NORTH MEMORIAL HEALTH CARE

National Labor Relations Board - Board Decisions

Aug 2, 2016

364 NLRB No. 61 (N.L.R.B. 2016)

364 NLRB No. 61
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
North Memorial Health Care and SEIU Healthcare
Minnesota
North Memorial Health Care and Minnesota Nurses
Association. Cases 18–CA–132107, 18–CA–
133944, 18–CA–135228, and 18–CA–132818
August 2, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On September 3, 2015, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed a responsive letter.
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, brief, and responsive letter and
has decided to affirm the judge’s rulings, findings,1 and

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.
No exceptions were filed to the judge’s decision not to defer the
complaint allegations for resolution through the parties’ grievance and
arbitration process. Further, in the absence of exceptions, we adopt the
judge’s dismissal of the allegations that the Respondent violated Sec.
8(a)(1) when it threatened to file unfair labor practice charges against
union representatives, violated Sec. 8(a)(1) and Sec. 8(a)(5) when it
prohibited nonemployee union representatives from accessing locked
employee break rooms on patient care units, and violated Sec. 8(a)(5)
and (1) by implementing the following unilateral changes: prohibiting a
nonemployee union representative from accessing a bulletin board in a
locked employee break room and prohibiting bargaining unit employee
Melvin Anderson from posting union information on a bulletin board in
the department where he worked. As discussed below, however, we
agree with the judge that this last prohibition violated Sec. 8(a)(1).
In finding that the Respondent violated Sec. 8(a)(1) when it prohib-
ited Anderson from posting union information on the department bulle-
tin board, we rely on the judge’s finding that the Respondent’s action
constituted unlawful discrimination. The Respondent prohibited An-
derson from posting flyers regarding the union-sponsored picketing, but
permitted him to post flyers regarding a union promotion at a zoo on
the same bulletin board. The Respondent’s restriction was thus based
on the content of the Union’s message—which here also involved
protected Sec. 7 activity—and not pursuant to a neutral policy. We do
not rely on the judge’s alternative finding that the prohibition was “pre-
sumptively unlawful.”
In deciding the issues before us, we do not rely on the judge’s cita-
tion to NeilMed Products, 358 NLRB 47 (2012). See NLRB v. Noel
Canning, 134 S.Ct. 2550 (2014).
conclusions and to adopt the recommended Order as
modified and set forth in full below.2
AMENDED REMEDY
Because of the public nature of the Respondent’s un-
fair labor practices, the timing of the violations around
the Unions’ planned picketing, and the involvement of
upper management, we find that a further remedy is ap-
propriate in addition to those ordered by the judge. See,
e.g., Carey Salt Co., 360 NLRB No. 38, slip op. at 2
(2014); HTH Corp., 356 NLRB 1397, 1404 (2011), enfd.
693 F.3d 1051 (9th Cir. 2012); Homer D. Bronson Co.,
349 NLRB 512, 515 (2007), enfd. mem. 273 Fed. Appx.
32 (2d Cir. 2008). To dissipate as much as possible any
lingering effect of the Respondent’s serious and wide-
spread unfair labor practices and enable employees to
exercise their Section 7 rights free of coercion, we will
require that the remedial notice be read aloud to the Re-
spondent’s employees by a responsible management of-
ficial of the Respondent, and in the presence of a Board
agent and an agent of the Union if the Region or the Un-
ion so desires, or at the Respondent’s option, by a Board
agent in the presence of a responsible management offi-
cial and, if the Union so desires, of an agent of the Un-
ion.3 See, e.g., 1621 Route 22 West Operating Co., LLC
d/b/a Somerset Valley Rehabilitation & Nursing Center,
364 NLRB No. 43, slip op. at 5 (2016); Texas Super
Foods, 303 NLRB 209, 220 (1991).4
ORDER
The National Labor Relations Board orders that the
Respondent, North Memorial Health Care, Robbinsdale,
Minnesota, its officers, agents, successors, and assigns,
shall
1. Cease and desist from

2 We shall also modify the judge’s recommended Order to conform
to the violations found, to our amended remedy, and to the Board’s
standard remedial language. We shall substitute a new notice to con-
form to the Order as modified and in accordance with our decision in
Durham School Services, 360 NLRB No. 85 (2014).
3 Although the General Counsel did not except to the judge’s denial
of his request for a similar remedy, his failure to do so does not pre-
clude our imposing such a remedy. The Board has broad discretionary
authority under Sec. 10(c) to fashion appropriate remedies that will best
effectuate the policies of the Act. NLRB v. J. H. Rutter-Rex Mfg. Co.,
396 U.S. 258, 262–263 (1969). It is well established that remedial
matters are traditionally within the Board’s province and may be ad-
dressed by the Board even in the absence of exceptions. See, e.g.,
Fieldcrest Cannon, Inc., 318 NLRB 470, 473 fn. 6 (1995), enfd. in
relevant part 97 F.3d 65 (4th Cir. 1996); Schnadig Corp., 265 NLRB
147, 147 (1982).
4 We have also modified the judge’s recommended tax compensa-
tion and Social Security reporting remedy in accordance with our deci-
sion in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(a) Prohibiting nonemployee representatives of the
SEIU and/or the MNA from having nondisruptive union-
related conversations at the Robbinsdale, Minnesota fa-
cility (the facility) in areas that are open to the general
public.
(b) Physically interfering with the ability of nonem-
ployee representatives of the SEIU and/or the MNA to
meet with, and talk to, employees at the facility in areas
that are open to the general public.
(c) Surveilling the conversations that nonemployee
representatives of the SEIU and/or the MNA have with
employees at the facility.
(d) Ejecting nonemployee representatives of the SEIU
and/or the MNA from the facility, banning such individ-
uals from the facility, and/or threatening to have such
individuals arrested because they engage in
nondisruptive union-related conversations at the facility
in areas that are open to the general public.
(e) Prohibiting employees in the sterile processing de-
partment at the facility from posting union information
on the bulletin board in that department.
(f) Coercively interrogating employees about their un-
ion activities and/or threatening that such activities have
been placed under surveillance.
(g) Prohibiting off-duty employees and/or nonemploy-
ee union representatives from wearing shirts with union
insignias while in locations at the facility that are not
immediate patient care areas.
(h) Changing the terms and conditions of employment
of its unit employees represented by the SEIU and/or the
MNA without first notifying SEIU and/or MNA and giv-
ing SEIU and/or MNA an opportunity to bargain.
(i) Unilaterally imposing restrictions on the activities
of nonemployee representatives of the SEIU and/or the
MNA in areas at the facility that are open to the general
public.
(j) Ejecting and/or banning nonemployee representa-
tives of the SEIU and/or the MNA from the facility for
violating unlawfully imposed restrictions on union activi-
ty.
(k) Discharging or otherwise discriminating against
employees for supporting the SEIU or any other labor
organization.
(l) 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 the restrictions unlawfully imposed on the
union activities of nonemployee union representatives.
(b) Rescind the restrictions unlawfully imposed on
employees’ posting of union information on the bulletin
board in the sterile processing department.
(c) Rescind the restriction unlawfully placed on the
wearing of shirts with union insignias in locations at the
facility that are not immediate patient care areas.
(d) Rescind the trespass notices/warnings issued to
SEIU representative Frederick Anthony and MNA repre-
sentative Karlton Scott, and notify them that this has
been done.
(e) Within 14 days from the date of this Order, offer
Melvin Anderson full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(f) Make Melvin Anderson whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(g) Compensate Melvin Anderson for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 18,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year.
(h) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Melvin Anderson, and within 3 days thereafter, notify
Anderson in writing that this has been done and that the
discharge will not be used against him in any way.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(j) Within 14 days after service by the Region, post at
its Robbinsdale, Minnesota facility copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 18,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
NORTH MEMORIAL HEALTH CARE 3
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If 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 current em-
ployees and former employees employed by the Re-
spondent at any time since June 23, 2014.
(k) Within 14 days after service by the Region, hold a
meeting or meetings during working hours, which shall
be scheduled to ensure the widest possible attendance of
unit employees, at which time the attached notice is to be
read to employees by a responsible management official,
in the presence of a Board agent and an agent of the Un-
ion, if the Region or the Union so desires, or, at the Re-
spondent’s option, by a Board agent in the presence of a
responsible management official and, if the Union so
desires, of an agent of the Union.
(l) Within 21 days after service by the Region, file
with the Regional Director for Region 18 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 2, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 prohibit nonemployee representatives of
SEIU Healthcare Minnesota (SEIU) and/or Minnesota
Nurses Association (MNA) from having nondisruptive
union-related conversations at the Robbinsdale, Minne-
sota facility (the facility) in areas that are open to the
general public.
WE WILL NOT physically interfere with the ability of
nonemployee representatives of the SEIU and/or the
MNA to meet with, and talk to, you at the facility in are-
as that are open to the general public.
WE WILL NOT surveil the conversations that nonem-
ployee representatives of the SEIU and/or the MNA have
with you at the facility.
WE WILL NOT eject nonemployee representatives of the
SEIU and/or the MNA from the facility, ban such indi-
viduals from the facility, and/or threaten to have such
individuals arrested because they engage in
nondisruptive union-related conversations in areas at the
facility that are open to the general public.
WE WILL NOT prohibit employees in the sterile pro-
cessing department at the facility from posting union
information on the bulletin board in that department.
WE WILL NOT coercively interrogate you about your
union activities and/or threaten that we have placed such
activities under surveillance.
WE WILL NOT prohibit off-duty employees and/or
nonemployee union representatives from wearing shirts
with union insignias while in locations at the facility that
are not immediate patient care areas.
WE WILL NOT change the terms and conditions of em-
ployment of unit employees represented by the SEIU
and/or the MNA without first notifying SEIU and/or
MNA and giving SEIU and/or MNA an opportunity to
bargain.
WE WILL NOT unilaterally impose restrictions on the
activities of nonemployee representatives of the SEIU
and/or the MNA in areas at the facility that are open to
the general public.
WE WILL NOT eject and/or ban nonemployee represent-
atives of the SEIU and/or the MNA from the facility for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
violating unlawfully imposed restrictions on union activi-
ty.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the SEIU or any other
labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the restrictions unlawfully imposed
on the union activities of nonemployee union representa-
tives.
WE WILL rescind the restrictions unlawfully imposed
on employees’ posting of union information on the bulle-
tin board in the sterile processing department.
WE WILL rescind the restriction unlawfully placed on
the wearing of shirts with union insignias in locations at
the facility that are not immediate patient care areas.
WE WILL rescind the trespass notices/warnings issued
to SEIU representative Frederick Anthony and MNA
representative Karlton Scott and notify them that this has
been done.
WE WILL, within 14 days from the date of the Board’s
Order, offer Melvin Anderson full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Melvin Anderson whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL compensate Melvin Anderson for the adverse
tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 18, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Melvin Anderson, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
WE WILL hold a meeting or meetings during working
hours and have this notice read to you and your fellow
employees by a responsible management official, in the
presence of a Board agent and an agent of the Union, if
the Region or the Union so desires, or by a Board agent
in the presence of a responsible management official and,
if the Union so desires, of an agent of the Union.
NORTH MEMORIAL HEALTH CARE
The Board’s decision can be found at
www.nlrb.gov/case/18–CA–132107 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Florence I. Brammer, Esq. and Abby E. Schneider, Esq., for the
General Counsel.
John C. Hauge, Esq. and Thomas R. Trachsel, Esq. (Felhaber,
Larson, Fenlon & Vogt, P.A.), of Minneapolis, Minnesota,
for the Respondent.
Justin D. Cummins, Esq. (Cummins & Cummins), of Minneap-
olis, Minnesota, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. I heard these con-
solidated cases in Minneapolis, Minnesota, from February 2 to
5, 2015. The SEIU Healthcare Minnesota (the SEIU) filed the
charge in Case 18–CA–132107 on July 3, 2014, and an amend-
ed charge in that case on August 21, 2014. The SEIU filed the
charges in Cases 18–CA–133944 and 18–CA–135228 on Au-
gust 4, 2014, and August 22, 2014, respectively. On September
30, 2014, the SEIU filed the amended charge in Case 18–CA–
135228. The Minnesota Nurses Association (the MNA) filed
the charge in case 18–CA–132818 on July 15, 2014. The Re-
gional Director for Region 18 of the National Labor Relations
Board (the Board) issued the consolidated complaint and notice
of hearing on October 27, 2014.1
The complaint alleges that the Respondent, North Memorial
Health Care, unlawfully interfered with union activity and
made unlawful unilateral changes in practices in violation of
Section 8(a)(1) and Section 8(a)(5) and (1) of the National La-
bor Relations Act (the Act) when it limited the ability of the
SEIU and the MNA to access public and non-public areas of
the Respondent's hospital facility for union activities, including
activities relating to the Unions' joint informational picketing
near the facility on June 24, 2014. The complaint also alleges
that the Respondent violated Section 8(a)(3) and (1) by dis-
charging employee Melvin Anderson because of his union ac-
tivities. The Respondent denies that it committed any violation

1 Case 18–CA–133721, was originally part of the consolidated
complaint, but, on the Respondent's motion, was severed for deferral to
arbitration by the January 8, 2012, order of Deputy Chief Judge Arthur
Amchan.
NORTH MEMORIAL HEALTH CARE 5
of the Act, and contends that it was simply requiring the Unions
to engage in their activities in the manner provided for by the
relevant collective-bargaining agreements and consistent with
past practice, and that it terminated the Anderson for legitimate,
nondiscriminatory, reasons.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following findings of fact and conclu-
sions of law.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Minnesota non-profit corporation with an
office and place of business in Robbinsdale, Minnesota, oper-
ates an acute care hospital where it annually purchases and
receives goods and services valued in excess of $50,000 direct-
ly from suppliers located outside the State of Minnesota and
earns gross revenues in excess of $500,000. The Respondent
admits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the SEIU and the MNA are both labor organizations within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The relevant events in this case took place in and around the
Respondent's acute care hospital facility in Robbinsdale, Min-
nesota (the facility). The SEIU represents a bargaining unit of
about 800 service employees at the facility. This unit has been
in place for over 60 years. The SEIU also represents three
smaller units there: a pharmacist unit with about 30 members; a
licensed practical nurse (LPN) unit with about 20 members; and
a home health aide and home health clerical worker unit with
about 50 employees. The Respondent bargains with the SEIU
as part of a multiemployer group that includes seven other hos-
pitals. The second union involved in this case, the MNA, rep-
resents a unit of approximately 980 registered nurses employed
by the Respondent. During the relevant time period, collective
bargaining agreements were in effect for all of the SEIU and
MNA units.
Many of the allegations in this case concern the Respondent's
efforts to limit the Unions' activities inside the facility in late
June 2014 when the SEIU and the MNA joined forces to en-
gage in joint informational picketing outside the facility. Both
of these unions are large—the SEIU's contracts cover approxi-
mately 43,000 workers in Minnesota, and the MNA has approx-
imately 20,000 members in Minnesota, Iowa and Wisconsin.
The stated objective of their joint picketing, which brought
approximately 500 picketers to a public park adjacent to the
facility, was to highlight concerns that the Respondent had
compromised patient care by making changes to staffing levels.
The areas where the Respondent was particularly aggressive in
limiting union activities included the lobby and atrium inside
the main public entrance to the facility,2 the public cafeteria,

2 The waiting areas for the facility’s surgical, imagining, and heart
and vascular services departments are located one or two levels above
the main entrance lobby, but within sight and sound of that lobby.
employee break rooms, and a bulletin board in the sterile pro-
cessing and dispensing (SPD) department. To prevent union
activity in the these areas, the Respondent took steps that in-
cluded, but were not limited to, summoning local police to the
facility, banning two union representatives from the facility for
a 1-year period,3 stationing staff “greeters” at entrances who
were directed to require individuals who entered wearing union
shirts to either cease displaying the shirts or leave the facility,
having security officers and management personnel direct indi-
viduals to remove their union shirts or leave the facility, and
escorting union representatives to the security office and/or out
of the facility.
In its efforts to limit union activity at the facility in June
2014, the Respondent took the position that SEIU officials
could not engage in union activity in the cafeteria or other pub-
lic areas of the facility that employees frequented, but rather
were entitled to do so only in two areas that the Respondent had
“designated” for such purposes. One of the two areas designat-
ed by the Respondent for union activity was in the lower level
beneath the lobby, and the second was near an underground
tunnel to a parking facility. As compared to the main entryway,
cafeteria, and break rooms, these were out-of-the-way areas
where employees were not known to congregate. Neither des-
ignated area had doors that could be closed to provide privacy.
The Respondent did not consider the two designated areas to be
“public,” and provided no signage on the main floor directing
employees to them, but there were no security measures that
would prevent a random visitor to the hospital or staff that was
not in the bargaining unit from entering the designated areas.
The SEIU could also ask to reserve other areas of the facility
for particular events and the Respondent frequently agreed to
such requests. For its part, the MNA had the use of an enclosed
office on the lower level of the hospital.
The Respondent's agents also took the position that, although
there were numerous bulletin boards at the facility on which
information was posted for employees, the SEIU was only
permitted to post information for the service unit and the LPN
unit on a single bulletin board that the Respondent designated
for that purpose. This bulletin board was located in proximity
to the public cafeteria, but on a low-traffic hallway.4 In addi-
tion, the Respondent took the position that an employee in the
SPD unit could not post union information on the bulletin board
in that unit.
B. History Regarding Union Access to Facility
The record shows that for a number of years prior to the time
of the alleged violations, union representatives regularly visited
the public cafeteria and made themselves available there to unit

3 The Respondent's officials refer to banning individuals from the
facility under threat of arrest as “trespassing” those individuals. The
Respondent communicates the ban by issuing a written “Trespass
Warning” to the individual. The trespass warnings issued in this case
state that the named individual is to leave the Respondent's premises,
that the warning is to remain in effect for a period of a year, and that
failure to comply will result in arrest and prosecution under State law.
4 There is also a separate designated bulletin board in the pharmacy
department for the pharmacists unit, and one in the home health em-
ployees' department for the home health employees’ unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
employees who wanted to talk to them while on break. Jamie
Gulley (SEIU president), Linda Hamilton (MNA president),
Frederick Anthony (nonemployee SEIU organizer), Joseph
McMahon (non-employee MNA labor specialist) and Karlton
Scott (non-employee MNA labor specialist/organizer) all credi-
bly testified to this. McMahon and Scott visited the facility one
to three times every week to engage in such activities. Anthony
visited the facility every day or every other day and usually
went to the cafeteria. These gatherings in the cafeteria general-
ly involved employees who chose to approach the union repre-
sentatives—they were not meetings in the sense of involving
prearranged times for one or more union representatives to
make a presentation to an assembled group of unit members.
The non-employee representatives, like other visitors to the
facility, were not required to clear security, sign-in, or identify
themselves in order to enter the main lobby and public cafete-
ria.
The Respondent does not claim, and the record does not sug-
gest, that the activities of nonemployee representatives of either
the SEIU or the MNA in the cafeteria on June 23, June 24, and
August 21, 2014, were disorderly or disruptive to patients or
visitors. Although Jeffrey Cahoon, the Respondent's director of
employee and labor relations, and other Respondent officials
were aware of the SEIU’s activities in the cafeteria, the Re-
spondent generally did not interfere with those activities prior
to June 23, 2014. Indeed, when Cahoon saw non-employee
union representatives in the cafeteria during that earlier period
he would sometimes engage them in union business. The Re-
spondent did not have any rules generally prohibiting employ-
ees and visitors from discussing particular subjects in the cafe-
teria.
In two instances involving somewhat unique circumstances,
the Respondent did interfere with activity by SEIU representa-
tives in the cafeteria prior to June 2014. Neither of these is
alleged to be a violation in this litigation. One occurred on Sep-
tember 10, 2013, when Anthony tried to hold a scheduled stew-
ards' meeting—a larger, pre-arranged, group meeting of about
10 individuals—in the cafeteria after the Respondent cancelled
the reservation that Anthony had made for a private room at the
facility. George Wesman (Respondent's labor relations repre-
sentative) confronted Anthony about holding the meeting in the
cafeteria and ejected him from the facility. In a September 18
letter, the Respondent's attorney asserted that Anthony had
violated the collective bargaining agreement by attempting to
hold the stewards’ meeting in the cafeteria and warned “that
any future violations on this issue will result in the [Respond-
ent] taking appropriate action including having Mr. Anthony
removed from the [Respondent]'s property.” In the letter, the
Respondent took the position that under the contract, the SEIU
could only conduct union business in the two areas that the
Respondent had designated, unless the Respondent allowed it to
reserve another area.
On October 30, 2013, the Respondent and the Union met re-
garding issues raised by the September 10 incident, including
an unfair labor practices charge and a grievance filed by the
Union regarding the cancellation of the reservation for a private
room. Present for the Respondent were Cahoon, Wesman, and
attorney Thomas Trachsel.5 Present for the SEIU were James
Bialke (SEIU chief of staff) and Anthony. The Respondent's
representatives stated that the facility did not want group meet-
ings to take place in the cafeteria, and asserted that the SEIU
had to use the two areas that the Respondent had designated for
such purposes, or obtain the Respondent's approval to reserve
another area. Cahoon and Trachsel testified that the Respond-
ent informed the SEIU that management considered it accepta-
ble, however, for the Union’s non-employee representatives to
gather with unit members in the cafeteria when those gatherings
only included two or three individuals. Wesman testified that
there is no prohibition on union representatives talking to em-
ployees in the cafeteria about union matters, and that such in-
teractions only become a problem when, in the Respondent's
view, they rise to the level of a “meeting.”
Another pre-June 2014 instance in which the Respondent ob-
jected to activities by union representatives in the public cafete-
ria occurred on November 18, 2013. Gulley, who was at the
time running for president of the SEIU, had publicized that he
would be available in the cafeteria that day at a specific time to
discuss his candidacy with members who wished to meet with
him. In the cafeteria, Gulley sat at a table where he was ac-
companied by another candidate for union office and by An-
thony. At some point, Cahoon and Wesman confronted the
candidates, and Cahoon said he was “disappointed” that they
were having a union meeting in the cafeteria. Gulley responded
that they were not there on union business, but rather were
there on their personal vacation time and acting in their person-
al capacities regarding the upcoming election. Gulley stated
that he was only planning to be present in the cafeteria for an-
other 15 minutes and would appreciate being allowed to finish
what he was doing. Cahoon did not interfere further that day,
but later, in a November 25, 2013, letter to Bialke (SEIU chief
of staff), Cahoon asserted that Gulley and the others had been
carrying out union activity in the cafeteria in violation of the
collective bargaining agreement. He stated that the Respondent
had the “right to designate where in the facility union repre-
sentatives are—and are not—permitted to engage in permitted
activities.” Cahoon warned that unless the SEIU provided an
“explanation” for the November 18 activities, and unless the
Respondent was “satisfied” with that explanation, the Respond-
ent might take further action that would include “trespassing
union agents and barring them from further access, filing
charges with the NLRB, seeking enforcement of the collective
bargaining agreement, and/or pursuing other legal and equitable
relief.”
Bialke, in a January 24, 2014, correspondence to Cahoon
about this dispute, stated that Cahoon had evidenced a “total
failure to understand our rights to engage with our members,”
and that the SEIU had “nowhere . . . given up our rights under
the National Labor Relations Act to have access to public areas
and specifically the cafeteria.” He acknowledged that the Re-
spondent had repeatedly tried to “restrict this access,” but stated
that “we have not agreed to that.” The SEIU president, Jamie
Gulley, testified that the “designated areas” are two “non pub-

5 Attorney Trachsel is also trial counsel for the Respondent in this
litigation.
NORTH MEMORIAL HEALTH CARE 7
lic” areas where the Union can operate in addition to the cafete-
ria and other public areas at the facility—not to the exclusion of
the public areas.
The record does not show that, during the relevant time peri-
od, either the Respondent or the Unions ever gave notice or an
opportunity to bargain regarding proposed changes to the prac-
tices regarding union use of the cafeteria or other areas at the
facility that were open to the general public. Cahoon and
Wesman made conclusory statements to Anthony and other
SEIU officials asserting that the Union was only permitted to
engage in union activities in areas that the Respondent had
authorized for that purpose, but did not represent this as a pro-
posed change that the SEIU could bargain over.6 The Re-
spondent did not show that it has a generally applicable policy
or practice of prohibiting gatherings or solicitations in the cafe-
teria, or that it has ever interfered with a non-union-related
gathering of any size in the cafeteria. Nor has the Respondent
claimed that it has a generally applicable policy that limits the
topics that visitors are permitted to discuss in the cafeteria. In
addition, while the record shows the instances discussed above
when the Respondent attempted to limit use of the cafeteria by
non-employee SEIU representatives, the record does not show
that, prior to June 2014, it had ever taken action to limit use of
the cafeteria by nonemployee MNA representatives.
The evidence showed that in addition to meeting with em-
ployees in the public cafeteria, nonemployee representatives of
the Unions have, on a continuing basis since at least 2010,
regularly entered employee break rooms on patient care units to
update union information on bulletin boards and/or speak brief-
ly with unit members who were on break in those areas.
McMahon, Anthony, Scott, Gulley, Hamilton, and Anderson all
gave confident and credible testimony in this regard. McMahon
and Anthony both circulated through the hospital to update
bulletin board information on a regular basis and, prior to the
events of 2014, management did not interfere with these activi-
ties. The evidence showed that the doors to the employee break
rooms are generally kept locked, but could be opened by enter-
ing a combination. Often the nonemployee union representa-
tives gained access to the break rooms by identifying them-
selves to personnel at the nursing station or charge desk on the
unit and stating that they needed to update union information
on the bulletin boards. The individuals who provided assis-
tance to them were nurse managers, health unit coordinators or
bargaining unit employees. None of these persons notified
Cahoon that they were allowing nonemployee union representa-
tives to enter the break rooms. The Respondent had not, prior
to the time of the alleged violations, told the nonemployee un-
ion representatives either that they were prohibited from enter-
ing the break rooms or that they were permitted to do so. 7 In

6 See R. Exh. 13 (Aug. 29, 2008 letter from Cahoon to the SEIU), R.
Exh. 32 (March 30, 2009, memorandum from Wesman to SEIU), R.
Exh. 33 (July 9, 2009, letter from Wesman to the SEIU), R. Exh. 38
(Oct. 3, 2012, from Wesman to SEIU).
7 Cahoon and Wesman testified that it was not within the authority
of the health unit coordinators or nurse managers to decide to allow
nonemployee union representatives to access break rooms on patient
care floors. The Respondent did not identify any provision in the col-
lective bargaining agreement or other writing setting forth this limita-
order to reach these break rooms, the union representatives
would have to walk down hallways on which patient rooms
were located. The break rooms were small and generally each
had a table that could accommodate approximately eight indi-
viduals. Although the Respondent had not previously told An-
thony that he was prohibited from accessing the break rooms,
Wesman did, during a December 16, 2013, discussion about the
use of larger meeting rooms, tell Anthony that he could not use
certain meeting rooms because he was not permitted on patient
care floors.
Witnesses for the Respondent conceded that union infor-
mation was posted on the bulletin boards in the break rooms. A
number of the Respondent’s witnesses, including Cahoon, secu-
rity supervisor Edwin Markey, unit nurse manager Laurie
McQuilkin, also testified that they had never noticed, or been
informed about, nonemployee union representatives entering
employee break rooms on patient care units to make such post-
ings. I credit that testimony, but also conclude that it does re-
but the credible testimony of multiple union representatives
that—with the assistance of nurse managers, charge nurses, and
bargaining unit employees—they regularly accessed bulletin
boards in employee break rooms on patient care units. Alt-
hough union representatives engaged in these activities on at
least a monthly basis, the activity would not have taken long to
complete and it is plausible that the union representatives en-
gaged in the conduct that they described without being ob-
served by the Respondent's witnesses. Based on my assessment
of the credibility of the witnesses, and the record as a whole, I
conclude that this was the case here.
The first record evidence of conflict between the Respondent
and the SEIU regarding access to bulletin boards occurred in
February 2014 and concerned a bulletin board in a locked break
room on a cardiac intensive care unit known as “4 SW.” In
order to reach this break room an individual would have to
traverse the nurse’s station, an area that non-employees who
were visiting patients would not generally enter. Anthony told
Marlys Chesney, the nurse manager of the 4 SW unit,8 that the
SEIU had used a bulletin board on that unit in the past, but that
the bulletin board was removed during remodeling and was not
replaced. Chesney agreed to replace the bulletin board and told
Anthony that he could place SEIU information there at any
time. Thereafter, however, Chesney told Anthony that the Re-
spondent’s human resources/labor relations officials had in-
formed her that if Anthony wanted to post something he would
have to submit the material to Cahoon or Wesman and that they
would decide whether to post it. Wesman, in a February 10,
2014, memorandum to Anthony, accused Anthony of making a
unilateral change to the collective bargaining agreement by
arranging with Chesney to place the bulletin board in the 4SW

tion. Nor did the Respondent show that, prior to June 2014, it had ever
notified nurse managers, health unit coordinators or other staff that they
lacked authority to decide when to allow nonemployees to access the
employee break rooms. On the other hand, SEIU officials Bialke and
Anthony both testified that they dealt with Cahoon and Wesman when
it came to access issues at the facility.
8 The parties stipulated that Chesney was a supervisor under Sec.
2(11) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
unit. Wesman stated that this was a “non-designated” area.
Anthony had not previously informed Cahoon or Wesman that
the SEIU was accessing this locked break room, or sought their
approval to do so.
It is important in this case to note not only the evidence that
was presented, but also some evidence that was not. The Re-
spondent did not introduce a written policy or contract provi-
sion that prohibited non-employee visitors from accessing the
employee break rooms where bulletin boards were located, or
from posting on those bulletin boards. Nor did the Respondent
show that, prior to February 2014, it had ever advised health
unit coordinators, nurse managers or others working on the
patient care units that they did not have authority to allow non-
employee union visitors to enter the employee break rooms.
Anthony and Scott repeatedly accessed the employee break
rooms without being told by the Respondent's management that
this was a problem.9 There was no evidence that non-employee
union representatives from the SEIU or the MNA had ever
caused a disruption on patient care units or when entering the
break rooms where bulletin boards were located. To the contra-
ry, Cahoon, Markey and other officials testified that they were
not even aware that this union activity was taking place on a
regular basis prior to June 2014.
Individuals have worn purple SEIU shirts and red MNA
shirts inside the Respondent’s facility on numerous occasions.
This had not been challenged by the Respondent prior to June
24, 2014. The Respondent does not claim that it has a dress
code applicable to off-duty employees and non-employees vis-
iting the facility's main entryway and cafeteria.
C. Contract Language and Rejected Proposals
At the time of the alleged violations in the case, the contract
between the SEIU and the Respondent for the service workers
unit contained the following provision:
Bulletin Boards Available—Union Representative Access
Bulletin boards in the Hospital shall be made available
to the Union for the purpose of posting business notices.
The business agent for the Union or the employees' desig-
nate shall have access at all reasonable times to such bulle-
tin boards, and to such other nonpatient nonpublic areas to
be designated by the Hospital to discharge the employee's
duties as representative of the Union.
The contracts between the Respondent and the SEIU regarding
the other three, much smaller, SEIU-represented units at the
facility (LPNs, pharmacists, home healthcare workers) have
language that is similar to this.10

9 In one instance in February 2011, SEIU steward Lu Hendrickson
notified Wesman that the SEIU would be holding a scheduled 2-hour
meeting in a particular break room at the facility. Wesman responded
that the break room could not be used for that purpose because it was
not an area designated by the Respondent for the SEIU's use. Tee
Mclenty, executive vice president of the SEIU, responded that the SEIU
did not agree with Wesman,s interpretation of where the SEIU could
hold meetings.
10 The provision in the home healthcare workers contract is identical
except that it states that the Respondent will make bulletin boards
available in both the hospital and the home health office. The provision
The record shows that during past contract negotiations both
the SEIU and the Respondent have sought, without success, to
modify the contract language regarding access to bulletin
boards. In January 2014, the multiemployer group, through
which the Respondent bargains, proposed to modify the con-
tractual language to provide that the SEIU could only use two
bulletin boards specifically designated by the Respondent, that
only a single agent of the SEIU would have access to the
boards, that the agent would have to give the Respondent 24
hours before posting anything, and that the Respondent had the
right to remove postings that it considered inappropriate or
unrelated to official union business. The SEIU did not agree to
this proposal. For its part, the SEIU, in collective-bargaining
negotiations in 2009 and 2012, proposed to modify the contract
language to provide that SEIU bulletin boards would be provid-
ed in “all designated work areas.” Just as the SEIU did not
agree to the Respondent’s proposal to create new limits on the
SEIU’s posting activity, the Respondent did not agree to the
SEIU’s proposal to expand the posting activity.
At the time of the alleged violations, the Respondent's con-
tract with the MNA included the following language regarding
access to bulletin boards at the facility:
The Employer will provide multiple bulletin board spaces in
locations accessible to nurses for the posting of meeting no-
tices and related materials.
Despite the fact that the Respondent’s officials made statements
to both SEIU and MNA representatives regarding areas at the
facility “designated” for union activity, the Respondent has not
pointed to any language in the MNA agreement that mentions
areas “designated” for union activities. In addition, the parties
have not shown that either the MNA or the Respondent made
proposals to modify the bulletin board language in their agree-
ment.
D. Informational Picketing and Respondent's Planning
The MNA and the SEIU notified the Respondent, on June 4
and June 12, 2014, respectively, that they would engage in
informational picketing on public property adjacent to the facil-
ity on June 24, 2014. Both Unions informed the Respondent
that the purpose of the picketing was “to promote safe staffing
levels so that every patient can receive the quality care they
deserve.” The Respondent's pre-picketing assessment was that
the Unions' action would likely attract a large number of pick-
eters, but would have no impact on the facility’s ability to pro-
vide patient care services and that the Respondent would, from
a patient care perspective, operate just like any other day.
Cahoon, in a June 18, pre-picketing, memorandum to the facili-
ty staff stated, “[the Respondent] has no reason to believe that
the picketers will engage in any improper conduct.” Both
Cahoon and David Abrams—the vice president of human re-

in the LPN contract is similar except that it provides that access to the
bulletin will be provided both to the Union and to “duly appointed
Stewards.” The provision in the pharmacists’ contract refers to the
availability of “a bulletin board” (singular), rather than of bulletin
boards (plural), and states that both the Union and “the duly appointed
Steward,” shall have access to the board.
NORTH MEMORIAL HEALTH CARE 9
sources11—testified that this was a true statement. In one writ-
ten communication leading up to the picketing, Cahoon in-
formed Abrams that he had gotten “one union's full attention,”
and Abrams responded, “That's because you're one scary dude.”
Cahoon responded “Boo!”
Jeff Wicklander, the Respondent's vice-president of opera-
tions at the time of the picketing,12 planned to have a number of
mechanisms in place on June 24 to control the picketing activi-
ty. On that day, the Respondent supplemented his normal secu-
rity force of 20 uniformed guards with an additional 12 or 13
uniformed guards from a private security company. The Re-
spondent also erected a temporary fence to separate the facili-
ty's private property from public property and positioned cam-
eras to face the picketing activity. In addition, the Respondent
created a schedule for members of its staff to serve as “greet-
ers” present at three locations inside the facility during the
picketing. This was not a regular assignment at that facility.
The greeters and the security guards were instructed to, inter
alia, approach anyone who entered the facility wearing a red
MNA shirt or a purple SEIU shirt, or carrying a sign, and direct
such individuals to either cease displaying the shirt/sign or exit
the building. The Respondent does not have a standing policy
on what non-employees or off-duty employees are allowed to
wear at the hospital. According to Wicklander, the objective of
these preparations was to prevent the picketing activity from
coming inside the facility, to avoid any disruption of day-to-day
operations, and to maintain a calm and healing environment.
E. Events of June 23, 2014
On June 23, 2014–the day before the informational picket-
ing—Anthony and Scott arranged to meet in the cafeteria with
the intention of working together to place information about the
picketing activity on bulletin boards at the facility. When An-
thony arrived at the cafeteria, Scott was not present yet and
Anthony purchased lunch then sat at a table in the cafeteria and
began eating. Anthony was wearing a purple shirt—the SEIU
color—but did not display any union signs or other material.
He did not circulate in the cafeteria to initiate conversations.
He had union information flyers in a closed folder and when an
employee approached him with questions about the picketing
he would remove a flyer from his closed folder and hand it to
the employee. When Scott arrived, Anthony had not finished
his meal, and so Scott sat at the table with him and began work-
ing on a laptop computer while Anthony ate. Scott had worked
on the laptop computer in the cafeteria in the past without being
disturbed. During the time that Anthony and Scott were in the
cafeteria, a number of employees approached them and en-
gaged in small talk. There were a number of union members at
tables near to Anthony and Scott and some of these individuals
had union flyers, but the two were not engaging those union
members. There were also union flyers on some of these tables
and it is likely that these had been left by employees who ob-
tained them from Anthony.
At some point Cahoon and Wesman approached the table

11 Wesman reports to Cahoon. Cahoon reports to Abrams.
12 Subsequently, in October 2014, Wicklander became the Respond-
ent's president.
where Anthony and Scott were sitting. Cahoon and Wesman
were familiar with Anthony, but did not know Scott. At the
time they approached, Anthony was talking to Harold Evenson,
an SEIU steward, who had asked Anthony a question. Scott
was not talking to anyone. Cahoon, said: “Well, Fred, it looks
like you are having a meeting here. I am disappointed by that.
As you know, there are designated areas for this. You know
where those are, where you can go and do this. You can also
reserve a meeting room for that purpose.” Cahoon asked Scott
who he was, and Scott said that he was an MNA organizer.
Anthony told Cahoon that he was not having a meeting, but
was eating lunch when an off-duty steward asked him a ques-
tion. For his part, Scott pointed out to Cahoon that he was not,
in fact, talking to any MNA members, and Cahoon acknowl-
edged that this was true. Nevertheless, Cahoon maintained that
they were having a meeting, noting that Anthony had union
flyers with him and that Scott was using a laptop computer.
Cahoon opined that it was not a “coincidence” that a repre-
sentative of the SEIU and a representative of the MNA were
together in the cafeteria on the day before the informational
picketing. Before leaving the cafeteria, Cahoon stated that he
was going to have to think about how to respond to what had
occurred and mentioned the possibility that the Respondent
would file unfair labor practices charges.13
After leaving the cafeteria, Cahoon called McMahon, the
MNA representative he was used to dealing with, and com-
plained that that he had encountered Scott and Anthony in the
cafeteria the day before the picketing. He reported to McMah-
on that Scott was behaving politely and not meeting with MNA
members. McMahon asked why the representatives’ conduct
was a problem, and Cahoon responded, “Well, it doesn't seem
like a coincidence that they are meeting here together.”
Cahoon told McMahon that the Respondent “was going to take
aggressive action and send a strong message” in reaction to
what had occurred in the cafeteria. Cahoon said the he did not
know whether on the day of the picketing the Unions would
“storm the hospital and disrupt patient care areas.” McMahon
indicated to Cahoon that this concern was farfetched. Cahoon
said, “Well, you never know,” to which McMahon responded
that he knew that the unions would not storm the facility and
disrupt patient care.
After Anthony finished his meal, he and Scott took an eleva-
tor up to the top floor of the facility—the seventh floor—with
the intention working their way down the floors posting the
latest information on the bulletin boards in the employee break
rooms. Cahoon and Wesman observed Anthony and Scott
waiting for the elevator in the lobby and Cahoon immediately
contacted the Respondent's security manager, Rick Ramacher.
Ramacher, in turn, used his radio to call for two additional se-
curity guards.
Anthony and Scott gained access to the break room on the
seventh floor by identifying themselves to personnel at the
nurses' station on that unit. Next they went to an employee

13 The Respondent subsequently filed an unfair labor practice charge
that related to Anthony's activities at the facility on June 23. The Re-
spondent's charge was dismissed by the Regional Office of the NLRB
and the Respondent's appeal of that dismissal was rejected.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
break room that was on a trauma and specialty care unit on the
sixth floor. This unit has glass walls so that one can see into
the patient rooms from the hallways. Once again, Anthony and
Scott gained access to the break room by identifying them-
selves to a staff member at the nurses' station, in this case a
bargaining unit employee. They updated information on the
bulletin board in the employee break room on that unit. Then
an SEIU member who was on break in the room asked a ques-
tion about the picketing and Anthony handed that employee
some printed material. At this point, Cahoon, Wesman, and
Ramacher entered the break room. Cahoon stated that Anthony
and Scott were not supposed to be there and that they were
conducting union business in a non-designated area. He refer-
enced the discussion earlier that day in the cafeteria and told
Anthony, “[N]o matter how much we try, you continue to vio-
late the contract, continue to be in areas that are not designat-
ed.” One of the Respondent's officials stated that the
Robbinsdale police department was being called, and that the
Respondent was banning/trespassing both Anthony and Scott
from the facility.
From there, the Respondent's officials escorted Anthony and
Scott to an elevator and then to the security office on the facili-
ty’s main floor. They were accompanied the entire way by
Cahoon, Wesman, and Ramacher. For some of the route to the
security office, Anthony and Scott were also flanked by two
uniformed security guards.14 On the way to the security office,
Anthony and Scott passed, and were recognized by, a number
of bargaining unit members. Scott repeatedly asked what he
had done wrong, and was told either that he was in a part of the
hospital where he was not supposed to be, or that it was not a
“coincidence” that he and Anthony were together in the hospi-
tal on the day before the picketing. A security officer prepared
written trespass warnings and the Respondent had an officer of
the Robbinsdale Police Department present the warnings to
Anthony and Scott. These documents contain identical lan-
guage warning Anthony and Scott that they were banned from
the Respondent's premises for a period of 1 year and would be
arrested if they failed to comply with the warning. The docu-
ments both provide the following explanation for their issu-
ance: “Conducting business in unauthorized areas & after be-
ing told to stay out of public/patient areas.” Once they received
these documents, Anthony and Scott were both escorted out of
the facility by police officers and, at the time of trial, the Re-
spondent had not allowed either to return to the facility.
Wesman testified that if either were to return before the expira-

14 Cahoon and Wesman testified that they, along with Ramacher, ac-
companied Anthony and Scott to the security office, but that there were
no other security guards with them. I find the recollections of Anthony
and Scott that two security guards accompanied them for portions of
the walk more credible than the contrary recollections of Cahoon and
Wesman. Anthony and Scott both testified calmly and with certainty
and specificity on this point and were not undermined during cross
examination. In addition, Wesman himself testified that Ramacher
used his radio to call for two more security guards when Anthony and
Scott were seen proceeding to patient care floors. Thus it is not surpris-
ing that security guards met up with Ramacher and the others when
they escorted Anthony and Scott from the patient care floor to the secu-
rity office. Ramacher was not called to testify.
tion of the 1-year period they would be arrested. Cahoon testi-
fied that the decision to ban Anthony and Scott was based on
the “activity we saw . . . in the cafeteria, and the fact that they
were up on a patient care unit.”15
The Respondent's June 23 efforts to limit the dissemination
of information about picketing was not limited to interrupting
the activity of non-employee union representatives, but also
extended to the activity of an employee, Melvin Anderson.
Anderson, an SEIU steward for over seven years, placed a flyer
about the informational picketing on the bulletin board in the
SPD department where he was assigned. The SPD department
is not a patient care area, but rather one where medical instru-
ments are sterilized and organized for use elsewhere in the
hospital. Anderson had posted notices on that bulletin board in
the past and prior to June 23 the Respondent had never inter-
fered. In fact, Judith Gubbins, the SPD manager, sometimes
rearranged the union materials that were on the bulletin board.
He had also seen the Respondent post information about its
own collective bargaining proposals on the bulletin board. On
June 23, however, Wesman contacted Gubbins and told her that
the SEIU posting on the SPD bulletin board was impermissible
because it was not on an “authorized” bulletin board. Gubbins
responded to this by returning the posted union information to
Anderson, and telling him that he was not permitted to place
such information there. Gubbins told Anderson, however, that
it would be permissible for him to post other types of infor-
mation for employees, such as invitations for free entry to a
zoo.
F. Events of June 24, 2014
The next day—June 24—the MNA and the SEIU engaged in
joint informational picketing in a public park near the Respond-
ent's facility. At some point that day, Wesman confronted An-
derson in the facility’s atrium and asked if he was the one who
had put SEIU information on the bulletin board in the SPD
department.16 Anderson said that he had posted the information
and that “we've been posting on that board since before I was a
steward.” Wesman accused Anderson of violating the contract.
Anderson asserted that his action in posting the information
was consistent with past “practice,” and Wesman responded
“[s]o that means then, I can go ahead and break the contract . . .
as long as nobody knows about it.” Wesman mentioned that
Anthony had been banned from the facility, and asked Ander-
son whether Anthony was involved in the SPD department
posting. When Anderson answered, Wesman challenged An-
derson's account by describing what Wesman said he had
“watched” Anderson and Anthony doing. Then Wesman con-

15 The Respondent did not give the Unions notice or an opportunity
to bargain over the decision to ban Anthony and Scott for a 1-year
period, and neither Union has asked to bargain over the ban. By letter
dated December 15, 2014, the SEIU asked the Respondent to conduct a
telephonic step 2 grievance meeting regarding the ban relating to An-
thony, but the Respondent declined to meet telephonically.
16 The record contains a complete transcript of this conversation.
The General Counsel presented the transcript to the Respondent in
advance of trial and then modified it based on the Respondent’s input.
At trial, the transcript was received into evidence without objection.
(GC Exh. 23.)
NORTH MEMORIAL HEALTH CARE 11
fronted Anderson with statements that Wesman claimed An-
thony had made about the SPD department posting. At around
this point in the conversation Anderson stated: “I won't post,
Matter of fact, I just quit all of it. I'm done with it all. . . . You
won, George. Y’all won.” Anderson complained to Wesman
that union members were paying dues and were entitled to re-
ceive information about union activities “that they should be a
part of.” Wesman responded: “[T]hat's why we have the desig-
nated boards. And not only that, we got these two designated
areas.” Wesman opined that “if you give SEIU one little break,
then they just take advantage of it,” to which Anderson re-
sponded “I haven't taken advantage of nothing.” The conversa-
tion ended with Anderson stating: “Alright, I just quit. I quit.
Period. You won't hear from me from no union stuff. Period.
Somebody else can do it. Alright. You won.” Wesman said
“It's not a win,” and Anderson answered “It is. I quit.”
That same day, Richard Geurts, an off-duty registered nurse
and member of the MNA bargaining unit, entered the facility
wearing the same type of red MNA shirt as many of the picket-
ers. Photographs of the picketing indicate that these shirts had
the MNA insignia on the front, were blank on the back, and did
not bear any picketing slogans or reference to the Unions' criti-
cisms of the Respondent.17 Geurts was walking alone, and was
not carrying signs or noisemakers or chanting. He was in the
atrium area on the way to an employee locker room to retrieve
his lunch when he was approached by Abrams – a senior hu-
man resources executive who helped plan the Respondent's
response to the picketing event. Abrams did not recognize
Geurts or know whether he was an employee, patient, or family
member. Abrams told Geurts that he was not allowed to wear
the MNA shirt in the facility that day. Geurts asked Abrams
who he was, and Abrams said that he was the Respondent's vice
president of human resources. Geurts asked whether Abrams
wanted him to take the shirt off right there in the lobby.
Abrams either told Geurts to take the shirt off immediately, or
said that he did not care whether he did so, and Geurts respond-
ed by removing the shirt, leaving him bare-chested in the public
lobby. Geurts had a nonunion shirt in his possession and he put
that on shortly after removing the MNA shirt, although the
testimony indicates that Abrams did not know that Geurts had
the second shirt with him. The exchange between Geurts and
Abrams was observed by at least one union member, Kevin
Morse, and Morse later brought the incident to the attention of
union officials. Abrams testified that he believed having
Geurts remove his shirt in the public lobby was consistent with
the Respondent's purported intent of maintaining a calming and
healing environment during the picketing because doing so
“create[d] the potential for less disruption than an argument or
a confrontation over how the shirt was removed.” However,
Wicklander conceded that having a person remove his or her
union shirt in the entrance area would itself be a “disruptive
act” if, like Geurts, the person did not have another shirt under-
neath.
The balance of the relevant incidents on June 24 concern the

17 Wicklander stated that all he knew about the MNA shirts that he
had decided not to allow individuals to wear in the facility during the
picketing was that they were red in color and said “MNA.”
Respondent's repeated efforts to restrict the activities of two
upper level union officials—MNA president Linda Hamilton
and SEIU president Jamie Gulley. These officials had respon-
sibilities that went well beyond the Respondent's facility, but
they were present on June 24 because of the informational
picketing. The MNA entity of which Hamilton is president has
approximately 20,000 members and the SEIU entity of which
Gulley is president represents approximately 43,000 individu-
als.
After participating in the joint picketing during the morning,
Hamilton and Gulley entered the facility around mid-day and
headed towards the public cafeteria. Hamilton was wearing a
red MNA shirt and Gulley was wearing a purple SEIU shirt.
They were not chanting or carrying signs, bullhorns or noise-
makers. There is no evidence that they were being disruptive.
As they walked to the cafeteria, a number of SEIU members
approached Gulley with questions about union matters (includ-
ing about Anthony being banned from the facility), and some
employees had brief, inconsequential, interactions with Hamil-
ton. Once in the cafeteria, Hamilton and Gulley purchased
lunch and sat at a table. They had not arranged to meet any
union members in the cafeteria, but did mean to be available if
members wished to approach them with questions, especially
since Anthony and Scott had been banned and were not in the
facility to answer questions. These conversations did not dis-
rupt anyone else's meals. Wesman, who knew Gulley but did
not recognize Hamilton, saw the two in the cafeteria and pro-
ceeded to sit down at a nearby table and watch them. A num-
ber of union members stopped to ask Gulley and Hamilton
questions.
After they finished their meals, Gulley and Hamilton left the
cafeteria and walked out towards the main entrance. While
walking, Gulley and Hamilton were approached by Morris,
who told him that the Respondent had required Geurts to re-
move his MNA shirt in the lobby. While the three were having
this conversation, a uniformed security guard approached and
stated that they could not wear their union shirts in the facility.
Morris told the security guard that Hamilton and Gulley were
the presidents of the MNA and the SEIU. Gulley asked the
security guard if he was removing them from the facility for
wearing union shirts. The security guard said he would be back
shortly, and then walked away. Gulley waited outside a coffee
shop near the main entrance while Hamilton visited a restroom.
While he was waiting, the security guard returned, along with a
second, more casually dressed, security guard, who Gulley
understood to be a supervisor. The second security guard told
Gulley that he could not be in the facility that day with his un-
ion shirt on. He also asked Gulley if he was the individual who
had been banned from the facility the prior day. Gulley identi-
fied himself to the two guards as the president of the SEIU and
asked if they were removing him from the facility for wearing a
union shirt and talking to members. The guards said that they
would consult with the human resources department, and then
they left.
Following this exchange, Hamilton rejoined Gulley and they
purchased coffee at the lobby coffee shop. A nurse manager,
Germaine Edinger, who was acting as one of the Respondent's
special picket-day “greeters” and an agent of the Respondent,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
approached Gulley and Hamilton in the hallway and asked
them to change their shirts or cover them. Gulley responded,
“Thank you, no.” Then Edinger said “if you are unable to do
that that, we would ask . . . that you leave the building, please.”
She offered to escort them to the exit. Gulley declined the invi-
tation. Then Hamilton and Gulley headed towards the cafeteria
with the intention of, once again, being available if union
members wished to approach with questions. Hamilton also
hoped that their presence in the cafeteria would remind mem-
bers to participate in the picketing activity. They had coffee
with them.
When Hamilton and Gulley arrived at the cafeteria they were
surrounded by approximately six security guards, at least one of
whom was a supervisor who tried to block their path. The su-
pervisory guard told Hamilton and Gulley that they could not
conduct union business in the cafeteria and told them that there
were designated areas in the facility for such activities. Hamil-
ton asked him to define “union business.” Then Gulley said
that he had been having conversations with members in the
cafeteria for as long as he had been with the SEIU and that he
intended to do what he had “historically done in the past.” The
supervisor security guard offered to escort them from the prem-
ises. Gulley asked if they were removing him from the premis-
es, “because if you are not going to remove us from the premis-
es, then I am going to talk with members.” Hamilton and Gul-
ley maneuvered past the security guards and approached a table
where between three and seven union members were already
seated. Gulley and Hamilton had not arranged to meet with
these individuals, but Gulley asked if he and Hamilton could sit
down with them and have a break. Someone at the table
agreed, and Gulley and Hamilton sat down.
One of the members sitting at the table asked a question, but
at that point they were interrupted by Cahoon who approached
with Wesman and Security Supervisor Ramacher. Cahoon said
that the union representatives and employees could not conduct
union business in the cafeteria. Hamilton asked Cahoon what
he meant by “union business,” but Cahoon did not answer.
Ramacher asked if they were “here to cause trouble” and Ham-
ilton responded “absolutely not.” Then Ramacher asked if they
were “planning to go to the units,” and Hamilton replied “no.”
Someone asked Hamilton to identify herself and she did and
explained that she was associated with the MNA. Cahoon told
Gulley, “I am very disappointed in you, very disappointed in
you for conducting union business in the cafeteria.” Gulley
responded, “Chill out, Jeff, I am just having a conversation with
some members that I know.” Cahoon said “Well, are you talk-
ing about the Twins, are you talking about union business, just
what?” Gulley responded, “Jeff, I think you know that it is
illegal for you to ask me that question while I am sitting here
with these members.” Cahoon stated that, since they were in a
public cafeteria, there was nothing to stop him from sitting
down next to them. Gulley responded, “That is true, this is a
public cafeteria . . . . [b]ut if your intention is to surveil our
conversation to determine if I am talking about the Twins or
talking about the Union, then that would also be illegal.” Then
Cahoon sat down three to six feet away from Gulley and moni-
tored his activities. Wesman and Ramacher sat down with
Cahoon. After this, the employees who were sitting at the table
near Gulley and Hamilton stopped talking and some or all of
them left. Then Hamilton and Gulley left the cafeteria and the
facility. This visit to the cafeteria lasted about 10 minutes.
Both Gulley and Hamilton had, in the past, participated in nu-
merous conversations about union business with off-duty unit
members while inside the facility without interference from the
Respondent.18
G. Melvin Anderson Terminated on June 27, 2014
Anderson worked for the Respondent for eleven years in var-
ious capacities, most recently in the SPD department preparing
the sterile instrument kits that are used in operating rooms. The
Respondent terminated him on June 27, 2014, citing his record
of tardiness as the reason. As recounted above, on June 24 (the
day of the informational picketing), Wesman initiated a con-
frontational exchange with Anderson about a union notice An-
derson posted on the bulletin board in the SPD department. At
the time of his termination, Anderson had been an SEIU stew-
ard for 7 years. He was also a member of the SEIU's contract
bargaining committee, and one of two employees at the facility
who served on the SEIU executive board. As steward, Ander-
son participated in grievance meetings on behalf of members
about five times each month. He had had many union-related
interactions with Wesman over the years and the two had some-
times disagreed.
The record shows that while Anderson had significant
strengths as an employee, he also had a serious tardiness prob-
lem.19 Anderson's issues with getting to work on time began
early in his employment and, despite repeated criticism from
the Respondent, those problems persisted with only minor in-
terruptions during his decade plus tenure at the facility.
Gubbins, his direct supervisor in the SPD department, credibly
testified that tardiness problems were particularly troublesome
in that department because of the costly operating rooms delays
that could result if sterile instruments were not provided in a
timely manner. Anderson's tardiness problem was noted in the
annual performance reviews that the Respondent gave him in
2005, 2006, 2007, 2009, 2010, 2011, 2012,20 and 2013.21 In
approximately April or May 2014, Anderson received his most
recent annual review. In this review, Gubbins stated that An-
derson had been tardy 89 times during the period—78 times for

18 As discussed above, the Respondent had once interfered with Gul-
ley in the cafeteria, but that was at a time when he was on leave from
his SEIU position and was present in his personal capacity to campaign
for union office.
19 I do not discuss Anderson's record of absenteeism. The undisput-
ed evidence was that discipline for tardiness and discipline for absen-
teeism proceed along completely separate tracks in the Respondent's
system. The Respondent’s witnesses stated that Anderson's record of
absenteeism was not a factor in the decision to terminate him.
20 The 2012 evaluation notes that Anderson had been tardy 34 times
during the 12-month period, and gives him a rating of “marginal” in the
category that encompasses tardiness, but also states that Anderson had
shown “significant improvement” in that category.
21 The 2013 evaluation notes that Anderson had been tardy 38 times
during the 12-month period, states that there has been “significant
improvement” since a suspension was imposed, but gives him the low-
est rating, i.e., “not acceptable,” in the category that encompasses tardi-
ness.
NORTH MEMORIAL HEALTH CARE 13
less than 5 minutes and 11 times for more than 5 minutes—
which was more than twice the number of instances reported in
his 2012 and 2013 evaluations. He received the lowest rating,
i.e., “not acceptable,” in the category that covered tardiness. In
the comments section of the 2014 evaluation, Gubbins wrote:
Melvin and I have had numerous conversations about his tar-
diness. Melvin understood that he is in violation of the estab-
lished Tardiness Guidelines . . . and agreed to hold himself
accountable to arrive at work on time following his suspen-
sion.
After review of the 12 month attendance calendar there is lit-
tle evidence of signs of improvement, and he continues to be
in violation of the Tardiness Guidelines. Melvin has had only
two pay periods in the past 12 months when he has been on
time to work every day. The expectation is to be changed and
in the department at the start of his shift.
It is my responsibility to notify Melvin immediately that this
behavior is unacceptable and is in violation of the established
Tardiness Guidelines. Acountability and Teamwork are both
important values and expectations to achieve both for himself
and the Team he is part of.
An attachment to the evaluation noted that Anderson needed to
“improve immediately” and that the target date for improve-
ment was “now.” General Counsel Exhibit Number (GC Exh.)
29 (Individual Development Planning Template). These com-
ments were more pointed on the subject of tardiness than had
been those appearing in any of the eight prior evaluations that
were made part of the record. However, Anderson received
favorable ratings in most of the areas covered by the same 2014
evaluation. Gubbins gave Anderson the highest possible rat-
ing—“mastery”—in the Teamwork/Partner category and the
second highest rating—“solid”—in the three remaining catego-
ries.
The Respondent also issued tardiness-based discipline to
Anderson on several occasions. This discipline included a
written warning on January 7, 2008, a verbal warning on Janu-
ary 25, 2011, verbal warnings on April 18 and June 13, 2012, a
written warning on July 10, 2012, a written warning on No-
vember 30, 2012, and a 1-day suspension on July 1, 2013.22
All of these disciplinary notices list both the number of times
Anderson was late by over 5 minutes and the number of times
he was late by less than 5 minutes. The 2008 disciplinary no-
tice warned Anderson that “Discernible patterns of tardiness
may serve as an indication of an absenteeism problem and may
result in an acceleration of the Formal Performance Improve-
ment process.”
The Respondent's tardiness guidelines, which were men-
tioned in Anderson's disciplinary notices and of which he was
aware, have been in effect since at least April 5, 2008. The
guidelines include a chart setting forth the number of times that
an employee who, like Anderson, is working full-time can have
tardiness “occurrences” of 5 minutes or more before triggering

22 The July 1, 2013, suspension document references a prior suspen-
sion on January 9, 2013, but the record does not contain a disciplinary
document for a January 9 suspension and does not establish whether
any such suspension was based on tardiness.
various levels of discipline. That chart indicates that a full-time
employee will be subject to: coaching at 6 occurrences; a verbal
warning at 9 occurrences; a written warning at 12 occurrences;
a suspension without pay at 15 occurrences; and termination at
18 occurrences. This disciplinary chart does not indicate that
any level of discipline is appropriate based on tardiness of less
than 5 minutes, however, the guidelines include the following
language:
For the purpose of performance improvement, any clocking 5
minutes or later than the scheduled start time will be consid-
ered serious and subject to the Formal Performance Im-
provement process. Clocking in less than 5 minutes will be
addressed during the annual performance appraisal. Howev-
er, a discernible pattern of lateness less than 5 minutes may
also be addressed through the Formal Performance Improve-
ment Process. Tardiness will be tracked on a rolling 12
month period, counting back from the most recent occurrence
or tardiness.
Consideration may be given for prior attendance
and/or work history, any unrecognized FMLA issues, or
any unknown or special considerations that may be pre-
sented.
GC Exh. 25(b) (emphasis in original). These tardiness guide-
lines are not part of the collective bargaining agreement cover-
ing the unit of which Anderson is a member.
On June 9, 2014, Gubbins began to explore the possibility of
assessing additional discipline for Anderson's ongoing tardi-
ness. The record shows that despite the warning contained in
the performance evaluation that Anderson received in May
2014, he continued to have tardiness problems in May and
June. The record shows that he was tardy on May 5, 7, 14, 26,
and 29, and on June 4, 9, and 11.23 In a number of these in-
stances he was late by less than 5 minutes, but in others he was
considerably later. At the same time the records are reasonably
read as showing at least some improvement in this regard.
Anderson’s May performance evaluation stated that he had
been tardy a total of 89 times during the preceding 12 months,
while his June termination notice stated that he had been tardy a
total of 80 times during the 12 months preceding June 13, 2014.
On June 9, Anderson clocked in 45 minutes late, and it was
that day that Gubbins sent an email to Stacey Sylvester, who
oversaw attendance matters for the Respondent, and asked for
advice on whether the appropriate discipline was a written
warning or another suspension. In the email, Gubbins noted the
45-minute tardiness, and also stated that Anderson had been
more than 5 minutes late on 12 occasions during the last rolling
12-month period. The next day, Sylvester told Gubbins that
what was appropriate under the tardiness guidelines was a writ-
ten warning, unless it should be “bumped up to another suspen-
sion” given that he had already been suspended once. She sug-
gested that Gubbins contact Wesman since Anderson “is in the
. . . union.” The next day, June 11, Gubbins forwarded to
Wesman the email exchange with Sylvester in which Gubbins

23 The record does not show exactly when in May the annual evalua-
tion was presented to Anderson, and it is not possible to tell how many
of the instances of tardiness in May occurred after that evaluation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
and Sylvester had discussed the possibility of imposing either a
written warning or a suspension. Gubbins asked Wesman for
his recommendation. Wesman responded later that day by
requesting additional information about Anderson’s tardiness
record, and Gubbins supplied that information. After receiving
the information, Wesman, in a June 11 email, asked Gubbins
“What would you like to do?” He did not make a recommenda-
tion about the appropriate level of discipline or suggest that the
range of discipline that Gubbins and Sylvester had been consid-
ering (written warning or suspension) was too lenient. In a
June 12 email, Wesman reminded Gubbins that “tardiness is
separate from attendance and has to be handled separately,”
but, once again, he did not make a recommendation or suggest
that the range of discipline being discussed was too lenient.
On June 19, Gubbins again contacted Sylvester by email,
asking whether Anderson could be suspended for 2 days at this
point given, inter alia, that he was suspended previously, his
tardiness record was “not good,” and he had been attempting to
excuse absences by using Family and Medical Leave Act
(FMLA) leave at a time when he had exhausted his FMLA
allotment. Sylvester indicated she needed more information.
On June 25, Gubbins sent an email to Sylvester supplying some
additional information and proposing to suspend Anderson
without pay for 2 days. That email stated in part:
With 13 occurrences of tardy greater than 5 minutes and 71
less than 5 minutes where do we go from here[?] Based on
the guidelines can we do a 2 day unpaid suspension? Since
there is a discernible pattern of consistently being late. If so,
send me the paperwork. When I asked George [Wesman], he
asked me what I wanted to do[.] I want to move forward as
this is not fair to his co-workers.
Sylvester again indicated that she thought Gubbins should con-
sult with Wesman
Later on June 25, Gubbins forwarded a draft disciplinary no-
tice to Wesman that would have imposed a 2-day unpaid sus-
pension on Anderson for tardiness and in the transmittal email
asked “How does this look to you?” Wesman responded 16
minutes later, stating: “Judy, I do not agree. Termination is
more than warranted and we will lose consistency when others
are terminated for much less.” This June 25 email from
Wesman was the first time in the record where the possibility of
terminating Anderson for tardiness was mentioned in any of the
discussions leading to the action.24 This email was sent just
one day after the confrontational exchange that Wesman initiat-
ed with Anderson about a union posting on the SPD bulletin
board, and also a day after the informational picketing. The

24 Gubbins gave vague testimony that it is possible to construe as
stating that Wesman had recommended termination at some point “be-
tween June 12 and June 25.” Upon carefully reviewing this testimony,
I conclude that it does not indicate that Wesman recommended termina-
tion prior to June 25 because “between” June 12 and June 25 may rea-
sonably be understood as encompassing June 25. Also the question to
which Gubbins was responding when she stated that Wesman recom-
mended termination was “What discipline did Mr. Wesman think was
appropriate for Mr. Anderson?” That question does not expressly, or
by reasonable inference, refer back to the prior testimony about the
June 12 to June 25 period. (See Tr. at 577 LL. 2 to 7.)
record indicates that Anderson had not been tardy at all be-
tween June 12 (when Wesman did not challenge the range of
discipline being considered by Gubbins) and June 25 (when
Wesman challenged that level of discipline as insufficiently
harsh and suggested that only termination would suffice).
After receiving Wesman’s advice that Anderson be terminat-
ed, Gubbins forwarded the email chain to her supervisor, Ken-
dall Hicks and asked: “George [Wesman] is suggesting termi-
nation after reviewing the attached. The grid says termination
at 18 occurrences but the significance of the <5 minute occur-
rences is a discernible pattern??” Gubbins was not required to
follow Wesman’s advice about what level of discipline she
should impose. In this case, however, without waiting to hear
back from Hicks, Gubbins changed her draft discipline from a
2-day suspension to the termination that Wesman recommend-
ed. Gubbins testified that, in her view, what made Anderson
worthy of termination was that even after Anderson’s most
recent performance evaluation he had continued to be tardy,
including for 45 minutes on one occasion. Gubbins denied that
Wesman, or anyone else in management, told her that Anderson
should be terminated because of his union activity (as opposed
to his tardiness), or that Anderson's union activity influenced
her own decision. She did not, however, claim that she would
have terminated Anderson if Wesman had not objected to her
plan to impose a lesser level of discipline.
On June 25, Gubbins forwarded a copy of a draft termination
notice for Anderson to Wicklander. Under the Respondent's
procedures, Gubbins was required to obtain Wicklander's ap-
proval prior to suspending or terminating a supervisee. Later
that day, Wicklander responded “I support.” When Gubbins
verbally communicated this to Hicks, Hicks stated that he had
not yet reviewed Gubbins’ email asking him about the appro-
priate level of discipline, but that Gubbins should proceed with
the termination given that Wicklander had approved it. The
termination notice stated, inter alia:
Since your last Formal Performance Improvement (Suspen-
sion) on tardiness on July 13, 2013 you have had 11 more oc-
currences of coming to work late 5 minutes or greater and 69
occurrences less than 5 minutes. We have been more than pa-
tient with you and have allowed you ample time to correct
your tardiness problem. The 80 occurrences in which you
have come to work late meets or exceeds the maximum num-
ber allowed per the tardiness guidelines for a 80 h[ours ]p[er
]p[ayperiod] full time employee to be suspended.
Due to your continued pattern of tardiness your employment
at N[orth ] M[emorial ]H[ealth ]C[are] is being terminated
immediately.
The termination notice was identical to the draft suspension
notice that Gubbins had originally prepared, except for those
portions discussing the level of discipline being imposed. Alt-
hough the termination was not prepared until June 26, it was
dated June 16 because that was the end of the most recent pay
period, and Gubbins was basing Anderson's tardiness figures on
NORTH MEMORIAL HEALTH CARE 15
the 12-month rolling period that ended on June 13, 2014.25
On June 27, Gubbins brought Anderson to her office and told
him that he was terminated for tardiness. Anderson responded
that he did not believe his tardiness record justified termination
under the tardiness guidelines. Gubbins said, “Melvin, we are
not terminating you for occurrences, we are terminating you for
a pattern of tardiness.” Anderson asked for a copy of the doc-
umentation that the Respondent was relying on. Gubbins pro-
vided a printed spreadsheet that noted, inter alia, Anderson's
clock-in time for every workday from June 17, 2013, to June
13, 2014. Anderson made handwritten notes recording the date
and clock-in time of instances when the documentation indicat-
ed that he had been tardy during the 12-month period. Ander-
son's notes show approximately 80 instances of tardiness during
the 12-month period, of which 11 were “occurrences” of 5
minutes or more. The SEIU grieved Anderson's termination
and Wesman denied that grievance. In an email dated August
20, 2014, the SEIU asked to move the matter of Anderson’s
termination to arbitration, but neither side has requested an
arbitration panel.26
The Respondent and the General Counsel both presented ev-
idence regarding the Respondent's treatment of other employ-
ees who had records of arriving late for work. Of the six em-
ployees that the Respondent introduced evidence about, two
were terminated. The disciplinary document for one of the
terminated employees is dated January 22, 2011, and notes that
the employee had been suspended for tardiness on December 6,
2010, and that during the 6–7 week period since then had been
late by 5 minutes or more an additional nine times. (R. Exh.
70.) The disciplinary notice states that the individual had been
tardy a total of 35 times during the last 12 months, but it is not
clear whether this refers only to tardiness of 5 minutes and
greater, or to all instances. The other termination notice, dated
March 20, 2012, states that during the past 12 months the indi-
vidual had been late by 5 minutes or more on 35 occasions, and
had a total of 79 instances of tardiness. (R. Exh. 69.) Previous-
ly, on July 1, 2011, the Respondent had issued this same em-
ployee a disciplinary notice stating that she had been late by 5
minutes or more on 62 occasions during the past 12 months. At
that time the Respondent did not terminate the employee but
warned that she would be terminated the “next time she is late
or doesn't punch in.” In addition, on April 5, 2011, the Re-
spondent imposed a 3-day unpaid suspension on this employee,
stating that during a period of approximately 8 months, she had
been late by more than 5 minutes a total of 44 times, and by
less than 5 minutes 24 times. The Respondent issued a written
warning dated April 16, 2009, to a third employee, this time
stating that the employee had, during the past 12 months, been
late by 5 minutes or more 15 times, and late by less than 5
minutes 33 times. (R. Exh. 67.) A fourth employee received a
suspension notice on February 17, 2012, which stated that the

25 The disciplinary documents in the file include other instances
where, as with Anderson, tardiness-related discipline was dated days, or
weeks, prior to the date the discipline was presented to the employee.
26 Under the collective-bargaining agreement covering Anderson,
both the SEIU and the Respondent had the right to submit the grievance
to arbitration.
Respondent had previously given her a written warning for
tardiness, and yet during the past five pay periods—a period of
10 weeks—she had been late a total of 21 times of which 10
were for 5 minutes or more. A fifth employee received a 1-day,
unpaid, suspension dated June 16, 2012, and the suspension
notice stated that the employee had received two prior written
warnings, and that during the past 4 months she had been late
by 5 minutes or more 17 times and by less than 5 minutes an
additional 23 times. R. Exh. 72. The sixth employee received
a written warning for tardiness, dated July 16, 2014, which
stated that the Respondent had twice before met with her about
the issue and that from June 6 to July 11 she had been late by
more than 5 minutes four times and late by less than 5 minutes
five times. Wesman did not recommend a more severe level of
discipline than the supervisor proposed in any of these instanc-
es. Human resources, the area in which Wesman works, is con-
sulted about discipline for tardiness, but it is not clear in how
many of the above instances Wesman performed a review.
The General Counsel submitted disciplinary records regard-
ing a number of employees who had problems with tardiness in
2013 and 2014, but were not terminated. (GC Exh. 32.) One
employee received a written warning on July 16, 2013, which
stated that she had had 15 occurrences of tardiness in a 12-
month period. The warning does not state whether this only
included tardiness of greater than 5 minutes, or whether it in-
cluded all tardiness. A second employee received a written
warning dated November 3, 2014, which stated that she arrived
an hour and 20 minutes late for work that day and that she had
five occurrences in the past year. A third employee received a
verbal warning on July 8, 2014, which stated that she had re-
ceived prior “informal and formal performance improvement”
because of tardiness, but that she had eleven “occurrences” of
tardiness in the past 12 months. A fourth employee received a
verbal warning dated October 8, 2013, stating that during a
period of less than 3 months she had been over 5 minutes late
for work 16 times, and 1 to 5 minutes late 27 times. In the case
of a fifth employee, the Respondent issued a written warning
dated December 11, 2013, which stated that during a period of
less than 3 months the employee had been late to work by 5
minutes or more on nine occasions and 1 to 4 minutes late on
16 occasions. A sixth employee was terminated on July 16,
2014, after being tardy 74 times since May 6, 2013. The termi-
nation notice does not state whether all of these are occurrences
of greater than 5 minutes or more. Prior to being terminated,
this employee received a “last and final warning.”
The record shows that during the period leading up to An-
derson's termination there were a number of other union stew-
ards at the facility and none of the other stewards was disci-
plined or discharged at around the same time. The record does
not show, however, that any of the other stewards had either
recently been confronted by Wesman about their union activi-
ties or were known by Wesman to be actively involved in prep-
arations for the informational picketing.27 Nor was it shown

27 In its brief, the Respondent asserts that all of the other union stew-
ards were promoting the informational picketing activity. R. Br. at 77.
However, the record citation that the Respondent provides for this—Tr.
687–688—does not support it. Indeed that portion of the record does
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
that, during the period around June 2014, Wesman had been
consulted about discipline proposed for any of the other stew-
ards.
The Respondent's tardiness guidelines explicitly call for con-
sideration of the employee's work history in assessing disci-
pline for tardiness. Neither Gubbins nor Wesman explained
what, if any, consideration was given to Anderson's strengths as
an employee (a number of which Gubbins acknowledged) or
his long tenure with the Respondent. Wesman testified that
“we try to be as fair as we can,” and take into account “individ-
ual circumstances” such as length of service and whether the
tardiness took place over a long period of time, but did not state
if, or how, this was done in Anderson's case. When initially
asked whether the Respondent considered the quality of an
employee's work when deciding on discipline for tardiness he
answered “[n]o,” but when pressed he said that whether or not
the Respondent takes the employee's work quality into account
“depends” based on “[m]anagerial discretion and, yes, HR
would be consulted.”
H. Respondent Prevents Anderson from Engaging in Union
Activity in the Cafeteria on August 21, 2014
After the Respondent terminated Anderson, the SEIU hired
him as an internal organizer. SEIU assigned him to four facili-
ties, including the Respondent’s—rom which management had
recently banned Anthony. Anderson entered the Respondent's
facility in the afternoon on August 21, 2014, and proceeded to
the cafeteria. He brought a small, rolling, backpack in which
he had various union flyers and materials. As he walked, he
talked to employees and in some cases handed them union ma-
terials. He purchased a cup of coffee in the facility's lobby and
then proceeded to the cafeteria where he sat at a table at which
a number of SEIU members were present. While still in the
cafeteria, Anderson noticed an employee, Linette Combs, with
whom he was not acquainted and who was sitting alone having
lunch. Anderson approached her and said, “I never met you
before, you must be new.” He told her his name and said that
he was an internal organizer with the SEIU. Combs was, in
fact, a new employee and neither she, nor Anderson, knew
whether the SEIU represented her.28
Anderson had been speaking to Combs for about 5 minutes,
a conversation that Combs testified was not unpeaceful, when
Wesman approached them. No one else was in the immediate
vicinity. Wesman did not introduce himself to Combs, but
asked to speak to Anderson. Anderson indicated that he needed
some time to wrap up his conversation with Combs and gather
his things. Anderson gave Combs his business card and union
flyers. Then Anderson said that Wesman should speak to him
in front of Combs so that she could witness what was said.29

not show that Wesman believed any other steward was involved in
promoting the picketing and certainly does not show that he believed
any were as actively involved as he knew Anderson to be. See Ibid.
(Wesman is asked whether any of the other stewards were involved in
union activities leading up to the informational picketing, and he re-
sponds “They may have been.”).
28 Combs was not, in fact, represented by the SEIU.
29 Anderson claimed that Wesman was loud and acted in a physically
aggressive manner during this exchange, but Wesman denies that.
Wesman told Anderson that he wanted to talk in private and
Anderson followed Wesman towards the exit of the cafeteria.
Wesman told Anderson that he was “not allowed to conduct
union business and activities in the cafeteria.” Anderson said
that he was acting consistently with “a long standing practice,”
and Wesman countered that “[w]e have never allowed the un-
ions in our cafeteria.” Wesman stated that the Respondent was
“not going to tolerate [Anderson's] continued breaking of the
contract, and holding meetings in the cafeteria,” and that this
was going to be Anderson's “final warning” and that if he con-
tinued he “would be trespassed and arrested.” On the way out
of the cafeteria a former co-worker of Anderson's indicated
curiosity about what was going on and Anderson answered that
he was “being kicked out.” Once Wesman had led Anderson
from the cafeteria, a security guard escorted Anderson out of
the facility. Other than this incident, no manager or supervisor
had ever interfered with Anderson's conversations in the cafete-
ria or told him what he could or could not talk about there.
Employees frequently discussed matters involving the SEIU
while they were in the cafeteria, and one such employee,
Chelsa Boyd, credibly testified that she was not aware of any
restriction on what they talked about there.
In the immediate aftermath of this incident, Wesman identi-
fied himself to Combs and had her turn over the flyers that
Anderson had provided.
I. Complaint Allegations
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act: on about February 10, 2014, by denying an
SEIU representative access to a bulletin board designated for
use by the SEIU in the unit known as “4SW”; on June 23, 2014,
when Cahoon threatened a representative of the SEIU, a repre-
sentative of the MNA, and employees, that they were prohibit-
ed from engaging in union discussions in the cafeteria and
threatened to file charges if discussions about unions continued;
on June 23, 2014, when Cahoon, in a break room and in the
presence of employees, threatened representatives of the SEIU
and the MNA that they were engaged in trespass by entering
the break room and posting information on a bulletin board
there; on June 23, 2014, by removing SEIU representative An-
thony and MNA representative Scott from its facility and ban-
ning them from the facility for one year; on June 23, 2014,
when Gubbins prohibited an employee from posting infor-
mation relating to informational picketing on a bulletin board in
the SPD area; on June 24, 2014, when the Respondent, by its
security guards, surrounded and followed representatives of the
SEIU and MNA in order to interfere with their ability to meet
and talk to employees; on June 24, 2014, when the Respond-
ent’s security guards and two of its nurse managers, in the pres-
ence of employees, threatened representatives of the SEIU and
the MNA that they had to leave the hospital because they were
wearing shirts with union insignia on them; on June 24, 2014,

Combs' testimony was supportive of Wesman in this regard, and Chelsa
Boyd, a friend of Anderson's who was present in the cafeteria, gave
testimony that lent support to Anderson's account. After reviewing the
testimony, and considering the demeanor of the witnesses, I do not find
a basis for crediting Anderson's and Boyd's accounts over Wesman's
denial and Comb’s testimony supportive of that denial.
NORTH MEMORIAL HEALTH CARE 17
when Cahoon prohibited representatives of the SEIU and the
MNA from discussing those unions with employees in the cafe-
teria; on June 24, 2014, when Cahoon and Wesman engaged in
surveillance of employee union activity in the cafeteria; on June
24, 2014, when Abrams, in the facility lobby, instructed an
employee to immediately remove an MNA shirt, thereby re-
quiring the employee to walk shirtless to the locker room; on
June 24, 2014, when Wesman interrogated an employee about
union activities, including whether the employee posted infor-
mation about informational picketing, and threatened that the
employee's union activities were under surveillance; and on
August 21, 2014 when Wesman, in the cafeteria and in the
presence of employees, threatened to have an employee/union
representative arrested if he conducted union business in the
cafeteria again, and had the employee escorted out of the facili-
ty by security guards.
The complaint also alleges that through much of the same
conduct alleged to violate Section 8(a)(1), the Respondent also
violated Section 8(a)(5) and (1) because that conduct constitut-
ed changes in terms and conditions of employment about
which the Respondent had not bargained in good faith. Specifi-
cally, the complaint alleges that the Respondent violated Sec-
tion 8(a)(5) and (1): on about February 10, 2014, when it de-
nied an SEIU representative access to a bulletin board designat-
ed for use by the SEIU in the area known as “4SW” without
giving the SEIU notice and an opportunity to bargain; on June
23, 2014, when Cahoon, in the cafeteria, prohibited a repre-
sentative of the SEIU, a representative of the MNA, and em-
ployees from engaging in union discussions, without giving the
SEIU and the MNA notice and an opportunity to bargain; on
June 23, 2014, when Cahoon, in a break room and in the pres-
ence of employees, stated that representatives of the SEIU and
the MNA were engaged in trespass by entering the break room
and posting information on a bulletin board there, without giv-
ing the SEIU and the MNA notice and an opportunity to bar-
gain; on June 23, 2014, when the Respondent removed SEIU
representative Anthony and MNA representative Scott and
from its facility and banned them from the facility for one year
without giving the SEIU notice and an opportunity to bargain;30
on June 23, 2014, when Gubbins prohibited an employee from
posting information in the SPD area without giving the SEIU
notice and an opportunity to bargain; on June 24, 2014, when
Cahoon prohibited representatives of the SEIU and the MNA
from discussing union matters with employees in the cafeteria
without giving the SEIU and the MNA notice and an opportuni-
ty to bargain; and on August 21, 2014, when Wesman threat-
ened to have an employee/union representative arrested if he
conducted union business in the cafeteria again, without giving
the SEIU notice or an opportunity to bargain.
The complaint also alleges that the Respondent violated Sec-

30 The complaint alleges that the Respondent failed to meet its bar-
gaining obligations to the SEIU in violation of Section 8(a)(5) and (1)
when it removed and banned SEIU representative Anthony and MNA
representative Scott. The complaint does not allege that this conduct
violated the Respondent's bargaining obligation with respect to the
MNA, even though one of the two banned individuals was an MNA
representative.
tion 8(a)(3) and (1) on June 27, 2014, by terminating Anderson
because of his protected union and concerted activities.
III. ANALYSIS AND DISCUSSION
A. Deferral Argument
The Respondent contends that, under Collyer Insulated
Wire,31 I should defer every one of the numerous claims alleged
in the complaint to resolution through the parties' grievance and
arbitration process. The General Counsel counters that none of
the claims are appropriate for deferral. Whether deferral to
arbitration is appropriate is a threshold question that must be
decided in the negative before the merits of the unfair labor
practice allegation can be considered. L.E. Myers Co., 270
NLRB 1010, 1010 fn. 2 (1984). The deferral defense and the
merits may be addressed in the same hearing and the same de-
cision, see, e.g., Faro Screen Process, Inc., 362 NLRB No. 84
(2015), and that is what I do here.
The Board has stated that deferral is appropriate when the
following factors are present:
(1) the parties' dispute arises within the confines of a long and
productive collective-bargaining relationship; (2) there is no
claim of employer animosity to the employees' exercise of
Section 7 rights; (3) the parties' agreement provides for arbi-
tration in a very broad range of disputes; (4) the parties' arbi-
tration clause clearly encompasses the dispute at issue; (5) the
party seeking deferral has asserted its willingness to utilize ar-
bitration to resolve the dispute; and (6) the dispute is well
suited to resolution by arbitration.
San Juan Bautista Medical Center, 356 NLRB 736–737 (2011);
Wonder Bread, 343 NLRB 55, 55 (2004).32 Deferral is not
appropriate in the instant case because the second, fourth, and
sixth factors set forth by the Board are not present. Regarding
the second factor, this is decidedly not a case where there is no
claim of animosity to employees' exercise of Section 7 rights.
Rather, the General Counsel explicitly claims that the Respond-
ent's conduct was an example of “over-the-top animus toward
these unions and toward the employees' Section 7 rights.” (Tr.
at 11.) The General Counsel argues that the Respondent react-
ed to the SEIU's and MNA's unprecedented joint picketing
activity by “escalating its animus-driven conduct” and commit-
ting “a catalog of 8(a)(1) surveillance, interrogation, threats,
interference” and other violations directed at the Unions' pro-
tected activities at the facility. (Tr. 8ff.) In addition, the claim
that Anderson was discriminatorily discharged because of his
union and protected concerted activities encompasses an allega-
tion that the Respondent was motivated by unlawful animus
towards those activities.33 According to the General Counsel's
theory, Anderson was discharged as part of a wave of animus-

31 192 NLRB 837, 839 (1971)
32 In Babcock & Wilcox Construction Co., 361 NLRB No. 132
(2014), the Board made certain modifications to the standards for defer-
ral to arbitration, but stated that the new standards would generally only
be applied prospectively and not to cases, such as the instant one, that
were already pending at the time the change was announced.
33 See Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Corp., 462 U.S. 393 (1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
driven conduct occasioned by the joint picketing and which was
directed at Anderson because of his known protected activities
as a union steward and official, including those in support of
that picketing. See Mobil Oil Exploration & Producing, 325
NLRB 176, 177–178 (1997) (deferral is not appropriate when
the precipitating event leading to an employee's termination is
the employee’s protected activity), enfd. 200 F.3d 230 (5th Cir.
1999); see also Nissan Motor Corp., 226 NLRB 397 fn. 1
(1976) (the very nature of a case dictates nondeferral when it
involves discipline of steward in reprisal for grievance activi-
ties). It is not clear to what extent I am required to weigh the
evidence relating to animus at this point, as opposed to simply
noting that the General Counsel claims animus, since that evi-
dence goes to the merits of the complaint and whether deferral
is appropriate is a pre-merits inquiry. At any rate, for the rea-
sons discussed in the section of this decision analyzing the
merits, there is ample evidence that the Respondent bore ani-
mus towards the union activities of the SEIU and MNA.
The sixth factor set forth by the Board is also not met be-
cause the disputes are not well-suited to resolution by arbitra-
tion. “A dispute is well suited to arbitration when the meaning
of a contract provision is at the heart of the dispute.” San Juan
Bautista, supra; see also Collyer, 192 NLRB at 842. Deferral is
not appropriate when any contract provisions that are involved
are unambiguous. Ibid. The majority of the complaint allega-
tions in this case revolve around the Respondent's efforts to
prohibit employees and non-employee representatives from
engaging in union activities in the facility's cafeteria, lobby,
and bulletin board areas. Contract language is not at the heart
of those allegations. Contrary to the Respondent's suggestion,
neither the SEIU contracts nor the MNA contract contains any
language whatsoever that prohibits the Unions from accessing
those, or any other areas, at the facility for the purpose of en-
gaging in union activities. The contractual provisions that the
Respondent relies on to justify the prohibitions do not state
limitations on union activities, but rather impose affirmative
duties on the Respondent to provide certain access. Specifical-
ly, the contracts with the SEIU require the Respondent to pro-
vide access at all reasonable times to bulletin boards at the fa-
cility and to “nonpatient nonpublic” areas “designated” by the
Respondent for purposes of the SEIU's representational activi-
ties. Likewise, the contract with the MNA obligates the Re-
spondent to “provide multiple bulletin board spaces in locations
accessible to nurses for the posting of meeting notices and re-
lated materials.” These provisions do not set forth prohibitions
on union activity at the facility or indicate that the affirmative
obligations that the Respondent is agreeing to undertake are in
derogation of any of the rights that the SEIU, the MNA, and
unit employees have under Section 7, Section 8 (a)(1), (3) and
(5) of the Act or relevant case law.
To the extent that the Respondent means to suggest that stat-
utory access rights have been implicitly surrendered by the
failure of the parties to mention them in the contracts, that ar-
gument is foreclosed by the Board’s holding that Section 7
rights are “not waived by their absence from the governing
collective-bargaining agreement,” Chevron U.S.A., Inc., 244
NLRB 1081, 1085 (1979), and that a labor contract will not be
seen as surrendering such rights “unless” such surrender is
“expressed in clear and unequivocal language,” Textron Puerto
Rico, 107 NLRB 583, 587 (1953). See also Johnson-Bateman
Co., 295 NLRB 180, 184 (1989) (“It is well settled that the
waiver of a statutory right will not be inferred from general
contractual provisions; rather, such waivers must be clear and
unmistakable.”). The contract language pointed to by the Re-
spondent does not even suggest the surrender of such rights,
much less express such surrender in the necessary clear and
unequivocal language. In fact, Bialke, writing to the Respond-
ent on January 24, 2014, emphasized that the SEIU had never
“given up our rights under the National Labor Relations Act to
have access to public areas and specifically the cafeteria.” This
is not to say that the Respondent is foreclosed from arguing that
it can lawfully restrict protected activities in certain areas of the
facility, but only that the question must be analyzed under the
relevant statutes and case law and does not present a legitimate
dispute about the interpretation of contract language. Disputes
such as these, which turn primarily on the interpretation of
statute and case law are not, “eminently well-suited to resolu-
tion by arbitration,” and are not deferred by the Board. Avery
Dennison, 330 NLRB 389, 390–391 (1999) (“The Board's poli-
cy against deferral in matters of statutory interpretation is well
established. Moreover, established Board policy also disfavors
bifurcation of proceedings that entail related contractual and
statutory questions, in view of the inefficiency and overlap that
may occur from the consideration of certain issues by an arbi-
trator and others by the Board.”).
In reaching the conclusion that the disputes at issue here are
not suited to arbitration, I considered that the General Counsel
has stated that the Respondent, by prohibiting nonemployee
union representatives from accessing employee break rooms
and updating the union information on bulletin boards, made a
unilateral change from the established practice under the con-
tractual language. However, while this argument references the
contractual language, its resolution does not turn on that lan-
guage, which sheds no meaningful light on the subject. While
the SEIU and MNA contracts both discuss access to bulletin
boards, neither includes any language providing that the Unions
may access every bulletin board at the facility or identifying
which bulletin boards are available for the Unions’ use. Nor do
those contracts make any reference to break room access. In-
deed, in the case of the MNA, the contract language only dis-
cusses nurses having access to bulletin boards, and does not
discuss non-employee MNA representatives such as Scott. The
question of whether the Respondent made a unilateral change
by prohibiting the SEIU and MNA from accessing particular
break rooms and bulletin boards turns on the evidence regard-
ing the employees' past practice not on the interpretation of
ambiguous contract language.
Contractual language is also not at the heart of the dispute re-
lating to the Respondent's decision to terminate Anderson.
Resolution of that claim does not require interpretation of an
ambiguous contract provision, but rather analysis of the evi-
dence of discrimination and of the Respondent’s explanation
for the termination. There is a contract provision in the SEIU
contract for the service workers unit that prohibits discrimina-
tion against an employee on the basis of “membership or
nonmembership in the Union,” but that is too narrow to cover
NORTH MEMORIAL HEALTH CARE 19
the claim regarding Anderson's termination. The General Coun-
sel is not contending that Anderson was discriminated against
solely for being a member of the SEIU, but rather that he was
discriminated against because of his extensive activism on be-
half of the SEIU.34 Moreover, the Respondent's tardiness
standards are not set forth in the collective-bargaining agree-
ment.
The factor requiring that the employer's arbitration clause
clearly encompass the dispute is not met either. The grievance
and arbitration procedures set forth in the SEIU contracts cov-
ering the large service workers unit and the home health work-
ers unit provide that that process is available for disputes “relat-
ing to the interpretation of or application of the express terms
and provisions of” the contract. The SEIU contracts covering
the LPN unit and the pharmacists have similar language, which
limit application of the procedure to disputes “relating to the
interpretation of or adherence to the terms and provisions” of
the contracts. Similarly, the grievance and arbitration provision
in the contract with the MNA provides that it applies to “any
controversy arising over the interpretation of or the adherence
to the terms and provisions of this Agreement.” As discussed
immediately above, the disputes over access that give rise to
most of the complaint allegations are not about the interpreta-
tion and application of ambiguous provisions in the contract,
but rather over the evidence regarding past practice and the
alleged changes to that practice, and the interpretation of the
relevant legal authority. Moreover, even if one assumes that the
8(a)(5) allegations regarding access to particular bulletin boards
and break rooms is encompassed by the contractual arbitration
clauses, that would not mean that the grievance/arbitration pro-
cess would cover the 8(a)(1) allegations that the Respondent
used threats, interrogation, surveillance, and trespass/bans to
pressure nonemployee union officials to limit their Section 7
activities, nor would the arbitration process provide a remedy
for any such violations. Therefore, the claims regarding access
presented here are not clearly encompassed by the grievance
and arbitration procedures in the SEIU and MNA contracts.
Regarding the claim that the Respondent's discharge of An-
derson was discriminatory in violation of Section 8(a)(3), the
same conclusion is appropriate. I considered that the collective
bargaining agreement that applies to Anderson states that dis-
charge decisions may be challenged through the griev-
ance/arbitration process as being “without just cause.” (See GC
Exh. 2 at 25, art. 9.) However, that inquiry would only go part
of the way towards resolving the question, presented by the
complaint, of whether discrimination in violation of the Act led
the Respondent to discharge Anderson. Indeed, even if in the
grievance process the Respondent were to show that a nondis-
criminatory reason sufficient to justify Anderson's discharge
exists (in other words that “just cause” exists) that would not
rebut a prima facie case of discrimination unless the employer
showed that it would, in fact, have discharged Anderson on that

34 Obviously the “no discrimination” provision in the SEIU contract
would not reach the access issues, since that provision applies only to
an “employee,” and Anthony, Scott, Gulley, and Hamilton were not
employees at the time the Respondent interfered with their Sec. 7 activ-
ities.
nondiscriminatory basis absent his union activities. Monroe
Mfg., 323 NLRB 24, 27 (1997). Likewise, even if the Re-
spondent could not establish that just cause existed for Ander-
son's discharge, that would not mean that the evidence showed
that the real reason was Anderson’s union activity.
Finally, I doubt that this dispute can fairly be characterized
as occurring within the confines of a long and productive col-
lective-bargaining relationship. The SEIU and the Respondent
have had a collective bargaining relationship since the 1940s,
and it is fair to assume that this relationship has been produc-
tive at various times, but the record suggests that when the
violations are alleged to have occurred the relationship had
taken a decidedly unproductive turn. The relationship between
the Unions and the Respondent had deteriorated to the point
that within the matter of a few days around the June 24 picket-
ing the Respondent decided it was necessary to, inter alia: ban
organizers for the SEIU and the MNA from the facility under
threat of arrest; discharge a union steward who was on the
SEIU's executive committee and bargaining committee; and
attempt to eject the presidents of the SEIU and the MNA from
public areas of the facility and interfere with and monitor those
officials’ conversations with union members. Regardless of
whether one believes that the Respondent’s actions were justi-
fied, such clashes are hard to square with the existence of a
productive current relationship. Moreover, during the same
few days, the Respondent's director of employee and labor
relations told an MNA official that he was preparing for the
possibility that the unions might “storm” the hospital and “dis-
rupt patient care areas” and the Respondent's labor representa-
tive chastised an SEIU steward by stating, inter alia, that if you
“give SEIU one little break, then they just take advantage of it.”
These circumstances indicate that the relationship between
management and the Unions had become toxic at the time of
the alleged violations.
The only one of the six factors that is clearly present here is
the one requiring that the Respondent assert its willingness to
resort to arbitration. At the hearing, Cahoon emphatically stat-
ed that the Respondent was willing to expeditiously arbitrate
any complaint allegations that the Board might defer in this
case. (Tr. 792–793.) Although the Respondent has declined to
allow grievance meetings to occur by phone so that a banned
union organizer could participate in that manner, it did indicate
a willingness to hold the meetings off the premises with the
participation of the banned organizer. Thus, I find that this
factor is present.
Under the factors set forth by the Board, I find that it is not
appropriate to defer any of the claims at issue in this case. The
only claims regarding which a grievance arbitration decision
might conceivably be enlightening are the Section 8(a)(5)
claims relating to SEIU access to bulletin boards in break
rooms at the facility. As discussed above, I find that those
claims are not appropriate for arbitration, but even if one as-
sumes that, in isolation, they were deferrable, I would not defer
because those claims are highly intertwined with, inter alia, the
nondeferrable: 8(a)(1) claims regarding bulletin board access;
8(a)(5) claims regarding access to the bulletin boards; 8(a)(5)
and 8(a)(1) claims regarding activities in the cafeteria and other
public areas of the facility; and 8(a)(5) and 8(a)(1) claims relat-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
ing to the Respondent’s decision to ban union representatives
based on union activities. The Board declines to defer where
the deferrable allegations are inextricably related to non-
deferrable allegations. Windstream Corp., 352 NLRB 44, 44
fn.1 (2008), affd. after remand 355 NLRB 406 (2010). Given
the overlap, deferral of the dispute regarding Anthony's break
room activities would result in the type of inefficient, piece-
meal, resolution that the Board has consistently avoided. Daim-
ler Chrysler Corp., 344 NLRB 1324, 1324 fn.1 (2005) (Board
disfavors piece-meal deferral of complaint allegations); Avery
Dennison, 330 NLRB at 390–391 (“Board policy . . . disfavors
bifurcation of proceedings that entail related contractual and
statutory questions, in view of the inefficiency and overlap that
may occur from the consideration of certain issues by an arbi-
trator and others by the Board.”).
B. Interference with Non-Employee Union Organizers Use of
the Cafeteria on June 23 and 24
1. Section 8(a)(1)
a. Prohibition on Union Activities in the Cafeteria: The
General Counsel alleges that the Respondent interfered with
union activities protected by Section 7, and violated Section
8(a)(1): on June 23, 2014, when Cahoon told Anthony and
Scott that they were prohibited from discussing union matters
in the cafeteria with unit employees and threatened that the
Respondent might file an unfair labor practices charge if such
discussions continued; and again on June 24, 2014, when the
Respondent's security guards surrounded Gulley and Hamilton
in the cafeteria to keep them from meeting and talking with
employees, when Cahoon told Gulley and Hamilton that they
were prohibited from discussing union matters with employees
in the cafeteria, and when Cahoon, Wesman and security su-
pervisor Ramacher surveilled Gulley's and Hamilton's conver-
sations with employees in the cafeteria. The Supreme Court
and the Board have both recognized that health care facilities
have an interest in preventing patients from being disturbed, but
have held that a health care facility presumptively violates Sec-
tion 8(a)(1) by prohibiting union activities in locations that are
not immediate patient care areas. Beth Israel Hospital v. NLRB,
437 U.S. 483 (1978); St. John’s Hospital & School of Nursing,
Inc., 222 NLRB 1150, 1150–1151 (1976), enfd. in part 557
F.2d 1368 (10th Cir. 1997). The employer has the burden of
rebutting that presumption by showing that the union activity in
a nonpatient care area would cause disturbance or disruption.
NLRB v. Baptist Hospital, 442 U.S. 773, 781 (1979). In NLRB
v. Babcock & Wilcox, the Court held that an employer acts
unlawfully when it discriminatorily denies union representa-
tives access to its property while permitting others access for
similar activities. 351 U.S. 105, 112(1956); see also BE&K,
329 NLRB 717, 724 (1999) (same), enfd. 246 F.3d 619 (6th
Cir. 2001), judgment reversed on other grounds 536 U.S. 516
(2002); New Jersey Bell Telephone Co., 308 NLRB 277, 281
(1992) (“It has long been established, however, that a denial of
access for Section 7 activity may constitute unlawful disparate
treatment when a property owner permits similar activity in
similar, relevant circumstances.”); Davis Supermarkets, Inc.
306 NLRB 426, 426–427 (1992) (Supreme Court’s decision in
Lechmere “does not disturb the Court’s statement in [Babcock]
that “an employer may validly post his property . . . if [it] does
not discriminate against the union by allowing other distribu-
tion.’”).
In Baptist Medical System, the Board applied these legal
standards and found a violation of Section 8(a)(1) in a case that,
like the instant one, concerned the lawfulness of a hospital's
attempt to stop union representatives from using the facility’s
public cafeteria for the purpose of engaging in union-related
discussions with employees. 288 NLRB 882 (1988), enf. de-
nied 876 F.2d 661 (8th Cir. 1989). The Board explained:
[T]he Respondent violated Section 8(a)(1) by ordering non
employee union organizers . . . to leave its public cafeteria.
The Respondent operates the cafeteria for use by the general
public as well as by employees for their meals and breaks. At
the time they were ejected, [the two non-employee union or-
ganizers] were using the cafeteria in a manner consistent with
its purpose, meeting with off-duty employees while eating in
the restaurant. The Board and the courts have traditionally
held that solicitation in restaurants cannot be prohibited when,
as in this case, the conduct of the nonemployee union organ-
izers is consistent with the conduct of other patrons of the res-
taurant. Dunes Hotel & Country Club, 284 NLRB 871
(1987); Harold’s Club, 267 NLRB 1167 (1983), enfd. 758
F.2d 1322 (9th Cir. 1985); Ameron Automotive, 265 NLRB
511 (1982); Montgomery Ward & Co., 263 NLRB 233
(1982), enfd. as modified 728 F.2d 389 (6th Cir. 1984);
Montgomery Ward & Co., 256 NLRB 800 [(1981)],35 enfd.
692 F.2d 1115 (7th Cir. 1982); Marshall Field & Co., 98
NLRB 88 (1952), enfd. as modified 200 F.2d 375 (7th Cir.
1952). To hold otherwise would license a property owner to
prohibit a union organizer from utilizing its restaurant solely
because the organizer was discussing organizational activities.
Such a prohibition, which discriminates on the exclusive basis
of the union's organization activity, flies in the face of the Su-
preme Court's admonition against discrimination on this basis
when determining the propriety of access restrictions. [citing
Babcock & Wilcox]. The Respondent could not prevent [the
two non-employee union organizers] from using its public
restaurant in an orderly way, not disruptive of its business.
Baptist Medical System, supra.
I find that in the instant case, as in Baptist Medical, the Re-
spondent violated the Act by discriminating against the union-
related conversations that non-employee union representatives
Anthony, Gulley, Hamilton and Scott were attempting to have
with employees in the facility's public cafeteria on June 23 and
24. The Respondent's cafeteria, like the one in Baptist Medical,
was in a medical facility, but was open to the general public as
well as to employees. The record indicates that at the times in
question the union representatives were using the cafeteria in an
orderly, non-disruptive, manner. Specifically, the union repre-
sentatives were sitting at tables conversing with small groups of

35 In Montgomery Ward the Board held that an employer violated
Sec. 8(a)(1) by prohibiting union representatives from meeting with
employees in its public cafeteria where those representatives were not
creating a disturbance and were using the cafeteria in a manner con-
sistent with its purpose.
NORTH MEMORIAL HEALTH CARE 21
off-duty employees. They were not carrying signs, using
noisemakers or amplification equipment, chanting, or march-
ing. They were not going from table to table to solicit employ-
ees or making a general offer of union materials to every em-
ployee who passed them. The record does not suggest that un-
ion officials attempted to commandeer a section of the cafeteria
for their exclusive use by blocking it off or displaying signs or
banners that would discourage others from entering the area.
Indeed, Cahoon made clear that exactly the same cafeteria
gathering that Gulley and Hamilton took part in on June 24
would have been fine with the Respondent as long as it did not
involve the discussion of union matters, but rather was confined
to a non-union subject such as the Minnesota Twins baseball
team. The fact that the Respondent’s objection was based sole-
ly on the union content of the conversations is further shown by
the fact that the Respondent did not take any action to prohibit
Scott’s activities with employees in the cafeteria and elsewhere
prior to discovering that he was a union representative. Indeed,
the Respondent’s defense that it did not previously condone
Scott’s union activity is based on the assumption that it was
unable to distinguish Scott’s union activities from the permitted
activities of nonunion visitors until management discovered
that he was a union organizer. (See R. Br. 28–30 and 134–
135.) Thus, Scott’s activities with employees in the cafeteria,
and his other union activities at the facility, were not of a type
that the Respondent would have prohibited if not for the fact
that those activities concerned union matters. I find that noth-
ing distinguished the small, orderly, conversations between
union representatives and unit members that the Respondent
reacted to with such hostility on June 23 and 24 from other
gatherings of cafeteria visitors except for the fact that the Re-
spondent knew that union representatives were present and that
union topics would likely be discussed. The Respondent’s
actions were unlawful not only because they discriminatorily
interfered with the union representatives, but because they dis-
criminatorily interfered with employees who, while on break,
chose to ask the union representatives about the upcoming
picketing event. See Jensen Enterprises, Inc., 339 NLRB 877,
878 (2003) (“[A]n employer violates the Act when employees
are forbidden to discuss unionization, but are free to discuss
other subjects unrelated to work.”).
The conclusion that the Respondent’s interference with un-
ion discussions in the public cafeteria was discriminatory is
buttressed by the fact that the Respondent did not show that it
had a written policy or practice that prohibited non-employee
visitors from gathering together or with off-duty employees in
the cafeteria to discuss any non-union subject. Indeed the Re-
spondent did not show that it had ever prohibited an orderly,
non-disruptive, cafeteria gathering of any size where such gath-
ering did not include a union representative. The Respondent
nevertheless suggests that the discrimination in this case should
be viewed differently than in Babcock & Wilcox, supra, Beth
Israel, supra, and Baptist Medical System, supra, because of the
Supreme Court's intervening decision in Lechmere, Inc. v.
NLRB, 502 U.S. 527 (1992). In Lechmere, the Court ruled that
an employer did not violate Section 8(a)(1) by excluding non-
employee organizers from its property during an initial organiz-
ing campaign where other reasonable means of access to the
employees existed and there was an established policy prohibit-
ing all non-employees (including, the Court noted, girl scouts
and the salvation army) from engaging in activities on its prem-
ises. Ibid. The Respondent's citation to Lechmere is not persua-
sive in the present circumstances for a number of reasons.
First, the Court's Lechmere holding does not extend to situa-
tions, like the instant one, where the unions are not campaign-
ing to represent employees, but rather are the employees’ rec-
ognized bargaining representatives.36 See, Fred Meyer Stores,
Inc., 359 NLRB No. 34, slip op. at 2 (2012) (Lechmere applies
to initial union organizing, not where the union is the collective
bargaining representative and the contract has an access poli-
cy);37 CDK Contracting Co., 308 NLRB 1117 (1992) (same);
Wolgast Corp., 334 NLRB 203 (2001), enfd. 349 F.3d 250 (6th
Cir. 2003), cert. denied 541 U.S. 936 (2004) (same). Second,
the holdings in Baptist Medical System, supra, and Montgomery
& Ward, supra, both squarely rest on the nondiscrimination rule
that the Supreme Court set forth in Babcock & Wilcox, supra,
and the Board has made clear that that rule continues to apply
after Lechmere. See New Jersey Bell Telephone Co., 308
NLRB 277, 281 (1992) (“the Lechmere decision does not dis-
turb the Court's statement in Babcock & Wilcox that an em-
ployer acts unlawfully when it discriminates by denying a un-
ion access while permitting access to other organizations”);
Davis Supermarkets, Inc., 306 NLRB at 426–427 (same).38
Unlike the employer in Lechmere, who showed that its prohibi-
tion extended to all non-employees, the evidence here is that
the Respondent only prohibited gatherings of the type at-issue
here when it knew that union matters were likely being dis-
cussed. Therefore, I conclude that the standard described in
Baptist Medical System, supra, and the cases it relies on such as
Montgomery & Ward, is controlling. In the instant case the
Respondent, in clear violation of the Babcock & Wilcox rule,
and the holding in Baptist Medical, prohibited non-employee

36 This distinction makes the case for union access even stronger
here than in Baptist Memorial since the union there was not the repre-
sentative of employees at the facility, whereas the SEIU and the MNA
represented over 1800 employees at the Respondent’s facility.
37 This decision was issued by the 2-member Board that was subse-
quently invalidated by the Supreme Court in NLRB v. Noel Canning,
134 S.Ct. 2550 (2014). Upon de novo review, a validly constituted
Board affirmed the holding and rationale of the original decision. 362
NLRB No. 82 (2015).
38 The Respondent contends that in Nicks’, 326 NLRB 997 (1998),
the Board held that the Montgomery & Ward line of cases was effec-
tively overruled by Lechmere. (R. Br. 96–97 fn.106). However, the
Farm Fresh case relied on by the Respondent was remanded to the
Board by the Court of Appeals for the D.C. Circuit and in its post-
remand decision the Board explicitly stated that it was not holding that
Montgomery & Ward was overruled by Lechmere. Farm Fresh, Inc.,
332 NLRB 1424, 1425 (2000). The Respondent cites two other post-
Lechmere cases in which the Board held that the employer was permit-
ted to enforce a no-solicitation/no-distribution rule to prohibit union
activity on or near its property. (R. Br. at 96–97 fn.106), citing Wal-
Mart Stores, 349 NLRB 1095 (2007), and Raley’s Inc., 348 NLRB 382
(2006). In those cases, unlike here, the employer was not the recog-
nized bargaining representative of employees at the facility and the
employer was enforcing the restriction in a manner that was not shown
to discriminate between union and nonunion activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
union representatives from engaging in orderly, non-disruptive,
gatherings with employees in a public cafeteria that was not an
immediate patient care area when union matters were a topic of
conversation, but permitted similar gatherings that were not
union-related.
As discussed above in the analysis of the request for deferral
to arbitration, I also reject the Respondent’s contention that the
unions, in the relevant collective bargaining agreements, sur-
rendered their Section 7 rights in public areas of the facility.
The Respondent has not pointed to any language in those
agreements that surrenders the Unions’ Section 7 rights, much
less any that does so in the clear and unequivocal language
required for such a waiver to be effective. Johnson-Bateman
Co., 295 NLRB at 184; Textron Puerto Rico, 107 NLRB at 587.
The SEIU contracts state that, at all reasonable times, the Re-
spondent must provide the SEIU with access to nonpatient non-
public areas designated by the Respondent, but do not state a
single prohibition on SEIU access or suggest that the SEIU is
agreeing to surrender any access rights it has under Section 7 of
the Act. No reference at all is made to the SEIU’s rights in the
public areas of the facility, such as the lobby and cafeteria. In
the case of the MNA, the contract imposes an obligation on the
Respondent to provide multiple bulletin boards at the facility
for the use of nurses, but does not state, or suggest, that the
MNA has surrendered any of its Section 7 rights at the facili-
ty.39
For these reasons, I conclude that the Respondent violated
Section 8(a)(1) when on June 23, 2014, it prohibited Anthony
and Scott from having union-related conversations with em-
ployees in the public cafeteria, on June 24, 2014, when it pro-
hibited Gulley and Hamilton from having union-related conver-
sations with employees in the public cafeteria, and on June 24,
2014, when its agents physically interfered with Gulley and
Hamilton in the cafeteria in order to prevent them from meeting
with, and talking to, employees.
b. Threat to File Unfair Labor Practice Charge: The General
Counsel also alleges that the Respondent violated Section
8(a)(1) on June 23, 2013, when Cahoon threatened to file unfair
labor practice charges based on Anthony’s and Scott’s activities
in the cafeteria. The Respondent subsequently filed an unfair
labor practice charge over the access issue and the Board dis-
missed that charge. Depending on the circumstances, the Board
will sometimes find a violation of Section 8(a)(1) when an
employer threatens to file an unfair labor practices charge with
the Board in reaction to union-related activity. The Board found
a violation in Flamingo Las Vegas Operating Co., 360 NLRB
No. 41 (2014), when the employer threatened to file an unfair
labor practice charge against an employee who was a union
proponent and who had asked other employees how they had
voted after the union failed to garner a majority of votes in a
representation election. In Sheller-Globe Corp., 296 NLRB

39 Since I find that the Respondent’s conduct prohibiting SEIU and
MNA activities in the cafeteria violated Sec. 8(a)(1) for the reasons
discussed above, I do not reach the General Counsel’s arguments that
the conduct would also have violated Section 8(a)(1) because it was
witnessed by unit employees and because the rule regarding access had
not been clearly disseminated before it was enforced.
116 (1989), the Board found a violation when an employer
threatened to file an unfair labor practice charge against an
employee who was also the union president unless that employ-
ee would agree to sign off on action “necessary to further [the
employer’s] illegal plan to eliminate the unit.” On the other
hand, in Interstate Food Processing, 283 NLRB 303 (1987),
the Board upheld the finding that an employer did not violate
the Act when it reacted to employee complaints that union so-
licitations were distracting them from their work by asking the
union president to investigate the complaints and stating that
the employer would file “charges” (understood to mean unfair
labor practice charges) if the complaints were true and the con-
duct continued. The conclusion that no violation had occurred
was based, inter alia, on the fact that the employer’s statement
could reasonably be interpreted to mean that it would file an
unfair labor practices charge against the union, not the individ-
ual, and that such a statement was not a violation “except, per-
haps, under egregious circumstances.” The Supreme Court has
recognized the necessity of guaranteeing the public coercion-
free access to the Board’s processes through the charge-filing
process. See NLRB v. Marine & Shipbuilding Workers Local
22, 391 U.S. 418, 424 (1968) and Nash v. Florida Industrial
Commission, 389 U.S. 235, 238 (1967). In the instant case, the
General Counsel alleges that the Respondent violated the Act
when it threatened to file an unfair labor practice charge about
the access issue, not when it, in fact, filed such a charge. Nev-
ertheless, given the strong public policy in favor of unimpeded
access to the Board’s processes, I believe that extreme caution
is warranted before acting to penalize any party, including an
employer, for discussing the possibility of seeking resolution of
a labor dispute through the Board’s processes.
Given the circumstances present here, I conclude that this is
not an egregious case where it is appropriate to find that the
employer violated the Act by threatening to avail itself of the
Board’s processes. I note that Cahoon communicated the al-
leged threat to non-employee union organizers, whereas in the
cases relied upon by the General Counsel, the employers com-
municated the alleged threats to their own employees. See
Flamingo Las Vegas Operating Co., supra, Sheller-Globe
Corp., supra, and Postal Service, 350 NLRB 125 (2007). An
employer’s expression of disapproval of an individual’s union
activities is less coercive when that individual is a non-
employee since the employer does not possess the same power
that it does over an employee’s livelihood. Moreover, where,
as here, the possibility of unfair labor practice charges is com-
municated to a non-employee union organizer it is fair (even
more so than in Interstate Food Processing, supra) to under-
stand the Respondent as threatening to file a charge against the
union, not the individual.
For the reasons discussed above, the allegation that the Re-
spondent violated Section 8(a)(1) on June 23, 2014, when it
threatened to file an unfair labor practices charge should be
dismissed.
c. Surveillance in the Cafeteria: The General Counsel alleg-
es that the Respondent violated Section 8(a)(1) by engaging in
surveillance of Gulley and Hamilton on July 24, 2014, in the
cafeteria in order to interfere with their ability to meet and talk
with employees. Under Board precedent, “management offi-
NORTH MEMORIAL HEALTH CARE 23
cials may observe public union activity, particularly when such
activity occurs on company premises, without violating Section
8(a)(1) of the Act, unless such officials do something out of the
ordinary.” Arrow Automotive Industries, 258 NLRB 860
(1981), enfd. 679 F.2d 875 (4th Cir. 1982) (Table); see also
Durham School Services, 361 NLRB No. 44, slip op. at 1
(2014) (observation of union activities in a public area was
unlawful surveillance when manager “was observing employ-
ees in way that was out of the ordinary”). Such “out of the
ordinary” surveillance of union activity in public places in-
cludes an employer’s “unreasonably close” observation of or-
ganizers as they finish their lunches. Montgomery Ward & Co.,
692 F.2d 1115, 1128 (7th Cir.1982), enfg. 256 NLRB 800
(1981).
The Respondent’s observation of Gulley’s and Hamilton’s
conversations with employees in the cafeteria constituted more
than ordinary observation of public union activity and clearly
rises to the level of unlawful surveillance. Cahoon and the
others were not casually observing but rather intentionally and
aggressively using surveillance to intimidate employees and
chill union conversations. Cahoon began this exchange by
telling Gulley, Hamilton, and employees that the union activi-
ties they were engaging in were prohibited. When this pressure
did not have the desired effect, Cahoon tightened the screws by
telling the gathering of union representatives and employees
that he was going to sit right next to them. He then proceeded,
along with Wesman and Ramacher, to situate himself in close
proximity to the union representatives and employees, and to
conspicuously monitor their conversation. An employer vio-
lates Section 8(a)(1) when a supervisor observes union activity
in a public area where, as here, the supervisor’s purpose for
being at the location is to observe the union activity. Aero
Corp., 233 NLRB 401, 405 (1977), enfd. 581 F.2d 511 (5th Cir.
1978). The unusual proximity from which Cahoon and the
others observed the union officials’ conversations—only a few
feet away—significantly heightened the coercive effect of that
observation. See Flexsteel Industries, 311 NLRB 257 (1993)
(employees should be free to participate in union activities
without fear that members of management are “peering over
their shoulders, taking note of who is involved in union activi-
ties, and in what particular ways”) and Montgomery Ward &
Co., supra. These management activities were out of the ordi-
nary and had the tendency to unreasonably chill the exercise of
Section 7 rights. Fairfax Hospital, 310 NLRB 299, 310 (1993),
enfd. mem. 14 F.3d 594 (4th Cir. 1993), cert. denied 512 U.S.
1205 (1994). It is not at all surprising that when Cahoon and
the other company officials began to conspicuously eavesdrop
the employees stopped talking and soon left the area.
The conclusion that the Respondent’s surveillance violated
Section 8(a)(1) is consistent with prior decisions in which the
Board found that an employer’s observation of public union
activity was sufficiently “out of the ordinary” to constitute un-
lawful surveillance. In Hoschton Garment Co., 279 NLRB 565,
566 (1986), the Board found that the Respondent had engaged
in unlawful surveillance at a plant entrance when it “did not
merely observe union activity, but rather attempted to prohibit
[an employee] from distributing handbills to employees on
public property, and that [the supervisor] stood very close to
[the employee] for the duration of the handbilling.” Similarly,
in the instant case Cahoon not only observed the protected un-
ion activity, but unilaterally announced a prohibition on that
activity before beginning the surveillance. The three Respond-
ent officials situated themselves very close to the activity in an
effort to chill employees from speaking to Gulley and Hamil-
ton. In Sands Hotel & Casino, 306 NLRB 172 (1992), enfd.
993 F.2d 913 (D.C. Cir. 1993) (Table), the Board found that an
employer violated the Act when guards observed public union
activity using binoculars. In the instant case, the Respondent’s
officials also took steps to get an intrusive, close-up, view of
union activity in a public area, although they did this not
through the use of a mechanical device but through physical
proximity. If anything, this physical presence was a more coer-
cive and intimidating intrusion than that represented by the use
of binoculars in Sands Hotel.
In Sands Hotel, it was also noted that there was no evidence
that the Respondent's “conduct was based on safety or property
concerns.” 306 NLRB at 172. Similarly, the Respondent did
not show that it had a legitimate basis for the intrusive surveil-
lance in this case. Even assuming that the Respondent was
motivated by a good faith, but mistaken, belief that it was ad-
dressing violations of a lawful company rule, that would not
change the outcome because the Respondent’s motivation is not
relevant here. The Board has noted that it applies an “objective
standard” when deciding whether an employer’s conduct “tends
to interfere with the free exercise of employee rights,” and does
not consider the employer’s “motivation.” See Miller Electric
Pump & Plumbing, 334 NLRB 824 (2001). In Days Inn Man-
agement Co., 306 NLRB 92, 92 fn. 3 (1992), the Board found
that the employer had not engaged in unlawful surveillance, but
only after noting that the employer: had not disrupted contact
between employees and the union; was not able to overhear
conversations between employees and the union; and had not
attempted to talk to union representatives. In the instant case,
those same factors weigh in favor of finding the surveillance
unlawful. Cahoon interfered with the conversations that em-
ployees were having in the public cafeteria with their union
representatives by confronting those representatives and stating
that the union activities were prohibited, and then positioning
himself where he could overhear any union subjects being dis-
cussed.
For the reasons discussed above, I conclude that the Re-
spondent violated Section 8(a)(1) of the Act on June 24, 2014,
by coercively surveilling union activities in the cafeteria.
2. Section 8(a)(5) and (1)
The General Counsel alleges that the Respondent’s conduct
in the cafeteria on June 23 and 24, 2014, in addition to violating
Section 8(a)(1), also violated Section 8(a)(5) because that con-
duct constituted a unilateral change in the established practice
regarding nonemployee union representatives’ use of the cafe-
teria for union activities. Where, as here, employees are repre-
sented by a union, their employer violates Section 8(a)(5) of the
Act by making a unilateral change regarding a mandatory sub-
ject of bargaining. NLRB v. Katz, 369 U.S. 736, 747 (1962);
Whitesell Corp., 357 NLRB 1119, 1171 (2011); Ivy Steel &
Wire, Inc., 346 NLRB 404, 419 (2006); Mercy Hospital of Buf-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
falo, 311 NLRB 869, 873–874 (1993); Associated Services for
the Blind, 299 NLRB 1150, 1164–1165 (1990); Bethlehem
Steel Co. (Shipbuilding Div.), 136 NLRB 1500, 1503 (1962).
The Board has held that where an employer unilaterally de-
nies or reduces the union’s ability to access unit employees for
purposes of representation the unilateral action or change is
material in nature. Turtle Bay Resorts, 355 NLRB 1272, 1272–
1273 (2010); Frontier Hotel & Casino, 323 NLRB 815, 817–
818 (1997), enfd. in pertinent part 118 F.3d 795 (D.C. Cir.
1997); Ernst Home Centers, Inc., 308 NLRB 848, 848–849
(1992); American Commercial Lines, 291 NLRB 1066, 1072
(1988). Under Board precedent, even when an employer ac-
cuses a union agent of misconduct, the employer is required to
give the union notice and an opportunity to bargain before
changing rules regarding the agent’s access so that the parties
can work together to arrive at a solution to the problem. Fron-
tier Hotel & Casino, 323 NLRB at 817. For a change in a
mandatory subject of bargaining to trigger the duty to bargain,
that change must be “material, substantial, and significant.”
Crittenton Hospital, 342 NLRB 686 (2004); Bath Iron Works
Corp., 302 NLRB 898, 901 (1991).
The dispute about whether the Respondent made an unlawful
unilateral change in this case when it prohibited non-
employees’ union activities in the cafeteria on June 23 and 24
raises two questions: (1) whether there was an established prac-
tice regarding nonemployee representatives of the SEIU and the
MNA using the cafeteria for union activities, and (2) whether
the disputed actions represented a material change from that
established practice. Regarding the first of those questions, I
begin by noting that none of the relevant labor contracts ad-
dress the subject of union activities in the facility’s cafeteria or
other public areas. This does not end the inquiry, however,
because the prohibition on unilateral changes to mandatory
subjects of bargaining applies to established past practices even
if they are not incorporated in a collective-bargaining agree-
ment. KGTV, 355 NLRB 1283, 1294 (2010); Golden State
Warriors 334 NLRB 651, (2001), enfd. 50 Fed.Appx. 3 (D.C.
Cir. 2002); Exxon Shipping Co., 291 NLRB 489, 493 (1988). It
is the General Counsel’s burden to show the existence of such a
practice. National Steel & Shipbuilding, 348 NLRB 320, 323
(2006), enfd. 256 Fed.Appx. 360 (D.C. Cir. 2007).
In this case, the evidence of past practice is different for the
MNA and the SIEU and therefore must be addressed separate-
ly. Regarding the MNA, the evidence showed that prior to June
23 the Respondent had treated the activities of nonemployee
MNA representatives visiting the cafeteria or other public areas
of the facility in the same manner as it treated the activities of
other non-employee visitors. How were other nonemployee
visitors treated? They were not required to clear security, sign-
in, or identify themselves or their affiliation, in order to enter
the cafeteria. The Respondent did not monitor their discussions
and had not placed restrictions on what they could discuss
while visiting the cafeteria. This is exactly how the MNA rep-
resentatives were treated prior to June 23. MNA representa-
tives Hamilton, McMahon, and Scott all visited the facility and
had conversations with others in the cafeteria without ever be-
ing interfered with by the Respondent. The Respondent did not
show that, prior to June 23, it had ever asserted to the MNA
that special restrictions applied to non-employee MNA organ-
izers when they were in public areas of the facility.
This did not change until officials of the Respondent con-
fronted Scott in the cafeteria on June 23 and Hamilton in the
cafeteria on June 24. On those dates, the Respondent’s officials
asked the union representatives to identify themselves and then
attempted to prohibit them from sitting with, or talking to, other
persons visiting the cafeteria. The record shows that, at the
time the Respondent’s agents accosted Scott they took the posi-
tion that non-employee union representatives visiting the facili-
ty could not have discussions with employees or about union
matters except in the nonpublic locations that the Respondent
had designated for such activity. The record indicates that,
with respect to the MNA, this location was an office on the
lower level of the facility. I conclude that the Respondent’s
prohibition on MNA activities in public areas of the facility
represented a change from the Respondent’s established prior
practice of allowing non-employee MNA representatives, like
members of the public in general, to sit among others in the
cafeteria without being required to identify themselves, without
being monitored, and without having their conversations lim-
ited by subject.
In addition, I find that by banishing the MNA representatives
from the public cafeteria where off-duty unit employees con-
gregated, and confining them to a location on the lower level
that was not a regular gathering place, the Respondent made a
material, substantial and significant change in the ability of
union representatives and the employees they represented to
access one another at the facility. See, e.g., Turtle Bay Resorts,
355 NLRB at 1272–1273; Frontier Hotel & Casino, 323 NLRB
at 817–818 Ernst Home Centers, Inc., 308 NLRB at 848–849
American Commercial Lines, 291 NLRB at 1072. Previously
employees could access their union representatives either
through casual, impromptu, interactions in the cafeteria, or by
arranging to meet those representatives in the more out-of-the
way location designated by the Respondent. Many employees
would no doubt be less likely to access their representatives in
the latter manner for a number of reasons, including because it
required some planning and because approaching the location
designated by the employer for union activity would render
such activity conspicuous. The Respondent did not give the
MNA notice or an opportunity to bargain before making this
change regarding a mandatory subject of bargaining, but rather
presented the prohibition as a fait accompli. Waiver of the right
to bargain based on a union’s failure to request bargaining will
not be found where, as here, the union was not given advance
notice of the change and/or where the notice presented the
change as a fait accompli. Eby-Brown Co., 328 NLRB 496,
570–571 (1999); Dorsey Trailers, Inc., 327 NLRB 835, 858
(1999), enfd. in part 233 F.3d 831 (4th Cir. 2000); Jaydon, Inc.,
273 NLRB 1594, 1601 (1985); Ciba-Geigy Pharmaceuticals
Division, 264 NLRB 1013, 1017–1018 (1982), enfd. 722 F.2d
1120 (3d Cir. 1983).
With respect to access by nonemployee SEIU representa-
tives, the record shows that there was a history of disagreement
between the Respondent and the Union about the extent to
which nonemployee SEIU representatives could engage in un-
ion activities in the cafeteria. Despite, the areas of dispute, the
NORTH MEMORIAL HEALTH CARE 25
record shows that prior to June 23 there was no dispute that
nonemployee SEIU representatives were permitted, at a mini-
mum, to engage in conversations in the cafeteria that did not
rise to the level of conducting a “meeting.” In communications
with the SEIU, the Respondent took the position that non-
employee SEIU representatives could have conversations about
union matters in the cafeteria with one or two other individuals
at a time. Moreover, prior to June 23, human resources offi-
cials observed such conversations and took no action to prevent
them. To the contrary, Cahoon himself sometimes used such
occasions as an opportunity to engage the SEIU representative
in union-related conversations. Based on the evidence, I find
that the Respondent had an established practice of permitting
nonemployee union representatives to talk about union matters
with one or two other individuals in the cafeteria at a time.
On June 23 and 24, the Respondent attempted to prohibit
SEIU representatives Anthony and Gulley from having union-
related discussions with employees in the cafeteria. In neither
of instances was either representative talking to more than one
or two individuals at a time about union business. On June 23,
when Cahoon told Anthony that he was engaging in unlawful
union activity in the cafeteria, Anthony was sitting at a table
and talking with a single off-duty SEIU steward, Harold
Evenson. A third individual, Scott was at the table, but he was
not talking with anyone or participating in the conversation
between Anthony and Evenson. There were also persons at
nearby tables and while the record suggests that Anthony had
previously responded to questions from some of those persons,
he was not addressing, or being addressed by, them at the time
he was speaking with Evenson. Regarding the subsequent June
24 incident in the cafeteria, the evidence showed that the Re-
spondent’s security guard/agents attempted to block Gulley
from even proceeding into the cafeteria—at which juncture it
was not possible to know whether he would address more than
two other individuals at the same time. Gulley managed to ma-
neuver around the security guards and, although he had not
arranged to meet anyone, he approached employees who were
on break at one of the cafeteria tables and asked to sit down.
There were between three and seven employees sitting in prox-
imity to one another, but the record does not show that they
were all part of a single group or conversation. At any rate,
neither Gulley nor Hamilton attempted to address the nearby
employees collectively about union business. After Gulley sat,
one of the employees present asked him a question. It was at
that point that Cahoon, Wesman, and Ramacher, confronted
Gulley, and stated that he was improperly conducting union
business in the cafeteria. Then the Respondent’s officials en-
gaged in conspicuous and unlawful surveillance with the pur-
pose and effect of interfering with union-related communica-
tions.
I find that on June 23 and 24, at around the time of the in-
formational picketing, the Respondent unilaterally changed the
existing practice regarding SEIU activities in the cafeteria. The
Respondent had an established practice of permitting non-
employee SEIU representatives to discuss union matters in the
cafeteria in groups of up to, at least, two and three at a time.
Beginning on June 23, it prohibited such conversations even
when only two or three individuals were conversing. Although
on June 23 and 24, there were other individuals seated at near-
by tables or otherwise in proximity to the cafeteria conversa-
tions, the Respondent’s prior communications to the SEIU had
not required that a representative who was having an otherwise
permissible conversation in the cafeteria maintain a certain
distance from nonparticipating individuals. It is hard to see
how a union representative could comply with such an addi-
tional requirement since, as Cahoon’s surveillance makes clear,
in a public cafeteria one cannot control who sits near to him or
her. An off-duty unit employee’s permitted conversation with
his or her nonemployee SEIU representative could, at any
point, become a violation of the Respondent’s new rule simply
because other individuals sat down nearby or subsequently
addressed the union representative with their own questions.
For this reason, as well as for the reasons discussed regarding
the MNA, the Respondent’s unilateral change to the SEIU’s
ability to access employees in the cafeteria for representational
purposes was material, substantial and significant. Turtle Bay
Resorts, supra; Frontier Hotel & Casino, supra; Ernst Home
Centers, Inc., supra; American Commercial Lines, supra. The
Respondent made this material, substantial and significant
change to a mandatory subject of bargaining without giving the
SEIU notice or an opportunity to bargain.
The Respondent denies that it changed any established prac-
tice regarding union access to unit employees in the cafeteria,
but argues that even if it did so, any such changes did not trig-
ger a bargaining obligation because they were not material,
substantial and significant. I have considered that argument
but, as alluded to above, find that it is not persuasive. Board
precedent indicates that any change that actually reduces the
union’s access to represented employees is a material, substan-
tial, and significant change for purposes of Section 8(a)(5).
See, e.g., Frontier Hotel, supra (“Any change that actually
interferes with contractually agreed employee access to the unit
collective-bargaining representatives for representational pur-
poses is a material change.”), citing Ernst Home Centers, supra.
The reason that the Board did not find an obligation to bargain
in the cases relied on by the Respondent—Selkirk Metalbestos,
321 NLRB 44 (1996) and Peerless Food Products, 236 NLRB
161 (1978—was that in each of those instances the Board de-
termined that the employer had not made a change that in any
way reduced the union’s access to represented employees. In
Selkirk, the Board stated that it did not find a violation because
“the record fails to show any factual basis to support a finding
that the Union’s access to employees was less restrictive or
more confidential before the change” than it was after the
change. 321 NLRB at 44 fn. 2.40 Indeed, in Frontier Hotel, the

40 In Selkirk, the established practice was that a union representative
could discuss grievances with involved employees by announcing
himself at the reception desk and then being escorted to the lunchroom
by a plant manager. The allegedly material change in that case occurred
when the plant manager escorted the union representative to a confer-
ence room, rather than the lunchroom, to meet with the involved em-
ployees. Unlike in the instant case, it had not been the practice in Sel-
kirk for union representatives to enter the facility without notice to the
employer and have impromptu, casual, interactions with employees in
the lunchroom. Thus the change in Selkirk was only a matter of the
specific room that the plant manager provided for a pre-arranged meet-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
Board clarified that in Peerless “the Board found no violation
because it found no evidence that the employer actually had
applied, or intended to apply, the rule so as to reduce the access
of union representatives to employees for any representational
purpose.” 323 NLRB at 818. The circumstances of the present
stand in stark contrast to those in Selkirk and Peerless because
here the Respondent specifically aimed its new rule at union
representatives and reduced the ability of union representatives
and represented employees to access each other at the facility
through impromptu, informal, interactions. Where that is the
case, the Board, has distinguished Peerless and found a viola-
tion of Section 8(a)(5). Frontier Hotel, supra (Board distin-
guishes Peerless and finds a violation because “[i]n the present
case . . . the Respondent’s new restriction was specifically
aimed at union representatives and it actually resulted in deny-
ing employee access to the representatives on the day the re-
striction was imposed.”). I find that given the facts here, and
the applicable precedent, Selkirk and Peerless are not control-
ling and that a violation has been shown.
For the reasons discussed above, I find that, on June 23 and
24, 2014, the Respondent made unilateral changes in violation
of Section 8(a)(5) and (1) when it imposed new restrictions on
discussions in the public cafeteria between unit employees and
nonemployee representatives of the MNA and the SEIU.
C. Interference with Union Access to Bulletin Boards
The General Counsel also alleges that the Respondent violat-
ed Section 8(a)(1) and Section 8(a)(5) and (1) on February 10,
2014, and June 23, 2014, when it interfered with nonemployee
union representatives’ access to employee break rooms on pa-
tient care units.
Section 8(a)(1)
On June 23, 2014, the Respondent prohibited nonemployee
union representatives Anthony and Scott from accessing locked
employee break rooms on patient care units. Anthony and
Scott were attempting to access these rooms in order to post
union information on bulletin boards and have brief interactions
with off-duty unit employees, and the General Counsel alleges
that the Respondent’s denial of such access interfered with
Section 7 activity in violation of Section 8(a)(1) of the Act.
After considering the evidence and arguments submitted by the
parties, I find that the Respondent did not violate Section
8(a)(1) by prohibiting nonemployee union representatives from
accessing these locked employee break rooms. As discussed
above, in the Baptist Medical and Montgomery Ward & Co.
cases, the Board found that employers violated Section 8(a)(1)

ing with a designated individual. The change that the Respondent made
here was not simply one of location, but one that largely eliminated the
established practice allowing union representatives and represented
employees to have impromptu, casual, interactions in the public cafete-
ria where off-duty employees congregated. Moreover, the Respond-
ent’s new rule did not merely change the location of access from one
room to another, but reduced the number of locations since the repre-
sentatives and employees had previously had the option of meeting
either in the cafeteria or in the nonpublic areas designated by the Re-
spondent, and now were being limited to only the designated nonpublic
areas.
when they prohibited nonemployee union representatives from
using areas on their property for union-related activities where
those areas were open to the general public and the representa-
tives were using the areas in a manner consistent with usage by
other nonemployee visitors. The break rooms at issue here,
however, were not areas open to the public, but rather locked
rooms on patient care units. Nonemployees who wished to
enter these rooms would have to pass by a nursing station, walk
down a hallway lined with patient rooms, and persuade a staff
member to unlock the break room door using a code that was
distributed to hospital staff. There was no evidence that the
Respondent permitted members of the general public to use
these employee break rooms and the fact that the rooms were
kept locked strongly suggests that it did not permit such usage.
I find that the General Counsel has not shown that the Re-
spondent was discriminatorily denying access to the non-
employee union representatives in a manner inconsistent with
its treatment of other nonemployee visitors to the hospital, and
therefore find that a violation is not shown under NLRB v. Bab-
cock & Wilcox, supra, and Baptist Medical and Montgomery
Ward & Co. Absent such circumstances, and where, as here,
the union has other reasonable means of accessing employees
and has not secured a contractual right to the additional access
sought, it is appropriate to revert to the general rule under
which employers may exclude nonemployee union organizers
from nonpublic areas on company property. Babcock & Wil-
cox, 351 U.S. at 112–113; North Hills Office Services, 345
NLRB 1262–1263, 1262 (2005). The General Counsel cites no
cases showing that, where other reasonable means of reaching
employees exist, an employer cannot restrict a nonemployee
union representative’s access to nonpublic areas of a hospital in
the absence of a prior agreement between the parties, an estab-
lished practice, or evidence of discrimination.
In reaching this conclusion, I considered Board decisions
holding that employee break rooms, even those that are on pa-
tient care units and in proximity to immediate patient care are-
as, are not immediate patient care areas for purposes of Beth
Israel Hospital, supra, and Baptist Hospital, and therefore that
an employer presumptively violates Section 8(a)(1) by prohibit-
ing union activity in such areas. St. Margaret Mercy
Healthcare Centers, 350 NLRB 203, 203, and 209 (2007),
enfd. 519 F.3d 373 (7th Cir. 2008); Baptist Medical Cen-
ter/Health Midwest, 338 NLRB 346, 349 and 376 fn. 37 (2002).
However, while the Respondent cannot lawfully prohibit off-
duty employees from engaging in union activities in their break
rooms, it can prohibit unauthorized members of the public from
entering these or other restricted areas of the hospital. See
North Hill Office Services, supra. 41 The analysis would be
different if the record showed that the Respondent was dis-
criminating between nonemployee union representatives and

41 I am not persuaded by the General Counsel’s contention that the
denial of access violated Section 8(a)(1) because the Respondent eject-
ed Anthony and Scott from the break room in the presence of a unit
employee. The fact that an employee is present does not preclude an
employer from removing unauthorized non-employees from restricted
areas on company property. See North Hills Office Services, supra, and
Chemtronics Inc., 236 NLRB 178 (1978).
NORTH MEMORIAL HEALTH CARE 27
other members of the public, but, as noted above, that was not
shown with respect to the break rooms. Cf. Babcock & Wilcox,
supra (employer acts unlawfully when it discriminatorily denies
union representatives access to its property while permitting
others access for similar activities).
Regarding, the prior, February 10, 2014, incident in which
the Respondent denied Anthony access to the bulletin board on
the cardiac intensive care unit known as 4 SW, the General
Counsel has also failed to show a violation. In that case not
only was the bulletin board in a locked break room on a patient
care unit, but it was situated in such a way that it could only be
reached after passing through the nurse’s station—an area that
members of the public did not have to enter in order to visit
patient rooms.
For the reasons discussed above, I conclude that the evidence
does not show that the Respondent violated Section 8(a)(1) on
February 10, 2014, or June 23, 2014, when it denied non-
employee union representatives access to a locked employee
break room on patient care units at the facility.
1. Section 8(a)(5) and (1)
The General Counsel also alleges that the Respondent made
an unlawful unilateral change when it prohibited Anthony and
Scott from accessing a locked employee break room on June
23, 2014, and when it prohibited Anthony from accessing the
bulletin board in a locked employee break room in the 4 SW
patient care unit on February 10, 2014. Where employees are
represented by a union, their employer violates Section 8(a)(5)
and (1) of the Act by making a unilateral change regarding a
mandatory subject of bargaining. NLRB v. Katz, supra;
Whitesell Corp., supra; Ivy Steel & Wire, Inc., supra; Mercy
Hospital of Buffalo, supra; Associated Services for the Blind,
supra; Bethlehem Steel Co. (Shipbuilding Div.), supra. The
question here is whether the prohibition on access to the locked
employee break rooms by nonemployee union representatives
constituted a change. For the reasons discussed below, I find
that it did not.
As noted above, the relevant collective bargaining agree-
ments do not give the SEIU or the MNA the right to access
bulletin boards in locked employee break rooms on patient care
units. The SEIU contracts state that union representatives will
have access to bulletin boards, but do not state that union repre-
sentatives will have access to every bulletin board at the facili-
ty. Nor do they state, either specifically or in general terms,
that SEIU representatives will have access to the bulletin
boards in the locked employee break rooms on patient care
units at the facility. As far as the collective bargaining agree-
ment between the Respondent and the MNA goes, the relevant
language there states that the Respondent will provide bulletin
board spaces accessible to nurses for the purpose of posting
meeting notices and related materials. This language, like that
in the SEIU contracts, does not state that every bulletin board at
the facility will be accessible for such activities or that the bul-
letin boards in locked employee break rooms are among those
that must be accessible. Indeed, the MNA language does not
address access by nonemployee union representatives at all. As
discussed above, during bargaining the Respondent and the
SEIU have both proposed changes to the contract provision on
access to bulletin boards—the Respondent offering language
that would create additional restrictions that are not in the cur-
rent contracts and the SEIU offering language that would create
additional union rights to access that are not stated in the cur-
rent contracts. Neither side has obtained the other side’s
agreement to these proposals regarding access to bulletin
boards.
Even though the applicable collective bargaining agreements
do not provide that nonemployee union representatives of the
SEIU and the MNA will have access to the locked employee
break rooms on patient care units, the Respondent’s prohibition
would still constitute a change if there was an established past
practice allowing such access. KGTV, Inc., supra; Golden State
Warriors, supra; Exxon Shipping Co., supra. In this case, the
General Counsel has failed to prove the existence of such a
practice. It is true that non-employee representatives for the
MNA and the SEIU had a history of accessing the locked em-
ployee break rooms on patient care units for the purpose of
posting union information and having brief interactions with
off-duty employees. However, the record also shows that those
nonemployee union representatives were doing this without the
knowledge of the responsible officials in the Respondent’s
labor relations department—Cahoon and Wesman. The evi-
dence showed that Cahoon and Wesman had never authorized
nonemployee union representatives to access the employee
break rooms, and did not show that any other official in the
labor relations department had authorized such access. To the
contrary, although the Respondent had not specifically dis-
cussed access to the employee break rooms on patient care
units with Anthony, Wesman had informed Anthony of the
Respondent’s position that Anthony was prohibited from enter-
ing patient care floors at all. In addition, there was no evidence
that the Unions or the Respondent’s staff had ever informed the
labor relations department that nonemployee union representa-
tives were accessing the employee break rooms on patient care
floors. As discussed above in my findings of fact, I credit the
testimony of the Respondent’s labor relations officials that they
were unaware that this was going on prior to the incidents giv-
ing rise to the alleged violations.42 The Board has declined to
find that an employer unilaterally changed a past practice
where, as here, the employer was unaware of the supposed past
practice. Regency Heritage Nursing & Rehabilitation Center,
353 NLRB 1027–1028 (2009);43 BASF Wyandotte Corp., 278
NLRB 173, 180 (1986).
There was testimony that in at least some instances the per-
sons who previously granted the nonemployee union represent-
atives access to the locked break rooms were nurse managers or
health unit coordinators. However, SEIU officials Bialke and

42 This is different from the situation regarding the cafeteria, since
Cahoon had not only seen nonemployee union representatives in the
cafeteria on numerous occasions, but had initiated conversations about
union business when he found such a representative in the cafeteria.
43 This decision was issued by a two-member Board that was later
found to be invalidly constituted. See New Process Steel v. NLRB, 560
U.S. 674 (2010). A validly constituted three-member Board subse-
quently affirmed the two-member Board in Regency Heritage Nursing
& Rehabilitation Center, 355 NLRB 603 (2010), enfd. 437 Fed.Appx.
65 (3d Cir. 2011).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
Anthony both testified that it was understood that Cahoon and
Wesman of the labor relations department were the company
officials who dealt with questions about SEIU access at the
facility. Moreover, the General Counsel did not elicit testimo-
ny from a single nurse manager or health unit coordinator who
had unlocked a break room for one of the nonemployee union
organizers. Thus one can only guess at the basis upon which
such individuals believed they were acting when they took that
action. Finally, while the evidence showed that nurse managers
and health unit coordinators had unlocked employee break
rooms for nonemployee union representatives, it did not show
that they (as opposed to unit employees) had done so with any
frequency or that they had done so with sufficient frequency
that their actions could conceivably have amounted to an estab-
lished past practice.
I find that the evidence fails to show that the Respondent
made an unlawful unilateral change on either February 10,
2014 or June 23, 2014, when it acted to prohibit nonemployee
union representatives from accessing the locked employee
break rooms on patient care units at the facility. The complaint
allegation that such actions violated Section 8(a)(5) and (1)
should be dismissed.
D. Respondent’s Decision to Eject Anthony and Scott and
Impose a 1-Year Ban.
On June 23, 2014, after Cahoon interrupted Anthony’s and
Scott’s union activities in the cafeteria and employee break
room, the Respondent ejected Anthony and Scott from the fa-
cility and banned them from re-entering for a period of 1 year.
The complaint alleges that these actions by the Respondent
violated Section 8(a)(1) and Section 8(a)(5) and (1) of the Act.
Cahoon testified that the decision to ban Anthony and Scott
was based on the “activity we saw . . . in the cafeteria, and the
fact that they were up on a patient care unit.” There was no
contrary testimony or other evidence showing that the Re-
spondent would have removed and banned Anthony and Scott
based solely on their presence on a patient care unit and without
regard to the activity in the cafeteria. In Frontier Hotel &
Casino, the Board held that an employer violates the Act by
denying union representatives access to its facility because of
their failure to comply with an unlawfully imposed rule. 323
NLRB at 818. Under that precedent, the Respondent acted
unlawfully when it prohibited Anthony’s and Scott’s union
activities in the cafeteria and therefore the Respondent acted
unlawfully by denying them access to its facility for failing to
comply with that unlawful prohibition. Ibid.; see also Double
Eagle Hotel & Casino, 341 NLRB 112, 112 fn. 3 (2004) (em-
ployee discipline that is based on an invalid no access rule is
itself unlawful), enfd. 414 F.3d 1249 (10th Cir. 2005), cert.
denied 546 U.S. 1170 (2006); Flambeau Airmold Corp., 334
NLRB 165, 167 (2001) (when an unlawfully implemented work
rule is a factor in employee discipline, that discipline itself
violates Section 8(a)(5) of the Act). Since the removal and ban
also interfered with the ability of unit employees and their cho-
sen representatives to communicate about union matters, the
conduct also interfered with Section 7 rights in violation of
Section 8(a)(1).
The Respondent’s decision to remove Anthony and Scott
from the facility for 1 year would be a violation of Section
8(a)(5) and (1) even if the cafeteria prohibition on which it was
based was not itself unlawful. The Board has held that an em-
ployer violates Section 8(a)(5) by refusing to allow a nonem-
ployee to access its facility to perform his or her duties as a
union representative. The Modern Honolulu, 361 NLRB No.
24, slip op. at 2 (2014); Neilmed Products, Inc., 358 NLRB 47,
47 fn. 2 (2012); Claremont Resort & Spa, 344 NLRB 832, 832
and 835 (2005); see also Fitzsimons Mfg. Co., 251 NLRB 375,
379 (1980) (“It is well established that each party to a collec-
tive-bargaining agreement has both the right to select its repre-
sentative for bargaining and negotiations and the duty to deal
with the chosen representative of the other party.”), enfd. sub
nom. Auto Workers v. NLRB, 670 F.2d 663 (6th Cir. 1982).
An employer can justify such action only if “there is ‘persua-
sive evidence that the presence of the particular individual
would create ill will and make good-faith bargaining impossi-
ble.’” Neilmed Products, supra, quoting KDEN Broadcasting
Co., 225 NLRB 25, 35 (1976). Under this standard, the Board
has held that union representatives could not be denied access
to an employee’s premises even after engaging in misconduct
that was rather serious. For example, in Neilmed Products, the
Board found a violation where the employer denied access to a
union representative who had yelled angry comments at em-
ployees crossing a picket line and had broken the windshield of
a passing car. In Claremont Resort & Spa, supra, the Board
found that an employer could not refuse to deal with a union
representative even after that representative had attempted to
physically force her way into a meeting between an employee
and a manager. 344 NLRB at 832 fn. 2. In Victoria Packing
Corp., the employer was found to have acted unlawfully by
refusing further access to a union representative who yelled
“I’m going to get you and your . . . company” at the company’s
owner after being told that he could not talk to employees dur-
ing worktime. 332 NLRB 559, 599–600 (2000). In another
case, Long Island Jewish Medical Center, an employer violated
the Act by banning a union representative from its facility after
the representative cursed at managers and lightly shoved one of
them. 296 NLRB 51, 70–72 (1989). The Board has withheld
its approval for employer action banning union representatives
from its premises except in cases involving egregious repre-
sentative misconduct. See, e.g., Sahara Datsun, 278 NLRB
1044, 1046–1047 (1986) (employer could lawfully refuse to
deal with union representative who had contacted the employ-
er’s bank with unsupported allegations of financial impropriety
by employer’s managers), enfd. 811 F.2d 1317 (9th Cir. 1987);
Fitzsimons Mfg. Co., 251 NLRB at 379–380 (employer could
lawfully exclude union representative who engaged in an un-
provoked physical attack on company’s personnel director).
In this case, the Respondent banned Anthony and Scott for
conduct that was in no way violent or disruptive and which
was, in significant part, within their rights under the Act. An-
thony’s and Scott’s conduct did not begin to approach the types
of egregious misconduct present in those unusual cases where
the Board found that an employer could lawfully ban the em-
ployees’ chosen representative from its facility. Moreover, the
Respondent banned MNA representative Scott without previ-
ously informing him or the MNA that union activities in the
NORTH MEMORIAL HEALTH CARE 29
cafeteria or employee break rooms were frowned upon by the
Respondent, much less that the Respondent considered them so
egregious as to warrant banning him from the facility. In An-
thony’s case, the record does reveal a history of friction regard-
ing the limits of his right to access the facility to represent
SEIU members. Nevertheless, Anthony was not shown to have
ever behaved in a disruptive or threatening manner, and certain-
ly not to have engaged in unprovoked physical violence or
other egregious misconduct of the sort that the Board has found
can justify banning a union representative from the employer’s
facility. What Anthony did was hold, in a polite if persistent
manner, to the SEIU’s view regarding its Section 7 rights at the
facility, rather than acquiesce to the employer’s more restrictive
(and with respect to the cafeteria, incorrect) view. Under the
applicable standards, Anthony’s conduct does not come close to
justifying the Respondent’s decision to prohibit him from enter-
ing the facility to provide representation to bargaining unit
employees.44
The Respondent violated Section 8(a)(1) and 8(a)(5) and (1)
on June 23, 2014, when it ejected Anthony and Scott from its
facility and banned them from returning for a period of 1 year.
E. Allegations Regarding Respondent’s Prohibition on Ander-
son’s Posting Information about Picketing on Bulletin Board in
His Work Area
The General Counsel alleges that, on June 23, 2014, the Re-
spondent violated Section 8(a)(1) and 8(a)(5) and (1) when
Gubbins told Anderson that he was prohibited from posting
union information on the bulletin board located in the unit
where he worked. The evidence showed that Anderson, a un-
ion steward for 7 years who was also on the SEIU bargaining
committee and executive board, had placed a flyer regarding
the imminent picketing activity on a bulletin board in the SPD
department where he worked. The SPD department was not a
patient care area of the facility, but rather one where medical
implements were sterilized and prepared for distribution. It is
clear that the bulletin board was not in an area that employees
were prohibited from entering because the employer and others
routinely posted information for employees on it. For example,
the Respondent posted information there for employees regard-
ing its bargaining proposals. Anderson had posted information
regarding SEIU activities on the bulletin board in the past and
Gubbins was aware that the information was there. On June 23,

44 In its brief, the Respondent contends that its decision to remove
and ban the two union representatives from the facility did not violate
Sec. 8(a)(5) because the Unions never sought to bargain over those
decisions. In the circumstances present here, an 8(a)(5) violation is
shown because the punishment was imposed pursuant to a rule that was
adopted in violation of Sec. 8(a)(5) and because the punishment inter-
fered with employees’ right to choose their own representative, regard-
less of whether there was a refusal to bargain over the specific punish-
ment imposed. Even if such a showing was required, I would find a
violation since the Respondent presented its decision as a fait accompli
without giving the Unions advance notice an opportunity to bargain.
See Eby-Brown Co., supra; Dorsey Trailers, supra; Jaydon, Inc., supra;
Ciba-Geigy Pharmaceuticals Division, supra. Immediately upon con-
fronting Anthony and Scott in the break room, the Respondent’s offi-
cials announced that the two union representatives were being banned
from the facility and that police were being called.
the day before the informational picketing, Wesman told
Gubbins that the SEIU was not permitted to post on the bulletin
board. Gubbins, in turn, informed Anderson that he could not
place SEIU information on the bulletin board and also removed
the information that Anderson had posted and returned it to
him. She told Anderson, however, that it would be permissible
for Anderson to post other information such as flyers about a
promotion providing hospital employees with free admission to
a zoo. The next day, Wesman confronted Anderson, asked him
if he had posted the union flyer that Gubbins found on the SPD
bulletin board and, after Anderson said that he had posted it,
Wesman told him that doing so was prohibited. Anderson in-
formed Wesman that even before Anderson became a steward
approximately 7 years earlier, it was the SEIU’s practice to post
information on that bulletin board. Wesman accused Anderson
of violating the contract by posting there and said that Ander-
son’s position meant that “I can go ahead and break the contract
. . . as long as nobody knows about it.”
1. Section 8(a)(1)
The General Counsel alleges that the Respondent violated
Section 8(a)(1) by prohibiting employee Anderson from posting
union information on a bulletin board that was used to com-
municate with employees and that was in the area where An-
derson was assigned to work. That location was not an imme-
diate patient care area. Therefore, under the Supreme Court’s
decision in Beth Israel Hospital, supra, the prohibition on the
display of union information there is presumptively unlawful.
The employer has not rebutted that presumption by showing
that the posting caused a disruption of patient care or a disturb-
ance to patients. Baptist Hospital v. NLRB, 442 U.S. at 781 (the
employer has the burden of showing that union activity in a
non-patient-care areas would cause disturbance or disruption).
Moreover, in this case unlawful discrimination is shown since
the Respondent prohibited the union posting while stating that
it was permissible to post information about nonunion activities
such as a promotion involving free admission to a zoo. Hon-
eywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th
Cir. 1983) (in case involving a bulletin board, the Board finds a
violation because the employer prohibited union posting while
permitting other types of postings by employees); Container
Corp. of America, 244 NLRB 318, 318 fn. 2 (1979), enfd. in
part 649 F.2d 1213 (6th Cir. 1981) (same).
I find that the Respondent violated Section 8(a)(1) on June
23, 2014, when it prohibited Anderson from posting union in-
formation on the bulletin board in the department where he
worked.
Section 8(a)(5) and (1)
The General Counsel alleges that when Gubbins prohibited
Anderson from posting SEIU information on the bulletin board
in the SPD department the Respondent not only violated Sec-
tion 8(a)(1), but also made a unilateral change in violation of
Section 8(a)(5) and (1) of the Act. Based on my review of the
record, I find that the General Counsel has failed to demon-
strate that there was an agreement or established practice re-
garding employee posting at that location. As discussed with
respect to the other allegations regarding posting discussed
above, the labor contracts between the Respondent and the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
SEIU do not provide that the SEIU has the right to post on all
bulletin boards at the facility or that it has the right to access
specific bulletin boards of the SEIU’s choosing, such as the one
in the SPD department. Moreover, although I find that Gubbins,
the SPD manager, had permitted the SEIU to post information
on the bulletin board for a period of time, this was done without
the knowledge of the officials in the labor relations department
with whom the SEIU dealt about such matters. Under all the
circumstances present here, I conclude that the evidence fails to
demonstrate the existence of an established past practice per-
mitting the SEIU to post on the SPD bulletin board, and there-
fore fails to establish that a unilateral change occurred when
Gubbins prohibited Anderson from continuing to make such
posts. The SEIU has the right to post there, but that right is
conferred by Section 7 and 8(a)(1) of the Act, not the labor
contracts or an established practice.
The allegation that the Respondent made a unilateral change
in violation of Section 8(a)(5) and (1) when it prohibited An-
derson from posting SEIU information on the bulletin board in
the SPD department should be dismissed.
F. Allegation that Wesman Unlawfully Interrogated and
Threatened Anderson on June 24
The General Counsel alleges that Wesman, during the June
24 interaction that he initiated with Anderson, violated Section
8(a)(1) by coercively interrogating Anderson and threatening
surveillance. I find that these allegations are established.
An interrogation is unlawful if, in light of the totality of the
circumstances, it reasonably tends to interfere with, restrain, or
coerce employees in the exercise of their Section 7 rights.
Mathews Readymix, Inc., 324 NLRB 1005, 1007 (1997), enfd.
in part 165 F.3d 74 (D.C. Cir. 1999); Emery Worldwide, 309
NLRB 185, 186 (1992); Liquitane Corp., 298 NLRB 292, 292–
293 (1990). Relevant factors include: whether the interrogated
employee was an open or active union supporter, whether prop-
er assurances were given concerning the questioning, the back-
ground and timing of the interrogation, the nature of the infor-
mation sought, the identity of the questioner, and the place and
method of the interrogation. Stoody Co., 320 NLRB 18, 18-19
(1995); Rossmore House Hotel, 269 NLRB 1176, 1177–1178
(1984), affd. sub nom. Hotel & Restaurant Employees Local 11
v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Based on my consid-
eration of the record as a whole, I conclude that a violation is
shown under the Board’s standard. Wesman was not Ander-
son’s immediate supervisor, but rather an upper level official in
the labor relations department with facility-wide authority.
This fact would tend to add to the coercive impact of the ques-
tioning. At the time that Wesman confronted Anderson with
questions about his protected posting activity, the matter had
already been addressed between Anderson and his immediate
supervisor, Gubbins, pursuant to Wesman’s instruction. Thus
the subsequent questioning by Wesman seemed to have little if
any purpose other than to make Anderson uncomfortable about
the posting activity that the Respondent already knew he had
engaged in. Wesman intensified the intimidation by referencing
the Respondent’s decision, one day earlier, to punish Anthony
with a 1-year ban for, inter alia, posting union information on a
bulletin board. This would reasonably suggest to Anderson that
the Respondent might punish him for the posting activity that
Wesman was questioning him about. The level of coercion was
further heightened when Wesman challenged Anderson’s ac-
count of his posting activity by mentioning what he said he had
watched Anderson doing and by confronting him with state-
ments that Wesman said Anthony had made regarding that
activity.
Wesman failed to mitigate the coercive tenor of the interro-
gation by assuring Anderson that he could answer without fear
of reprisal. To the contrary, by referencing the punishment
meted out to Anthony just one day earlier for related activity,
Wesman gave just the opposite impression. It is not surprising
that, by the end of the interrogation, Anderson felt it was neces-
sary to tell Wesman that the intimidation had been successful
and that he was going to quit his union activities. See, e.g.,
Wilshire Plaza Hotel, 353 NLRB 304, 318 (2008) (fact that
union supporter reacts to interrogation by refraining from future
union activity is “best indication that [the] interrogation had
been coercive and had achieved the desired result”).
In reaching the conclusion that the interrogation was unlaw-
fully coercive, I considered the fact that Anderson was an open
union supporter. Anderson’s willingness to openly engage in
certain union activities would weigh on the side of finding that
questioning him about those open activities was not coercive.
In this case, however, Wesman did not limit himself to ques-
tioning about things Anderson had chosen to engage in openly.
Rather Wesman used assertions about what the Respondent
purportedly knew from surveillance, and from interviewing
Anthony, to contradict Anderson and pressure him to admit to
activities that Anderson had either chosen not to reveal or had
not actually engaged in.
Based on the totality of the circumstances, I conclude that
Wesman’s questioning had a reasonable tendency to interfere
with, restrain, or coerce Anderson’s union activities, and also
served as a warning to Anderson that his union activities were
under surveillance. Robert F. Kennedy Medical Center, 332
NLRB 1536, 1539–1540 (2000) (“When an employer creates
the impression among its employees that it is watching or spy-
ing on their union activities, employees’ future union activities,
their future exercise of Section 7 rights, tend to be inhibited.”);
see also Flexsteel Industries, 311 NLRB at 257 (employee
should be free to participate in union activities “without the fear
that members of management are peering over their shoulders,
taking note of who is involved in union activities, and in what
particular ways.”).
I find that the Respondent violated Section 8(a)(1) on June
24, 2014, when Wesman coercively interrogated Anderson
about his union activities and indicated that such activities were
under surveillance.
G. Prohibition on Wearing Union Shirts inside Facility
The General Counsel alleges that the Respondent violated
Section 8(a)(1) on June 24, 2014, when Abrams (vice-president
of human resources) directed Geurts (off-duty employee) to
stop displaying his union shirt in the facility’s public atrium
area and when a nurse manager and security guards told union
representatives Gulley and Hamilton that they could not display
their union shirts in the facility’s public lobby. The Supreme
NORTH MEMORIAL HEALTH CARE 31
Court and the Board have both recognized that hospitals have a
legitimate interest in providing a tranquil atmosphere for their
patients. To that end, such employers have been granted lee-
way to restrict the display of union insignias in immediate pa-
tient care areas. Beth Israel Hospital v. NLRB, 437 U.S. at
507; NLRB v. Baptist Hospital, Inc., 442 U.S. at 779–781; St.
John’s Hospital & School of Nursing, Inc., 222 NLRB at 1150.
However, the same leeway does not exist regarding locations
that are not immediate patient care areas. In those areas, a
medical facility presumptively violates the Act by prohibiting
individuals from wearing union insignia. NLRB v. Baptist Hos-
pital, 442 U.S. at 781; Healthbridge Management LLC, 360
NLRB No. 118, slip op. 1–2 (2014), enfd. 2015 WL 4909945
(D.C. Cir. 2015). An employer may rebut that presumption by
showing special circumstances – in particular that the display of
union insignias is disrupting health care operations or disturb-
ing patients. Baptist Hospital, 442 U.S. at 781; Beth Israel
Hospital, 437 U.S. at 507.
The Respondent has not presented any evidence that rebuts
the presumption that it violated Section 8(a)(1) by interfering
with Geurts’, Gulley’s, and Hamilton’s right to display union
insignias in a location at the hospital that was not an immediate
patient care area. There was no evidence showing that by
wearing union shirts in the lobby of the facility these individu-
als were in any way disrupting health care operations or dis-
turbing patients. The shirts had union insignias on them, but no
picketing slogans or criticisms of the Respondent. Rather than
point to any evidence of a disturbance or disruption, the Re-
spondent notes that the union shirts at issue were the same as
those that were being worn by the persons participating in the
informational picketing in a park near the hospital’s campus.
The Respondent does not explain if, or how, those circumstanc-
es caused the wearing of union shirts in the facility’s public
lobby and atrium to become disruptive to patient care or dis-
turbing to patients. During their time inside the facility Geurts,
Gulley and Hamilton were not chanting, carrying signs, using
noisemakers or amplification devices, accosting other visitors,
parading in large groups, or otherwise engaging in conduct that
might arguably be disruptive or disturbing to persons at the
facility for treatment. If anything, it was the Respondent who
risked causing a disturbance by confronting these individuals
about their union shirts. Even Wicklander, the Respondent’s
president, conceded that, given that Geurts did not have a shirt
on underneath his union shirt, it caused a disturbance to have
him remove the union shirt in the facility’s public atrium. Un-
der the circumstances, and although antiunion motive is not
necessary to show a violation of Section 8(a)(1) in this con-
text,45 the record suggests that management was motivated in
this instance by hostility towards the union activity, not by
sincere concerns about maintaining a tranquil atmosphere for
patients.

45 It is settled that the test of interference, restraint and coercion un-
der Sec. 8(a)(1) does not turn on the employer's motive or on whether
the coercion succeeded or failed; the test is whether the employer en-
gaged in conduct which, it may reasonably be said, tends to interfere
with the free exercise of Sec. 7 rights. Medcare Associates, Inc., 330
NLRB 935, 940 fn. 17 (2000).
I find that the Respondent violated Section 8(a)(1) on June
24, 2014, by prohibiting an off-duty employee and two non-
employee union representatives from wearing shirts with union
insignias in the public lobby and atrium of the facility.
H. Allegation that the Respondent Discriminatorily Terminated
Anderson in Violation of Section 8(a)(3) and (1)
The General Counsel alleges that the Respondent violated
Section 8(a)(3) and (1) on June 27, 2014, when, citing Ander-
son’s record of tardiness, it terminated Anderson’s employ-
ment. Under the Board's Wright Line decision, in cases alleg-
ing discrimination in violation of Section 8(a)(3) and (1), where
motivation is at issue, the General Counsel bears the initial
burden of showing that the Respondent's decision to take ad-
verse action against an employee was motivated, at least in
part, by antiunion considerations. 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
(1982), approved in NLRB v. Transportation Corp., 462 U.S.
393 (1983). The General Counsel may meet this burden by
showing that: (1) the employee engaged in union or other pro-
tected activity, (2) the employer knew of such activities, and (3)
the employer harbored animosity towards the Union or other
protected activity. Camaco Lorain Mfg. Plant, 356 NLRB
1182, 1184–1185 (2011); ADB Utility Contractors, 353 NLRB
166, 166–167 (2008), enf. denied on other grounds, 383 Fed.
Appx. 594 (8th Cir. 2010); Intermet Stevensville, 350 NLRB
1270, 1274–1275 (2007); Senior Citizens Coordinating Coun-
cil, 330 NLRB 1100, 1105 (2000); Regal Recycling, Inc., 329
NLRB 355, 356 (1999). Animus may be inferred from the
record as a whole, including timing and disparate treatment.
Brink's, Inc., 360 NLRB No. 136, slip op. at 1 fn. 3 (2014);
Camaco Lorain Mfg. Plant, supra; see also Gaetano & Associ-
ates, 344 NLRB 531, 532 (2005) (animus may be inferred from
timing), enfd. 183 Fed. App. 17 (2d Cir. 2006), Davey Roofing,
Inc., 341 NLRB 222, 223 (2004) (same). If the General Coun-
sel establishes discriminatory motive, the burden shifts to the
employer to demonstrate that it would have taken the same
action absent the protected conduct. Camaco Lorrain, supra;
ADB Utility, supra; Intermet Stevensville, supra; Senior Citi-
zens, supra.
The evidence supporting the General Counsel’s prima facie
case could hardly be stronger. Anderson was a known union
activist—serving not only as a steward for the Union, but also
sitting on its contract bargaining committee and its executive
board. The Respondent, and in particular labor relations offi-
cials like Wesman, were well aware of these activities. In addi-
tion, on June 24—only one day before Wesman for the first
time advocated that Anderson’s decade long history of tardi-
ness warranted termination—Wesman confronted, and unlaw-
fully interrogated and threatened, Anderson about his union
activity. Wesman was also part of the small cadre of Respond-
ent officials that was involved in, inter alia, the unlawful inter-
ference with the union activities in the cafeteria on June 23 and
24. In addition to this evidence of animus very closely con-
nected to Anderson’s termination, the unlawful acts already
found above demonstrate the Respondent’s pervasively hostile
attitude towards union activities relating to the informational
picketing. The evidence shows that Anderson was engaged in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
union activity, that the Respondent was aware of that activity
and bore hostility towards it and, therefore, the General Coun-
sel has met its initial burden of showing that the Respondent's
decision to terminate Anderson was motivated, at least in part,
by antiunion considerations.
Since the General Counsel has met its initial burden, the bur-
den falls on the Respondent to show by a preponderance of the
evidence that it would have terminated Anderson even in the
absence of his protected activity. Camaco Lorrain, supra; ADB
Utility, supra; Intermet Stevensville, supra; Senior Citizens,
supra. The Respondent cannot meet this burden by simply
showing a legitimate reason for the termination, but rather must
show that it would have taken the same action for that legiti-
mate reason even in the absence of the protected activity. Mon-
roe Mfg., 323 NLRB at 27; T & J Trucking Co., 316 NLRB
771, 771 (1995), enfd. 86 F.3d 1146 (1st Cir. 1996) (Table).
The record indicates that, on about June 27, Anderson’s super-
visor, Gubbins, would likely have imposed some type of disci-
pline on Anderson even if she did not know about his protected
activity. However, the record shows that the discipline im-
posed would, at most, have been a 2-day suspension if not for
the fact that Wesman challenged the level of discipline that
Gubbins planned and argued for Anderson’s termination. On
June 9, Anderson was late for work and Gubbins decided at that
time that some level of discipline should be considered. She
was considering either a written warning or a suspension. She
sought the advice of both Sylvester and Wesman on that ques-
tion. On June 10, Sylvester told Gubbins that what appeared to
be appropriate under the tardiness guidelines was a written
warning unless Anderson’s prior suspension warranted “bump-
ing” the discipline up to the suspension level. On June 11 and
12, Wesman, after obtaining background information about
Anderson’s tardiness issues, responded to Gubbins but did not
make any recommendation about the appropriate level of disci-
pline and, more tellingly, did not suggest that the range of dis-
cipline that Gubbins and Sylvester had been considering (verbal
warning or suspension) was insufficiently harsh. Instead he
asked Gubbins what she wanted to do.
Gubbins concluded that a 2-day suspension without pay was
the appropriate level of discipline and she prepared a draft dis-
ciplinary notice for Anderson to that effect. Discipline of that
kind had to be reviewed by the labor relations department and,
on June 25, Gubbins forwarded the draft disciplinary notice
imposing a suspension to Wesman and asked him “How does
this look to you?” This was only 1 day after Wesman unlaw-
fully confronted Anderson about his activity in support of the
informational picketing. Within minutes of receiving Gubbins’
draft suspending Anderson, Wesman responded as follows:
“Judy [Gubbins], I do not agree. Termination is more than
warranted and we will lose consistency when others are termi-
nated for much less.” Until that point—just one day after
Wesman unlawfully interrogated and threatened Anderson—
neither Wesman, nor anyone else involved in the discussions,
had raised the possibility that Anderson would be terminated.
The Respondent did not show that Gubbins had considered
proposing termination during the discussions from June 9 to 24.
After receiving Wesman’s communication pressing for Ander-
son’s termination, Gubbins altered the disciplinary notice to
impose termination rather than suspension, although she left the
notice otherwise unchanged. On June 27, Gubbins terminated
Anderson and provided him with the disciplinary notice.
Based on the above, I find that Anderson would not have
been terminated if not for the fact that Wesman challenged
Gubbins’ decision to impose lesser discipline and argued that
Anderson had to be terminated. The question then narrows to
whether the Respondent has shown by a preponderance of the
evidence that Wesman would have taken that action in the ab-
sence of Anderson’s protected activity. I conclude that the
Respondent has not met its burden in that regard. Prior to un-
lawfully confronting Anderson about his protected activities on
June 24, Wesman had not suggested that the range of discipline
Gubbins was discussing with Sylvester—written warning or
suspension – was inappropriate and had not argued for termina-
tion. The Respondent did not show that anything happened
between June 11 (when Wesman expressed no disagreement
with the warning-suspension discipline range) and June 25
(when Wesman objected to that discipline range and argued for
termination) that would explain a change in outlook other than
the fact that Anderson was involved in the informational picket-
ing and had taken issue with Wesman’s intimidation tactics on
June 24. To the contrary, the evidence is that Anderson had no
additional incidents of tardiness between June 11 and June 25.
In addition, although Anderson’s tardiness problems
stretched back a decade, and although Anderson had received
discipline for those problems in the past, the Respondent did
not show that Wesman had ever before argued that the level of
discipline should be more severe. Indeed, although there was
conclusory testimony that, for persons other than Anderson,
Wesman had sometimes advocated for a stricter level of disci-
pline than that which was proposed by a supervisor, the Re-
spondent did not introduce evidence showing that Wesman’s
intervention in any such cases involved employees similarly
situated to Anderson or that the intervention was comparably
harsh.
Moreover, in the case of Anderson, Wesman could only jus-
tify termination by departing from the disciplinary chart in the
tardiness guidelines. As Sylvester advised Gubbins, Ander-
son’s record of 11 occurrences of over 5 minutes only warrant-
ed a written warning according to that chart. In order to termi-
nate Anderson, it was necessary to depart from the very specific
framework laid out in the disciplinary chart and invoke vague
language providing that discipline could also be imposed based
on a “discernible pattern of lateness less than 5 minutes.” That
language does not mention termination or specify what level of
discipline will result from such a pattern or from specific num-
bers of latenesses of less than 5 minutes.
Both sides introduced evidence regarding the discipline im-
posed on other employees for tardiness. That evidence, which is
set forth in some detail earlier in this decision, is inconclusive.
In many instances it does not make clear whether the
tardinesses were of more or less than 5 minutes (and thus does
not show where they fall under the disciplinary chart in the
tardiness guidelines), and in other instances it bases discipline
on a period shorter than the rolling 12-month period that is set
forth in the guidelines and was used in disciplining Anderson.
Moreover, it appears to include examples both of employees
NORTH MEMORIAL HEALTH CARE 33
who received discipline short of termination even though their
conduct was at least as severe as Anderson’s under the tardi-
ness guidelines and of employees who were terminated for
conduct comparable to Anderson’s.46 It is also the case that
Anderson’s circumstances were somewhat unusual in that he
was an employee of 11 years who was considered very capable
in most respects, but had problems with tardiness for essentially
the entire period of his employment, and who the Respondent
had not previously sought to terminate. The comparator evi-
dence was not complete enough to assess the extent to which
Anderson’s history differed from that of the comparators in
those respects and, at any rate, the Respondent’s witnesses did
not clarify what weight was given to Anderson’s longevity or
positive attributes as an employee when the decision to termi-
nate him was made.
To sum up, I find that although the evidence shows that in
June 2014 the Respondent would likely have issued some dis-
cipline to Anderson absent his protected activities, the Re-
spondent has failed to rebut the strong evidence indicating that
he would not have been terminated if not for the Respondent’s,
and in particular Wesman’s, hostility towards Anderson’s union
activity. As discussed above, Wesman had been involved with
the discussions on the question of whether to warn or suspend
Anderson earlier in June, but it was not until the day after he
unlawfully confronted Anderson about his union activity that
Wesman registered any objection to the warning/suspension
level of discipline or advocated that Gubbins should, in a depar-
ture from the disciplinary chart in the tardiness policy, termi-
nate Anderson.
For the reasons stated above, I conclude that the Respondent
unlawfully discriminated against Anderson based on his union
activities in violation of Section 8(a)(3) and (1) when it termi-
nated him on June 27, 2014.
I. Allegation that the Respondent Violated Section 8(a)(1) and
Section 8(a)(5) and (1) on August 21, 2014, when it Ejected
Anderson from the Facility for Engaging in Union Activity in
the Cafeteria and Threatened Arrest
The General Counsel argues that on August 21, 2014, the
Respondent violated Section 8(a)(1) and Section 8(a)(5) and (1)
of the Act when Wesman ejected Anderson from the facility
because of his union activity in the cafeteria, and also threat-
ened to have Anderson arrested if he conducted union business
in the cafeteria again. At the time of these actions, Anderson’s

46 These records show an instance in which an employee was not
terminated even though, unlike Anderson, she had enough occurrences
of over 5 minutes to trigger termination under the disciplinary chart.
Specifically, on July 1, 2011, an employee who had 62 tardiness occur-
rences of 5 minutes or more during the relevant 12-month period was
considered for termination but given only a warning. (R. Exh. 69.)
The record shows that the employee was also late by less than 5
minutes on numerous occasions. This employee’s tardiness record
when the Respondent decided to issue the warning was at least as bad
as Anderson’s was when the Respondent terminated Anderson for 11
occurrences of 5 minutes or more, and his numerous latenesses of less
than 5 minutes. On the other hand, the evidence showed that on July
16, 2014, another employee was terminated based on a record of 74
latenesses over approximately 14 months.
employment had already been terminated by the Respondent
and he was present as a nonemployee SEIU organizer. The
analysis and relevant case law is the same with respect to An-
derson as it was for the other nonemployee SEIU representa-
tives whose activities in the cafeteria the Respondent unlawful-
ly interfered with on June 23 and 24. As in the earlier instanc-
es, Anthony was engaging with small groups of employees in
the public cafeteria in a nondisruptive manner that was con-
sistent with the way other visitors were using the cafeteria.
Although the employee who Anderson had been speaking to,
Combs, was not a bargaining unit employee, this was not
known to either of them at the time and, at any rate, Combs
testified that the conversation was not unpeaceful. Therefore,
the Respondent violated Section 8(a)(1) when Wesman used
ejection and threats of arrest to prevent Anderson from partici-
pating in orderly, nondisruptive, gatherings in a cafeteria that
was open to the general public, while permitting comparable
gatherings in the same location as long as union representatives
and union subjects were not involved. See Babcock & Wilcox,
supra, and Baptist Medical, supra.; see also Fred Meyer Stores,
359 NLRB 316, 317 (2012), reaffirmed by 362 NLRB No. 82
(2015) (employer violated Section 8(a)(1) when it prohibited
union representatives from talking to employees on the store
floor and threatened to have the union representatives arrested
or removed from the store) and Frontier Hotel & Casino, 309
NLRB 761, 766 (1992) (Board affirms ALJ's finding that ejec-
tion of union representatives from the hotel’s premises inter-
fered with union-related communications and violated Section
8(a)(1)), enfd. in relevant part 71 F.3d 1434 (9th Cir. 1995).
The Respondent violated Section 8(a)(1) when on August 21,
2014, when it interfered with Anderson’s union activities by
ejecting him from the facility and threatening to have him ar-
rested.
The General Counsel also alleges that the Respondent’s in-
terference with Anderson’s activities August 21 constituted a
unilateral change to an established practice regarding union
access and therefore violated Section 8(a)(5) and (1). At the
time that Wesman interrupted Anderson’s activities he was
talking to only one other individual—a type of activity that the
Respondent, including labor relations officials Cahoon and
Wesman, had known about and permitted prior to the events of
late June. Moreover, Wesman’s statement to Anderson on
August 21 was not that union gatherings above a certain size
were prohibited, but rather that there was a blanket prohibition
on union business and activities in the cafeteria and that unions
were not allowed in the cafeteria. The Respondent did not give
the SEIU notice and an opportunity to bargain before imple-
menting this prohibition, which was a change from the prior
practice regarding SEIU access to, and use of, the cafeteria. A
unilateral change that denies or reduces union access to unit
employees, as this change did, is material in nature and a viola-
tion of Section 8(a)(5) and (1). Turtle Bay Reports, 355 NLRB
at 1272–1273; Frontier Hotel, 323 NLRB at 817–818; Ernst
Home Centers, 308 NLRB at 848-849; American Commercial
Lines, 291 NLRB at 1072.
For the reasons discussed above, the Respondent made a uni-
lateral change in violation of Section 8(a)(5) and (1) on August
21 when it prevented and prohibited Anderson from engaging
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
in union activity in the cafeteria that was open to the general
public.
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 SEIU and the MNA are labor organizations within
the meaning of Section 2(5) of the Act.
3. The claims in this case are not appropriate for deferral to
the parties’ grievance and arbitration procedures.
4. The Respondent violated Section 8(a)(1) of the Act: on
June 23 and June 24, 2014, when it prohibited nonemployee
representatives of the SEIU and the MNA from having non-
disruptive union-related conversations at the facility while in a
cafeteria that was open to the general public; on June 24, 2014,
when the Respondent physically interfered with the ability of
nonemployee representatives of the SEIU and the MNA to meet
with, and talk to, employees at the facility while in a cafeteria
that was open to the general public; on June 24, 2014, by coer-
cively surveilling the conversations that nonemployee repre-
sentatives of the SEIU and the MNA had with employees; on
June 23, 2014, when it ejected nonemployee union representa-
tives Anthony and Scott from its facility and banned them from
returning for a period of 1 year; on June 23, 2014, when it pro-
hibited employee Anderson from posting union information on
the bulletin board in the sterile processing department where he
worked; on June 24, 2014, when the Respondent coercively
interrogated employee Anderson about his union activities and
threatened that such activities were being surveilled by the
Respondent; on June 24, 2014, when it prohibited an off-duty
bargaining unit employee and two nonemployee union repre-
sentatives from wearing shirts with union insignias while in
locations that were not immediate patient care areas; and on
August 21, 2014, when it interfered with a nonemployee SEIU
representative’s union activities in a cafeteria that was open to
the general public by ejecting him from the facility and threat-
ening to have him arrested.
5. The Respondent violated Section 8(a)(5) and (1) of the
Act: on June 23, June 24, and August 21, 2014, when it unilat-
erally imposed restrictions on the activities of nonemployee
representatives of the MNA and the SEIU in the public cafete-
ria at the facility; and on June 23, 2014, when pursuant to the
unlawfully imposed restriction it ejected nonemployee union
representatives Anthony and Scott from the facility and banned
them from returning for a period of 1 year.
6. The Respondent unlawfully discriminated against Melvin
Anderson based on his union activities in violation of Section
8(a)(3) and (1) when it terminated him on June 27, 2014.
7. The Respondent was not shown to have committed the
other unfair labor practices alleged in the complaint.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act. The Respondent, having discriminatorily
discharged Anderson, must offer him full and immediate rein-
statement and make him whole for any loss of earnings and
other benefits. To the extent that a preponderance of the evi-
dence of record, or adduced in a compliance proceeding, shows
that absent its discriminatory animus the Respondent would, on
or about June 27, 2014, have imposed the 2-day suspension
proposed by Gubbins or other discipline affecting compensa-
tion, the backpay award will be reduced accordingly. Backpay
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
The Respondent shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar
quarters and shall also compensate the discriminatee for the
adverse tax consequences, if any, of receiving one or more
lump-sum backpay awards covering periods longer than 1 year,
Latino Express, Inc., 359 NLRB No. 44 (2012).
In addition to other standard remedies, the General Counsel
seeks imposition of an extraordinary remedy – that either
Cahoon or Wesman be required to read the attached notice
aloud to employees during working time. The Board has stated
that such a requirement is not warranted except where the Gen-
eral Counsel shows that other remedies will be insufficient.
Chinese Daily News, 346 NLRB 906, 909 (2006), enfd. 224
Fed.Appx. 6 (D.C. Cir. 2007). The evidence does not show that
the employer has an extensive prior history of violations or of
noncompliance with cease-and-desist orders. Since the evi-
dence does not show that the traditional remedies will be insuf-
ficient in this case, I decline to recommend the extraordinary
remedy sought by the General Counsel.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended Order.47
ORDER
The Respondent, North Memorial Health Care, Robbinsdale,
Minnesota, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting representatives of the SEIU and/or the MNA
from engaging in nondisruptive activities with employees, or
other union representatives, while at the Robbinsdale, Minneso-
ta, facility (the facility) in areas that are open to the general
public.
(b) Physically interfering with the ability of representatives
of the SEIU and/or the MNA to meet with, and talk to, employ-
ees at the facility in areas that are open to general public.
(c) Coercively surveilling the activities that representatives
of the SEIU and/or the MNA engage in at the facility.
(d) Ejecting nonemployee representatives of the SEIU and/or
the MNA from the facility, banning such individuals from the
facility, and/or threatening to have such individuals arrested
because they engage in nondisruptive activities at the facility in
areas that are open to the general public.
(e) Prohibiting employees in the sterile processing depart-

47 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
NORTH MEMORIAL HEALTH CARE 35
ment at the facility from posting information about union mat-
ters on the bulletin board in that department.
(f) Coercively interrogating employees about their union ac-
tivities and/or threatening that the Respondent has placed such
activities under surveillance.
(g) Prohibiting off-duty employees and/or nonemployee un-
ion representatives from wearing clothing with union insignias
in locations at the facility that are not immediate patient care
areas.
(h) Unilaterally changing the terms and conditions of em-
ployees represented by the SEIU and/or the MNA without noti-
fying the representative and giving it an opportunity to bargain.
(i) Unilaterally imposing restrictions on the nondisruptive ac-
tivities of nonemployee representatives of the SEIU and/or the
MNA in areas at the facility that are open to the general public.
(j) Ejecting and/or banning nonemployee representatives of
the SEIU and/or the MNA from the facility for violating unlaw-
fully imposed restrictions on union activity.
(k) Discharging or otherwise discriminating against any em-
ployee for supporting the SEIU or any other union.
(l) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Immediately rescind the restrictions unlawfully imposed
on the union activities of nonemployee union representatives.
(b) Immediately rescind the restrictions unlawfully imposed
on employees’ posting of union information on the bulletin
board in the sterile processing department.
(c) Immediately rescind the restriction unlawfully placed on
the wearing of clothing with union insignias in locations at the
facility that are not immediate patient care areas.
(d) Immediately rescind the trespass notices/warnings issued
to SEIU representative Frederick Anthony and MNA repre-
sentative Karlton Scott, and notify them that this has been done.
(e) Within 14 days from the date of the Board’s Order, offer
Melvin Anderson full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(f) Make Melvin Anderson whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of the
decision.
(g) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge, and
within 3 days thereafter notify the employee in writing that this
has been done and that the discharge will not be used against
him in any way.
(h) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(i) Within 14 days after service by the Region, post at its fa-
cility in Robbinsdale, Minnesota, copies of the attached notice
marked “Appendix.”48 Copies of the notice, on forms provided
by the Regional Director for Region 18, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted, including all bulletin boards in break
rooms located on units where bargaining unit employees work.
In addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since June 23,
2014.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. September 3, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT prohibit representatives of SEIU Healthcare
Minnesota (SEIU) and/or Minnesota Nurses Association
(MNA) from engaging in nondisruptive activities with you or
with one another at the Robbinsdale, Minnesota, facility (the
facility) in areas that are open to the general public.
WE WILL NOT physically prevent representatives of the SEIU
and/or the MNA from meeting with and talking to, you in areas
at the facility that are open to general public.
WE WILL NOT watch or monitor the conversations that repre-

48 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
sentatives of the SEIU and/or the MNA have with you, or one
another, at the facility.
WE WILL NOT eject representatives of the SEIU and/or the
MNA from the facility, ban such individuals from the facility,
and/or threaten such with arrest because they engage in non-
disruptive activities in areas at the facility that are open to the
general public.
WE WILL NOT prohibit employees in the sterile processing
department at the facility from posting information about union
matters on the bulletin board in that department.
WE WILL NOT coercively interrogate you about union activi-
ties and/or threaten that we are watching or monitoring such
activities.
WE WILL NOT prohibit off-duty employees and/or non-
employee union representatives from wearing clothing with
union insignias in locations at the facility that are not immedi-
ate patient care areas.
WE WILL NOT unilaterally change the terms and conditions of
employees represented by the SEIU and/or the MNA without
notifying the representative and giving it an opportunity to
bargain.
WE WILL NOT unilaterally impose restrictions on non-
disruptive activities by representatives of the SEIU and/or the
MNA in areas at the facility that are open to the general public.
WE WILL NOT eject and/or ban representatives of the SEIU
and/or the MNA from the facility for violating unlawfully im-
posed restrictions on union activity.
WE WILL NOT discharge or otherwise discriminate against
any employee for supporting the SEIU or any other union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL rescind the restrictions unlawfully imposed on the
activities of union representatives.
WE WILL rescind the restrictions unlawfully imposed on em-
ployees’ posting of union information on the bulletin board in
the sterile processing department.
WE WILL rescind the restriction unlawfully placed on the
wearing of clothing with union insignias.
WE WILL rescind the trespass notices/warnings that we issued
to SEIU representative Frederick Anthony and MNA repre-
sentative Karlton Scott and notify them that this has been done.
WE WILL, within 14 days from the date of this Order, offer
Melvin Anderson full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Melvin Anderson whole for any loss of earn-
ings and other benefits resulting from his discharge, less any
net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administra-
tion allocating backpay to the appropriate calendar quarters.
WE WILL compensate Melvin Anderson for the adverse tax
consequences, if any, of receiving one or more lump-sum
backpay awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Mel-
vin Anderson, and WE WILL, within 3 days thereafter, notify him
in writing that this has been done and that the discharge will not
be used against him in any way.
NORTH MEMORIAL HEALTH CARE
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/18–CA–132107 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.