Rocky Mountain Eye Center, P. C.

National Labor Relations Board - Administrative Judge Opinions

May 6, 2015

19-CA-134567 (N.L.R.B. May. 6, 2015)

JD(SF)–19–15
Missoula, MT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ROCKY MOUNTAIN EYE CENTER,
P.C.
and Cases 19–CA–134567
19–CA–137315
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 400
Adam D. Morrison, Esq.,
for the General Counsel.
Daniel D. Johns, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was tried in Missoula, Montana on
March 10, 2015. The International Union of Operating Engineers (Charging Party or Union) filed
the original charge in Case 19–CA–134567 on August 11, 2014, and the original charge in Case
19–CA–137315 on September 23, 2014.1 The General Counsel consolidated the charges and issued
a consolidated complaint on December 5, 2014, and an amended consolidated complaint on
February 6, 2015. The Respondent filed timely answers, denying all material allegations and
setting forth its affirmative defenses.
The complaint alleges that Rocky Mountain Eye Center, P.C. (the Respondent or RMEC)
violated Section 8(a)(1) of the National Labor Relations Act (the Act) by maintaining an overly-
broad confidentiality rule. The complaint further alleges that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging employee Britta Brown for assisting the Union and
engaging in concerted activities.

1 All dates are 2014 unless otherwise indicated.
JD(SF)–19–15
2
On the entire record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and the Respondent, I make the following
I. JURISDICTION
5
The Respondent, a Montana corporation with an office and place of business in Missoula,
Montana, operates medical clinics providing ophthalmology and optometry services. The
Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning
of Section 2(5) of the Act. 10
II. FINDINGS OF FACT
A. Background and the Respondent’s Operations
15
Rocky Mountain Eye Center provides medical and surgical treatment of all forms of eye
disease in the State of Montana. Their services range from routine eye exams to orbital
reconstruction. RMEC’s main office is in Missoula, with satellite offices in Hamilton and Butte,
and access to satellite offices in Helena, Ronan, and Bozeman.
20
RMEC employs a total of roughly 120 employees. Their practice includes seven
ophthalmologists, six of whom work in Missoula and one of whom works in Butte. There are six
optometrists: four in Missoula, one in Hamilton, and one in Butte. Support staff includes
administrative assistants, billing specialists, transcriptionists, surgical assistants, nurses, ophthalmic
assistants, and ophthalmic technicians. The administrative and management arm of RMEC is called 25
Northstar Medical Management (Northstar). RMEC owns Northstar, which manages other entities
in addition to RMEC. Ophthalmologist Michael Peterson is RMEC’s managing partner, and serves
as the liaison between the administrative staff and the physicians.
The ophthalmic assistants report to Supervisor Jodi Keating. 2 Keating reports to Jane 30
Swartz, the human resources (HR) director. Swartz reports to Chief Executive Officer (CEO)
Darlene Timmerhoff. Michelle Winstone serves as the “front office float” and human resources
assistant.3 Lead ophthalmic assistant Kerry Waldbillig provides training on both technical and
administrative matters to new ophthalmic assistants.
35
Charging Party Britta Brown worked as an ophthalmic assistant for the Respondent from
March 7, 2011, until her termination on August 11, 2014.4 Brown interviewed for her position with
a panel, including Swartz, Keating, and Waldbillig. She was then sent for a pre-employment
assessment called caliper to determine if her skill set matched RMEC’s needs. She met with Swartz
again and was offered the job. Brown’s interview process was in line with how RMEC interviews 40
and hires its ophthalmic assistants.

2 The Respondent admits, and I find, that Keating performed one or more of the duties set forth in Sec.
2(11) of the Act, and is therefore a statutory supervisor.
3 Timmerhoff, Swartz, and Winstone work for Northstar Medical Management, but, as Peterson
testified, RMEC and Northstar are one in the same.
4 Brown’s maiden name, Clark, appears on some documents.
JD(SF)–19–15
3
B. HIPAA and Use of Patient Record System
RMEC is bound by the Health Information Portability and Accountability Act (HIPAA), a
federal law designed to protect patient privacy. Any potential violations of HIPAA must be 5
reported to the U.S. Department of Health and Human Services, and the Government can impose
substantial fines and penalties if it finds a violation.
During orientation, employees watch two videos, one about HIPAA privacy and another
about HIPAA security. Booklets that accompany the videos and cover the same content are also 10
available for employees to read at their convenience. (R Exhs. 8–9.)5 After the videos, employees
take tests about each topic.6 (R Exh. 1–2, 4–9.)
The HIPAA privacy booklet defines protected health information (PHI) as “[a]ny health
information or patient information used or disclosed by a covered entity in any form—oral, 15
recorded on paper, or sent electronically, or: Any personal health information that contains
information that connects the patient to the information.” (R Exh. 8.) It provides the following
examples of information that might connect personal health information to the individual patient:
“The individual’s name or address; Social Security or other identification numbers; Physician’s
personal notes; Billing information.” (Id.) The HIPAA security booklet provides that “health 20
information is protected when it contains personal information that connects the patient to the
information, such as: Patient’s name and address; Social Security number; Billing information;
Physician’s notes.” (R Exh. 9.)
According to Timmerhoff and Swartz, patient health information protected from disclosure 25
includes personally identifiable information (PII) including name, phone number address, and
social security number.
Patient accounts at RMEC are maintained on a computerized system called Centricity. Any
RMEC employee can access information in Centricity. RMEC has a policy in place which states, 30
in relevant part, “Your access to information within Centricity will be limited to what you need to
do your job and you are prohibited from looking at any protected health information (PHI) other
than what you need to do your job.” (R Exh. 10.)
During the time period at issue, personal contact information for the employees was stored 35
in Centricity, whether or not the employee was also a patient at RMEC. To access an account, an
employee pulls up Centricity and types the individual’s name into the initial screen. A screen then
opens with the individual’s name, social security number, address, phone number, and insurance

5 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for the Respondent’s
exhibit; “GC Exh.” for the General Counsel’s exhibit; “GC Br.” for the General Counsel’s brief; and “R Br.”
for the Respondent’s brief. Although I have included several citations to the record to highlight particular
testimony or exhibits, I emphasize that my findings and conclusions are based not solely on the evidence
specifically cited but rather are based my review and consideration of the entire record.
6 Brown took the HIPAA quizzes on March 11, 2011. (R Exhs. 1–2.)
JD(SF)–19–15
4
information.7 There is no way to tell, on this screen, if an employee is a patient at RMEC.8 (R Exh.
15.)
Waldbillig, the lead ophthalmic assistant, trained employees on the Centricity system.9
During Brown’s training session, Waldbillig pulled up her own personal account and walked 5
through, step-by-step, where certain information should be entered. She then instructed Brown to
input her date of birth to see if she had been a patient at RMEC. Because Brown had been a patient
years ago, her name was in the system, but her contact information was not current. At
Waldbillig’s request, Brown updated her contact information and it was retained in the system in
case anyone needed to contact her. 10
Heather Wilson, another ophthalmic assistant, had a similar orientation when she started,
which was roughly 2–½ years prior to the hearing. While learning how to schedule and cancel
patient appointments, Waldbillig instructed Wilson to enter her contact information into Centricity.
Wilson was not a patient at the time, so she created a mock account. As part of her orientation, 15
Wilson made mock entries into her account to learn how to use the system. Mock appointments and
other entries were later canceled, with the notation “operator error cancelled.” (Tr. 82.) Though
Wilson was not a patient at the time, Waldbillig told her, “This information will be in here from
now on, just in case anybody—any other employees might need to get a hold of you, the phone
number would be in there.” (Tr. 77.) 20
Jaclyn DeGroot, who was also not a patient at the time of her orientation, entered her
contact information into Centricity in the same manner as Wilson. Waldbillig told her that “it
would help us get familiar with the computer system and that if anyone needed to contact us for
any reason they can just look us up.” (Tr. 99.)25
It was generally known that coworkers and supervisors accessed the Centricity system to
get employee contact information. Employees accessed each others’ contact information for work-
related purposes, primarily involving last-minute schedule changes. If there was an after-work
gathering or an event such as a baby shower, employees would find each others’ contact 30
information in Centricity. During the relevant time period, employees’ contact information was not
stored anywhere at the Missoula facility other than in Centricity.

7 This screen that opens up when the individual’s name is typed in is referred to as the “first screen” in
this decision.
8 By clicking on tabs at the top of this screen, it is possible to access a variety of health information
about the individual if he or she is a patient.
9 I find Waldbillig was an agent of the Respondent. Under Sec. 2(13) of the Act, “[i]n determining
whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for
his acts, the question of whether the specific acts performed were actually authorized or subsequently
ratified shall not be controlling.” Waldbillig at the very least had apparent authority to train the ophthalmic
assistants in both the technical aspects of their work and on how to operate Centricity. See Mastec North
America, Inc., 356 NLRB No. 110, slip op. at 1-2 (2011)(“Apparent authority results from a manifestation
by the principal to a third party that creates a reasonable basis for the latter to believe the principal has
authorized the alleged agent to perform the acts in question.” As Wilson stated, “she was my trainer and so
at the time of orientation, I would have definitely looked at her as management . . . .” (Tr. 89.)
JD(SF)–19–15
5
At one point, Wilson had a day off, but had been put back on the schedule. DeGroot
accessed Centricity to look up Wilson’s phone number so she could call her and let her know she
had been put back on the schedule. DeGroot did not know whether or not Wilson was a patient at
the time. On another occasion, Keating called DeGroot on a snow day to let her know she could use
leave. DeGroot had not given Keating her personal contact information, so she assumed Keating 5
got it from Centricity.
Employee personnel files are maintained in a separate software system called Great Plains.
Only Timmerhoff and Swartz have access to Great Plains.
10
C. The Confidentiality Agreement
At the time of the charge and complaint, the Respondent maintained a confidentiality
agreement containing the following provision:
15
Likewise, information about physicians, other employees, and the internal affairs of Rocky
Mountain Eye Center, P.C., are considered confidential as well. . . . . Breach of either
patient or facility confidentiality is considered gross misconduct and may lead to immediate
dismissal.
20
(GC Exh. 6.) In its opening paragraph, the agreement broadly defines “confidential information” as
including, but not limited to, “patient information, physician information, personnel information,
billing, purchasing and financial information.”
Wilson perceived the rule as general, and would take it to mean “anything and everything.” 25
(Tr. 75.) The entire agreement was rescinded in or around October 2014, and has not been
replaced. (Tr. 185–186.)
D. The Union Organizing Campaign
30
Craig Davis is a business agent with the Union. He resides in Kalispell, Montana. Brown
contacted Davis in late March 2014, and told him some of the employees wanted to meet with him
to discuss organizing with the Union. The proposed bargaining unit was to consist of ophthalmic
technicians and ophthalmic assistants at the Missoula facility, which encompassed about 25
employees. 35
Brown and some other employees met with Davis during the first week of April. They
discussed the pros and cons of a union and the steps necessary to obtain union representation. After
the meeting, Brown told many of her coworkers that a group was looking into the Union. Some
employees asked her to relay questions they had about the Union to Davis. 40
Brown and some other employees attended a second meeting with Davis on June 26. Brown
relayed to Davis some of the employees’ questions. Union authorization cards were passed out and
discussed. Brown expressed concern that some employees might run to management if they knew
about the organizing. At the time, 17 employees, including Supervisor Keating, had not been 45
JD(SF)–19–15
6
contacted about the Union.10 Davis agreed to contact these individuals if Brown would provide him
with their phone numbers.
On July 14, while on a break at work, Brown went into the computer system and accessed
the names and numbers of the 17 employees she wanted Davis to contact. She wrote down only5
their first names and phone numbers, and did not know whether the employees were RMEC
patients. During the next week, she was able to speak with five of the employees. On July 22,
Brown sent an email to Davis with the 12 remaining employees’ first names and phone numbers.
In the email, Brown expressed her belief that four specific employees, Kristie, Kayleigh, Courtney,
and Sandee were most likely to “tattle” to the doctors.11 (GC Exh. 2.) Neither Davis nor Brown 10
knew whether these employees were also patients of the clinic. Brown did not have the employees’
permission to distribute their numbers to Davis.
Toward the end of July, Brown told Keating that she had been meeting with the Union and
said she would like to have Keating on board. 15
On Friday August 8, Davis sent a text message to the employees stating, “Getting to wear
blue jeans on Friday is not a benefit! I am Craig Davis and I work for the Operators Union. You
need representation to negotiate real benefits and wage increases! Call me anytime.” The text
concluded with Davis’ phone number. (GC Exh. 3; Tr. 24–25.) Employee Sierra responded, 20
“Where did you get this number from?” Davies responded that his methods of gathering contact
information were confidential, and said he would not release any information about her if she chose
to call him. (GC Exhs. 3–4.)
E. Complaints to Management and Brown’s Termination25
Sierra reported the text to Winstone and questioned whether someone had hacked into the
computer system. She was concerned about someone accessing her bank account because she was
purchasing a house. Winstone relayed Sierra’s concerns to Swartz, who called their attorneys.
Based on the legal advice she received, Swartz instructed Winstone to audit the Centricity system. 30
RMEC’s IT support service, First Call, came in and ran a report to determine which computers had
been logged into on August 8. Each login showed access only to the initial Centricity screen for a
few seconds. (R Exh. 14; Tr. 174–175.) By cross checking Centricity access with the phone
numbers on the text, Winstone narrowed the list of responsible individuals down to Brown and
Sierra. She turned over her findings to Swartz and Timmerhoff. 35
Also on August 8, Courtney Boggs accessed Wilson’s Centricity patient account to get her
phone number in order to tell her about a schedule change.12 She texted her the information about

10 Brown included Supervisor Keating in this group because she understood that the bargaining-unit
would consist of all ophthalmic assistants and ophthalmic technicians, and Keating was an ophthalmic
technician. There is nothing in the record to show that this was anything other than a lack of knowledge on
Brown’s part that supervisors may not be in a bargaining-unit.
11 For most of the employees, only their first names are part of the record.
12 Though not a patient during her orientation session when she created her mock Centricity account,
Wilson had since become a patient.
JD(SF)–19–15
7
the schedule change and also expressed interest in seeing a tattoo Wilson was getting that day after
work.
Around lunchtime on August 11, Swartz and Timmerhoff met with Sierra and questioned
her about whether she accessed the Centricity system the prior Friday. It was clear to Timmerhoff 5
that Sierra had no knowledge about the matter.
In the early afternoon, Swartz asked Brown to come with her to Timmerhoff’s office.
Timmerhoff told Brown that a couple people had come to her concerned about a text message they
had received. Brown admitted she accessed the Centricity system to get employee contact 10
information. Timmerhoff asked Brown if she had looked up any medical information, and Brown
responded she had not. Timmerhoff told Brown she had committed a HIPAA violation, it was very
serious, and RMEC was required to report it. Brown was terminated and Swartz escorted her off
the property. The real violation was that Brown provided the information to a third party. (Tr.
153.)15
On October 12, Timmerhoff hand-delivered letters to the employees whose Centricity
accounts Brown accessed to obtain their contact information, notifying them about the
unauthorized access to their personal accounts. The letter informed the individuals that, to the best
of RMEC’s knowledge, no medical information was accessed. It informed the employees that the 20
individual responsible for the breach was identified and had been terminated. Finally, the letter
gave instructions about steps to protect against misuse of personal information. (R Exh. 16.)
In contesting Brown’s claim for unemployment compensation, one of the questions was
whether the individual was discharged for violating a company rule or policy. Swartz responded on 25
August 20 that Brown was fired for violating the confidentiality agreement, and noted that Brown
had signed that she received handbook provisions on “rules of conduct” and “confidentiality.”
Swartz attached the confidentiality agreement as part of RMEC’s response. (GC Exhs. 6, 8.)
Prior to her discharge, Brown had received no formal discipline. On Brown’s April 8, 2014,30
performance review, Keating gave her high scores on all job elements and commented that Brown
was an asset to RMEC. (GC Exh. 5.)
On October 13, Wilson expressed concern to Peterson about Boggs accessing her account.
At Peterson’s direction, Wilson took the concern to Swartz. Human resources conducted an 35
investigation and determined Boggs had accessed two employees’ Centricity accounts to get their
phone number to notify them about a schedule change. This was, in Swartz’s estimation, a
violation of HIPAA. The proper procedure was for Boggs to get the telephone numbers she needed
from human resources. Boggs received a corrective counseling on October 27. (R Exh. 12.)
Swartz’s reason for giving Boggs a lesser penalty than Brown was that Boggs retrieved the phone 40
numbers for business reasons.
On October 20, Timmerhoff sent Wilson a letter notifying her about unauthorized access to
her personal account on August 8. The letter informed her that no medical information was
accessed, and told her what steps she could take to protect herself from misuse of her personal 45
information. (GC Exh. 7.)
JD(SF)–19–15
8
Brown’s unemployment claim was denied on November 14. The reason for the denial
stated:
You were discharged for violating a known employer policy. You accessed confidential 5
employee contact information to assist in a union organizing effort. You were not
authorized to access contact information for that purpose. . . . The trainer states all
employees are instructed not access (sic) patient information for any “outside” use.13 Only
medical related access is permissible under HIPAA. Some of the employees are also
patients of the employer and your actions could subject the employer to sanctions under the 10
HIPAA regulations.
(GC Exh. 9.)
Swartz self-reported the alleged HIPAA violations by both Brown and Boggs to the 15
Department of Health and Human Services, Office of Civil Rights, on December 29, 2014. (R
Exhs. 11, 13.) Because the breaches involved less than 500 employees, the self-report was due at
the end of the year, December 31.
Waldbillig was told to stop the practice of having new employees enter their contact 20
information into Centricity, and the receptionist now trains new ophthalmic assistants on how to
use Centricity. In addition, RMEC implemented a training module that is not patient-based. Contact
information currently resides in Swartz’s office. The supervisor may also have some employee
contact information in her office. Keating takes care of last minute schedule changes, or if she does
not have time, she calls Swartz. 25
III. DECISION AND ANALYSIS
A. The Confidentiality Agreement
30
Complaint paragraphs 5 and 7 allege that the Respondent violated Section 8(a)(1) of the Act
by maintaining the following provision as part of its confidentiality agreement:
Likewise, information about physicians, other employees, and the internal affairs of Rocky
Mountain Eye Center, P.C., are considered confidential as well. . . . . Breach of either 35
patient or facility confidentiality is considered gross misconduct and may lead to immediate
dismissal.
Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer to
interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of 40
the Act. The rights guaranteed in Section 7 include the right “to form, join or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to engage

13 This comment attributable to the trainer, Waldbillig, is hearsay, and, as articulated below, I find it is
contradicted by reliable, corroborative testimony from witnesses Wilson, DeGroot, and Brown. Waldbillig,
was not called to testify.
JD(SF)–19–15
9
in other concerted activities for the purpose of collective bargaining or other mutual aid or
protection . . .”
The General Counsel has the burden to prove that a rule or policy violates the Act. In
determining whether a work rule violates Section 8(a)(1), the appropriate inquiry is whether the 5
rule would reasonably tend to chill employees in the exercise of their Section 7 rights. Lafayette
Park Hotel, 326 NLRB 824, 825 (1998), enfd 203 F.3d 52 (D.C. Cir. 1999).
Under the test enunciated in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), if
the rule explicitly restricts Section 7 rights, it is unlawful. If it does not, “the violation is dependent 10
upon a showing of one of the following: (1) employees would reasonably construe the language to
prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the
rule has been applied to restrict the exercise of Section 7 rights.” Id. at 647. A rule does not violate
the Act if a reasonable employee merely could conceivably read it as barring Section 7 activity.
Rather, the inquiry is whether a reasonable employee would read the rule as prohibiting Section 7 15
activity. Id. In other words, the relevant inquiry under Section 8(a)(1) is an objective one which
examines whether the employer's actions would tend to coerce a reasonable employee. Affiliated
Foods, Inc., 328 NLRB 1107 (1999); Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st Cir.
1981). The Board must give the rule under consideration a reasonable reading and ambiguities are
construed against its promulgator. Lutheran Heritage, supra at 647; Lafayette Park Hotel, 326 20
NLRB at 828; and Cintas Corp. v. NLRB, 482 F.3d 463, 467–470 (D.C. Cir. 2007). Moreover, the
Board must “refrain from reading particular phrases in isolation, and it must not presume improper
interference with employee rights.” Lutheran Heritage supra at 646.
For reasons discussed below, I find the rule in the instant case does not expressly restrict 25
Section 7 rights. The rule was in effect prior to any union activity, and therefore was not
promulgated in response to it. I find, however, that employees would reasonably construe the
confidentiality agreement as prohibiting Section 7 activity.
Because the employees are prohibited from discussing information about other employees, 30
and there is no provision exempting discussions about wages, hours and other working conditions, I
find the rule is overly broad. See U.S. DirecTV Holdings, LLC, 359 NLRB No. 54, slip op. at 3
(2013). The rule does not explicitly reference wage or salary information. The provision, however,
still prohibits employees from disclosing confidential information about other employees. In its
opening paragraph, the agreement broadly defines “confidential information” as including, but not 35
limited to, “patient information, physician information, personnel information, billing, purchasing
and financial information.” In line with this broad definition, current employee Wilson construed
the rule as general, and would take it to mean “anything and everything.” (Tr. 75.) Furthermore,
the rule does not state that it will not be used to restrict Section 7 activity. I therefore find that it
violates the Act as alleged because a reasonable employee would construe it as interfering with 40
protected rights.14

14 Timmerhoff testified the rule has been rescinded, and there had been no replacement at the time of the
hearing. This testimony is undisputed and I credit it. Evidence was not presented, however, regarding how it
was rescinded, including whether or how any rescission was communicated to employees. See Boch
Imports, Inc., 362 NLRB No. 83, slip op. at fn. 2 (2015.)
JD(SF)–19–15
10
The General Counsel asserts that the agreement explicitly restricts Section 7 rights, citing to
IRIS USA, Inc., 336 NLRB 1013, 1018 (2001). In that case, the rule at issue stated that
unauthorized use of confidential information about employees may result in discipline, including
discharge. The Board affirmed the administrative law judge’s finding that these provisions
compelled a “reasonable understanding of Respondent's rule to prohibit employees from discussing 5
their wages, hours, and terms and conditions of employment with other employees.” Id. As such, I
do not find the Board construed this language as an explicit restriction when it affirmed this portion
the administrative law judge’s decision, but rather found employees would reasonably construe the
rule as restricting Section 7 rights. Likewise, in The NLS Group, 352 NLRB 744, 745 (2008),
reaffirmed upon remand, 355 NLRB 1154 (2010), to which the General Counsel also cites, the 10
Board found Respondent's the confidentiality provision, which explicitly referenced the
confidentiality of “terms and conditions of employment, including compensation, was unlawful
“because employees reasonably would construe it to prohibit activity protected by Section 7.” Id. I
therefore do not concur that this case supports a reading of the instant provision as an explicit
restriction of Section 7 rights. 15
The last case to which the Respondent cites in support of its argument that the
confidentiality agreement here expressly restricts Section 7 activity is Hyundai U.S.A., 357 NLRB
No. 80 (2012). The provision at issue concerned the employer’s electronic communication system,
and concluded by stating, “Finally, employees should only disclose information or messages from 20
theses [sic] systems to authorized persons.” The administrative law judge found that the rule, as
written, prohibited:
employees' disclosure of any information exchanged on company email, instant messages,
and phone systems, which could reasonably include discussions of wage and salary 25
information, disciplinary actions, performance evaluations, and other kinds of information
that are of common concern among employees, and which they are entitled to know and to
discuss with each other.
Id. slip op. at 20. The administrative law judge found that the provision was unlawful on its face. 30
The Hyundai decision certainly lends support to the General Counsel’s position. I find,
nonetheless, that the weight of authority establishes the proper analysis for provisions like the one
at issue here, which do not expressly preclude discussions about wages, hours, and working
conditions, as falling within the first Lutheran Heritage Village-Livonia criterion, i.e., employees
would reasonably construe the language to prohibit Section 7 activity. 35
The General Counsel also argues that the rule has been applied to restrict Section 7 activity.
It is undisputed that the Respondent, in response to Brown’s claim for unemployment
compensation, stated she was terminated for violating the Respondent’s confidentiality agreement.
In this context, I find the rule was applied to restrict Brown’s right to share information about 40
employees with the Union.15

15 The analysis of the protected nature of Brown’s actions appears below in the discussion of her
termination.
JD(SF)–19–15
11
The Respondent asserts that the confidentiality agreement was promulgated to comply with
HIPAA, and it was not enforced to restrict Section 7 rights. The Board has consistently held that a
confidentiality provision which prohibit employees “from discussing among themselves, or sharing
with others, information relating to wages, hours, or working conditions, or other terms and
conditions of employment” violates Section 8(a)(1) even if it was never enforced and was not 5
unlawfully motivated. Lutheran Heritage Village-Livonia, supra, see also Waco, Inc, 273 NLRB
746, 748 (1984); Double Eagle Hotel & Casino, 341 NLRB 112, 115 (2004); Cintas Corp., 482
F.3d 463, enfg. 344 NLRB 943 (2005). Moreover, much of the confidentiality agreement has
nothing to do with protected HIPAA information. The laundry list of items deemed to be
“confidential information” in the agreement’s opening paragraph broadens the rule beyond the 10
scope of HIPAA under any reasonable reading, particularly considering ambiguities are resolved
against the Respondent. As such, I find the rule was unlawful under Lutheran Heritage.
B. Britta Brown’s Termination
15
Complaint paragraphs 6–8 allege that the Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Brown for assisting the Union and engaging in protected concerted activities,
and to discourage other employees from doing the same.
1. Credibility legal standards and general findings20
A credibility determination may rest on various factors, including “the context of the
witness' testimony, the witness' demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the record
as a whole.” Hills & Dales General Hospital, 360 NLRB No. 70, slip op at 7 (2014), citing Double 25
D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001).
In making credibility resolutions, it is well established that the trier of fact may believe some, but
not all, of a witness’s testimony. NLRB v. Universal Camera Corp., 179 F.2d 749 (2d Cir. 1950).
The Board has agreed that “when a party fails to call a witness who may reasonably be 30
assumed to be favorably disposed to the party, an adverse inference may be drawn regarding any
factual question on which the witness is likely to have knowledge.” International Automated
Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d (6th Cir. 1988). This is particularly true
where the witness is the Respondent’s agent. Roosevelt Memorial Medical Center, 348 NLRB
1016, 1022 (2006). 35
The facts surrounding Brown’s termination are mostly undisputed. Where there is
inconsistent evidence on a relevant point, my credibility findings are incorporated into my legal
analysis below. My general observation, however, was that Britta Brown, Heather Wilson, and
Jaclyn DeGroot were all credible witnesses. They testified openly and appeared to be honest and 40
forthright, without embellishing their testimony. As current employees testifying against their own
pecuniary interests, I find Wilson and DeGroot’s testimony to be particularly reliable Gold
Standard Enterprises, 234 NLRB 618, 619 (1978); Georgia Rug Mill, 131 NLRB 1304, 1304 fn. 2
(1961); Gateway Transportation Co., 193 NLRB 47, 48 (1971); Federal Stainless Sink Div. of
Unarco Industries, 197 NLRB 489, 491 (1972). In particular, all three witnesses provided 45
JD(SF)–19–15
12
consistent, corroborative testimony regarding the maintenance of employee contact information
within Centricity, discussed in more detail infra.
I found Swartz and Timmerhoff to be generally credible witnesses.16 I note, however, that
Swartz needed prompting to provide specific answers to questions regarding the practice of storing 5
employee contact information in Centricity. I also do not credit her testimony that when she saw
the text message on Sierra’s phone, she did not know it was from the Union. The text message’s
second sentence states, “I am Craig Davis and I work for the Operators Union.” It then discusses
the employees’ need for representation to negotiate benefits and wage increases. Swartz admitted to
reading the text, and it therefore follows that she knew it concerned union activity. To find 10
otherwise defies basic common sense. To this point, Timmerhoff testified that it was obvious to
her, when she read the text on August 11, that it involved the Operators Union. (Tr. 201.)
Moreover, the evidence shows the Respondent’s position, in the context of Brown’s unemployment
compensation hearing, was that Brown was not authorized to access confidential employee contact
information for the purpose of assisting in a union organizing effort. (GC Exh. 9; Tr. 160–161.) 15
2. Analysis and findings
In closing briefs, the General Counsel applies Board caselaw applicable to disciplinary
actions that result directly from protected activities. The General Counsel expressed doubt 20
regarding the applicability of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989, approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), but provided an alternative analysis applying it. The Respondent contends that
Brown’s actions were not protected by the Act, and also analyzes the allegations under Wright
Line. For the reasons articulated below, I find Wright Line does not apply to the instant case, and 25
that Brown’s discharge violated the Act.17
It is first necessary to determine whether Brown’s dissemination of employee first names
and phone numbers to the Union was protected activity. “[T]he applicable rule is that employees
are entitled to use for organizational purposes information and knowledge that comes to their 30
attention in the normal course of their work activity but are not entitled to their employer's private

16 The Respondent asserts that I am bound to believe Timmerhoff’s testimony that Brown was not
discharged for her union activity, citing to Transp. Co. of Texas, 115 NLRB 681, 697 (1956), and Gross
Telecasting, Inc., 129 NLRB 490, 501 (1960). However, her testimony on this point goes to the ultimate
legal issue before me, which I have decided based on careful analysis of the full record and applicable legal
precedent.
17 In my view, there was not a mixed motive—Brown was terminated for the very conduct comprising
her protected union organizing activity. Assuming Wright Line governs, however, I find the General
Counsel has met its initial burden by a preponderance of the evidence, that Brown’s disclosure to Davis of
employee names and numbers was a motivating factor in her discharge by virtue of timing, disparate
treatment of other employees who accessed Centricity for employee contact information, the haste with
which Brown was terminated, including lack of meaningful investigation into why two employees had
accessed Centricity for employee contact information, and the pretextual nature of the HIPAA defense. I
find the Respondent has not met its burden of persuasion to prove it would have taken the same action even
in the absence of the protected conduct. I reject the HIPAA defense for the reasons stated herein, and find
that even if HIPAA serves as a legitimate defense despite the Respondent’s own shortcomings in training
and enforcement, Brown was treated more harshly than any other employee because of her Union activities.
JD(SF)–19–15
13
or confidential records.” Ridgeley Manufacturing Co., 207 NLRB 193, 196–197 (1973), enfd. 510
F.2d 185 (D.C. Cir. 1975); see also W.R. Grace & Co., 240 NLRB 813, 820 (1979). This rule has
engendered caselaw that is highly fact-specific, with the line between confidential information and
information that comes to an employee’s attention in the normal course of work not always clear.
5
The General Counsel relies on Costco Wholesale Corp., 358 NLRB No. 106, slip op. at 28–
29 (2012), and Albertson's, Inc., 351 NLRB 254, 259, 366 (2007) (disclosure of work schedule and
list of employees’ names to the union protected), to support its contention that employees have a
Section 7 right to provide employee information, including phone numbers, to the union. In similar
cases, the Board has found that providing information about employees to union organizers is 10
protected activity unless the information was obtained surreptitiously or the employee was not
authorized to obtain it. Ridgely Mfg. Co. supra. (obtaining names of employees on timecards
protected); Anserphone of Michigan, 184 NLRB 305, 306 (1970) (obtaining names and addresses
of employees from office manager protected).
15
By contrast, an employee’s removal of confidential business records from an employer’s
file not in the normal course of work activity is not protected. The Respondent cites to Roadway
Express, 271 NLRB 1238, 1239–1240 (1984) (bargaining-unit employee taking bills of lading from
employer’s files, copying them, and providing them to the Union not protected); and W.R. Grace,
supra (disclosure of confidential information about raises not announced to employees and only 20
known by 2 management officials not protected).18 The Respondent also cites to Bullock’s, 251
NLRB 425, 426 (1990)(coworker surreptitiously copied performance reviews), and Macomb Daily,
260 NLRB 983, 985(1982) (employee asked bookkeeper to divulge percentage wage increase for
management personnel), where the Board found copying and requesting confidential information to
be unprotected. 25
Similarly, in International Business Machines. Corp., 265 NLRB 638 (1982), the Board
found that unauthorized dissemination of internal confidential wage information was not protected.
The Board noted, however, “This is not to say that the Respondent would be entitled to enforce its
confidentiality policy by discharging any employee who disseminates its confidential wage 30
information regardless of the circumstances.” In IBM, the Board agreed with the administrative
law judge that the employee who disseminated the wage information knew it was confidential and
that he was not authorized to obtain it.

18 The Respondent also cites to cases from the Court of appeals for the Fifth Circuit. In NLRB v.
Berkshire Grocery Co., 919 F.2d 359, 363 (5th Cir. 1990), an employee entered his supervisor’s office and
stole confidential information about some coworkers from his supervisor’s desk, and disclosed confidential
wage information. Denying enforcement of the Board’s order to reinstate the employee, the Fifth Circuit
found the employee’s activity was not protected. In NLRB v. Florida Steel Corp., 544 F.2d 896 (5th Cir.
1977), an employee was terminated for asking a clerical worker to obtain a list of names and phone numbers
of production employees for the union to use in its organizing activities. In denying enforcement of the
Board’s order to reinstate the employee, the Fifth Circuit, unlike the Board, found the evidence showed the
employee was attempting to gain this information from company records. I note that I am bound to follow
the Board unless the Supreme Court dictates otherwise. Manor West, Inc., 311 NLRB 655, 667 fn. 43
(1993); see also Waco, Inc., 273 NLRB 746, 749 n.14 (1984) (“We emphasize that it is a judge’s duty to
apply established Board precedent which the Supreme Court has not reversed. It is for the Board, not the
judge, to determine whether precedent should be varied.”).
JD(SF)–19–15
14
In Ridgely, supra, at 197, the protection for obtaining information from employee timecards,
which were located by the time clock, turned on whether the timecards were private or confidential
employer records or information available to all employees in the course of their normal work
relationship. The administrative law judge, with Board approval, found they fell within “the latter 5
category as a source through which any employee may learn the names of his fellow employees as
rightfully as through personal in-plant contact.” Id.
In Gray Flooring, 212 NLRB 668 (1974), the Board, reversing the administrative law
judge, found unlawful the discharge of an employee for copying names and telephone numbers of 10
employees from the employer's records. In that case, the workplace contained a warehouse office
that housed the supervisors’ desks. Employees regularly went into the office to get coffee, look at
maps, get work assignments and timecards, and visit with the supervisors. At the request of a union
organizer, employee Kelly went to look at a list of names from a schedule roster hanging by the
supervisor’s desk. While there, another employee, Griffin, asked Kelly whether he wanted 15
employee phone numbers. When Kelly responded that the numbers would be helpful, Griffin
handed him some index cards with employee names and phone numbers that he had obtained from
the supervisor’s desk. The Board found that the names and numbers were not “in any meaningful
sense, ‘private records.”’ 212 NLRB at 669. Important in the Board’s analysis was the fact that the
employer did not treat the information as confidential and unavailable to employees, and the 20
employees had openly used the information before.
The instant case presents a unique situation, requiring careful and fact-intensive analysis.
The first question is whether Brown had access to employee contact information in the ordinary
course of her work activity and association. She and her coworkers were able to log into the25
Centricity system and were trained on how to do so. Employees utilized the system for work and
when they needed to get each others’ telephone numbers. I therefore find that Brown clearly had
access to Centricity in the ordinary course of her work activity and association. Ridgely, supra.
The more difficult question is whether the employee contact information formerly housed 30
within Centricity was confidential. Given the manner in which employees were trained during
orientation, along with past use of the Centricity system to obtain phone numbers to contact
employees for scheduling and other purposes, I find it was not. Most of the information in
Centricity quite obviously qualifies as confidential PHI under HIPAA. The information on the first
screen, however, was not limited to patients, but also included employees who were not patients. 35
The first screen contained no health information, and did not state whether or not the individual
was a patient. Indeed, Brown provided unrefuted testimony that she did not know whether the
individuals whose names and numbers she provided to the Union were patients.
On the set for facts before me, it was the Respondent that failed to put proper safeguards in 40
place by empowering its trainer, Waldbillig, to instruct employees to place their contact
information in the Centricity system, regardless of whether or not they were patients. Waldbillig
did not testify.19 Significantly, DeGroot and Wilson, neither of whom were patients at the time of

19 There is no dispute about how Waldbillig trained the employees in Centricity. The Respondent
acknowledged that employee contact information should never have been stored in Centricity, and made
changes to this practice. I infer that Waldbillig’s testimony would have corroborated DeGroot, Brown, and
JD(SF)–19–15
15
their respective orientations, provided unrefuted and corroborative testimony that they were told to
put their contact information into Centricity in case anyone needed to contact them. As current
employees testifying against their own pecuniary interests, I find their testimony to be particularly
reliable. Gold Standard Enterprises, supra; Georgia Rug Mill, supra; Gateway Transportation Co.,
supra; Federal Stainless Sink Div. of Unarco Industries, supra.5
Though the RMEC maintained a policy limiting use of Centricity to “what you need to do
your job,” the message conveyed to employees, both during orientation and as a matter of practice,
was that the system was also the place to access employees’ contact information. As Wilson
testified, “generally it was well known knowledge that anybody’s phone number was in Centricity 10
and if we needed to access that for any reason, we could, because that’s where employee phone
numbers were kept.” (Tr. 94.) DeGroot was similarly instructed to put her information into
Centricity to “get familiar with the computer system and that if anyone needed to contact us for any
reason they can just look us up.” (Tr. 99.) What Brown provided to the Union was nothing more
than first names and phone numbers, with no indication of whether the individuals were patients. 15
She did not sneak onto the system to get the information, nor did she try to conceal it in any way,
either while she was obtaining the numbers, or later when she was questioned about her activities.
She “did not sneak into the office and the office was not one where he had no right to be,” and her
conduct was, “throughout the incident, open and frank.” Gray Flooring, 212 NLRB at 669. Absent
circumstances not present here, both the gathering of employee first names and phone numbers and 20
disclosure of the information to the union agent for organizing purposes fall within Section 7
protected conduct.
The Respondent’s argument that use of Centricity for contacting employees served a
business purpose does not square with its simultaneous contention that access and use of the 25
information for any reason other than confidential patient concerns violates HIPAA. The discipline
meted out to Boggs, who accessed Centricity to contact a worker about a schedule change (and to
inquire about a tattoo), underscores this. The change to where contact information is now stored in
the wake of the instant complaint is also telling. Simply put, there was no legitimate business
reason to house employee contact information within the patient database, with no other place for 30
anyone on site to access it. As the General Counsel points out, permitting use of a patient records
system to store non-medical information about employees, whether patients or not, would permit
HIPAA-covered employers to thwart the Act in the guise of HIPAA compliance.20
I find the Respondent’s comingling of employee and patient data in Centricity, along with 35
its training instructions to employees and its practices, detailed above, preclude any legitimate
defense that Brown’s accessing the system to obtain employee phone numbers warranted discipline
as a HIPAA violation.21 While the Respondent's general concerns about HIPAA compliance are

Wilson’s. See Roosevelt Memorial Medical Center, supra.
20 I do not find that was the case here. Instead, the comingling of employee and patient records appears
to have been an egregious lapse in judgment on the part of RMEC’s trainer that was capitalized on to stop
Brown’s union efforts.
21 I am not vested with jurisdiction over HIPAA. I have considered both the Respondent’s arguments
that Brown violated HIPAA, and the General Counsel’s arguments that she did not. I need not resolve the
matter, however, to find that the Respondent violated the Act as alleged because I find it cannot escape
liability when, through its actions, it leads and/or sanctions an employee to take actions it later alleges
JD(SF)–19–15
16
unquestionably legitimate, the circumstances here lead me to conclude they were seized upon to
stop Brown’s union activity. Aside from Boggs, no other employees were disciplined for conduct
similar to that for which Brown was terminated. 22 (Tr. 156.) Waldbillig, an agent of the
Respondent who told employees to store information in Centricity in case anyone needed to contact
them, was not disciplined. If Brown’s actions were a HIPAA violation, they were at Waldbillig’s 5
direction, and therefore the Respondent’s failure to discipline Waldbillig is mysterious.
Here, the Respondent held Brown accountable for causing a HIPAA violation. Regardless
of whether a HIPAA violation actually occurred, it is clear from the evidence presented that in
accessing Centricity for coworker phone numbers, Brown was only acting in line with instructions 10
and practices the Respondent had promulgated and established. After looking into the incidents
involving Brown and Boggs, the Respondent learned that employees had been told to store their
contact information in Centricity, and nowhere else, so that they could be contacted if needed. This
discovery generated changes to the Respondent’s practices to correct the very problems that
RMEC’s trainer, and not Brown, had created. Brown’s access of her coworkers’ names and phone 15
numbers in Centricity, therefore, cannot reasonably be considered misconduct on her part. The only
discernible “misconduct” not of the Respondent’s own making, therefore, is Brown’s dissemination
of the employee names and numbers to the Union, which is the crux of her protected activity.
Based on the foregoing, I find that because the very conduct for which Brown was 20
terminated was union organizing activity protected by the Act, the General Counsel has met its
burden to prove that Brown’s termination violated Section 8(a)(3) and (1). See Parkview Hospital,
Inc., 343 NLRB 76, 81(2004).
CONCLUSIONS OF LAW25
1. The Respondent is an employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.30
3. By maintaining a overly-broad confidentiality agreement, by enforcing the
confidentiality agreement to restrict Section 7 activity, the Respondent has violated Section 8(a)(1)
of the Act.
35
4. By terminating employee Britta Brown, the Respondent has violated Section 8(a)(3)
and (1) of the Act.

violate HIPAA or any other law.
I note that in the quiz Brown took regarding HIPAA privacy, the correct answer was “True” to the
statement, “Protected Health Information is anything that connects a patient to his or her health
information.” (R. Exh. 1.) The names and phone numbers of employees from a comingled database, not tied
to health information, would not seem to qualify as PHI by this definition.
22 I note Boggs received less discipline, and am persuaded that the only reason she received a warning
was because the Respondent was boxed in by the juxtaposition of Wilson’s calculated complaint to
management to the events that were unfolding with Brown and the Union.
JD(SF)–19–15
17
REMEDY
Having found that the Respondent has 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.5
Having unlawfully promulgated and maintained overly-broad confidentiality agreement that
employees would reasonably construe as infringing on their rights guaranteed under Section 7 of
the Act, and that has been applied to restrict Section 7 activity, the Respondent will be ordered to
cease and desist from maintaining this agreement, if it has not done so already, and will be ordered 10
to notify employees of the agreement’s rescission, if it has not done so already.
The Respondent, having discriminatorily discharged Britta Brown, must offer her
reinstatement and make her whole for any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate 15
prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB No. 8 (2010). The Respondent shall file a report with the Social
Security Administration allocating backpay to the appropriate calendar quarters. Respondent shall
also compensate the discriminatees 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 20
NLRB No. 44 (2012).
The General Counsel argues that I should order reimbursement of expenses related to
Brown’s search for work and work-related expenses. Specifically, the General Counsel argues that
the Board’s current approach of considering these expenses as an offset to earnings does not make 25
the employee whole, and can unduly limit reimbursement for such expenses. (GC Br. 18–21.)
Awarding such expenses would require a change in Board law, which is solely in the Board’s
province.
On these findings of fact and conclusions of law and on the entire record, I issue the 30
following recommended23
ORDER
The Respondent, Rocky Mountain Eye Center, Missoula, Montana, its officers, agents, 35
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and/or enforcing its rule known as the Confidentiality Agreement that 40
prohibits employees from discussing and disclosing information other employees, or the internal
affairs of Respondent

23 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by
the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–19–15
18
(b) Discharging or otherwise discriminating against employees because they support a
union or engage in protected concerted activities, such as providing the names and phone
numbers of employees to a union for purposes of union organizing.
(c) In any like or related manner interfering with, restraining, or coercing employees in the5
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 or modify the Confidentiality Agreement, if it has not already done so, to the 10
extent it prohibits employees from discussing and disclosing information about other employees
or the internal affairs of Respondent.
(b) Furnish all current employees with notification that:
1. advises that the unlawful provisions of the Confidentiality Agreement have been 15
rescinded; or
2. provides the language of lawful provisions or publish and distribute a revised
Confidentiality Agreement that:
a. does not contain the unlawful provisions; or
b. provides the language of lawful provisions.20
(c) Within 14 days from the date of the Board’s Order, offer Britta Brown full reinstatement
to her former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges previously enjoyed.
25
(d) Make Britta Brown whole for any loss of earnings and other benefits suffered as a result
of the discrimination against her in the manner set forth in the remedy section of the decision.
(e) Within 14 days from the date of the Board’s Order, remove from its files any reference
to the unlawful discharge and within 3 days thereafter notify the employee in writing that this has 30
been done and that the discharge will not be used against her in any way.
(f) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records, timecards, personnel records and 35
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.
(g) Within 14 days after service by the Region, post at its facility in Missoula, Montana,
copies of the attached notice marked “Appendix.”24 Copies of the notice, on forms provided by the 40
Regional Director for Region 19, after being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places

24 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(SF)–19–15
19
including all places where notices to employees are customarily posted. In addition to physical
posting of paper notices, the notices shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In 5
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 employees employed by the
Respondent at any time since (first ULP).
10
(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
15
Dated, Washington, D.C. May 6, 2015
____________________20
Eleanor Laws
Administrative Law Judge
25
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT stop you from disclosing information about other employees or the
internal affairs of Rocky Mountain Eye Center and WE WILL repeal the rule in our
handbook on that subject.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting the
International Union of Operating Engineers or any other union.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL immediately rescind our rule that prohibits your from discussing or disclosing
information about other employees or the internal affairs of Rocky Mountain Eye Center. If the
rule has been rescinded already, WE WILL notify employees that it has been rescinded.
WE WILL, within 14 days from the date of this Order, offer Britta Brown full reinstatement to
her former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL make Britta Brown whole for any loss of earnings and other benefits resulting from
her discharge, less any net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Britta Brown 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 Britta Brown, and WE WILL, within 3 days thereafter, notify her in
writing that this has been done and that the discharge will not be used against her in any way.
ROCKY MOUNTAIN EYE CENTER, P.C.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
915 2nd Avenue, Room 2948, Seattle, WA 98174-1078
(206) 220-6300, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/19-CA-134567 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (206) 220-6284.