Naples Community Hospital

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 964 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD.
355 NLRB No. 171
964
Naples Community Hospital, Inc. and Service Em-
ployees International Union Healthcare Florida.
Cases 12–CA–25689
August 27, 2010
DECISION AND ORDER
BY MEMBERS SCHAUMBER, PEARCE, AND HAYES
On February 4, 2009, Administrative Law Judge John
H. West issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel and the Charging Party filed answering briefs,
the Respondent filed reply briefs, the General Counsel
and the Charging Party filed cross-exceptions, and the
Respondent filed an answer to the Charging Party’s
cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,
except as modified below, and to adopt the recom-
mended Order, except as modified and set forth in full
below.2
The complaint allegations in this case arise from an
organizational campaign which commenced in June
2007. We agree with the judge, for the reasons he states,
that the Respondent violated Section 8(a)(1) of the Act
by creating the impression that employees’ union and
other protected, concerted activities were under surveil-
lance, by prohibiting employees from posting union lit-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
2 We grant the Respondent’s request to delete language from the
recommended Order and notice requiring that the Respondent person-
ally notify employees that they do not have to request permission to
engage in solicitation and distribution of union-related materials on
employees’ own time in nonwork areas.
We grant the General Counsel’s request for electronic notice post-
ing. The requirements for imposing this remedy, as set forth in Nord-
strom, Inc., 347 NLRB 294 fn. 5 (2006), have been established here.
Accordingly, we shall order the Respondent to post the attached notice
on its intranet and transmit the notice to its employees via email.
Member Schaumber relies on Nordstrom as extant law. Member Hayes
would not require electronic posting in this case.
We deny the Charging Party’s request for extraordinary remedies.
erature in the employee break/kitchen area,3 and by tell-
ing employees that they were not permitted to engage in
union and other protected, concerted activities in non-
work, nonpatient care areas.4 However, we reverse the
judge and dismiss the complaint allegation that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
failing to assign to Registered Nurse Mary Villani charge
nurse duties as it had done previously because she as-
sisted the Union and engaged in protected concerted ac-
tivities.5
At all pertinent times, Villani worked as a day-shift
registered nurse in the surgical intensive care unit (SICU)
of the Respondent’s hospital. She typically worked three
12-hour shifts per week. For each shift, one of the 4 to 6
SICU nurses served as the charge nurse and received an
additional $1.50 an hour in wages for the additional du-
ties involved. Villani was an open and active supporter
of the Union, and known as such by the Respondent’s
officials. The complaint alleges that from late November
2007 to mid-January 2008, the Respondent reduced the
number of charge nurse assignments for Villani because
of her protected union activities. The judge found that
the General Counsel met his Wright Line6 burden of
proving that the Respondent reduced Villani’s charge
nurse hours, and that it did so because of her protected
activities. He found that the Respondent failed to meet its
rebuttal burden of showing that it would have made the
same number of charge nurse assignments to Villani
even in the absence of her union activities. In excepting,
the Respondent contends, among other things, that the
General Counsel failed to establish that Villani actually
suffered the alleged adverse employment action—
specifically, that the Respondent did not reduce her

3 The judge found that the Respondent unlawfully prohibited em-
ployees from posting or having union literature in the employee
break/kitchen area. The credited testimony in support of this finding is
that Director of Human Resources Brian Settle told employee Terese
Panebianco that employees were “not allowed to have Union pamphlets
in the break room on the refrigerator.” We shall modify the Order and
notice to conform to the violation proved.
4 The Respondent excepted to this last finding by the judge in its
enumerated exceptions document but failed to present any supporting
argument. Therefore, in accordance with Sec. 102.46(b)(2) of the
Board’s Rules and Regulations, we disregard those exceptions. Holsum
de Puerto Rico, Inc., 344 NLRB 694 fn. 1 (2005), enfd. 456 F.3d 265
(1st Cir. 2006).
The Respondent excepts to the judge’s drawing of an adverse infer-
ence from its noncompliance with a subpoena. However, the judge
specifically noted that: “[t]his adverse inference is not relied on in any
way by me in deciding any of the issues in this case.” We therefore
find no need to pass on the exception.
5 There are no exceptions to the judge’s resolution of all other unfair
labor practice issues.
6 Wright Line, 251 NLRB 1083 (1980), enfd. 662F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393, 399–403 (1983).
NAPLES COMMUNITY HOSPITAL 965
charge nurse assignments for the period in question. We
find merit in this exception.7
The Respondent has an informal, nonprioritized sys-
tem for assigning the charge nurse shift position. For
day-shift assignments, the clinical coordinator on the
preceding night shift, after consultation with the charge
nurse for that shift, selects the next day-shift charge
nurse and communicates this assignment by placing a
post-it note on the timeclock. The assigned nurse, how-
ever, does not necessarily perform the charge nurse duty.
Instead, shift nurses frequently give charge nurse as-
signments to one another. If a nurse other than the origi-
nally assigned nurse works the charge nurse shift, that
nurse simply makes a correction entry in the timeclock
system. Villani, herself, testified that she often switched
with the assigned charge nurse, that this was a common
practice for the nurses to do among themselves, and that
there was thus a significant difference between the num-
ber of times a nurse was assigned charge nurse duties and
the number of times the nurse actually worked those du-
ties.
The Respondent did not retain the original post-it as-
signment notes, so there is no documentary evidence
directly showing how many charge nurse assignments
were made to Villani, as opposed to how many charge
nurse shifts she actually worked. Villani testified that in
the period before late November 2007, she was assigned
charge nurse duties 65–75 percent of the time. As a re-
sult, she worked as charge nurse for approximately two
out of three shifts each week. Villani further testified
that in late November 2007, she noticed her paychecks
were smaller and that she was not receiving charge nurse
assignments. On direct examination, she said that she
only worked three shifts as a charge nurse from late No-
vember 2007 to mid-January 2008, but on cross-
examination she conceded that the Respondent’s records
showed she worked as charge nurse on eight shifts.
Nurse Jacquelyn Rasmussen testified that she preferred
not to serve as a charge nurse, but during the late No-
vember 2007 to mid-January 2008 period at issue she
was assigned charge nurse duties once or twice per
week—more than her usual assignments of once or twice
per month. Rasmussen speculated that she was getting
charge nurse assignments that had previously gone to
Villani.
In concluding that the Respondent unlawfully curtailed
Villani’s charge nurse assignments, the judge did not rely
on the testimony of Villani and Rasmussen. Rather, he
relied on certain documents in the record—the “NCH

7 Accordingly, we do not pass on whether the General Counsel met
his initial Wright Line burden in other respects.
Healthcare System Posted Schedule Detail” from June 24
to July 19, 2008, and the Respondent’s compilation of
“charge distribution and utilization from the period of
January 1, 07 through February 2, 08.” Ultimately, the
judge found that the documents showed that, during the
2-month period in question, “the number of times [Vil-
lani] worked as a charge was reduced resulting in a re-
duction of her pay.”
The Respondent disagrees with the judge’s interpreta-
tion of the record documents. It submits that Villani es-
sentially worked her usual number of charge nurse shifts,
or more, during the 2-month period in question. Al-
though we have doubts about the judge’s interpretation,
we need not resolve the matter. Even assuming that Vil-
lani did work fewer charge nurse shifts than usual, the
documentary evidence does not establish that the Re-
spondent reduced her charge assignments. The docu-
ments do not purport to show—and do not show—the
number of charge nurse shifts the Respondent assigned to
Villani or to any other nurse. They show only the charge
nurse shifts that Villani and the other nurses actually
worked. There is no way of knowing what percentage of
the charge nurse shifts worked by Villani before, during,
or after the period in dispute resulted from the Respon-
dent’s original assignments, rather than assignments
traded with other nurses.
We are left then with the testimony of Villani and
Rasmussen. The judge did not rely on this testimony, but
neither did he discredit it. We find that this testimony,
even if credited, is insufficient to prove the alleged ad-
verse employment action. Villani’s testimony was con-
cededly inconsistent as to the number of charge nurse
shifts she actually worked from late November 2007 to
mid-January 2008. Further, although she testified that
she participated in the widespread and regular practice of
trading charge nurse assignments, her testimony provides
no specific insight as to how many of the charge nurse
shifts that she worked resulted from this informal trad-
ing. As for Rasmussen, her testimony provided no ob-
jective basis supporting her speculation that she received
assignments that would ordinarily have been given to
Villani, as opposed to any other nurse working that shift.
In sum, the General Counsel failed to satisfy his initial
burden of proving that the Respondent actually reduced
Villani’s work assignments from late November 2007 to
mid-January 2008. Accordingly, we shall dismiss the
complaint allegation that the Respondent unlawfully re-
duced Villani’s charge nurse hours.8

8 Contrary to his colleagues, Member Pearce would adopt the
judge’s finding that the Respondent violated Sec. 8(a)(3) by reducing
Mary Villani’s charge nurse assignments from late November 2007 to
mid-January 2008. As found by the judge, Villani was a prominent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 966
ORDER
The National Labor Relations Board orders that the
Respondent, Naples Community Hospital, Inc., Naples,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Creating the impression that employees’ union and
other protected, concerted activities are under surveil-
lance.
(b) Prohibiting employees from posting union litera-
ture in the employee break/kitchen area.
(c) Telling employees that they are not permitted to
engage in union and other protected, concerted activities
in nonwork, nonpatient care areas.
(d) Prohibiting employees, in the parking garage at Re-
spondent’s facilities, from distributing union literature in
nonwork, nonpatient care areas.
(e) Prohibiting employees from posting union litera-
ture in nonwork, nonpatient care areas where other non-
union literature and materials are posted.
(f) Soliciting employee complaints and grievances and
impliedly promising to remedy them if employees refrain
from engaging in union organizing activity.

union supporter, member of the union organizing committee, and—as
acknowledged by the Respondent—a union activist. She was also the
victim of or witness to several of the Respondent’s unfair labor prac-
tices. As to each of those unfair labor practices, the judge credited
Villani’s testimony over the Respondent’s witnesses in finding the
violations.
In November 2007, Villani was the sole pictured employee on a
campaign leaflet distributed at the hospital, criticizing the Respondent.
Villani testified that beginning that same month, her charge nurse as-
signments declined, and remained down until she publicly protested her
reduction in assignments at a mid-January press conference. Employee
Jacquelyn Rasmussen corroborated Villani’s uncontradicted testimony
and testified, similarly without contradiction, that Villani’s assignments
declined during this period while Rasmussen’s charge nurse assign-
ments increased. Rather than dispute this consistent testimony, the
Respondent’s witnesses merely disclaimed responsibility for the charge
nurse assignments and asserted ignorance as to how frequently Villani
was assigned the higher-paying charge nurse work. By expressly dis-
crediting this respondent testimony, the judge implicitly credited the
corroborative and uncontradicted testimony of Villani and Rasmussen
that Villani’s charge nurse assignments had, in fact, decreased, as al-
leged in the complaint. Further, as found by the judge, the Respon-
dent’s exhibit reflecting charge nurse work that Villani performed
during this period, supports, rather than undermines Villani’s and Ras-
mussen’s credible testimony. That the more reliable record of actual
charge nurses assignments was not retained by the Respondent does
not, in Member Pearce’s view, undercut their testimony, but demon-
strates that that the Respondent failed to meet its Wright Line rebuttal
burden.
In sum, Member Pearce agrees with the judge that the General
Counsel met his initial Wright Line burden of proving unlawful motiva-
tion for the reduction in assignments, and that the Respondent failed to
meet its rebuttal burden of showing that it would have taken the same
action in the absence of Villani’s prominent union activity. Accord-
ingly, Member Pearce would adopt the judge’s finding of a violation.
(g) Telling employees that they are not permitted to
engage in union and other protected, concerted activities
unless they receive prior permission and approval from
Respondent.
(h) Maintaining and enforcing overbroad restrictions
on employees’ rights to engage in solicitation and the
distribution and posting of written or printed materials.
(i) Issuing verbal or written disciplines because em-
ployees assist the Union and engage in concerted activi-
ties, and to discourage employees from engaging in these
activities.
(j) 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 policies of the Act.
(a) Rescind in its employee handbook and on its web-
site the following policies and rules regarding solicita-
tion, distribution, and posting of written or printed mate-
rials, and notify employees that this action has been
taken.

D . . . Employees that wish to solicit for community
charitable organizations must request permission on the
“Solicitation Approval Form.” The request will be
evaluated on its merits and will either be approved or
denied by the Chief Human Resources Officer or des-
ignee. Requests to solicit for personal profit, political
causes or organizations representing any protected or
non-protected groups will routinely be denied.

(b) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful verbal
and written discipline given to Sandi McGoun and the
unlawful verbal disciplines given to Janice Cothran and
Nike Saltzer, and within 3 days thereafter notify Sandi
McGoun, Janice Cothran, and Nike Saltzer in writing
that this has been done and that the verbal and written
disciplines to Sandi McGoun and the verbal disciplines
to Janice Cothran and Nike Saltzer will not be used
against them in any way.
(c) Within 14 days after service by the Region, post at
its facility in Naples, Florida, copies of the attached no-
tice marked “Appendix.”9 Copies of the notice, on forms
provided by the Regional Director for Region 12, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including

9 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
NAPLES COMMUNITY HOSPITAL 967
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaces, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at that facility at any time since August 6,
2007.
(d) Within 14 days after service by the Region, post
the attached notice marked “Appendix” electronically on
the Respondent’s intranet with a link sent by electronic
mail to its employees.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply with the provisions of this Order.
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.

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 create the impression that your union
and other protected, concerted activities are under sur-
veillance.
WE WILL NOT prohibit you from posting union litera-
ture in the employee break/kitchen area.
WE WILL NOT tell you that you are not permitted to en-
gage in union and other protected, concerted activities in
nonwork, nonpatient care areas.
WE WILL NOT prohibit you, in the parking garage at our
facilities, from distributing union literature in nonwork,
nonpatient care areas.
WE WILL NOT prohibit you from posting union litera-
ture in nonwork, nonpatient care area where other nonun-
ion literature and materials are posted.
WE WILL NOT solicit your complaints and grievances
and impliedly promise to remedy them if you refrain
from engaging in union organizing activity.
WE WILL NOT tell you that you are not permitted to en-
gage in union and other protected, concerted activities
unless you receive prior approval and permission from
us.
WE WILL NOT maintain and enforce overbroad restric-
tions on employees’ rights to engage in solicitation and
the distribution and posting of written or printed materi-
als.
WE WILL NOT issue verbal or written disciplines be-
cause you assist the Union and engage in concerted ac-
tivities, and to discourage you from engaging in these
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind in our employee handbook and on
our website the following policies and rules regarding
solicitation, distribution, and posting of written or printed
materials, and WE WILL notify you that this action has
been taken:

D . . . Employees who wish to solicit for community
charitable organizations must request permission on the
“Solicitation Approval Form.” The request will be
evaluated on its merits and will either be approved or
denied by the Chief Human Resources Officer or des-
ignee. Requests to solicit for personal profit, political
causes or organizations representing any protected or
non-protected groups will routinely be denied.”

WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful verbal and written disciplines given to Sandi McGoun
and the unlawful verbal disciplines given to Janice Co-
thran and Nike Saltzer, and WE WILL, within 3 days
thereafter notify Sandi McGoun, Janice Cothran, and
Nike Saltzer in writing that this has been done and that
the verbal and written disciplines to Sandi McGoun and
the verbal disciplines to Janice Cothran and Nike Saltzer
will not be used against them in any way.

NAPLES COMMUNITY HOSPITAL, INC.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 968
Karen M. Thornton, Esq., for the General Counsel.
James G. Brown, Esq. (Ford & Harrison LLP), of Orlando,
Florida, and Donald R. Lee, Esq. (Ford & Harrison LLP),
of Atlanta, Georgia, for the Respondent.
Gene Mechanic, Esq. and Katie Roberson-Young, Esq., for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. This case was
tried in Naples, Florida, on August 4–8, 2008. The original
charge was filed by Service Employees International Union
Healthcare Florida (the Charging Party, the Union, or SEIU),
on January 10, 2008, the amended charge was filed on February
20, 2008, and the complaint was issued April 28, 2008. As
amended, it alleges that Naples Community Hospital, Inc. (Re-
spondent) (1) violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by (a) creating the impression that em-
ployees’ union and other protected, concerted activities were
under surveillance; (b) prohibiting employees from posting or
having union literature in the employee break/kitchen area; (c)
telling employees that they were not permitted to engage in
union and other protected, concerted activities in nonwork,
nonpatient care areas; (d) prohibiting employees from distribut-
ing union literature in a nonwork, nonpatient care area, namely,
the parking garage; (e) prohibiting employees from posting
union literature in nonwork, nonpatient care areas where other
nonunion literature and materials were posted; (f) soliciting
employee complaints and grievances and impliedly promised to
remedy them if employees refrained from engaging in union
organizing activity; (g) telling employees that they were not
permitted to engage in union and other protected, concerted
activities unless they received prior permission and approval
from the Employer; and (h) maintaining in its employee hand-
book and enforcing a policy which contains the following:
“Requests to solicit for . . . organizations representing any pro-
tected or nonprotected groups will routinely be denied,” and (2)
violated Section 8(a)(1) and (3) of the Act by (a) issuing a ver-
bal and then a written discipline to its employee Sandi McGoun
because she assisted the Union and engaged in concerted activi-
ties and to discourage employees from engaging in these activi-
ties; and (b) changing the working conditions of its employee
Mary Villani by failing to assign her charge nurse duties as it
had done previously because she assisted the Union and en-
gaged in concerted activities and to discourage employees from
engaging in these activities. Respondent denies violating the
Act as alleged in the above-described complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the General Counsel, the Charging Party, and
Respondent on October 14, 2008, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, provides acute health care
and outpatient services at two hospital buildings and at various
other locations in Naples, Florida, and throughout Collier
County, Florida, where during the 12 months before the above-
described complaint was issued (a) it derived gross revenues in
excess of $250,000, and received revenues in excess of $50,000
from the United States Government through Medicare and
Medicaid program payments, and (b) in conducting its business
operations it purchased and received at its Naples facility,
goods and materials valued in excess of $50,000 directly from
points located outside the State of Florida. The Respondent
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent has a total of approximately 3200 employees,
with roughly 1000 registered nurses (RNs) at facilities de-
scribed above.
Caleb Jennings, who is an organizing coordinator for the Un-
ion, testified that the Union was contacted by nurses at Respon-
dent’s Hospital in June 2007; and that he met with about 70 of
Respondent’s nurses during June 2007 to discuss the issues, to
determine whether the nurses wanted to organize a union at
Respondent, and to form an organizing committee.
John Brown, who is Respondent’s director of public safety,
testified that there are 32 security guards; that John Griffith is
the supervisor for Respondent’s downtown facility and Valerie
Barbaccia is the supervisor for Respondent’s North Naples
hospital; that on June 12, 2007, he sent an email (R. Exh. 4), to
all members of uniformed security department of the hospitals,
with a cc going to Brian Settle, who is Respondent’s chief hu-
man resources’ officer, and Renee Thigpen, who is Respon-
dent’s human resources director, indicating that he did not au-
thorize them to disband employees who were found in groups
discussing union activities1; that in June 2007 he attended train-
ing in a leadership retreat in the Telford Building (located on
Respondent’s downtown campus) that was provided to all ex-
ecutives, directors, and managers; that part of the class was
training with respect to what employers can and cannot do; and
that his security guards were not there but Supervisors Griffith
and Barbaccia were and he told these two supervisors to discuss
their training with the officers.
On cross-examination, Brown testified that he put “[s]upper-
visors will immediately insure that each officer assigned has
read and fully understands this message and prior to 0700,
Wed. June 13 certify completion in writing to me” because he
had already given his expectations and they had this misunder-
standing so he wanted to make sure that everyone understood
what the rules were; that he believed that Respondent’s no-
solicitation/no-distribution policy and the posting of materials
on bulletin boards and elevators and elsewhere was discussed at
the training session at the leadership retreat “in August 2007”
(Tr. 666); that the bulletin board policy is in the employee
handbook; that when he was hired he received an employee
handbook (he believed); and that he sign a confidentiality

1 The email indicates “[u]nder no circumstances will any officer ap-
proach any other employee unless there conduct is in violation of pol-
icy or law.”
NAPLES COMMUNITY HOSPITAL 969
agreement and he was not sure he could say how often he signs
that.
When called by Respondent, Thigpen sponsored Respon-
dent’s Exhibit 12, which she testified is a document that (a)
Respondent has all new employees sign when they hired, and
(b) indicates that the new employee has received

our CD that describes the policies, the employee handbook,
our standards of behavior, corporate compliance, confiden-
tially, no-disclosure act, et cetera, shows them where to go to
get things. It tells them that if they don’t have a computer and
would like a hard copy, they can come to Human Resources
and receive a hard copy of policies and handbook. [Tr. 905.]

Thigpen further testified that this particular form has been in
effect since May 2007 but Respondent had a document similar
to this since Respondent went electronic (computerized) with
its policies; that the purpose of the document is to ensure that
Respondent has covered this information with the employees
and they know where to find the policies or handbook or an-
swer any questions; that paragraph 6 of the document tells em-
ployees that they can access the handbook and the personnel
policies via the NCH intranet; and that paragraph 2 of the
document refers to the employee handbook and indicates that
by signing the document the employee agrees to read the hand-
book and refer to it and also to refer to the human resources
policy and procedure manual on the intranet.
Thigpen testified that probably in late June into July 2007
she became aware that unknown persons were using the hospi-
tal’s fax machines and tube system to distribute union literature
and posters. On cross-examination, Thigpen testified that “it
may have been, yes” (Tr. 921), that Nunso’s organization also
used Respondent’s fax and tube system to distribute their litera-
ture;2 that department directors were instructed to meet with
their employees and let them know that the fax and tube should
not be used for nonwork related matters; that she did not recall
if Respondent had any document reflecting that communication
with management; and that she did not know if in fact Respon-
dent caught anyone who misused the fax or tube.
McGoun, who has been a registered nurse (RN) for Respon-
dent in its downtown medical intensive care department and
who works from 6:45 a.m. to 7:15 p.m., testified that in July
2007 Doctor Alan Weiss came up to the intensive care unit to
speak to the nurses; that Weiss said that there were some finan-
cial difficulties and that they were going to have to tighten their
belts; that a lot of the nurses who were good team players used
a lot of their paid time off; that at the end of July 2007 the
nurses heard that upper management had given themselves
close to a 20-percent raise and a bonus; that the nurses met with
Weiss looking for an explanation but they did not get the an-
swers they would have liked; that she went to a union meeting
and became a member of the organizing committee; that she
made phone calls on behalf of the Union, she gave out union
leaflets, she tried to inform some of the nurses, she tried to get
people to sign cards, and she was interviewed and quoted by
the local newspaper after one of the first union meetings; and
that she wore purple laces on her shoes and starting in July

2 As noted herein, this organization opposes SEIU.
2007 she wore a little organizing committee badge so nurses
would know that they could come to her if they had any ques-
tions.
Thigpen testified that in late June or early July 2007 Re-
spondent formally became aware of an effort of the nurses to
unionize; that in response to this information Respondent’s
executive group met; that this group consists of Allen Weiss,
who is the chief executive officer; Brian Settle, who is Respon-
dent’s chief human resources officer; Phil Dutcher, who is the
chief operations officer for the downtown campus; Carrie
Skifton, who is Respondent’s chief nursing officer; Gail Dolan,
who is the chief operations officer for the North Naples cam-
pus; Kevin Cooper, who is the general counsel; and Linda Roe-
back, who is the general counsel working under Cooper; that
she did not recall when they discussed the no solicitation policy
but she believed it was after they learned about the union cam-
paign; that there were no changes in the solicitation and distri-
bution policy between May 2001 and when the union campaign
began; and that, as described below, the change of this policy
was approved August 30, 2007, or about 2 months after Re-
spondent became aware of the union campaign.
On July 19, 2007, the nurses held a union meeting and com-
mitted to moving forward with the union campaign.
On July 26, 2007, the union campaign was publicly launched
with two meetings (at 5 and 8 p.m.) at the Bellasera, which is a
hotel near Respondent’s downtown campus, where union au-
thorizing cards were distributed and signed. Jennings testified
that a total of approximately 300 nurses came to these meet-
ings; that a letter titled “We’re Uniting for Quality Care and
Quality Careers” to “Dear RN colleague” was distributed and
mailed on July 26, 2007, following this meeting (GC Exh.
17(a)); that the letter contains the names and signatures of the
nurses on the organizing committee;3 General Counsel’s Ex-
hibit 17(b) is another union flyer signed by a number of nurses
in the surgical intensive care unit (SICU) at Respondent’s
downtown campus, including Villani and McGoun; that Gen-
eral Counsel’s Exhibit 17(h) is the flyer which was handed out
with small packets of candy on Halloween in 2007; that Gen-
eral Counsel’s Exhibit 17(j) on one side has a picture of just
RN Terese Panabianco with an article entitled “Don’t Fall for
Management’s Raises—They’ve Tried This Tactic Before”;
that General Counsel’s Exhibit 17(l) is two letters to “Dear
Fellow RNs” on a letterhead which gives the names of those on
the organizing committee so that their coworkers knew who to
go to when they had questions about the Union;4 that these
letterheads include the names of McGoun, Panebianco, and
Villani; and that members of the organizing committee wore a
special pin and they also wore purple “Crocs,” which are shoes.
On Friday, July 27, 2007, the following article (GC Exh. 19),
appeared in the Naples Daily News:

NCH nurses put union to a vote
Results of vote on unionizing efforts to be released today
. . . .

3 The name of Villani appears in the first column and the name of
McGoun appears in the third column.
4 One is dated September 25 and the other is dated September 26,
2007.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 970
More than 300 nurses, some sporting scrubs and others
wearing street clothes, trickled into the lobby of the Bel-
lasera Hotel in Naples on Thursday with the issue of un-
ionization on their minds.
The nurses, all part of the NCH Healthcare System, at-
tended two meetings at the hotel aimed at reaching a deci-
sion on the nursing staff’s unionizing efforts. Nurses put
the issue to a vote and the results will be released today.
“We are hoping to achieve having a voice, being able
to speak with administration and be heard,” said Caryl P.
Godwin, a nurse for 22 years. “There are many issues, but
the bottom line is that we wouldn’t be here if we didn’t
have concerns.”
The nursing staff at NCH began talking of organizing
in recent months after mounting discontent over job cut-
backs that led to higher patient ratios and disagreements
over how work hours are accrued.
But it wasn’t until the NCH board of trustees awarded
19 percent bonuses to Dr. Allen S. Weiss, the hospital’s
president and CEO, and seven senior managers in late
May that morale hit rock bottom.
“This is the biggest disconnect I’ve ever felt between
us and management,” said Sandie McGoun, a nurse for 30
years.
That rift led to Thursday’s two meetings, the first of
which hosted 200 nurses.
But hours before the gatherings Weiss released a letter
laying out the board of trustees’ plans on how to rectify
the divide between the NCH’s administration and the nurs-
ing staff. The board met Wednesday to discuss the issues.
Some of the moves included an 8 percent to 10 percent
raise for the nursing staff (6 percent to 8 percent for all
other employees), appointing an NCH nurse to the board
of trustees, creating a fund for employee year-end bonuses
and establishing a chief medical officer position to im-
prove interactions between physicians, nurses and other
caregivers.
“All of these positive actions by the Board of Trustees
reflect a clear intent and effort on the part of the hospital
leadership to listen to your concerns and respond to your
recommendations,” Weiss said in the letter. “Our desire to
do the right thing for all of you may not always be appar-
ent. And I personally apologize for any unintended conse-
quences.”
. . . .

Counsel for the General Counsel indicated that this article was
not being offered for the truth of the matter asserted therein.
McGoun, who had not received a discipline in perhaps the
last 15 or 20 years, received a “COACHING FORM” dated
“7/31/07” (GC Exh. 3), from Respondent which indicates “I
have received complaints on 2 separate occasions, 7/25/07 and
7/30, from the Nursing Director of 3N regarding Ms. McGoun
visiting her unit and interrupting her staff with nonrelated pa-
tient care activities while that staff was trying to work.”
McGoun testified that she received a verbal counseling in Au-
gust 2007 from her assistant nurse manager and Clinical Coor-
dinator Jen Ringle about speaking; that at the meeting she had
with Ringle about this discipline, Ringle told her that she was
observed talking about the Union on 3 North nurses’ station,
which is next to progressive care, which is intensive care; that
she was at the nurses’ station and at the elevator on 3 North;
that she did not remember Ringle mentioning a hospital rule or
a policy during this meeting; that she had been told by the un-
ion people that if they were allowed to talk about their children
or sports events, they could talk about the Union; that she could
not remember if she told Ringle this; that Ringle told her that
she, Ringle, did not want to discipline her but someone from 3
North called her about McGoun and she, Ringle, felt she had to
do it; that she did not consider the nurses’ station and elevator
patient care areas; that she has no recollection of talking about
the Union at the elevator; that with respect to the conversation
at the nurses’ station on 3 North, Carl Westman, Respondent’s
chairman of the board, came up to the progressive care nurses’
station in the afternoon from the direction of 3 North and he
summoned the nurses to talk to them; that she had been floated
(assigned to a unit other than her normal unit to meet the hospi-
tal’s need) to progressive care so she was in the area; that for 10
minutes Westman explained to the nurses that he really did not
get a 20-percent raise or a bonus; that after Westman left pro-
gressive care she received a telephone call from one of the
nurses on 3 North who usually works in progressive care, Mary
DeBellis, who asked her to come to 3 North because she
wanted to talk about Westman; that before she left progressive
care she asked someone to cover her patients while she was
gone; that she walked about 20 feet to the nurses’ station on 3
North and spoke with DeBellis for about 3 minutes; that there
was just the two of them at the nurses’ station on 3 North at the
time; that they discussed Westman and Weiss in that the latter
had never denied taking the raise; and that she did not recall
any rule that the Employer may have about what you can and
cannot talk about while at work.
On cross-examination, McGoun testified that she dated her
signature on the coaching form (GC Exh. 3), “7/31/07”; that on
the day in question she had been floated from her usual unit,
intensive care, to progressive care; that the nurses’ station is a
working area for the nurses in that they do charting there and
there are telephones there; that when she had the conversation
with DeBellis she and DeBellis were both on working time;
that being outside her assigned unit talking to a fellow nurse
happens frequently; that she did not remember what she said to
Ringle when Ringle gave her the coaching form; that she
thought that there were just the two of them in the office at the
time; and that she believed that she told the union people about
this verbal or coaching form and submitted an incident report to
the Union when she was given this discipline but she could not
remember.
Thigpen testified that neither she nor Settle get involved in
coaching forms; that she was not involved in McGoun’s coach-
ing form; that she did not recall if she got involved in dealing
with the subject of that coaching form; that Charging Party’s
Exhibit 7 from Ringle to her dated July 31, 2007, which reads
“[a]ttached is coaching I did with Sandi. It went much better
than anticipated” demonstrates that as of the time of this email
she, Thigpen, had knowledge of McGoun’s coaching form; and
that McGoun received this coaching for being out of her work
area and not for a violation of the solicitation policy.
NAPLES COMMUNITY HOSPITAL 971
Villani testified that Charging Party’s Exhibit 11 is a union
incident report she filled out for McGoun since McGoun was
very shaken up about what happened. The report is dated
“7/27/07.” It indicates that the date of the occurrence was
“07/27/07,” the department is 3N downtown, and the name of
the supervisor involved is Stacey who has the title of “CC.”
The following appears in the “[d]escription of Incident” portion
of the form: “[a]t 3N nurses station Mary DeBellis RN and
Sandy McGoun discussing the board and Mr. Westman trying
to convince staff nurses that board did not receive 19 percent
raise at nurses station—Jen Ringle warns Sandy McGoun.”
On cross-examination, Villani testified that the board de-
scribed in the incident report is the hospital board and Westman
was trying to convince staff nurses at the nurses’ station that the
board did not receive a 19-percent raise; that she spoke with
McGoun and DeBellis and McGoun was at the nurses’ station
on 3 North discussing what Westman told the nurses at 5:40
p.m.; that the coaching form that McGoun received (GC Exh.
3), is dated 7/31 and has Director Ringle’s signature; that she
does the variances (incident reports) at home at night and she
was not sure that she did not write it out afterwards; and that
she spoke with McGoun at work and DeBellis on the telephone.
Stacy Gutierrez, who is the day-shift clinical coordinator and
charge nurse on 3 North (telemetry unit) and who supervises
the RNs in the unit, testified that she knows RN McGoun who
works in PCU and wears pink5; that in late July 2007 she saw
McGoun at the nurses’ station in telemetry but she could not
recall the time of day; that she was about 30-feet away from
McGoun, who was talking to DeBellis, who is a float nurse
who was working on the telemetry unit that day; that she ob-
served DeBellis and McGoun for a couple of minutes but she
could not hear what they were talking about; that at the nurses’
station doctors retrieve information from patient charts, it is
were the computers are located, the secretary answers the tele-
phone, and it is a very busy area; that since she had to leave the
nurses’ station she did not know how long McGoun was there
and she did not see McGoun leave the area; that when she
started in this position about 3 years ago she was instructed by
her director, Lori Preece, to report any change in a typical day
to her; and that since she did not receive a transfer form from
PCU, McGoun and DeBellis were not discussing a patient
transfer.
On cross-examination, Gutierrez testified that another thing
which was not typical that day was that the administrative co-
ordinator brought around one of the board members, Westman,
to the telemetry unit; that the administrative coordinator asked
her if she wanted to gather the nurses to the nurses’ station to
hear what Westman had to say; that Westman was in the unit
for maybe a couple of minutes; that she reported this to Preece;
that before this she had never reported to Preece any other
nurse for similar conduct; that this was the first time she ex-
perienced something like this; that she told Preece who
McGoun was talking with; that she could not recall if anyone
ever asked her about her report to Preece that McGoun was at
the nurses’ station in telemetry talking to DeBellis; that a visit-

5 Gutierrez testified that she did not remember seeing McGoun wear-
ing purple.
ing nurse did attend a staff meeting; that she did not see the
visiting nurse in any area where she was working; that she
never saw the visiting nurse talking to RNs on the floor of the
telemetry unit; that she has signed acknowledgments of receipt
of, as here pertinent, the hospital’s policies with respect to (a)
confidentiality regarding patients, doctors, and medical infor-
mation, and (b) no-solicitation/no-distribution; that nurses
could have a birthday party or a shower in the employee lounge
on the telemetry unit, occasionally nurses do come back who
are off duty to attend such a party and she would not report this
to Preece; that before McGoun came into telemetry that day
DeBellis was listening to Westman and asking him questions;
that she considers the nurses’ station to be an immediate patient
care area because patients come to the desk to ask questions,
they receive patients from the emergency room at the main
nurses’ station, that is where charts are dropped off, patients are
on a stretcher next to the nurses’ station while the transporter is
receiving their chart, and sometimes a patient will receive
medication with a drink of water at the nurses’ station; that she
could not recall if there was a patient at the nurses’ station on
the day she saw McGoun and DeBellis talking; that when
Westman left telemetry he went next door to PCU and she saw
McGoun, through the glass on the doors to PCU, standing at the
nurses’ station in PCU when Westman was speaking there; and
that she reported McGoun to Preece because the situation was
atypical and not because McGoun violated any hospital rule.
Ringle, who is the clinical coordinator of critical care, testi-
fied that she reports to Jonathon Kling; that McGoun works in a
critical care unit, namely intensive care; that she signed
McGoun’s “7/31/07” coaching form along with Kling, who was
her interim director at the time; that she gave McGoun the
coaching form because she had received complaints from Nurs-
ing Director Preece on 3 North that McGoun had been visiting
the unit and disrupting, or talking to her staff who were trying
to do work; that she telephoned Thigpen and she, Ringle,
brought up the coaching; that there were no points involved
with this coaching and its purpose was an informal; that she
typed the coaching form which indicates, among other things,
“[n]ot visiting other units and interrupting staff that are on work
time with nonpatient care-related concerns, issues, or activi-
ties”; that she did not know where McGoun was in the unit she
just knew that McGoun was on 3 North; that she spoke with
McGoun about the coaching in Kling’s office; that McGoun did
not write anything on the coaching form; and that during her
discussion of the coaching, McGoun was upset initially, saying
that she was being singled out and picked on.
On cross-examination, Ringle testified that she did not do
any investigation into Preece’s complaints regarding; that
Preece told her that on two separate occasions McGoun was in
Preece’s unit talking with her staff who were on their (plural)
work time, and McGoun was not allowing their staff to do their
work; that she did not discuss the matter with McGoun before
drafting the coaching; that she did not talk with anybody on 3
North other than Preece about this matter; that with respect to
the alleged incident when McGoun was allegedly on 3 North
speaking with someone other than DeBellis, she, Ringle, did
not have any details about what allegedly happened on July 25,
2007, she did not know how long McGoun was allegedly there,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 972
and she did not know who the other person was; that she tele-
phoned Thigpen “because of the fact that there was Union ac-
tivity going on. I wanted to make sure I was doing things cor-
rectly” (Tr. 767 and 768); that Thigpen reviewed McGoun’s
coaching form before she, Ringle, issued it to McGoun; that
after she issued the coaching form to McGoun, she, Ringle,
communicated back to Thigpen (GC Exh. 3); that she does not
do this with all coaching forms but she felt that she needed to
do it with respect to McGoun’s because “there was union activ-
ity potential involvement . . . .” (Id. at 768); that she thought
that there was union activity potentially involved in that she
“was concerned there would be a misperception as far as an
employee leaving a unit, and I was concerned over mispercep-
tions as far as . . . [McGoun] leaving and talking to people and
coming back that was not related to patient care activities” (Id.
at 768 and 769); that Preece did not mention union activity to
her; that the only investigation needed in this situation was the
conversation with Preece; that she had no firsthand knowledge
of whether McGoun’s presence on 3 North on the two dates
specified had any impact on patient care and in issuing the
coaching she was relying on what Preece told her; that two
nurses at the nurses’ station could have a conversation about
their children’s soccer game or something like that since that is
allowed; that she contacted Thigpen because she, Ringle, was
worried about misperceptions in that she did not want the
McGoun situation to be viewed as related to antiunion activity
that even though she did not know what McGoun was speaking
about, she was concerned because “that was the whole climate
of the organization at that point in time. Everything was being
focused on, related to the Union” (Id. at 773); that the employee
is always allowed to tell their side of the story at the coaching
meeting but not before she decides to give them a coaching;
that before giving McGoun the coaching form she was con-
cerned about McGoun’s response; that as a matter of course she
generally does not send coaching forms to human resources;
and that with respect to McGoun responding in writing to the
coaching, she did not give McGoun any more details than are
on the coaching form, namely “I have received complaints on 2
separate occasions, 7/25/07 and 7/30, from the Nursing Direc-
tor of 3 North regarding Ms. McGoun visiting her unit and
interrupting her staff with non-related patient care activities
while that staff was trying to work.” (GC Exh. 3).
On redirect, Ringle testified that there is a difference in (a) a
nurse talking to another nurse on the same unit, and (b) a nurse
talking to another nurse outside of her unit because when they
are both from the same unit they know what activity is going on
and whether they are disrupting that activity; that when they are
not from the same unit there is no way for the outsider to know
whether she is disrupting activity with her conversation since
that nurse is not working in that unit.6
Ringle gave the following testimony on recross:

6 This is strained if not faulty logic in that the nurse who is working
in the unit, here DeBillis, would know and simply could say so. Here,
DeBillis called McGoun and had her come over to the unit DeBillis was
working in that day. There was no showing that DeBillis was disci-
plined.
Q. If an employee in one unit calls an employee in an-
other unit and requests that they come to the nurses’ sta-
tion, is there something improper about the second em-
ployee going to the nurses’ station to see what the first
employee wants?
A. That’s extremely vague. I cannot answer that.

Subsequently, Ringle testified that she did not know if the
same employee in Preece’s unit was involved in both the July
25 and 30, 2007 incidents; that more than one employee in
Preece’s unit might have been involved; that she did not know
whether the employee or employees that McGoun talked to
while she was in Preece’s unit also received coachings; that she
did not ask; and that when she gave McGoun her coaching she
did not tell McGoun that she was observed talking about the
Union on 3 North.
Kling, who is the director of critical care at Respondent’s
downtown campus, testified that he was present at McGoun’s
July 31, 2007 coaching as a witness in that he was clinical co-
ordinator at the time; that he signed the coaching form (GC
Exh. 3); and that he was not involved in the investigation of
that matter. Kling did not corroborate Ringle with respect to her
testimony that when she gave McGoun her coaching she did
not tell McGoun that she was observed talking about the Union
on 3 North.
When called by Respondent, Thigpen testified that General
Counsel’s Exhibit 2, which is Respondent’s “Corrective Action
Policy for Performance Improvement—Policy” and which has a
“Reviewed/Approved” date of “2/08,” was the policy which
was in effect at the time of the trial herein; that section F of the
policy contains some types of unsatisfactory behavior that
could result in some level of corrective action up to and includ-
ing termination; that it is discretionary; that section F.7., which
reads “[d]isruptive behavior and other actions which disturb a
patient or disrupt a fellow employee in the performance of their
duties to include use of obscene or inappropriate language,”
and F.21., which reads “[u]nsatisfactory work performance,”
have been in the policy since the beginning of the policy (The
top of the first page of the exhibit indicates, “Original 7/90.”);
and that Respondent’s Exhibit 11 are a series of corrective ac-
tions for infractions similar (allegedly) to McGoun’s for being
out of the work area or disrupting other employees.7
On cross-examination, Thigpen testified that the employees
included in Respondent’s Exhibit 11 are a cleaning aide, a secu-
rity employee, an Ed Tech in the emergency room, and em-
ployees who work in environmental services, transportation,
radiology, food services, and outpatient rehab; and that there
are no registered nurses in Respondent’s Exhibit 11 and Re-
spondent did not have any examples of registered nurses who
have been disciplined since January 2007 for leaving their
working stations other than McGoun.

7 The exhibit consists of a total of 17 disciplines issued to 11 em-
ployees, none of whom are nurses, between October 1998 and February
13, 2008. Thigpen testified that she believed that the timeframe that
Respondent looked at was 1 year but some of the disciplines outside the
1-year period involved the same employee. Two of these disciplines
refer to failure to clock out.
NAPLES COMMUNITY HOSPITAL 973
Brown testified that on or about August 2, 2007, one of the
three downtown parking garage elevators was vandalized in
that someone spray painted the face of a man on the elevator
wall8; that a review of the video of the camera in the elevator
showed that the vandal was an unidentified female; that the
videos are reviewed in the event of a complaint or if there is a
need to review them; that the matter was reported to the Naples
police department; and that the woman and her companion
were not recognized as employees of NCH.
On Friday August 3, 2007, an article (GC Exh. 20), involv-
ing the Union appeared in the Naples Daily News. The article is
titled “NCH ignores union campaign proposals” and it indi-
cates, in part, that “[t]he nurses’ union organizing committee
submitted to the chairman of NCH’s board of trustees last week
a list of seven campaign guidelines that both parties would have
been required to follow. The nurses asked for a response no
later than the end of the business day Wednesday. NCH offi-
cials did not respond.” The article also indicates “‘[w]e just
wanted to set some ground rules on both sides,’ said Mary Vil-
lani, a 25-year nurse at NCH who works in the surgical inten-
sive care unit at Downtown Naples Hospital.” With respect to
the raises described in the earlier newspaper article, this article
indicates as follows:

Last week, before nurses met to sign union pledge
cards, administrators announced that the board of trustees
plans to give raises of 8 percent to 10 percent this fall to
nurses, and raises of 6 percent to 8 percent to general em-
ployees. The raises would be pending the sale of DSI
Laboratories, an NCH affiliate, to the national company,
LabCorp.
DSI’s sale was finalizes Wednesday, Westman said.
He said Thursday that the board’s vote last week was
unanimous in its intent to give raises in line with what’s
happening in the market. The pay increases would happen
in October with the start of the new fiscal year and not be-
fore, he said.
“We don’t want to do anything we don’t do normally,”
Westman said.
. . . .

This article, which reiterated some of what appeared in the
earlier article described above, was not received for the truth of
the matters asserted therein.
Villani, who is a registered nurse (RN) who worked for Re-
spondent in the downtown SICU and has worked for Respon-
dent for 27 years, testified that she began passing out union
literature around August 2007; that she was a member of the
organizing committee, she made telephone calls, talked to other
nurses, had at least three press conferences, and got union cards
signed; that she passed out union literature around three times a
month, usually in the hallway on the third-floor walkway going
from the garage to the main hospital, with other nurses in the
mornings before shift and occasionally after work; that to show
her support for the Union, she wore a lot of purple, including

8 R. Exh. 5. Brown sponsored this exhibit. This picture of the graffiti
clearly shows that the image was painted under a large cork bulletin
board which is framed by a wood border.
purple “Crocs”‘; that she wrote letters to the editor which were
published in the Naples Daily News; and that her name was
mentioned in other peoples’ letters to the editor which were
published in the Naples Daily News.
Elaine Phillips, who is a RN in the progressive care unit in
the critical care division at the downtown facility and who has
worked for Respondent for 27 years, testified that she was one
of the original members of the organizing committee for SEIU;
that she showed her support for the Union by going to meet-
ings, wearing purple, being very verbal, and appearing on tele-
vision; that in 2006 she and a friend, Jean Werner, went to see
Westman to tell him about some concerns they had; and that
Westman, accompanied by a Mr. Morrison9, came to see her
after it became known that SEIU was organizing, and they
wanted to discuss why she felt the employees needed a union.
On cross-examination, Phillips testified that while off duty
she handbilled four or five times outside the elevators on the
bridge between the garage and the downtown hospital; that no
one stopped her; and that she placed union literature in the
nurses lounges in other units (2 and 3 North) about three times
while she was off duty and no one stopped her.
Panebianco, who was hired by Respondent in 1991 and
works the day shift, weekdays as the full-time charge nurse in
the preadmission testing unit in Respondent’s downtown facil-
ity, testified that her unit is directly across the hall from the
blood donation center and is down the hall from occupational
health (OH); that she became a member of the RN union orga-
nizing committee; that she attended union meetings, handed out
information, answered questions, wore a purple bracelet and an
SEIU sticker, and posted union literature in the breakroom on
the refrigerator; that her department’s breakroom, which is also
used by the blood donation center and OH, does not have a
bulletin board so the refrigerator is used for posting; that she
began posting union material on the breakroom refrigerator at
the end of July or the beginning of August 2007; that the refrig-
erator is used to post uniform sales, bake sales, baby showers,
Christmas parties, and just general information the people who
use this breakroom want to communicate with other depart-
ments; that on August 6, 2007, before she clocked in that morn-
ing she posted an 8-by-7 inch union flyer on the refrigerator in
her department’s breakroom; that the refrigerator was crowded
with other leaflets but she did not remove anything; that about 8
a.m. she went back to the breakroom to get her breakfast out of
the refrigerator and her flyer was down and there flyers up in its
place, antiunion flyers, namely Here’s are the Facts10; that she

9 There is a John Morrison on Respondent’s board of trustees.
10 GC Exh. 24 is a “Here’s the Facts . . .” that she has seen posted on
the refrigerator. As here pertinent the document reads as follows:
Recently agents of the SEIU Healthcare Union have been vio-
lating NCH policy by placing flyers in improper locations on
NCH property. If you have seen one of these flyers, we believe
you should know the FACTS before deciding if you want to sup-
port the union.
SEIU statement: “SEIU Healthcare (is) a national organiza-
tion of healthcare workers with more than 1 million members.”
FACT: . . . .
SEIU statement: “(We are a) democratic, member-run organi-
zation. Members vote to elect leaders and on key issues.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 974
went back to her office and telephoned OH and asked to speak
to Mark Pitts because his OH office is directly across the hall
from the breakroom and she thought that someone might have
seen someone in the breakroom removing her flyers; that there
is a receptionist to the left of the door into OH; that she asked
Pitts who was taking down her flyers for the Union; that Pitts
said, “I’m not going to speak to you about that, I’ve reported
you to Human Resources” (Tr. 383); that she asked Pitts if he
was watching her; that Pitts said, “[Y]es, I’m watching you and
I’m monitoring your activities” (Tr. 83 and 384); that she then
telephoned Settle, who is the director of human resources for
the hospital and left a message; that about 4 p.m. Settle came to
her office and spoke with her for about 15 minutes; that she
told Settle that (a) she had spoken to Pitts in the morning and he
told her that he was watching and monitoring her activities, and
(b) she felt harassed and intimidated by this because Pitts was
not her director or her supervisor; that Settle told her that man-
agers were told to keep their eyes open but he did not explain
why; that she asked Settle why the union pamphlets were taken
down and Settle “said that we are not allowed to have Union
pamphlets in the breakroom on the refrigerator” (Tr. 383); that
she told Settle that in future dealings with OH she wanted
someone else other than Pitts to attend to her; that Settle said
she had a right to have a different practitioner; that she told
Settle that she would put what happened in writing but that it
would have to wait until the following day because the com-
puters were shut down; that she never posted anything on the
refrigerator after Settle told her she could not; that The Wave is
more of a small magazine than a newsletter and she might have
seen it at some time posted on the refrigerator but she does not
read it and she really does not pay much attention to it; that
General Counsel’s Exhibit 12 is the email she sent to Settle and
Dolan the next day, August 7, 2007, about this incident; and
that she told Jennings what happened on August 6, 2007, and
she gave him a writeup of what transpired (CP Exh. 2),11 and a
copy of the letter she emailed to Settle.

FACT: . . . .
SEIU statement: “Dues (are) 1.5 percent of monthly total
pay.”
FACT: . . . .
GET THE FACTS . . . the FACTS the SEIU will complain
about us helping you find . . . then decide.
NCH
Healthcare
System
11 The document reads as follows:
August 6th @ 0730 am
Mark Pitts of Occupational Health complained that we
shouldn’t be hanging union pamphlets in our break rooms.
August 6th @ app. 4pm
Visit by Brian Settle, VP of HR, @ my request. I complained
that Mark Pitts stated that he is “watching” me, and monitoring
my activities. I told Brian that I felt harassed by Mark. Brian re-
sponded that the managers were told to “keep their eyes open.”
Brian said that he would speak to Mark about the inciden . . . [t].
Brian also stated that we were NOT allowed to hang union pam-
phlets in our break room. I do have a copy of a memo dated July
27, 2007 from Brian Settle that states “As for break rooms, if you
typically allow your employees to post personal materials in the
On cross-examination, Panebianco testified that she has five
full-time and two part-time nurses in her department; that she is
the only charge nurse in preadmission testing when she is on
duty; that the other nurses serve as relief charge nurses when
she is not on duty; that as charge nurse she does not assign the
other nurses to particular patients per se; that the nurses pretty
much self-schedule but she is in charge of the schedule; that if
someone needs time off they come to her and, in a manner of
speaking, she has the power to grant that time off; that she has
the same extent of patient care responsibilities that her nurses
do; that her day-to-day duties are no different than the other
nurses in the unit but they are not totally like the other seven
nurses; that she is paid $1.50 more an hour than the other
nurses; that she does not discipline nurses; that she does not
direct other nurses to perform other tasks; that her direct super-
visor is Deborah Ellis, who is the perioperative coordinator for
the downtown OR (operating room), and before that it was
Dolan, who is the COO of the hospital; that her director is Bill
Diamond and Ellis is below Diamond; that in August and Oc-
tober 2007 Dolan was her direct supervisor; that she has her
own office and the other nurses in the unit have their own of-
fice; that as a member of the nurses’ organizing committee she
actively organized on behalf of the Union; that she signed a
letter as a member of the organizing committee which was
handed out in the end of July 2007 to nurses to let them know
that the signers were supportive of the Union (GC Exh. 17(a));
that on August 6, 2007, she saw a Here’s the Facts on the re-
frigerator in the breakroom and she did not take it down; that
she has never taken down any of the Here’s the Facts from the
refrigerator at any point during the campaign; that she posted
union materials on the refrigerator and they were taken down;
that on August 6, 2007, Pitts did not say to her that she took the
Here’s the Facts down from the refrigerator; that she initiated
the conversation with Pitts on August 6, 2007, to see if he knew
who was taking the union material down and after Pitts told her
that he was watching her she began to think that Pitts was the
one who was removing the union flyers; that in her affidavit she
indicated, “I asked Pitts are you watching me? Pitts said, yes, I
am, and I am monitoring your activities” (Tr. 418); that Pitts’
office is in the back of occupational health and the office does
not have glass walls so Pitts cannot see from his office to the
breakroom; that she made more than 25 phone calls to nurses
on behalf of the Union; and that Settle told her that managers
were told to keep their eyes open and this was said after she
told Settle that Pitts was not even her supervisor.
On redirect, Panebianco testified that she called Pitts and
asked him if he knew who was taking down her flyers in the
breakroom; and that Pitts then said that he was not going to
answer that and he already reported her to human resources for
putting the union pamphlets up.
Jennifer Todd, who is a customer service representative in
Respondent’s downtown OH department, which is located on
the first floor of the Medical Plaza building, testified that OH
shares the first floor with the blood bank, preadmission, Naples
Diagnostic Imaging Center, and DSI; that when the front door

break room, you do not need to remove the union materials unless
they are unnecessarily littering the room”
NAPLES COMMUNITY HOSPITAL 975
to OH from the hallway is open she can see out into the hallway
while sitting at her desk; that while normally the door from the
hallway to OH is closed, on August 6, 2007, the air-
conditioning was broken and this door was open all day be-
cause it is cooler in the hallway; that there is a kitchen/break-
room on the hallway which OH shares; that there is a refrigera-
tor and a microwave in the breakroom; that people, other than
those who work in OH, use the refrigerator in the breakroom;
that while she was sitting at her desk on the morning of August
6, 2007, she heard a ripping sound coming from the breakroom;
that about 10 seconds later, while seated at her desk, she saw
the back of an individual walking down the hallway away from
the breakroom; that she had seen the individual before, the
individual had shoulder length, brownish blonde hair, and she
saw what the individual was wearing; that she walked to the
door, did not see anyone in the hallway and she “walked into
the break room and that’s when I noticed one of our signs in the
trash can torn” (Tr. 785); that the signs are postings that OH
keeps on the refrigerator; that the sign was in the trash can
ripped and crumpled; that she did not recall what was on that
particular document; that she believed that the posting was one
of the “In the Know’s” (Id. at 786), but she did not know what
it stated; that she did not recall if there was anything posted on
the refrigerator in its place; that she took the material which
was torn down “out of the trash can and brought it into our
office” (Id. at 787); that she brought the torn and crumpled
material which she retrieved from the trash can to Mark Pitts,
who is OH supervisor in the office; that she “showed him what
I had found there and what I had heard” (Ibid); that later on
August 6, 2007, she saw the individual who she had seen in the
hallway just after she heard the ripping sound; that she saw this
individual when she, Todd, was walking to the cafeteria for
lunch with she believed Pitts and Nurse Elaine Hennels; that
she was not sure if they passed on the way to the cafeteria or if
the individual was walking in front of her, Pitts, and Hennels;
that she pointed the individual out as the person she saw in the
hallway just after she heard the ripping sound; that Pitts and
Hennels both said it was Panebianco; that before the union
organizing there were NCH flyers posted on the refrigerator for
NCH activities and there was a flyer about cleaning out the
food in the refrigerator; and that she is in this breakroom a few
times a day and she had never seen any personal notices posted
on the refrigerator prior to the union organizing.
On cross-examination, Todd testified that she does not usu-
ally bring her lunch, she goes to the cafeteria to eat but she does
use the refrigerator in the involved breakroom; that on average
she is in the breakroom a couple of times a day; that she felt the
need to tell Pitts because “[t]here had been occasions where
some of the NCH postings had been removed, and so when I
found it I took it to him” (Tr. 794 with emphasis added); that
the refrigerator is used by other departments on the floor; that
she did not think Pitts was in charge of the refrigerator “[i]t was
just where we have had—put our postings and I saw it torn
down. That’s why I took it to him” (Ibid); that when she gave it
to him Pitts asked her what had happened, she told him what
she heard and saw, and Pitts said okay; that other NCH things
had been torn off the refrigerator, torn and placed in the trash
can; that this had been going on for a while; that she had posted
“stuff” (Id. at 795) that her supervisor, Diana Adreau, has
printed out, and this was “In the Know” which was a letter
stating what was going on with the Union and with NCH; that
she was “not . . . sure of all the contents of them” (Ibid); that
from her desk she could not see the involved refrigerator and
she did not see anyone tear anything down from the refrigera-
tor; that she has never posted any personal postings on the re-
frigerator and she has never seen personal postings on the re-
frigerator; that she could not recall anyone ever telling her that
she was not allowed to post things on the refrigerator; and that
it took maybe 2 weeks to get the air-conditioner in her office
fixed.
Subsequently, Todd testified that she could not explain why
Pitts would have indicated in an August 6, 2007 email (GC
Exh. 12), to Respondent’s chief human resource officer, Settle,
the following:

We have the door open to our office today and have seen
Teresa Panebianco from Pre admission testing come by our
office to the break room several times. The last time, our sec-
retary saw her walk by, then she heard a sheet of paper rip and
our secretary went in the break room and noted the Here are
the Facts sheet was missing off the refrigerator. [Emphasis
added.]

Todd further testified that she did not see the individual walk
by and then hear the rip; that she heard the rip and then she saw
the individual walk by; that items are taped to the refrigerator;
that it would not have been necessary for an individual remov-
ing an item from the refrigerator to tear the item in that the item
could be removed by removing the tape from the refrigerator;
and that usually all four corners of the posting would be taped
to the refrigerator.
Pitts, who is Respondent’s occupational health (OH) coordi-
nator at its downtown facility, testified that the breakroom that
OH uses is across the hallway from OH; that preadmission
testing, the blood bank, TSI laboratories, Naples Diagnostic
Imaging Center, and the Eye Center are other units on same
floor as OH; that the employees in preadmission testing store
their lunch in the refrigerator in the breakroom across from OH;
that the refrigerator and freezer door are used as a bulletin
board in this breakroom; that at the time of the trial herein Re-
spondent’s weekly newsletter, “Straight Talk” was posted on
the refrigerator but in August 2007 the posting was called
something else; that “we would never put up anything per-
sonal” on the refrigerator (Tr. 955); that in July and August
2007 OH posted Here are the Facts, which dealt with the union
campaign, on the refrigerator in the breakroom; that the Here
are the Facts, which OH posted on the refrigerator were taken
down; that he did not take them down; that he put them back up
many times; that when they were taken down the latest union
information would be posted in their place; that on August 6
Todd told him that she heard a ripping sound in the breakroom
and she saw a person walk by the room; and that

Jennifer [Todd] sits up there [up in front right by the door].
We had the door open because prior to that we were having
problems with our air conditioning. So we had the—she had
came back to my office and said she just heard the ripping of
the papers and I went out and sure enough, they were ripped
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 976
up and I put up the new fliers, NCH fliers. [Tr. 958 with em-
phasis added.]

Pitts further testified that Todd described the individual to him
since Todd did not know the individual’s name; that from the
description he thought it might have been Terese Panebianco
based on the “size, the frame build, the color hair, and the fact
that Terese wears purple all the time” (Id. at 958); that Panebi-
anco was a union supporter; that when Todd described the indi-
vidual he said it sounds like Terese; that he had this conversa-
tion with Todd sometime in the morning and later they went to
get lunch together with a third person who he believed might
have been LPN Hennels; that on the way to get lunch they
passed the individual in the hallway, Todd said that’s the per-
son, and the other person they were going to the cafeteria with
said that is Terese; that they pick up lunch and return to the
office to eat it; that later on August 6, 2007, he received a tele-
phone call from Panebianco; that Panebianco asked him why he
was removing her union information; that he told Panebianco
that “it’s NCH policy that we don’t put up Union information
on bulletin boards or public areas, or not public areas but in our
break room” (Id. at 960); that Panebianco asked him why not
and he told her “[b]ecause we have gone to meetings stating
that Union information is only being posted in areas that you
allow other pieces of information such as personal cookie sales
or whatever, and if you allow that, then you can allow the Un-
ion. We never allowed that before” (Id. at 961); that Panebi-
anco said that she wanted to see the policy; that he told Panebi-
anco that she “should not be taking down the NCH information
or rip it off the wall” (Ibid); that Panebianco questioned this
conclusion and he ended the conversation; that during this con-
versation with Panebianco he did not say, “Terese, I am moni-
toring you” (Ibid.); and that he did not say anything that could
have been construed to imply that he was surveilling her activi-
ties.
On cross-examination, Pitt testified that since he is the coor-
dinator of his office, he put himself in charge of the refrigerator
in the breakroom across the hall from OH; that he has been the
OH manager for 15 years; that OH moved into the involved
building when it was completed 3 or 4 years ago; that during
the morning of August 6, 2007, his director, Cindi Lukas, came
into OH, he told her what was going on, and later that morning
Settle either emailed him or he emailed Settle; that the email
occurred after Panebianco talked to him; that he was responsi-
ble for posting management literature on the refrigerator which
he prints from online; that he did not give Panebianco the pol-
icy she asked him about; that Todd told him the individual had
a medium build, short cropped light brown hair and wore pur-
ple; that he is not Panebianco’s supervisor; that as indicated in
General Counsel’s Exhibit 12, his August 6, 2007 email to
Settle, Lukacs, and Thigpen, “[a]t 11:30, it was reported to me,
. . . [Terese] was coming out of the Blood Bank.”
Subsequently, Pitts testified that Todd came to him and said
that she heard in the breakroom fliers coming down and rip-
ping; that Todd had checked it out first; and that Todd

said that she saw a person, and she described the person to
me, walk by the office and I told her that it sounded like it was
Terese, and then I got up and we went back into the kitchen
together and I looked in the wastepaper can and found my fli-
ers I had put up earlier in the wastepaper can. [Tr. 975 with
emphasis added.]

Pitts further testified that when Todd first approached him
about this matter she did not bring him what was ripped, she
did not bring anything in her hands.
Settle testified that General Counsel’s Exhibit 10 is authen-
tic12; that he recognized the documents included in General
Counsel’s Exhibit 1213; that on August 6, 2007, Panabianco

12 It reads as follows:
From: Settle, Brian Sent: Fri 7/27/2007 12:27 PM
To: Department Heads, Supervisors & Mid-
Managers
Cc:
Subject: Union Paraphernalia
. . . .
Today (Friday) union paraphernalia began appearing around
the hospital. Specifically, we have seen at least 3 different 8.5 x
11 SEIU flyers, along with a large poster in the north Naples
parking deck.
Please be vigilant in enforcing our rules regarding such the
[sic] posting on non-Hospital related materials, such as the union
materials that have appeared. As a reminder, we do not allow un-
authorized postings in our elevators, restrooms, public areas, work
areas (such as charting stations) and the like. If you see unauthor-
ized materials in these areas, please remove them immediately
and send them to HR via inter-office mail, along with a notation
as to where you found them, as well as the time and date.
As for break rooms, if you typically allow our employees to
post personal materials in the break room, you do not need re-
move the union materials unless they are unnecessarily littering
the room (for example, completely covering a table so that em-
ployees can’t use the table to eat) or are inappropriately posted in-
formation. (for example, on a dry erase board we need for hospital
use or covering hospital)
. . . .
13 The documents which are emails which refer to an incident which
occurred on August 6, 2007, read as follows:
From: Pitts, Mark
Sent: Monday, August 06, 2007 11:39 AM
To: Dolan, Gail
Cc: Settle, Brian; Lukacs, Cindi; Thigpen, Renee
Subject: Union pamphlets
In our break room on our refrigerator, for years we have been
taping NCH memos so our staff can read, i.e. Straight talk, park-
ing memos, The WAVE, NCH picnics, and most recently the
NCH Here are the Facts sheet (that was handed out at last weeks
meeting.). Last Friday, I noted 3 sheets taped regarding SEIU and
what to expect when forming a union. I call Renee [Thigpen] and
ask her what should be done with the information. She asked if
this is an area where we have personal items hanging and I ex-
plained it is not, only NCH memos. Renee instructed me to take it
down and send it to her. Today when I came to work, the forms
were back up, I removed again, then half hour later the forms ap-
peared again. I removed. We have the door open to our office to-
day and have seen Terese Panebianco from Pre admission testing
come by our office to the break room several times. The last time,
our secretary saw her walk by, then she heard a sheet of paper rip
and our secretary went in the break room and noted the Here are
the Facts sheet was missing off the refrigerator. Cindi Lukacs was
walking into the department about the same time, I reported this
to her and she called Brian Settle. A few minutes later, I received
NAPLES COMMUNITY HOSPITAL 977
telephone him to tell him that Pitts had accused her of tearing
down a hospital posting from the refrigerator in the breakroom
which is shared by her department, preadmission, and Pitts’
department, OH, and replacing it with union material; that the
refrigerator was used because there was no employee posting

a T/C from Terese, in an aggressive tone, asking why I was re-
moving her Union information; she has a right to post this mate-
rial. I tried to explain to her hospital policy and she interrupted
and demanded to see the policy. I did state to her that she should
not be destroying NCH material. Again, in a very aggressive tone
she stated ‘How do you know I did it’ ‘Did you see me rip it up?’
Because of her anger, I told her that I did not choose to have his
conversation with her any longer. That I would be passing this in-
formation on to my VP (Brian Settle). Terese said “FINE, I’LL
CALL BRIAN MYSELF.” At 11:30, it was reported to me,
Terese was coming out of the Blood bank. To me it seems, Terese
has too much free time on her hands. Please nip this in the bud
ASAP. Thank you Mark Pitts

From: Settle, Brian
Sent: Monday, August 06, 2007 4:33 PM
To: Pitts, Mark; Dolan, Gail
Cc: Lukacs, Cindi; Thigpen, Renee
Subject: RE: Union pamphlets
Mark, thank you for fulfilling your management responsibili-
ties. While this union activity is causing dissension, it is important
that staff understand the facts surrounding unions and collective
bargaining and that we continue to uphold NCH policies and
regulations.
I did talk with Terese and she clearly understands that she
cannot post personal postings in the break room unless we change
practice and permit other personal postings such as garage sales
. . . .
She did mention that you said you would be watching her; I
told her all management is responsible for assuring that all em-
ployees follow our policies and procedures and that you would
not be “watching her” any more than we oversee other areas on a
day-to-day basis.

From: Pitts, Mark
Sent: Tuesday, August 07, 2007 7:58 AM
To: Settle, Brian; Dolan, Gail
Cc: Lukas, Cindi; Thigpen, Renee
Subject: RE: Union pamphlets
Just wanted to say . . . . I’m sure Terese felt we were watch-
ing. I have mentioned to the staff here if they see forms hanging
to let me know, and the staff did. I would never say to her I’m
“watching her.” I do monitor all employees’ behavior, i.e. tongue
piercing, receiving a TB test in a bathing suit (bikini), inappropri-
ate language, etc . . . . and report as needed. Thank you for hand-
ing this. Mark

From: Panebianco, Terese
Sent: Tuesday, August 07, 2007 9:26 AM
To: Settle, Brian
Cc: Dolan, Gail
Hi Brian—as per our conversation yesterday, August 6th
2007, I’m sending this email in order to have my complaint about
Mark Pitts in writing. I feel that by his actually admitting to me
that he is watching me and monitoring my activities that he is
harassing me, and trying to intimidate me. Also, in the future, if I
need to go to occupational health, [I want] . . . a party other than
Mr. Pitts [to] treat me. Thank you.
board in that area; that to his knowledge Respondent had not
ever allowed a non-NCH notice to be posted on the refrigerator;
that Panabianco told him that she felt that Pitts was watching
her; that he did not tell Panebianco that management was going
to be watching her more closely; and that he told Panabianco
that Pitts, as well as all managers, had the responsibility to
make sure employees were upholding the policies and proce-
dures.
Thigpen testified that there are things called official bulletin
boards at the hospital; that one official bulletin board was lo-
cated on the downtown campus in the main building cafeteria;
that in 2002 Respondent went electronic and had an electronic
bulletin board on its website “My NCH” which became Re-
spondent’s formal public bulletin board; that social events are
not posted on the electronic bulletin board; that while physi-
cally there is still a bulletin board in the cafeteria, no one posts
on that anymore; that Respondent also has official bulletin
boards14 in its parking garage elevators where it posts hospital
materials; that departments have their own bulletin boards; that
other than the bulletin board policy in the employee handbook
in effect in May 2007, which was in effect in September 2007,
there is nothing else in writing which gives a description of
what official bulletin boards were at the hospital from May 2,
2007, on; that there is a notice on the bulletin board in the cafe-
teria indicating that one needs HR approval in order to post
anything there; that there is nothing in writing which (a) de-
scribes the bulletin boards that might be in departments or
lounges throughout Respondent’s campuses; (b) sets forth stan-
dards for managers on whether or not to have bulletin boards in
their departments or lounges; or (c) sets forth standards as to
whether or not managers should allow for certain kinds of
things to be posted or not posted on any bulletin boards they
may have in their departments or lounges; that to her knowl-
edge, the only written reference in any personnel policy, hand-
book, or any other official NCH document on bulletin boards is
the already noted reference on 76 of Charging Party’s Exhibit
4, namely—as already noted—“[f]or the convenience of em-
ployees, official bulletin boards are located throughout NCH.
Information posted on these official bulletin boards, such as
system news and notices required by law, must be approved by
the Human Resources [HR] Department or Administration prior
to posting”; that she could not cite anything in writing that
shows that it has been communicated to nurses at any time that
bulletin boards in their departments or lounges are considered
to be official bulletin boards that are referred to in the employee
handbook; that Charging Party’s Exhibit 5, which is the em-
ployee handbook which was “[u]pdated 09/04/07” contains the
same bulletin board language as the prior employee handbook,
Charging Party’s Exhibit 4; and that to her knowledge there is
nothing in writing in which Respondent provides department
Directors individual discretion with respect to bulletin boards in

14 CP Exh. 4, which is Respondent’s employee handbook “[u]pdated
05/02/07” contains the following on p. 76 “[f]or the convenience of
employees, official bulletin boards are located throughout NCH. Infor-
mation posted on these official bulletin boards, such as system news
and notices required by law, must be approved by the Human Re-
sources [HR] Department or Administration prior to posting.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 978
their breakrooms but they have such discretion and on July 27,
2007, they were advised by HR that if they typically allow their
employees to post personal materials in the breakroom, they did
not need to remove union materials (GC Exh. 10).
On August 17, 2007, Villani picked up pizza from the Union
in the parking lot and then went to different breakrooms and
distributed literature and pizzas. Villani testified that this oc-
curred around 12:05 p.m.; that two of her coworkers, Phillips
and Godwin, were with her; that when they entered the hospital
they ran into Weiss and Westman who said hello to them; that
they took an elevator to the lounge on 5 North where they
spoke to a couple of nurses aides, left some pizza, and put some
literature on the bulletin board; that they then proceeded to the
5 Southwest lounge, which is the rehab department, where they
spoke to a couple of nurses and nurses aides in the lounge and
posted some union literature; that they were in the 5 Southwest
lounge for about 20 minutes when Stella Mason, who was their
director at the time, came into the lounge and said, “[T]hat she
had made some phone calls and that we would find that we
wouldn’t be welcome here and we wouldn’t be welcome any-
where” (Tr. 165); that they told Mason that they appreciated her
allowing them to stay and then they left 5 Southwest; that they
had one or two pizzas left and they went to the 3 North lounge;
that there Phillips ran into one of her nurse friends, Mertice
Linton, who was working in the hallway; that she and Godwin
went into the lounge on 3 North and posted some literature on
the bulletin board while Phillips was in the hallway speaking
with Linton; that as she and Godwin were leaving the 3 North
lounge (breakroom), she saw Phillips walking toward them
with Preece who is a director on 3 North; that Preece asked
them what they were doing there; that she told Preece that they
posted some union literature on the bulletin board in the 3
North breakroom, it was their right to do so, and she would
appreciate it if Preece did not remove the union literature; that
Preece told them it was time for them to leave, they thanked
her, and Preece said, “[B]ye-bye ladies” (Tr. 166); that when
she has frequently gone to Respondent’s facility when she was
not working to attend baby showers, birthday parties, or lunch
with coworkers she was never asked to leave; that she has never
had a problem with being off duty and on Respondent’s prem-
ises; that a lot of times the nurses talk at the nurses station and
distribute fundraising information like Girl Scout cookies sales;
that when she came into the hospital on August 17, 2007, she,
Phillips, and Godwin were in street clothes; that she was wear-
ing a purple T-shirt and her name badge; and that on August 17,
2007, she wrote out a “variance” (SEIU union incident report)
(CP Exh. 1), regarding what occurred on that date.15

15 The exhibit consists of two pages or two “Incident Report
Form[s].” In the “Description of Incident” portion of the first form,
which refers to “Dept 5 SW, Rehab,” Villani, as here pertinent, wrote
she, Godwin, and Phillips “delivered pizza nurses lounge 1215 at lunch
posting union literature for—speaking to nurses at lunch Stella [Mason]
states I’ve made a phone call you’re not allowed to be here, you’ll find
out that you’re not allowed in other areas too.” The second page refers
to “Dept 3N” and Director Preece, and Villani wrote the following in
the “Description of Incident portion of the form:
Elaine Phillips what are you doing here “Lori Preece in
Elaine Phillips” face—Elaine you need to leave—we are walking
On cross-examination, Villani testified that on August 17,
2007, she, Godwin, and Phillips took a total of six boxes of
pizza into the hospital; that they first went to the lounge on 5
North, which is the orthopedic unit; that they stayed in that
lounge for a few minutes, posting union literature on a bulletin
board and dropping some pizza off; that they did not ask per-
mission to post the union literature because public information,
namely birthdays and things of that nature, was posted on that
bulletin board; that she usually (at least 20 times) goes through
lounges after work on her way out of the hospital and posts
union literature;16 that no one ever stopped her posting of union
literature, except one time with Preece; that she did not seek
permission to post union notices because there was public in-
formation17 on the bulletin boards; that she was not aware of
the hospital’s bulletin board policy because “we’ve always
posted things on bulletin boards . . . . [w]e posted everything on
our bulletin boards” (Tr. 210); that she worked in SCIU and
years ago on 2 North; that most of the bulletin boards have
public information unless they are locked or are fiberglass; that
she saw this when she did her union postings on various bulle-
tin boards; that there were a few departments which she did not
post in; that on August 17, 2007, she, Godwin, and Phillips
went from 5 North to the rehab unit on 5 Southwest; that they
were in the rehab unit for around 20 minutes and she knew this
because she looked at the clock in the rehab unit lounge when
Mason came in; that she was sitting down at a table when Ma-
son came into the lounge; that Mason opened the door to the
lounge and said, “I’ve made a few phone calls, You will find
that you ladies . . . would not be welcome here or anywhere”
(Tr. 215); that from rehab they went to 3 North, which is
Preece’s unit; that they posted union literature in every lounge
they went into on August 17, 2007; that as she and Godwin
were exiting the lounge on 3 North, Preece came along; that
they said hello to Preece and she told Preece that they had
posted some material and Preece should not take it down; and
that she told Preece this because she had posted literature in
that lounge quite a few times before and it had been removed.
With respect to August 17, 2007, Phillips testified that she,
Villani, and Godwin brought pizzas into the downtown hospital
on their day off in an attempt to connect with nurses who were
not attending union meetings and just invite them to come and
be informed; that they went to the nurses lounge in the rehab
unit and stayed there for about 20 minutes; that they talked to
several nurses in the lounge, some of whom were for the Union

our walk Lori “you girls need to leave Mary Villani and Caryl
Godwin hanging up literature in 3N lounge on bulletin board.
Mary Villani ‘Lori please don’t remove our union material it is
our legal right. If you remove the literature you are breaking the
law.” Thank you Lori we will see you soon. Have a good day.
One and half hr later Anna Coors checked 3N lounge all the union
literature had been removed.
16 Villani testified that she posted union literature in the lounges on 2
through 6 North, except 4 North which was locked, and 4 and 6 South.
Subsequently, Villani testified that she also posted union literature in
the surgical lounge.
17 This was later defined as birthday parties, baby showers, fundrais-
ers, pharmaceutical dinners, social events, houses for rent, and things
like that.
NAPLES COMMUNITY HOSPITAL 979
and some of whom were against the Union; that they left a
couple of pizzas, handed out leaflets, and invited the nurses to
come to a meeting so that they could hear why we felt the Un-
ion was necessary; that they did not leave on their own accord
in that the director of the unit, Mason, came in after they were
there for about 20 minutes and she told them that they needed
to leave; that they were standing talking about what they were
going to do next when Mason told them that she felt they would
not be welcome anywhere else in the hospital; that she thought
that they went to 5 North next, dropped off a couple of pizzas
and some leaflets in the lounge since there were no nurses
there; that they then went to 3 North where she saw a nurse she
had known for a long time, Linton; that Linton asked her what
she was doing there, and she told Linton that they were handing
out union leaflets and they wanted to invite her to a union meet-
ing; that while she was talking to Linton, Preece, who is the
manager of the unit, approached her and asked her what she
was doing there; that Preece told her, “[Y]ou’re done here,
Elaine, you’re finished” (Tr. 243); that Villani had put leaflets
in the lounge and Preece started to pick them up; and that Vil-
lani told Preece that they had a right to leave the union leaflets
there and Preece should not touch them.
On cross-examination, Phillips testified that when she, Vil-
lani, and Godwin went into the hospital around noontime to
give out pizzas and distribute union literature she was wearing
street clothes; that she believed that the people they spoke with
in the rehab lounge on the fifth floor (5 Southwest) were on
break in that one was eating her lunch and the others were in
the lounge eating pizza; that Mason came into the lounge and
asked them to leave; that after leaving rehab she believed that
they went to 5 North where they left some pizzas and leaflets in
the lounge next to the nurses station, and Villani may have
posted a poster on the bulletin board; that she spoke with Lin-
ton in the hallway on 3 North while Linton was on duty, invit-
ing her to a meeting; that they only distributed leaflets in the
lounges; that they went to rehab, 5 North, 3 North, and ICU;
and that they were in the hospital that day for a total of about 1
hour and 15 to 20 minutes, and they all left together.
On redirect, Phillips testified that she has gone to a hospital
lounge while she was off duty for a going away party, or a
birthday party, or for some event, and she would come in, have
a piece of cake, or have lunch with someone; that she was never
asked to leave; that when Mason came into the lounge she said
that they really needed to leave, it was time for them to leave;
and that when they were discussing what unit they would go to
next Mason told them that she did not think they would be wel-
come anywhere in the building.
Preece, who is the unit director of 3 North which is the te-
lemetry unit where cardiac patients or patients with other dis-
eases are monitored, testified that there is an employee lounge,
which is right across from patients’ rooms on the unit; that
there is a door to the employee lounge and it is closed; that
there is an RN in her unit by the name of Linton; that on Au-
gust 17, 2007, she was standing at the west end nurses’ station
in her unit and she saw three people come out of the employee
lounge dressed in street clothes; that she was walking behind
them and she recognized the voice of Villani who said,
“[D]on’t take anything down” (Tr. 696); that she did not say to
these three individuals that they had to leave the floor; that
there was no conversation whatsoever; and that she was walk-
ing about 15 to 20 feet behind the three, she never caught up
with them, and they went into the progressive care unit which is
right beside her unit.
On cross-examination, Preece testified that she did not rec-
ognize either of the other two nurses with Villani; that she did
not notice anyone talking to Linton; that nurses do float in and
out of departments so nurses in other departments get to know
each other; that there have been cakes in the lounge in her unit
for someone leaving and a birthday; that she had never seen
anyone from another department attend these events; that the
only time she has seen off-duty nurses on her floor was when
she saw the three on August 17, 2007; that she has never gone
to a lounge in another department; that she signs a confidential-
ity agreement with the hospital periodically; that she signed one
when she was hired but she could not recall if she signed one
after that; that she did not know if she ever had to sign an ac-
knowledgement or a receipt of the no-solicitation/no-distribu-
tion policy; that when Villani said don’t take anything down
she did not know who Villani was talking to since Villani was
not facing her; that she did not know what Villani was talking
about; that she knows Phillips; and that she did not know if
Phillips was one of the other two because she did not see their
faces. Subsequently, Preece testified that when she saw the
three people exiting her employee lounge she did not say,
“[I]t’s time for you to leave, bye-bye, ladies.” (Tr. 703.)
Gutierrez, who as noted above is the day-shift clinical coor-
dinator and charge nurse on 3 North (telemetry unit) and who
supervises the RNs in the unit, testified that nurses could have a
birthday party or a shower in the employee lounge on the te-
lemetry unit, and occasionally nurses do come back who are off
duty to attend such a party.
Ann Norman, who works for Respondent as a staff nurse on
comprehensive rehab, testified that on a day in August 2007,
around noontime, she saw three women in street clothes bring-
ing two or three boxes of pizza; that she knew Phillips, she was
later introduced to Villani, and she could not remember the
name of the third woman; that she followed the pizza into the
lounge and ate the pizza with the three; that her unit’s secretary
also sat down in the lounge and had some pizza; that the three
woman were in the breakroom for 20 to 30 minutes and then
they picked up the remaining boxes of pizza and they were
leaving the breakroom; that her then unit director, Mason, was
right outside the breakroom18; that as she was walking away,
she heard Mason say, “[H]ello, my name is Stella Mason and
thanked them for the pizza” (Tr. 990); that it was her recollec-
tion that the three nurses were outside in the hallway when
Mason spoke with them; that since she was in the process of
walking away she did not know, she did not hear what, if any-
thing, Mason said after thanking the three nurses; that she was
coming out the door when she heard Mason thank the three;
and that she did not know where the three went after that.
On cross-examination, Norman testified that when Mason
entered the room on August 6 she, Norman, was finished eating

18 Norman testified that Mason moved away and the unit had a new
director, Michael Dusic.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 980
and she was getting ready to leave; that she overheard the be-
ginning of the exchange between Mason and the three women
delivering pizza; that the exchange took place in the hallway
right by the door as they were exiting; and that she did not be-
lieve that she was there for the whole conversation.
Ringle testified that there is a bulletin board in the employee
lounge in SICU and there are union postings on that bulletin
board; that there is a section of the bulletin board where staff
can put whatever they want to; that as clinical coordinator she
allows staff to put up union posters; that those who use the
SICU lounge include SICU staff, secretaries, anyone who
might come into the unit, physicians occasionally, and staff
from other units might visit to say hello during their break; that
from July 2007 up to the time of the trial herein she has seen
union literature in the SCIU lounge, including on the table; that
she has never told any nurse that worked for her that they can-
not distribute union literature in the lounge; and that she has
never told a nurse who works for her in SCIU that they cannot
solicit when they are on their break or lunchtime.
McGoun testified that she has come to work when she was
off duty for somebody’s birthday party or someone was leaving
or to have lunch in the lounge or to pick up her schedule; that
the birthday parties are held in the lounges in SICU and pro-
gressive care; and that she has seen everything posted in the
nurses’ lounge, including business cards, notices on classes,
union stuff, and hospital antiunion stuff.
Terri Holliday, who is an RN hired by Respondent in 2003
and who wore purple bracelets, purple uniforms, an organizing
pin, an SEIU name tag, had her picture on union flyers, and
works the 7 p.m. to 7 a.m. shift in med/surg. at Respondent’s
North Collier facility, testified that she has had occasion to go
back to the hospital when she was not working to do some
education on the computers, to attend a baby shower and drop
off a gift, or cookies or food for birthday parties, or to check
her schedule or to make copies of her schedule; that she has
never been asked to leave because she was not working; and
that she did not remember ever being around anyone else who
was asked to leave because they were not working.
Niki Saltzer, who has worked for Respondent for 20 years
and is a staff nurse (RN) on the 3 to 11 p.m. shift in the psychi-
atric unit in the Respondent’s downtown facility, testified that
items are placed on the walls at the nurses station and they
include memos, mandatory classes, education classes, copies of
the letter that is on the website about the Union (Here are the
Facts), and employees’ children’s photographs; and that items
for sale are posted in the nurses’ lounge on the walls or on the
bulletin board, namely Girl Scout cookies and Christmas items
such as wrapping paper and fudge.
On cross-examination, Saltzer testified that during the union
organizing there was often union literature posted in the break
area; and that she did not know if the union literature was ever
taken down.
Panebianco testified that RNs do have occasion to be present
at the Respondent’s facility when not working, other than visit-
ing patients, namely to attend a baby shower, a birthday party, a
Christmas party, spring fling, pick up paycheck, or pick up their
schedule, or to attend a get together for someone’s last day in
the unit; and that she has seen an employee come back to the
downtown hospital to sell Avon or hand out catalogs, which
occurred in admitting office.
Thigpen testified that an off-duty nurse can come back to the
hospital for a birthday party or shower in their department, or to
pick up their paycheck or schedule without getting permission
from her or someone in authority; that she thought that the off-
duty policy relates more to just roaming; that she could not
produce any document regarding limiting off-duty nurses to
social events in their home department but the practice has been
in effect as long as she recalls; that off-duty nurses or other
employees are not allowed to sell Girl Scout cookies at any of
Respondent’s facilities; that off-duty employees should not be
able to go up to their departments and sell Girl Scout cookies;
that she is not aware of this happening at least that she recalls;
that she is not aware of off-duty employees selling raffle tickets
in their departments, not that she recalls; that she thought that
there are some Girl Scout cookies sold in breakrooms of the
department when employees are on break; and that it is not
impermissible for nurses to talk about personal matters such as
their child’s soccer game or the church picnic while at the
workstations.
Ann Andersen, who has worked for Respondent for about 10
years, is a RN in the emergency department on the north cam-
pus, and works the 7 a.m. to 7 p.m. shift, testified that she pub-
licly supports the Union and is on the organizing committee;
that off-duty nurses regularly come into nonpublic areas of the
hospital, such as nurses’ lounges on days when they’re not
scheduled for work to attend birthday parties or showers for
other nurses; and that sometimes when the nurses are off duty
they come into the hospital to drop things off like Avon prod-
ucts, and things they might be selling for fundraisers for their
children like cards, paper, or Girl Scout cookies.
Cynthia Roper, who has worked for Respondent for 15 years
and is an RN in the emergency department on the 7 a.m. to 7
p.m. shift, testified that she is a member of the organizing
committee; that she has been prohibited from distributing union
literature in nonwork areas on nonworktime; that this occurred
in August 2007 (on August 17, 2007) when they started to pass
our materials; that the incident occurred in the passageway or
walkover to the hospital on the North Collier campus parking
garage; that during the shift change she was passing out infor-
mation (union flyers) to the nurses; that after she had been pass-
ing out the information for about 10 minutes a security guard
approached her and asked her what she was doing; that she told
him that she was passing out information for nurses; that the
guard asked her if it was union material; that when she re-
sponded in the affirmative the guard said that he would have to
confiscate it; that when she asked the guard why, he said be-
cause that was the law or rule or policy; that the guard made a
telephone call, and then he told her that she had to stop handing
out the flyers and either he would take the material or she could
put it in her car; that she told the guard that she did not think he
was right, the guard said that he just talked with his supervisor,
Val (Barbucci), and that is what he was told, she said he was
wrong but she would do as instructed, and she put the materials
in her car; that since the guard told her that she could stay there
but not pass out materials, she stayed and talked to nurses who
were coming and going; that she distributed union literature in
NAPLES COMMUNITY HOSPITAL 981
or near the parking garage 15–20 times after this incident, and
while there were security guards often (80 percent of the time)
in her presence (standing about 15 feet away), they did not
speak to her about what she was doing; that when she distrib-
utes flyers during a shift change she normally stays for about 1
hour so she can catch people one-half hour before shift change
going in and people one-half hour after shift change coming
out; and that Charging Party’s Exhibit 3 is an incident report
she submitted to the Union.19 When Respondent objected to
this testimony pointing out that there was no allegation in the
complaint about this matter, the Charging Party indicated that it
went to Respondent’s claim that it did not enforce its solicita-
tion policy in an overly broad fashion.
On cross-examination, Roper testified that her director is
Rosemary Lebailly; that there is a lot of public support for the
Union in the North Naples ED; that she posted union materials
in the breakroom; that initially an administrative coordinator,
Melody something, tried to stop her and several charge nurses
took the union material down; that with respect to the incident
in the parking garage, she was on the third floor just inside the
walkway; and that the guard told her that he was going to have
to confiscate the union material because she was not allowed to
hand out union material on hospital property; and that eventu-
ally she put the material in her car.
Holliday testified that on August 19, 2007, she went with
another nurse, Pat Cross, to the downtown campus to handout
union flyers to some of the nurses during shift change, just
outside the parking garage about 6 p.m.; that for about 10 min-
utes they were on the third-floor landing of the parking garage
just inside the doors from the garage; that two groups of nurses
came off the elevator and they gave some of the nurses who
wanted it information about the Union; that the third group
exiting from the elevator consisted of two nurses and a male in
scrubs; that they asked the group if they would like to have
some information about the Union and the male told them that
they were not allowed to do that there; that she told the male
that she believed that they had the right to be there in that they
were in a nonpatient area just trying to get information to their
coworkers; that while the group walked away she saw the male
take out a cell phone and start to dial; that within a minute or so
two security guards showed up and one of them asked what
they were doing there; that when they told him that they were
handing out information about the Union the guard told them
that they were not allowed to be there; that she told the guard
that she believed that they were allowed to be there, they were
not in a patient care area, and they were just trying to get in-
formation to their coworkers; that the guard told them he was
calling his boss; that the guard went outside into the garage and

19 The incident report is dated August 17, 2007. As here pertinent it
reads as follows:
I was in hallway between parking lot & hospital (sky bridge)
handing out union info. Was approached by Security Officer Don
Patterson = employee #16820. I was told ‘If that is union material,
I have to confiscate it. You may not distribute any union informa-
tion.’ I said I would put the literature in my car. He said that
would be ok. I asked him why—he stated—my boss, Valerie told
us—He made a call to his supervisor—at the time we were speak-
ing. I stayed & only spoke to nurses.
about a minute later he came back in and told them that they
had to leave; that they agreed to leave but they told the guard
that they believed that they had the right to be there; that Gen-
eral Counsel’s Exhibit 22 is the union flyer they were handing
out on August 19, 2007; and that she has seen someone for
Nurses Against the Union (NUNSO) on two occasions (in De-
cember 2007 and January 2008) handing out candy and flyers
in Respondent’s North Collier garage.
On cross-examination, Holliday testified that she and Cross
were handbilling at 6 p.m. because that was the time of a
change in shift of some of the nurses like those in the operating
room (OR) and those areas and other nurses come in early for
their 7 p.m. shift; that she did not recognize the male in scrubs
who told her and Cross that they were not allowed to be there
doing that; that she did not know the names of either of the
security guards; that nurses got off the elevator while she and
Cross had the exchange with the security guard and the nurses
looked at them as they passed; that she told the guard that she
believed that they had the right to be there but she would re-
spectfully leave; that, as indicated in her affidavit, she passed
out union flyers in the North Collier and Naples Community
Hospital once or twice a month for the past 3 months, for a total
of about five times since August 19, 2007, without incident;
and that after August 19, 2007, she never passed out union
flyers downtown again.
On redirect, Holliday testified that the first time she passed
out flyers at North Collier a security guard drove up and asked
her if she was handing out flyers; that when she told him that
she was he said, “[T]hey saw you on the video and I was told to
come over here and write an incident report, but I’m not going
to put your name down . . . . have a good night.” (Tr. 333.)
Thigpen testified that Charging Party’s Exhibit 8 is an email
that was sent from Brown, who—as indicated above—is Re-
spondent’s director of security, to herself and Settle in regards
to an incident of distribution of union literature. The underlying
email from Lt. Colon Francisco to Brown indicates in part as
follow:

On 08/19/07 . . . Administrative Coordinator . . . noti-
fied me . . . that two employees reported union activity in
the sky bridge, on the third floor of the parking garage.
. . . .
. . . . I advised the two W/F [white females] they should not be
in hospital premises distributing what appeared to be union
literature. One of them was wearing a NCH ID badge with the
name Terry [Terri Holliday], RN and the other one had no ID
on her.
The W/F with the ID on she replied that they had the
right to be there. . . . The two W/F left together at ap-
proximately 1844 hrs. . . .

Brown testified that he was aware of an incident involving
his officers where there may have been distribution going on in
the parking garage by prounion nurses since he receives daily
reports from Supervisors Griffith and Barbaccia on the activi-
ties of the officers throughout their shifts every day each morn-
ing; that there was one incident where two officers were called
to the downtown parking garage by Jeanie McCree, the admin-
istrative coordinator, who complained that there were two hos-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 982
pital employee organizers in the garage handing out material;
that this could have been around August 2007; that after this
incident he issued instructions to his officers about how to re-
spond to employees distributing in the garage, namely that they
were to no longer respond to complaints that purely involved
union organizers distributing material unless there was some
other overriding reason to do so such as a fight or some other
crime; that he gave this instruction verbally in November 2007
and in January 2008 he sent out an email which reiterated this
information.
On cross-examination, Brown testified that Charging Party’s
Exhibit 13 is an email he sent to Brian Settle, the chief human
resources officer, Tammy Rattray of Ford and Harrison, and
Mr. Dutcher.20 The email reads as follows:

From: Brown, John
Sent: Monday, September 24, 2007 7:50 AM
To: Settle, Brian; . . .; Dutcher, Phil
Subject: FW: Union Activity

Have we changed the policy yet again? As of 8/27/07
this was the last written direction I received:
According to our legal advisors, off duty employees
can solicit/talk with other off duty employees in our park-
ing garages . . . . As far as the sky bridges, we are taking
the position that solicitation cannot take place in the
bridges . . . we will keep you posted as to any updates and
thanks for all of your efforts. . . .

Thank you.

Brian Settle

. . . .Mobile email: NCH. . . .
______________________________
From: Griffith, John
Sent: Monday, September 24, 2007 6:54 AM
To: Brown, John
Subject: Union Activity

No activity reported over the weekend.
About 5:30 on Friday, Phil Dutcher called Maya to his
office in reference to an email from Marie Coomey regard-
ing the union information that was being passed out on the
1st floor of the garage on Friday morning. He now says
that no union activity will be permitted on the 1st or 2nd
floors of the garage and they can distribute their literature
and ribbons in the elevator lobby on the 3rd level entrance
to the sky bridge. My understanding, from our conversa-
tion with Phil in the cafeteria, was that it must be done
outside the double doors on the 3rd level, actually inside
the garage, not in the entrance to the sky bridge.

John Griffith
Public Safety Supervisor
. . . .

When asked on cross-examination what was the hospital’s pol-
icy on employee solicitation and distribution in the sky bridge
next to the parking lot (downtown), Brown responded, “[i]n
July, I believe—and I would rather not guess because I don’t

20 Respondent did not object to the introduction of the email.
know.” (Tr. 682.) When he testified at the trial herein he testi-
fied that at the time of the trial, with respect to employee solici-
tation and distribution in the sky bridge, it would be considered
a public area so the employees would be permitted to do that.
Further, Brown testified, when asked if there was a different
policy in place in July 2007, that “[t]here was some confusion, I
guess, about the policy” (Ibid); that the confusion seemed to
exist around exterior areas (the garage) as opposed to being
actually inside the building (the enclosed walkway to the hospi-
tal); that the garage and the sky bridge (walkway) are public
areas; and that the confusion was cleared up when he decided
that security officers were no longer going to respond to these
incidents.
On redirect, Brown testified that he did not recall if he re-
ceived the clarification he sought from Settle in his September
24, 2007 email to Settle; that at some point subsequent to Sep-
tember 24, 2007, employees were allowed to handbill in the sky
bridge; that he did not know approximately when that was; and
that at some point there was clarity, at least in his mind, with
respect to the policy about handbilling in the sky bridge.
On August 30, 2007, the Union filed a petition with the Na-
tional Labor Relations Board (the Board), for Certification of
Representative (GC Exh. 18).
Thigpen testified that Respondent’s new solicitation and dis-
tribution policy, which was approved August 30, 2007, as here
pertinent, contains additional language not found in the prior
2001 policy, namely “[w]orking areas are all areas of the Hos-
pital, except cafeterias (unless he employee is working in the
cafeteria, employee lounges and break areas, lobbies and park-
ing areas.” (GC Exh. 9, p. 1);21 that with respect to whether
there was any discussion that she recalled with Respondent’s
executive team relating to the need to further define working
areas, she believed that the decision to review this came from
the employees to their directors, back to human resources be-
cause they were confused with the policy and they needed clari-
fication; that with respect to off-duty employees, the changes
approved on August 30, 2007, did not change in this regard,
namely “F. [o]ff duty employees . . . are not permitted access to
NCH except to the extent that other members of the public have
such access; for example, when visiting patients or receiving
medical care” (Id. at p. 2); that Respondent no longer maintains
hard copies of personnel policies—even in the human resources
department—and they are maintained through Respondent’s
intranet; that with respect to the changes which were approved
on August 30, 2007, there was a meeting with the department
directors who in turn assured human resources that the policy
was reviewed with their employees; and that new employees
are not given a hard copy of the employee handbook but rather
they receive it on a CD rom.
When called by Respondent, Thigpen further testified that
the solicitation policy was changed on August 30, 2007 (GC
Exh. 6), to clarify the May 2001 policy (GC Exh. 7), with re-
spect to work areas, working time, and the nominal donations
that an employee can or cannot receive; and that the policy was

21 It is noted that this language appears on p. 81 of Respondent’s
employee handbook received in evidence as CP Exh. 4. It is indicated
on the cover “[u]pdated 05/02/07.”
NAPLES COMMUNITY HOSPITAL 983
clarified because “[t]here was confusion amongst staff and
Department Directors in regards to who and where and when
employees could distribute information, post information” (Tr.
855.)
Brown testified that there was a revision of Respondent’s so-
licitation and distribution policy in August 2007; and that when
he received the revision he provided it to his two supervisors,
Griffith and Barbaccia, told them to read it and discuss it with
their security officers during roll call training.
Villani testified that in August 2007 she received a new edi-
tion of Respondent’s solicitation policy (GC Exh. 9), in her
mailbox; that the effective date of the document is August 30,
2007; that she did not recall Respondent distributing anything
else that explained its solicitation policies; and that the hospital
did not distribute anything else to employees that explained its
posting policies. Subsequently, Villani testified that in her 27
years working for Respondent she was never given anything,
any kind of document which spoke to Respondent’s policy
regarding posting; that she was never told by anyone in man-
agement anything about the posting policy Respondent had;
and that the employees used to have all the policies in books
but about 1 year ago Respondent switched to the Intranet. On
recross Villani testified that she did not know that she could
look at the handbook on the website until October or November
2007.
Regarding Respondent’s posting policy, Phillips, who has
worked for Respondent for 27 years, testified that she did not
recall ever being given anything in writing which indicated
what Respondent’s policy was with respect to posting on bulle-
tin boards; that she could not remember before the posting inci-
dent with McGoun (covered below) ever being told what the
Respondent’s policy is with respect to posting on bulletin
boards by anyone in management or a supervisor; and that she
was never told by anyone in management or a supervisor that
she could access the Respondent’s posting policy by going on
the Intranet website.
With respect to Respondent’s posting policy, Jacquelyn
Rasmussen, who has worked in Respondent’s downtown SICU
for 18 years testified that she did not know that she has seen a
policy on what can be posted and what cannot, but she under-
stood that you had to have approval before posting on a com-
mon bulletin board that is by the cafeteria; that, with respect to
whether any manager or supervisor ever told her what Respon-
dent’s policy was regarding posting on bulletin boards, she
supposed that there has been a verbalization maybe by the di-
rectors or by the clinical coordinators that you use the nurses’
lounge for more private things but Respondent has not always
stuck to that policy because she has seen a little poster on the
nurses station about a party or someone had a baby; and that
she did not think that she had been told by someone in man-
agement or a supervisor that she could access Respondent’s
posting policy on bulletin boards by going on the Intranet web-
site of the Respondent. On redirect, Rasmussen testified that
when she testified that a manager or a supervisor may have told
her about posting in the lounges, that occurred years ago and
was not recent.
On September 25, 2007, Jennings, Villani, Panebianco, and
several other nurses were in the cafeteria in Respondent’s
downtown facility at lunchtime distributing union literature and
giving out cake. Jennings testified that they were at a table
sitting down, not disrupting anyone in the cafeteria; that after
about 20 minutes a security individual approached them and
told them that they had to stop everything they were doing and
go; that he told the security person that this was not true and
they had a right to be there and it was his understanding that the
cafeteria was a public space because this is what Respondent’s
human resources director, Thigpen, testified at a prior Board
(the Board) hearing, and nurses had the right to distribute union
literature; that after he told the security person what Thigpen
had testified, the security person got a little nervous, said okay
hold on, he left and returned a few minutes later, telling them
that they could continue to distribute the union literature but
they could not give out cake for health reasons; that the security
person was not sure about the reason; and that he was not ac-
tively passing out literature.
Brown testified that he spoke with Union Organizer Jennings
in the downtown cafeteria (on September 25, 2007); that
Jennings was at a table in the cafeteria with two or three off-
duty nurses and a couple of other nurses; that they had a purple
sheet cake on the table which they were serving to other people
at the table, and they offered him a piece; that there were flyers
on the table that they were handing out or appeared to be hand-
ing out to people; that there were two table together and people
also had meals on the tables; that the tables were inside the
cafeteria, about 25 feet from the entrance in an area where ta-
bles are normally located; that he asked Jennings to come out in
the hallway so he could speak with him; that Jennings complied
and he told Jennings that Respondent’s “policy was that they
were able to have lunch in the cafeteria, and they could talk to
the other employees, but the cake, that they couldn’t have the
cake there anymore” (Tr. 647); that they could not have the
cake there “[b]ecause that was a violation of our policy to
have—bring food into the cafeteria and hand it out to folks” (Id.
at 648); that Jennings said the he believed that “I was wrong . . .
[and] he was going to contact the SEIU’s attorney” (Ibid); that
he told Jennings that he wanted the cake removed; that they
removed the cake and finished their lunch; that he did not at
any point tell Jennings or the nurses that they had to leave; that
this exchange took no more than 10 minutes; and that he and
Jennings had their verbal exchange at a normal conversational
tone.
On cross-examination, Brown testified that on September 25,
2007, he went to the cafeteria because he received a call from
Cooper in administration, who asked him to come to the cafete-
ria; that Cooper directed him to ask Jennings and the nurses
with him to put the cake away; that he believed that the in-
volved food policy was a written rule but he did not know
where it could be found; that the first time he became aware of
the rule was when Cooper spoke to him about going to the cafe-
teria and asking Jennings and the nurses to put the cake away;
and that when he asked Jennings to step into the hallway
Jennings may have said that he wanted to stay inside the cafete-
ria with the nurses and everyone and have the conversation
together. And on redirect, Brown testified that he recalled hav-
ing a conversation with Jennings in the hallway.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 984
Brown testified that in September 2007 officer Griffith re-
ported to him that John Baldia, who is an RN in the downtown
emergency department and who represents the antiunion or-
ganization NUNSO, was placing NUNSO flyers on the wind-
shields of cars that were parked in Respondent’s downtown
garage; that a security guard, pursuant to Respondent’s proce-
dure, asked Baldia to stop and remove the material from the car
windshields; that about 30 minutes later Baldia came to his
office and asked him why he could not place material on the
cars in the garage; and that he explained to Baldia that it was
against Respondent’s policy because people throw the material
on the ground and someone has to pick it up.
On cross-examination, Brown testified that the policy pro-
hibiting placing flyers on car windshields in Respondent’s ga-
rage is found in Respondent’s security policies and it would be
accessible on the internet.
Villani testified that in July, August, and September 2007
she saw houses for rent, roommates needed, things for sale, and
furniture for sale posted with thumbtacks on the garage elevator
cork bulletin board.
Thigpen testified that General Counsel’s Exhibit 25 is the
NCH organizational chart which would have been in effect in
September and October 2007. The following appears in the
lower right-hand corner of the chart: “NCH Org Chart March
2007.”
Villani testified that she attended the Board hearing on the
Union’s petition in October 2007 in Miami, Florida, and Renee
Thigpen and Carrie Skifton were present the day she attended.
Holliday testified that she attended the Board hearing in Octo-
ber 2007 in Miami on the Union’s petition and she was there
for 3 days. Counsel for the General Counsel and Respondent
stipulated that the hearing in the R case, Case 12–RC–9275,
began in Miami on September 17, 2007, and continued for 11
days, closing on October 3, 2007.
Brown testified that the wood in the elevators inside the hos-
pital had to be replaced in October 2007 because someone has
carved into the wood paneling; that the carving started in July
2007; that originally Respondent paid $53,000 per elevator to
put the cherry or mahogany wood on the walls; that the wood
was replaced with a material that can not be scratched; and that
there are no cameras in the elevators in the hospital.
Janice Cothran, who has worked for Respondent since 1990
and is an RN in the psychiatry department at Respondent’s
downtown hospital, testified that she showed her support for
the Union by wearing the colors, attending meetings, and post-
ing posters and flyers; that she posted some union posters and
flyers in the employee elevator in the parking garage and in
their lounge in 4 Southwest; that in early October 2007 she
posted flyers in the downtown elevator in the garage; that there
are two elevator, namely one in the front and one on the side
and she posted the flyers on the side elevator; that she posted
during a weekend when she was leaving work at approximately
11:30 p.m., and she was with two other of Respondent’s em-
ployees, RN Saltzer and LPN (licensed practical nurse) Milton
Branham; that her next day at work was Tuesday; that on that
Tuesday her director, Susan Theroux, came to the nurses station
at the beginning of the shift, at about 3:30 p.m.; that she, Salt-
zer, and Branham were at the nurses station at the time and she
and Saltzer were doing specified tasks; and that

She (Theroux) sat down and she was very relaxed. And she
said we know that you guys are really interested in the Union.
And she asked us what we could do to keep the Union out.
What could we do to keep the Union out? [Tr. 338.]

Cothran further testified that she told Theroux that she did not
think Theroux could do anything, it was just a little too little,
too late; that Theroux asked her to come to her office and when
they arrived at the office Theroux told her that she was caught
on camera putting up literature in the elevator; that she said
“so” because she did not realize it was a patient care area; that
Theroux told her not to do that any more; that she asked Ther-
oux why since it wasn’t a patient care area and Theroux told
her it was a public area and she could not post in a public area
either; that it was her understanding when she posted in the
elevator that Respondent’s policy was very relaxed, they had
corkboards up in the elevators and people put things up like
rentals; that there was a bulletin board in the cafeteria but you
had to have any positing on that bulletin board approved by
human resources; that she did not know if there was a sign on
the bulletin board in the cafeteria indicating that approval of
human resources was required because Respondent moved that
bulletin board from where it was located when you walk into
the cafeteria to around the corner behind some computers
where you cannot see it unless you know what you are looking
for; that when she posted in the elevator there was no sign on
the corkboards in the elevator that indicated that approval of
human resources was required; and that at the time of the trial
herein the corkboards were no longer there, the bulletin boards
are covered and they clearly indicate not to post without ap-
proval.
On cross-examination, Cothran testified that Theroux had
been their director for about 9 months to 1 year; that when the
above-described incidents took place in mid-October 2007
Theroux had been her director for maybe 6 months; that in or
around October 2007 she and the other nurses told Theroux that
they needed additional equipment and they were given an
automatic blood pressure cuff, and the public phone was taken
out of the department so patients could not choke themselves
with the cord; that additionally the nurses asked for scrubs with
elastic bands and not ties, and vinyl chairs which were easier to
clean; that Respondent has some suggestion boxes like the one
in the cafeteria which has been there for about 5 years; that this
suggestion box has been moved into the hallway leading to the
cafeteria; that quarterly meetings that the administration holds
with staff, which are called round the clock, started before the
union campaign did and they are forums where staff are invited
to share their concerns; that Respondent conducts employee
satisfaction surveys and Respondent has been doing this since
before the union organizing got started; that the changes de-
scribed above occurred as a result of Theroux asking the nurses
in October 2007 at the nursing station what they needed the
most; that in mid-October Theroux said to her, Saltzer, and
Branham, “[W]e know you guys are really interested in the
Union, and what can we do to keep the Union out”; that before
Theroux asked this question she asked how it was going and
NAPLES COMMUNITY HOSPITAL 985
Theroux conversationally warmed them up a bit before asking
about the Union; that she told someone from the Union about
this incident maybe within a couple of week but she was not
sure who it was because several union people were in and out
but it might have been Jennings; that she was not aware that she
could have filled out an incident report; that when she told the
Union about the incident the Union did not tell her to fill out an
incident report but she was told that an attorney might be inter-
ested in talking with her; that she did speak with a union attor-
ney about a year ago; that the Union had spoken to her several
times about filling out an incident report but she did not know
where to get one so she did not fill one out; that she did not fill
out an incident report about the posting in the elevator incident
because “the people behind . . . [Theroux] are intimidating peo-
ple and I don’t want to lose my job” (Tr. 354); that she wore
purple all of the time and she wore SEIU materials “because
now I know I’m protected” (Id. at 355); that she did not file a
grievance under the NCH procedure because it is her under-
standing that this procedure is only available if points are at
issue; that she did not believe that she received any points over
the elevator incident; that with respect to the notices of a per-
sonal nature that she has seen in the elevator, they stay up until
all of the numbers are torn off and then they are no longer
there; that she has no idea who removes the posters; that she
has seen posters in the elevator for weeks at a time; and that she
is estimating how long she has seen material posted.
On redirect, Cothran testified that when she met with Ther-
oux regarding the posting in the elevator, Theroux did not ask
her to sign any disciplinary form for her file.
Saltzer testified that Theroux is her supervisor; that more
than once Theroux asked “us what she could do for us, what we
needed” (Tr. 361); that she asked Theroux for (1) a psychiatric
health care provider to be on call, to call the unit back in a
timely manner; (2) a review of the electronic medical admini-
stration record system the unit uses to dispense medications;
and (3) 11 chairs for 11 patients in the living room; that she
went to a union meeting and she showed support for the Union
at work by wearing a purple bracelet; that the conversations
with Theroux occurred mostly at the nurses’ station; that Co-
thran, Branham and Barbara Bell work on her shift, and some-
times Ginger McCamish when she worked evenings (Tr. 364);
and that with respect to one conversation with Theroux,

We were talking about the Union and we had several
conversations with Susan [Theroux] about the Union. And
she asked what she could do for us to not have the Union
come in, words to that effect, vote for the Union or not
have the Union come in. What would change your mind?
. . . .
I don’t remember when it was, but Susan [Theroux] asked
what can I do, or we do for you so that the Union won’t come,
or you’ll change your mind about the Union, or you won’t
vote for the Union. And I don’t remember the exact words,
but that was the gist of it. [Tr. 364, 365.]

Saltzer also testified that this conversation about what Respon-
dent could do to keep the Union out was separate from the con-
versations where Theroux, as the director, asked the nurses
what they wanted done to improve how the unit worked.
On cross-examination, Saltzer testified that her unit holds 11
patients and it only has 7 chairs; that she wanted 11 chairs
which could be washed off so each patient could have a chair
during group therapy; that she is an open union supporter; that
on the occasion in question Theroux “asked her usual question,
what can I do for you, but she asked it with the Union attached
to it” (Tr. 375); that Theroux said, “[w]hat can I do for you, or
what can we do for you so that—I don’t know” (Ibid); that she
could not remember the exact words that Theroux used and she
was paraphrasing when she attributes these comments to Ther-
oux; that they had several conversations with Theroux about the
Union; and that she did not recall who was present for these
conversations.
Theroux, who has been with Respondent for 4.5 years and is
the nursing director of 2 North general surgery, 4 South oncol-
ogy, 4 and 6 Southeast, and CEAP of behavioral health (BH),
testified that when she takes over a new department she finds
out what is needed for the nurses to run the unit; that typically
she asks the staff; that before she went to BH, the chief nursing
officer, who is responsible for every nursing department in the
hospital, was overseeing the unit; that in August 2007 she took
the interim role of the BH department and within a couple of
months she took the permanent role; that in August 2007 she
had conversations with the nurses in BH regarding what needed
to be done to improve the department; that these conversations
took place when she began rounding permanently in that de-
partment; that she is always seeking input from the nurses; that
between August and October 2007 the nurses, with Saltzer
being the most vocal, told her that they needed additional, indi-
vidual, easily cleanable seating for the patients; that the nurses
asked for and received (1) a cordless (to remove a choking
hazard) phone for the patients; (2) scrubs for the patients which
have an elastic waistband and not a removable tie; and (3) an
automatic blood pressure machine which did not have a cord;
that there are a total of 16 nurses in BH, which includes the 4
Southwest voluntary unit and the 6 Southeast involuntary unit;
that Saltzer and Cothran are both in 4 Southwest, they both
work on the evening shift from 3 to 11 p.m. and that shift of
their unit, from appearances (purple attire, Crocs, and SEIU
paraphelnia), was strongly prounion; that she did initiate con-
versations with her nurses about the Union in that she asked the
nurses if they had any questions; that she provided the nurses
with information about what NCH offered as an organization;
that she never asked any of her nurses what she could do to
keep the Union out; that she did speak to Cothran about posting
literature in an elevator in the parking garage in October 2007;
that the posting was brought to her attention when she received
an email from security asking her if she could identify staff
members; that she has seen personal postings in the elevators
but they are not allowed; that she rides the elevators 5 days a
week (Tr. 611) and has seen a personal posting in an elevator
one day and by the next day it is no longer there; that Cothran
did not receive any points for posting in an elevator; and that
she has a personal bulletin board in her breakroom and she
allows union-related material to be posted on the bulletin board.
On cross-examination, Theroux testified that as of the time
of the trial herein she continues to ask questions regarding what
the employees need for patient care; that she asks the nurses
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 986
how is your shift, what are the issues of the shift, and what is
needed for patient care; that when she asked the nurses if they
had questions about the Union, they asked her about the elec-
tion; that she could not recall if she asked the nurses what they
expected to get out of the Union; that she could not recall if she
specifically asked the nurses what did they expect the Union to
do for them; that the nurses would provide information like
that;22 that she did not ask the nurses what can I do so that you
won’t vote for the Union; that before the union organizing
campaign she was never asked to identify anyone for posting
something in the elevator; that after she identified Cothran she
met with Settle, Thigpen, and a lawyer and as a group they
decided what she was comfortable with and that was a coaching
and she was directed to speak with Cothran; that she does not
meet with HR every time she gives a coaching; that HR asked
for this meeting; that she sees approximately one personal post-
ing a week in the elevators; that such postings include classi-
fieds, apartment for rent, a vehicle for sale, things that could be
on NCH’s classified ads website; that she received guidance
about Respondent’s elevator policy sometime between August
and October 2007; that the guidance took the form of depart-
ment head meetings and that she could not be more specific;
that guidance was given about what could and could not be
discussed with staff which would include what could and could
not be posted in the elevators; that the guidance was given by
HR and Respondent’s lawyers; that, when asked if she was
given anything written regarding a hospital policy about what
could be posted in the elevator, “I think I’ve answered this, but
there was a lot of documentation at the meetings. We were
given some information. I don’t have it currently” (Tr. 624);
that at the department head meetings during August to October
2007 the elevator policy “may have come up during that time
frame . . . . [a]t some point I was familiar with the policy” (Id.
at 625); that she never communicated to her employees that
they were not allowed to post in the elevators, not until the
coaching of Cothran and Saltzer, who was also present in the
elevator when Cothran posted the union material; and that they
were verbal coachings and no form went with it.
Subsequently, Theroux testified that when she gave the
coaching regarding posting in the elevator she asked the staff
members if they were familiar with the solicitation/distribution
policy, and were they familiar with where things could be
posted; that both Cothran and Saltzer “denied that they were
familiar” (Tr. 628); that she approached the incident in terms of
the solicitation/distribution policy; that she did not approach the
incident in terms of the bulletin board information in the em-
ployee handbook; that she told Cothran and Saltzer that they
could continue to post union material on the bulletin board in
the private nurses’ lounge on the unit; that there is a designated
bulletin board in the nurses’ lounge but “[t]he [downtown]
elevator did not have a bulletin board. Things were being just

22 More specifically, Theroux gave the following testimony:
Q. Did you ask them [the nurses] what did they expect to get
out of the Union?
A. I can’t recall.
Q. What do you expect the Union to do for you:
A. I can’t recall if I specifically asked it. They would provide
information like that. [Tr. 615.]
taped to the wall or hung on the wall” (Ibid); that she was not
sure if before the Plexiglas bulletin board there was a cork bul-
letin board; that when she saw personal postings in the elevator
before the Plexiglas bulleting board, the personal postings were
taped up; and that she could not say that she ever saw a cork
bulletin board in the elevator before the Plexiglas bulletin board
was installed. When asked if she was “looking at a rule, or did
she have a rule in mind” when she told Cothran and Saltzer that
they could not post union literature in the elevators, Theroux
gave the following testimony:

THE WITNESS: It was my interpretation of the solicita-
tion and distribution policy.
. . . .
THE WITNESS: That things could be handed out.
JUDGE WEST: So it wasn’t your interpretation of any
rule with respect to bulletin boards?
THE WITNESS: Right. I didn’t consider—I owned the
bulletin boards in the nurse lounge. I don’t oversee the
bulletin boards in the public elevators.
JUDGE WEST: But again, you weren’t basing the coach-
ing on any rule with respect to the use of bulletin boards.
You were basing it on the solicitation and distribution rule
or policy.
THE WITNESS: Correct. [Tr. 631.]

Earlier Theroux gave the following testimony:

THE WITNESS: My interpretation of the policy is that
this is both a public and employee area in the elevator. The
solicitation/distribution policy—I wasn’t stopping them
from soliciting or distributing, but that doesn’t mean hang-
ing something in the public area.
They were free to talk to staff. They were fee to hand
out flyers in non-work areas, non-patient care areas—[Tr.
630.]

Holliday testified that when she was first hired by Respon-
dent she worked in the downtown hospital for about 2 years
before she was transferred; that she has seen the bulletin boards
on the elevators on the downtown campus; that she always saw
a variety of things posted on the bulletin board on the elevator,
namely cars for sale, people having parties, nursing education,
and CPR classes; and that she saw a variety of things posted on
the bulletin boards in the lounges in the downtown campus,
namely things for sale, educational material, invitations to par-
ties, letters of recognition from patients and thank yous for
good care on all of the bulletin boards everywhere.
On cross-examination, Holliday testified that she worked in
Respondent’s downtown facility from May 2003 to approxi-
mately February 2005; that when she worked downtown she
saw postings on the bulletin boards such as things for sale,
educational material, and party invitations; that, with respect to
whether she saw anything of a commercial nature or related to
any business, she also saw postings about people trying to open
businesses like baby sitting services, lawn mowing service, and
car washing; and that she did not know if these were Respon-
dent’s employees’ own businesses. It is not clear when the wit-
ness answered the questions about postings of a commercial
nature she was referring to the bulletin boards in employee
NAPLES COMMUNITY HOSPITAL 987
lounges or the bulletin board on the downtown garage elevators
or both.
Panebianco testified that she has seen postings about the
hospital’s Spring Fling parties for employees posted in the
garage elevators; that she has seen an advertisement for a lost
pet; that before the union organizing campaign she did not see
anything in the elevators prohibiting posting there but well into
the campaign she did see a policy prohibiting posting there; that
no manager, director, or supervisor other than Settle ever dis-
cuss what could or could not be posted anywhere in the facility;
and that she never received written material from a manager or
supervisor explaining this.
Thigpen testified that Respondent has two elevators at the
downtown campus and one elevator at the North campus; that
at the time of the trial herein there were unlocked sliding Plexi-
glas bulletin boards on the two downtown elevators; that before
the Plexiglas bulletin boards were installed in early 2008 the
two downtown elevators had cork bulletin boards; that the cork
boards were no longer used predominantly because the cork
was falling off; that the corkboards had been used for as long as
the downtown parking garage had been there, which was at
least 5 years; that she could not point to anything in writing that
communicated to nurses that the cork bulletin boards in the
downtown garage elevator were considered to be official bulle-
tin boards subject to the employee handbook; that over the
years she saw various things posted on the cork bulletin boards
in the downtown garage, including things for sale, or a party
notice but that was not permissible and it was taken down; and
that she did not have a memorandum issued to hospital person-
nel indicating that these materials should not be posted because
she did not see it as a major problem, it would just be there
from time-to-time, and it was not there every day she used the
elevator.
Brown testified that his office is located in the downtown
hospital, he parks in the garage, and he rides the parking garage
elevators; that to his knowledge prior to the union campaign the
hospital did not allow notices of a personal nature to be posted
in the garage elevators; and that he did not recall ever seeing
any notices of a personal nature posted in the elevator in the
parking garage.
On cross-examination, Brown testified that he did not recall
ever seeing anything personal ever posted on the garage eleva-
tors; that personal is anything that does not have the NCH logo
on top of it and that “is something that would pique my interest
right away” (Tr. 675); and that he did not recall ever taking
anything down from the elevator.
When called by Respondent, Thigpen testified that Respon-
dent has procedures in place to secure employee input or sug-
gestions; that more specifically Respondent has what it calls
round the clock (RC) which is like a town hall or employee
forum; that there are RCs about every 8 weeks; that they in-
volve a series of meetings between Weiss and Respondent’s
executive team, on the one hand, and, on the other, employees;
that these meetings start with a discussion of what is going on
in the hospital and then the employees are asked if they have
any questions, “it’s opened up to the staff to talk about anything
that they may want, what’s going well, what’s not going well,
[and] suggestions for improvement . . . .” (Tr. 902);23 that Re-
spondent has an employee advisory group website where em-
ployees can offer suggestions or ideas to help them, and that is
answered; that department directors hold staff meetings usually
on a monthly basis where information is given to the employ-
ees; that department directors also meet with their staff on a
quarterly basis to review the employee opinion survey; and that
RC has been in effect for about 10 years, and the employee
advisory group has been in effect for about 5 years.
On October 31, 2007, Villani was in Respondent’s down-
town cafeteria at lunchtime. She testified that it was Halloween;
that they were having a benefits fair where employees could
upgrade their benefits; that she was with nurses Renee Fuller
and Panebianco; that they were going to eat their lunch and
hand out some treats which were in a mini bag attached to a
trick or treat union flyer; that they were striking up conversa-
tions and giving people treats with the union material attached;
that while they were doing this and eating their lunch, Director
of Security Brown approached them, told them that they were
no longer allowed to pass out treats, and they needed to leave;
that she told Brown that he knew all of them and could they at
least finish their lunch; that Brown said no, he wanted them to
put the treats away and he wanted them to leave; that Panebi-
anco told Brown that it was Halloween and everybody was
passing out treats; that she told Brown that they had a legal
right to be there and there were treats at the fair; that they
bagged the treats, put them under the table, assured Brown that
they would take them back to their respective departments and
they left shortly after that; that during her employment at NCH
she has seen others in the cafeteria giving out treats or selling
things, namely bake sales, Girl Scout cookies, and heart walk
stuff; that Brown told them that they had to leave because they
were not allowed to pass out their treats; that vendors at the fair
kind of setup booths with tables and their computers; that em-
ployees could upgrade their insurance or sign for disability or
other options the employees had in their benefit plan at NCH;
that the vendors had bowls with candy, cookies or little treats;
that General Counsel’s Exhibit 17(h) is the union flyer to which
they attached the small candy packet; that while Respondent
has vending machines with candy, Respondent did not sell
anything like the tiny candies that they were giving out; that she
has observed NUNSO supporters, who are against the Union,
distributing literature in the main cafeteria downtown; that she
has ordered Girl Scout cookies and she picks them up in the
lounge; that a lot of times she will pick them up in the lounge
while she is on off time after she is in the gym or wellness cen-
ter; and that the order forms for Girl Scout cookies or other
items for school fund raisers are passed around through the
nurses station or lounge.
Panebianco testified that on October 31, 2007, Halloween,
she went to Respondent’s downtown cafeteria about noon with
nurses Villani, Fuller and one or two other nurses; that they had

23 Thigpen also described Respondent’s GEM program which started
within 4 months of her testimony at the trial herein. Consequently, this
program, which is described as a greet, eat, and meet would have
started after the pertinent events alleged in the complaint involved
herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 988
a flyer for Halloween about the Union and they had candy at-
tached to it; that they were sitting down eating their lunch when
people would come up to the table to talk to them and they
would hand out the flyers with the candy; that Brown ap-
proached their table and told them they were not allowed to be
there; that Villani told Brown that they had a right to be there;
that Brown said that they could not hand out candy and pam-
phlets because they needed permission to be set up like a booth,
and they would have to leave; that Villani told Brown again the
they had a right; that they left the cafeteria; that she did not see
anyone else handing out candy or any type of goody that day;
that the candy bag was about 2 or 3 inches across, it was
wrapped up and tied to the flyer; that she did not know what
Brown meant when he said they had set up like a booth in that
they were sitting at a table just like any other table in the cafete-
ria and there was no background or anything else; that General
Counsel’s Exhibit 17(h) is the handbill they were giving out
that day; and that there may have been a benefits fair going on
in the cafeteria that day but she was not 100-percent sure.
On cross-examination, Panebianco testified that on Hallow-
een she and the other nurses in her group did not have tables
pushed together in the cafeteria; that the one box (described as
a file box measuring approximately 17-by-13-inches by 9
inches) they used to transport the materials was on the floor;
that they had some flyers with the candy attached on the table;
that sometime in the fall she was also stopped by a security
guard from distributing literature in the downtown cafeteria;
that she did not think that she filed an incident report over that
matter; and that she has distributed materials in the cafeteria
more than once.
Brown testified that when he went to the downtown cafeteria
about 12:30 p.m. on Halloween 2007 he saw two or three off-
duty nurses at a table in the cafeteria about 25 feet from the
entrance; that there were flyers and Halloween candy on the
table; that half the table was covered with the candy and flyers;
that he explained to the nurses at the table “that they could eat
lunch in the cafeteria, that they could speak with the other em-
ployees, but that the candy and material that was displayed on
the table, that I would like for them to remove it” (Tr. 649 with
emphasis added); that they put it under the table, continued
with whatever they were talking about, and he left; that he did
not ask them to leave; that this whole exchange took 5 minutes;
that he did not recall any other time when he asked somebody
in the downtown cafeteria not to display union literature and
candy, or not to distribute union literature and candy; and that
he used a normal conversational tone during this verbal ex-
change.
On cross-examination, Brown testified that he did not recall
anyone specifically using the words, namely “asking if they
could finish eating their lunch first” (Tr. 670); that as far as he
was concerned they could finish eating; that he did not remem-
ber anyone having to ask him that; that there is not written pol-
icy about having flyers displayed on a table “[n]o, ma’am, I
think it was the candy and stuff that was at issue” (Tr. 681); and
that he believed “that they were permitted to hand out the flyers
and have lunch and discuss anything that they wanted to dis-
cuss.” (Ibid.)
Charging Party’s Exhibit 14 is an email from Settle to de-
partment heads dated October 31, 2007. As here pertinent, it
reads as follows:

From: Settle, Brian
Sent: Wednesday, October 31, 2007 4:26 PM
To: Department Heads
Subject: FW: Solicitation and Distribution Policy “DO
NOT POST OR DISTRIBUTE the below
email.

Good afternoon. Below is out policy addressing solici-
tation and distribution as updated on August 30, 2007 and
previously distributed to you and to your staff. With the
increased onsite solicitation and distribution by the union
pushers, it is important that you become very familiar with
this policy.
It can be difficult to determine what constitutes solici-
tation/distribution, and where these activities can take
place. For example, an employee may discuss personal
business and handout materials over lunch in the cafeteria;
however, he /she cannot hand out food, candy, or drinks in
the cafeteria, since that competes with our cafeteria busi-
ness.
We do plan to meet with you and your first line man-
agers next week to discuss your critical role in continuing
to educate employees abut the union and the upcoming
election as well as to further clarify our guidelines on so-
licitation and distribution.
. . . .

Holliday testified that she has seen a NUNSO nurse who had
a table right in front of the cafeteria with antiunion literature on
it and she thought he also had candy; that this occurred during
the day shift around lunchtime; that she remembered that he
had some chocolates and also some candy corn; and that she
did not remember when she saw this but she thought it might
have been around Halloween and the other time she was certain
was after the first of January 2008.
Andersen testified that at some point in September 2007 she
went with another nurse, Jacki Chuck, and SEIU organizer Liz
McNamara to the cafeteria; that they had big cake with them
and they handed out pieces of the cake in the cafeteria; that
after about 5 minutes Dolan, who is the COO of the North
Naples hospital, and the head of security on the north campus,
Val, approached them in the cafeteria and Dolan told her that
she was not allowed to do this here; that she asked Dolan why
and eventually Dolan went to the back of the room and used her
cell phone; that Dolan came back to their table and told her that
she was not allowed to give out cake in the cafeteria because
Respondent sells cake in the cafeteria; that Dolan asked
McNamara who she was and McNamara identified herself; that
Dolan told McNamara that she had to leave immediately; that
McNamara said that she would leave but she would be contact-
ing an attorney because she did not believe that she should have
to leave; that Dolan told her that the cake could be brought to
the emergency department nurses’ lounge; that she was off duty
that day; that she has seen others giving out food in the cafete-
ria in that at the end of October there were a number of vendors
in the cafeteria and one of them, Sam’s Club, was giving out
NAPLES COMMUNITY HOSPITAL 989
brownies; that in February there was an American Heart Asso-
ciation fundraiser in the cafeteria where they were selling fun-
nel cake; and that after the September 2007 incident, she again
distributed food in the cafeteria on Halloween, which is de-
scribed below. When it was pointed out that this incident is not
alleged as a violation of the Act in the complaint, the Charging
Party indicated that it goes to Respondent’s rules about distrib-
uting food in the cafeteria, which is at issue in paragraph 10 of
the complaint.
On cross-examination, Andersen testified that the cake inci-
dent occurred in late September 2007; and that they only had
cake and they were not handing out literature at the time.
Settle testified that that as demonstrated by a lack of any
documentation with respect to General Counsel’s Exhibit 11
(The documents turned over to counsel for the General Counsel
pursuant to her subpoena for all the request and approval forms
for soliciting from January 1, 2007, to the return date of the
subpoena.), Sam’s Club and NUNSO, which is a group of
nurses who are against SEIU, did not submit a request for per-
mission or approval pursuant to Respondent’s distribution and
solicitation policies; that Sam’s Club, and others are invited one
time a year to attend an employee benefits fair which is held in
the Telford Auditorium on the downtown campus; that Sam’s
Club may have given out candy, cookies, key chains, squeeze
balls, and all kinds of things; that he did not see anything ex-
plicit in Respondent’s policy which indicates that it is improper
for employees to distribute food in the cafeteria; and that at the
North Naples Hospital the benefits fair was held in the cafeteria
and Sam’s did give away food.
At the end of October or in early November 2007 Jennings
went to the cafeteria on Respondent’s north campus with Roper
and Miles Granderson, who is one of the Union’s attorneys.
Jennings testified that they met with several nurses from the
North Collier emergency room, namely Andersen, and Al Rod-
riguez, who were in their break and joined them in the cafete-
ria; that they had found out that the benefits fair was going on
and Sam’s Club was giving out brownies; that Bank of America
was also there, and some of the other vendors were giving out
he thought candy and other items (described as “chachkas”);
that he and the others sat in the cafeteria and gave out union
literature and cupcakes; that after about 20 minutes a woman
who is the head of the North Collier campus security ap-
proached them and told them that they could not be distributing
cupcakes in the cafeteria and they had to go; that they asked the
security person why they could not give out cupcakes in view
of the fact that Sam’s Club was giving out brownies; that the
security person said that was the policy, and they asked to
speak with Settle, who is Respondent’s chief resources officer,
and the security person left; that subsequently Settle and Dolan
approached them; that when they asked Settle why they could
not give out cupcakes in view of the fact that Sam’s Club was
giving out brownies, Settle said it was because he had invited
Sam’s Club and not “you guys” (Tr. 136); that the nurses were
allowed to take the cupcakes which had not yet been distributed
up to their breakroom and he, Roper, and Granderson were
escorted out by Settle and Dolan; and that a security guard fol-
lowed him, Roper, and Granderson to Roper’s car and made
sure they left the campus.
Roper testified that she was off duty and she went to the
(North campus) cafeteria with Jennings and one of the SEIU
attorneys, Granderson; that they had a lot of information, pack-
ets, material, and Halloween cupcakes; that they gave out the
material and cupcakes for about 10 minutes; that the chief secu-
rity person at North Collier, Val, came up to her and said
“Cindi, what are you doing, You know you can’t be here” (Tr.
445); that she asked Val, “[W]hy is that” (Ibid.), and Val said,
“[O]h, stop it. You know why. . . . [y]ou need to leave . . . .”
(Id. at 445, 446); that she told Val that she did not think she
was right and Jennings stood up and introduced himself; that
Val left them and came back 5 minutes later with Settle who
told them that they had to leave; that Jennings stood up and
extended his hand but Settle did not shake Jennings’ hand; that
Settle told them that they had to leave and they could not give
out cupcakes; that she asked Settle why they could not do this,
and there were other people giving out cupcakes and so forth
(candy bars and tootsie rolls); that the other people were local
vendors, like Sam’s, advising employees about the different
benefits available to them; that Settle told them they had to
leave, that everyone else there was invited, and they were not
invited; that they packed up and left, giving the cupcakes to an
employee to take to her unit; and that a security guard walked
them out to their car. When Respondent objected to this testi-
mony on the grounds that it is not alleged in the complaint, the
Charging Party indicated that it goes to the enforcement of
Respondent’s solicitation and distribution policy and its justifi-
cation for the rule underlying the events in paragraph 10 of the
complaint.24
On cross-examination, Roper testified that they were at a ta-
ble in the North Naples cafeteria and the cupcakes and flyers
were placed on the table; and that they are not allowed to dis-
tribute union literature to other people in the cafeteria.
Andersen testified that on Halloween she distributed food in
the cafeteria on Respondent’s North campus; that it was noon-
time and she was with another nurse from the emergency de-
partment, Judy Ardizone; that they had a box with little con-
tainers of candy attached to a union flyer (GC Exh. 17(h)), and
they began to hand it out; that after about 5 minutes one of the
managers from women’s and children pointed her finger at
them and started yelling, “[Y]ou can’t be here, you can’t do
this, you need to get out of here” (Tr. 586); that they left and
went to a nurses’ lounge in the hospital; that after about 30 to
40 minutes they went back to the cafeteria with the candy and
began giving it out again; that her emergency department su-
pervisor, Lebailly, approached them, she asked Lebailly what
was going on with the person that yelled at them, Labailly told
her that it was okay and they told the other supervisor that it
was okay, that they were allowed to be there; that they stayed in
the cafeteria for 30 to 45 minutes giving out candy and then
Settle approached them; that Settle told them they were not

24 Par. 10 of the complaint alleges that on or about October 31, 2007,
Respondent, by John Brown, at the Respondent’s facility, told employ-
ees that they were not permitted to engage in union and other protected,
concerted activities unless they received prior permission and approval
from the Employer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 990
supposed to be there; that when she asked Settle why not, he
did not reply; and that Settle then walked away.
On cross-examination, Andersen testified that a birth place
manager who is an education director in women’s and chil-
dren’s, Ms. Benson, told her to leave the cafeteria on Hallow-
een 2007; and that a few days later she asked Labailly, who was
sitting at another table when the incident occurred, who the
woman was.
Thigpen testified that she is familiar with the benefits fair;
that the following organizations are invited to the benefits fair:
First Service Administrators (provides Respondent’s health
care), Express Scripts (Respondent’s pharmacy company),
Fidelity Investments (Respondent’s current 401(k) administra-
tor), a number of colleges in which Respondent provides tuition
and scholarship assistance, Triple A South, Costco and Sam’s
Club (to offer memberships), Sun Schools Credit Union, a
number of named banks (for mortgage assistance), Unam (pro-
vides Respondent’s disability, short- and long-term care, and
life insurance), Hyatt Legal Services (an benefit that employees
can purchase), and others; that there are a variety of booths or
tables; that the benefits fairs are held in the Telford Building,
which is adjacent to Respondent’s downtown hospital, and in
the cafeteria on the North Naples campus; that the vendors at
the benefits fairs do hand out food items; that separate and apart
from the benefits fairs Respondent has had Hodges Mace in the
downtown cafeteria and on the North Naples campus; that
Hodges Mace was on both campuses for 2.5 to 3 weeks allow-
ing employees to electronically sign up for benefits the hospital
offered such as health, dental, life, and short-term disability
insurance, and a 401(k); and that she did not recall if they were
handing out any food items.
When called by Respondent, Thigpen testified that once a
year a benefits fair is held at both the downtown campus and at
the North Naples campus; that the benefits fair is held to allow
the employees the opportunity to review all the benefits that are
offered so that they can make their determinations and selec-
tions prior to the beginning of the calendar year; that, among
others, Sam’s Club and Costco participate to afford employees
the opportunity to provide payroll deduction to split the cost of
those memberships up through four pay periods which is 8
weeks; that to participate, Sam’s Club and Costco have to be
invited and fill out a form; that the Union never asked for per-
mission to pass out food in the cafeteria; and that auxiliary
groups, which is an extension of Respondent’s volunteer ser-
vices, hold fundraisers three or four times a year, after getting
permission from Respondent, to benefit the hospital in terms of
scholarships or projects, and such fundraisers are held in a vari-
ety of areas, particularly in either the Telford or the cafeterias
both at the downtown campus and at north Naples.
McGoun testified that in October and November 2007 she
gave out union literature at various places, including three or
four times in the parking garage near the skywalk that leads to
the hospital. On cross-examination, McGoun testified that she
handed out the union flyers in the evenings with others, she
thought it was three times, and no one stopped her from passing
out the flyers.
On November 2, 2007, McGoun was given a “1-Point Re-
minder for Unsatisfactory Work Performance” (GC Exh. 3).
The discipline notes “Sandi, you were observed posting union
flyers in the parking garage on Oct. 29th at 19:16, this action
violates policy regarding solicitation approval.” In the em-
ployee comments section of the form, McGoun wrote “This
was a mistake that I posted this material but I did not know that
I could not post this material.” McGoun testified that on No-
vember 2, 2007, at about 5:30 p.m. she received a telephone
call from Kling, who is her nursing director and who said that
he wanted to see her in his office; that she told Kling that she
was very busy and he told her that he needed to see her, that’s
all; that when she went to Kling’s office he was there along
with Claudia Garone, who is the nurse manager on 1 North;
that Kling reviewed the above-described verbal she received in
August 2007 and then they told her that she was observed post-
ing union literature in the elevator in the parking garage and
they felt that it was appropriate that she receive a point for that;
that Garone said that she was receiving the discipline because
Respondent has a solicitation policy and Garone asked her if
she was aware of the policy for posting literature; that she told
them that she was not aware of the policy for posting literature
in the parking garage; that Garone told her that she was respon-
sible for knowing every policy; that, as indicated at the bottom
of the discipline, she recalled being given a copy of the solicita-
tion policy at this disciplinary meeting; that she had never seen
this solicitation policy before; that she signed the disciplinary
form and then went back to work; that about 15 minutes later
Kling approached her, gave her a hug, and told her, “I’m sorry
you had to go through that” (Tr. 288); that on October 29, 2007,
she was handbilling, she had two leftover handbills, she was
parked on the first floor of the garage, and she posted union
handbills in the two elevators in the parking garage; and that
before October 29, 2007, she had seen various things on the
garage bulletin board, namely houses or pets for sale and some
business cards.
On cross-examination, McGoun testified that she parked on
the first floor of the garage on October 29, 2007, because she
was off duty, and that on duty employees are supposed to park
higher up in the garage25; that in her January 24, 2008 affidavit
to the Board she indicated, regarding what she has seen posted
on the bulletin boards in the parking areas, that in the past she
has seen animals for sale, houses, dogs, rentals, etc.; that she
did not include business cards in her affidavit because it did not
come up; that while she knows that the hospital has a grievance
procedure, she has never used it; that while she was very upset,
she did not file a grievance because she found out she only had
one week to make the filing and it was too late; that she con-
tacted the Union about this discipline but she could not remem-
ber who she spoke with; that she believed that she filled out a
union incident report regarding this matter; that in her affidavit
to the Board she indicated, “I did not appeal the written warn-
ing to Human Resources because the whole affair is totally
ridiculous”; that she thought it was ridiculous because she was
“penalized for something that was not illegal—verbalizing
about the Union isn’t illegal, but I got —they gave me a verbal
warning for that. And the accumulation of the posting . . . in the

25 Thigpen testified that floors one through three in the downtown
garage are devoted to the public.
NAPLES COMMUNITY HOSPITAL 991
elevator made the point, so it really to me wasn’t illegal in a
sense” (Tr. 311); that it was her understanding that she received
a point as a result of the two incidents; that subsequently she
did not receive any disciplines; and that she wants the point
removed and her record expunged.
Subsequently, McGoun testified that before receiving the
November 2, 2007 one point reminder for “posting union flyers
in the parking garage” to her knowledge she had never (a) been
given anything in writing from the Respondent which described
its policy with respect to posting on the bulletin boards or (b)
been told by anyone in management or a supervisor what the
Respondent’s policy was with respect to posting on the bulletin
boards. McGoun further testified that she was aware that she
could access Respondent’s policy by going to its Intranet web-
site but if one tries to access policies on that site, it is very dif-
ficult in that it is not user friendly; that she was not aware that
one could go to the policy guidelines on the Intranet and obtain
information about posting on bulletin boards; and that she did
not recall anyone telling her that she could do that with respect
to posting.
Villani testified that she filled out a union incident report for
McGoun about what happened since McGoun was very upset
about what happened (CP Exh. 12). The report reads as fol-
lows:

SEIU variance

Friday Nov 2 400pm

John . . . [Kling] SW and Claudi Garone 4N pulled
Sandi McGoun into tiny office and disciplined her 1 disci-
plinary point for hanging union literature in parking ga-
rage elevator and also grouped in another warning from
talking at nurses’ station with Mary Debellis at 3N earlier
this summer, and also talking by elevator. That Jen Ringle
warned Sandi. Sandi responded by saying “if we can talk
about our kids we can talk about the union at the nurses’
station.” “Am I being disciplined because this is about the
union and I am part of the union.” They responded “Oh
no.” This is my right . . . freedom of speech. John King
and Claudis Garone pulled out policy. Actually Sandi was
not on worktime. Day off.

Mary Villani

On cross-examination, Villani testified that believed that she
did not use a Union incident report because she was out of the
variance forms since she wrote a lot of variances; that what she
wrote on Charging Party’s Exhibit 12 is what McGoun told her
at 4 p.m. on November 2, 2007; that Kling, who is her Director,
had just taken over and Garone was training him, and that is
why she was there; and that the variance is based on what
McGoun told her. And on redirect Villani testified that the vari-
ance reflects what McGoun told her regarding what they ac-
cused her of doing.
Kling testified that he gave the “1-Point Reminder for Unsat-
isfactory Work Performance” to McGoun for posting union
flyers in the parking garage on October 29, 2007, in that “this
action violates policy regarding solicitation approval” (GC Exh.
3); that he told McGoun (and the written discipline indicates)
that she had 7 days to file a grievance; that McGoun admitted
posting the material; that he received the photos of McGoun
posting in an elevator in an email from Director of Security
Brown and he responded that it looked like McGoun; that be-
fore he met with McGoun to give her a written discipline he
attended a meeting in HR with Thigpen, Cooper, Skifton, and
Becky Van Hoecke present; that this is “what we always do if
we do any kind of roundtable or any kind of disciplinary or
coaching” (Tr. 828); that as a result of the meeting “[i]t was
decided to go ahead and follow the corrective action policy we
had and go with the one pointer based on what she did” (Ibid);
that McGoun had already received a coaching so the next step
in the disciplinary process was one point; that when he met
with McGoun regarding this discipline, Garone, who is director
of 4 North, was present because it is standard operating proce-
dure when he does a counseling or talks to employees about
issues to make sure that the employee’s rights are protected and
nothing gets misinterpreted: that during his meeting with
McGoun he showed her the pictures, she said she did it, and he
gave McGoun a copy of the policy; that McGoun said that she
did not know that policy, she was sorry, and she did not think it
was a problem; that the policy can be found by going online to
My NCH policies and procedure tab under HR; that while what
McGoun did in the elevator was a posting, he gave her the no
solicitation policy because “[i]t wasn’t from—you know, from
round tabling with HR and with the executive team, it was de-
cided that there was no solicitation approval form filled out
through HR and she did not get approval for it” (Id. at 830,
831); that he knew that McGoun supported the Union in that
“[s]he told me, [s]he always wore purple, [s]he had purple
Crocs, the purple lanyard, the buttons, and she’s very open with
me, very honest” (Id. at 831); that McGoun wears pink a lot, it
is her favorite color; that during the approximately 20-minute
meeting McGoun was very pleasant, very professional but she
was upset and she was a little shaken; that about 30 minutes
after the meeting he went to her because he wanted to make
sure she was okay; and that he gave her a hug when he saw her
because “I respect her as a person. She’s my friend and I
wanted to make sure that . . . she knew it wasn’t personal and I
supported her.” (Id. at 832.)
On cross-examination, Kling testified that an employee
could have two coachings; that McGoun received the one point
“because it was related to the first coaching” (Tr. 834); that
posting a union flyer did not negatively impact her department,
it did not impact patient care; that HR did not tell him what to
write on the form, he did that himself; that he had written peo-
ple up before and whether he consults HR depends on what the
discipline is for; that since this matter started with the email of
the picture and since he was a new director, he wanted to speak
with someone with experience who could tell him what the best
route was; that when he joined NCH he did not sign anything
about the receipt of the no-solicitation/no-distribution policy;
that under the solicitation policy, McGoun should have re-
quested permission to post and this was determined after the
discussion with HR; and that he uses the garage elevator every
day and he has seen postings in the garage elevator including
everything from couches and cars for sale and houses for rent to
things for child day care.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 992
When asked on redirect whether he knew the postings for
cars for sale was authorized, Kling responded that he had no
idea.
Subsequently, Kling testified that when he spoke with
McGoun he was relying on NCH’s policy that “[r]equests to
solicit for organizations representing any protected . . . groups
will routinely be denied.”
When called by Respondent, Thigpen testified that she uses
the downtown garage elevators; that she has seen unauthorized
postings in these elevators for the sale of such things as pup-
pies; that she takes such postings down; that even after Re-
spondent started using the electronic billboard she has seen
unauthorized postings in the garage elevators two or three times
a month; that other people have taken the unauthorized postings
down and brought them to HR; that this does not happen that
much anymore, about once or twice a month; and that Respon-
dent has had a “practice” (Tr. 890)26 of no unauthorized posting
in the hospital garage elevators for as long as the garage has
been there, which is about 10 years.
On cross-examination, Thigpen testified that the garage ele-
vators in the downtown parking garage have been there for
about 10 years and they had corkboard bulletin boards (up until
those boards were replaced with Plexiglas boards); that “for the
past 10 years” (Tr. 936), she and others have been removing
personal postings from the cork bulletin boards; that she deter-
mined that it was not necessary to specifically mention bulletin
board posting standards of behavior in the corrective action
policy (GC Exh. 2); that she believed that there have been sur-
veillance cameras in the downtown parking garage elevators
since the elevators were first used and they have been upgraded
over the years; that she could not specifically recall any other
instance where she actually got a picture of someone putting up
a posting at any point in time before McGoun; that the original
photographs of McGoun in General Counsel’s Exhibit 3 show
that the bulletin board was a cork bulletin board; that the pho-
tographs were taken on October 29, 2007; and that the Plexiglas
bulletin boards were not installed in the downtown garage ele-
vators until January 2008.
Brown testified that he knew what General Counsel’s Ex-
hibit 3 is; that in looking at the picture of the West elevator
dated 10/29/07 he remembered that the triggering event for
reviewing the video of the camera on this elevator was that
someone found an SEIU flyer or a prounion flyer on the bulle-
tin board in that elevator27; that he was asked by someone in
HR to review the video tapes and he directed Griffith to do the
review; that about three other times security reviewed the vid-
eos for employees allegedly posting union materials on the
elevator bulletin boards; that he believed that the videos were
reviewed two times before this incident for posting union mate-

26 During the last day of the trial herein, before I ruled on the objec-
tion, one of the attorneys for Respondent used the word “practice” in
his question after one of the attorneys for the Charging Party objected
to the use of the word “policy,” indicating that it was without founda-
tion in that the Charging Party did not believe that there was any evi-
dence relating to a policy.
27 The pictures in General Counsel’s Exhibit 3 show that the bulletin
board in Respondent’s downtown garage elevator is cork with a wood
frame.
rials; and that one occurred in August 2007 and involved an
employee of the psychiatric unit on 4 Southwest.28
On redirect, Brown gave the following testimony:

Q. Can you describe what kind of bulletin boards we
have in the parking garage elevators now?
A. They are cork standard bulletin boards that you pin
stuff on.
Q. They’re cork right now:
A. I believe so.
Q. They’re not enclosed with a sheet of plastic?
A. As near as I can recall, we haven’t yet been able to
identify an enclosed bulletin board that will pass the Fire
Marshall’s scrutiny. They have to be of a specific size and
specific construction.
Q. And we have Plexiglas bulletin boards in the eleva-
tor now in the parking garage elevators?
A. Yes, we do have an eight and a half by 11 Plexiglas
that meets the Fire Code that we’ve put in all the eleva-
tors.
Q. Including the parking garage elevators?
A. Yes.
Q. So it’s not a corkboard at the moment?
A. I don’t know. [Tr. 689, 690.]

Respondent’s chief human resource officer, Settle, testi-
fied that Respondent has an employee handbook which applies
to all of Respondent’s facilities; that General Counsel’s Exhibit
2 is Respondent’s corrective action policy which is from its
policy and procedural manual; that a corrective action would be
filed in the employee’s personnel file and a “coaching,” which
is not necessarily part of a formal corrective action, would not
necessarily be in the employee’s personnel file; that General
Counsel’s Exhibit 3 are snapshots (three all dated
“10/29/2007”) from a video camera in a parking garage eleva-
tor (of Sandi McGoun)29; that as indicated in the photographs,
there is a cork bulletin board in the involved elevator; that Gen-
eral Counsel’s Exhibit 4 consists of a “3-Point Reminder for
Employees Standards of Behavior” to Pete Karavas (for “plac-
ing another flyer in the elevator of the parking garage, which
violates NCH policy”) dated “08/03/2007,”30 a “COACHING
FORM” for Kelly Kinsland (for “. . . posting literature in a non
approved area”) dated “08/10/07,”31 and a “1-Point Reminder

28 It appears that Brown is referring to Cothran posting union mate-
rial in a garage elevator earlier in October 2007.
29 The exhibit also contains a “COACHING FORM” dated
“7/31/07” to McGoun and a “1-Point Reminder for Unsatisfactory
Work Performance” dated “11–2–07” to McGoun. As noted above, the
latter indicates “Sandi you were observed posting union flyers in the
parking garage on Oct. 29th at 19:16 this action violates policy regard-
ing solicitation approval” and “Copy of solicitation policy given to
Sandi McGoun.”
30 The reminder does not specify which policy Karavas violated.
Thigpen testified that Karavas did not get a three point reminder solely
because he posted a union flyer but rather Karavas “had previous cor-
rective actions which elevated it to the three points.” (Tr. 568.)
31 Under the “Desired Performance” portion of the form the follow-
ing is typed: “Abide by the Hospital’s Solicitation and Distribution
policy.” Under the “Action to be Taken by the Director/Designee”
“Review the Hospital’s Solicitation and Distribution policy with Kelly”
NAPLES COMMUNITY HOSPITAL 993
for Employee Standards of Behavior” to Rosann Graham (for
“[d]istributing union literature in the endoscopy department
which violates the hospital policy against solicitation”) dated
“11–2–07”32; that he believed that General Counsel’s subpoena
requested documents for employees who were disciplined for
reasons similar to those of McGoun and General Counsel’s
Exhibit 4 are the documents that Respondent provided in re-
sponse to the subpoena; that he believed that the names of
Karavas and Kinsland were on “a flyer that came through, so
they were in favor of the Union” (Tr. 43); that it is not true that
under Respondent’s written policy all requests to solicit or dis-
tribute must be made in writing and submitted to HR; that Gen-
eral Counsel’s Exhibit 5 is Respondent’s solicitation and distri-
bution policy found at pages 80–82 of Respondent’s employee
handbook but that is not the current policy in that the policy
was revised in August 2007 to clarify, as here pertinent, imme-
diate patient care areas, working time, and working areas; that
General Counsel’s Exhibit 6 is the current policy which was
approved (as indicated on third and the last page of the docu-
ment) on “08/30/2007”33; that new employees receive the no-
solicitation/no-distribution policy during an employee orienta-
tion, the policies are available on the intranet, which is “My
NCH,” and when policy changes are made they are distributed
to department directors to review with their staff; that the prior
policy (GC Exh. 7) was approved in May 200134; that employ-
ees are not allowed to post things in the employees’ lounge in
that Respondent maintains bulletin boards throughout its cam-
puses for official notices, legal postings, and other items ap-
proved by administration while some departments in their
breakrooms have permitted employees to post personal notices
for garage sales, chili suppers, whatever on a bulletin board in
their breakroom, and Respondent continued to permit that to
occur; that the bulletin board policy is found in the employee
handbook and on “My Intranet” (Tr. 50); that he did not see

is typed in. And under the “Employees Plan for Improvement . . .”
“Become familiar with and abide by the Hospital’s Solicitation and
Distribution policy” is typed in.
32 The following appears in the “Employee’s Comments” section of
the form: “I was in the endoscopy dept. on my lunch time, as well as
some days after my shift. I only gave literature in the break room on
those occasions, never in the treatment room.”
33 The policy contains the following:
It is the policy of the NCH Healthcare System (NCH) that so-
licitation by employees at NCH is prohibited during working time
and in immediate patient care areas and distribution is prohibited
during working time and in working areas. It is also NCH’s policy
that distribution and solicitation of employees by persons not em-
ployed by NCH, on NCH premises, is strictly prohibited unless
prior authorization has been granted by the Chief Human Re-
sources Officer or designee.
34 P. 3 of the exhibit is a “Solicitation Approval Form,” which indi-
cates, inter alia: “Solicitation requests must be made 60–90 days in
advance and in accordance with NCH policy. . . .
Name of organization:
Purpose of solicitation?
How does this organization support the mission of NCH Healthcare
System?
Dates, time and locations of proposed solicitation:
Type of Solicitation:
. . . ..
that bulletin board policy in the employee handbook received in
evidence herein as General Counsel’s Exhibit 8 but it is on “My
Intranet” (Tr. 52); that while the copy of the employee hand-
book provided to the General Counsel in response to her sub-
poena contains blank pages, to his knowledge Respondent did
not leave these pages blank intentionally; that General Coun-
sel’s Exhibit 9 appears to be the no-solicitation/no-distribution
policy that was approved on August 30, 2007” [The letterhead
is “NCH Healthcare System/” (emphasis in original)]; that as to
whether this August 30, 2007 policy change was distributed to
employees “we provided Department Directors with policy
changes and they communicate those changes with their staff”
(Tr. 53); that he believed that he mailed General Counsel’s
Exhibit 13, which is dated July 21, 2007, which is on “NCH
Healthcare System” letterhead, and which advises employees
what they should consider if they are approached and asked to
sign a union authorization card, to all employees; that General
Counsel’s Exhibit 14 was distributed to volunteers who work at
Respondent’s facilities35; that General Counsel’s Exhibit 15, is
distributed to employees, posted on Respondent’s bulletin
boards, and is available on the intranet36; that General Coun-

35 The letter, which is dated August 15, 2007, on the letterhead of
“NCH Healthcare System,” and is signed by Respondent’s president
and CEO, Weiss, summarizes the perceived negative consequences of
having a union and indicates, inter alia, that Respondent “is committed
to remaining union-free.”
36 The document, which is dated July 26, 2007, is titled “Straight
Talk NCH Healthcare System, A weekly update from management on
the issues that matter most,” and which is signed by Weiss, reads in
part as follows:
By now, of course, all of us are aware of the agitation by out-
side union organizers, eager to persuade NCH nurses and perhaps
others to sign up with them immediately to form a union at our
hospital.
. . . .
So over the past several weeks, as you know, I, personally,
and other members of management as well as several Trustees
have been meeting with many of you to listen to your suggestions
and concerns and, when feasible, to act on them.
These meetings with employees have already yielded positive
results.
We’ve increased the adjusted nurse-patient ratios, increased
the shift differential, reintroduced Ben Bucks, and implemented
similar things to show that we’re listening and that we care.
I’m delighted to say that yesterday, at its regular meeting, the
NCH Board of Trustees decided to continue this approach of re-
sponding positively to staff concerns and recommendations.
Among the Board’s actions were the following:
In terms of our annual fall wage and salary adjustments,
the Board reviewed the results of the market data survey
compiled by Human Resources that I referenced in a previous
Straight Talk, and agreed that in light of our changing market,
it was appropriate to plan for an increase in wage and salary
in the range of 8% - 10 % for RNs and LPNs, and an increase
in the range of 6% - 8% for all other employees. This would
continue to make us highly competitive in the market.
In terms of an employee year end bonus - what has in the
past been called ‘Team Share’ - the Board decided to set aside
funds for a Board discretionary bonus in the fall, as has been
its custom in recent years. I understand this is another subject
that has sparked some misunderstanding and confusion, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 994
sel’s Exhibit 16 is a compilation of a number of Here are the
Facts and these documents are a communication vehicle that
Respondent used to communicate with its employees the facts
surrounding the union organizing attempt at Respondent; that
these documents did not exist before the union organizing cam-
paign; that some of those who supported the Union wore a lot
of purple at work; that Respondent purchased and provided
blue bracelets to employees to wear who did not support the
Union; and that Respondent has a monthly newsletter called
The Wave, which is distributed with paychecks.
In response to questions of the Union, Settle further testified
that the policy described in General Counsel’s Exhibit 6, as
described above, addresses solicitation and distribution and it
does not cover the posting of materials; that Respondent’s bul-
letin board policy covers the posting of materials; that he be-
lieved that the bulletin board policy is the only policy that cov-
ers posting materials; that paragraph “C” of the policy de-
scribed in General Counsel’s Exhibit 6 has to be read in the
context of the entire policy37; that under paragraph “F” of the
policy in General Counsel’s Exhibit 6 off duty employees have
the same access to the involved facilities as members of the
public38; that under the policy as it existed before it was

I’m delighted that the Board’s decision should help clarify
this issue. Again, the Board’s decisions regarding salary in-
creases and discretionary bonuses are conditioned on the clos-
ing of the DSI sale, and would be effective, as always, in the
fall.
The Board also decided yesterday to move on an idea it has
contemplated for some time - appointing an NCH nurse to the
Board of Trustees. The nominating committee of the Board
will be asking for recommendations from the staff. Further-
more, because we think it is important, Senior Leadership is
recommending that the Board of Trustees appoint an addi-
tional NCH general employee to the Board at the September
meeting.
The Board also decided to add a Chief Medical Officer to
enhance relations with the physicians, nurses, and other care
givers, as well as to provide leadership for several priority
projects, such as CPOE (computer physician order entry),
quality initiatives, and EBM (evidence based medicine).
The Board also expressed a clear intent to expand em-
ployee input in future plans for the hospital system, in such
key areas as strategic planning, renovation, redesign, and
quality care.
All of these positive actions by the Board of Trustees reflect a
clear intent and effort on the part of the hospital leadership to lis-
ten to your concerns and respond to your recommendations. Our
desire to do the right thing for all of you may not always be ap-
parent. And I personally apologize for any unintended conse-
quences.
The fact is we do care about doing right for you and for our
great hospital. And we’re confident that working together, with-
out outside interference, we can build an even better NCH.
37 Par. “C” reads as follows:
No distribution is allowed during working time. No distribu-
tion of any kind is allowed at any time in any working areas.
Working areas are all areas of the Hospital, except cafeterias
(unless the employee is working in the cafeteria), employee
lounges and break areas, lobbies and parking areas.
38 Par. “F” of the policy reads as follows:
amended on August 30, 2007, the only restrictions on employee
distribution in public areas was that the employee could not be
on working time or in a working area or off duty (GC Exh. 7)
(approved “5/01”); and that the new policy (GC Exh. 6), clari-
fies the prior policy with respect to working time, working
areas, and immediate patient care areas.
In response to questions of Respondent’s counsel, Settle tes-
tified that he was not aware of the Hospital ever allowing unau-
thorized postings for commercial ventures in the hospital park-
ing garage elevators; that while the employee handbook pro-
vides a synopsis of Respondent’s policies and guidelines, the
human resources policy manual provides greater in depth in-
formation and he believed that Respondent’s employees have
access to the personnel policy manual in that he believed it is
on “My NCH,” which is an intranet; that in orientation employ-
ees are given a copy of the policies on a CD and they are shown
how to navigate on “My NCH”; and that when the union orga-
nizing drive was going on in 2000 Respondent allowed em-
ployees to distribute literature in nonwork areas without disci-
plining them.
General Counsel’s Exhibit 17(e) is a union flyer (dated
“11.13.07”) which on one side of the flyer has a picture of just
Villani, identifies her as an RN in SCIU, Downtown campus
and quotes only her as saying the following:

Right now, nurses are left in the dark when it comes to NCH
finances and how resources are used. By uniting in a union,
we’ll gain the right to request more information about finan-
cial data during negotiations. That kind of transparency,
openness, and input will be good for everyone at NCH.

The other side of this flyer reads as follows:
Priorities at NCH:
The $110 million Question
Imagine if Nurses Had a Voice About Prioritizing
How NCH Used Its Profits Since 2003
Nurses’ hard work has helped make NCH a trusted and
respected place for our community to get care.
Our work has also helped NCH do very well finan-
cially. Last spring, managers were telling us to “tighten
our belts,” while cutting staffing, overtime, and travelers’
contracts, and implementing convenience of hospital—
even after coming off a year where they made $26 million
in profits, according to their IRS filings.

In Fact, Since 2003, NCH:

Has made $110 million in profit.
Has made a higher profit margin than the average hos-
pital. In 2005, NCH’s profit margin was double the na-
tional average for hospitals.
Stands to make up to $89 million more from the sale of
DSL Labs. Estimates for the value of the sale range from
$40 million to $89 million. NCH hasn’t disclosed the
terms.

Off duty employees are included in this policy and are not
permitted access to NCH except to the extent that other members
of the public have such access; for example, when visiting pa-
tients or receiving medical care.
NAPLES COMMUNITY HOSPITAL 995
During this time, compensation for executives has been an
NCH priority…

CEO compensation at NCH has been more than double
the national average.
Former CEO Ed Morton’s $3.3 million total compen-
sation for 2005 - 2006 was more than double the average
hospital CEO’s compensation.
. . . . [The flyer has a chart showing the increase in
compensation of the CEO and the President from 2003 to
2006]
CHART: NCH CEO’s compensation went up 248 per-
cent from 2003 to 2006. NCH president’s compensation
went up 102 percent, up to $831,882 in 2006.
Many of us believe that NCH could do more to staff
units and recruit and retain RNs.
In fact, from 2005 to 2006, the share of NCH’s budget
devoted to staff pay and benefits actually went down.
Sources: Financial data from publicly available IRS
disclosures, financial audits, and media coverage of DSI
sale.
Imagine what we can achieve when we unite and gain
more say on how the hospital allocates resources.

Florida
SEIU Healthcare
United for Quality Care

General Counsel’s Exhibit 17(d) is a flyer which refers to
what Villani said during a press conference after an unfair labor
practice charge was filed with the Board in January 2008.39
General Counsel’s Exhibit 21 is a copy of a January 21, 2008
article which came off the Naples Daily News website. It is
titled “NCH nurses accuse hospital management of union tam-
pering.” The following appears on the last of three pages of the
article:

Mary Villani, a registered nurse in the surgical inten-
sive care unit at NCH Downtown Naples Hospital, said
she has been followed by management and was suddenly
relieved of some of her job responsibilities last month,
which she attributes to her support of the union.
She has worked for NCH for 26 years.
“Nurses are being pulled from the hallways to be dis-
ciplined and some of those encounters can take up to an
hour,” Villani said.

The article was not received for the truth of the matters asserted
therein.

39 The flyer quotes Villani as saying the following:
A majority of us support a patient care voice for nurses, and
the community is with us. We urged management to act profes-
sionally and allow us our democratic right to decide on a union
for ourselves, free from intimidation. They couldn’t abide by that
simple request.
The flyer goes on to indicate the following:
On Thursday, we filed charges with the National Labor Rela-
tions Board (NLRB) to stop NCH from breaking the law through
fear and intimidation tactics in an effort to get in the way of us
forming out union.
….
Villani testified that usually five to six nurses work on each
shift in her department, SICU; that the number can drop to four
in the summer; that one RN is assigned to be charge nurse on
her shift; that a charge nurse on SICU carries a full assignment,
is part of the code team, helps her coworkers, frequently trans-
ports patients throughout the hospital, responds to emergencies
in the hospital codes, and assists when necessary on SWAT
calls40; that the charge nurse is paid $1.50 more an hour; that
over the last couple of years the nighttime supervisor, who is
called a clinical coordinator, determines who will be assigned
to work as charge nurse on her 7 a.m. to 7 p.m. shift; that early
in the period June 2007 to February 2008 only a few nurses on
her shift wanted to do charge, and the charge nurse is notified
by a little Post-it by the timeclock; that at that time there was no
rotation41; that she was charge quite a bit in the past; that usu-
ally the senior staff is selected because they are willing to take
on the extra responsibility of being charge; that on the day shift
Carole Miller and Jacqueline Branch will do charge; that Ras-
mussen does not care to do charge but she will do it if no one
else will; that in the summer of 2007 there were not too many
nurses that liked to do charge; that you do not know that you
are assigned charge until you arrive at work in the morning and
see the Post-it by the timeclock where it is indicated who is
responsible for what that day; that after the press conference in
January 2008 when she mentioned the reduction of her charge
nurse assignments, the procedure with the Post-it by the time-
clock was still followed; that her statements were published in
the Naples Daily News (GC Exh. 21)42; that ironically after the
press conference, in mid January 2008 she was in charge the
next 3 days she worked but after that it was very sporadic, with
her being charge maybe once a week or sometimes she would
go a whole week without being charge; that in the period before
late November 2007 she was assigned charge nurse duties 65 to
75 percent of the time she worked or two out of three shifts that
she worked depending on vacations and such; that during the
time period from late November 2007 to mid-January 2008 she
was not assigned to work as charge nurse as frequently; that she
was assigned charge after November 2007 on a couple of holi-
days that she worked, namely Christmas and New Years; that
when she noticed that her paycheck was a lot lower she asked
Kim Kooyers, who is a fill-in daytime clinical coordinator,
about it in the presence of Rasmussen; that when she asked
Kooyers if she was not being assigned charge because of her
union activity, Kooyers said there was nothing in the communi-
cation book about that; that she believed that this book is used
between clinical coordinators; that a lot of times she comes to
work, sees that someone else is assigned charge, that person
does not want to take the responsibility of charge nurse and

40 Subsequently, Villani explained that SWAT calls are when a pa-
tient begins to deteriorate and the clinical coordinator who responds
calls for more assistance and the charge nurse responds.
41 While it was still that way when Villani testified at the trial herein,
she testified that sometime in January 2008, after the press conference,
her clinical director told her that Respondent had come out with a new
policy to rotate but that it was very inconsistent.
42 As noted above, the January 10, 2008 article indicates that Villani
“was suddenly relieved of some of her job responsibilities last month,
which she attributes to her support of the union.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 996
asks her if she would mind taking charge, and she takes the
charge nurse functions; that this is a common practice and the
nurses do not need approval but rather do it among themselves
in SICU; that as a charge nurse is moving through the hospital
there is an opportunity to converse with other hospital person-
nel; and that when she is not the charge nurse she does not have
interaction with nurses in other departments as often as she
does when she is the charge nurse.
On cross-examination, Villani testified that, in addition to
herself, the nurses on the day shift in SICU who are eligible for
charge nurse responsibilities includes Rasmussen, Miller,
Branch, Vladi Miravotsolva, Jacqueline Crandall, Suzi Guy
[“rarely” (Tr. 189)], Silvia Denny, and Barbara Garner
[“rarely” (Ibid.)]; that the nurses who do not want to have
charge nurse responsibilities are Rasmussen, Crandall, and
Garner; that the clinical coordinator on the night shift deter-
mines who will be assigned charge nurse duty for the next day
in SICU; that the charge nurse assignment is always posted on a
Post-it by the timeclock but if the person assigned does not
want the assignment, then that nurse will ask someone else to
take the assignment; that this happens pretty frequently (It hap-
pened to her once in her last six shifts before she testified at the
trial herein.); that there is a certain code which is punched into
the timeclock for charge nurse (ULT for unit team leader)
which means that if after punching in she accepts the charge
assignment from someone else, she has to then, within a certain
amount of time, punch in the correct code or fill out a
“KRONOS” (the timeclock system) exception sheet; that her
union activity started in July 2007 and she signed the union
poster received as General Counsel’s Exhibit 17(a) in August or
September 2007; that all of the nurses on the day shift in SICU
support SEIU; that in the second or third week in November
2007 she began to notice that she was not getting assigned to
the charge nurse duty; that she noticed that the amount on her
paycheck was reduced and her name was not on the Post-its;
that the charge nurse assignments to her increased immediately
after she gave a statement to Mark Heaton on January 20, 2008;
that the differential per 12-hour shift for being a charge is a
total of $18; that she should have been charge nurse at least two
out of three shifts; that if she was on paid time off this would
affect her assignment to charge nurse duty; that in late Novem-
ber 2007 she started discussing the situation regarding her not
being assigned as frequently as in the past as charge nurse with
some of her coworkers; and that on one occasion she com-
plained to Rasmussen about not being assigned as charge nurse,
Rasmussen told her that she could have the assignment but she
declined the offer.
On redirect, Villani testified that while all of the nurses on
the day shift in SICU who were eligible for charge nurse sup-
ported the Union, primarily she and, towards the end of the
campaign, Rasmussen helped the Union out a lot; and that she
was the main resource person for the Union in her department.
On recross, Villani testified that Rasmussen is on the union
literature; and that at least 80 percent of the nurses in her de-
partment wear something which indicates their support for
SEIU.
Rasmussen testified that she has been an RN in Respondent’s
SICU for 18 years; that she is assigned charge nurse duties but
she prefers not to be the charge nurse; that several of the RNs
really like to be charge nurse, including Villani, but there are
many who do not like to be the charge nurse; that the coordina-
tors know which RNs like to be charge nurse and which RNs
do not like to be charge nurse, “it is common knowledge” (Tr.
264); that prior to November 2007 she was assigned to work as
a charge nurse one or two times a month; that from late No-
vember 2007 to mid-January 2008 she was assigned to work as
a charge nurse one or two times a week; that she was getting
charge nurse assignments which had previously gone to Villani
and Villani did not like this because Villani likes to do charge;
and that of the RNs who were involved in organizing for the
Union, Villani was the most outspoken.
On cross-examination, Rasmussen testified that she works
days in SICU and the RNs assigned charge nurse duties on that
shift include herself, Villani, Miller, Denny, and Guy; that her
shift is from 6:45 a.m. to 7:15 p.m.; that when she comes in in
the morning there is a yellow Post-it near the timeclock with
the charge nurse’s name on it; that she believes that the night-
shift clinical coordinator posts the name of the charge for the
following day shift because she knows that the day-shift clini-
cal coordinator makes the charge nurse assignment for the fol-
lowing night shift; that about once a week the named, day-shift
charge nurse asks somone else to be charge nurse in her place;
and that all of the nurses in SICU support SEIU.
On cross-examination, Holliday, who works at Respondent’s
North Collier facility, testified that she telephoned the SEIU
organizer who flew in from Washington State; that she sort of
got the union organizing ball rolling; that she was a very public
supporter of the Union; that she has worked as a charge nurse
(a matter not covered on direct); that she has had her hours cut
as a charge nurse during this union organizing drive; and that
she did not fill out a union incident report or complain to any
member of management or file a grievance pursuant to hospital
policy about the reduction in her charge nurse hours.
Ringle testified that as the day-shift clinical coordinator in
SICU she designates who will be the charge nurse on the fol-
lowing evening shift; that Respondent’s Exhibit 7 are schedules
of SCIU; that Brett McCloskey is a night-shift clinical coordi-
nator; that the night-shift clinical coordinator chooses the day-
shift charge nurse for SICU; that the nurses on the day shift
who are capable of being a charge nurse include Branch,
Denny, Linda Falvo, Guy, Miller, Lori Plosky, Rasmussen,
Villani, and Garner; that those who do not like to be assigned
charge nurse duty include Garner, Sherry Reiser, Crandall, and
Lottie Bjrektarevic; that the day-shift nurses who like to be
assigned charge include Branch, Guy, Miller, Plosky, Rasmus-
sen, and Villani; that the charge nurse makes $1.50 more an
hour; that the preceptor or training duties pays an additional 75
cents an hour; that Villani has worked as a preceptor; that it
occurs that the charge nurse named on the Post-it near the time-
clock does not take the assignment; that the clinical coordinator
has nothing to do with the patient assignment which occurs in
SCIU; that nurses decide patient assignment in SCIU and this
could be considered in determining ultimately who is the
charge nurse; and that when census is down in the summer and
ICU and SCIU are combined, this could affect how many times
NAPLES COMMUNITY HOSPITAL 997
someone could be designated as charge nurse because there are
more names to draw from.
On cross-examination, Ringle testified that the SICU night
clinical coordinator, which could be McCloskey, designates the
charge nurse for Villani’s day shift; that while she takes certain
things into consideration in making the charge nurse assign-
ment for the night shift, she does not make the charge nurse
assignment for the day shift, and she cannot say what consid-
erations the night-shift coordinator takes into account in decid-
ing who will be charge nurse on the day shift; that a Post-it is
placed by the timeclock indicating which nurses are assigned to
do what that day; and that from Respondent’s Exhibit 7 there is
no way to tell who was assigned to work as charge nurse.
Kling testified that nurses Crandall, Falvo, Garner, and
Reiser do not particularly care to be charge nurse; that Rasmus-
sen will be a charge nurse if asked but she does not like it; that
Villani, Miller, and Plosky, before she became the clinical Co-
ordinator, really enjoy and want to be the charge nurse; that he
has assigned Villani to work as a preceptor training interns; that
Villani is excellent in terms of capability and skills; that conti-
nuity is a consideration in deciding who will be the charge
nurse; that during the off season, between about June and Octo-
ber, the staffs of ICU and SICU are combined and this affects
assignments to be charge nurse because there is a bigger pool of
charge capable nurses; that from July 2007 through February
2008 Villani did not come to him and complain about not being
assigned as charge nurse; that since he has been director of
critical care no one in Respondent’s management has instructed
him not to designate Villani as charge nurse; that he never de-
cided on his own accord that he was not going to designate
Villani as a charge nurse; and that to his knowledge only one
nurse in SICU is not in favor of the Union.
When called by Respondent, Thigpen testified that Respon-
dent’s Exhibit 9 is the schedules printed from Respondent’s
“AcuStaf” scheduling system that shows when and where an
SICU employee worked; that the period covered by this exhibit
is from “6–24–2007” to “7–19–2008”43; that this document
comes from the KRONOS clock-ins; that, as here pertinent, this
exhibit shows when and where Villani worked during the in-
volved period, and it shows when Villani worked as a charge
nurse by the charge code “UTL” for unit team leader44; that
Respondent was formally served with the Union’s petition for
an election in August 2007 but the union activity began in June
and July 2007; that Villani was an outspoken union advocate;
that Respondent’s Exhibit 14 shows the UTL or charge distri-
bution for the period of January 1, 2007, through February 2,
2008, by pay period45; and that Respondent’s Exhibit 15 is a

43 The exhibit shows that during the 3-month period from the begin-
ning of September 2007 through the end of November 2007, Villani
was charge on a total of 20 days; that for the 3-month period from the
beginning of December 2007 to the end of February 2008 she was
charge on a total of 12 days. This is a 40-percent reduction.
44 R. Exh. 10 provides the definitions of the various codes used in R.
Exh. 9.
45 A comparison of the five pay periods ending during the time in
question (late November 2007 and mid-January or, pursuant to the
document, pay periods ending “11/24/07” through “1/19/08”) with the
immediately preceding the five pay periods shows over a 20-percent
chart of UTL utilization for the day staff SICU nurses showing
charge from November 2007 through January 2008.
Respondent stipulated that it did not provide Respondent’s
Exhibits 9 and 7 or any documents during the investigation
stage of the charges prior to the complaint being issued. On
cross-examination, Thigpen testified that the pay stub the em-
ployee receives shows the number of hours that the employee
worked as charge and charge would be indicated on the pay
stub.
Edie Alteen, who at the time of the trial herein had been the
night clinical coordinator of critical care for about 1-1/2 years,
testified that critical care encompasses SICU; that she is in-
volved in selecting the day-shift charge nurse in that she and
the night charge nurse collaborate in making the decision who
will be the SICU charge on the day shift; that she then places a
yellow sticky Post-it by the timeclock indicating, as here perti-
nent, who is assigned to be the charge nurse on the following
SICU day shift; that the factors taken into consideration include
who worked the prior day shift as charge, and who likes to be
charge; that sometimes the night charge nurse makes a recom-
mendation as to who should be charge on the day shift; that she
never refused to assign Villani charge because of her union
sympathies; and that she has never instructed her night charge
nurses don’t recommend Villani because of her union sympa-
thies.
On cross-examination, Alteen testified that she does not on
average assign Villani to be charge because Villani is generally
on the other side of the week that she works and she thought
that Night-Shift Clinical Coordinator McCloskey would proba-
bly see Villani more than she does. On redirect, Alteen testified
that she works four nights 1 week and three nights the follow-
ing week.
McCloskey testified that he has been the clinical coordinator
in critical care since July 4, 2007; that critical care encompasses
SICU; that he works three nights 1 week and four nights the
following week; that he schedules day-shift nurses in SICU;
that he takes the names off a print-out list of who is scheduled
to work in SICU and he writes the names on a yellow Post-it
Note; that he takes the note to SICU asks the night-shift charge
nurse in SICU who should be charge on the day shift; that some
of the night charge nurses who make this decision are Nass
Kinsland, Michelle Behrendt, and Janie Largent; that these are
some of the names that he worked with in the last couple of
weeks before the trial herein that he could remember but it
could be anyone that was working that night46; that he writes
“CHG” next to the name the night SICU charge chooses and he
posts the note next to the timeclock so the SICU nurses can see
it in the morning when they clock in; that he does not choose
the day-shift charge in SICU because he does not come in until
8 p.m., he has no idea who was the day charge in SICU the day
before, and that information would only be known by the peo-
ple who are working 6:45 p.m. to 6:45 a.m.; that he does not
overrule the night charge nurses’ choice; and that he has never

reduction in the number of hours Villani has as a charge nurse during
the time in question.
46 None of the night charge nurses who allegedly made the decisions
testified at the trial herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 998
instructed the night charge nurse not to select Villani for day
charge nurse because of her union sympathies.
On cross-examination, McCloskey testified that he had no
idea how many times he assigned Villani to be charge nurse
before November 2007; that as to whether there is an attempt to
balance the charge nurse work assignment among those who
want the assignment, he “could not speak to what the charge
nurse uses to make her decision or his decision” (Tr. 985); that
the night charge nurse designates who will be the charge on the
following day shift and he puts “CHG” next to that name and
posts the list next to the timeclock; that the only place where it
is recorded who was originally chosen for charge nurse (before
it is determined by the nurse chosen whether she wants to be
the charge nurse that day) is on the Post-it and that it not re-
tained; that, with respect to whether he takes into consideration
the day-shift nurses’ preference in assigning charge, he does
not make the designation “[s]o I don’t know what they use.”
(Id. at 986.)
On rebuttal, Villani testified that in mid-October 2007 there
was a press conference and heightened stress because of the
appearance of The Burke Group; that the union organizing
committee circulated a lot of fliers, mailers, and posted fliers
with nurses photos on them; that at the end of November 2007
she started noticing that she was being assigned as charge nurse
less often; that she is usually assigned to be charge nurse quite
frequently; and that according to Respondent’s Exhibit 14
(1) for the pay period ending November 10, 2007, she worked
as a charge nurse for two shifts which is not consistent with the
fact that she is assigned charge quite frequently; (2) she worked
as charge several times in the next pay period but she did not
think that she was actually assigned to work charge for those
days but rather the charge assignments may have been passed
to her by another nurse who declined doing charge; (3) for the
pay period ending “12/22/07” she worked just one shift; (4) for
the pay period ending “01/05/08” she worked two shifts which
included Christmas Day when she was the charge assigned by
the night-shift clinical coordinator; and (5) for the pay period
ending “01/19/08” she worked one shift as charge nurse.
On cross-examination, Villani conceded that she testified
earlier in the trial herein that she believed that from Thanksgiv-
ing 2007 until early January 2008 she pulled three shifts as a
charge nurse, and that the Respondent’s records show that she
worked a lot more than three shifts.47

47 Respondent’s records show that between November 24, 2007, and
early January 2008 Villani worked as charge eight times. Since Re-
spondent does not retain the yellow Post-its making the charge assign-
ment, this method is not available to determine how many times Villani
was actually assigned to be charge vis-à-vis the nurse assigned to be
charge giving the assignment to Villani. Villani testified about the
procedure if, after she punches in, she accepts the offer from the nurse
assigned to be charge. Apparently, there is a certain amount of time
during which she can punch in the correct code. So if she accepts the
offer before she punches in or within the period during which she can
change the code, it does not appear that one would, from Respondent’s
available records, be able to tell she was the charge because she ac-
cepted the offer. If, on the other hand, Villani filled out a KRONOS
discrepancy report, it should be available as part of R. Exh. 7.
On redirect, Villani testified that there is a difference be-
tween the number of times that she is assigned to work as
charge nurse by the night-shift clinical coordinator and the
number of times she actually worked as charge nurse in that in
her department there is a number of nurses who prefer not to do
charge so they will try to turn it over to a fellow coworker.
Brown testified that Respondent’s Exhibit 6 is a January 9,
2008 picture of an automated robot delivery cart (tug) which
delivers medical supplies from the central supply area to nurs-
ing units throughout the hospital; that it appears from the pho-
tograph that there was a purple Christmas decoration placed on
the top frame of the tug, a purple flyer on the side, and a couple
of purple Christmas ornaments on the rim; that purple is associ-
ated with SEIU; that at the time he testified at the trail herein
employees had permission to decorate tugs but they did not
have such permission on January 9, 2008; and that the tug goes
into patient care areas.
On cross-examination, Brown testified that in January 2008
there was no written rule prohibiting employees from putting
decorations on the tug.
As noted above, according to the testimony of Thigpen, the
Plexiglas bulletin boards were installed in the downtown garage
elevators in January 2008 and at this point in time a notice was
put up in these elevators that the bulletin boards were not to be
used for personal postings. Thigpen testified that such a notice
had never been put up before this; that it was indicated in the
employee handbook that it was not allowed but before this the
prohibition was not actually posted in the elevator; and that the
notice was put up in the elevators because Respondent was
getting continuous union information posted in the elevators
and this was a public area. When asked if the handbook specifi-
cally referred to the three garage elevators Thigpen responded,
“[a]ny of the public elevators or any of the public areas which
would—the elevator would be considered a public area, public
bulletin board” (Tr. 943); that the personal postings went on for
years in the downtown garage elevators and she personally
removed some of the personal postings; that the personal post-
ings for items for sale gave a name and telephone number; and
that she did not use the name or telephone number on the post-
ing to contact the person who made the personal posting to
advise them that this conduct was not proper because

this garage is used for both employees and the public. So we
had public postings. We had Wellness Members posting. We
did not carry it that far but it was not always employees and it
wasn’t every single day. So it wasn’t a major issue. We just
took them down as we saw them and discarded them. [Tr.
943, 944, with emphasis added.]

Settle testified that with regard to the union organizing cam-
paign, Respondent hired a consultant, namely the Burke Group;
that he believed that representatives of the Burke Group spoke
to Respondent’s employees in the breakrooms and other off-
duty areas; and that he did recall whether the Burke Group
representatives were authorized to talk with Respondent’s
nurses at the nurses’ station.
Villani testified that she was approached by a representative
of the Burke Group in her unit while she was working; that at
the time she was documenting at the nurses’ station in front of a
NAPLES COMMUNITY HOSPITAL 999
computer and Plosky, who is a clinical coordinator, approached
her with another female; that the other individual introduced
herself and said that she was there to answer questions about
the Union; that she asked the individual if she was employed by
the Burke Group and the woman said yes; that she quit charting
on her computer and talked with the woman for a little while;
and that the woman then started a discussion with some of the
other nurses.
Thigpen testified that Charging Party’s Exhibit 9 is an email
from Susan Connelly to her (dated January 25, 2008); that as
indicated by the salutation, the email should have gone to
Garone, who is the department director for the nurses’ directory
and staffing; that Connelly is an employee of the Burke Group;
that Connelly was invited by Respondent to come into the
hospital and speak to staff and answer any questions that they
might have; that Connelly’s visits to the hospital varied; that
Connelly was invited to staff department meetings and she
worked with department directors on scheduling her visits to
Respondent’s facilities; that there were two other Burke Group
employees who participated in Respondent’s staff meetings
(Another was also there for a short period of time.); that the
Burke Group covered all of Respondent’s departments (esti-
mated to be between 80 and 100) during their period of partici-
pation in the campaign; that employees of the Burke Group
were in the hospital night and day; that it was her understanding
that employees of the Burke Group spoke to nurses either at a
staff meeting or in a breakroom while the nurse was on break;
that she never saw anything in writing which set forth any
ground rules with respect to locations at which employees of
the Burke Group could talk to nurses; that the Burke Group
people started talking to Respondent’s employees at the end of
October or the first of November 2007 through mid-April 2008
but they were not at Respondent’s facilities all of the time, it
was sporadic; that Nora Boczarnm is also an employee of the
Burke Group who was “out and about on the floors a lot . . . .”
(CP Exh. 10) at Respondent’s facilities playing the same role
that Connelly did, going to staff meetings and meeting with
nurses in breakrooms; that she did not know if there were any
instructions at all that the Burke Group consultants should not
be talking to nurses while they were working at the nurses’
stations or in patient areas; and that Penne and Susan Harris
were also employees of Burke similar to Connelly and they
performed the same functions as Connelly.
When called by Respondent, Thigpen testified during cross-
examination that when representatives of the Burke group were
in the hospital she did not go with them to the different depart-
ments but rather they went alone; that it was her understanding
that the representatives of the Burke Group were in the break-
rooms of the nursing department; that she was not aware
whether representatives of the Burke Group went to patient care
areas; that if representatives of the Burke Group had gone into
patient care areas, they were not wearing nurse’s attire; that
representatives of the Burke Group were wearing street clothes
when they were in Respondent’s facilities; that Charging
Party’s Exhibit 15 is a copy of the schedule that she received
from the Burke Group48; and that the four consultants from the
Burke Group who came to Respondent’s facilities were Con-
nelly, Nora, Penny, and Harris.
Andersen, who—as noted above—is a RN in the emergency
department on the north campus, testified that in February 2008
three nurses came in from a hospital in Missouri; that she was
very busy at the time taking care of patients; that the clinical
coordinator had her charge nurse page her to come to the
nurses’ station; that she asked why she was paged and she was
told that there were three nurses who she said she wanted to
talk to; that she asked the three who were they and who were
they from; that two other nurses from the emergency room
were present, Julie Stoner and Judy Ardizone; that the three
nurses from Missouri told her that they were there to help her
with communications, they knew the Respondent’s nurses were
having an organizing effort and they had had some bad experi-
ences with the Union and they were just at Respondent’s facili-
ties to enhance communications; that the three nurses spoke for
about 5 minutes and said that they would come back when they
were not so busy in the emergency room; that when she asked
them why they were coming to her hospital and who they were
affiliated with they told her that they were just nurses who Re-
spondent’s nurses interest at heart and they wanted Respon-
dent’s nurses to know and understand about the Union; that
when they said that they were there to help she asked them if
they could get her an IV pump; that the three nurses then said
you are really busy we will be back tomorrow; and that she has
seen drug representatives come into her department, bring food
and talk to the doctors and sometimes the nurses.
As noted above, Gutierrez testified that a visiting nurse did
attend a staff meeting; that she did not see the visiting nurse in
any area where she was working; and that she never saw the
visiting nurse talking to RNs on the floor of the telemetry unit.
Kling testified that he could not recall a situation where indi-
viduals who were nurses but not nurses employed by Respon-
dent, came into his department to talk to NCH nurses; that the
Burke Group did come to his department and talked to his RNs;
that the Burke Group nurses were at staff meetings and they
would do “rounds” or, in other words, they walked the entire
hospital; that the Burke Group nurses went into the employee
lounges to talk with the nurses; and that the Burke Group
nurses did not go on rounds with NCH nurses but rather the
Burke Group nurses “rounded on their own” (Tr. 839), and this
included patient care areas and everything else.
On cross-examination, Andersen testified that she was pro-
hibited from distributing literature in the cafeteria (north cam-
pus) on what might have been Valentine’s Day 2008; that the
security guards told her that she was not allowed to give out
union literature; that she believed that she was passing out
candy as well at the time; that even when she tried to distribute
just union literature in the cafeteria she was told by a security
guard that she was not allowed to do that; that she dropped
union literature on multiple tables in the cafeteria and then went

48 Inter alia, the document indicates that Nora “rounded” in Teleme-
try—3N, Telemetry—4NE, Cath Lab and Angioplasty, Golf View
Sts—6N, and Surgical Serv—OR; and that Penne “rounded” in Med
Surg 4 and 2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1000
back to her department; and that she never saw a guard actually
confiscate the literature.
Thigpen testified that General Counsel’s Exhibit 26 is a list
of NCH’s officers and trustees which was printed “3/13/08.”
Thigpen sponsored Respondent’s Exhibit 13 which is a num-
ber of photographs taken in July 2008 of bulletin boards in
Respondent’s facilities to show that Respondent does allow
union postings. Thigpen testified that 95 percent of the lounges
have union postings; that union postings are allowed in some of
the lounges because previously personal postings of bake sales,
puppy for sale and other things were allowed; that to her
knowledge, two of the downtown department lounges do not
allow union postings, namely 3 North and OH; and that the
photographs include the breakrooms in PCU (third floor) and
SICU both of which are at the downtown facility, and the north
Naples emergency room.
Panebianco testified that Respondent’s Exhibit 3 is a letter
from the organizing committee which was handed out 1 week
before the trial here commenced. Her name, among others, is
included in the letterhead (left margin of the first page) of the
letter.
Analysis
Before getting to the merits, two matters must be resolved.
The trial in this proceeding was continued on August 8, 2008,
for counsel for the General Counsel to seek subpoena enforce-
ment against Respondent to require it to turn over to me speci-
fied documents for an in camera inspection to determine if they
are privileged, as claimed by Respondent.49
On September 3, 2008, counsel for the General Counsel filed
a Motion to Close Record, indicating that “[a]fter reviewing the
state of the record and considering the issue of the delay likely
to result from seeking enforcement in [F]ederal district court,
General Counsel has decided not to seek enforcement of the
subpoena.” Counsel for the General Counsel requested that the
record be closed and a briefing schedule be established. The
motion of counsel for the General Counsel was granted and
briefs were schedule to be filed on October 10, 2008. That date
was extended to October 14, 2008.
On brief, counsel for the General Counsel contends that if a
party fails to comply with a subpoena, the trier of facts may
impose an adverse inference as a sanction for the noncompli-
ance, McAllister Towing & Transportation Co., 341 NLRB
394, 396 (2004); that to the extent that Respondent’s evidence
conflicts the General Counsel’s on the solicitation and distribu-
tion policy and its maintenance and application, including, but
not limited to the verbal coaching and written discipline of
Sandi McGoun, counsel for the General Counsel requests that
an adverse inference be drawn from this failure; that drawing
an adverse inference is especially warranted in this case, where
the Respondent did not cooperate during the investigation and
stipulated at trial that it did not provide any documents during

49 At the outset of the trial herein, Respondent’s attorney, James
Brown, who had turned over a privilege log to opposing counsel, pro-
posed, for the first time, submitting the documents to another adminis-
trative law judge for an in camera inspection. Brown refused to comply
with my ruling to turn the documents over to me for the in camera
inspection.
the investigation stage of the charge prior to the complaint be-
ing issued; that on the last day of the trial Respondent indicated
that it did not comply completely with the subpoena of counsel
for the General Counsel in that Thigpen testified (Tr. 916, 917),
that Respondent did not provide all of the subpoenaed docu-
ments and requests received for the purpose of gaining permis-
sion and/or approval pursuant to Respondent’s distribution and
no solicitation policy and all responses; and that an adverse
inference should be drawn with respect to the failure to provide
solicitation approval forms that are a part of its solicitation and
distribution policy.
Respondent on brief argues that the approach being taken
here raises real concerns the counsel for the General Counsel is
denying Respondent procedural due process, the essential in-
gredients of which are notice and an opportunity to be heard;
that Respondent did not object to an in camera inspection of the
documents but requested that another administrative law
judge—not the trier of fact herein—conduct the inspection; that
such an approach was proposed by the General Counsel in CNN
America, 352 NLRB 448 (2008), after the respondent in that
case argued that the trier of fact should not review the allegedly
privileged documents; that the imposition of any sanctions in
this case would be an abuse of discretion by the judge; that
Respondent’s refusal to produce certain documents for in cam-
era inspection by the trier of fact was justified “by . . . [Re-
spondent’s] reasonable concern that the Judge’s impartiality
could potentially be affected if he conducted the in camera
review” (R. Br. 59); that Respondent’s refusal to produce the
documents for an in camera inspection is “neither willful, con-
scious, nor intentional” (Id. at 60); that there is a legitimate
question whether the Board possesses the authority to rule on
whether Respondent’s documents are protected by attorney-
client privilege; that in NLRB v. Detroit Newspapers, 185 F.3d
602 (6th Cir. 1999), the court concluded that implicit in its
subpoena enforcement power is the court’s exclusive authority
to determine “whether any privileges protect the documents
from production” (Id. at 605–606); and that Respondent should
be afforded the opportunity to make its case on the subpoena in
an enforcement proceeding, and sanctions are not appropriate in
the circumstances of this case.
In CNN of America, supra, CNN refused to comply with an
order of the administrative law judge to produce to him for in
camera inspection specified documents listed on a privilege and
redaction log. CNN argued that the judge was the trier of the
fact and, therefore, should not review the allegedly privileged
documents; and that pursuant to NLRB v. Detroit Newspapers,
supra, a Federal district court and not an administrative law
judge, must determine privilege issues. The Board in CNN of
America, supra, indicated at pages 448 and 449 as follows:

The party asserting a privilege bears the burden of
proving that it is applicable.4 . . . .
. . . . Thus the issue before us here is whether the
judge appropriately exercised his discretion in ordering an
in camera inspection of the documents on CNN’s privilege
and redaction logs. We find that he has. In camera inspec-
tions are well-established procedures in the Federal courts,
U.S. v. Smith, 123 F.3d 140, 151–152 (3d Cir. 1997), and
have been approved by the Board, Brink’s Inc., 281 NLRB
NAPLES COMMUNITY HOSPITAL 1001
468 (1986).6 Without an in camera inspection of allegedly
privileged documents, the party claiming privilege would
be able to shield any document from disclosure by merely
including it in a privilege log. In addition, some courts ap-
pear to require the exhaustion of administrative remedies
before granting enforcement of a subpoena.7 Thus, we find
that the in camera examination of documents to evaluate
claim of privilege is a proper exercise of the administrative
law judge’s authority.
_________________
4 See, e.g., Dole v. Milonas, 889 F.2d 885, 889 (9th Cir.
1989).
. . . .
6 See also Kaiser Aluminum & Chemical Corp., 339 NLRB
829, 829 (2003) (to the extent that subpoenaed documents were
claimed as privileged attorney work product, the Board authorized
the judge “to review those documents in camera to determine
whether they are also exempt from disclosure”). Therefore, con-
trary to the Respondent’s argument, we do not view the Sixth Cir-
cuit’s holding in Detroit Newspapers, supra, as supporting the
general proposition that an administrative law judge, as the trier
of fact, cannot resolve privilege issues.
7 [Footnote left out.]

Obviously at this point it is unknown to me what is in the
documents that Respondent refuses to provide for my in camera
inspection. But exception must be taken to Respondent’s argu-
ment that its refusal to produce certain documents for in camera
inspection by the trier of fact was justified “by . . . [Respon-
dent’s] reasonable concern that the Judge’s impartiality could
potentially be affected if he conducted the in camera review”
(R. Br. 59, with emphasis added). Quite the contrary, it is not a
reasonable concern. Speculation about a judge’s possible mind
set should not be an exercise engaged in by an advocate, not-
withstanding what may be in the involved documents. With
respect to Respondent’s argument that its refusal to produce the
documents for an in camera inspection is “neither willful, con-
scious, nor intentional” (Id. at 60), it is noted that Respondent
did not make its argument until the outset of the trial herein. As
a practical matter, Respondent’s approach would involve addi-
tional, unnecessary expense to the taxpayer, and an unnecessary
delay. The law is clear. The Board has already decided that the
trier of fact can conduct the in camera examination, and the
Board has already addressed Respondent’s argument regarding
the Sixth Circuit’s holding in Detroit Newspapers, supra. None-
theless, Respondent wants to exercise control over the situation.
The course of action it has chosen is willful, conscious, and
intentional. As noted above, counsel for the General Counsel
requests that to the extent that Respondent’s evidence conflicts
with the General Counsel’s on the solicitation and distribution
policy and its maintenance and application, including, but not
limited to the verbal coaching and written discipline of Sandi
McGoun, that an adverse inference be drawn from this failure.
This request of counsel for the General Counsel is hereby
granted. It is unnecessary to rely in any way on this adverse
inference in reaching the conclusions reached in this decision.
There is sufficient evidence of record separate and apart from
this adverse inference to warrant the findings and conclusions
made below. This adverse inference is not relied on in any way
by me in deciding any of the issues in this case.
With respect to what, as here pertinent, occurred on the last
day of the trial, namely Thigpen admitting on cross-
examination (Tr. 916, 917) that Respondent did not, pursuant to
the subpoena of counsel for the General Counsel, provide the
solicitation approval forms of Costco and Sam’s Club, Thigpen
gave the following testimony:

Q. [BY MS. THORNTON] I believe you testified that
Costco and Sam’s Club requested permission and you got
an approval form—
A. Yes, ma’am.
Q. —from them?
A. Yes, ma’am.
Q. And pursuant to the subpoena, you provided the so-
licitation approval forms. Is that correct?
A. Yes, ma’am.
Q. Okay. I’ve been looking through here and I don’t
see one for Sam’s Club and—
A. It’s not in there.
Q. It’s not here?
A. No. It’s a different form for our vendors. It’s a ven-
dor’s approval form or a partner approval form for our
benefits fair. This is for the solicitation that’s done outside
of our cafeterias on an ongoing basis.
JUDGE WEST: Did you provide the approval forms for
Costco and Sam’s to General Counsel?
THE WITNESS [Thigpen]: No.
JUDGE WEST: You did not.
MR. BROWN: I will note for the—subpoena, it says all
documents in request received, number 8, for the purpose
of gaining permission and/or approval pursuant to Re-
spondent’s distribution and no solicitation policy and all
responses. Do you have those ones?
THE WITNESS: They would be back at the hospital.
MR. BROWN: Can we get them? I mean without—we
can bring them in and you could—
THE WITNESS: —
MR. BROWN: Okay. Can we do that?

Thigpen did not respond to Brown’s last inquiry. Later that day,
there was a delay in the trial of at least 20 minutes waiting for
Pitts to come from the downtown hospital to the trial site. Ar-
rangements could have been made for Pitts to bring the in-
volved documents with him. However, the sought documents
were not produced later that day. Even though the evidence is
equivocal with respect to whether Respondent was willing to
provide the forms for Costco and Sam’s Club, on the last day of
the trial it was expected that there would be a continued hearing
in this proceeding. Consequently, I do not believe that a finding
that Respondent refused to provide the involved documentation
is appropriate here. One should add to the mix that there might
have been a misunderstanding—whether reasonable or not—
with respect to providing the forms for these two entities. Not-
withstanding the fact that one of Respondent’s attorneys asked
about scheduling the filing of briefs at the end of the last day of
the trial herein, at that point in time, as noted, it was believed
that there would be a continued hearing. When all is consid-
ered, I do not believe that an adverse inference is warranted
regarding the Costco and Sam’s Club forms. It is noted that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1002
Settle testified that Sam’s Club and anti-SEIU NUNSO did not
submit a request for permission or approval pursuant to Re-
spondent’s distribution and solicitation policies.
Paragraphs 5 and 6 of the complaint alleges that on or about
August 6, 2007, Respondent, by Mark Pitts and Brian Settle, at
the Respondent’s facility, created the impression that employ-
ees’ union and other protected, concerted activities were under
surveillance. Paragraph 6 of the complaint also alleges that on
the same date Respondent, by Settle at Respondent’s facility,
prohibited employees from posting or having union literature in
the employee break/kitchen area.
Counsel for the General Counsel on brief contends that in
order to establish an impression of surveillance violation, the
General Counsel bears the burden of proving that the employ-
ees would reasonably assume from the statement in question
that their union activities had been placed under surveillance,
Grouse Mountain Lodge, 333 NLRB 1322 (2001); that Panebi-
anco was consistent in her testimony that Pitts said he was
watching and monitoring her activities, in relaying this conver-
sation to Settle, in her August 7 email to Settle, and in the
writeup she submitted to the Union; that while Pitts denied
telling Panebianco that he was monitoring or surveilling her
activities, his emails to Settle indicate that was exactly what he
was doing; that the watching that Pitts was doing could only be
interpreted to be about union activity; that there were many
inconsistencies in the testimony of Respondent’s witnesses, i.e.,
the length of the hair of the person Todd allegedly saw, and
whether Todd brought Pitts the ripped documents vis-a-vis Pitts
himself having to go into the breakroom and retrieve the ripped
NCH documents from the trash can; that Settle also gave Pane-
bianco the impression that her union activities were under sur-
veillance when he told Panebianco that managers were told to
keep their eyes open; that Settle’s testimony that Pitts was sim-
ply fulfilling his management role would support a violation as
well, especially in that Settle did not denounce Pitt’s watching
Panebianco but rather he referenced union activity causing
dissension; that Settle violated the Act when he told Panebianco
that she could not post union literature in the OH breakroom;
that Panebianco testified that she had noticed information about
uniform sales, bake sales, baby showers, Christmas parties, and
general information posted on the refrigerator; that until August
6, 2007, when she spoke with Settle, no one told Panebianco
that she could not post on the refrigerator; that Settle was rely-
ing on the email he sent to department heads, supervisors, and
mid-managers at the beginning of the union campaign (GC
Exh. 10); that there is no documentation that this policy existed
prior to July 27, 2007, or that it was disseminated to employees;
that it appears that this policy was established in response to the
union organizing; that while Panebianco could not recall ex-
actly what she posted in the involved breakroom in August
2007, in his August 6, 2007 email Pitts refers to “three sheets
taped regarding SEIU and what to expect when forming a un-
ion” (GC Exh. 12); that a two sided union leaflet titled “What
to Expect When You’re Forming an RN Union” was received
in evidence at the trial herein as General Counsel’s Exhibit
17(c); that this union leaflet was not a solicitation but instead it
clearly was in response to the consulting company, the Burke
Group, who Respondent allowed to “round” the hospital at will
to discourage employees’ support for organizing; and that the
leaflet was clarifying information for the nurses, similar to the
email in Register Guard, 351 NLRB 1110 (2007).
The Charging Party on brief argues that an employer violates
the Act if it creates the impression among employees that it is
engaged in surveillance, P.E. Guerin, Inc., 309 NLRB 666
(1992); that the Board’s test for determining whether an em-
ployer has created an impression of surveillance is “whether the
employee would reasonably assume from the statement in ques-
tion that his union activities had been placed under surveil-
lance,” U.S. Coachworks, Inc., 334 NLRB 955, 958 (2001);
that Pitts told Panebianco that he was watching her and moni-
toring her activities; that Panebianco immediately complained
to Settle, sent him an email reiterating her complaint, and filled
out a contemporaneous note which she gave to the Union (CP
Exh. 2); that Pitts’ email to Settle indicates the reasonableness
of Panebianco’s conclusion that she was under surveillance and
admits that he was indeed watching Panebianco; that Settle did
not deny to Panebianco that Pitts was watching her and he told
her that managers had been asked to keep their eyes open; that
after her conversation with Settle, Panebianco had even more
reason to believe that she was under surveillance for her union
activity; that it is a well-established principle that an employer
may not prohibit employees from nonwork-related use of com-
pany bulletin boards, if it “acts in a manner that discriminates
against Section 7 activity,” Register Guard, supra; that as
pointed out by the Board in Eaton Technologies, 322 NLRB
848, 853 (1997), employees have no general statutory right to
use company bulletin boards, but where employee posting is
permitted, an employer may not single out and discriminate
against union communications; that before Panebianco posted
union material in her break room, she had seen a copy of Set-
tle’s July 27, 2007 email which stated “as for breakrooms, if
you typically allow your employees to post personal materials
in the breakroom, you do not need to remove the union materi-
als unless they are unnecessarily cluttering the room” (GC Exh.
10); that Panebianco quoted this description of NCH’s policy in
the notes she gave the Union on or about August 5, 2007, and
testified that she had seen a variety of personal materials posted
on the breakroom refrigerator previously; that Register-Guard
is irrelevant here because there is no consistent policy or prac-
tice of differentiating between categories of notices; that Set-
tle’s testimony that he was not aware of non-NCH notices
posted on the refrigerator in this particular break room carries
little weight because there is no evidence he used this break-
room or had any reason to be personally familiar with what was
posted on the refrigerator; and that Pitts’ and Todd’s accounts
of what was previously posted on the refrigerator were incon-
sistent, as was their testimony about Panebianco in general, and
should not be credited.
Respondent on brief contends that Panebianco testified un-
truthfully and lacks any credibility whatsoever; that while Pitts’
and Todd’s recollection may have varied regarding whether
Todd took the ripped document out of the trash can, it does not
call into question the accuracy of their testimony as to why they
believed Panebianco removed the flyer; that at what point the
NCH document was ripped also has no import on Todd’s credi-
bility; that Panebianco’s entire testimony about the phone call
NAPLES COMMUNITY HOSPITAL 1003
to Pitts and subsequent conversation with Settle is simply unbe-
lievable; that Pitts’ email string regarding the incident from
August 6 and 7, 2007, corroborates his testimony that he did
not tell Panebianco that he was monitoring her activities; that
Settle’s email accurately captures what he said, and shows that
there was no unlawful impression of surveillance; that Panebi-
anco’s removal of the Here are the Facts was unprotected ac-
tivity; that assuming Panebianco testified truthfully, there is no
evidence that Respondent violated the Act in that if Panebi-
anco’s posting flyers on the refrigerator is unprotected, Re-
spondent did not violate the Act; that “[t]ellingly, Panebianco
did not testify ever seeing any notices of a personal nature on
the refrigerator prior to her posting the union flyers. In fact the
only notice she testified to seeing other than the Here are the
Facts was Respondent’s newsletter, The Wave.” (Tr. 386) (R.
Br. 23); that as set forth in Register-Guard, employees have no
right to use an employer’s bulletin board or any other commu-
nication medium to convey union messages if it has not al-
lowed employees the use of its property to make commercial
solicitations; that here “there is no dispute that that Respon-
dent’s notices exclusively were placed on the refrigerator prior
to the union organizing” (Ibid, emphasis in original); that,
therefore, Register-Guard, supra, reaffirms that Panebianco was
not engaged in protected activity; and that even assuming, for
the sake of argument, that Pitts and Settle advised Panebianco
that they were monitoring her activities, they did not do any-
thing unlawful since Panebianco was not engaged in protected
activity.
Respondent violated the Act as alleged in paragraphs 5 and 6
of the complaint. As noted above, on brief Respondent asserts
that “[t]ellingly, Panebianco did not testify ever seeing any
notices of a personal nature on the refrigerator prior to her post-
ing the union flyers. In fact the only notice she testified to see-
ing other than the Here are the Facts was Respondent’s news-
letter, The Wave.” (Tr. 386), and “there is no dispute that that
Respondent’s notices exclusively were placed on the refrigera-
tor prior to the union organizing.” These assertions are false. At
Transcript 381 Panebianco gave the following testimony with
respect to what is posted on the involved refrigerator: “Oh,
uniform sales, bake sales, baby showers, Christmas parties, just
general information we want to communicate with other de-
partments.” The testimony of Pitts and Todd regarding Panebi-
anco taking down a copy of Here are the Facts from the refrig-
erator, ripping it, crumpling it, and throwing it in the trash can
is a fabrication. Their stories conflict regarding Todd taking the
ripped document out of the trash can, Todd bringing the ripped
document to Pitts in his office, Pitts leaving his office after
Todd spoke to him, Pitts going to the breakroom, Pitts seeing
the ripped document in the trash can, the length of the hair of
the person who allegedly walked by OH, and whether the per-
son was seen walking by OH before or after the alleged ripping
sound was heard. More than once Todd testified that she
brought the ripped document to Pitts in his office. More than
once Pitts was given the opportunity to resolve the conflict in
their testimony, namely whether Todd brought the ripped
document to him or he had to leave his office, go to the break-
room across the hall, and look into the trash can to find the
ripped document. Pitts and Todd lost their credibility with the
role they played in this fabrication. Their testimony regarding
whether the refrigerator is used by the employees to post items
other than NCH documents is not credited. No credible witness
other than Panebianco testified from personal knowledge that
he or she was in a position to know whether employees posted
personal notices on the refrigerator. Panebianco’s testimony is
credited. The refrigerator was used to post such things as uni-
form sales, bake sales, baby showers, and Christmas parties. As
noted below, of all the employee lounge bulletin boards in Re-
spondent’s downtown and north campuses, the only other em-
ployee lounge bulletin board which Respondent takes the posi-
tion was used solely for NCH official publications is on 3 North
downtown.50 Respondent established its own policy and with
respect to the bulletin board Panebianco used, it chose not to
follow its own policy.51 Respondent violated the Act by prohib-
iting Panebianco from posting union literature in the involved
break/kitchen area. Respondent violated the Act as alleged in
paragraphs 6(b) and 14 of the complaint.

50 In that situation, an open union supporter, Villani, also verbally
challenged a management representative about removing union materi-
als from an employee lounge bulletin board.
51 Here are the Facts first came into being after the involved union
organizing drive started. Respondent uses this leaflet to make a case to
employees against becoming unionized. In other words, Here are the
Facts is company campaign literature. It is not normal system news or a
notice required by law that Respondent has to give to employees. It was
not included in the official NCH bulletin board postings which occurred
prior to the union campaign in that it did not exist at that time. Here,
Respondent on July 27, 2007, advised department heads, supervisors,
and mid-managers that with respect to break rooms, if they allow em-
ployees to post personal materials in the breakroom, they do not need to
remove union materials unless they are unnecessarily littering the room.
Respondent did not follow its own July 27, 2007 policy with respect to
Panebianco. And at the same time Respondent used the same bulletin
board, which obviously is Respondent’s property, to post its own cam-
paign literature. If an employer establishes a policy so as to avoid any
appearance of allowing employer-related information about the union
campaign while barring similar union-related information and then does
not follow that policy, in my opinion a finding is warranted that the
employer has engaged in discrimination even if it owns the involved
bulletin board. According to Clinical Coordinator Ringle, employees
were allowed to put whatever they wanted on the bulletin board in the
SICU employee lounge. As the credited testimony of Panebianco dem-
onstrates, that was also the case with respect to the involved refrigerator
bulletin board, except for when Panebianco, who is a very active and
outspoken union supporter who was willing to challenge management,
posted union literature. Discrimination as defined in Webster’s New
World Dictionary, Third College Edition (1988), is, as here pertinent,
“a showing of partiality or prejudice in treatment.” Contrary to the
conclusion of the court in Guardian Industries, 49 F.3d 317 (7th Cir.
1995), the labor law concept of discrimination under Secs. 7 and 8 of
the Act, does not involve the unequal treatment of equals. To base an
argument regarding a labor law matter on the assertion that discrimina-
tion only involves the unequal treatment of equals is to base the argu-
ment on a false premise. While employees might not be entitled to use a
bulletin board for prounion messages just because an employer is using
it for antiunion messages, if the employer changes its approach with
respect to what employees can post on the bulletin board because the
message the active and outspoken union supporter employee posts is a
union flyer, then it is drawing a line for antiunion purposes and the
employer’s conduct is discriminatory.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1004
With respect to the allegation that Pitts created the impres-
sion that Panebianco’s union and other protected, concerted
activities were under surveillance, I find Panebianco to be a
credible witness. I do not find Pitts to be a credible witness. I
credit the testimony of Panebianco. I do not credit the testi-
mony of Pitts. Respondent violated the Act through Pitts by
creating the impression that Panebianco’s union and other con-
certed activities were under surveillance. Regarding whether
Settle committed this same violation, I agree with counsel for
the General Counsel that that Settle also gave Panebianco the
impression that her union activities were under surveillance
when he told Panebianco, after she told him what happened and
that Pitts was not her supervisor, that managers were told to
keep their eyes open but he did not explain why, and Settle did
not denounce Pitt’s watching Panebianco, who had been en-
gaged in union activity. Respondent violated the Act as alleged
with respect to Pitts and Settle creating the impression that
Panebianco’s union and other protected, concerted activities
were under surveillance. Respondent violated the Act as alleged
in paragraphs 5, 6(a), and 14 of the complaint.
Paragraph 7 of the complaint alleges that on or about August
17, 2007, Respondent, by Stella Mason and Lori Preece, at
Respondent’s facility, told employees that they were not per-
mitted to engage in union and other protected, concerted activi-
ties in nonwork, nonpatient care areas.
Counsel for the General Counsel on brief contends that the
record evidence supports finding that Mason and Preece told
employees that they were not permitted to deliver union litera-
ture and pizza to employee lounges; that the testimony of Vil-
lani and Phillips should be credited over Preece; that both Vil-
lani and Phillips are current long-term employees with a lot at
stake when testifying against their employer; that Preece should
be discredited since her testimony that she did not understand
what Villani was talking about when she said not to take any-
thing down is unlikely; that Mason was not called to testify so
the allegation regarding her conduct stands undisputed; that
Norman admitted that she did not hear the entire exchange
between Mason and the nurse organizers; that any argument
that Mason and Preece could lawfully tell Villani, Godwin, and
Phillips to leave because they were off duty has no merit; that
collectively Phillips, McGoun, Holliday, Villani, Panebianco,
and even 3 North (telemetry unit) Clinical Coordinator
Gutierrez testified that nurses who are off duty do come back
into the hospital to attend a party, etc. and the off-duty nurses
are not asked to leave52; and that the evidence of record reflects
that the policy regarding off-duty employees has been ignored
by Respondent except to the extent that Mason and Preece may
have tried to use it as an excuse to prevent the nurse organizers
from distributing union literature and talking about the Union in
nonwork areas of the hospital.

52 Other reasons given for an off-duty nurse to be in the hospital in-
clude eating lunch in the employee lounge with a coworker, picking up
paychecks or schedules, going to their lockers in the employee lounge
to get their belongings to go to the Wellness Center (to work out), and
to pick up Girl Scout cookies. Panebianco testified that off-duty nurses
come into the hospital to hand out Avon booklets and to her knowledge
no one had ever been asked to leave.
The Charging Party on brief argues that there is no dispute
that nurses’ lounges are nonworking areas and that Villani,
Phillips, and Godwin were not on duty when they delivered
pizza and union literature and spoke with nurses in nurses’
lounges on August 17, 2007; that while that portion of Respon-
dent’s solicitation and distribution policy which states that off-
duty employees are allowed access “to the extent that other
members of the public have such access” (GC Exh. 6) is fa-
cially valid, it is unlawful to selectively enforce an otherwise
valid rule against employees to prevent union activity, Saint
Vincent’s Hospital, 265 NLRB 38 (1982), enfd. in relevant part
729 F.2d 730, 735 (11th Cir. 1984); that here, employees and
mangers testified that the rule is not enforced; that off-duty
employees come into the hospital for a variety of reasons in-
cluding dropping off or picking up Girl Scout cookies, selling
Avon products, or promoting items sold for fundraisers for
nurses’ children; that Weiss and Westman saw Villani, Phillips,
and Godwin enter the hospital in their street clothes and said
hello; that during the union campaign Respondent allowed
nonemployees, the Burke Group, in their street clothes to visit
nurses’ lounges and even patient care areas while they were
rounding, unaccompanied by a representative of Respondent,53
to promote Respondent’s antiunion message; that in view of the
fact that Respondent let nonemployees campaign against the
Union in patient care areas while Respondent’s RNs who they
were soliciting were working and let nonemployees go into the
employee lounges, to allow Respondent to rely on the above-
quoted language regarding off-duty employees Villani, Phillips,
and Godwin would be unlawful selective enforcement and
would be discriminatory; that Respondent has offered no evi-
dence contradicting Villani’s and Phillips’ testimony that Ma-
son told them that they were not welcome in the 5 SW lounge
and would not be welcome anywhere; that Norman did not hear
all that Mason said; and that the consistent and corroborated
testimony of Villani and Phillips should be credited over the
self-serving testimony of Preece.
Respondent on brief, contends that Respondent’s solicitation
and distribution policy contains access restrictions on off-duty
employees; that while that off-duty employees come into the
hospital for social functions and to pick up their paychecks or
schedules, Villani, Phillips, and Godwin came into the hospital
when they were off duty to distribute food and solicit and dis-
tribute on behalf of the Union for commercial purposes; that
under Register Guard, supra, there was no discriminatory en-
forcement of the off-duty access rule and “Mason and Preece
were within their rights to ask the off-duty employees to leave
their Departments because of the commercial aspects of what
they were doing” (R. Br. 49, emphasis added); that Mason did
not interrupt any union activity in that she thanked them and
“asked them to leave” (Id. at 51); that Mason’s comments do

53 It is noted that on one occasion, which is described above, a repre-
sentative of Respondent, Clinical Coordinator Plosky, accompanied the
Burke Group consultant when the consultant interrupted and spoke to
Panebianco while she was working at the nurses’ station. On another
occasion, RN Andersen in the emergency department on the north
campus, who was very busy at the time, at the direction of her charge
who was acting at behest of her clinical coordinator, went to the nurses’
station where three nurses from Missouri spoke out against the Union.
NAPLES COMMUNITY HOSPITAL 1005
not raise to the level of interference with union activity because
off-duty employees from other departments have no rights to be
in the rehabilitation unit; that Respondent’s position that Mason
and Preece did not violate Section 8(a)(1) of the Act finds sup-
port in Board precedent that holds that employers can restrict
the access of off-duty employees to their property via a rule,
Tri-County Medical Center, 222 NLRB 1089 (1976); that in
Enloe Medical Center, 345 NLRB 874 (2005), the administra-
tive law judge observed that, as here pertinent, there was no
contention that the off-duty access rule had been discriminato-
rily applied; and that the same is true in this case.
Again Respondent on brief is less than candid. Here, it was
obvious during the trial that there was, and there would be a
contention that the off-duty access rule had been discriminato-
rily applied. Mason did not testify at the trial herein. So she
does not deny Villani’s testimony and Phillip’s testimony with
respect to what she told them. Norman did not hear what, if
anything, Mason said after she introduced herself and thanked
Villani, Phillips, and Godwin for the pizza. Consequently,
Norman was not in a position to refute the testimony of Villani
and the testimony of Phillips with respect to what Mason said54.
The testimony of Villani and the testimony of Phillips are cred-
ited. Villani, Phillips, and Godwin did not leave 5 SW on their
own accord. Director Mason told them that they needed to
leave—she had made some phone calls and they were not al-
lowed to be there—and when the three discussed where they
were going, Mason told them that they were not allowed in
other areas too, they would not be welcome anywhere. With
respect to 3 North, Preece did not impress me as being a credi-
ble witness. She took what was perceived to be the safest ap-
proach under the circumstances, namely to deny that there had
been any verbal exchange—just Villani making some statement
viz., “[D]on’t take anything down.”55 Preece denied that she
told Villani, Phillips, and Godwin that they had to leave 3
North. Preece denied that there was any conversation at all with
Villani, Phillips, or Godwin. Villani and Phillips impressed me
as being credible witnesses. They gave very detailed accounts
which are consistent with the memorialization of the exchange
Villani made contemporaneous with the incident (CP Exh. 1).
The testimony of Villani and the testimony of Phillips about
their verbal exchange with Preece are credited. Preece told
Villani, Phillips, and Godwin to leave 3 North. As pointed out
by counsel for the General Counsel and the Charging Party, the
evidence of record reflects that the policy regarding off-duty
employees has been ignored by Respondent, except to the ex-
tent that it is being used to prevent off-duty nurse organizers

54 Norman’s testimony regarding exactly where this conversation
took place is equivocal in that she testified that it was her “recollection”
that the three nurses were outside in the hallway when Mason spoke
with them; that when Mason entered the room (employee lounge) she
was getting ready to leave; and that the verbal exchange took place in
the hallway right by the door as they (Villani, Phillips, and Godwin)
were exiting the nurses’ lounge.
55 It is noted that while, as discussed below, Preece was apparently
the moving force behind McGoun’s coaching, Preece did not testify
about that matter when she took the stand at the trial herein. One might
say that from Preece’s viewpoint that not even testifying about a sub-
ject is an even safer approach.
from distributing union literature and talking about the Union in
nonwork areas of the hospital. Respondent’s language “except
to the extent that other members of the public have such access
. . .” (GC Exh. 5) must be view in the light of Respondent’s
conduct with respect to the consultant’s of the Burke Group and
the three nurses from Missouri. As pointed out by the Charging
Party on brief, in view of the fact that Respondent let nonem-
ployees campaign against the Union in patient care areas while
Respondent’s RNs who they were soliciting were working, and
let nonemployees go into the employee lounges, to allow Re-
spondent to rely on the above-quoted language regarding off-
duty employees Villani, Phillips, and Godwin would be unlaw-
ful selective enforcement and would be discriminatory. I agree.
Respondent violated the Act as alleged in paragraphs 7 and 14
of the complaint.
Paragraph 8 of the complaint alleges that on or about August
19, 2007, Respondent, by a security guard in the parking garage
at Respondent’s facility, prohibited employees from distribut-
ing union literature in a nonwork, nonpatient care area.
Counsel for the General Counsel on brief contends that the
record evidence clearly establishes that security guards prohib-
ited employees handbilling in a nonwork, nonpatient care area
as alleged in the complaint; that Holliday’s testimony and the
emails setting forth the incident by the security guards are con-
sistent; that Brown admits that there was some confusion about
what Respondent’s policy was in regards to the walkway/sky
bridge area; that any argument Respondent may make that this
incident is isolated and de minimis should be rejected since 2
days earlier Roper had experienced an incident where she was
not permitted to handbill in the North Collier garage; and that
while Holliday handbilled on behalf of the Union at other loca-
tions without incident, after August 19, 2007, Holliday never
passed out flyers in the downtown garage again.
The Charging Party on brief argues that employees have a
well-established right to distribute union literature in nonwork-
ing areas when they are off duty, National Steel Corp. v. NLRB,
415 F.2d 1231, 1233 (6th Cir. 1969); that there is no dispute
that Holliday was on nonworking time and in a nonworking
area when she attempted to distribute union literature on Au-
gust 19, 2007, in the parking garage; that the security guard’s
report does not contradict Holliday’s testimony; and that
Holliday’s experience on August 19, 2007, was consistent with
NCH’s overall policy of restricting union activity in the parking
garage, which was unlawful.
Respondent on brief, contends that Holliday’s version of
what happened should be viewed skeptically; and that taking
Holliday’s testimony at face value, it is at most a technical
violation of the Act which should be dismissed as de minimis
since it in no way impacted the campaign or had a chilling ef-
fect on the organizing activities of the prounion nurses.
The accuracy of Holliday’s testimony is not challenged by
the two guards who prohibited her handbilling on August 19,
2007, in the downtown garage sky bridge in that neither guard
testified at the trial herein. As far as the material facts of this
incident are concerned, the report of the incident by Respon-
dent’s own security office (CP Exh. 8), corroborates Holliday’s
testimony. That being the case, it has not been shown that
Holliday’s testimony, as Respondent contends on brief, should
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1006
be viewed skeptically. What should be viewed skeptically is
Respondent’s argument on brief that this violation of the Act
should be dismissed as de minimis. This was not an isolated
incident. It is one of many violations of the Act found herein.
Two days before this incident, a guard at Respondent’s North
Collier facility tried to confiscate union flyers when an off-duty
nurse, Roper, tried to handbill on the garage sky bridge there.
Respondent’s conduct here had a chilling effect on union activ-
ist Holliday in that, as brought out by one of Respondent’s
attorneys on cross-examination, after August 19, 2007,
Holliday never passed out union flyers downtown again. Since
neither of the guards involved in the Holliday incident testified
at the trial herein, there is no testimonial challenge to the testi-
mony of Holliday’s that she told the guard that she believed
that they were allowed to be there, the guard said he was calling
his boss, the guard went inside the garage, and about a minute
later the guard returned to them on the sky bridge and told them
that they had to leave.56 The guard who tried to confiscate
Roper’s union flyers on the North Collier sky bridge did not
testify at the trial herein. According to Roper’s credible testi-
mony, he also said that he just talked with his supervisor, Bar-
baccia. In other words, guards were not making these decisions.
The decisions were being made on a supervisory, if not a man-
agement, level. Director of Public Safety Brown testified that
he was aware of the situation because he receives daily morn-
ing reports from Supervisors Griffith and Barbaccia. Brown
also testified that after this incident he issued instructions to his
officers about how to respond to employees distributing in the
garage, namely that they were to no longer respond to com-
plaints that purely involved union organizers distributing mate-
rial unless there was some other overriding reason to do so such
as a fight or some other crime. When did Brown give these
instructions? Brown testified that gave this instruction verbally
in November 2007 and in January 2008 he sent out an email
which reiterated this information. It would appear, therefore,
that whatever was done in November 2007 was believed to be
insufficient. In other words, the director of public safety waited
for 3 months to do anything. And then what he did was appar-
ently believed to be insufficient and he had to address the prob-
lem 2 months later or 5 months after he originally received
notification of the problem. As noted above, in his September
24, 2007 email to Brown, Settle indicated “[a]s far as sky
bridges, we are taking the position that solicitation cannot take
place in the bridges.” When Brown testified at the trial herein,
almost 1 year after the incident, he, in effect, testified that Re-
spondent reversed its position and at some point in time it al-
lowed employee handbilling on the sky bridge, and although he
did not know when this occurred he asserted that at some point
there was clarity, at least in his mind with respect to the policy
about handbilling on the sky bridge.57 This violation is not iso-

56 It is noted that the security report does not refer to the guard call-
ing his boss. However, it is also noted that the email indicates that the
report “is going to [be] revised . . . .” If there was a reference in the
report to the call to the guard’s boss, it may have been revised out ear-
lier. Or perhaps it was not noted in the original report. Since the guard
did not testify, this is not a matter of record.
57 It is noted that McGoun, who works on the downtown campus,
testified that in October and November 2007 she handed out union
lated, it is indicative of Respondent’s attitude, and it should not
be treated as de minimis. Respondent violated the Act as al-
leged in paragraphs 8 and 14 of the complaint.
Paragraphs 9(a) and (b) of the complaint collectively allege
that on or about mid-October 2007, Respondent, by a Susan
Theroux, at the Respondent’s facility, prohibited employees
from posting union literature in nonwork, nonpatient care areas
where other nonunion literature and materials were posted, and
she solicited employee complaints and grievances and impli-
edly promised to remedy them if employees refrained from
engaging in union organizing activity.
Counsel for the General Counsel on brief contends that it is
well established that absent a previous practice of doing so, the
solicitation of grievances during an organizational campaign
accompanied by a promise, express or implied to remedy such
grievances, violates the Act, Capital EMI Music, Inc., 311
NLRB 997, 1007 (1993); that the inference that the employer is
impliedly making a promise to correct grievances is rebuttable,
Gull, Inc., 279 NLRB 931, 946 (1986); that the testimonies of
Cothran and Saltzer establish that Theroux asked them what
Respondent could do to keep the Union out and this testimony
should be credited; that Theroux took over the involved de-
partment in the midst of the union organizing drive and, there-
fore, she had no history of asking for suggestions prior to the
organizing in this department; that Theroux’s question on the
occasion at issue was what could she do to keep the Union out
with the clear message being that she wanted to influence their
union support by remedying their concerns; that there is noth-
ing in writing that communicated to nurses that the cork bulle-
tin boards in the downtown garage elevators were considered to
be official bulletin boards subject to the policy in the employee
handbook; that although there had been problems with posting
on the garage elevator bulletin boards for years, Thigpen did
not see it as a major problem warranting sending a memo to
hospital personnel; that it is unclear what policy or rule Ther-
oux was relying on when she told Cothran and Saltzer they
were not permitted to post in the parking garage elevator; that
Theroux did not tell them it was an official bulletin board or
that they needed prior approval; that even after consulting with
HR, Theroux could not explain which policy applied when she
coached Cothran and Saltzer; that before the nurses began post-
ing union material on the garage elevator bulletin boards during
the organizing campaign, Respondent did nothing to communi-
cate any rule or policy to employees notifying them of any
limitation on posting; that in view of this, Theroux violated
Section 8(a)(1) by informing employees that they could not
post in the garage elevators.
The Charging Party on brief argues that Theroux’s inquiry as
to what management could do to keep management out was an
implied promise to remedy grievances if Cothran and Saltzer
refrained from supporting the Union; that management solicita-
tion of grievances during a union campaign constitutes an un-

literature three times in the parking garage near the skywalk that leads
to the hospital and no one stopped her. Brown’s September 24, 2007
email to Settle and Dutcher indicates that at the time Respondent was
allowing handbilling in the garage but not in the bridges. McGoun was
handbilling in the garage near the skywalk.
NAPLES COMMUNITY HOSPITAL 1007
fair labor practice if the employer also promises or implies that
it will remedy the grievance if the union is rejected; that al-
though Theroux’s promise of remedy was implied, the connec-
tion between her question and the union campaign was quite
explicit, Parts Depot, Inc., 332 NLRB 670, 672 (2000); that
Theroux could not have established a prior practice of soliciting
grievances from Cothran and Saltzer prior to the organizing
campaign, because nurses began organizing in late June/early
July 2007 and Theroux did not start rounding until August
2007; that on the occasion in question Theroux’s question about
keeping the Union out was different from her prior inquires
about what was needed for patient care; that Theroux met with
HR before speaking to Cothran about posting a union flyer on
the downtown garage elevator bulletin board; that Theroux
testified that Cothran and Saltzer violated Respondent’s solici-
tation and distribution policy and not its bulletin board policy;
that, therefore, Register Guild, supra, does not apply here be-
cause (a) Respondent was not relying on a rule or policy re-
stricting the use of employer owned equipment, and (b) there is
no established practice or policy to analyze; that it is unlawful
for an employer to restate its rules in the context of a union
campaign in order to prohibit employees from posting union
materials, Register Guild, supra; that the testimony of Respon-
dent’s witnesses that all non-NCH postings in the garage eleva-
tors are removed promptly is not credible; that the prohibition
against posting on garage elevator bulletin boards is not explicit
in any of NCH’s written policies concerning posting, bulletin
boards solicitation or distribution; that by NCH’s own account,
it kept the alleged rule secret for years, while employees posted
non-NCH material, and then suddenly, during the union orga-
nizing campaign, began enforcing the rule and disciplining
employees for posting union literature; and that there is no
explanation for this behavior other than union animus, to pre-
vent employees from communicating about the Union.
Respondent on brief contends that Theroux did not unlaw-
fully solicit grievances and/or promise to remedy them; that
Cothran and Saltzer were both open union supporters; and, as
here pertinent, that

Saltzer’s recollection . . . varies from Cothran’s with respect
to who was present when the conversations occurred. Saltzer
claims that, in addition to Cothran and Branham, Barbara Bell
. . . and Ginger McCamish . . . were also present. [Tr. 364.].
Interestingly, neither Counsel for General Counsel nor the
Union presented Branham, Bell or McCamish as witnesses to
corroborate Cothran’s and Saltzer’s testimony. [R. Br. 7.]

Respondent further contends that it is well settled that the so-
licitation of grievances itself does not violate the Act, Uarco,
Inc., 216 NLRB 1 (1974); that the Board recently held that an
employer who has a practice and policy of soliciting employee
grievances may continue to do so during an organizational
campaign, Wal-Mart Stores, 352 NLRB 815 (2008); that like
Wal-Mart, Respondent has a history of soliciting grievances
and other employee feedback that long predates the advent of
the organizing activity; that Theroux in no way violated the Act
by asking the nurses what they needed to improve care on the
unit; that Theroux participated in “TIPS” training in August
2007 and, therefore, she was aware that she could not ask the
nurses what could be done to keep the Union out58; that Ther-
oux is infinitely more credible than either Cothran or Saltzer;
that Cothran never completed a union incident report regarding
this matter; and that the reasons given by Cothran for not filing
a union incident report are lame and completely unbelievable.
Theroux would not have violated the Act if she only asked
the nurses what they needed to improve care on the unit. What
Theroux did was beyond that; Theroux asked what could the
Respondent do to keep the Union out. With respect to who was
present when Theroux asked this question, as noted above Re-
spondent on brief leaves the impression that Saltzer contra-
dicted Cothran on this point. Again, Respondent is less than
candid on brief. Respondent attempts to leave the impression
that Bell and McCamish were present during the conversation
with Theroux dealing with what the nurses wanted in order to
keep the Union out. That was not Saltzer’s testimony. At Tran-
script 364 Saltzer was testifying about who worked on her shift.
Saltzer was not testifying that Bell and McCamish were present
when Theroux asked what the Respondent could do to keep the
Union out. Indeed, on cross-examination when one of Respon-
dents attorneys asked Saltzer if she recalled specifically who
was present when the conversations with Theroux about the
Union59 took place Saltzer answered, “I do not.” (Tr. 376.)
Branham is not an RN. Respondent could have called Branham
as a witness. It did not. No adverse inference is warranted with
respect to the fact that Branham was not called as a witness.
Cothran and Saltzer impressed me as being credible witnesses.
They gave a detailed account of what happened and what was
said. Any differences in their testimony are minor and do not in
any way undermine their credibility. I credit the testimony of
Cothran and the testimony of Saltzer. I did not find Theroux to
be a credible witness. Her testimony is not credited. While she
admitted that she was told by nurses what they expected the
Union to do for them, she was not willing to concede that she
asked the nurses what they expected to get out of the Union.
Rather Theroux testified that she did not recall if she asked the
nurses what they expected to get out of the Union. And she did
not recall if she specifically asked the nurses what did they
expect the Union to do for them. At least two of the involved
nurses, Cothran and Saltzer were open supporters of the Union.
This would have been taken into consideration in determining
whether such questions were problematic. But it appears that
Theroux realized that if she conceded that she asked those
questions, it might be concluded that she also asked the ques-
tion at issue here, namely what could the Respondent do to
keep the Union out. Theroux asked the question at issue. With
this question, Theroux was not soliciting suggestions or fielding
grievances in general to improve the situation in the involved
department. Theroux was attempting to influence the involved
nurses’ union support by finding out what they wanted, thereby
impliedly promising to remedying their concerns. Theroux had
already indirectly asked for this information when she asked the
nurses what did they expect the Union to do for them. Appar-

58 Being told and doing are two different things. The facts will speak
for themselves.
59 As noted herein, there were other conversations where what the
nurses expected to get from the Union was discussed with Theroux.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1008
ently whatever information she obtained indirectly was not
sufficient to meet the inquisitor’s needs. Respondent violated
the Act as alleged in paragraphs 9(b) and 14 of the complaint.
With respect to Theroux giving Cothran and Saltzer a verbal
coaching, as noted above, Theroux testified that before she
issued the coaching she met with Settle, Thigpen, and a lawyer
at HR’s behest; that the group decided on the discipline and she
was directed to speak with Cothran; and that she approached
the incident in terms of the solicitation/distribution policy and
not the bulletin board information in the employee handbook.60
Also, as noted above, when asked if she was “looking at a rule,
or did she have a rule in mind” when she told Cothran and Salt-
zer that they could not post union literature in the elevators,
Theroux gave the following testimony:

THE WITNESS: It was my interpretation of the solicita-
tion and distribution policy.
. . . .
THE WITNESS: That things could be handed out.
JUDGE WEST: So it wasn’t your interpretation of any
rule with respect to bulletin boards?
THE WITNESS: Right. I didn’t consider—I owned the
bulletin boards in the nurse lounge. I don’t oversee the
bulletin boards in the public elevators.
JUDGE WEST: But again, you weren’t basing the coach-
ing on any rule with respect to the use of bulletin boards.
You were basing it on the solicitation and distribution rule
or policy.
THE WITNESS: Correct. [Tr. 631.]

Theroux did not give the specific language of the rule or policy
she was relying on when she disciplined Cothran and Saltzer at
the direction of HR. As noted above, HR was also involved in
the disciplining of McGoun for posting a union flyer in a down-
town garage elevator. Regarding McGoun, Kling testified that
he gave McGoun a copy of the solicitation policy after there
was “round tabling with HR and with the executive team and it
was decided that there was no solicitation approval form filled
out through HR and McGoun did not get proper approval for
it.” (Tr. 830.) Also, Kling testified that under the solicitation
policy McGoun should have requested permission to post and
this was determined after the discussion with HR; and that
when he spoke with McGoun he was relying on NCH’s solici-
tation policy that indicates that “[r]equests to solicit for organi-
zations representing any protected . . . groups will routinely be
denied.” As will be found below regarding paragraph 11 of the
complaint, this language is unlawful. Respondent did not have
any lawful basis under its solicitation policy or rule for disci-
plining Cothran and Saltzer. In disciplining Cothran, Saltzer,
and later McGoun, regarding posting on the downtown garage
elevator cork bulletin board, Respondent did not specifically
assert any property right in that bulletin board.
And with respect to any “policy” regarding posting on the
cork bulletin boards in the downtown garage elevators before

60 This was not a mistake. As noted below Respondent’s HR took
this approach with McGoun after Cothran and Saltzer. Also, with
Kinsland and Karavas, which occurred before Cothran and Saltzer,
Respondent did not cite a specific posting policy.
the involved union campaign, it must be concluded that there
really is none that Respondent can rely on. There might have
been a “practice” on the part of at least one member of Respon-
dent’s management to remove personal postings from the
downtown garage elevator cork bulletin board. But Respondent
never demonstrated that there was a “policy.” The downtown
garage and elevators were built about 10 years ago. Up until
January 2008 when Plexiglas bulletin boards were installed
with notices prohibiting personal posting, the downtown garage
elevators had cork bulletin boards. For the approximately 10
years that those cork bulletin boards were in existence there
was never any notice in those elevators limiting what could be
posted thereon. Thigpen could not point to anything in writing
that communicated to nurses that the cork bulletin boards in the
downtown garage elevators were considered to be official bul-
letin boards subject to the employee handbook.61 Over the years
all kinds of things were posted on these cork bulletin boards.
The assertions of Respondent’s witnesses with respect to what
was or was not posted and whether it was the practice of at least
one of the members of Respondent’s management62 to take the
non-NCH postings down from the cork bulletin boards
promptly must be viewed in the light of (a) the credible testi-
mony of (1) Cothran that she saw postings of a personal nature
stay up for weeks at a time, and one personal non-NCH posting
stayed up until all of the tabbed telephone numbers were torn
from the flyer; (2) McGoun that the various things she saw
posted in the downtown garage elevators included houses or
pets for sale, rentals, and some business cards; (3) Holliday that
when she worked in the downtown hospital for about 2 years
(2003 to 2005), before she was transferred to North Collier, she
always saw a variety of things posted on the bulletin board on
the elevators on the downtown campus, namely cars for sale,
people having parties, nursing education, and CPR classes;63
(4) Villani that in July, August, and September 2007 she saw
houses for rent, roommates needed, things for sale, and furni-
ture for sale posted on the garage elevator cork bulletin board;
and (5) Panebianco that she has seen postings about the hospi-
tal’s Spring Fling and an advertisement for a lost pet in the
garage elevators, and (b) the fact that, with respect to Respon-

61 The entry for “BULLETIN BOARDS” in the employee handbook,
CP Exhs. 4 (updated “05/02/07”) and 5 (updated “09/04/07”) reads:
“For the convenience of employees, official bulletin boards are located
throughout NCH. Information posted on these official bulletin boards,
such as system news and notices required by law, must be approved by
the Human Resources Department or Administration prior to posting.”
62 Thigpen asserted that she removed personal postings on the cork
bulletin boards in the downtown garage elevators. But as found below
regarding her role in the McGoun July 31, 2007 coaching, Thigpen is
not a credible witness.
63 As noted above, on direct Holliday also testified about bulletin
boards in lounges on the downtown campus. She testified on cross-
examination, with respect to whether she saw anything of a commercial
nature or related to any business, that she also saw postings about peo-
ple trying to open businesses like baby sitting services, lawn mowing
service, and car washing; and that she did not know if these were Re-
spondent’s employee’s own businesses. It is not clear when Holliday
answered the questions about postings of a commercial nature she was
referring to the bulletin boards in employee lounges or the bulletin
board in the downtown elevators or both.
NAPLES COMMUNITY HOSPITAL 1009
dent’s witnesses (1) Theroux, who claims that she rides the
downtown garage elevators 5 days a week and sees one per-
sonal posting a week for an apartment for rent, a vehicle for
sale, a classified—which posting are allegedly gone by the next
day—did not even know that there were cork bulletin boards in
the elevator in that she testified that the postings were just taped
to the elevator walls, and she could not say that she ever saw a
cork bulletin board in the elevator before the Plexiglas bulletin
board was installed;64 (2) Thigpen, who testified that she and
others saw personal postings (items for sale and party notices)
on the downtown garage garage cork bulletin boards from time
to time (2 or 3 times a month) “for the past 10 years” (Tr. 936),
she and others (unidentified) removed the postings since that
was Respondent’s “practice” (Tr. 890),65 but she did not have a
memorandum issued to hospital personnel indicating that these
materials should not be posted (nor did Respondent post a no-
tice prohibiting such postings in the garage elevators until
January 2008 which was well into the union organizing cam-
paign) because she did not see it as a major problem (before the
union organizing campaign);66 (3) Settle, who testified that he
believed that the bulletin board “policy,” which is in the em-
ployee handbook and on “My Intranet,” is the only policy that
covers posting materials, and he was not aware of the Hospital
ever allowing unauthorized postings for commercial ventures in
the hospital garage elevators; (4) Kling, who testified that he
uses the downtown garage elevators every day and he has seen
postings in the garage elevators for everything from couches,
cars for sale, and houses for rent to things for child day care,
and that he had no idea whether the posting for cars for sale
was authorized (which apparently would mean that Kling did
not remove at least the cars for sale posting since he did not
determine if the posting was authorized); and (5) Brown, who
testified that he rides the downtown garage elevators to get to
his office and he could not recall ever seeing any notices of a
personal nature posted in the elevator in the parking garage
(Obviously this contradicts the testimony of other of Respon-
dent’s witnesses.), had to be led by one Respondent’s attorneys
to testify that there are Plexiglas bulletin boards in the elevators
as of January 2008, and even then he was not sure.67 To the

64 The surveillance photos of McGoun posting which Kling identi-
fied, GC Exh. 3, show a cork bulletin board in the “W ELEVATOR” of
the downtown garage elevators. Theroux testified that she received an
email from security asking her if she could identify staff members. The
photographs she apparently looked at were not introduced at the trial
herein so it is not clear that they showed the cork bulletin board.
65 As noted above, on the last day of the trial herein, before I ruled
on the objection, one of the attorneys for Respondent used the word
“practice” in his question after the Charging Party objected to the use of
the word “policy,” indicating that it was without foundation in that the
Charging Party did not believe that there was any evidence relating to a
policy.
66 Theroux testified that she never communicated to her employees
that they were not allowed to post in the elevators, not until the coach-
ing of Cothran and Saltzer.
67 Initially he testified that at the time of the trial herein (August
2008) he believed that they were cork “right now.” (Tr. 689.) Then,
Brown testified, “I don’t know” (Id. at 690), when he was asked by one
of Respondent’s attorneys, “So it’s not a corkboard at the moment.” (Id.
at 689.)
extent that any of Respondent’s witnesses attempted to leave
the impression that before the union organizing campaign in-
volved here, there were no non-NCH postings in the downtown
garage elevators or, if there were, they are promptly removed,
such testimony is not credible and it is not credited. Also, Set-
tle’s equivocal testimony that he was not aware of the Hospital
ever allowing unauthorized postings for commercial ventures in
the hospital parking garage elevators is not credited. For ap-
proximately 10 years Respondent allowed all kinds of non-
NCH postings in the downtown garage elevators. Then without
prior warning to its employees, it began removing non-NCH
postings (union literature) during the union organizing cam-
paign. Not only did Respondent remove the union literature but
it began to discipline employees for making non-NCH postings,
something Respondent has not shown that it did before for the
approximately 10 years that non-NCH postings occurred on the
garage elevator cork bulletin boards. On July 27, 2007, Settle
sent an email to “Department Heads, Supervisors and Mid-
Managers” (GC Exh. 10), indicating, as here pertinent, “Today
. . . union paraphernalia began appearing around the hospital.
. . . As a reminder, we do not allow unauthorized postings in
our elevators . . . .” Employees were not notified of Settle’s
July 27, 2007 position perhaps because it was a change of posi-
tion and publication of this change to employees would be
problematic. When Respondent began disciplining employees
for posting union literature on the garage elevator bulletin
boards, it did not rely on Settle’s July 27, 2007 position that
Respondent does “not allow unauthorized postings in our eleva-
tors.” Rather, without meaningful exception, in disciplining
employees for posting union literature on the garage elevator
bulletin boards Respondent relied on its solicitation and distri-
bution policy. That policy does not indicate “we do not allow
unauthorized postings in our elevators . . . .” Rather, that policy,
as noted above, unlawfully indicates that “[r]equests to solicit
for organizations representing any protected . . . groups will
routinely be denied.” Kling testified that this language did not
rule out the possibility of the granting of such request. Respon-
dent was not relying on the bulletin board policy in the em-
ployee handbook in disciplining employees for engaging in
union activity, namely posting union literature on the cork bul-
letin board in the garage elevator. Respondent was not asserting
the violation of an absolute prohibition. Respondent was in-
forming employees that they had to ask for permission and that
such requests “will routinely be denied.” Since Respondent did
this more than once in disciplining employees and since HR
was involved in both of the garage elevator posting incidents
covered by the complaint herein (at lest once with Respon-
dent’s lawyer and once with the executive team), this approach
was not a mistake in terms of what grounds were used. To buy
into a mistake argument, one would have to believe that Re-
spondent mistakenly did not cite its bulletin board policy the
first time on August 3, 2007(with Karavas), then it made the
mistake again on August 10, 2007 (with Kinsland), then it
made the mistake again in October 2007 (with Cothran and
Saltzer), and then it made the mistake again on November 2,
2007 (with McGoun). Respondent choose not to belatedly as-
sert a property right which would have been problematic once
the involved union organizing campaign began. Perhaps Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1010
spondent realized that it did not have an explicit prohibition.
Perhaps Respondent determined that by allowing all kinds of
postings in the garage elevators for approximately 10 years
before the involved union campaign began it had waived the
right to prohibit employees posting union literature in the ga-
rage elevators. Respondent violated the Act as alleged in para-
graphs 9(a) and 14 of the complaint.
Paragraph 10 of the complaint alleges that on or about Octo-
ber 31, 2007, Respondent, by John Brown, at the Respondent’s
facility, told employees that they were not permitted to engage
in union and other protected, concerted activities unless they
received prior permission and approval from the Employer.
Counsel for the General Counsel on brief contends that
around October 27, 2007, Brown told nurses Fuller, Panebi-
anco, and Villani, who were in Respondent’s downtown cafete-
ria speaking to employees about the Union and giving out un-
ion flyers with small candy treats attached, that they were no
longer to pass out their treats and they needed to leave; that
Villani asked if they could at least finish their lunch and Brown
said no he wanted them to leave; that at the time there was a
benefits fair going on and vendors participating had bowls of
candy, cookies, and little treats; that Villani had observed
NUNSO distributing literature in the downtown cafeteria on
another occasion; that Brown told them, contrary to their asser-
tions, that they did not a right to be there because they were set
up like a booth, they needed permission for that, and they
would have to leave; that the nurses bagged up the treats, put
them under the table, and they left shortly after that; that Brown
claims that (a) he explained to the nurses that they could eat
lunch in the cafeteria and speak with other employees but they
had to remove the candy and materials that were displayed on
the table; (b) the nurses put the candy and materials under the
table and continued talking; and (c) he did not ask the nurses to
leave; that Brown was acting pursuant to a new rule or new
interpretation of Respondent’s policy, namely Settle’s October
31, 2007 email to department heads (CP Exh. 14), which indi-
cates that while an employee can hand out materials in the cafe-
teria, the employee cannot hand out food, candy, or drinks in
the cafeteria since that competes with Respondent’s cafeteria
business; that there is no evidence that this policy existed prior
to Settle’s email of October 31, 2007; that Respondent was
disparately applying its rules in that Holliday testified that she
observed anti-SEIU NUNSO distributing candy in Respon-
dent’s North Collier cafeteria around Halloween and January
2008 and Settle testified that there were no requests or approv-
als to solicit or distribute from NUNSO; that RN Anderson
testified that she saw the American Heart Association having a
fund raiser in an NCH cafeteria and they were selling funnel
cakes; that various organizations were allowed to distribute
food during the benefits fair; and that the miniature candy at-
tached to the union flyer would not be competition to the cafe-
teria because it did not sell a similar product.
The Charging Party on brief, argues that a rule prohibiting
employees form distributing union literature on their own time
in nonworking areas of the employer’s property is presump-
tively invalid, Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945); that NCH began enforcing a new rule against distribut-
ing food in competition with cafeteria sales; that this justifica-
tion is specious; that NCH’s solicitation and distribution policy
does not mention distribution of food but it does state that no
distribution of any kind is allowed in any working areas which,
as here pertinent, does not include cafeterias (GC Exh. 6, par.
C); that while both Settle and Brown testified that there was no
written policy limiting distribution of food in the cafeteria,
Settle claims that there is an unwritten restriction with respect
to competing with the cafeteria; that NCH’s alleged concern for
cafeteria sales is not sufficient to justify restricting employees’
Section 7 rights, Beth Israel Hospital v. NLRB, 437 U.S. 483,
506 (1978); that the cafeteria does not sell the kind of candy
that was attached to the union flyer so there would not have
been any competition with the cafeteria; that prior to the union
campaign there was no rule against food distribution in the
cafeteria, and during the union campaign the rule was only
applied to prounion employees; that Brown learned about
NCH’s policy for the first time in late September 2007 when
NCH’s general counsel called Brown and asked him to go to
the cafeteria to prevent prounion nurses from passing out cake;
and that even if the food distribution policy was facially valid,
it was discriminatorily applied to prounion nurses.
Respondent on brief, contends that during the conversation
with the nurses on Halloween 2007 in Respondent’s downtown
cafeteria Brown “merely asked the nurses to remove the candy
because it was covering half the table, and they complied” (R.
Br. 25); that Brown’s testimony is more credible than Villani’s
and Panebianco’s; that the testimony of Villani and Panebianco
simply does not make sense in that on September 25, 2007,
Brown spoke to Jennings, Villani, and Panebianco in Respon-
dent’s downtown cafeteria and “advised them that they could
not distribute slices of cake, but could continue to distribute
literature. (Tr. 131, 644)” (Id. at 26); that Roper testified,
“[T]hat she was always able to distribute literature in the cafe-
teria without any issues” (Ibid); and that this is yet another
attempt by Villani and Panebianco to manufacture an unfair
labor practice where none exists.
The credible evidence of record does not support the conten-
tions Respondent makes on brief. Brown did not “merely ask
the nurses to remove the candy because it was covering half the
table . . . .” And Brown on September 25, 2007, did not merely
advise Jennings, Villani, and Panebianco “that they could not
distribute slices of cake, but could continue distributing litera-
ture.” (Tr. 131, 644.) Jennings’ testimony, as here pertinent,
reads as follows:

Q. . . . .
Do you recall being in NCH’s Downtown facility on
September 25th, 2007?
A. Yes.
Q. Where specifically in the hospital were you?
A. The cafeteria.
Q. What time of day was it?
A. Lunchtime.
Q. And who were you with?
A. I was with Mary Villani, Terese Panebianco, and
several other nurses that I cannot recall that joined me.
Q. And what did you do?
A. We went to distribute Union literature, as well as to
give out some cake.
NAPLES COMMUNITY HOSPITAL 1011
. . . .
Q. How long did you give cake out for?
A. For about 20 minutes.
Q. And what happened after 20 minutes?
A. Security approached.
. . . .
A. It was one gentlemen, I don’t recall his name
[Brown].
. . . .
Q. And what did Security do?
A. Security said we’ve got to go right now. We had to
stop everything we were doing.
Q. And how did you respond?
A. I just said that’s not true. We have a right to be
here.
Q. And why did you—was there a particular reason
why you believed you had a right to be there?
A. Well, I knew that the nurses had the right to distrib-
ute Union literature. And I also knew that based on Renee
Thigpen’s testimony the day before at the NLRB hearing
that we all attended, and [sic] stated that it was a public
space, that I could also be there as well.
Q. And did the security guard respond?
A. Once I claimed, made the statement that Renee had
testified, he got a little nervous and he said, okay, hold on,
and then he left for a few minutes, and then he came back.
Q. And when he came back what did he say?
A. He said that you can continue to distribute the Un-
ion literature, but you cannot give out cake. [Tr. 128–131,
emphasis added.]

Also, with respect to Respondent’s above-quoted contentions,
Roper, contrary to Respondent’s assertion, did not testify “that
she was always able to distribute literature in the cafeteria
without any issues.” (R. Br. 26.) As noted above, Roper testi-
fied that she was off duty and she went to the (north campus)
cafeteria with Jennings and one of the SEIU attorneys, Grand-
erson; that they had a lot of information, packets, material, and
Halloween cupcakes; that they gave out the material and cup-
cakes for about 10 minutes; that the chief security person at
North Collier, Val Barbaccia, came up to her and said, “Cindi,
what are you doing, You know you can’t be here” (Tr. 445);
that she asked Val, “[W]hy is that” (Ibid.) and Val said, “[O]h,
stop it. You know why. . . . [y]ou need to leave . . . .” (Id. at
445, 446); that she told Val that she did not think she was right
and Jennings stood up and introduced himself; that Val left
them and came back 5 minutes later with Settle who told them
that they had to leave; that Settle told them that they had to
leave and they could not give out cupcakes; that she asked Set-
tle why they could not do this, and there were other people
giving out cupcakes and so forth (candy bars and tootsie rolls);
that the other people were local vendors, like Sam’s, advising
employees about the different benefits available to them; that
Settle told them they had to leave, that everyone else there was
invited, and they were not invited; that they packed up and left,
giving the cupcakes to an employee to take to her unit; and that
a security guard walked them out to their car. On cross-
examination, Roper testified that they were at a table in the
North Naples cafeteria and the cupcakes and flyers were placed
on the table; and that they are not allowed to distribute union
literature to other people in the cafeteria. Barbaccia did not
testify at the trial herein. While Settle did testify, he did not
specifically deny Roper’s testimony about this incident.
Brown is not a credible witness. He testified that he never
saw a personal posting on the downtown garage elevators when
other witnesses, including other Respondent’s witnesses, testi-
fied that there have been personal postings for years on the cork
bulletin board in those elevators. Also, Brown, even after being
led by one of Respondent’s attorneys, was not sure when he
testified at the trial herein whether the bulletin boards on the
elevators he allegedly uses to get from the garage to his office
were cork or Plexiglas. He equivocated on cross about what
was said on October 31, 2007, in that when he was asked, “[d]o
recall anyone asking if they could finish eating their lunch first”
he answered, “[n]ot specifically those words, no, I do not recall
that.” (Id. at 670.) If he was allowing them to stay in the cafete-
ria, there would not have been any need for this question on the
part of one of the employees. And Brown was not candid about
his verbal exchange with Jennings on September 25, 2007.
Villani and Panebianco impressed me as being credible wit-
nesses. They gave detailed accounts of what happened during
their verbal exchange with Brown. Brown told them they were
not allowed to give out treats and they needed to leave. Days
earlier, September 25, 2007, in Respondent’s downtown cafete-
ria when the male union organizer stood his ground and re-
ferred to the testimony of Thigpen the day before regarding the
cafeteria being a public area, Brown backed down, told
Jennings okay hold on, left for a few minutes, and when he
returned said that they could continue to distribute the union
literature but they could not give out the cake. The stand that
Brown initially took with Jennings is the stand that he took with
the nurses on Halloween. But there were two differences. On
September 25, 2007, Brown had a face off with a union organ-
izer and some nurses. On Halloween, Brown had a face off with
employees of NCH without a union organizer present. Could
this alone explain the difference in the treatment the employees
received by Brown on October 31, 2007, or was there was an-
other factor at play, namely when Brown had this conversation
with the nurses on Halloween there may have been a benefits
fair going on in the cafeteria? Panebianco testified that Brown
told them they could not hand out candy and pamphlets because
they needed permission to be set up like a booth, and they
would have to leave. Panebianco could not understand why
Brown referred to being set up like a booth in that they were
just sitting at a table like any other table in the cafeteria. Pane-
bianco testified that there may have been a benefits fair going
on but she was not 100-percent sure. Perhaps Brown’s refer-
ence to a booth was his indirect way of advising them that there
was a benefits fair going on and to solicit employees as the
vendors in the cafeteria were doing, they would need permis-
sion. As noted above, when the benefits fair was going on at
Respondent’s North Collier cafeteria even though Roper, who
was off duty at the time, was accompanied by Jennings and one
of SEIU’s attorneys, she, along with Jennings and the SEIU
attorney were told by Settle that they could not give out their
Halloween cupcakes and they were all required to leave the
cafeteria. This is what also occurred with Brown at Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1012
dent’s downtown cafeteria on or about October 31, 2007. As
Settle did at Respondent’s North Collier cafeteria, Brown, in
effect, told the nurses to pack it up and get out. That appears to
be why the outcome was different from September 25, 2007, to
the extent that the nurses were required to leave the downtown
cafeteria. But whether the deciding factor was the benefits fair
is questionable in that, as noted above, Andersen testified that
she was prohibited from distributing literature in the cafeteria
(north campus) on what might have been Valentine’s Day
2008; that the security guards told her that she was not allowed
to give out union literature; that she believed that she was pass-
ing out candy as well at the time; and that even when she tried
to distribute just union literature in the cafeteria she was told by
a security guard that she was not allowed to do that. Brown lied
under oath. On or about October 31, 2007, he required Villani,
Panebianco, and Fuller to stop handing out union flyers with
attached candy treats and to leave the cafeteria.
The vendors at the benefits fair were giving out treats. They
were not prohibited from doing this because it would be com-
peting with Respondent’s cafeteria. While Respondent took the
position that the vendors were asked to be there, they were
given permission to be there, and there were requests and ap-
proval forms regarding Respondent’s solicitation and distribu-
tion policy, Settle conceded that there was no request for per-
mission pursuant to Respondent’s solicitation and distribution
policy for at least one of their vendors, Sam’s Club, which was
giving out treats.68 Also, Respondent disparately applies its
rules in that the anti-SEIU group NUNSO had a table right in
front of the North Collier cafeteria and NUNSO was distribut-
ing anti union literature and candy one time around Halloween
2007 and one time in January 2008.69 Settle testified that there
were no requests or approvals to solicit or distribute from
NUNSO. Additionally, American Heart Association held a fund
raiser in the cafeteria and they were selling funnel cakes. Re-
spondent did not attempt to explain why they were allowed to
sell funnel cakes and why it was not competing with Respon-
dent’s cafeteria. Finally, as pointed out by counsel for the Gen-
eral Counsel and the Charging Party on brief, the small candy
attached to the union flyer would not be competition to the
cafeteria because it did not sell a similar product. Respondent
discriminated against Villani, Panebianco, and Fuller when they
were distributing union flyers with small candy treats attached
in Respondent’s downtown cafeteria on or about October 31,
2007. Respondent treated them disparately. And Respondent
violated the Act in refusing to even allow the involved employ-

68 As noted above, Respondent did not provide a solicitation ap-
proval form for Costco either. Both Sam’s Club and Costco are mem-
bership organizations. Both were in Respondent’s cafeterias to solicit
membership; to solicit Respondent’s employees to become members.
To allow them to give out treats as part of their attempt to solicit em-
ployees to become members, even though Respondent did not demon-
strate that Respondent had request and approval forms regarding Re-
spondent’s solicitation and distribution policy for them, and not allow
the prounion nurses to engage in the same conduct demonstrates the
discriminatory approach Respondent took.
69 Unless Respondent can show that no supervisor or no one in man-
agement went to the cafeteria on those days, Respondent would be hard
pressed to argue that it did not know about this.
ees to distribute union literature in a nonwork area while they
were on their own time. Respondent violated the Act as alleged
in paragraphs 10 and 14 of the complaint.
Paragraph 11 of the complaint alleges that at all material
times, and at least since on or about September 4, 2007, Re-
spondent, in its employee handbook, has maintained and en-
forced the following policies and rules regarding solicitation,
distribution, and posting of written or printed materials:

D. . . . . Employees who wish to solicit for community chari-
table organizations must request permission on the “Solicita-
tion Approval Form.” The request will be evaluated on its
merits and will either be approved or denied by the Chief
Human Resources Officer or designee. Requests to solicit for
personal profit, political causes or organizations representing
any protected or non-protected groups will routinely be de-
nied.

Counsel for the General Counsel on brief contends that that
portion of Respondent’s solicitation and distribution policy
quoted above is overly broad and discriminatory on its face;
that any rule that requires employees to secure permission from
their employer before engaging in protected concerted activity
at an appropriate time and place in unlawful, Teletech Hold-
ings, Inc., 333 NLRB 402, 403 (2001); that in determining
whether an employer’s mere maintenance of a work rule vio-
lates the Act, the Board considers whether the rule would rea-
sonably tend to chill employees in the exercise of their Section
7 rights; that in making this determination, the Board gives the
rule a reasonable reading and refrains from reading particular
phrases in isolation, Albertson’s, Inc., 351 NLRB 254 (2007);
that under the test adopted by the Board in Lutheran Heritage
Village-Livonia, 343 NLRB 646 (2004), the Board first asked
whether the rule explicitly restricts activities protected by Sec-
tion 7; that if it does, the rule is unlawful; and that if it does not
explicitly restrict protected activities,

The violation is dependent upon a showing of one of the fol-
lowing: (1) employees would reasonably construe the lan-
guage to prohibit Section 7 activity; (2) the rule was promul-
gated in response to union activity; (3) or the rule has been
applied to restrict the exercise of Section 7 rights. [Id. at 647,
counsel for the GC Br. 78.]

Counsel for the General Counsel further contends that Respon-
dent’s rule on its face appears to explicitly restrict protected
activities; that the record is replete of instances where Respon-
dent’s solicitation and distribution rule and bulletin board pol-
icy were applied to restrict employees in the exercise of Section
7 rights; that in direct response to the union organizing, Re-
spondent communicated its interpretation of what could be
done to management but it did not inform its employees; that it
is clear that Theroux and Kling did not understand the applica-
tion of Respondent’s solicitation and distribution policies
and/or bulletin board policies when they disciplined employees;
that it appears that Respondent was making it up as it went
along in response to the organizing; that there is no evidence
that Respondent effectively repudiated the unlawful rules
and/or its unlawful application; and that it has been established
that Respondent violated the Act, as alleged, by maintaining the
NAPLES COMMUNITY HOSPITAL 1013
overly broad solicitation and distribution rules in its employee
handbook and on its intranet web site, as well as by unlawfully
prohibiting union activity in reliance on its rules.
The Charging Party on brief, argues that the involved rule
constitutes a per se violation of Section 8(a)(1) of the Act in
that “[a]ny rule that requires employees to secure permission
from their employer as a precondition to engaging in protected
concerted activity on an employee’s free time and in nonwork
areas is unlawful,” Brunswick Corp., 282 NLRB 794, 795
(1987); that according to the plain meaning of the text, pro-
tected union activity would likely fall under the category of
“organizations representing protected or non-protected groups”;
that, therefore, not only are employees required to request per-
mission to engage in union solicitation, but it will be “[rou-
tinely denied”; and that even the mere existence of such an
overly broad rule “tends to restrain and interfere with employ-
ees’ rights under the Act even if the rule in not enforced.” (Id.)
Respondent on brief contends that “[e]stablished board
precedent holds that the fact that a solicitation policy requires
permission for worktime solicitation does not automatically
result in a violation of Section 8(a)(1) of the Act” (emphasis
added, R. Br. 52); that the alleged facial invalidity of Respon-
dent’s solicitation and distribution policy does not end the in-
quiry in that an employer can avoid the finding of a violation
by showing through extrinsic evidence that its rule was com-
municated or applied in such a way as to convey an intent
clearly to permit solicitation during breaktime or other periods
when employees are not actively at work, MTD Products, 310
NLRB 733 (1993); that the gravamen of an 8(a)(1) violation
with respect to an overly broad solicitation and distribution rule
is that the rule can be interpreted in such a way as to cause
employees to refrain from exercising their statutory rights but
this underpinning evaporates when, as here, there is evidence
that the rule was not enforced in a prohibited fashion and em-
ployees understood that they were permitted to engage in union
activities on their own time and, in fact, did engage in such
activities; and that two U.S. circuit courts of appeals have held
that an overly broad rule is not a violation of the Act where
evidence shows that employees freely engaged in solicitation.
Again, Respondent serves up a red herring on brief. The por-
tion at issue of the involved rule is quoted correctly in the com-
plaint. Nowhere does it refer to requiring “permission for work-
time solicitation.” (Emphasis added, R. Br. 52.)70 Also, contrary
to Respondent’s assertions on brief, its involved rule was not
communicated or applied in such a way as to convey the intent
clearly to permit solicitation when employees are not actively at
work. As indicated above, a number of employees who were on
their own time were either not allowed to solicit in a nonwork
area or were disciplined when they did.71 On the one hand,
there is no evidence of record that the involved rule was actu-

70 Another paragraph of Respondents’ solicitation and distribution
policy, par. C—which is not at issue in the complaint—reads, as here
pertinent, “[n]o distribution is allowed during working time.” GC Exh.
6. This is an unequivocal prohibition. There is no provision for permis-
sion with respect to working time in Respondent’s solicitation and
distribution policy.
71 To list just some, McGoun, Cothran, Saltzer, Holliday, Villani,
Panebianco, and Fuller.
ally communicated to employees in such a way as to convey an
intent clearly to permit solicitation in nonworking areas when
employees were not actively at work. On the other, there is a lot
of evidence of record demonstrating that this rule was applied
in such a way as to convey an intent clearly to prohibit solicita-
tion in nonworking areas when a number of employees were
not actively at work. The rule at issue is overly broad and dis-
criminatory on its face. As the Board pointed out in Brunswick
Corp., supra at 795:

. . . any rule that requires employees to secure permission
from their employer as a precondition to engaging in pro-
tected concerted activity on an employee’s free time and in
nonwork areas is unlawful. Further, the Board held in
Schnadig Corporation, 265 NLRB 147, 157 (1982), . . . that
the mere existence of an overly broad rule tends to restrain
and interfere with employees’ rights under the Act even if the
rule is not enforced. We find, accordingly, that the Respon-
dent’s promulgation and maintenance of its no solicitation/no
distribution rule constituted a per se violation of Section
8(a)(1).

The Board in Teletech Holdings, Inc., 333 NLRB 402, 403
(2001), indicated as follows:

. . . any distribution rule that requires employees to secure per-
mission from their employer prior to engaging in protected
concerted activities on an employee’s free time and in non-
work areas is unlawful. . . .
. . . .
When a rule of this kind is found presumptively
unlawful on its face, the employer bears the burden to
show that it communicated or applied the rule in a way
that conveyed a clear intent to permit distribution of litera-
ture in nonworking areas during nonworking time. Ichikoh
Mfg., 312 NLRB 1022 (1993), enfd. 41 F.3d 1507 (6th
Cir. 1994). A clarification of an ambiguous rule or a nar-
rowed interpretation of an overly broad rule must be
communicated effectively to the employer’s workers to
eliminate the impact of a facially invalid rule. Laidlaw
Transit, Inc., 315 NLRB 79, 83 (1994). Any remaining
ambiguities concerning the rule will be resolved against
the employer, the promulgator of the rule. See Nor-
ris/O’Bannon, 307 NLRB 1236, 1245 (1992).

The rule at issue is unlawful on its face. Respondent did not
show that it communicated effectively to its employees to
eliminate the impact of this facially invalid rule. The two U.S.
circuit courts of appeals cases cited by Respondent can be dis-
tinguished in that here the evidence shows that a number of
employees were not able to freely engage in solicitation. Re-
spondent violated the Act as alleged in paragraphs 11 and 14 of
the complaint.
Paragraphs 12(a), (b), and (c) of the complaint collectively
allege in or about early August 2007 Respondent issued to its
employee Sandi McGoun a verbal discipline and on November
2, 2007, it issued a written discipline to her because she assisted
the Union and engaged in concerted activities and to discourage
employees from engaging in these activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1014
Counsel for the General Counsel on brief contends that
McGoun received a verbal counseling on July 31, 2007, be-
cause she was perceived as talking about the Union while on
duty; that to prove a violation of Section 8(a)(3) of the Act, the
General Counsel must show that union activity or other pro-
tected activity has been a motivating factor in the Employer’s
adverse personnel decision; that to establish discriminatory
motivation, the General Counsel must show union or protected
concerted activity, employer knowledge of that activity, animus
or hostility towards that activity and an adverse personnel ac-
tion caused by such animus or hostility; that inferences of
knowledge, animus and discriminatory motivation may be
drawn from circumstantial evidence as well as from direct evi-
dence, Washington Nursing Home, 321 NLRB 366, 375 (1996);
that once the General Counsel has made an initial showing of
discrimination, the burden of persuasion shifts to the employer
to prove that it would have taken the same action even if the
employee had not engaged in protected activity, Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983); that
McGoun was known as a leading union adherent; that only
days before her coaching she was quoted in the local newspaper
about the union campaign; that when Ringle gave her the verbal
warning Ringle told McGoun it was because she was observed
talking about the Union; that no evidence was presented about
the second incident cited in the verbal warning; that Gutierrez,
who made the initial report, testified that she did not consider
McGoun’s conduct to be a violation of a hospital rule; that
there was absolutely no investigation conducted; that Respon-
dent was unable to offer into evidence a single coaching or any
type of discipline that it ever issued to a nurse for being out of
his/her work area or disrupting other employees; that there is no
evidence that Respondent ever coached or disciplined any em-
ployee for posting in the elevator other than in connection with
the union campaign; that McGoun was told by Kling that she
had violated the solicitation and distribution policy while Settle
testified that the solicitation and distribution policy does not
cover posting; that it is clear that Respondent was applying its
rules in a manner to discriminate against employees, including
McGoun, for engaging in union activity and, therefore, the
discipline is unlawful; and that Respondent relied on an unlaw-
ful rule requiring prior permission to engage in solicitation in
disciplining McGoun.
The Charging Party on brief, argues that NCH violated Sec-
tion 8(a)(3) of the Act by disciplining McGoun because of her
union activity and in order to discourage others from union
activity.
Respondent on brief, contends that McGoun received the
coaching because she was out of her assigned work area during
working time discussing nonwork-related matters; that there is
unrebutted evidence that Respondent required employees to
stay in their assigned work areas and disciplined employees
who did not do so; that when Respondent cited its no-
solicitation policy when it disciplined McGoun for posting in
the garage elevator, “[t]his was a mistake” (R. Br. 42); that this
mistake does not transform McGoun’s conduct into solicitation;
that McGoun clearly engaged in posting union literature on
Respondent’s bulletin board; that Respondent had a bulletin
board posting policy in the employee handbook at the time,
page 76 of Charging Party’s Exhibit 4; and that:

Moreover, there is evidence in the record that Respon-
dent enforced its posting policy on the parking garage bul-
letin boards before McGoun engaged in her posting. [Exh.
GC-4; Tr. 42.] On August 3, 2007, Pete Karavas received
a three (3) Point Reminder for placing a flyer in a parking
garage elevator. [Exh. GC-4; Tr. 42, 507, 513–514.] Thus,
McGoun was treated the same, if not better, as other em-
ployees who were observed posting literature on the park-
ing garage bulletin boards. [Emphasis in original, R. Br.
43.]

In reading this quoted portion of Respondent’s brief one
could conclude, as Respondent leads one to believe, that
McGoun fared better than Karavas since he, according to Re-
spondent’s brief, “received a three (3) Point Reminder for plac-
ing a flyer in a parking garage elevator” (Id.) and McGoun
received only a one (1) point reminder. The Respondent’s at-
torney who signed Respondent’s brief elicited the following
testimony from Thigpen:

Q. BY MR. BROWN: Ms. Thigpen, would you put Gen-
eral Counsel’s Exhibit 4 in front of you? Do you have that
in front of you?
A. Yes, sir.
Q. The first page of General Counsel’s Exhibit 4,
which involves Pete Karavas, do you see that?
A. Yes, I do.
Q. He had a three-point reminder for Employee Stan-
dards of Behavior.
A. That’s correct.
Q. In the second sentence, it says, “As you know, we
had a similar discussion back on with Human Resources.”
Were you involved in that discussion?
A. I do not recall.
Q. Well, let me as[k] you this. Do you know if Mr.
Karavas got a three-point reminder solely because he
posted a Union flyer?
A. He received it for posting the Union flyer, as well
as he had had previous corrective actions, which elevated
it to three points.
Q. What were the previous corrective actions, if you
know?
A. He had, and I don’t recall the specific dates, but
previous to this he had received a five-point corrective ac-
tion for making vulgar comments to a female coworker.
Q. Did he have any other corrective actions that you
can recall?
A. He did. He had an additional—sometime later, he
had an additional corrective action. I believe it was a one-
point corrective action for—he was upset that he had to at-
tend a required staff meeting. So when he came into the
staff meeting, and it was the OR, they didn’t have any
scrubs in his size and he had to dress appropriately to enter
the OR, so he showed up at the staff meeting in his under-
wear.
Q. Anything else?
NAPLES COMMUNITY HOSPITAL 1015
A. No.
MR. MECHANIC: Is there anything in writing about be-
ing inappropriate to show up at a staff meeting in under-
wear?
THE WITNESS: You need to be in appropriate dress
code, yes. [Tr. 567–569.]

As noted above, Respondent cited portions of the transcript.
Respondent did not cite pages 567–569. This testimony of
Thigpen is hard to overlook. This argument of Respondent is
disingenuous at best. Karavas’s discipline on August 3, 2007,
was the first time Respondent disciplined anyone for posting on
the cork bulletin board in the downtown garage elevator. As
noted above, non-NCH postings had taken place for about 10
years in the downtown garage elevators. The contradicted tes-
timony of some of Respondent’s witnesses that during that 10-
year period such postings were promptly removed is not cred-
ited. It was only after union literature was posted that Respon-
dent started disciplining employees, and Respondent has not
shown that it has ever disciplined an employee for any non-
NCH posting other than union flyers.
The “mistake” argument Respondent raises on brief with re-
spect to McGoun is treated above with reference to the earlier
discipline [pursuant to the complaint, prohibition in violation of
Section 8(a)(1)] of Cothran and Saltzer for posting union litera-
ture in a downtown garage elevator.72 HR was involved in both
of the garage elevator posting incidents covered by the com-
plaint herein (at lest once with Respondent’s lawyer and once
with the executive team). Respondent’s approach was not a
mistake in terms of what grounds were used. As noted above, to
buy into a mistake argument, one would have to believe that
Respondent mistakenly did not cite its bulletin board policy the
first time on August 3, 2007 (with Karavas), then it made the
mistake again on August 10, 2007 (with Kinsland), then it
made the mistake again in October 2007 (with Cothran and
Saltzer), and then it made the mistake again on November 2,
2007 (with McGoun). The only mistake was that Respondent
belatedly realized that it was relying on a portion of a solicita-
tion/distribution rule or policy that was unlawful.
With respect to the disciplining of McGoun for being out of
her work area, under Wright Line, supra, it is noted, as pointed
out by the General Counsel on brief, that McGoun was known
as a leading union adherent. McGoun wore a union organizing
committee badge so nurses would know that they could ask her
questions about the Union. Her director, Kling, testified that he
knew McGoun supported the Union in that “[s]he told me, [s]he
always wore purple, [s]he had purple Crocs, the purple lanyard,
the buttons, and she’s very open with me, very honest” (Tr.

72 Respondent did not argue “mistake” with respect to the reason for
disciplining Cothran and Saltzer. Respondent’s “mistake” argument
regarding the reason given for McGoun’s discipline for posting was
included in the Cothran and Saltzer part of this decision so as to avoid
repetition, to the extent possible in that logically if the argument ap-
plied to McGoun it could also be made regarding Cothran and Saltzer.
It appears that Respondent did not make this argument with respect to
Cothran and Saltzer because it realized it would be more difficult to sell
the argument if it happened twice. But actually Respondent did not rely
on its bulletin board policy even more than these two incidents.
831). McGoun was quoted (“‘this is the biggest disconnect I’ve
ever felt between us and management,’ said . . . McGoun, a
nurse for 30 years”) in an article about the union campaign in
the July 27, 2007 edition of the Naples Daily News. The wide
spread unlawful activity of the Respondent described in the
record herein demonstrates Respondent’s union animus. Four
days after she was quoted in the local newspaper McGoun was
disciplined. As found below, the only explanation for the ad-
verse action, the one given by Ringle when she disciplined
McGoun, was McGoun’s perceived union activity at the nurses’
station on 3 North on July 30, 2007. Since none of Respon-
dent’s witnesses testified that she or he overheard what was
said between McGoun and DeBillis, it appears that Preece was
relying on her knowledge of the fact that McGoun was an open
union supporter and McGoun was active in her support of the
Union. Counsel for the General Counsel has made a prima facie
case. The burden of going forward shifts to the Respondent.
Has Respondent demonstrated that it would have taken the
same action absent McGoun’s union activity? In my opinion,
Respondent has not. Respondent claims that McGoun was dis-
ciplined for being out of her work area. Respondent, however,
was unable to show that it had ever disciplined an RN for being
out of her or his work area. McGoun was 20 feet from her work
area. McGoun’s Director testified that McGoun is an honest
individual. No one disputed McGoun’s testimony that being
outside her assigned unit talking to a fellow nurse happens
frequently. Gutierrez, who reported McGoun’s presence on 3
North to Preece, testified that McGoun did not violate any hos-
pital rule. Other than speaking to Preece, Ringle did not con-
duct an investigation. The discipline was issued allegedly for
two instances of McGoun being on 3 North, out of her work
area. Ringle testified that she was relying solely on Preece, and
Ringle had no idea what the specifics of the alleged July 25,
2007 instance were. Notwithstanding this, Preece, who testified
at the trial herein, did not even attempt to explain what alleg-
edly happened on July 25, 2007.73 Consequently, Respondent
has not shown that it had a business justification for one of the
two instances it allegedly relied on. With respect to the other
incident, Ringle told McGoun that she was observed talking
about the Union at the nurses’ station on 3 North. McGoun is a
credible witness. I credit her testimony. Ringle, who testified
well after McGoun, did not deny this until all of her question-
ing was through and she was asked by me if she told McGoun
this. I did not find Ringle to be a credible witness on this
point.74 Her denial is not credited. Thigpen’s initial attempt to

73 As concluded above, Preece is not a credible witness. She limited,
as much as she believed she could, her role in the instance where off-
duty employees posted union literature in the employee lounge on 3
North. With respect to her role in the July 31, 2007 discipline Preece
was silent.
74 If Kling was present during this coaching, he did not corroborate
Ringle with respect to her denial that she told McGoun that she was
observed talking about the Union at the 3 North nurses’ station. Kling
did testify that the later discipline to McGoun for posting union litera-
ture on the cork bulletin board in the downtown garage elevator was
related so that the first could be taken into consideration in deciding to
give McGoun a one point written warning instead of a verbal warning
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1016
distance herself from any role in this counseling—asserting that
she was not involved in McGoun’s coaching form—only to
have Ringle testify that Thigpen reviewed McGoun’s coaching
form before she, Ringle, issued it to McGoun, not only serves
to undermine the credibility of Thigpen but it raises questions
regarding why HR became involved and why Thigpen wanted
to try to hide this fact. According to Thigpen’s testimony, it is
unusual for her to become involved in a coaching. So HR gets
involved, there is no investigation, no one other than allegedly
Preece has the slightest clue what the alleged July 25, 2007
incident is about, there is no indication that Thigpen communi-
cated with Preece, and McGoun is disciplined. On this record,
Respondent cannot argue that McGoun was disciplined for
what allegedly happened in July 25, 2007. And with respect to
the July 30, 2007, the only explanation is McGoun’s perceived
union activity. Respondent has not shown a business justifica-
tion for McGoun’s July 31, 2007 discipline (coaching). Re-
spondent has not shown that absent McGoun’s perceived union
activity she would have been disciplined.
Regarding the disciplining of McGoun for posting union lit-
erature in the downtown garage elevator, as pointed out by a
majority of the Board in Register Guard, 351 NLRB 1110,
1120 (2007), a Wright Line analysis is not appropriate where
the conduct for which the employer claims to have disciplined
the employee was union of other protected activity. Respon-
dent’s “mistake” argument is treated above. HR, with the assis-
tance of the executive team and one of its lawyers, chose to rely
on an unlawful solicitation policy when, after personal posting
had been going on in the garage elevators for approximately10
years, it started to discipline employees for posting in the ga-
rage elevators because the employees were posting union litera-
ture. The reasons are specified above for why it was unlawful
for Respondent to either prohibit Cothran and Saltzer from
posting union flyers in the downtown garage elevators in Octo-
ber 2007 or discipline McGoun for posting a union flyer in a
downtown garage elevator on October 29, 2007. Respondent
violated the Act as alleged in paragraphs 12 and 15 of the com-
plaint.
Paragraphs 13(a) and (b) of the complaint collectively allege
in or about late November 2007 through in or about mid-
January 2008, Respondent changed the working conditions of
its employee Mary Villani by failing to assign her charge nurse
duties as it had done previously because she assisted the Union
and engaged in concerted activities and to discourage employ-
ees from engaging in these activities.
Counsel for the General Counsel on brief contends that Vil-
lani was the most outspoken and perceived leader in the orga-
nizing campaign; that there is sufficient evidence that Respon-
dent was aware of it; that the massive antiunion campaign Re-
spondent mounted, including Here are the Facts, communica-
tions, its implementing and enforcing new rules to deprive em-
ployees of their right to communicate with fellow employees,
its unlawful enforcement of its overly broad rules, and the
unlawful surveillance are sufficient to establish antiunion ani-
mus; that Villani’s charge assignments were reduced; that Re-

or coaching. It appears that Kling was conceding that the July 31, 2007
discipline or coaching was also for union activity.
spondent has provided insufficient evidence to dispute Villani’s
testimony; that Respondent did not provide any evidence that
can establish what the SICU initial day shift charge assign-
ments were; that McCloskey’s testimony that he relinquished
all responsibility for making SICU day charge nurse assign-
ments to the SICU night charge nurse should not be credited
since it is not corroborated by the other night clinical coordina-
tor, Alteen, in that when she is working when McCloskey is not
there she makes the SICU day charge nurse assignment; that
Respondent is taking the position that McCloskey does not
know anything about SICU day charge nurse assignments and
he does not want to know anything about it; and that Respon-
dent violated Section 8(a)(3) between November 2007 and
January 2008 by failing to assign Villani charge nurse duties as
frequently as it had before because of her prominent role in the
union campaign and to discourage others from engaging in
these activities.
The Charging Party on brief argues that Villani’s testimony
about the decrease in her charge assignments is credible, un-
contested, and corroborated by payroll records submitted by
Respondent; that the pay and scheduling records introduced by
Respondent only show how many hours Villani worked as
charge and not what was originally assigned; that as Villani’s
charge assignments decreased, the charge assignments of Ras-
mussen, who did not like to serve as charge but would do so if
she was assigned, increased; that the General Counsel has es-
tablished a prima facie case under Wright Line, supra, in that
there is undisputed evidence of Villani’s protected activity and
NCH’s knowledge thereof, and there is ample evidence of
NCH’s union animus; that in mid-November Villani was fea-
tured alone in the sole photo and quotation on a piece of litera-
ture that was mailed to nurses and distributed in the hospital,
which challenged NCH’s priorities and questioned its financial
decisions (GC Exh. 17(e)); that the decrease in Villani’s charge
assignments limited her access to nurses on other units and
prevented her from providing a prounion counterpoint to the
Burke Group’s antiunion message; that in mid-January 2008
Villani spoke at a press conference and publicly accused NCH
of changing her assignments because of her support of the un-
ion; that shortly after that Villani was assigned to work four
shifts in a row as charge; that NCH has failed to rebut the Gen-
eral Counsel’s prima facie case because it has not established a
legitimate cause for the decrease in Villani’s charge assign-
ments; that while both clinical coordinators in SCIU’s night
shift denied that Villani was discriminated against because of
union activity, they did not provide any legitimate justifica-
tion—or any reason whatsoever—for the significant drop in
Villani’s charge assignments; and that NCH presented no wit-
nesses who work as charge nurses on SICU’s night shift to
explain the reasons for assignments or verify McCloskey claim
that he has no say in assigning the SICU day-shift charge nurse,
which differs somewhat from the testimony of Alteen and
Ringle regarding the role of clinical coordinators in assigning
charge.
Respondent on brief contends that the General Counsel has
not met her initial burden under Wright Line, supra, in two
respects; that General Counsel failed to establish an adverse
employment action in that she did not prove that Villani’s
NAPLES COMMUNITY HOSPITAL 1017
charge nurse assignments were reduced during the period in
question; that Villani offered no documentary evidence in sup-
port of her testimony even though charge nurse time and extra
pay is indicated on employees’ pay stubs; that a detailed review
of Respondent’s Exhibit 9 reveals that Villani actually worked
a higher percentage of shifts as charge nurse from November
11, 2007, through February 2, 2008, than she did for the period
of time before November 11, 2007; and that:

Aside from the failure to establish an adverse em-
ployment action, Counsel for General Counsel’s evidence
failed to establish a casual [sic] nexus between the Vil-
lani’s protected activity and her charge nurse assignments.
See Shearer’s Foods, Inc., 343 [sic] NLRB 1093, 1094 fn.
4 (2003). This is because Villani’s charge nurse assign-
ments were not made by Respondent’s managers or super-
visors. Instead, Villani’s charge nurse assignments were
based solely upon the decision of the night SICU charge
nurse who is not a member of management or a supervi-
sor. [Tr. 981.] In these circumstances, there is no casual
[sic] nexus sufficient to conclude that Villani’s protected
activity was a motivating factor in her charge nurse as-
signments. Shearer, [sic] supra. [R. Br. 37.]

Respondent’s calculations do not take into consideration the
fact that when Villani was asked to be a preceptor training in-
terns, she was not available to be charge. The director of critical
care at Respondent’s downtown hospital, Kling, testified that
Villani, who has 27 years of experience, is excellent in terms of
capability and skills, and he has assigned Villani to work as a
preceptor (PREC). Additionally, when Villani is floated out
(FO) of her regular unit, SICU, and assigned to other units, as
need dictates, she is not available to be charge in SICU. If those
are also excluded from consideration as to when Villani could
have been charge in SCIU, the situation would be viewed in
terms of how often was Villani the charge nurse in SICU when
she was available to be charge nurse (UTL for unit team
leader/charge) in SICU. Viewed in those terms, Respondent’s
Exhibit 9 shows that (a) in July 2007 Villani was at work 12
times, she was FO 11 of those times, she was available to be
UTL 1 time, she was UTL that 1 time, and so she was UTL for
100 percent of the time she was available to be UTL; (b) in
August 2007 Villani was at work 15 times, she was PREC 5
times, she was FO 3 times, she was UTL 7 times, and so she
was UTL 100 percent of the time she was available to be UTL;
(c) in September 2007 Villani was at work 13 times, she was
PREC 3 times, she was FO 1 time, she was UTL 9 times, and
so she was UTL 100 percent of the time she was available to be
UTL; (d) in October 2007 Villani was at work 13 times, she
was PREC 1 time, she was FO 3 times, she did not work a full
shift 3 times, she was UTL 4 times, and so she was UTL 4 of
the 6 times she was available to be UTL for a percentage of
about 66; (e) in November 2007 Villani was at work 13 times,
she was FO 1 time, she was UTL 6 times, and so she was UTL
50 percent of the time she was available to be UTL; (f) in De-
cember 2007 Villani was at work 12 times, she was UTL 4
times, and so she was UTL 33 percent of the time she was
available to be UTL; and (g) in January 2008 Villani was at
work 13 times, she was FO 2 times, she was UTL 5 times, and
so she was UTL about 45 percent of the time she was available
to be UTL. Villani’s working conditions changed; the number
of times she worked as charge was reduced during the period in
question.
The Board indicated in Blue Diamond Growers, 353 NLRB
50 (2008), as follows:

Under Wright Line, the General Counsel bears the burden of
showing that protected conduct was a substantial or motivat-
ing factor in the adverse employment action. The elements re-
quired to support such a showing are union or other protected
activity by the employee, employer knowledge of that activ-
ity, and antiunion animus on the part of the employer. Inter-
met Stevensville, 350 NLRB [1350, 1358] (2007). If the Gen-
eral Counsel makes the required initial showing, the burden
then shifts to the employer to show, as an affirmative defense,
that it would have taken the same action even in the absence
of the employee’s union activity. See Manno Electric, 321
NLRB 278, 280 fn. 12 (1996). Chairman Schaumber observes
that the Board and the circuit courts of appeals have variously
described the evidentiary elements of the General Counsel’s
initial burden of proof under Wright Line sometimes adding as
an independent fourth element the necessity for there to be a
causal nexus between the union animus and the adverse em-
ployment action. See, e.g., American Gardens Management
Co., 338 NLRB 644, 645 (2002). As stated in Shearer’s
Foods, 340 NLRB 1093, 1094 fn. 4 (2003), since Wright Line
is a causation standard, Chairman Schaumber agrees with this
addition to the formulation. [Emphasis added.]

RN Villani, who has worked for Respondent for 27 years
with 19 years in the downtown SICU, is a member of the union
organizing committee, she had at least three press conferences,
got union cards signed, passed out union literature at Respon-
dent’s facility, wore a lot of purple, wrote letters to the editor
which were published in the Naples Daily News, had her name
mentioned in other peoples’ letters to the editor which were
published in the Naples Daily News, was quoted in an August
3, 2007 article in the Naples Daily News, told Preece not to
take union literature down on August 17, 2007, when she and
others took pizza to employee lounges when they were off duty,
handed out cake and union literature on September 25, 2007, in
the downtown cafeteria, and handed out treats and flyers on
October 31, 2007, in the downtown cafeteria. As noted above,
the last two activities resulted in Respondent’s director of pub-
lic safety coming to the cafeteria and speaking to her group,
prohibiting the passing out of the cake the first time and having
her group leave the second time. Also by flyer dated
“11.13.07,” which flyer had just her picture with her name on it
(in addition to the letterhead of the Union), Respondent’s ex-
ecutive compensation and financial priorities were challenged.
In part, the flyer indicates:

CEO compensation at NCH has been more than double
the national average.
Former CEO Ed Morton’s $3.3 million total compen-
sation for 2005—2006 was more than double the average
hospital CEO’s compensation.
. . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1018
CHART: NCH CEO’s compensation went up 248 per-
cent from 2003 to 2006. NCH president’s compensation
went up 102 percent, up to $831,882 in 2006.
Many of us believe that NCH could do more to staff
units and recruit and retain RNs.
In fact, from 2005 to 2006, the share of NCH’s budget
devoted to staff pay and benefits actually went down.
. . . . [GC Exh. 17(e).]

Respondent’s human resources’ director, Thigpen, conceded
that Villani was an outspoken union advocate. As indicated
above, the wide spread conduct on the part of Respondent
found unlawful in this decision supplies the antiunion animus.
Villani suffered an adverse employment action in that the num-
ber of times she worked as a charge was reduced resulting in a
reduction of her pay. Counsel for the General Counsel has
made a prima facie case.
The burden of going forward has shifted to Respondent. Re-
spondent has not met that burden. Respondent has not shown
that the same action would have been taken absent Villani’s
union activity. Respondent has not shown that it had a business
justification for its actions with respect to Villani. Other clinical
coordinators, including a critical care, which includes SICU,
night-shift clinical coordinator, Alteen, testified that the clinical
coordinator designates who will be the charge nurse for the
next day shift. Alteen testified that she and the night charge
nurse collaborate. At least two of Respondent’s other witnesses
tried to get out from under testifying about an unlawful situa-
tion by pleading ignorance. Thigpen initially testified that she
did not play a role in McGoun’s July 31, 2007 coaching. An-
other of Respondent’s witnesses, Ringle—who is the day-shift
clinical coordinator of critical care, testified that Thigpen was
involved and Thigpen actually reviewed McGoun’s coaching
form before it was issued to McGoun.75 Also, Thigpen’s initial
assertion was belied by documentary evidence. Human Re-
sources Director Thigpen lied under oath. Nursing Director
Preece, who initiated the McGoun coaching but did not testify
specifically about it, for the most part claimed ignorance about
what happened on August 17, 2007, on 3 North when three off-
duty nurses, including Villani, dropped off pizza, spoke with
nurses in the employee lounge, posted union literature in the 3
North employee lounge, and were unlawfully told to leave.
Preece would only admit that she recognized the voice of Vil-
lani who said, “[D]on’t take anything down.” (Tr. 696.) Preece
claimed that she did not know what Villani was talking about
and she did not even know who Villani was talking to since
Villani was not facing her. Nursing Director Preece lied under
oath. Night-Sshift Critical Care Clinical Coordinator
McCloskey, who took over this position on July 4, 2007, and
who works when Alteen is off, claims ignorance about what
factors were taken into consideration in designating the day-
shift charge nurse in SICU during the involved period, notwith-

75 As noted above, I did not credit certain of Ringle’s testimony. On
this note, Chief Judge Learned Hand indicated in NLRB v. Universal
Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950) “[i]t is no reason for
refusing to accept everything that a witness says because you do not
believe all of it; nothing is more common in all kinds of judicial deci-
sions than to believe some and not all.”
standing the fact that it is his responsibility to designate the
day-shift charge nurse in SICU. McCloskey claims that he does
not make the designation “[s]o I don’t know what they use.”
(Tr. 986.) McCloskey claims that the night charge nurse desig-
nates who will be the charge on the following day shift and he
puts “CHG” next to that name and posts the list next to the time
clock. Who are the night-shift charge nurses who allegedly
make the choice? McCloskey testified that some of the night
charge nurses who make this decision are Nass Kinsland, Mi-
chelle Behrendt, and Janie Largent who are some of the names
that he worked with in the last couple of weeks before the trial
herein that he could remember but it could be anyone that was
working that night. Respondent did not specifically identify the
night shift charge nurses on SICU who allegedly made the de-
cision during the time involved. Respondent did not call those
nurses to corroborate McCloskey. So McCloskey, a supervisor,
claims that he ceded his designation responsibility to employ-
ees, and he has no idea what the employees took into considera-
tion in exercising McCloskey’s responsibility. Also, while
McCloskey concedes that he is the person who wrote “CHG”
on the Post-its, he could not on cross-examination give the
approximate number of times prior to November 28, 2007, he
designated Villani as charge on a Post-it, “[b]ecause I have no
idea, I don’t know.” (Tr. 982.) When he was asked if he as-
signed Villani at least once a week, McCloskey testified, “I
cannot answer that. I don’t know.” (Tr. 984.) When asked if
there was any effort to try to balance day-shift charge nurse
work assignments, McCloskey testified, “I can’t speak to what
the charge nurse uses to make her decision or his decision” (Tr.
985.) When McCloskey was asked if the Post-its were retained,
he testified, “[n]o, not that I’m aware of” (Ibid) and “[t]he only
place that record is written down in my handwriting is on a
Post-it Note that is not retained.” (Ibid.) And when McCloskey
was asked whether the day-shift nurses’ preferences to be
charge were taken into consideration in assigning charge,
McCloskey testified, “[a]gain I don’t know what the night-shift
charge nurse uses to make his or her decision. I don’t make the
designation. They do. So I don’t know what they use.” (Id. at
986.) I did not find McCloskey to be a credible witness. His
demeanor was that of a person who was not interested in sup-
plying even the essentials necessary to determine whether his
testimony was credible. Other clinical coordinators discuss the
charge assignments with a charge on the other shift. Respon-
dent did not show that any other clinical coordinator in either of
its hospitals lets an employee make the charge assignment deci-
sions and the clinical coordinator has no idea what is going on.
As indicated by Chief Judge Learned Hand in Dyer v. Mac-
Dougall, 201 F.2d 265, 269 (2d Cir. 1952) “. . . the denial of
one, who has a motive to deny, may be uttered with such . . .
arrogance or defiance, as to give assurance that he is fabricat-
ing, and that, if he is, there is no alternative but to assume the
truth of what he denies.” McCloskey testified that he wrote
“CHG” next to the SICU day-shift nurses name on the Post-it.
Yet he was unwilling to approximate the number of times he
did this next to Villani’s name during specified periods or
whether, in effect, there was a balance with respect to the num-
ber of times he wrote “CHG” next to a nurse’s name. He, like
Thigpen and Preece, pled ignorance. But here, if McCloskey
NAPLES COMMUNITY HOSPITAL 1019
was telling the truth, Respondent could have called the employ-
ees to corroborate his testimony and explain why Villani’s
charge assignments were reduced during the period involved.
Respondent chose not to call the employees. I am not discredit-
ing McCloskey’s testimony because it was not corroborated.
There is no requirement that testimony be corroborated to be
credible. Marchese Metal Industries, 302 NLRB 565, 570
(1991). I do not find McCloskey to be a credible witness based
on his testimony and demeanor. Corroboration comes into play
here only with respect to Respondent in that it had this addi-
tional avenue it could have used in its attempt to meet its bur-
den and, it chose not to take it. Respondent has not met its bur-
den. It has not shown that absent Villani’s union activity, the
same thing would have occurred. Respondent violated the Act
as alleged in paragraphs 13 and 15 of the 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. By engaging in the following conduct Respondent com-
mitted unfair labor practices contrary to the provisions of Sec-
tion 8(a)(1) of the Act:
(a) Creating the impression that employees’ union and other
protected, concerted activities were under surveillance.
(b) Prohibiting employees from posting or having union lit-
erature in the employee break/kitchen area.
(c) Telling employees that they were not permitted to engage
in union and other protected, concerted activities in nonwork,
non-patient care areas.
(d) Prohibiting employees, in the parking garage at Respon-
dent’s facility, from distributing union literature in a nonwork,
nonpatient care area.
(e) Prohibiting employees from posting union literature in
nonwork, nonpatient care areas where other nonunion literature
and materials were posted.
(f) Soliciting employee complaints and grievances and im-
pliedly promised to remedy them if employees refrained from
engaging in union organizing activity.
(g) Telling employees that they were not permitted to engage
in union and other protected, concerted activities unless they
received prior permission and approval from the Employer.
(h) Maintaining in its employee handbook and enforcing the
following policies and rules regarding solicitation, distribution,
and posting of written or printed materials:

D. . . . Employees who wish to solicit for community charita-
ble organizations must request permission on the “Solicitation
Approval Form.” The request will be evaluated on its merits
and will either be approved or denied by the Chief Human
Resources Officer or designee. Requests to solicit for personal
profit, political causes or organizations representing any pro-
tected or nonprotected groups will routinely be denied.

4. By engaging in the following conduct Respondent com-
mitted unfair labor practices contrary to the provisions of Sec-
tion 8(a)(1) and (3) of the Act:
(a) Issuing to its employee Sandi McGoun a verbal discipline
and a written discipline because she assisted the Union and
engaged in concerted activities, and to discourage employees
from engaging in these activities.
(b) Changing the working conditions of its employee Mary
Villani by failing to assign her charge nurse duties as it had
done previously because she assisted the Union and engaged in
concerted activities and to discourage employees from engag-
ing in these activities.
5. The above-described labor practices affect commerce with
the contemplation of Section 2(6) and (7) 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.
The Respondent having discriminatorily changed the work-
ing conditions of its employee Mary Villani by failing to assign
her charge nurse duties as it had done previously shall make her
whole, with interest, for any loss of earnings and other bene-
fits.76
[Recommended Order omitted from publication.]

76 On brief, counsel for the General Counsel indicates that interest on
the monetary award should be compounded on a quarterly basis. This is
not the current Board practice. Unless and until the Board changes its
practice, the current Board practice will be applied.
On brief, the Charging Party requests remedies in addition to the
normal remedies. No need has been shown for granting this request.