor practice charge alleging that the Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD452
Kasper, who had routinely worked the day shift, was assigned
by the Respondent to work the afternoon and midnight shifts.
(Tr. 30.) A short time later, she phoned Michael Goodwin,
president of the Office and Professional Employees Interna-
tional Union, AFL–CIO, CLC, asking him to request a union
leave of absence for her.3 According Kasper, she was unable to
work midnight shifts because as union president she needed to
attend meetings during the day and because she has a special
needs child.4 (Tr. 30.)
On April 18, 2003, Goodwin wrote to Priscilla Horde, the
Respondent’s director of employee relations, “requesting a
leave of absence for Vickie Kasper due to union business for
six months commencing as soon as it can be arranged.” (GC
Exh. 8.) Goodwin also stated that a 6-month extension might
be requested at the end of the initial 6-month period. Horde
received the letter on April 25.
Horde promptly responded on April 30, 2003, informing
Goodwin that Kasper would be granted the 6-month union
leave of absence, effective May 1, 2003, and that a request for
an extension would be considered when made. (GC Exh. 12
and 11.)
In the meantime, on April 24, 2003, a full-time, day shift,
ICU RN position was posted. On April 30, the date that the
posting closed, Kasper applied for the position indicating that
she needed full-time employment. (GC Exh. 9.) Kasper took
the union leave of absence, however, and did not pursue the job
opening. (Tr. 68.)
On June 10, the Respondent denied the third step grievance
concerning the contingent nurse shift change. The Charging
Union appealed the matter to arbitration. Subsequently, the
Board’s Regional Director, the Respondent, and the Charging
Party Union agreed that the pending ULP charge should be
deferred to an arbitrator for decision under Collyer Insulated
Wire, 192 NLRB 837 (1971).5
b. Kasper resigns and reapplies for a job
In the meantime, by letter, dated June 11, 2003, Kasper vol-
untarily resigned her employment with the Respondent, stating
“[t]his is to inform you that effectively [sic] immediately I am
tendering my resignation due to the denial of Step III grievance
#03-31 by MCGH, (contingents denied day shifts and self
scheduling) and my inability to work midnights.” (Tr. 38; GC
Exh. 14.)

breached the collective-bargaining agreement and failed to bargain with
the Union by making a unilateral change.
3 While on union leave, Kasper would be paid by the Union for two
8-hour days per 28-day pay period. (Tr. 39, 63.)
4 In addition, the evidence shows that although Kasper had a Michi-
gan address, she actually was residing in Texas, and had been traveling
back and forth to work in Michigan since November 2001. (Tr. 84–
85.)
5 On March 15, 2004, the arbitrator sustained the grievance and is-
sued an award finding that “[t]he collective bargaining agreement was
violated when the employees’ working conditions were unilaterally
changed. The parties should bargain about these changes and what
remedy should be provided for those affected. . . . The employer’s
refusal to bargain on the changes for contingent nurses constituted an
unfair labor practice.” (GC Exh. 50, p. 48.)
One month later, on August 18, Kasper faxed an employ-
ment application to Horde seeking to return to work for the
Respondent. Kasper’s application did not indicate that she was
applying for any particular job opening. (GC Exh. 15.) At a
grievance meeting 2 days later, Horde told Kasper she had re-
ceived the application, but wanted to know if Kasper had given
2 weeks’ notice. (Tr. 42, 43.) Kasper told her that she had
given 4 months notice, alluding to the fact that her union leave
was not due to expire until November 2003. (Tr. 43.) Horde
did not deny nor dispute that this conversation occurred or the
substance of it.
c. The September 30 discussion
In late September 2003, Union Vice President Sulflow gave
Kasper a copy of a job posting for a part-time RN position
(#04122) in the telemetry unit.6 (GC Exh. 16.) On September
26, Kasper faxed a copy of her resume to the human resources
department in application for this posted position.7 (GC Exh.
17.)
On September 30, as Kasper and Sulflow were leaving a
grievance meeting, they saw a list of openings that were posted
on a bulletin board outside of the human resources department.
There are different recollections of the sequence and content of
the discussion that followed.
(i) Kasper’s recollection
Kasper testified that flexible shifts were eliminated from the
contract during the last round of negotiations, so she and
Sulflow asked to speak to Horde. (Tr. 46–47.) Horde told
them that she would look into the matter at which point Sulflow
pointed out that there were many job openings for which
Kasper was qualified, and questioned why Kasper had not been
hired for any of the jobs. According to Kasper, Horde stated
that there was some question as to Kasper’s commitment to the
organization. (Tr. 48.) Kasper testified that she reminded
Horde that she had been a long-term employee and that she was
the union president. (Tr. 48, 70.) Kasper testified that at that
point Sulflow asked Horde “is [Kasper] was eligible for rehire?
And Priscilla said I checked her file myself personally, yes, she
is. And then Sandra said well then why hasn’t she been hired?
And [Horde] said I don’t do the hiring and I don’t do the inter-
views.” (Tr. 48; 67.)
Kasper stated that Horde also asked her why she had re-
signed and Kasper responded, “I resigned because I was getting
ready to get fired for calling in and I wanted, I didn’t want that
on my resume so [Horde] said they weren’t gonna fire you.
You were on union leave. And I said, well, I couldn’t stay on
union leave because I couldn’t work if I was on union leave.”8
(Tr. 49, 63, 87.)

6 The posting period ran from September 25—October 2, 2003.
7 Kasper was applying from the “outside.” The evidence shows that
when a posted job is not filled by a current nurse employee, it remains
open and can be filled from the outside by a nonemployee applicant.
(Tr. 39–40, 361.) There is no evidence whether position #04122 was
ever filled from the inside.
8 Kasper testified that after she resigned she applied for “traveling
nursing” jobs. These are assignments of limited duration (maybe 13
weeks) around the United States that would have required her to be
MT. CLEMENS GENERAL HOSPITAL 453
Kasper testified that she wanted a copy of the open positions
list, “[s]o we walked back into the, the human resources, went
up to the desk of Assistant Recruiter Yvette Dominguez and
asked her for the open positions, which they would let us look
at but then it became a conflict about whether or not they were
gonna give us a copy of those open positions.” (Tr. 49.) She
stated that eventually Horde told Dominguez to give them a
copy. (GC Exh. 18.)
(ii) Sulflow’s recollection
According to Sulflow, after she and Kasper left the grievance
meeting, they went to the job postings bulletin board in the
human resources reception area to see which jobs were open to
outside candidates. (Tr. 230.) Sulflow thought it would be
useful for Kasper to have the latest list of openings for external
candidates. She testified that she asked Ms. Dominguez for a
copy of the external candidate list. (Tr. 230.) As Horde passed
by she overheard the conversation and asked Sulflow why she
wanted the list, since Sulflow receives all the job postings.
Sulflow explained that she could not tell from the information
that she received which openings were outside candidate open-
ings. Although Horde was reluctant to provide a copy of the
list, she eventually agreed to do so. (Tr. 231.)
Sulflow testified that she, Kasper, and Horde then stepped
into the hallway where she asked Horde why Kasper “who has
been registering an interest in positions, for several months, had
never received a call from the Hospital and yet, there was an
extensive list of openings that were open to external candi-
dates.” (Tr. 233.) According to Sulflow, Horde stated that the
Hospital was concerned about Kasper’s commitment to the
organization. Sulflow testified that at that point Kasper inter-
jected stating “I have only worked at Mt. Clemens General
Hospital since I became a Nurse. I am President of the Union.
I have traveled 1,200 miles to come and meet my commitment
to work. What do you mean by you are questioning my com-
mitment to the organization?” (Tr. 233.) Sulflow stated that
Horde told them that Kasper left without giving notice9 (Tr.
233) to which Kasper replied, “how could I give notice? I was
on leave, a union leave when I resigned from my position. I
had to resign my position because, if I did not, I was going to
be fired due to the fact that I was being deliberately scheduled
for midnights—when I have worked here 12 years and every-
body knows I could not work midnights.” (Tr. 234.)
Sulflow testified that when she reiterated that Kasper was
committed to working for the Hospital, Horde told her that she
did not do the hiring. (Tr. 234.) Sulflow asked Horde if she

away from home. (Tr. 64.) Kasper did not accept a traveling nurse job
because it would have adversely impacted her ability to fulfill her union
president duties, particularly her ability to participate in collective-
bargaining negotiations at the neighboring Crittendon Hospital. (Tr.
82.) She also testified that if she had accepted employment at any other
metro Detroit area hospitals she would have been unable to fulfill her
union duties because she could not get time off work for union duties.
She therefore did not apply to any other hospitals for employment.
That being so, it is difficult to understand why Kasper resigned, rather
than pursue a full-time position with the Respondent.
9 Sulflow later testified that during this conversation Horde did not
mention any concerns about Kasper not meeting employment schedules
or fulfilling her hourly contingent commitment. (Tr. 273.)
would tell the management team that Kasper was interested in
returning. Sulflow testified that when it appeared to her that
the reason that Kasper was not being considered for rehire was
because she did not give a 2-week notice, she (Sulflow) asked
Horde if Kasper was eligible for rehire? Specifically, she testi-
fied “I stated, at that time, what is her eligibility for rehire? It
just dawned on me out of the blue and Priscilla said, well, I
happen to have just checked on that and she is eligible for re-
hire.” (Tr. 235, 240.)
(iii) Horde’s recollection
Horde concurred that a discussion began at the front desk
when Sulflow asked Dominguez for a copy of the master list of
job openings. Dominquez refused to give Sulflow a copy of the
list because she was not sure that it was accurate. (Tr. 361.)
Horde stated that she became involved when Dominguez turned
to her for guidance. When she told Sulflow that she had not
reviewed the list and that it might not be accurate, Sulflow
accused her of holding back the list. (Tr. 362.) Eventually,
Horde told Dominguez to give Sulflow a copy with the under-
standing that it might not be accurate.
Horde stated that at that point Sulflow asked to speak to her
in the hallway. Outside in the hallway, Sulflow told Horde that
Kasper had unsuccessfully applied for several positions. (Tr.
362.) Horde testified that
I said to her, well, why isn’t she able to get a position.
And she goes, well, you know, because she resigned. And
I said, and that’s an issue that I would want to ask you
guys. Why did she resign? And then, Sandra went on to
explain, well, she couldn’t work those hours. You know
about her son, and so on, and so forth. And that was that
discussion.
At some point in time, she must have asked me
again—well, because she gave notice or something. She
was saying.
Why aren’t we allowing her to get a job? And I told
her, I said, I don’t have any idea but I will be willing to
look into the Personnel file to check it out and let you
know. And that was pretty much the extent of the conver-
sation. (Tr. 363.)
Horde denied telling Kasper and Sulflow at that time or at any
other time that Kasper was eligible for rehire. (Tr. 359, 363.)
(iv) Credibility resolution
The evidence viewed as whole shows that on September 30,
2004, Kasper, Sulflow and Horde had a conversation in the
hallway outside the human resources department during which
they discussed Kasper’s commitment to the Hospital, the rea-
sons she resigned her employment, and whether she gave 2-
weeks notice of her intent to resign.
At issue is whether Horde told Sulflow and Kasper that
Kasper was eligible for rehire. Sulflow testified that during the
course of the conversation she asked Horde if Kasper was eli-
gible for rehire and Horde answered affirmatively. Sulflow
testimony is corroborated by Kasper. It is also consistent with
content of the conversation. Horde’s denial stands alone.
Sulflow’s testimony on this point is credible for several rea-
sons. First, it is corroborated by Kasper. Next, the unrebutted
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD454
evidence shows that Horde had a reason and opportunity to
review Kasper’s eligibility for rehire prior to September 30,
2003. Horde had been in possession of Kasper’s employment
application for over a month and had discussed with Kasper her
interest in returning to work at the August 20 grievance meet-
ing. At that time, Horde inquired whether Kasper had given 2
weeks’ notice when she resigned. Thus, the evidence viewed
as a whole makes it more likely, than less, that Horde checked
Kasper’s personnel file long before September 30 in order to
confirm whether Kasper had given 2 weeks’ notice when she
resigned.
In addition, the unrebutted evidence shows that on Septem-
ber 26, 2003, Kasper specifically applied for job opening
#04122 by faxing a copy of her resume to the human resources
department. (GC Exh. 16.) Thus, Horde had an additional
reason and another opportunity to check Kasper’s personnel file
prior to the September 30 conversation.
Given her duties and responsibilities as human relations di-
rector, there is an expectation that Horde would check Kasper’s
file. Indeed, Horde testified that upon receipt of an application
for reemployment, she typically would ascertain whether the
employee was eligible to return to work and if so she would
send the application on to the department where the vacancy
existed. (Tr. 365.)
Finally, Horde did not state that she never checked Kasper’s
personnel file prior to September 30, 2003. Rather, she testi-
fied that she first saw a document indicating that Kasper was
ineligible for rehire after the September 30 discussion. (Tr.
356, 359.) While that may be true, it is conceivable that Horde
checked the personnel file prior to September 30, but the file
did not contain any documentation at that time indicating that
Kasper was ineligible for rehire.
In contrast, Horde’s uncorroborated denial is implausible. It
is difficult to believe that more than 30 days after she received
and discussed the employment application with Kasper, she
would not have checked the personnel file of the union presi-
dent to determine her eligibility for rehire. If she had seen
documentation in the file indicating that Kasper was not eligi-
ble for rehire, it is difficult to believe that Horde would have
withheld that fact from Sulflow and Kasper during the conver-
sation in the hallway. Moreover, Horde’s rendition of the dis-
cussion was less precise and somewhat rambling in comparison
to the testimony of Sulflow.
Accordingly, I credit Sulflow’s testimony, as corroborated
by Kasper, that Horde told them on September 30 that she had
checked Kasper’s personnel file and had determined that
Kasper was eligible for rehire.
d. Kasper is not rehired
Later that day, on September 30, Kasper sent Horde a letter
applying for 10 job openings on the list that she received from
Horde. (GC Exh. 19.) Among them was the part-time after-
noon position in the telemetry unit that she specifically had
applied for 4 days earlier. Horde testified that after receiving
the letter, she subsequently checked Kasper’s personnel file and
saw for the first time an employee termination notice indicating
that Kasper was ineligible for rehire. (Tr. 363; R. Exh. 2.)
Horde stated that she phoned Sulflow telling her that Kasper
was ineligible for rehire. (Tr. 236.) After questioning Horde
on how Kasper could be eligible one day and not the next,
Sulflow phoned Kasper to tell her about her phone call with
Horde and the reason given for not offering her a position. (Tr.
51, 236.)
On October 3, 2003, Kasper wrote to Horde authorizing
Sulflow to pick up her personnel file. She also stated:
For the record I would like to speak to the reason MCGH has
deemed me not fit for rehire. The reason given was my not
giving MCGH a two week notice. As you are aware I was on
union leave until October and I resigned in June. It would
seem my waiting to resign in October would have made it
more difficult for the hospital to fill my position. As it is, by
my resigning in June while not expected back to MCGH until
October would have made it more difficult for the hospital to
fill my position. As it is, by resigning in June while not ex-
pected back to MCGH until October gave MCGH the advan-
tage of filing my position.
(GC Exh. 20.)
On the same day, October 3, Sulflow sent an email to Horde
asking her to provide in writing the reemployment status of
Kasper and the documentation used to support her rehire status.
(Tr. 237; GC Exh. 46.)
On October 14, 2003, Horde responded as follows:
Upon review of our records it is identified that Ms. Kasper re-
signed effective as of June 11, 2003 (see attached.) There-
fore, consistent with the Hospital’s Termination of Employ-
ment Policy, she is not eligible for rehire.
(GC Exh. 47.)
Notably, Horde’s letter did state that Kasper was ineligible for
rehire because of any prior disciplinary actions or her inability
to work scheduled hours. Nor did Horde provide any documen-
tation other than the resignation letter.
On October 24, Kasper wrote to Horde revoking her resigna-
tion on the grounds that the shift change violated the Act and
the collective-bargaining agreement. (GC Exh. 21.)
2. Analysis and findings
Paragraph 11 of the amended complaint alleges that on Au-
gust 18, 2003, the Respondent refused to hire its former em-
ployee, Vickie Kasper.
a. The legal standard
The General Counsel asserts that this case should be decided
in accordance with FES, 331 NLRB 9 (2000). There, the Board
set forth the analytical framework for deciding refusal-to-hire
and refusal-to-consider cases. To meet his burden of proof in a
discriminatory refusal-to-hire case, the General Counsel must
show:
(1) that the respondent was hiring, or had concrete plans to
hire, at the time of the alleged unlawful conduct; (2) that the
applicant had experience or training relevant to the announced
or generally known requirements of the positions for hire, or
in the alternative that the employer had not adhered uniformly
to such requirements, or that the requirements were them-
selves pretextual or were applied as a pretext for discrimina-
MT. CLEMENS GENERAL HOSPITAL 455
tion; and (3) that antiunion animus contributed to the decision
not to hire applicants.
If the General Counsel meets this initial burden of proof, the
burden shifts to the respondent to show that it would not have
hired the alleged discriminatees even in the absence of their
union activities or affiliation. If the respondent asserts that the
applicants were not qualified for the available positions, it has
the burden to show at the hearing on the merits that the appli-
cants did not possess the specific qualifications the position
required or that others (who were hired) had superior qualifica-
tions, and that it would not have hired the alleged discrimina-
tees even in the absence of their union support or activity. 331
NLRB at 12.
The Respondent asserts that the analysis set forth in Wright
Line, 251 NLRB 1083 (1980), should be applied in this case. It
argues that the General Counsel must show that Vicki Kasper’s
union activity was a motivating factor in the Respondent’s de-
cision not to rehire her. It asserts that at that point the burden
shifts to the Respondent to show that it would not have rehired
Kasper even in the absence of her union activities.10
The Charging Party Union asserts that NLRB v. Ford Radio
& Mica Corp., 258 F.2d 457 (2d Cir. 1958), provides the essen-
tial elements for deciding this case and under NLRB v. Fluor
Daniel, Inc., 161 F.3d 953 (6th Cir. 1998), the General Counsel
must establish two elements to carry its initial burden: anti-
union animus and the occurrence of a covered action—for ex-
ample, a particular discharge, or a particular failure to hire.
The instant case does not fit neatly into either the FES or
Wright Line framework. FES typically is applied in cases
where the employer is not represented by a union and there are
several job applicants affiliated with a union that have applied
for a job vacancy or vacancies, but were not hired or considered
for hire. In contrast, as the Board noted in FES, that in a typical
Wright Line case, the alleged discriminatee generally is in the
employer’s work force and the question centers on why was he
removed from the workforce. Here the Respondent has an
established bargaining relationship with a union and the alleged
discriminatee is a former long term employee and also the un-
ion president, who applied and was not rehired for a posted
vacancy.
There are some refusal to rehire cases, however, which pre-
date FES, in which the Wright Line standard was applied with
Board approval under circumstances similar to this case.

See
National Steel & Shipbuilding Co., 324 NLRB 1114, 1117
(1997) (General Counsel’s initial burden satisfied by ample
evidence of animus directed specifically toward former union
steward who had filed numerous grievances and was known for
her stridency on behalf of the union); Richardson Bros. Co.,

10 The Respondent argues on p. 8, fn. 8 of its posthearing brief that
Kasper had no preference over current employees who applied for
vacancies and that the only other available positions were on the mid-
night shift, which Kasper could not work. It therefore argues that there
were no positions available that Kasper would have taken. Contrary to
the Respondent’s assertions, there were numerous posted vacancies on
the day and afternoon shifts that Kasper specifically applied for and
was qualified to fill, which remained open after she applied for them.
See GC Exhs. 18, 19, and 56.
312 NLRB 534 (1993) (General Counsel’s initial burden show-
ing employer unlawfully refused to rehire known union activist
satisfied by evidence of general animus based on numerous
other violations of the Act, including threats of plant closure
and threatened refusal to bargain and other violations of Sec.
8(a)(1), (3), and (4).)
Under the circumstances of this case, I find that the Wright
Line standard is more appropriate. The single applicant is a
former employee of a unionized employer, and is also the union
president. As the evidence shows at the time of application
there were several vacant posted positions for which she was
qualified to fill.
b. The General Counsel’s evidence
It is undisputed that Vicki Kasper worked for the Respondent
as a licensed registered nurse for 11 years before voluntarily
resigning on June 11, 2003. (GC Exh. 17.) It is also undis-
puted that Kasper is, and has been since 1998, the union presi-
dent, and in that capacity has participated in collective-
bargaining negotiations, grievances, and arbitrations on behalf
of unit members. The credible evidence further shows that on
August 18, 2003, Kasper applied for reemployment with the
Respondent and that there were several posted job openings
that she was qualified to fill. In addition, on September 30,
2003, Kasper specifically applied for 10 job vacancies any of
which she was qualified to work. (GC Exh. 19, 18, and 56.)
Thus, there is ample evidence showing that the first three
prongs of Wright Line standard and the first two prongs of FES
standard have been satisfied.
Regarding animus, the General Counsel asserts that general
animus is established based on the Respondent’s unlawful con-
duct in the prior case of Mt. Clemens General Hospital, 335
NLRB 48 (2001), enfd. 328 F.3d 837 (6th Cir. 2003). There,
the Board affirmed the administrative law judge’s findings and
conclusions that in 1999 the Respondent violated Section
8(a)(1) of the Act by requiring nurses to remove overtime pro-
test buttons from their nurses’ uniforms. I do not agree that
general animus can be established here based on the prior case
for the following reasons.
Where a prior unfair labor practice violation has been used to
establish animus in a pending case, the events in the prior case
typically have occurred close in time and were often connected
to the events underlying the alleged violation in the pending
case. In addition, the prior case animus was typically accom-
panied by independent evidence of animus in the pending case.
For example, in Stark Electric, Inc. (Stark II), 327 NLRB
518 (1999), the Board affirmed the administrative law judge’s
findings and conclusions that in March 1996 the Respondent
failed and refused to hire five union electricians. In addition to
independent evidence of animus toward the five Stark II dis-
criminatees, the Board found animus based on an unlawful
derogatory statement made by the employer in May 1996 to a
job applicant about the five Stark II discriminatees in the prior
case of Stark Electric, Inc., (Stark I), 324 NLRB 1207 (1997).
However, there, unlike here, the circumstances demonstrating
animus in the prior case were closely related in time and factu-
ally connected to the circumstances in the pending case. See
also, Tama Meat Packing Corp. v. NLRB, 575 F. 2d 661, 662–
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD456
663 (8th Cir. 1978) (evidence adduced in 1975 unfair labor
proceedings to establish animus in 1976 discharge proceeding
was proper because of close proximity in time and because the
animus in the prior adjudication was supported by other evi-
dence of animus in the case pending); NLRB v. Clinton Packing
Co., 468 F.2d 953, 954 (8th Cir. 1972) (evidence of employer’s
prior unfair labor practice could be used to demonstrate animus
in pending case because all the activities complained of in the
prior and pending case occurred within approximately a 1-year
period and there was other evidence of animus in the case pend-
ing).
In the prior Mt. Clemens case, the unlawful prohibition
against wearing the union protest buttons took place in October
1999, whereas in the instant case the alleged unlawful refusal to
rehire took place in August/September 2003. The underlying
events in the instant case therefore are 4 years removed from
those in the prior case and also there is no factual connection
between them. I therefore decline to infer general animus in
the present case based on unlawful conduct in the prior case.
The General Counsel also asserts that general animus should
be inferred from a comment made by the administrative law
judge in the prior case that after the Union took over in 1999
“the problems between the parties have escalated primarily
because the incumbent union leadership has become more ag-
gressive and vigilant in its defense of employee rights.” Mt.
Clemens Hospital, supra, 335 NLRB at 49. Aside from being
dicta, the judge’s remark characterizes the Union’s conduct and
not the Respondent’s conduct and therefore falls short of sup-
porting a reasonable inference of animus.
In addition, and as recently as the fall 2003, the parties to
this proceeding (i.e., the General Counsel, the Charging Party
Union, and the Respondent) agreed to defer to arbitration under
Collyer Insulated Wire, 192 NLRB 837 (1971), an unfair labor
practice charge, which was also the subject of a grievance as-
serting that the Respondent violated the collective-bargaining
agreement and failed to bargain in good faith by unilaterally
changing the hours of contingent nurses’ shifts and work
schedules. The Board has held that deferral is only appropriate
where, among other things, there is no evidence that the em-
ployer is hostile to the exercise of protected statutory rights by
its employees. Branch International Services, 327 NLRB 209,
218 (1998); Textron, Inc., 1209, 1210 (1993). Thus, the evi-
dence supports a reasonable inference that on or about the same
time that the Respondent refused to rehire Vicki Kasper, all of
the parties in the instant case were in agreement that the Re-
spondent was not hostile to the exercise of the employees’ pro-
tected statutory rights. Otherwise, deferral under Collyer
would have been improper. Thus, I find that the General Coun-
sel’s reliance on the prior case falls short of establishing gen-
eral animus in the instant case.11

11 Nor is there any evidence, or argument, that the alleged refusal to
bargain/refusal to provide information violations in this case demon-
strate animus toward the Union or its officers or its members. See
Diamond Detective Agency, 339 NLRB 443 (2003) (employer’s failure
to bargain in good faith with Union in violation of Sec. 8(a)(5) not
necessarily evidence of the employer’s union animus); Denver Post
Corp., 328 NLRB 118 fn. 2 (1999) (unilateral promotion of apprentices
The General Counsel asserts, however, that direct evidence
exists of specific animus towards Kasper’s union activities. In
support of this assertion, it relies exclusively on testimony by
Employee Relations Director Priscilla Horde that in April 2003,
Kasper’s supervisor, Clinical Manager Kimberly Gainer and
her boss, Director of Emergency and Critical Care Services,
Susan Durst, asked Horde whether there was a basis for termi-
nating Kasper after she failed to attend a conscious sedation
training session on April 21, 2003. According to Horde, she
told the two supervisors that she needed to review Kasper’s
overall record and she needed to know what disciplinary stan-
dard was being applied by managers to contingent nurses for no
show/no calls. (Tr. 353.) In response to a follow-up question,
Horde testified that “Vickie was certainly president of the Un-
ion and her actions were looked at you know with every staff
member.” (Tr. 410.)
In its posthearing brief at page 27, the General Counsel ar-
gues that the above-quoted statement shows the “Respondent’s
intense awareness of Kasper’s status with the Charging Union
and that she was under additional scrutiny as such.” I disagree.
The evidence viewed as a whole shows that Horde cautioned
the managers to determine whether there was a standard being
applied to all contingent nurses with respect to corrective ac-
tions for no call/no show incidents and then to assess Kasper’s
circumstances by applying the same standard to her. There is
no evidence that in the course of counseling the managers
Horde sought to treat Kasper any better or worse than any other
employee because of her position with the Union or that Horde
made any comments implying hostility toward Kasper because
of her union activities. Compare, Bryant & Stratton Business
Institute, 321 NLRB 1007,1031 (1996) (manager’s admonition
to supervisor to handle Union officer with “kid gloves” and
strictly by the rules because he was the Union’s bargaining
committee chairman and because he would file charges against
the employer for any perceived discrimination, strongly implied
animus toward the union and the union officer because of his
union activities.) I find that Horde’s comment which was made
during the trial is neither direct nor indirect evidence of animus
toward Kasper because of her union activities.12
The General Counsel also asserts that Horde demonstrated
the Respondent’s animus toward Kasper because of her union
activities in the September 30 conversation by expressing res-
ervations about Kasper’s commitment to the Hospital. The

to provisional pressman status in violation of Sec. 8(a)(5) not evidence
of antiunion animus).
12 Nor does the evidence show that the Respondent made statements
to or about Kasper indicating that she was an overly aggressive, strident
or difficult union president or that the Union at her direction filed too
many grievances or Board-related charges. Compare, National Steel &
Shipbuilding Co., 324 NLRB 1114 (1997) (manager’s unlawful refusal
to hire a former union steward was supported by ample evidence dem-
onstrating his personal animus toward her because she aggressively
represented union representation as reflected by various comments that
he made to and about her union advocacy, as well as the hostility that
he exhibited toward the union); United Parcel Service, 340 NLRB 776,
777 fn.10 (2003) (employer’s animus was demonstrated by manager’s
statement to a discriminatee that he was a “troublemaker” for filing
many grievances and his intimidating comments to other employees
about filing grievances).
MT. CLEMENS GENERAL HOSPITAL 457
General Counsel does not elaborate on this position in its
posthearing brief. There is no evidence showing that Horde
was referring to Kasper’s involvement with the Union as a lack
of commitment to the Hospital. I therefore decline to infer
animus from the statement.
However, the Board has stated that under certain circum-
stances (1) it will infer animus in the absence of direct evidence
and (2) that evidence of unequal treatment is sufficient to sat-
isfy the General Counsel’s initial evidentiary burden. Norman
King Electric, 334 NLRB 154, 158 (2001); New Otani Hotel &
Garden, 325 NLRB 928 fn. 2 (1998). When Horde informed
Sulflow in early October 2003, that Kasper was ineligible to
return to work, the one and only reason given for the ineligible
status was that Kasper had failed to give 2-weeks notice when
she resigned. (GC Exh. 47.) The credible evidence shows,
however, that one year earlier on June 28, 2002, another regis-
tered nurse, Ceclia A. Schweiger, resigned without giving 2-
weeks notice, but nevertheless was deemed eligible for rehire
by the Respondent. (GC Exh. 48; Tr. 485, 488.)
The evidence shows that Schweiger was working on a mas-
ter’s degree. She was not scheduled to work, and had not
worked a single day in the 28-day schedule cycle, which began
on June 6 and ended on July 3, 2002. (GC Exh. 48 at 9 and
10.) Indeed, the undisputed evidence shows that Schweiger’s
last day of actual work was April 28, 2002. By letter, dated
June 27, 2002, Schweiger notified Horde that she was resigning
her RN position with the Hospital. (GC Exh. 48 at 1.) Her
resignation became effective the following day, June 28, 2002.
(GC Exh. 48 at 10.) Schweiger nevertheless was deemed eligi-
ble for rehire even though she, like Kasper, resigned at a time
during which she was not scheduled to work.
In a letter, dated January 30, 2004, to the Board’s agent in-
vestigating the underlying allegations, the Respondent’s coun-
sel sought to explain this inconsistent treatment as follows:
Please find enclosed the resignation of Cecilia A. Schweiger,
RN. Ms. Schweiger gave no effective date for her resigna-
tion. At the time of her resignation, she was not on the cur-
rent 28 day schedule. Therefore her resignation was not in ef-
fect immediately and would not be in effect until the next 28
day schedule. To our knowledge, Ms. Schweiger had no dis-
ciplinary action in her file and her resignation would not be
effective until the next 28 day schedule came out. The policy
against rehire would not necessarily apply to her. (GC Exh.
59.)
The explanation is disingenuous. The undisputed credible
evidence shows that the next 28 day schedule began on July 4,
2002, which means by tendering her resignation on June 27,
Schweiger at best gave 6-days notice. (GC Exh. 48 at 9.)
In comparison, Kasper was not on a 28-day schedule when
she resigned and she was not due to return to work for another
4 months. (Tr. 364.) Her “immediate” resignation therefore
had no impact on the Respondent’s operation. Indeed, Kasper
did not have a position to return to while she was on union
leave. According to article 12, Section 5.d of the collective-
bargaining agreement, in order for an employee, like Kasper, to
return to work from union leave, she must first notify her su-
pervisor of her availability for return to work and in that event
the Respondent is required to offer the employee an equivalent
position within 30 days of notification. (GC Exh. 2 at 70.)
Nowhere has the Respondent offered a reasonable explana-
tion of why the 2-week notice policy was applied to Kasper, but
not to Schweiger. Respondent’s counsel failed to do so in the
January 30, 2004 letter. None of the Respondent’s witnesses
attempted an explanation at trial and there was no explanation
proffered in the Respondent’s posthearing brief.
Thus, the evidence viewed as a whole supports a reasonable
inference of animus based on the unequal treatment of Kasper.
I find that the 2-week notice reason given by the Respondent in
October 2003 for deeming Kasper ineligible for rehire is pre-
textual.
Accordingly, I find that under all of these circumstances, the
General Counsel has satisfied its initial evidentiary burden,
under the Wright Line standard, and therefore the evidentiary
burden shifts to the Respondent.
c. The Respondent’s evidence
(i) The shifted position
In its posthearing brief, the Respondent argues that, in addi-
tion to resigning without giving a 2-week notice, Kasper was
deemed ineligible for rehire because of prior corrective actions,
attendance issues, and no-calls/no shows. It points out, and the
evidence shows, that on April 18, 2002, Kasper was given her
first corrective action for no call/no show on April 2 and 3,
2002, and that on March 12, 2003, Kasper received her second
corrective action for excessive calls ins on January 23 and
March 1, 2003, as well as April 19 and October 24–25, 2002.13
(R. Exh. 10 and 11.) The Respondent also asserts that Kasper
repeatedly failed to meet her 16-hour contractual commitment
as a contingent nurse from 2001–2003.
The evidence shows, however, that these other factors were
not proffered as reasons for refusing to rehire Kasper until 4
months after Horde phoned Sulflow in early October 2003 to
tell Kasper was ineligible for rehire. According to Sulflow’s
unrebutted credible testimony, the only reason verbally ever
given by Horde at that time for deeming Kasper ineligible for
rehire was the failure to give 2-week notice. The evidence
shows that on October 3, Sulflow sent an email to Horde ex-
pressly asking her to provide in writing the reemployment
status of Kasper and the documentation used to support her
rehire status. (Tr. 237; GC Exh. 46.) On October 14, 2003,
Horde responded as follows:
Upon review of our records it is identified that Ms. Kasper re-
signed effective as of June 11, 2003 (see attached.) There-
fore, consistent with the Hospital’s Termination of Employ-
ment Policy, she is not eligible for rehire.
(GC Exh. 47.)

13 Contrary to the impression that the Respondent seeks to foster, the
unrebutted credible evidence shows that Kasper did not receive a cor-
rective action for not showing or calling for a training session on April
21, 2003. The unrebutted testimony of Chief Union Steward Michelle
Campbell is that she dissuaded Clinical Manager Kimberly Gainer from
issuing a corrective action to Kasper because no nurse had ever been
disciplined for missing a training session in the past. (Tr. 495–496.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD458
Notably, Horde’s letter did not state that Kasper was ineligible
for rehire because of any prior disciplinary actions or an inabil-
ity to work her scheduled hours. Nor did Horde provide copies
of the corrective actions or any documentation showing that
Kasper failed to meet the 16-hour contingent nurse commit-
ment.
Instead, the evidence shows that the other factors were first
asserted in the letter, dated January 30, 2004, from the Respon-
dent’s counsel to the Board’s agent.14 There, Respondent’s
counsel stated that the decision was made not to rehire Kasper
because “[s]he had not worked any significant amount of time
for the past two years, she had refused her last several sched-
uled times and she had several disciplinary actions in her file
for not showing up for scheduled hours. She had tried to main-
tain a contingent status by getting others to take her schedule,
when she in fact had moved out of state. She has not actually
worked as a nurse for any significant amount of time for years.”
(GC Exh. 59.)
The evidence also shows that by the time of trial, the 2-week
notice reason was almost inconsequential, and that the other
factors had become the principal reasons for not rehiring
Kasper. Susan Durst, the director of emergency and critical
care services, testified that she participated, along Clinical
Manager Kimberly Gainer, in the decision to deem Kasper
ineligible for rehire. At trial, she testified as follows:
Q. And could you tell us why you decided that Ms.
Kasper was not eligible for rehire:
A. We had looked at the prior Corrective Actions, the
current status of the attendance issue, and no call, no
show. And then, lastly was the resignation without notice.
Q. And of those, what was the most important reason?
(Tr. 422.)
A. Corrective Actions.
Q. And what would have been the next most impor-
tant reason?
A. The Corrective Actions. Both the current and
pending Corrective Actions based on absenteeism. There
were some other Corrective Actions out there.
Q. Was there any reason for you to rehire this nurse?
A. No.
Q. Had she been meeting her obligations to work the
16 hours per schedule?
A. Not as of recent times.
Q. Okay. And when you say recent times, how far
back?
A. Last year in a half maybe, two years.
(Tr. 423.)
The Board has held that shifting explanations for an em-
ployer’s conduct support an inference of pretext and an infer-
ence that the true reason was unlawful. Commercial Erectors,
Inc., 342 NLRB 940, 944 (2004), and cases cited therein. Un-

14 The evidence further shows that the assertion that corrective ac-
tions and a failure to meet the 16-hour commitment were the principal
reasons for not rehiring Kasper was never made until after the underly-
ing unfair labor practice charge was filed.
der these circumstances, I find that the shifting explanation
supports an inference that the other reasons asserted by the
Respondent for not rehiring Kasper are also pretextual.
(ii) Additional pretext evidence
A careful analysis of the evidence further supports an infer-
ence of pretext. The Respondent’s evidence discloses that in
the 2-1/2 years prior to the date that Kasper went on union
leave (May 1, 2003), she received only two corrective actions.
R. Exh. 11 shows that on April 18, 2002, Kasper received her
first corrective action “in last 18 months.” According to the
notation at the bottom of the exhibit, the no call/no shows on
April 2 and 3, 2003, were considered one occurrence and not
two infractions as the Respondent’s implies in its posthearing
brief. The next corrective action was not issued to Kasper until
almost a year later on March 12, 2003, when Kasper received
her second corrective action. Those are the only two corrective
actions issued to Kasper in the 2-1/2 years prior to her going on
union leave. The undisputed evidence shows that R. Exh. 10,
which is erroneously dated, April 2, 2003, was never given to
Kasper and was never discussed with her by anyone in man-
agement. To the contrary, the unrebutted credible testimony of
Chief Steward Campbell shows that Clinical Manager Gainer
told that the corrective action (i.e., R. Exh. 10) would be
“thrown away.” Thus, contrary to the impression that the Re-
spondent seeks to foster, Kasper had received only two correc-
tive actions in the 18-month period before she went on union
leave.
The Respondent’s assertion that Kasper was not rehired be-
cause she did not meet her contingent commitment to work 16-
hours per 28-day schedule is equally unpersuasive. To begin
with, there is no evidence that the 16-hour requirement was
uniformly enforced with respect to contingent nurses. Rather,
the Respondent’s evidence shows that when Gainer and Durst
asked Horde in April 2003 if there was a basis for terminating
Kasper, she asked them what was the standard being applied to
all contingent nurses, and neither supervisor could answer her
question. Horde testified that she then initiated an informal
email survey of the department managers and got a mixed re-
sponse. Some had a standard, others did not. The results of her
informal survey were mixed. (Tr. 407–408.) Indeed, in her
June 27, 2002, resignation letter, RN Cecilia Schweiger opined
that she was unfairly criticized by the Union for not meeting
her contractual commitment, even though many other contin-
gent nurses, including Vicki Kasper, were not meeting their
contractual hourly commitments with the Respondent’s knowl-
edge and concurrence. (GC Exh. 48 at 1, para. 3.) Moreover,
there is no evidence that any contingent nurse was disciplined
for not meeting the contingent commitment.
Thus, the Respondent’s reliance on the 16-hour commitment
as a reason for not rehiring Kasper, in the absence of any evi-
dence that it was applied in a uniform standard or that any other
contingent nurse was disciplined for not meeting the require-
ment at any time, further supports a reasonable inference that it
is pretextual reason for not rehiring Kasper.
MT. CLEMENS GENERAL HOSPITAL 459
(iii) Disparate treatment
Finally, the unrebutted evidence shows that the Respondent
had rehired other nurses, with an equal or greater number of
corrective actions than Kasper. On November 12, 2001, the
Respondent rehired Angela Larsen, even though she had re-
ceived three corrective actions for absenteeism. (GC Exh.
54(a), (c)–(e).) On October 14, 2002, the Respondent rehired
Tammy (Rottman) Affholter (Employee #8928), even though
she had received two corrections for failing to call-in, and had
been verbally counseled for attendance. (GC Exh. 54(a), 54(j)
and (k).) Neither at trial, nor in its posthearing brief, did the
Respondent attempt to explain or distinguish why these nurses
were treated differently than Kasper.
For all of the above reasons, I find that the Respondent’s rea-
sons for not rehiring are pretextual and that its decision was
unlawfully motivated. Accordingly, I find that the Respondent
violated Section 8(a)(3) of the Act by failing to rehire Vicki
Kasper.
C. Tax Shelter Annuity Changes
1. Facts
For over 20 years, the Respondent has made available to all
its employees, bargaining unit, and nonbargaining unit employ-
ees alike, a tax shelter annuity (TSA) program. Employees can
elect to have money deducted on a pretax basis for a 403(b)
plan. The program is not covered by the collective-bargaining
agreement for either the registered nurses or the license practi-
cal nurses.15 Between 1983–2003, the Respondent, on several
occasions increased and decreased the number of annuity pro-
viders from which the employees could chose without objection
from and without bargaining with the Union.
Sometime prior to April 2003, the Respondent realized that
its employees’ participation in the TSA program was low com-
pared to other hospitals. Upon further analysis, it concluded
that the low participation rate was due to the fact that the Re-
spondent did not sponsor any of the annuity providers. In 2003,
there were five providers participating in the TSA program:
MetLife Resources, Fidelity Investments, Prudential, Lincoln
National, and Equitable. (R. Exh. 38.) Respondent surveyed
these providers to determine which, if any, would be willing to
provide the employees on-site retirement and investment coun-
seling. Only MetLife expressed an interest in doing so. The
Respondent therefore determined that MetLife would be the
only provider available to the employees, who elected to par-
ticipate in the TSA program.
In late April 2003, the Respondent met with the Union to an-
nounce its decision. Union Vice President Sandra Sulflow,
Chief RN Steward Michelle Campbell, and Chief LPN Steward
Linda Sweeney attended for the Union. Human Resources
Representative Paula Stacey and Benefits Coordinator Paula
Mutch attended for the Respondent. Mutch explained that the
Respondent was changing the TSA program and the reasons
why. There would be only one provider, MetLife, instead of
five and the Respondent would now administer the plan. Con-
tributions previously made to the other four plans would be

15 The RNs and LPNs have different negotiated pensions’ plans.
(See GC Exh. 2, p. 108 and GC Exh. 3, p. 100.)
frozen or the employees could rollover the amounts in those
plans into the MetLife plan.
Sulflow asked questions about the fees that would be
charged by MetLife and how they compared to any fees that
were charged by the other providers. Neither Stacey nor Mutch
had that information at their finger tips, but they told Sulflow
that it would be provided. On April 25, 2003, Mutch gave the
Union an enrollment kit that it was providing to all employees.
(R. Exh. 33.)
By letter, dated April 28, 2003, the Respondent advised all
employees of the changes that were about to be made to the
TSA program. (GC Exh. 36.) On April 29, the Union filed a
grievance alleging that the Respondent violated the collective-
bargaining agreement by unilaterally changing the TSA pro-
gram and demanded that the Respondent “negotiate this.”16
(GC Exh. 30.)
On May 18, a second step grievance meeting was held re-
garding the TSA changes. The Respondent advised the Union
that the information responsive to the Union’s information
requests was not available at the time, that the TSA changes
were not negotiable, and that the grievance was denied. The
Union did not pursue the grievance to arbitration.
By letter, dated July 2, 2003, the Respondent advised the
employees that the new TSA program would begin on July 24,
2003. (GC Exh. 43.) Enrollment in the new plan had to be
completed by July 11.
2. Analysis and findings
Paragraphs 22–24 and 26 of the amended complaint allege
that on July 3, 2003, the Respondent unlawfully implemented
changes in its RN and LPN units employees’ TSA pension plan
without bargaining with the Union.
The General Counsel argues “that alterations in an employee
pension and savings plan constitute a mandatory subject of
bargaining” and that a waiver authorizing the cessation of pen-
sion benefit accruals must be incisive, direct, and specific.
Quoting from Trojan Yacht, 319 NLRB 741 (1995), it further
asserts that “assent by the Unions to the cessation of benefit
accruals cannot be inferred here.” Id. at 742. Trojan Yacht is
factually distinguishable and therefore the General Counsel’s
reliance on that case is misplaced. There, the parties most re-
cent collective-bargaining agreement contained a pension and
savings plan which covered both unit and nonunit employees.
In an effort to maintain the plan’s tax-exempt status, the em-
ployer, without notifying the unions and without bargaining,
amended the plan to freeze benefit accruals during the contract
term. The Board held that neither the management-rights nor
the zipper clauses of the parties’ contract gave the employer the
right to amend the plan or waived the unions’ interest in bar-
gaining over the matter.
In the present case, it is undisputed that TSA plan is not, and
has never been, covered by either the RN or LPN collective-
bargaining agreements. It is also undisputed that throughout
the history of the TSA plans, the Union has never bargained or

16 On April 29, Chief Steward Campbell also filed an information
request concerning the new TSA program. (GC Exh. 31.) On May 5,
she amended the request seeking information comparing the five plans
(GC Exh. 32) and reiterated the request on May 16. (GC Exh. 33.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD460
sought to bargain with the Respondent over any change or as-
pect of the TSA program. Indeed, unlike Trojan Yacht, the RN
collective-bargaining agreement here expressly states:
Section 3
The agreements concerning wages, hours and working condi-
tions and statements of wage and fringe benefits expressed in
this Agreement shall be the sole and exclusive source of any
and all employee benefits. All employee benefit programs
have been reviewed by the parties to these negotiations and
those not expressly appearing within this Agreement are
hereby specifically and expressly waived by the Union.
(GC Exh. 2, pp 5–6.)
I find that this specific contract language shows that the mat-
ter asserted to be waived was fully discussed and consciously
explored and that the Union consciously yielded its interest in
bargaining over the TSA program as further demonstrated by
its failure to request bargaining over any of the TSA program
changes that occurred in the prior 20 or more years. Metropoli-
tan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983); Angelus
Block Co., 250 NLRB 868, 877 (1980); see also, Rockford
Manor Care Facility, 279 NLRB 1170 (1986) (where the em-
ployer successfully invoked a zipper clause, similar to the one
here, to justify midterm adjustments to a contractually provided
health care program).
Similar language appears in the LPN collective-bargaining
agreement which states:
Section 3. The agreements concerning wages, hours and
working conditions and statements of wage and fringe bene-
fits expressed in This Agreement shall be the sole and exclu-
sive source of any and all bargaining unit benefits for those
employees covered by this Agreement and shall be in lieu of
any and all benefits expressed in any other document or
statement of the Hospital pension programs, wage statements,
fringe benefit statements or employee personnel booklets. It
is further agreed that only the Hospital Chief Executive Offi-
cer or Chief Operating Officer may issue personnel policies
which are binding on the Hospital and then only if in writing
and signed by the issuer. (Emphasis added.)
(GC Exh. 3, p. 7.)
In Columbus Electric Co., 270 NLRB 686 (1984), enfd. sub
nom. Electrical Workers IBEW Local 1466 v. NLRB, 795 F.2d
150 (D.C. Cir. 1986), “the Board, with court approval, dis-
missed allegations that an employer violated Section 8(a)(5)
and (1) by discontinuing a Christmas bonus never referred to in
the parties’ contracts. The contract contained comprehensive
provisions on other types of compensation, provided that the
contract would govern the parties’ ‘entire relationship,’” and
stated that the contract would be the “sole source of any and all
rights or claims which may be asserted in arbitration hereunder
or otherwise. 270 NLRB at 687. Trojan Yacht, supra, 319
NLRB at 742. The contract language here likewise specifies
that the agreement will be the “sole and exclusive source” of all
bargaining unit benefits and shall be in lieu of any other Hospi-
tal provided pension programs.
In addition, according to article II, Recognition, Section 1 of
the LPN contract, the Union was certified by the Board as the
exclusive bargaining representative on July 8, 1996. The TSA
program therefore existed for several years prior to the collec-
tive-bargaining agreement which supports a reasonable infer-
ence that the Union was fully aware of the TSA program and
consciously chose to yield any interest in bargaining over the
matter when it agreed that the collective-bargaining agreement
would be the sole and exclusive source of all benefits.
Moreover, the courts and the Board have held that a waiver
also may be inferred from extrinsic evidence of the contract
negotiations and/or practice. Litton Microwave Cooking Prod-
ucts v. NLRB, 868 F.2d 854, 858 (6th Cir. 1989); Kiro, Inc.,
317 NLRB 1325 1328 (1995); California Pacific Medical Cen-
ter, 337 NLRB 910, 914 (2002). A waiver can be inferred here
from the undisputed evidence showing that the Union never
bargained over any TSA changes, never requested to bargain
over them, and never objected to any of the changes.
Finally, in the recent case of The Courier-Journal, 342
NLRB 1093, 1095 (2004) (Courier Journal I), the Board found
that a unilateral change made pursuant to a longstanding prac-
tice is essentially a continuation of the status quo—not a viola-
tion of Section 8(a)(5). There, the collective-bargaining
agreement provided for health insurance plans on the same
terms in effect for unrepresented employees. It also ensured
that any changes in the costs of a health insurance plan for unit
employees would be on the same basis as unrepresented em-
ployees. The evidence showed that changes to the plan were
implemented without bargaining consistent with a 12 year past
practice. In each prior instance, the Union did not oppose, and
instead accepted, the employer’s changes which affected unit
employees and unrepresented employees alike. The Board held
that no violation of the Act occurred because the employer’s
actions were consistent with the past practice. See also, Cou-
rier Journal, 342 NLRB 1148 (2004) (Courier Journal II).
The circumstances here present a stronger case for finding no
violation because here there is no contractual language which
provides for a collectively bargained TSA plan. Instead, there
is a 20 year history of making unilateral changes to the TSA
program, which was accepted without opposition by the Union.
For all of the reasons above, I find that the Respondent did
not violate Section 8(a)(5) of the Act by reducing the number of
TSA providers from five to one. Accordingly, I shall recom-
mend the dismissal of allegations in the amended consolidated
complaint alleging that the TSA program was unlawfully
changed.
D. Information Requests
1. The applicable legal standard
The amended consolidated complaint contains five separate
allegations (pars. 13–18) that the Respondent violated Section
8(a)(5) of the Act by failing and refusing to provide requested
information to the Union.
In A-Plus Roofing, Inc., 295 NLRB 967, 970 (1989), the fol-
lowing applicable principles concerning requests for informa-
tion were stated:
An employer, pursuant to Section 8(a)(5) of the Act,
has an obligation to provide requested information needed
by the bargaining representative of its employees for the
MT. CLEMENS GENERAL HOSPITAL 461
effective performance of the Respondent’s duties and re-
sponsibilities. NLRB v. Acme Industrial Co., 385 U.S.
432, 435–436 (1967). The employer’s obligation includes
the duty to supply information necessary to administer and
police an existing collective-bargaining agreement (Id. at
435–438), and, if the requested information relates to an
existing contract provision it thus is “information that is
demonstrably necessary to the union if it is to perform its
duty to enforce the agreement . . . .” A.S. Abell Co., 230
NLRB 1112, 1113 (1977). Where the requested informa-
tion concerns employees . . . within the bargaining unit
covered by the agreement, this information is presump-
tively relevant and the employer has the burden of proving
lack of relevance. With respect to such information, “the
union is not required to show the precise relevance of the
requested information to particular bargaining unit issues.”
Proctor & Gamble Mfg. Co.[v. NLRB, 603 F.2d 1310 (8th
Cir. 1979] at 1315. Where the request is for information
concerning employees outside the bargaining unit, the Un-
ion must show that the information is relevant. Brooklyn
Union Gas Co., 220 NLRB 189 (1975); Curtiss-Wright
Corp., 145 NLRB 152 (1963), enfd. 347 F.2d 61, 69 (3d
Cir. 1965). In either situation, however, the standard for
discovery is the same: “a liberal discovery-type standard.”
Loral Electronic Systems, 253 NLRB 851, 853 (1980);
Acme Industrial, supra at 432, 437. Th(i)s information
need not necessarily be dispositive of the issue between
the parties, it need only have some bearing on it. . . .
[Footnote omitted.]
. . . .
Once the initial showing of relevance has been made,
“the employer has the burden to prove a lack of relevance
. . . or to provide adequate reasons as to why he cannot, in
good faith, supply such information.” San Diego Newspa-
per Guild [Local 95 v. NLRB, 548 F.2d 863 (9th Cir.
1977)] at 863, 867.
This standard applies to all five information request allegations.
2. The TSA program changes
a. Facts
On April 29, 2003, after the hospital announced that only
one TSA plan would be offered, the Union filed an information
requesting the following:
1. All information/booklets/etc for the new MetLife
benefits package for RNs.
2. Any changes this new benefit will cause compared
to the old for RNs?
3. What fees are RNs now paying compared to the
new benefit which P Mutch states MCGH will now be
paying?
4. Any other relevant information related to this bene-
fit change?
GC Exh. 31. (Tr. 173.) A short time later, Chief Steward
Campbell filed an addendum information request seeking “all
fund fee comparison chart between the 5 companies (TSA).”
GC Exh. 32.
At the second step grievance meeting, Human Relations
Representative Gloria Stacey told the Union that the informa-
tion was not available to give to the Union and that the TSA
plan was not a negotiable issue. (Tr. 176.) On May 16, 2003,
Campbell reiterated her previously filed requests for informa-
tion. (GC Exh. 33; Tr. 176.)
By letter dated, May 19, 2003, Human Relations Director
Horde responded to the Union’s information request. (GC Exh.
34.) Campbell testified that Paula Mutch also sent Union Vice
President Sandra Sulflow a letter giving a breakdown of the
number of registered nurses covered by each plan and informa-
tion on the fees. (Tr. 184, 260.)
The Respondent also held a series of meetings with employ-
ees to explain the new program and sent a series of letters to all
employees explaining the new benefits. (Tr. 185.) A MetLife
representative was present at the hospital to answer questions
and to distribute information.
b. Analysis and findings
Paragraph 17 of the amended consolidated complaint alleges
that since April 25, 2003, the Respondent has failed to provide
the Union with information requested concerning changes to
the TSA program.
The General Counsel argues that the requested information
was necessary for the Union to process the grievance concern-
ing the elimination of the TSA providers and to advise the un-
ion membership of the impact of the changes. In the absence of
a contractual provision concerning the TSA program and in
light of the Union’s waiver of the right to bargain collectively
over any changes, the information sought was not relevant to
administering or policing the contract. In addition, the evidence
shows and the General Counsel in essence concedes that the
requested information was provided, albeit not within 10 days
from the original request.
Under these circumstances, I find that the Respondent did
not violated Section 8(a)(5) of the Act. Accordingly, I shall
recommend the dismissal of the allegation contained in para-
graph 17 of the amended complaint and its related paragraphs.
3. Jodie Zablowski’s personnel file
a. Facts
In early February 2003, Donna Reddman, a registered nurse,
had an argument with Jodie Zablowski, a security guard.
Zablowski complained to the Respondent about Reddman’s
behavior. A week later, Reddman was called to her supervi-
sor’s office, where Clinical Manager Kim Gainer purportedly
asked Reddman to provide her personal notes concerning the
incident with Zablowski and threatened to suspend her if she
did not provide the notes. (GC Exh. 22.) (Tr. 158–159.)
On February 16, Union Chief Steward Michelle Campbell
filed a grievance on behalf of Reddman asserting that Redd-
mann had been unfairly prejudged, threatened, and directed to
provide her personal notes. (GC Exh. 22.) The next day,
Campbell sent an email to Priscilla Horde, Director of Human
Relations, seeking “all corrective actions/grievances/verbal
warnings against Jodie Zablowski, Security Guard.” (Tr. 161,
327; GC Exh. 23.) Campbell testified that she sought the in-
formation on Zablowski because she had heard from others at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD462
the Hospital that Zablowski had a history of harassing employ-
ees and patients and that patient families had complained about
her. (Tr. 163.)
On February 18, Horde responded by stating that the Hospi-
tal would not provide information regarding a nonbargaining
unit employee’s personnel record. She further stated that under
the Michigan Bullard Pulwacki Act such information is confi-
dential.17 (Tr. 328.)
The grievance was denied and Reddman received a correc-
tive disciplinary action in connection with her argument with
Zablowski. On February 21, Campbell filed another grievance
disputing the corrective action. (Tr. 163; GC Exh. 24.) On
March 3, a third grievance was filed seeking the documentation
that the Respondent relied on in giving Reddman the corrective
action. (GC Exh. 25.) On March 10, Campbell filed an infor-
mation request seeking the same documents sought in the
grievance. (Tr. 166; GC Exh. 26.) Eventually the Union ob-
tained a copy of Zablowski’s account of the incident and the
Respondent removed the corrective action from Reddman’s
personnel file. (Tr. 197.)
b. Analysis and findings
Paragraph 13 of the amended complaint alleges that since
February 17, 2003, has failed and refused to provide copies of
“corrective actions/grievances/verbal warnings against Jodie
Zablowski, Security Guard.”
The undisputed evidence shows that Security Guard Jodie
Zablowski is not a member of the bargaining unit represented
by the Union. Thus, there is no presumption of relevance and
the Union has the burden to demonstrate the relevance of and
necessity for the information requested. Tri-State Generation
& Transmission Assn., 332 NLRB 910 (2000). I find that the
Union has failed to carry its burden.
The information request sought “all corrective ac-
tions/grievances/verbal warnings against Jodie Zablowski, Se-
curity Guard,” regardless of their underlying circumstances or
the nature of discipline. For all intents and purposes, the re-
quest arguably encompassed discipline arising out of atten-
dance and tardiness infractions, improper documentation of
security incidents, and everything and anything that dealt with
any aspect of her job performance. In other words, the Union
sought information that was not relevant to the argument be-
tween Reddman and Zablowski. In addition, the information
request was based on “rumors” or at best, secondhand knowl-
edge, that had been told to Campbell. There is no evidence that
Campbell or anyone else in the Union sought to confirm the
validity or accuracy of these stories before making the request.
Under these circumstances, the General Counsel has not shown
that the requested information was relevant. Saginaw Control
& Engineering, Inc., 339 NLRB 541, 545 (2003).
The General Counsel’s reliance on Earthgrains Baking Cos.,
327 NLRB 605 (1999), is misplaced. There, unlike here, the
Union requested information concerning commissions arguably
due to the bargaining unit employees which information was

17 The evidence shows that Zablowski did not authorize the release
of her personal records to the Union nor did the Union ask her to do so.
(Tr. 198.)
“presumptively relevant” to the Union’s proper performance of
its collective-bargaining duties. Thus, the employer in the first
instance had the burden of proving that the confidential nature
of the information sought outweighed the union’s need for the
information. In addition, in Earthgrains, unlike here, the evi-
dence showed that the Union had a reasonable and objective
basis for its concern that the collective-bargaining agreement
was being breached whereas in the present case, the informa-
tion request was based on unconfirmed rumors concerning prior
incidents involving Zablowski.
Likewise, the circumstances in Postal Service, 305 NLRB
997 (1991), relied upon by the General Counsel are totally in-
apposite. In that case, the Union filed a grievance asserting that
nonbargaining unit postal inspectors imposed limitations on the
representative role of a union steward during their interrogation
of a bargaining unit employee and ultimately the inspectors
forcibly ejected the union steward from the interrogation. The
union filed an information request that specifically sought wit-
ness statements, as well as nonwitness opinions, comments, and
recommendations contained in the investigatory file concerning
the interrogation incident. It also sought documents discussing
policies and practices governing the use of force by postal in-
spectors against stewards and employees in situations involving
stewards engaged in representational duties. The Board found
that this information was relevant to the processing of the union
steward’s grievance and that it outweighed the employer’s in-
terest in confidentiality. Notably, there, unlike here, the infor-
mation request was tailored to the specific incident in question.
Accordingly, I find that the Respondent’s failure to provide
the information did not violate the Act and I shall recommend
that the allegations in paragraph 13 of the amended complaint
be dismissed.
4. Nurse externs and nurse interns
a. Facts
A nurse extern employed by the Respondent is a nurse, who
has completed her formal education, has taken the nursing
board examinations, and is awaiting the results. (Tr. 212.) A
nurse intern is a nurse, who is in the process of completing her
education and has not taken the board examinations. Neither
nurse externs nor nurse interns belong to the bargaining unit.
When a nurse extern receives a bargaining unit position it is
treated as a transfer, and her name appears on a transfer list and
also a seniority list. Although both of these lists are supposed
to be updated and provided to the Union on a monthly basis,
Union Vice President Sandra Sulflow testified that does not
always occur. (Tr. 261, 263.)
In March 2003, some registered nurses told Union Vice
President Sandra Sulflow that nurse externs were being
awarded positions over bargaining unit members in violation of
the collective-bargaining agreement. (Tr. 213.) Sulflow testi-
fied that in her own area a bargaining unit member was denied
a position that was awarded to a nurse extern. Sulflow brought
the matter to the attention of the clinical manager, who rectified
the situation by awarding the position to the bargaining unit
member. (Tr. 213.) Sulflow also testified that occasionally
names of externs and interns have appeared on a transfer list
reflecting that they were working in a bargaining unit position,
MT. CLEMENS GENERAL HOSPITAL 463
even though they were not licensed registered nurses. (Tr.
266.)
On March 28, 2003, Sulflow sent an email to Human Rela-
tions Director Priscilla Horde requesting the names and posi-
tion numbers of all externs and interns employed by the Re-
spondent. (GC Exh. 35.) She testified that she sought their
names in order to check them off the change in status report of
transfers.18 (Tr. 264.) Horde responded by telling Sulflow that
she would formally respond by midweek, but that she was not
obligated to provide information concerning nonbargaining unit
employees, “so I owe you no names of our staff that you do not
represent.” (Tr. 330; GC Exh. 35.) She eventually provided
the job descriptions, but would not provide names of the nurse
externs or nurse interns.
b. Analysis and findings
Paragraph 14 of the amended complaint alleges that since
March 28, 2003, has failed and refused to provide “a list with
the differential designation of all Nurse Interns and Nurse Ex-
terns.”
It is undisputed that the Union sought information concern-
ing nonbargaining unit employees. Thus, the Union has the
burden of showing that the information is relevant to bargain-
able issues. The standard for discovery, however, is “a liberal
discovery-type standard.” Loral Electronic Systems, 253
NLRB 851, 853 (1980); Acme Industrial, supra at 432, 437.
The information need not necessarily be dispositive of the issue
between the parties, it need only have some bearing on it.
The evidence shows that the Union sought the names and
position numbers of all the externs and interns because regis-
tered nurses had complained that nurse externs were improperly
filling bargaining unit positions in violation of the collective-
bargaining agreement. Union Vice President Sandra Sulflow
asserted that she had personal knowledge of one such instance
on her unit, which she addressed with the clinical manager.
That prompted her to seek the information requested in order to
cross-check the names and position numbers against the trans-
fer lists, which were not always provided on a timely basis.
The Respondent did not deny that nurse externs and nurse in-
terns had improperly filled bargaining unit positions on occa-
sion. It also did not deny that the names of nurse externs and
nurse interns had improperly appeared at times on the bargain-
ing unit seniority list and that the transfer lists were not always
provided on a timely basis.
The preservation of bargaining unit work is a subject of
mandatory bargaining under the Act. Fibreboard Paper Prod-
ucts Corp. v. NLRB, 379 U.S. 203, 209 (1964). Where, as here,
the Union has a reasonable ground to fear that unit work is
being performed by nonbargaining unit employees, the courts
and the Board have held that information pertaining to the non-
bargaining unit employees is relevant and should be provided.
See NLRB v. Rockwell-Standard Corp., 410 F.2d 953 (6th Cir.
1969); NLRB v. Goodyear Aerospace Corp., 388 F.2d 673 (6th
Cir. 1968); Ohio Power Co., 216 NLRB 987 (1975).

18 Sulflow also testified that she asked for a copy of the job descrip-
tions being worked by each nurse extern and nurse intern. (Tr. 214,
262.) That additional information request, however, is not apparent
from the face of the email. (GC Exh. 35.)
The information sought by the Union is relevant to Union’s
responsibility to monitor the collective-bargaining agreement.
Accordingly, I find that under these circumstances the Respon-
dent unlawfully withheld the information sought by the Union
in violation of Section 8(a)(5) of the Act as alleged in para-
graph 14 of the amended complaint.
5. Joy Johnson’s personnel file
a. Facts
Joy Johnson was formerly employed by the Respondent as a
licensed practical nurse (LPN). She also was the vice president
of the LPN bargaining unit. (Tr. 23, 320.) On April 7, 2003,
Union President Vicki Kasper submitted a written information
request to Priscilla Horde, director of employee relations, in
connection with a discipline issued to Johnson. (Tr. 24; GC
Exh. 4; R. Exh. 52.) Specifically, Kasper asked to review
Johnson’s personnel file, all documents used in making the
decision to discipline Johnson (including the names of any
witnesses and their statements), and for the names of other
employees who committed the same offense and the penalties
imposed. Kasper asked that the information be provided by
April 14, but it was not provided.
On April 17, Kasper sent a similar request to David Klinger,
vice president of human resources. (Tr. 25; GC Exh. 5.) On
April 22, Employee Relations Representative Gloria Stacey
responded by providing “the information used in making the
decision to discipline her,” but not the personnel file. (Tr. 26;
GC Exh. 6.) The April 22 letter stated that under the Michigan
Bullard-Plawecki Employee Right to Know Act, the employee
must make the request herself. Stacey stated the Hospital had
“a procedure whereby [Johnson could] fill out a form in the
Human Resources Department requesting to see her file.” (Tr.
54.) Johnson made such a request and was allowed to review
her personnel file. She did not request a copy of any informa-
tion in her file. (Tr. 55, 321.)
b. Analysis and findings
The amended complaint alleges that since April 17, 2003, the
Respondent has failed to provide LPN unit employee Joy John-
son’s personnel file.19 The allegation is not accurate because
Johnson requested and was allowed to review her personnel
file. Rather, the issue here is whether the Respondent was enti-
tled to deny the Union access to Johnson’s personnel file unless
she signed a written authorization.
The undisputed evidence shows that Johnson was a bargain-
ing unit employee and it is beyond dispute that a review of her
personnel file was relevant to the investigation of her discipline
and the processing of her grievance. At trial, Horde testified
that it is Hospital policy not to release personnel files without
the permission of the employee (Tr. 323) and therefore it was
not obligated under the Act to provide the personnel file with-
out Johnson’s permission.20 (Tr. 320.) In essence, the Respon-
dent asserts that pursuant to its policy its employees’ personnel

19 Although Johnson requested and was allowed to review her per-
sonnel file, a copy was not provided to the Union.
20 There is no evidence or argument that Johnson’s personnel file
contained information of an intimate and highly personal nature.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD464
files are per se confidential and that under Detroit Edison Co. v.
NLRB, 440 U.S. 301 (1979) and New Jersey Bell Telephone
Co., 720 F.2d 789 (3d Cir. 1983) (New Jersey Bell I), it was not
required to release the personnel file without employee authori-
zation.
However, in Wayne Memorial Hospital Assn., 322 NLRB
100, 102–103 (1996), the Board squarely rejected that argu-
ment and since then has repeatedly stated that blanket confiden-
tiality claims are not an adequate defense for an employer’s per
se refusal to furnish any information from an employee’s file.
Washington Gas Light Co., 273 NLRB 116 (1984); Southwest-
ern Bell Telephone Co., 251 NLRB 612 (1980); and Fawcett
Printing Corp., 201 NLRB 964 (1973). Indeed, in New Jersey
Bell Telephone Co., 289 NLRB 318, 319 (1988) (New Jersey
Bell II), the Board specifically found where, as here, there is no
evidence that the personnel file contained information of an
“intimate and highly personal nature” Detroit Edison Co. and
New Jersey Bell I are not controlling.
Specifically, in New Jersey Bell II, the Board stated:
Regarding the Respondent’s position generally that it should
be entitled to deny requests for relevant information from per-
sonnel records simply because its privacy plan requires an
employee consent, we find no support in Detroit Edison Co.
v. NLRB, 440 U.S. 301 (1979), on which the Respondent also
relies, for any such blanket claim of confidentiality. See
Pfizer, Inc., 268 NLRB 916, 919 (1984), enfd. sub nom.
NLRB v. Electrical Workers IBEW Local 309, 763 F.2d 887
(7th Cir. 1985); Oil Workers Local 6-418 v. NLRB, 711 F.2d
348, 362 and fn. 36 (D.C. Cir. 1983). Certainly an employer
should not be able to “bootstrap” a confidentiality claim as a
barrier to disclosure of information to the bargaining represen-
tative simply by relying on a plan through which employees,
including bargaining unit employees, are promised that a
broad range of personal information will remain confidential.
Moreover, the mere fact that an employee does not give for-
mal consent—or might even object—to the disclosure of in-
formation does not in itself constitute grounds for refusing to
provide such information when it is relevant to the bargaining
representative’s performance of its representational duties.
289 NLRB at 319.
By relying on its policy in refusing to allow the Union to re-
view and copy Joy Johnson’s personnel file, the Respondent
has failed to satisfy its burden of showing that it had a legiti-
mate confidentiality claim. Accordingly, I find that Respon-
dent violated Section 8(a)(5) of the Act by failing and refusing
to provide the personnel file of bargaining unit employee Joy
Johnson to the Union without employee consent.
6. Reclaiming in-patient beds
a. Facts
On January 15, 2003, the Respondent and the Union held a
monthly conference that was attended by, among others,
Priscilla Horde, Susan Durst, Joan Simon, and Denise Woje-
woda for the Hospital and Vicki Kasper, Sandra Sulflow, and
Michelle Campbell for the Union. (Tr. 279, 425; R. Exh. 22.)
In the course of the meeting, the Respondent told the Union
that it was adding 13 additional beds in certain units in the hos-
pital to meet the increasing census. Sandra Sulflow testified
that Joan Simon lead the discussion for the Hospital. The Un-
ion was told that the Hospital is licensed to operate 288 patient
beds. (Tr. 191.) Over the course of time, and as the census
decreased, several patient rooms were converted to offices for
managers and administrative staff. With the increasing census,
the Hospital planned to convert several offices back into patient
rooms and reclaim 13 patient beds, which would bring the total
of available beds close to the 288 bed maximum. (Tr. 267–
268.)
Sulflow testified that she was concerned that the workload
would be increased for the registered nurses on certain units.
(Tr.169, 267.) The Union wanted to get a breakdown on the
number of beds per unit because if the patient census increased
on a unit, it might impact on staffing and require an increase in
staff. (Tr. 269.) According to Sulflow, if the Hospital changed
the nurse/patient ratio, the Union would take the position that
the Hospital had changed a condition of employment, i.e., staff-
ing. (Tr. 270–271.) Sulflow stated that she asked Simon for a
breakdown of the number of beds and the units that would re-
ceive them, but was not given a breakdown. However, Sulflow
was unable to recall how Simon responded to her question
about the breakdown. (Tr. 268.)
Denise Wojewoda was also present at the January 2003
meeting. At that time, she was the director of maternal, child
and medical surgical units. Wojewoda testified that the Union
was told that the Hospital had 288 licensed beds and it was
going to be reclaiming some of those beds. Because some of
the patient rooms were being used as offices they would be
renovated and converted to be patient rooms again. According
to Wojewoda, the Union was told that the 4th floor (4West),
3rd floor (3West), 4th floor (4South), and one room on teleme-
try care unit (TCU) would be renovated. (Tr. 279.) Wojewoda
explained that at this point (January 2003) nothing had been
done to implement the plan. (Tr. 281.) The Hospital was ac-
cepting bids for the construction and then it had to move the
managers to other floors. After renovating the manager offices,
it would convert the rooms vacated by the managers to patient
rooms. Gradually, one or two patient rooms would be opened
up at a time. Wojewoda did not recall the Union asking Joan
Simon where the reclaimed beds were going to be located or
Simon refusing to give an answer. (Tr. 282.) Simon was not
called as a witness for the Respondent.
Susan Durst testified she told the Union that the Hospital
could add one bed in the PCU and it could add four beds in the
TCU. (Tr. 426, 428.) At the time of the meeting, however, the
Hospital had not opened up any beds. (Tr. 428.) She stated
that she “believed” that she gave this information to the Union
at the meeting. (Tr. 428–429.) She added that the Hospital
never added a bed to PCU and that it never reclaimed all the
available beds to reach the 288 licensed beds maximum. (Tr.
427–428.)
Human Relations Director Horde testified that the location of
the beds was discussed at the January 2003 meeting, but she
could not remember where all the beds where. (Tr. 325.) In
response to a question by Respondent’s counsel, she stated that
there were not any questions asked by the Union at the meeting
that were not answered. (Tr. 326.)
MT. CLEMENS GENERAL HOSPITAL 465
On April 18, 2003, Chief Union Steward Campbell filed a
grievance on behalf of the registered nurses in the telemetry
care unit seeking to remove the general medical floor beds.
(GC Exh. 28.) On the same date, she filed an information re-
quest seeking the following information pertinent to the issue at
hand:
1. How many beds did MCGH open to this date
(4/18/03)? Which nursing have been affected by open-
ings? How many beds on which units?
2. Are the beds opened licensed?
GC Exh. 29. (Tr. 170.)
Campbell testified that she did not receive a response to ei-
ther of these requests. (Tr. 171, 193, 204–205.) She further
testified that other than the TCU, she did not know where the
other reclaimed beds were added. (Tr. 193.)
Horde testified that she never received a specific information
request concerning the number and location of the reclaimed
beds. (Tr. 326.) Her assertion is unpersuasive. The Respon-
dent’s answer to the amended complaint admits that the request
was received. (Ans. par. 21.) Horde did not deny that the
email address that appeared at the top of the information re-
quest was her email address or otherwise explain why she did
not receive the information request sent by Campbell. (See GC
Exh. 29.) Instead, Horde testified that at an April 29, 2003,
grievance meeting, the number and locations of the beds were
discussed with the Union, the grievance was denied, and the
Union did not pursue the matter. (Tr. 326; R. Exh. 22.)
b. Analysis and findings
Paragraphs 16 and 21 of the amended complaint alleges that
since April 18, 2003, the Respondent has dilatorily failed and
refused to provide the number of beds that were added to spe-
cialized hospital units.
There is no argument or dispute that the information sought
was relevant to the Union’s role as the collective-bargaining
representative. Rather, in its posthearing brief the Respondent
asserts that it gave the information to the Union twice. Once
during the January 2003 meeting and then in the course of the
grievance procedure. I disagree.
Although the Respondent told the Union in January 2003 of
its intention to reclaim 13 beds in certain units, the credible
evidence shows that the specifics were not layed out for the
Union at the January 2003, but instead the discussion focused
on what could take place. Indeed, the evidence viewed as a
whole shows that in January 2003 the Respondent’s plan was in
the early stages. The renovations had not started, the units had
not been converted back to patient areas, and there was not a
firm sense of exactly how many new beds would be needed and
where. Although the Respondent knew the number of beds that
it could reclaim and the units where they wanted to add them,
there is no evidence showing that the exact number per unit had
been discussed in January 2003. Instead, the evidence shows
that contrary to expectations the bed that was to be added to the
PCU was not opened.
In addition, Horde’s testimony that the information sought in
the Union’s request nos. 1 and 2 above was provided to the
Union during the grievance meeting is dubious for several rea-
sons. First, the credible evidence reflects that Horde had no
personal knowledge of what was discussed at the grievance
meeting. She testified that it was a grievance over the fact
“[t]hat the Hospital had reclaimed 13 beds.” (Tr. 326.) A plain
reading of the grievance discloses that it pertained to the TCU
only and that it sought the removal of four beds in that unit that
the Union knew had been reclaimed. (GC Exh. 28.) Second,
the evidence shows that Horde was not even present at the
April 29 grievance meeting, so she had no first hand knowledge
of what was discussed with the Union. (See R. Exh. 22—
”Present for the Hospital was Joan Simon, Vice President,
Clinical Services; and Gloria Stacey, Employee Relations Rep-
resentative.”) Neither Simon or Stacey were called by the Re-
spondent to testify which warrants an adverse inference that
they would not have corroborated Horde’s testimony on this
point. International Automated Machines, 285 NLRB 1122,
1123 (1987). Finally, Chief Union Steward Campbell, who
was present at the grievance meeting, credibly testified that the
information she requested on April 18, 2003, was not provided
at the grievance meeting. (Tr. 171, 193, 204–205; GC Exh.
29.) Indeed, a careful review of the 2nd Step grievance re-
sponse shows that there was no discussion of the other re-
claimed beds. (See R. Exh. 22.) Thus, the credible evidence
viewed as whole shows that the Respondent failed to respond to
the information request.
Accordingly, I find that the Respondent violated Section
8(a)(5) of the Act as alleged in paragraphs 16 and 21 of the
amended complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of the
Act by refusing to rehire Vicki Kasper-Monczk.
4. The Respondent violated Section 8(a)(5) of the Act by
failing and refusing to provide the following requested informa-
tion.
(a) The names and position numbers of all nurse externs and
nurse interns.
(b) The personnel file of Joy Johnson.
(c) The number of general beds that were added to special-
ized Hospital units.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not otherwise engage in any other
unfair labor practice alleged in the amended consolidated com-
plaint in violation of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent failed and refused to re-
hire Vicki Kasper-Monczk in violation of Section 8(a)(3) and
(1) of the Act, it must immediately offer her employment as a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD466
registered nurse on the day or afternoon shift and, if necessary,
terminate the service of any employee hired in her stead, and
make her whole for any loss of earnings and other benefits,
computed on a quarterly basis from August 18, 2003, to the
date of proper offer of employment, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]