UPMC and its Subsidiary, UPMC Presbyterian Shadyside, Single Employer, d/b/a UPMC Presbyterian Hospi

National Labor Relations Board - Board Decisions

Aug 27, 2018

366 NLRB No. 185 (N.L.R.B. 2018)

366 NLRB No. 185
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.
UPMC and its Subsidiary, UPMC Presbyterian
Shadyside, Single Employer, d/b/a UPMC Pres-
byterian Hospital and d/b/a UPMC Shadyside
Hospital and SEIU Healthcare Pennsylvania
CTW, CLC. Cases 06–CA–102465, 06–CA–
102494, 06–CA–102516, 06–CA–102518, 06–CA–
102525, 06–CA–102534, 06–CA–102540, 06–CA–
102542, 06–CA–102544, 06–CA–102555, 06–CA–
102559, 06–CA—104090, 06–CA–104104, 06–
CA–106636, 06–CA–107127, 06–CA–107431, 06–
CA–107532, 06–CA–107896, 06–CA–108547, 06–
CA–111578, and 06–CA–115826
August 27, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
On November 14, 2014, Administrative Law Judge
Mark Carissimi issued the attached decision.1 The Re-
spondents UPMC and UPMC Presbyterian Shadyside
(Presbyterian Shadyside or Respondent) each filed ex-
ceptions and supporting briefs. The General Counsel and
the Charging Party Union, SEIU Healthcare Pennsylva-
nia CTW, CLC, filed briefs in response to the Respond-
ents’ exceptions. Respondent UPMC filed a reply. The
General Counsel and the Charging Party filed limited
exceptions and supporting briefs, and the Respondents
each filed a brief in response. The General Counsel filed
a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs2 and has decided to
adopt the judge’s rulings,3 findings,4 and conclusions in

1 By motion dated May 12, 2015, the General Counsel requested
that Case 06–CA–102566, pertaining to the discharge of employee
Finley Littlejohn, be severed from the above-captioned cases and re-
manded to the Regional Director for Region 6 for further processing
pursuant to a non-Board settlement agreement between Respondent
UPMC Presbyterian Shadyside and the Charging Party. On September
14, 2015, the Board issued an Order granting the General Counsel’s
request. The case caption has been amended to reflect the severance of
the case.
2 Respondent Presbyterian Shadyside has requested oral argument,
and Respondent UPMC has incorporated Presbyterian Shadyside’s
exceptions and brief by reference. The request is denied as the record,
exceptions, cross-exceptions and briefs adequately present the issues
and the positions of the parties.
3 Respondent Presbyterian Shadyside excepts to the following or-
ders of the judge: (1) the January 29, 2014 order granting in part the
petition to revoke subpoenas duces tecum issued by the Respondent
Presbyterian Shadyside to the Charging Party (B-720528), current and

former employees (B-720514 and B-720523), and two Union organiz-
ers (B-720525 and B-720526); (2) the January 24, 2014 order granting
the petition to revoke subpoena duces tecum issued by the Respondent
Presbyterian Shadyside to Fair Share Pittsburgh Action Fund (B-
720529); (3) the February 11, 2014 order denying Respondent Presby-
terian Shadyside’s motion for reconsideration of the judge’s January
29, 2014 order granting the petition to revoke; and (4) the February 11,
2014 order further granting the petitions to revoke with regard to pro-
duction of electronically stored information.
In granting the petitions to revoke and denying the motion for recon-
sideration, the judge found that Respondent Presbyterian Shadyside
failed to show the relevance of certain requested items. Specifically,
the judge found that the motive behind the Union’s campaign, the Un-
ion’s relationship with Fair Share Pittsburgh, and documents concern-
ing the Union’s response to an event that occurred at another UPMC
property not at issue in this case are not relevant to whether Respondent
Presbyterian Shadyside violated the Act as alleged. The judge also
found unduly burdensome the subpoenas’ request for all electronically
stored information possessed by the Union.
Having reviewed the record, we find that Respondent Presbyterian
Shadyside has failed to show that the judge abused his discretion in
revoking, in part, the Respondent’s subpoenas. In affirming the judge’s
order revoking the subpoenas in part, we also rely on McDonald’s USA,
LLC, 363 NLRB No. 144, slip op. at 1, 13 (2016) (affirming the judge’s
order to revoke a subpoena and finding that motive of the union’s cam-
paign is not relevant to the underlying issues in the case). And we note
that Bettie Page Clothing, 359 NLRB 777, 777–778 (2013), cited by
the judge in his order denying the Respondent’s motion for reconsidera-
tion, was incorporated by reference in 361 NLRB 876 (2014), remand-
ed on other grounds 688 Fed. Appx. 3 (D.C. Cir. 2017).
Regarding the Respondent’s request for electronically stored infor-
mation, we affirm the judge’s reliance on the factors set forth in the
Sedona Principles: Best Practices, Recommendations & Principles for
Addressing Electronic Document Production, Second Edition (The
Sedona Conference Working Group Series, 2007), and we find that the
judge did not abuse his discretion by finding that the request was bur-
densome, and revoking the subpoenas to the extent that they asked for
all electronically stored information. However, we do not rely on the
judge’s citation to CNN America, Inc., 352 NLRB 675 (2008), a case
decided by a two-member Board. See New Process Steel, L.P. v.
NLRB, 560 U.S. 674 (2010).
4 Respondent Presbyterian Shadyside has excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings. In addition, several
of Respondent Presbyterian Shadyside’s exceptions allege that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that those contentions are without merit.
In the absence of exceptions, we adopt the judge’s findings that Re-
spondent Presbyterian Shadyside violated Sec. 8(a)(1) by the following
conduct: on or about February 2013, requiring employee Leslie Poston
to remove her union pin; on or about February 19, 2013, requiring
employee David Jones to remove his union pin; on or about February
21, 2013, requiring Jones to remove his union pin and threatening him
with discipline if he continued to wear union insignia; and on or about
April 15, 2013, taking the following actions against employee Albert
Turner: demanding that Turner consent to having his photograph taken
while he was wearing union insignia, subsequently taking such a pho-
tograph, and asking him why he continued to wear his Union pin; re-
sponding to Turner’s question about whether he was going to be disci-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
part, to reverse them in part, to revise the recommended
remedy,5 and to adopt the recommended Order as modi-
fied and set forth in full below.6
I. BACKGROUND
UPMC operates a 9000-employee acute-care hospital
located in Pittsburgh, Pennsylvania. It has two facilities,
Presbyterian Hospital and Shadyside Hospital, which are
located adjacent to each other. In the spring of 2012, the
Union began a campaign to organize the approximately
3500 nonclinical support employees employed at Presby-
terian Shadyside. At issue in this case are the substantive
allegations of the Second Amended Consolidated Com-
plaint (the Complaint), which allege that Respondent
Presbyterian Shadyside (hereinafter “the Respondent”)

plined for continuing to wear his union pin by saying that the matter
was being investigated and that the Respondent could not be sure what
would happen; and on April 16, 2013, telling Turner that the Respond-
ent wanted to photograph the union pin that Turner was wearing and
directing Turner to write a statement about why he was continuing to
wear his union pin.
Similarly, in the absence of exceptions, we adopt the judge’s dismis-
sal of the following allegations: that, on May 14, 2013, the Respondent
prohibited employees from soliciting on behalf of the Union; that, on or
about February 14, 2013, the Respondent created an unlawful impres-
sion of surveillance through a supervisor’s statement to open Union
supporter Felicia Penn; that, on March 2, 2013, the Respondent violated
Sec. 8(a)(3) by issuing a written warning to employee David Jones,
asserting that Jones had taken an unauthorized break; that, in mid-
February 2013, the Respondent unlawfully threatened employee James
Staus by telling Staus that he did not need a union as it “takes all your
money in union dues and people hate it”; and that, on February 21,
2013, the Respondent violated Sec. 8(a)(1) by threatening to arrest
employees and nonemployee union representatives who were engaged
in union activity in the hospital cafeteria. We also adopt, in the absence
of exceptions, the judge’s refusal to consider the allegations that in
February 2013 the Respondent violated Sec. 8(a)(1) by requiring em-
ployee Chaney Lewis to remove his union lanyard, and that, in mid-
March 2013, the Respondent violated Sec. 8(a)(1) by requiring em-
ployee Bonita McWhirter to remove her union lanyard and union pin.
5 Contrary to the judge, we agree with the General Counsel and the
Union that a 120-day notice posting period is warranted in the circum-
stances of this case. See Amended Remedy discussion, below. Mem-
ber Emanuel dissents from this 120-day posting period, as discussed
further in the Amended Remedy section, as well as from the notice-
reading remedy ordered by the judge. While serious, he does not find
the violations in this case to be of such an egregious nature as to war-
rant these extraordinary remedies.
6 We shall modify the judge’s recommended Order in accordance
with our decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016), and to conform to the Board’s standard remedial language. We
shall substitute a new notice to conform to the Order as modified. In
accordance with our decision in King Soopers, Inc., 364 NLRB No. 93
(2016), enfd. in relevant part, 859 F.3d 23 (D.C. Cir. 2017), we shall
also order the Respondent to compensate affected employees for their
search-for-work and interim employment expenses regardless of
whether those expenses exceed interim earnings. Search-for-work and
interim employment expenses shall be calculated separately from taxa-
ble net backpay, with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010).
engaged in multiple violations of Section 8(a)(1), 8(a)(2),
8(a)(3), and 8(a)(4) of the Act.7
The judge found that the Respondent violated Section
8(a)(1) by prohibiting employees from wearing union
insignia, prohibiting employees from posting union ma-
terials on its bulletin boards, and threatening and interro-
gating employees engaged in union activity. The judge
also found that the Respondent violated Section 8(a)(2)
and (1) in regard to the formation and operation of the
Environmental Support Services (ESS) Employee Coun-
cil. Finally, the judge found that the Respondent violated
Section 8(a)(3) and (1) and/or 8(a)(4) and (1) by issuing
discipline culminating in final written warnings to three
employees and discharges of four other employees.8 We
adopt most of the judge’s findings, with some modifica-
tions and clarifications explained below, but we reverse
his findings with respect to the discipline and subsequent
alleged threat to employee Felicia Penn.
II. DISCUSSION
A. 8(a)(1) Allegations
We agree with the judge for the reasons stated in his
decision that the Respondent violated Section 8(a)(1) by:
(1) prohibiting employee Jamie Hopson from wearing a
union button in immediate patient care areas, while al-

7 The Complaint names both UPMC and its subsidiary, UPMC
Presbyterian Shadyside, as Respondents, and asserts that they are a
single integrated enterprise and a single employer. The judge severed
the single integrated enterprise/single employer allegation and subse-
quently granted a motion to dismiss it after UPMC offered to “guaran-
tee the performance by Presbyterian Shadyside of any remedial aspects
of the Administrative Law Judge’s Decision and Order [that] survive
the exceptions and appeal process” and stated that it “would be respon-
sible for any remedy along with Presbyterian Shadyside.” The Board
affirmed the judge’s decision, finding that UPMC’s remedial guarantee
in exchange for the dismissal of the single employer allegation against
UPMC was reasonable. UPMC, 365 NLRB No. 153 (2017). The
Board retained UPMC as a party solely for the purpose of ensuring
enforcement of UPMC’s guarantee of the remedies, if any, ultimately
ordered against Presbyterian Shadyside. Id., slip op. at 11. Members
Pearce and McFerran jointly dissented from the Board’s decision, find-
ing that UPMC’s “guarantee” did not constitute an adequate remedy.
They adhere to that view.
8 The judge additionally found that the Respondent violated Sec.
8(a)(1) of the Act by denying nonemployee union organizers access to
the hospital cafeteria, engaging in surveillance of employees who were
talking to the union organizers in the cafeteria, and requiring employees
who were in the cafeteria with the union organizers to produce their
identification. We shall sever and retain those allegations for subse-
quent consideration by the Board.
Member Pearce dissents to the severance of these allegations. The
judge’s findings that the Respondent violated Sec. 8(a)(1) by denying
nonemployee union organizers access to its public cafeteria, surveilling
employees and requiring identification from employees who spoke to
organizers in the cafeteria, are fully supported by well-settled prece-
dent. Because the allegations have been severed for subsequent con-
sideration by the Board, Member McFerran expresses no view as to
their merits.
UPMC 3
lowing other employees to wear non-work related but-
tons in those areas;9 (2) threatening employee Jynella
Everett that her union activities could adversely affect
her upcoming performance appraisal;10 and (3) prohibit-
ing employees from posting union materials on hospital
bulletin boards, while allowing a company-sponsored
labor organization to do so.
B. Allegations Relating to Employee Chaney Lewis
We agree with the judge for the reasons he stated that
the Respondent violated Section 8(a)(3) and (1) by issu-
ing a final written warning to employee Chaney Lewis
for posting suspected union-related materials on hospital
bulletin boards, while allowing the Respondent-
sponsored labor organization, the ESS Employee Coun-
cil, to post its literature,11 and further violated Section
8(a)(1) by requiring Lewis to write a statement about his
posting activity.12

9 Member Emanuel finds it unnecessary to pass on this allegation.
The judge found, and the Board adopts in the absence of exceptions, a
number of other 8(a)(1) violations based on the Respondent’s re-
strictions of union buttons and insignia, so finding the additional viola-
tion would not materially affect the remedy.
10 As explained by the judge, the credited testimony establishes that,
on the same day that Everett wore a union badge pull for the first time,
supervisor Jason Hogan stopped her in the hall and asked whether she
knew her evaluation was coming up. Everett replied that she did, at
which point Hogan looked down at Everett’s badge pull and repeated,
“Okay, I’m just letting you know your evaluation is coming up.” Ever-
ett thereafter removed her union badge pull. Contrary to our dissenting
colleague, we agree with the judge that a reasonable employee would
understand that Hogan’s comment, coupled with his nonverbal cues,
was clearly directed at Everett’s show of union support and implied that
such support could adversely affect her evaluation. See, e.g., Print
Fulfillment Services LLC, 361 NLRB 1243, 1272 (2014) (veiled threat
of possible repercussions due to union activity found to violate Sec.
8(a)(1)).
Member Emanuel finds his colleagues’ analysis unpersuasive, and
would dismiss the allegation. As Print Fulfillment itself makes clear,
neither Hogan’s intent nor Everett’s subjective perception of his remark
or conduct is relevant. See id. at 1271 (“The Board does not consider
either the motivation behind the remark or its actual effect.”) The only
question is whether a reasonable employee would feel threatened by
Hogan’s actions under the circumstances presented. Hogan did not
mention the Union or other protected activity during his brief encounter
with Everett, and in Member Emanuel’s view, a reasonable employee
would not feel threatened or coerced by his actions.
11 We do not pass on the judge’s finding that the Respondent also vi-
olated Sec. 8(a)(4) by disciplining Lewis because finding the additional
violation would not materially affect the remedy. Member Emanuel
joins in finding the 8(a)(3) violation for the same reasons discussed in
fn. 13, infra.
12 We adopt the judge’s finding, for the reasons he stated, that the
Respondent violated Sec. 8(a)(1) by requiring employee Lewis to pre-
pare a written statement about his union activity. Contrary to our col-
league, it is no defense that the Respondent was merely investigating a
potential rule violation. Where, as here, the Respondent permitted
bulletin-board postings by the ESS labor organization, its invocation of
the rule against Lewis for posting union-related material was itself
discriminatory and unlawful. And the Respondent’s requiring Lewis to
C. Allegations Relating to Employee Leslie Poston’s
Email Message
We agree with the judge for the reasons stated in his
decision that the Respondent violated Section 8(a)(3) and
(1) by suspending employee Leslie Poston and issuing
her a final written warning for sending a mass email re-
lated to union matters—specifically, about the reinstate-
ment of employees Ronald Oakes and Frank Lavelle pur-
suant to a settlement of previous unfair labor practice
charges.13 Similarly, we adopt the judge’s findings that
the Respondent violated Section 8(a)(1) by requiring
Poston to write a statement about her email; interrogating
Oakes about his involvement with the letter and email;
and interrogating Lavelle about the mass email, demand-
ing that he write a statement about it, and threatening
him with disciplinary action if he failed to cooperate with
the Respondent’s investigation of the email incident.14

document his union activities in the course of its investigation into
those activities would reasonably tend to coerce him in the exercise of
his Sec. 7 rights.
Member Emanuel would dismiss the judge’s finding that requiring
Lewis to write a statement violated the Act. In his view, employers
have a legitimate interest in investigating potential violations of their
rules and policies. Thus, a reasonable employee in Lewis’s position
would not feel coerced because the employee would understand that the
Respondent was only requesting the statement in connection with such
an investigation.
13 Member Emanuel observes that the Respondent’s email policy it-
self was not alleged to be unlawful, so the Board’s decision in Purple
Communications, Inc., 361 NLRB 1050 (2014), is not at issue here.
Member Emanuel adopts the violation only on the basis that the evi-
dence shows that the Respondent treated Poston in a discriminatory
manner in its application of the policy. Specifically, the policy states
that employees are to use the hospital’s IT system only for “authorized
activities,” defined as “related to assigned job responsibilities and ap-
proved by the appropriate UPMC management.” The policy allows
only de minimis use for nonwork related activities. Here, the Respond-
ent disciplined Poston for using a hospital listserv named “NU ALL,”
which went to over 2000 individuals, to send a union-related email.
Although the Respondent asserted that it was the mass nature of the
email rather than its subject matter that resulted in Poston’s suspension
and receipt of a final written warning, the evidence shows that the
Respondent had not disciplined four other employees who had used
“NU ALL” or otherwise sent a nonwork-related, nonunion-related
email to more than 2000 individuals. Under these circumstances,
Member Emanuel agrees that the Respondent’s discipline of Poston
violated Sec. 8(a)(3) and (1).
14 Member Emanuel would dismiss all of the allegations regarding
the Respondent’s questioning of and attempts to obtain statements from
Poston, Oakes, and Lavelle. Poston’s email, which certainly appeared
to be (and was ultimately found by the Respondent to be) a violation of
the Respondent’s email policy, was in the form of a letter from Oakes
and Lavelle. As Member Emanuel stated in footnote 12 above, em-
ployers have a legitimate interest in investigating potential violations of
their rules, and he believes that the Respondent was engaged in a lawful
pursuit of that interest in questioning Poston, Oakes, and Lavelle. His
colleagues are mistaken in stating that the Respondent had already
“conclusively determined to discipline” all three employees before
questioning them or asking them to provide a statement. Although the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
D. Other 8(a)(3) Allegations
We agree with the judge for the reasons stated in his
decision that the Respondent violated Section 8(a)(3) and
(1) by issuing a final written warning to employee Albert
Turner and subsequently terminating him. As to em-
ployee James Staus, we adopt the judge’s findings that
the Respondent violated Section 8(a)(3) and (1) by: (1)
issuing him a verbal warning for wearing union-related
insignia; (2) issuing him a verbal warning for posting
union literature on the refrigerator in the break room
and/or distributing union literature in the employee break
room, and/or posting union-related materials on the bul-
letin board in the dock area;15 and (3) placing him on a

request for a statement from Poston occurred after her suspension, the
suspension was a suspension pending investigation. The judge did not
find, nor is there any evidence in the record, that the Respondent had
already decided to issue Poston a final written warning at the time it
requested the statement. As to Oakes, the Respondent questioned him
on March 4, but he was not discharged until March 20, and the judge
did not find—and the record clearly contradicts—any notion that the
Respondent had even considered terminating Oakes before March 10 or
11. Finally, as for Lavelle, he was not even the subject of any disci-
pline during this case.
We disagree with our dissenting colleague. First, the Respondent
was not engaged in a lawful investigation of potential rule violations
where, as here, it invoked those rules in a discriminatory manner
against union activity. Second, even assuming arguendo that the Re-
spondent’s conduct—which was directed at two employees who had
recently been reinstated pursuant to a settlement agreement and a third
who sent out a statement on their behalf declaring their continued alle-
giance to the union campaign—was the product of a legitimate investi-
gation, it nonetheless violated the Act because of its doubtless coercive
effect on the employees’ Sec. 7 activities. As to all three employees,
the Respondent had already conclusively determined to discipline them
for the conduct they had engaged in before questioning them and/or
directing them to provide written statements about their union activity.
The Respondent already had Poston’s challenged email message, which
celebrated the reinstatement of the previously discharged Oakes and
Lavelle, and had determined the computer from which it was sent be-
fore questioning Poston about the incident and directing Poston and
Lavelle to each provide written statements about this union activity. In
these circumstances, the Respondent’s probing into the employees’ Sec.
7 activities would undoubtedly have a coercive effect. This coercive
effect would be even more pronounced from the questioning of Oakes.
After Oakes replied affirmatively to department manager Touray’s
question whether Oakes knew about Poston’s email, Touray asked how
Oakes felt about Poston having sent the email out under Oakes’ name.
This latter question would elicit one of two responses, either of which
would reasonably tend to coerce Oakes in the exercise of his Sec. 7
rights. If Oakes responded that he did not approve of Poston’s actions,
he might fear that he was bolstering the disciplinary case against
Poston; conversely, if he expressed approval or a lack of concern about
Poston’s attribution, he might be viewed as complicit in Poston’s ac-
tions.
15 Member Emanuel adopts the judge’s findings regarding the verbal
warnings to Staus only to the extent that these warnings were for wear-
ing union insignia and distributing union material in the employee
break room. He finds it unnecessary to pass on the remainder of the
allegations because the additional findings would not materially affect
the remedy.
performance improvement plan and then discharging
him.16 Regarding the discharge of employee Ronald
Oakes, we adopt the judge’s finding that the Respondent
violated Section 8(a)(4), (3) and (1) of the Act by dis-
charging him, but in doing so, we do not rely on the
judge’s statement that the Respondent did not follow its
progressive discipline policy in regard to Oakes’ termi-
nation. We find, based on Oakes’ own testimony, that he
was reinstated at the final written warning stage, not the
written warning stage.
E. 8(a)(2) Allegation
The judge found that the Respondent’s Environmental
Support Services (ESS) Employee Council was a labor
organization within Section 2(5) of the Act, and that the
Respondent dominated or interfered with the formation
or administration of the council, thereby violating Sec-
tion 8(a)(2) of the Act. We agree.
1. Labor organization status
The judge’s finding that the ESS Employee Council
was a labor organization is well-supported by the record.
The facts are largely undisputed and set forth in full in
the judge’s decision.
Section 2(5) of the Act broadly defines “labor organi-
zation” as “any organization of any kind . . . in which
employees participate and which exists for the purpose,
in whole or in part, of dealing with employers concern-
ing grievances, labor disputes, wages, rates of pay, hours
of employment or conditions of work” (emphasis added).
There is no dispute that the ESS Employee Council is
an “organization . . . in which employees participate.”
Further, we agree with the judge that a purpose of the
council is “dealing with” the Respondent. “The concept
of ‘dealing with’ essentially involves a bilateral process,
ordinarily entailing a pattern or practice by which a
group of employees makes proposals to management,
and management responds to these proposals by ac-
ceptance or rejection by word or deed.” EFCO Corp.,
327 NLRB 372, 375 (1998), enfd. 215 F.3d 1318 (4th
Cir. 2000). The facts indicate that bilateral dealings oc-
curred between the ESS Employee Council and the Re-
spondent’s director of environmental services, Dan Gas-
parovic, on a number of issues, including (1) the provi-
sion of bulletin boards to post materials regarding the
“hoarding” of mop heads and distribution of the proper
amount of cleaning chemicals, (2) the failure of employ-

16 We find it unnecessary to pass on the judge’s additional findings
that the Respondent violated Sec. 8(a)(1) by asking Staus if he was
“coming out” after a supervisor observed Staus wearing union insignia,
and by asking him about whether he had distributed union literature.
We find that these additional violations would not materially affect the
remedy.
UPMC 5
ees to return cleaning carts to the appropriate designated
areas, (3) the dispatcher calling employees with their
next assignment while employees were still on their
lunch breaks, and (4) the implementation of an Employee
of the Month Award.
These dealings were over statutory terms and condi-
tions of employment, as Section 2(5) requires, the most
notable example being the Employee of the Month
Award, which includes a $25 bonus. See Electromation,
Inc., 309 NLRB 990, 997 (1992), enfd. 35 F.3d 1148 (7th
Cir. 1994) (bonuses and other monetary incentives are
clearly working conditions); Postal Service, 302 NLRB
767, 776 (1991) (similar). While $25 is a modest
amount, the Board does not require that bonuses be of
significant value, and in general has taken a broad view
of statutory subjects under Section 2(5). See, e.g., E.I.
du Pont & Co., 311 NLRB 893, 894 (1993) (incentive
awards for safety and benefits such as employee picnic
areas and jogging tracks are all terms and conditions of
employment). Also notable is the ESS Employee Coun-
cil’s request that management speak to the dispatchers
about contacting employees with their next assignment
while employees were still on their lunch break. Gaspa-
rovic responded to this request by saying that he would
speak to the dispatcher and supervisors involved. There-
after, the dispatchers for the most part stopped calling
employees during their lunch breaks.
The Respondent argues that the ESS Employee Coun-
cil discussed only quality and efficiency issues with the
Respondent, not considered “conditions of work.” See
Webcor Packaging, Inc., 319 NLRB 1203, 1205 (1995),
enfd. 118 F.3d 1115 (6th Cir. 1997), cert. denied 522
U.S. 1108 (1998) (issues of production problems and
plant efficiency are not terms and conditions of employ-
ment); Polaroid Corp., 329 NLRB 424, 425 fn. 4 (1999)
(same). In Electromation, the Board rejected a similar
argument based on the lack of evidence that the purpose
of the committees at issue “was limited to achieving
‘quality’ or ‘efficiency.’” 309 NLRB at 997 fn. 28 (em-
phasis added). Similarly, there is no evidence here that
the purpose of the ESS Employee Council was limited to
quality and efficiency concerns. Such issues as the Em-
ployee of the Month Award and the request that the dis-
patcher not contact employees at lunch are clearly terms
and conditions of employment. For these reasons, as
well as others cited by the judge, we adopt the judge’s
finding that the ESS Employee Council was a “labor
organization” within Section 2(5) of the Act.17

17 The Respondent also argues that the ESS Employee Council was
not a “labor organization” because of the lack of evidence that employ-
ees “viewed the Council” as representing them with respect to wages,
hours, or other conditions of employment. The Board has held that
2. Domination/Interference
We also adopt the judge’s finding that the Respondent
dominated or interfered with the formation or administra-
tion of the council or contributed financial or other sup-
port to it. Contrary to our colleague, we find that the
judge’s decision is well supported by the record.
The impetus for the ESS Employee Council came from
the Respondent’s vice president for operations, John
Krolicki, who decided to create the council. The Re-
spondent determined that the council would be made up
of department manager Dan Gasparovic and employee
volunteers, who were solicited to participate by the Re-
spondent. The Respondent chose the time and place—
the manager’s conference room—for the first meeting.
At this meeting, the Respondent presented the employees
with prepared bylaws. Gasparovic told employees that
the purpose of the council was team building and morale,
and that he would serve as a liaison with upper manage-
ment to see whether their proposals were feasible. The
employees were paid for attending this and all subse-
quent meetings, which continued to be held in the man-
ager’s conference room.18
At the second meeting, without any vote or input from
the council members, Gasparovic informed them that
employee Janine Graham would serve as the council’s
chair, and that two other named employees would serve
as co-chairs.
At every monthly meeting held by the Respondent in
its environmental support services department, the Re-
spondent set aside time for Graham to report on the ac-
tivities of the council, including the Employee of the
Month Award. Council meeting minutes were prepared
by the Respondent, and then posted on department bulle-
tin boards in both the Presbyterian and Montefiore build-
ings.
Finally, we agree with the judge’s findings that the Re-
spondent contributed “financial or other support” to the
ESS council, including extensive financial and logistical
support of the council’s efforts to put on a Memorial Day
picnic and to develop and maintain the Employee of the
Month Award. The judge’s comprehensive factual find-
ings are not disputed.
In sum, “when the impetus behind the formation of an
organization of employees emanates from an employer
and the organization has no effective existence independ-

employees’ perceptions are entitled to little weight in determining labor
organization status. See Electromation, 309 NLRB at 997 fn. 27.
18 Although our dissenting colleague correctly notes that, under Elec-
tromation, paying employees for their meeting time and supplying
meeting space will not alone establish unlawful contribution of finan-
cial support, they are facts that support a finding of employer domina-
tion or contribution of unlawful support. See 309 NLRB at 998 fn. 31.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ent of the employer’s active involvement, a finding of
domination is appropriate.” Electromation, 309 NLRB
at 996 (citing long line of cases). We agree with the
judge that such is the case here, and we affirm his finding
that the Respondent’s conduct violated Section 8(a)(2).19
F. Felicia Penn: Final Written Warning and Related
Statement
1. 8(a)(3) allegation
Contrary to the judge, we find that the Respondent did
not violate Section 8(a)(3) of the Act by issuing a final
written warning to anesthesia technician Felicia Penn.
Assuming arguendo that the General Counsel met his
initial burden under Wright Line,20 we find that the Re-
spondent met its burden to prove that it would have dis-
ciplined Penn even in the absence of her union activities.
It is undisputed that Penn was the designated overtime
technician on the evening of November 28, 2012. She
was thus required to stay over and provide additional
help for the next shift if the volume of work required it.
It is further undisputed that she left the hospital that night
with four potential organ transplants pending. Penn her-
self acknowledged both at the time and multiple times on
the witness stand that there was “a potential for disaster”
if all the transplants took place. Another indication that
Penn was aware that by leaving she was neglecting her
responsibilities is that she initially lied about whether she
had worked overtime that night. When supervisor Jane
Hackett asked Penn the next day why she did not stay
and work overtime, Penn falsely claimed that she had—
an assertion that, as the judge noted, was flatly contra-
dicted by the time clock, which showed that she left at
7:04 p.m. Curtaccio, who had no obligation to stay when
her shift ended at 7 p.m., testified that she stayed over
because she “didn’t feel comfortable leaving,” and
thought the workload was too much for the two remain-
ing technicians to handle. In short, Curtaccio testified,
“I felt she shouldn’t have left.”

19 Contrary to our dissenting colleague, we find little relevance in the
fact that the council ceased operating when the employees lost interest
in it. During the period that the council was in existence, following its
formation by the Respondent, the Respondent controlled significant
aspects of its operation. Arguably it was because of this domination
that employees decided that the council did not provide a meaningful
vehicle for their input.
We decline, however, to rely on the judge’s statement that the Re-
spondent’s initiation and support of the council “was designed to inter-
fere with [the] employee[s’] free choice.”
20 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). While making this assumption, we none-
theless note that many of the events relied on by the judge to establish
knowledge of Penn’s union activity occurred after Penn’s final written
warning and are therefore entitled to little if any weight.
Despite this evidence, the judge found that the Re-
spondent had failed to meet its rebuttal burden under
Wright Line primarily because: (1) the Respondent
failed to produce an appropriate “comparator,” i.e., an
employee who was not a union activist who had engaged
in similar behavior and had not been disciplined; and (2)
there was no effect on patient care because none of the
four transplants pending when Penn left the hospital ul-
timately took place—in other words, “no harm, no
foul.”21
We do not find either of these arguments persuasive.
First, we are not persuaded by the judge’s reliance on the
fact that there was “no effect on patient care,” which is
plainly a post hoc rationalization for Penn’s negligence.
The fact that none of the transplants ultimately took
place was entirely fortuitous; not only Penn but, more
importantly, the patients, were extraordinarily fortunate
that the “disaster” that Penn admittedly knew was possi-
ble when she left the hospital did not come to pass.
As to the judge’s other rationale, it is certainly under-
standable that the Respondent was not able to produce
evidence of another anesthesia technician who had left
the hospital with multiple transplants pending despite
being the designated overtime person—or any other em-
ployee conduct comparable to Penn’s behavior. The
judge gives far too much weight to the Respondent’s
ostensible failure to define with precision and identify
other employees who were disciplined for engaging in
“work negligence.” As an initial matter, although the
formal disciplinary document used the term “work negli-
gence,” Penn was repeatedly told that her offense was
“job abandonment”—a readily understandable term.
Moreover, negligence is commonly understood to be a
“failure to exercise the care that a reasonably prudent
person would exercise in like circumstances.”22 Penn
clearly failed to exercise such care when, as the designat-
ed overtime person, she left her coworkers to cope with a
“potential disaster” if the pending transplants went
through.
Penn’s final written warning also cites the “inappropri-
ate behavior and demeanor” exhibited by Penn during a
conversation with her supervisor 2 days after she failed

21 In addition, the judge relied on the fact that Amy Bush, the execu-
tive director of surgical services, was “advocating that Penn be termi-
nated” before the Respondent had adequately investigated Penn’s con-
duct on November 28. While troubling, we note that rather than follow
Bush’s recommendation, human resources representative Kathy Grills
instead thoroughly investigated the incident, including by obtaining
statements from managers, as well as Penn, Hackett, Curtaccio, and the
other techs on duty that night. It was only following that investigation
that Penn received a written warning, which was consistent with the
Respondent’s progressive discipline policy.
22 Merriam-Webster’s Collegiate Dictionary (11th Ed. 2012) at 830.
UPMC 7
to cover her overtime shift. The judge focused primarily
on the language used by Penn in analyzing this factor.
However, the credited testimony demonstrates that it was
not just Penn’s language that underlay this aspect of the
warning, but more generally, Penn’s demeanor during
the conversation, including Penn’s flatly informing
Hackett that she did not intend to work on Christmas Day
even though she was on the schedule.23
In sum, we find that the Respondent met its burden of
demonstrating that it would have issued Penn a final
written warning even if she had not been an open union
supporter. Most critical, of course, is the evidence of job
abandonment cited above: Penn left her shift in the anes-
thesia department even though there were four possible
transplants that night and she was the designated person
to cover any necessary overtime. Her conduct was all the
more serious given the extremely small size of the de-
partment. Finally, we also rely, in dismissing this allega-
tion, on the undisputed evidence that the Respondent
followed its progressive discipline policy in issuing Penn
a final written warning.
2. 8(a)(1) allegation
Penn’s final written warning was rescinded six months
later. At the time of the rescission, executive director of
surgical services Amy Bush told Penn that the warning
was being rescinded not because Penn was right in the
matter, but because she had “bullied” other employees
into writing statements on her behalf during the griev-
ance process.24 The judge found that Bush’s statement
violated Section 8(a)(1). We reverse and dismiss this
allegation.25

23 Hackett did not testify. However, Hackett spoke to executive di-
rector of surgical services Amy Bush later that day about Penn’s con-
duct, and the judge credited Bush’s recounting of what behavior Hack-
ett objected to over that of Penn.
24 In fact, the record shows that Penn’s final written warning was re-
scinded because the Respondent was unable to locate a copy of the
warning with all of the necessary signatures on it. Thus, Penn’s alleged
bullying actually was not the reason for the rescission. As our law
requires, however, we decide this issue based on Bush’s statement as
made to Penn.
25 Contrary to his colleagues, Member Pearce agrees with the judge’s
finding of a violation. As the judge found, Bush’s statement was mani-
festly false; Penn’s discipline was rescinded because the Respondent
had misplaced the signed disciplinary forms. More importantly, the
“process” to which Bush was referring was the Respondent’s grievance
process, which Penn had invoked in an effort to establish that she was
improperly disciplined. And “bullying” referred to Bush’s assertion
that Penn’s coworkers provided statements in support of her grievance
because they were afraid of Penn. The judge rejected this assertion,
finding “no credible evidence in the record to support such a state-
ment.” The judge further concluded that Bush’s critical comments to
Penn about the way she solicited employee support for her grievance
would reasonably restrain Penn and other employees from exercising
their protected rights to engage in concerted activity for the purpose of
The circumstances surrounding Bush’s statement to
Penn make clear that no reasonable employee would feel
intimidated or coerced in the exercise of their Section 7
rights as a result of the statement. The record –—
specifically, Curtaccio’s credited testimony—establishes
that Penn actually had bullied other employees into writ-
ing statements supportive of her position.26 The judge
gives no explanation as to why a reasonable employee in
those circumstances would feel coerced by Bush’s state-
ment. Indeed, the judge merely repeats boilerplate lan-
guage from Section 8(a)(1) of the Act.27 As a result, we
cannot find that the General Counsel met his burden of
proof on this allegation.
AMENDED REMEDY
In addition to the remedies imposed by the judge, we
shall require the Respondent to post the Notice to Em-
ployees for 120 consecutive days.28 In ordering this
remedy, we note that the purpose of Board remedial or-
ders is to deter future violations and “reaffirm to em-
ployees their Section 7 rights and to reassure them that
the Respondents will respect those rights in the future.”
Pacific Beach Hotel, 361 NLRB 709, 711 (2014) (and
cited cases), enfd. in relevant part 823 F.3d 668 (D.C.
Cir. 2016). In fulfilling this purpose, the Board exercises
broad remedial authority to impose those remedies “re-
quired by the particular circumstances of a case.” Ishi-
kawa Gasket America, 337 NLRB 175, 176 (2001), enfd.
354 F.3d 534 (6th Cir. 2004). Here we find that an ex-
tended notice-posting period is warranted based on the
number and serious nature of the Respondent’s violations
which permeated the Union’s campaign to organize a
unit of 3500 Shadyside employees. These wide-ranging
violations include restrictions on employee support for
the Union, the unlawful formation and domination of an
employee organization, threats of discipline, and the un-
lawful discipline and discharge of multiple employees
for union activities and because they had sought access
to the Board. In addition, several of these violations oc-

mutual aid and protection. Member Pearce agrees, and would adopt the
judge’s finding of a Sec. 8(a)(1) violation.
26 Curtaccio, whom the judge found an “impressive” witness and
specifically credited over Penn to the extent that their testimony dif-
fered, testified that her statement was written with Penn “standing right
behind me” giving her directions as to the content of the statement. She
complied with those directions because “Felicia was very intimidating.”
27 Similarly, we are not persuaded by Member Pearce’s suggestion,
see footnote 25 above, that such coercion would arise merely because
Penn had been demanding statements in connection with her grievance
process.
28 The judge had denied this requested relief, citing the lack of spe-
cific case support. However, subsequent to the judge’s decision, the
Board has ordered extended notice periods in Ozburn-Hessey Logistics,
LLC, 366 NLRB No. 177 (2018) (3 years), and Pacific Beach Hotel,
cited in text below, 361 NLRB at 714 (3 years).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
curred during the 60-day notice-posting period for alle-
gations of prior Respondent unlawful conduct that had
been informally settled.29 This occurrence of violations
during that posting period demonstrates the inadequacy
of the standard notice-posting period as a deterrent of
future unlawful conduct and an assurance to employees
that their Section 7 rights would be protected. Accord-
ingly, we find that a 120-day notice posting period is
warranted here.30
ORDER
The Respondent, UPMC Presbyterian Shadyside Hos-
pital, Pittsburgh, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discriminatorily prohibiting employees from wear-
ing union insignia in patient care areas while permitting
employees to wear insignia regarding other entities not
related to the hospital in patient care areas.
(b) Prohibiting employees from wearing union insignia
in nonpatient care areas.
(c) Discriminatorily prohibiting employees from post-
ing union materials on its bulletin boards while allowing
the ESS Employee Council to post materials on its bulle-
tin boards.
(d) Coercively interrogating employees regarding their
union activities.
(e) Threatening to discipline employees for refusing to
participate in an unlawful interrogation.
(f) Impliedly threatening employees with a poor evalu-
ation because of their union activities.

29 As noted by the judge, the settlement approved by the Regional
Director on Feb. 7, 2013, resolved charges in Cases 06–CA–081896,
06–CA–086542, 06–CA–090063, 06–CA–090133, 06–CA–090144,
06–CA–092507, 06–CA–092808, 06–CA–094095, and 06–CA–
095735, and specified remedies including reinstatement and backpay
for employees Frank Lavelle and Ronald Oakes, and notice posting for
the standard 60 days.
30 Member Emanuel dissents from the order of a 120-day posting pe-
riod and notes that Ozburn-Hessey Logistics and Pacific Beach Hotel,
cited by the majority, appear to be the only two cases in which the
Board has ordered a posting period of longer than 60 days. Moreover,
he notes that the employers’ conduct in these cases was far more egre-
gious than that involved in this case. See Pacific Beach Hotel (em-
ployers’ had a “10-year history of . . . egregious and pervasive viola-
tions,” had been the subject of two federal court injunctions under Sec.
10(j) of the Act, had been found in contempt of court for failing to
comply with an injunction, and “still have not complied with the reme-
dial obligations imposed on them during our earlier encounters.” 361
NLRB No. 65, slip op. at 711 (emphasis in original)); Ozburn-Hessey,
366 NLRB No. 177, slip op. at 13 (employer had “extraordinary record
of law-breaking;” Board’s decision is sixth in series of decisions find-
ing that employer had engaged in serious and widespread violations of
the Act in the 9 years since union’s organizing campaign began).
Moreover, Member Emanuel agrees with Chairman Ring’s dissent from
the extended notice-posting period in Ozburn-Hessey.
(g) Coercively requiring employees to write a state-
ment regarding their union activities.
(h) Demanding employees’ consent to be photo-
graphed and photographing employees engaged in union
activity without proper justification.
(i) Forming, dominating, and rendering unlawful assis-
tance to the ESS Employee Council, or any other labor
organization.
(j) Issuing verbal or written discipline to its employees,
suspending its employees, placing its employees on a
Performance Improvement Plan (PIP), or discharging its
employees for engaging in union activities.
(k) Issuing written discipline or discharging its em-
ployees because they were named in an NLRB charge or
participated in a Board proceeding.
(l) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Ensure that the ESS Employee Council is com-
pletely disestablished, and refrain from recognizing the
ESS Employee Council or any successor thereof, as rep-
resentative of any of its employees for the purpose of
dealing with the Respondent concerning terms and con-
ditions of employment.
(b) Within 14 days from the date of this Order, offer
Ronald Oakes, Albert Turner, and James Staus full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
(c) Make Ronald Oakes, Albert Turner, James Staus,
and Leslie Poston whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy sec-
tion of the judge’s decision as amended in this decision.
(d) Compensate Ronald Oakes, Albert Turner, James
Staus, and Leslie Poston for the adverse tax consequenc-
es, if any, of receiving lump-sum backpay awards, and
file with the Regional Director for Region 6, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar year(s) for each
employee.
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Ronald Oakes and Albert Turner and within 3 days
thereafter notify these employees in writing that this has
been done and that the discharges will not be used
against them in any way.
UPMC 9
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful placement on
a PIP and discharge of James Staus and within 3 days
thereafter notify him in writing that this has been done
and that his placement on a PIP and discharge will not be
used against him in any way.
(g) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension
and written warning given to Leslie Poston and within 3
days thereafter notify her in writing that this has been
done and that the suspension and written warning will
not be used against her in any way.
(h) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful verbal and
written warnings issued to Chaney Lewis, Albert Turner,
and James Staus and within 3 days thereafter notify them
in writing that this has been done and that the verbal and
written warnings will not be used against them 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 facilities in Pittsburgh, Pennsylvania, copies of the
attached notice marked “Appendix.”31 Copies of the
notice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 120 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent 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, de-
faced, or covered by any other material. If the Respond-
ent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to

31 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.”
all current employees and former employees employed
by the Respondent at any time since February 21, 2013.
(k) Within 14 days after service of the notice by the
Region, hold a meeting or meetings during working time,
which shall be scheduled to ensure the widest possible
attendance, at which the attached notice marked “Appen-
dix” is to be read to the nonclinical support employees by
shifts, departments, or otherwise, by a responsible man-
agement official in the presence of a Board agent and an
agent of the Union if the Region or the Union so desires,
or, at the Respondent’s option, by a Board agent in the
presence of a responsible management official, and if the
Union so desires, an agent of the Union.
(l) Within 21 days after service by the Region, file
with the Regional Director for Region 6 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 with this Order.
IT IS FURTHER ORDERED that the allegations that the
Respondent violated Section 8(a)(1) of the Act by deny-
ing nonemployee union organizers access to the hospital
cafeteria, engaging in surveillance of employees who
were talking to the union organizers in the cafeteria, and
requiring employees who were in the cafeteria with the
union organizers to produce their identification, are sev-
ered and retained for further consideration.
Dated, Washington, D.C. August 27, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER EMANUEL, dissenting in part.
I agree with my colleagues that the ESS Employee
Council was a “labor organization” within the meaning
of Section 2(5) of the Act, given the extremely broad
language of that provision. However, I disagree with my
colleagues and with the judge that the Respondent domi-
nated or interfered with the formation or administration
of the council. Therefore, I would reverse the judge and
dismiss the Section 8(a)(2) allegation.
The established description of domination derives
from Electromation, 309 NLRB 990 (1992), enfd. 35
F.3d 1148 (7th Cir. 1994), where the Board stated that “a
labor organization that is the creation of management,
whose structure and function are essentially determined
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
by management, and whose continued existence depends
on the fiat of management, is one whose formation or
administration has been dominated under Section
8(a)(2).” Id. at 995; see also EFCO Corp., 327 NLRB
372, 376-377 (1998), citing Electromation, supra (same),
enfd. 215 F. 3d 1318 (4th Cir. 2000); Webcor Packaging,
Inc. , 319 NLRB 1203, 1204 (1995), enfd. 118 F.3d 1115
(6th Cir. 1997), cert. denied 522 U.S. 1108 (1998) (same,
also citing Electromation). Although the ESS Employee
Council was created by management, it otherwise falls
well short of the Board’s description of domination or
interference for a number of reasons. First, the Respond-
ent did not determine the structure of the council; it
simply posted a sign-up sheet and invited all employees
to volunteer if they were interested in participating. Sec-
ond, the Respondent did not control the function of the
council; the employees themselves chose the topics of
discussion for the meetings. Third, the council’s contin-
ued existence was hardly controlled by “the fiat of man-
agement.” To the contrary, the employees themselves
had complete control over the continued existence of the
council; when the employees gradually became disinter-
ested in it, the council simply ceased to exist.1 This factor
was not considered by the judge.
I find the factors emphasized by the judge and my col-
leagues unpersuasive. First, although the employees
were paid for their time and the council was provided an
on-site meeting place, these factors do not automatically
equal “contribution of financial or other support.” See
Electromation, 309 NLRB at 998 fn. 31. Second, al-
though the employees formally adopted bylaws put for-
ward by the Respondent that paralleled those used by a
committee at its companion hospital, this “adoption” was
purely perfunctory; the bylaws were never again men-
tioned and appeared to play no part whatsoever in the
operation of the council.
The facts of this case are considerably weaker than
those cases in which the Board has found unlawful dom-
ination or interference. Compare EFCO Corp., 327
NLRB at 377 (in addition to employer creating commit-
tees and holding committee meetings on its premises
during work time, employer also “essentially deter-
mined” the structure and function of the committees,
selected the initial members, and chose the subjects they
were to address); Webcor, 319 NLRB at 1204–1205
(employer determined number of employees to serve and

1 Although my colleagues find “little relevance” in this undisputed
fact, their position is plainly contrary to the express language of Elec-
tromation and the cases following it. In addition, their speculation that
employer “domination” somehow led the employees to “decide[] that
the council did not provide a meaningful vehicle for their input” has no
support in the judge’s decision or in the record as a whole.
deemed that they would be elected by other employees,
determined council’s function, and defined subject mat-
ter to be addressed; employer also ordered halt of coun-
cil’s functions and then subsequent reestablishment of
council via second election); see also E.I. du Pont & Co.,
311 NLRB 893, 896 (1993) (extensive employer power
over multiple committees). And finally, the judge’s
analysis of the domination/interference issue rests on an
incorrect understanding of the law. He concludes his
analysis by declaring that “[u]nder the circumstances
present here, I find that the Respondent’s initiation and
support of the ESS Employee Council was designed to
interfere with employee free choice in selecting a bar-
gaining representative.” As my colleagues implicitly
acknowledge,2 the Board has made clear that Section
8(a)(2) does not require a showing of antiunion animus
or a specific motive to interfere with employees’ Section
7 rights. See Electromation, 309 NLRB at 996 fn. 24;
Ryder Distribution Resources, 311 NLRB 814, 818
(1993).3 For all of these reasons, I would reverse the
judge’s finding of an 8(a)(2) violation.
Dated, Washington, D.C. August 27, 2018
______________________________________
William J. Emanuel, Member
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
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discriminatorily prohibit employees
from wearing union insignia in patient care areas while

2 See fn. 19.
3 The judge’s finding of a “design to interfere with employee free
choice” also lacks support in the record.
UPMC 11
permitting employees to wear insignia regarding other
entities not related to the hospital in patient care areas.
WE WILL NOT prohibit employees from wearing union
insignia in nonpatient care areas.
WE WILL NOT discriminatorily prohibit employees
from posting union materials on our bulletin boards
while allowing the ESS Employee Council to post mate-
rials on our bulletin boards.
WE WILL NOT coercively interrogate employees regard-
ing their union activities.
WE WILL NOT threaten to discipline employees for re-
fusing to participate in an unlawful interrogation.
WE WILL NOT impliedly threaten employees with a
poor evaluation because of their union activities.
WE WILL NOT coercively require employees to write a
statement regarding their union activities.
WE WILL NOT demand employees’ consent to be pho-
tographed and photograph employees engaged in union
activity without proper justification.
WE WILL NOT coercively inform an employee that the
manner in which she solicited statements from employ-
ees during our internal grievance process was the reason
a warning had been rescinded.
WE WILL NOT form, dominate, and render unlawful as-
sistance to the ESS Employee Council, or any other labor
organization.
WE WILL NOT issue verbal or written warnings to our
employees, suspend our employees, place our employees
on a Performance Improvement Plan (PIP), or discharge
our employees for engaging in union activities.
WE WILL NOT issue written warnings or discharge our
employees because they were named in an NLRB charge
or participated in a Board proceeding.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of the rights
listed above.
WE WILL ensure that the ESS Employee Council is
completely disestablished, and refrain from recognizing
the ESS Employee Council or any successor thereof, as
representative of any of our employees for the purpose of
dealing with us concerning terms and conditions of em-
ployment.
WE WILL within 14 days from the date of this Order,
offer Ronald Oakes, Albert Turner, and James Staus full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
WE WILL make Ronald Oakes, Albert Turner, James
Staus, and Leslie Poston whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them, in the manner set forth in the remedy
section of the judge’s decision as amended by the Board.
WE WILL compensate Ronald Oakes, Albert Turner,
James Staus, and Leslie Poston for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 6, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
year(s).
WE WILL within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charges of Ronald Oakes and Albert Turner, and within 3
days thereafter notify these employees in writing that this
has been done and that the discharge will not be used
against them in any way.
WE WILL within 14 days from the date of this Order,
remove from our files any reference to the unlawful
placement on a PIP and discharge of James Staus and
within 3 days thereafter notify him in writing that this
has been done and that his placement on a PIP and dis-
charge will not be used against him in any way.
WE WILL within 14 days from the date of this Order,
remove from our files any reference to the unlawful sus-
pension and written warning given to Leslie Poston and
within 3 days thereafter notify her in writing that this has
been done and that the suspension and written warning
will not be used against her in any way.
WE WILL within 14 days from the date of this Order,
remove from our files any reference to the unlawful ver-
bal and written warnings issued to Chaney Lewis, Albert
Turner, and James Staus and within 3 days thereafter
notify them in writing that this has been done and that
the warnings will not be used against them in any way.
UPMC PRESBYTERIAN SHADYSIDE
The Board’s decision can be found at
www.nlrb.gov/case/06-CA-102465 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Suzanne Donsky, Julie Stern, and David Shepley, Esqs., for the
General Counsel.
Mark Stubley, Michael Mitchell, Ruthie Goodboe, Jennifer
Betts, April Dugan, and Thomas Smock, Esqs., for the Re-
spondent.
Claudia Davidson and Kathy Krieger, Esqs., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was
tried in Pittsburgh, Pennsylvania, on February 12–14, 20–21,
24–27, March 3–6, 31, April 4 and 8, 2014. SEIU Healthcare
Pennsylvania CTW, CLC (the Union) filed the charge in 6–
CA–102465 on April 10, 2013.1 Thereafter, the Union filed
additional charges in 06–CA–102494, 06–CA–102516, 06–
CA–102518, 06–CA–102525, 06–CA–102534, 06–CA–
102540, 06–CA–102542, 06–CA102544, 06–CA–102555, 06–
CA–102559, 06–CA–102566, 06–CA–104090, 06–CA–
104104, 06–CA–106636, 06–CA–107127,06–CA–107431, 06–
CA–107532, 06–CA–107896, 06–CA–108547, 06–CA–
111578, and 06–CA–115826. On September 30, 2013, the
General Counsel issued an order consolidating cases, consoli-
dated complaint, and notice of hearing. On November 5, 2013,
the General Counsel issued an order further consolidating cases
and an amendment to the consolidated complaint. On January
9, 2014, the General Counsel issued a second order further
consolidating cases and amended consolidated complaint (the
complaint). In the complaint the General Counsel alleges that
Respondent UPMC and Respondent UPMC Presbyterian
Shadyside (Respondent Presbyterian) constitute a single em-
ployer. After the issuance of the complaint, Respondent UPMC
and Respondent Presbyterian (the Respondents) filed with the
Board a motion to dismiss the allegation that Respondent
UPMC and Respondent Presbyterian constitute a single em-
ployer. On February 7, 2014, the Board issued an order denying
the Respondents’ motion.
As noted above, the trial in the instant matter opened on Feb-
ruary 12, 2014. The parties agreed, with my approval, to first
litigate the substantive unfair labor practice allegations in the
complaint against Respondent Presbyterian and then litigate the
issue of whether Respondent UPMC and Respondent Presbyter-
ian constituted a single employer within the meaning of the
Act. Thus, the trial commenced with the litigation of the sub-
stantive unfair labor practice allegations. Although the General
Counsel and the Union had issued subpoenas duces tecum to
both Respondent UPMC and Respondent Presbyterian
Shadyside that related solely to the single-employer issue prior
to the commencement of the hearing, rulings on the petitions to
revoke that had been filed to each of those subpoenas was ini-
tially deferred. As the trial regarding the unfair labor practice
allegations progressed, it became necessary to address the is-
sues raised by the petitions to revoke those subpoenas so that
the parties could prepare to litigate the single employer phase
of the proceeding. On February 24, 2014, on the record, I de-
nied, in substantial part, petitions to revoke the subpoenas du-

1 All dates are 2013 unless otherwise indicated.
ces tecum that the General Counsel had served on Respondent
UPMC and Respondent Presbyterian Shadyside, respectively,
and a subpoena duces tecum that the Union had served on Re-
spondent UPMC. Consequently, I ordered both the Respond-
ents to produce documents pursuant to the subpoenas. Thereaf-
ter, the Respondents indicated they would not comply with my
order and thus on March 20, 2014, on behalf of the Board, the
General Counsel filed an application to enforce all three sub-
poenas in the United States District Court for the Western Dis-
trict of Pennsylvania.
On April 3, 2014, I issued an order, on the record, severing
the single-employer allegations from the unfair labor practice
allegations in the complaint. I determined it was appropriate to
first issue a decision regarding the alleged unfair labor practices
committed by Respondent Presbyterian and later issue a sup-
plemental decision regarding the issue of whether Respondent
UPMC and Respondent Presbyterian Shadyside constitute a
single employer.2 My reason for doing so was that, in light of
the ongoing subpoena enforcement proceedings in the district
court, there was substantial uncertainty as to when the single-
employer allegations in the complaint would proceed to trial.3 I
do not believe that it would aid in the efficient administration of
the Act to delay the disposition of the substantive allegations of
the complaint while awaiting the outcome of the protracted
subpoena enforcement litigation involving the single-employer
issue. Consequently, this decision involves only the allegations
of the complaint that Respondent Presbyterian committed the
unfair labor practices alleged in the complaint. Accordingly, the
term Respondent as it is used in this decision refers only to
Respondent Presbyterian.
Posthearing Motions
After receiving a series of extensions, the parties filed their
briefs in this matter on July 18, 2014. On the same date, the
General Counsel and the Respondent filed motions to correct
the transcript. On August 6, 2014, the Union filed an opposition
to the Respondent’s motion to correct the transcript. The record
in this case is lengthy (over 3100 pages) and both motions point
out a number of errors contained in the transcript and set forth
the appropriate corrections. I grant both motions. Because of
the number of corrections, I will not list them in this decision
but rather order that both motions are hereby included in the
record and that the transcript is corrected in the manner set
forth in the motions.
On July 23, 2014, the General Counsel filed a motion to
withdraw paragraph 8 and paragraphs 34(a), (b), and (c) of the
complaint. I grant the General Counsel’s motion since the rec-
ord does not contain evidence to support those complaint alle-
gations.
On July 28, 2014, the General Counsel filed a motion to

2 There are no allegations in the complaint that Respondent UPMC
itself committed any unfair labor practices. Respondent UPMC would
only have liability for any unfair labor practices if it is found to be a
single employer with Respondent Presbyterian.
3 On August 22, 2014, the district court issued an order granting the
Board's application for enforcement of the three subpoenas, which it
amended on September 2, 2014. The district court stayed its order
pending an appeal by the Respondents.
UPMC 13
strike articles contained in appendix 8 of the Respondent’s
posthearing brief regarding “Factors Affecting Medication
Errors Among Staff Nurses: Basis in the Formulation of Medi-
cation Information Guide” and references to that article con-
tained in footnote 148. The General Counsel also moved to
strike the reference to information on a website regarding
“ODC Guidelines for Disinfection and Sterilization in
Healthcare Facilities” contained on page 78 of the Respond-
ent’s brief. On August 11, 2014, the Respondent filed an oppo-
sition to the General Counsel’s motion. The basis for the Gen-
eral Counsel’s motion is that neither of these documents was
introduced into evidence at the hearing. I grant the General
Counsel’s motion regarding these two issues. Since these doc-
uments were not introduced as evidence at the hearing they
cannot be introduced into the record at this point. International
Bridge & Iron Co., 357 NLRB 320, 321 (2011); King Soopers,
Inc., 344 NLRB 842 fn. 1 (2005), enfd. 476 F. 3d 843 (10th
Cir. 2007); Section 102.45 (b) of the Boards Rules and Regula-
tions.
The General Counsel’s motion to strike also requests that I
strike certain references in the Respondent’s brief on the basis
that those references are not supported by record evidence. I
deny this aspect of the General Counsel’s motion to strike as it
is in the nature of an answering brief. There is no provision in
Section 102.42 of Board’s Rules and Regulations for the filing
of an answering brief with an Administrative Law Judge.
Moreover, I am perfectly capable of evaluating the record sup-
port for assertions made in a brief.
Finally, all of the parties filed a statement of position regard-
ing the effect of the Supreme Court’s decision in NLRB v. Noel
Canning, 134 S. Ct. 2550 (2014), on certain cases referred to
the posthearing briefs
On the entire record, including my observation of the de-
meanor of the witnesses,4 and after considering the briefs filed
by the General Counsel, the Union, and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Presbyterian, a Pennsylvania nonprofit corpora-
tion, with offices and places of business in Pittsburgh, Pennsyl-
vania, has been engaged in the operation of acute care hospitals
providing inpatient and outpatient medical care. Annually Re-
spondent Presbyterian, in conducting its operations described
above, derives gross revenues in excess of $250,000 and pur-

4 In making my findings regarding the credibility of witnesses, I
have considered their demeanor, the content of the testimony and the
inherent probabilities based on the record as a whole. In certain in-
stances, I credited some, but not all, of what the witness said. I note, in
this regard, that “nothing is more common in all kinds of judicial deci-
sions than to believe some and not all” of the testimony of a witness.
Jerry Ryce Builders, 352 NLRB 1262 fn. 2 (2008), citing NLRB v.
Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on
other grounds 340 U.S. 474 (1951). See also J. Shaw Associates, LLC,
349 NLRB 939, 939–940 (2007). In addition, I have carefully consid-
ered all the testimony in contradiction to my factual findings but have
discredited such testimony.
chases and receives at its Pittsburgh, Pennsylvania facilities
goods valued in excess of $50,000 directly from points outside
the Commonwealth of Pennsylvania. Respondent Presbyterian
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
is a health care institution within the meaning of Section 2(14)
of the Act. I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The substantive allegations of the complaint, as amended, al-
lege that, commencing in February 2013, the Respondent en-
gaged in numerous violations of Section 8(a)(1) of the Act
including, creating the impression of surveillance of employees
union activities, engaging in surveillance of union activities,
threatening employees with discipline, threatening to arrest
employees, interrogating employees, impliedly threatening an
employee with a poor evaluation, photographing an employee
engaged in union activity, and disparately enforcing its solicita-
tion policy in several instances.
The complaint further alleges that since February 20, 2013,
the Respondent violated Section 8(a)(2) and (1) of the Act by
dominating and giving support to the Presbyterian Hospital
Environmental Support Services Employee Council (the ESS
employee council), a labor organization it established and by
dealing with the ESS employee council concerning terms and
conditions of employment.
The complaint also alleges that on March 20, 2013, the Re-
spondent discharged Ronald Oakes and on March 28, 2013,
issued a final written warning to Chaney Lewis in violation of
Section 8 (a)(4), (3), and (1) of the Act.
Finally, the complaint alleges that the Respondent violated
Section 8(a)(3) and (1) of the Act by: on December 20, 2012,
issuing a final written warning to Felicia Penn; on February 27,
2013, issuing a written warning to David Jones; on February
28, 2013 suspending Leslie Poston; on March 11, 2013, issuing
a final written warning to Poston; on March 9 discharging Fin-
ley Littlejohn; on April 4, 2013, issuing a verbal warning to
James Staus; on April 23, 2013, issuing a final written warning
to Albert Turner; on April 26, 2013 issuing a verbal warning to
Staus; on May 14, 2013 placing Staus on a Performance Im-
provement Plan; on June 18, 2013, discharging Albert Turner;
and on July 1, 2013, discharging Staus.
Background
The Respondent, which is located in Pittsburgh, Pennsylva-
nia, is composed of Presbyterian Hospital5 and Shadyside Hos-
pital, which are located adjacent to each other. Presbyterian and
Shadyside are operated as one hospital and have one taxpayer
identification number. The Western Psychiatric Institute and
Clinic (WPIC) is also administratively part of the Respondent
and is located near Presbyterian and Shadyside. At Presbyterian
Hospital there are approximately 6000 employees, including

5 Presbyterian Hospital also includes “Montefiore Hospital” which
is also located adjacent to Presbyterian and had been acquired by Pres-
byterian and merged into its operations. Although Montefiore no longer
exists as a separate hospital, witnesses used that name to describe the
building where Montefiore was formerly located.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
approximately 2100 nonclinical support employees, employed
in approximately 200 departments. At Shadyside Hospital
there are approximately 3000 employees, including 1400 non-
clinical support employees, employed in 100 departments.
Many departments operate at both hospitals.
Dr. Margaret Reidy, the Respondent’s senior vice president
for medical affairs, testified that there are some nurses and
support employees that are represented by a union at WPIC and
that some maintenance employees and security officers are
represented at Presbyterian. While Dr. Reidy testified that these
employees have been represented for a period of time, she was
uncertain as to whether the employees were organized at the
time that the Respondent took over those facilities. Gerald Mo-
ran, the Respondent’s security operations manager, testified
that there are 26 security officers at Presbyterian Hospital and
that they have been represented from approximately the mid to
late 1990’s. There is no evidence in the record regarding a de-
scription of these bargaining units or the name of the collective-
bargaining representative for each unit.
In the spring of 2012, the Union began a campaign to organ-
ize the nonclinical support employees employed at the Re-
spondent. Union representative Sarah Fishbein testified that she
was hired by the Union in June 2012 and was assigned to the
ongoing campaign to organize the Respondent’s support em-
ployees. As part of the campaign the Union distributed union
buttons, lanyards and flyers to employees. The committee of
the employees supporting the Union included Leslie Poston,
Chaney Lewis, Larry Ward, Frank Lavelle, Albert Turner,
Bonita McWhrrter, James Staus, and Finley Littlejohn. The
Union’s campaign was continuing at the time of the hearing.
The Union has not filed a petition for an election.
The Respondent has openly indicated that it is opposed to the
Union’s attempt to organize its nonclinical support employees.
In this regard, the Respondent posted a document on its website
entitled “UPMC Cares” (CP Exh. 6), which contains infor-
mation about the SEIU and unions in general. It also contains a
section entitled “Why Unions Aren’t Necessary” which indi-
cates, inter alia:
We respect our associates-lawful right to choose or reject un-
ion representation. However, we believe that our associates
don’t need a union to represent them.
We believe that unionization is Not in the best interest of our
associates. (Emphasis in the original.)
The presence of the union could change relationships between
managers, supervisors and associate her testimony thats. A
contract could force associates to go through a union steward
instead of talking directly with management. (CP Exh. 6 pp.
3-4.)
The copy of the material contained on “UPMC Cares” intro-
duced into evidence is dated February 14, 2013. The record
establishes, however, that this website was operating since at
least the fall of 2012. In addition, since at least the fall of 2012,
the Respondent has utilized screen savers on employees’ com-
puters throughout the hospital which scroll messages regarding
the Union. One such message indicated “You can say NO to the
SEIU. It’s your right.” (Emphasis in the original.) The screen-
savers direct employees to the UPMC Cares website for more
information. (CP Exh. 5)
The Prior Settlement Agreements
Pursuant to unfair labor practice charges filed by the Union,
on February 7, 2013, the Regional Director for Region 6 ap-
proved an informal settlement agreement in a case captioned
“UPMC and its subsidiaries UPMC Presbyterian Shadyside and
Magee-Women’s Hospital of UPMC, Single Employer, d/b/a
Shadyside Hospital and/or Presbyterian Hospital and/or Mon-
tefiore Hospital and/or Magee-Women’s Hospital,” Cases 06–
CA–081896, 06–CA–086542, 06–CA–090063, 06–CA–
090133, 06–CA–090144, 06–CA–092507, 06–CA–092828,
06–CA–094095, and 06–CA–095735. (ALJ Exh. 1.) This set-
tlement agreement was executed by UPMC Presbyterian
Shadyside and provided for, inter alia, the payment of back pay
and offers of reinstatement to employees Frank Lavelle and
Ronald Oakes. The settlement agreement contains a nonadmis-
sion clause.
The settlement agreement also indicates that the notice
would be posted in UPMC Presbyterian Hospital, UPMC
Shadyside Hospital, and Montefiore Hospital. The settlement
agreement indicates that it did not settle certain allegations of
the amended consolidated complaint in Case 06–CA–081896
with respect to the solicitation, electronic mail and messaging,
and acceptable use of information technology resources poli-
cies. It further provided that: “ The reference in the caption of
this case to the Single Employer is not intended to be, and will
not be proffered as, evidence that a Single Employer relation-
ship exists, during this or any other proceeding or case, includ-
ing any default proceeding.”
The settlement agreement also contains the following “de-
fault” language:
The Charged Party agrees that in case of non-
compliance system-wide as to the policies alleged in the
amended consolidated complaint and all other allegations
in the amended consolidated complaint occurring at
UPMC Presbyterian Shadyside with any of the terms of
this Settlement Agreement by the Charged Party within
180 days of the closing of this case, and after 14 days no-
tice from the Regional Director of the National Labor Re-
lations Board of such noncompliance without remedy by
the Charged Party, the Regional Director will reissue the
portion of the complaint previously issued on December
13, 2012, and amended on January 8, 2013, in the instant
case, which relates to that part of this Agreement with
which the Charge Party is not in compliance. Thereafter,
the General Counsel may file a motion for default judg-
ment with the Board on the allegations contained in the
pertinent portion of the complaint, excluding all single
employer allegations. The Charged Party understands and
agrees that such allegations of the aforementioned com-
plaint will be deemed admitted and its Answer to such
portion of the complaint will be considered withdrawn.
The only issue that may be raised before the Board is
whether the Charge Party defaulted on some terms of this
Settlement Agreement. The Board may then, without ne-
cessity of trial or any other proceeding, find such allega-
tions of the complaint to be true and make findings of fact
UPMC 15
and conclusions of law consistent with those allegations
adverse to the Charged Party on the issues raised in the
General Counsel’s motion for default. The Board may then
issue an order providing a full remedy for the violations
found as is appropriate to remedy such violations. The par-
ties further agree that a U.S. Court of Appeals Judgment
may be entered enforcing the Board order ex parte, after
service or attempted service upon Charge Par-
ty/Respondent at the last address provided to the General
Counsel.
On February 7, 2013, the Regional Director for Region 6 al-
so approved an informal settlement agreement with the same
case caption noted above in Case 06–CA–081896. (ALJ Exh.
2.) The settlement agreement was executed by Magee-
Women’s Hospital of UPMC and provided for a notice posting
at that hospital reflecting that it would not maintain certain
policies and that it would not discriminatorily enforce other
policies. The settlement also includes a non-admission clause.
This settlement agreement contained the same scope of the
agreement language indicating that this agreement did not settle
certain allegations in the amended consolidated complaint in
Case 06–CA–081896 regarding the solicitation, electronic mail
and messaging, an acceptable use of information technology
resources policy. The settlement agreement also contained the
same language quoted above regarding the reference to the
single employer in the case caption. It also includes the same
“default” language except that it makes specific reference to
“Magee-Women’s Hospital of UPMC” in the first sentence
rather than referring to “UPMC Presbyterian Shadyside.”
The Regional Director issued an order severing the remain-
ing allegations of Case 06–CA–081896 from the settled cases
issued on February 8, 2013, and a second amended complaint
issued on February 11, 2013.
Thereafter, a trial was held with respect to the remaining al-
legations Case 06-CA-081896 on February 20, 2013, before
Administrative Law Judge David Goldman. The issues in that
case were whether Respondent Presbyterian and Respondent
Magee maintained an unlawful solicitation policy effective
from December 15, 2011, until October 9, 2012; and an “elec-
tronic mail and messaging policy” and an “ acceptable use of
information technology resources policy” that were overly
broad and violative of Section 8(a)(1) of the Act.
On April 19, 2013, Judge Goldman issued a decision (JD–
28–13) finding that the solicitation policy was facially lawful
and therefore he dismissed that allegation in the complaint. He
also found, however, that the electronic mail and messaging
policy and the acceptable use of the information technology
resources policy were overly broad and violated Section 8(a)(1)
of the Act. Judge Goldman construed the amended complaint
that issued on February 11, 2013, as not naming UPMC as a
Respondent (JD–28–13, slip op. at 21).
As part of the record in that proceeding, however, Respond-
ent Presbyterian Shadyside, Respondent Magee-Women’s Hos-
pital, and UPMC entered into the following stipulation:
The undersigned parties hereby stipulate that any poli-
cies either adjudicated as unlawful, or which Respondent
agrees to voluntarily rescind in connection with the instant
matter, will be expunged wherever they exist on a sys-
temwide basis at any and all of Respondent’s facilities
within the United States and its territories, including, but
not limited to, those which are operated by UPMC Presby-
terian Shadyside and Magee-Womens Hospital of UPMC.
Moreover, Respondent agrees that it will notify all of
its employees at all of Respondent’s facilities within the
United States and its territories where such policies were
in existence, including but not limited to, those employees
working in facilities which are operated by UPMC Presby-
terian Shadyside and Magee-Womens Hospital of UPMC,
that such policies have been rescinded and will no longer
be enforced. Appropriate notice to employees of the re-
scission will be accomplished by whatever means Re-
spondent has traditionally used to announce similar policy
changes to employees and other circumstances.
Presbyterian Shadyside, Magee and UPMC shall com-
ply with the terms of the stipulation. (JD-28-13, slip op. at
23)
The Respondents and the Charging Party filed excep-
tions to Judge Goldman’s decision and that case is present-
ly pending before the Board.
At the hearing in the instant case, counsel for the General
Counsel claimed that the Respondent has committed sufficient
unfair labor practices since the execution of the above noted
settlement agreement (ALJ Exh. 1) so as to constitute a default
under the terms of the settlement agreement. Counsel for the
General Counsel further indicated that if I find that the Re-
spondent committed unfair labor practices in the instant pro-
ceeding, the General Counsel will file a motion for default
judgment, pursuant to the terms of that settlement agreement,
directly with the Board after I issue a decision.
The instant decision involves only the allegations of the
complaint before me and my findings and conclusions are
based on the evidence contained in this record. I have made no
findings, drawn any inferences, or made any conclusions based
upon the settlement agreements noted above in the prior cases.
The issue of whether the Respondent has defaulted on any
terms of the settlement agreement between it the General Coun-
sel and the Union is for the Board to decide, if and when the
General Counsel files a motion for default judgment.
The Reinstatement of Employees Pursuant to the
Settlement Agreement Between the Parties
Pursuant to the settlement agreement between the General
Counsel, the Respondent, and the Union in Case 06–CA–
081896 at al., Employees Ronald Oakes and Frank Lavelle
were reinstated on February 25, 2013. On the same date, the
Union held a rally across the street from the emergency room
entrance to UPMC Presbyterian Hospital to celebrate their rein-
statement. After Oakes shift ended on February 25 at approxi-
mately 3 p.m., Oakes walked out of the hospital and crossed the
street to attend the rally. As Oakes left the hospital he was ac-
companied by employees Chaney Lewis and Finley Littlejohn.
Several of the Respondent’s security guards, including Donald
Charley, the vice president for parking and security for UPMC
Presbyterian Hospital and UPMC Magee Hospital, were stand-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
ing outside where the three employees exited Presbyterian
Hospital and watched them as they crossed the street to the
rally where approximately 200 employees had gathered. At the
rally Oakes thanked everyone for their support for him.
The Spring 2012 Conversation between Bart Wyss and
Albert Turner
As noted above, the General Counsel, with my approval, has
withdrawn Paragraph 8 of the complaint which alleged that on
about November 19, 2012, the Respondent, by Bart Wyss, vio-
lated Section 8(a)(1) of the Act by telling employees it knew
what they were discussing, created an impression of surveil-
lance of employees’ union activities.
Although I will not consider the evidence adduced at the
hearing regarding this matter as an unfair labor practice, I con-
sider it to be relevant background information.
Albert Turner testified on behalf of the General Counsel re-
garding this issue. Turner was employed as a shuttle bus driver
by the Respondent from the time that the Respondent acquired
the shuttle bus operation from Transportation Solutions, Inc. in
November 2010 until he was discharged in June 2013. Turner
had worked as a shuttle bus driver at the Respondent’s facilities
for Transportation Solutions since 2007.
Turner credibly testified that he began to support the Union
in the spring of 2012. In this connection, he solicited other em-
ployees to sign authorization cards. He also placed union litera-
ture on bulletin boards in the trailer that housed the Kronos
time clock that shuttle bus drivers used to swipe in and out of
work.
According to Turner, in the spring of 2012, one of the dis-
patchers, Nancy MacCracken, called him and told him that
before he started his route to come down to the office and meet
with Bart Wyss, who was then the Respondent’s operations
manager for employee transit.
Turner testified that when he arrived at Wyss’s office, Wyss
asked him if he knew about the Respondent’s solicitation poli-
cy. Turner replied no and Wyss said he was going to read it to
him and then read the Respondent’s solicitation policy to
Turner. After reading the policy, Wyss told Turner that he was
not allowed to solicit on any UPMC property, even on Forbes
Avenue, and that he was not allowed to go to any of the homes
of his coworkers. Turner testified that the Respondent has a few
office buildings on Forbes Avenue.6
Turner replied by telling Wyss that he “can tell me what to
do here but you can’t tell me what to do on my own time.”
Turner also asked Wyss why he was reading him the solicita-
tion policy and Wyss replied that he had a good source that told
him Turner was soliciting. When Turner asked him who the
source was, Wyss replied it not matter who it was, but it was a
good source.
Wyss testified that in June 2012 employees reported to him
that Turner was soliciting them regarding the Union. These

6 On cross-examination Turner testified that he spoke to Wyss about
the solicitation policy in February 2013. Considering the record as a
whole, I find that Turner's conversation with Wyss about the solicita-
tion policy took place in the spring of 2012, as Turner testified on
direct examination or, at the latest, in June 2012, which is when Wyss
recalled the conversation occurring.
employees further indicated that while they had asked Turner to
stop speaking to them about the Union, he persisted in doing so.
Wyss contacted the Respondent’s human resources department
and reported what the employees had informed him regarding
Turner’s solicitation of employees on behalf of the Union. Ac-
cording to Wyss, either Shannon Corcoran or Jennifer Del-
sandro in the human resources department instructed him to
read the solicitation policy to Turner to make him aware of it.
Wyss testified that he requested Supervisor Ted Hill have
Turner report to his office. According to Wyss, when Turner
arrived he read him the solicitation policy to him and told him
he was free to go. Wyss testified that he did not recall what
Turner said to him on this occasion.
I credit Turner’s testimony regarding his conversation.
Turner’s testimony was more detailed and his demeanor re-
flected certainty with respect to what was said to him. While
Wyss admitted reading the solicitation policy, his testimony
contained no further details regarding what he said. Wyss ad-
mitted that he did not recall what Turner said to him during this
meeting. I find Wyss’s testimony that he called Turner into his
office, read him the solicitation policy, and then told him he
was free to go, without saying anything more, to be implausi-
ble.
Based on Turner’s credited testimony, I find that sometime
in the spring of 2012, Wyss called Turner to his office and read
him the then current version of the Respondent’s solicitation
policy. Wyss added his reason for doing so was that good
sources had reported to him that Turner was soliciting on behalf
of the Union. In addition, Wyss told Turner that he could not
solicit for the Union on the Respondent’s property and, in addi-
tion, he was not permitted to solicit employees at their homes.
Since the first unfair labor practice charge underlying this com-
plaint, 06–CA–012465, was filed on April 10, 2013, this inci-
dent occurred far outside of the 10(b) period and cannot serve
as a basis for an unfair labor practice finding. However, this
incident is certainly relevant as background to the allegations in
the complaint. In the first instance, it establishes that the Re-
spondent knew that Turner was a supporter of the Union as
early as the spring of 2012 and also conveyed the impression
that his union activities were under surveillance. In addition,
when Wyss told Turner that he could not solicit for the Union
anywhere on the Respondent’s property and could not solicit
employees at their home, he was placing unlawful restrictions
on his right to solicit for the Union. It has been clear since Re-
public Aviation Corp. v. NLRB, 324 U.S. 793 (1945), that it is
unlawful for an employer to maintain a general rule prohibiting
solicitation at any time on its premises. With regard to Wyss’
instructions to Turner to not engage in home visits, an employer
has no right to interfere with the union activities of an employ-
ee that occur while the employee is not working and not on the
employer’s property.
The Cafeteria Incident
Facts
Paragraphs 11 through 14 complaint allege that on February
21, 2013, the Respondent, by Gerald Moran: in the presence of
employees, threatened to arrest nonemployees as they were
engaged in lawful union activities with its employees; in the
UPMC 17
presence of its employees threatened to arrest its employees as
they were engaged in lawful union activity; engaged in surveil-
lance of its employees as they were engaged in lawful union
activities; and coerced and intimidated its employees by re-
questing that they show their identification badges to Respond-
ent as they were engaged in lawful union activities. The com-
plaint alleges that this conduct violates Section 8(a)(1) of the
Act.
According to the mutually corroborative testimony of union
representatives Fishbein and Amber Stenman, at approximately
11a.m. on February 21, 2013, they entered the Respondent’s
cafeteria, which is located on the 11th floor of Presbyterian
Hospital, and met with a group of employees that included
Leslie Poston, Chaney Lewis, Albert Turner, Mazell Holiday,
Larry Ward, and Rob Marshall. Poston, Holliday, and Marshall
were not on duty on that date. The union representatives were
seated with the employees at two tables. Some other employees
stopped at the tables during the time the union representatives
were there.7 The union representatives discussed union matters,
including the recent NLRB settlement, with the employees who
were present. There were union flyers and pins at the table that
the union representatives and employees were sitting at. Some
of the employees seated at the table, including Albert Turner,
passed out some of the flyers. (Tr. 112, 145.) The union repre-
sentatives did not distribute any of the flyers and did not leave
the tables that they were sitting at during the entire period they
were in the cafeteria. Many of the customers of the cafeteria at
the time were employees wearing hospital uniforms.
There is nothing posted in the cafeteria placing any limita-
tions on who may patronize it. The Respondent’s solicitation
policy in effect on that date states: “Non-staff members may
not solicit, distribute or post material at any time on UPMC
premises.” (GC Exh. 162.)
At approximately 12:40 p.m., Gerald Moran, the Respond-
ent’s security operations manager, approached the group and
asked Fishbein what they were doing there. Moran also asked
Fishbein for her identification. Moran was not in a uniform but
rather was wearing a shirt and tie. Fishbein replied that they
were having lunch and talking about the Union. Fishbein then
asked Moran who he was and Moran replied that he was a po-
lice officer. Fishbein asked to see his badge, which Moran
showed her.8 Moran asked if Fishbein was an employee and
Fishbein replied, “no.” Fishbein asked why he was “harassing”
them and Moran replied that he was investigating a complaint
about unauthorized persons in the cafeteria. Fishbein asked
Moran if he had heard about the settlement that had just oc-
curred that brought two employees back to work and also indi-
cated that employees had the right to talk about the Union in
nonpatient areas. Moran said he had heard about the settlement
and talked to legal counsel about it and then he again asked
Fishbein for identification. Fishbein then showed Moran her

7 The testimony of Fishbein and Stenman is corroborated by the
contemporaneous notes Steadman made about the incident in the cafe-
teria on February 21, 2013. (R. Exh. 196.) Their testimony is also
generally corroborated by the testimony of Poston.
8 Moran received a commission as a police officer from the Alleghe-
ny County Court in October 2008.
identification and Moran wrote down some of the information
contained on it.
Moran then asked the other individual seated at the table
whether they were UPMC employees and Stenman replied that
she was not. Moran then asked her for identification. Stenman
replied that she did not have her ID; all that she had was her
debit card that she brought to buy her lunch that day. Moran
asked Stenman to see it and she told him she did not feel com-
fortable doing that. Stenman told Moran her name and he wrote
it down.
Moran then went to each person at the table with Fishbein
and Stenman and asked them for their identification.9 When
Fishbein asked him if he asked everyone in the cafeteria for
identification, Moran replied only when he received a com-
plaint. Moran asked employee Mozelle Holiday if she was an
employee and she replied that she was. Several of the employ-
ees said that they had a right to be there and talk about the Un-
ion in the cafeteria. Holiday stated that “this is ridiculous” and
that they were allowed to be there. Moran told Holliday that she
was getting loud and that if she did not quiet down, she would
have to leave. When Moran asked Rob Marshall whether he
was an employee, Marshall replied that he was, but he refused
to show his identification. Marshall and Lewis asked Moran
about the nature of the complaint that he had received and Mo-
ran replied the complaint was that there were people in the
cafeteria who were not authorized to be there. Moran said that
the only people authorized to be in the cafeteria were patients,
their families, visitors of patients, and employees.
According to Stenman, there was a woman sitting near the
employees and union representatives who they had spoken to
earlier about the union but that she had replied that she did not
work there and was waiting for her friend who worked there to
have lunch. Stenman told Moran that the individual they had
spoken to was not an employee, a patient or family member and
asked whether she would also have to leave. Moran responded,
“Maybe but I’m dealing with this right now.”
Marshall and Lewis then asked Moran to turn his ID badge
around and Lewis began to videotape Moran. Moran spoke to
Lewis by name and told him that there was no videotaping
allowed in the hospital. When Lewis asked Moran how he
knew his name because he never seen Moran before, Moran
replied, “You’re Chaney Lewis. You go around the hospital
destroying property and posting flyers.”
Moran then stated that individuals who were not employed at
the hospital would have to leave after they finished lunch.10Af-

9 A brief recording from Lewis' cell phone that was introduced into
evidence by the Respondent confirms that Moran questioned employees
about whether they had identification. (R. Exh. 155)
10 I base this finding on the credited testimony of Stenman on cross-
examination. Her testimony on this point (Tr. 149) is supported by her
contemporaneous notes of this incident (R. Exh. 196) which reflect that
after Moran identified Fishbein and Stenman as Union representatives
he stated "We are not allowed to be here having lunch with workers." I
therefore find Stenman's cross-examination testimony on this point
more reliable than her vague testimony on redirect examination by the
Union that when Moran approached the table he did not tell employees
they could stay (Tr. 217). I also note that Stenman credibly testified that
Moran asked an individual named Terry Brown, who was seated at a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
ter Fishbein stated that they were having lunch and were not
leaving, Moran went over to a phone on the wall and made a
phone call. He was later observed making a phone call on his
cell phone by the union representatives and employees seated at
the table.
At approximately 1:25 p..m. Moran again approached the ta-
ble that the union representatives and employees were sitting at.
He was accompanied by approximately four uniformed Pitts-
burgh police officers and two uniformed University of Pitts-
burgh police officers. A Pittsburgh police officer identified
himself as Anthony Yauch and said that he received a 911 call
from the hospital regarding unauthorized people being in the
cafeteria. According to Fishbein, she told Yauch that there had
been a “settlement” and that the employees were there eating
lunch and talking about the Union. Yauch replied that was a
civil case and he was investigating a criminal complaint and
that “we would have to leave the hospital property.” (Tr. 59.)
According to Stenman, Yauck stated, “I’m going to have to ask
you to leave.” (Tr. 125.) At that point the union representatives
and the remaining employees got up from the table and pro-
ceeded to walk out of the cafeteria to the elevator. The group of
police officers walked behind the union representatives and
employees as they exited the cafeteria.
Moran testified that on February 21, 2013, he received a
phone call from Christine Kieffer Wolff, one of the Respond-
ent’s managers, who reported to him that there were nonem-
ployees in the cafeteria soliciting for the Union and handing out
flyers. Wolff also said that they were taking up a number of
tables in the seating area of the cafeteria. Shortly thereafter,
Moran received a call from an employee who reported that as
he was exiting the cafeteria and an individual put a union flyer,
“in his face” and that he was upset over this incident.
After receiving these reports, Moran spoke to his superior
Donald Charley, the vice president for parking and security for
Presbyterian Hospital and UPMC Magee Hospital, about this
matter. Charley directed Moran to contact one of the Respond-
ent’s in-house counsel to discuss the matter. After speaking to
counsel, Moran went to the cafeteria to investigate the com-
plaints that he had received. When Moran arrived at the cafete-
ria, he first went to the tray line area and did not observe any-
one handing out flyers. He then walked in the cafeteria seating
area and observed two or three tables pushed together and indi-
viduals standing around the tables. He also observed a number
of flyers on the table that were printed on yellow paper. From
past experience Moran recognized these as union flyers. In this
connection, Moran testified that every Thursday for a few
months he had observed a group of “people” with tables to-
gether with flyers on the table. Moran then testified somewhat
vaguely “they were handing things out. Most times that I ob-
served it, most of the time it was just employees doing it.” (Tr.

table with the Union representatives, whether she was an employee and
Brown replied that she was not. Moran told Brown that she would have
to leave the cafeteria when she finished with her lunch. (Tr. 121-122.)
The status of Brown is not further identified in the record. Poston testi-
fied in a generalized manner that Moran "Asked us to leave." (Tr. 251.)
I find Stenman's account to be the most reliable version of what Moran
said regarding who had to leave the cafeteria.
2817.) Although Moran’s testimony is somewhat indistinct, I
find that that he observed only employees handing out flyers in
the cafeteria in these previous incidents. Given his reaction to
the incident that occurred on February 21, if there were indi-
viduals suspected to be union representatives distributing mate-
rial in previous Thursday meetings in the cafeteria, I am certain
that he would have further investigated the matter.
After observing the situation, Moran went to a phone located
on a support column in the cafeteria and reported his observa-
tions to Charley. Charley asked him if he recognized everybody
seated in the group, and Moran responded that there were two
women seated at the table that he did not recognize. He also
reported that other individuals seated there seemed familiar and
some were wearing ID badges and others were not. Charley
again instructed Moran to contact the Respondent’s in-house
counsel. According to Moran, while he was on the phone, Lew-
is came up to within a foot of him. Moran told Lewis he was on
the phone and that if Lewis needed to use the phone there was
another one located across the hall in the cafeteria. Lewis, how-
ever, remained close by Moran during his phone conversation.
Moran testified that after finishing his phone call, he ap-
proached an individual who he later learned was Fishbein and
told her that he was with security at the hospital and that he was
a police officer. Moran held up his identification to Fishbein so
that she could see it. Moran testified that he then asked
Fishbein what her business was at the hospital and whether she
was there for a medical purposes or visiting a patient. Fishbein
replied no and said that she was there having lunch with her
union friends.
Moran asked Fishbein for her identification and she initially
refused to provide it. Moran then told Fishbein that if she did
not provide her information she could suffer the consequences.
(Tr. 2859.) At that point Fishbein provided identification. Mo-
ran testified that he then told Fishbein that she was going to
have “to pack up and leave” (Tr. 2823). When Fishbein replied
that she was having her lunch, Moran told her that she could
have a couple of minutes while he obtained “this other person’s
identification but you going to have to pack up and leave.”
Moran then proceeded to ask Stenman the same questions he
had asked Fishbein. Stenman also replied that she was having
lunch with her union friends. When Moran asked Stenman for
identification she replied that she had no identification with her
except her credit card. When Moran asked to see the credit card
because he wanted to obtain her name, Stenman replied that she
would not show it to him because she was afraid he would steal
her information from it. Moran then told Stenman that she was
going to also have to leave.
At that point there were approximately four other females
seated at the table and some of them looked familiar to Moran.
He asked them for identification and they replied that they were
not showing him anything.
Moran testified that he then updated Charley and in-house
counsel and then contacted 911. While he was making these
phone calls Moran testified that Lewis would come up to within
12 inches of him and that he ended up using his cell phone to
make the calls.
According to Moran, the first police officer that arrived was
a plainclothes Pittsburgh police officer, Detective Pasquarelli.
UPMC 19
When Pasquarelli approached Moran, who was standing in the
middle of the cafeteria, Lewis came up and stood between
them. When Pasquarelli asked Lewis if there was a problem
Lewis replied, “this guy surveilling me.” When Pasquarelli
asked if there was anything else, Lewis replied, “he’s violating
my rights.” Pasquarelli told Lewis to go back over to the table
and that he would speak to him shortly.
Moran then told Pasquarelli that there were some nonem-
ployees soliciting in the cafeteria and he pointed out Fishbein
and Stenman, and said that he would like to have them removed
from the hospital. Moran told Pasquarelli that he already asked
them to leave and that they were refusing. Moran stated that he
told Pasquarelli that the employees that are seated at the table
can stay. Moran told Pasquarelli that he would like his assis-
tance in order to get the nonemployees out.
Pasquarelli informed Moran that there were uniformed offic-
ers responding to the call and he said that they would wait until
the uniformed officers showed up. When the uniformed officers
arrived in the cafeteria, Moran and the police officers had a
discussion and a decision was made that officer Yauch would
be the spokesman. Moran and the group of police officers then
approached the table where Fishbein, Stenman, and the em-
ployees were seated. Yauck told them that he was a Pittsburgh
police officer and that there had been a complaint that the po-
lice were responding to. Moran testified that Yauck said that
anybody who was a nonemployee was going to have to leave
and the police would escort them out. At that point the group of
police officers escorted Fishbein and Steadman out of the build-
ing.
That same day Moran prepared a police report regarding this
incident (GC Exh. 144), which I have considered in determin-
ing the facts regarding this incident. Moran’s report indicates,
in part: “I proceeded up to the cafeteria and saw a table full of
union material and some employees as well as 4 unknown
women sitting at the table.” After describing his request for
Fishbein and Stenman to provide identification, Moran’s report
reflects: “I proceeded to ask the 2 B/Fs for identification and
they refused. At this point I advised the 4 women that they
needed to leave the property because they do not have any hos-
pital business here. They all refused.”11
While many of the operative facts regarding this incident are
not in dispute, to the extent the testimony of Moran conflicts
with that of Fishbein and Stenman, I generally credit the testi-
mony of Fishbein and Stenman when over that of Moran. As
noted above, the testimony of Fishbein and Stenman is mutual-
ly corroborative and is further corroborated by Stenman’s con-
temporaneous notes of the incident. At times, Moran’s testimo-
ny appeared to overstate certain aspects of the incident in order
to buttress the Respondent’s defense. For example, although I
do not think this fact to be of any real significance in deciding
this issue, Moran testified on direct examination that immedi-
ately after he first observed Stenman and Fishbein and a group
of employees in the cafeteria and went to make a phone call to
report to Charley, Lewis stood close by him while he made the
call. (Tr. 2820–2821.) On cross-examination, however, Moran
testified did Lewis did not him approach him at that time (Tr.

11 I find that the reference to "2 B/Fs" to mean two black females.
2857). In addition, the report Moran made of the incident does
not contain any specific reference to making a call to Charley
immediately after observing the group seated at the table or to
Lewis’ close presence to him during such a call. The report
does corroborate Moran’s testimony, however, that Lewis stood
close by Moran in his later phone calls to Charley and corporate
counsel.12
I credit Moran’s testimony regarding the conversations he
had with police officers outside of the presence of Fishbein and
Stenman as his testimony in that respect is uncontradicted and
plausible. I also credit his testimony that officer Yauck stated
that anyone seated in the group who was not a hospital employ-
ee would have to leave the cafeteria. Moran’s testimony that
Yauck made such a statement is consistent with what Moran
asked the officers to do when they first arrived in the cafeteria.
I also note that the testimony of Stenman and Fishbein was very
general with regard to what officer Yauck said to the individu-
als seated at the table. I find Moran’s accounts regarding this
issue to be more reliable. I also credit Moran’s admissions that
he informed Fishbein that she could “suffer the consequences”
if she refused to provide him identification and that he instruct-
ed the two union representatives, the individual referred to as
Terry Brown, and one other unidentified black female that they
had to leave the cafeteria as soon as they finished their lunch.
I find that the credible evidence establishes the following op-
erative facts. Fishbein and Stenman arrived in the cafeteria at
Presbyterian hospital at approximately 11:30 a.m. to discuss the
Union’s campaign with employee supporters of the Union.
Thereafter, Moran received two reports regarding the fact that
nonemployees were in the cafeteria soliciting for the union and
the union flyers are being distributed. After discussing these
reports with his superior, Charley, Moran went to the cafeteria
and first looked to see if there were any flyers being distributed.
After he did not observe the distribution of any flyers, he ob-
served four individuals who he did not recognize seated at ta-
bles along with some individuals who he recognized as em-
ployees. At approximately 12:40 p.m., Moran approached the
group and asked Fishbein what she was doing there when asked
to see her identification. Fishbein asked Moran who he was and
then Moran replied that he was a police officer, Fishbein asked
to see his badge, which Moran showed her. Fishbein stated that
she was not an employee but was there having lunch and talk-
ing about the union. When Fishbein asked why Moran was
“harassing” them, Moran replied that he was investigating a
complaint about unauthorized persons being in the cafeteria.
Fishbein asked Moran if he had heard about the settlement that
had recently occurred that brought employees back to work and
also indicated that employees have the right to talk about the
Union in nonpatient areas. Moran said he had heard about the
settlement and talked to counsel about it and then asked
Fishbein again for identification saying that if she refused she
could suffer the consequences. After Fishbein provided her
identification, Moran instructed her that she was going to have
to leave the cafeteria. After establishing that Stenman was not
an employee and after obtaining her name, Moran also instruct-

12 Although Lewis testified at the hearing he did not testify regarding
the incident in the cafeteria.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
ed her that she would have to leave the cafeteria. Moran stated
that the only individuals authorized to be in the cafeteria were
patients, their families, visitors of patients, and employees.
Moran then asked the employees seated at the table for iden-
tification but several of them, although indicating they were
employees, refused to provide identification. Moran stated that
Fishbein, Stenman, the individual referred to as Terry Brown,
and an unidentified black female, who refused to provide iden-
tification, had to leave after they finished lunch because they
did not have any hospital business. Fishbein replied that they
were having lunch and were not leaving. Moran then updated
Charley regarding the situation by phone and then called 911.
Detective Pasquarelli of the Pittsburgh police was the first
police officer to arrive pursuant to Moran’s 911 call. Moran
told him that there was some nonemployees’ soliciting for the
Union in the cafeteria and that he had already asked them to
leave but they had refused. Pasquarelli informed Moran that
there were uniformed officers responding to the call and they
would wait until they arrived. Thereafter four uniformed Pitts-
burgh police and two University of Pittsburgh police officers
arrived. After Moran and the group of officers determined that
Pittsburgh police officer Yauch would be the police spokesper-
son, Moran, Pasquarelli and the uniformed officers approached
Fishbein, Stenman, and the employees seated at the table. After
identifying himself, Yauck indicated that the police had re-
ceived a 911 call from the hospital regarding unauthorized peo-
ple being in the cafeteria. Fishbein explained to Yauck that
there been a settlement and she was there eating lunch and dis-
cussing the Union. Yauck replied that involved a civil case, he
was investigating a criminal complaint, and that anyone who
was a nonemployee of the hospital would have to leave and the
police would escort them out. At that point, Fishbein, Stenman
got up from the table and began to leave the cafeteria and the
employees seated at the table with them also got up and left
with them. The group of police officers escorted Fishbein and
Stenman out of the cafeteria and ultimately out of the building.
The Respondent’s policy is to respond to reports regarding
attempts at solicitation in the cafeteria, but normally it does not
monitor who is present in its cafeteria. In this connection, on
October 21, 2011, a report was made to security that an indi-
vidual was soliciting customers for money. Security officers
gave the individual or trespass warning and escorted him to the
lobby. On June 9, 2012, a supervisor reported to security that
an individual he suspected to be union organizer was in the
cafeteria approaching employees. The suspected organizer be-
came aware of the supervisor’s report to security and left the
area before a security officer arrived. (GC Exh. 145.) On June
13, 2012, a report was made to security regarding an individual
who was soliciting money from customers and had taken a food
item from the cafeteria without paying. After investigating, the
security officer explained to the individual that he was trespass-
ing and escorted him from the cafeteria. (R. Exh. 492.) On
March 25, 2013, Moran received reports that two individuals
were handing out literature in the front of the cafeteria. The
individuals stated that they were handing out literature for “Fa-
lun Gong.” Moran informed them that they were not permitted
to solicit on the Respondent’s property and they were escorted
from the facility (R Exh. 494).
Analysis
The General Counsel contends that the Board has held that,
in a hospital setting, that an employer may not restrict solicita-
tion or distribution during nonworking time in nonworking
areas, even if the area in question may be accessible to patients.
Brockton Hospital, 333 NLRB 1367, 1368 (2001). The General
Counsel also relies on Southern Maryland Hospital, 293 NLRB
1209 (1989), for the proposition that the Respondent in the
instant case violated Section 8(a)(1) when it selectively and
disparately denied nonemployee union organizers access to its
cafeteria, which is generally open to the public. The General
Counsel further contends that Moran’s actions constituted un-
lawful surveillance and that his demand that employees show
their identification badges while participating in lawful union
activities also violated Section 8(a)(1). The Charging Party
contends that the Respondent violated Section 8(a)(1) on a
basis similar to that advanced by the General Counsel.
The Respondent contends that it has a right to bar union or-
ganizers who are engaged in organizational efforts from its
cafeteria pursuant to the Board’s decision in Farm Fresh, Inc.,
326 NLRB 997 (1998), and consequently acted lawfully in
calling the police to remove the organizers when they refused
to accede to Moran’s request for them to leave the cafeteria. In
further support of its argument that it had a right to exclude the
nonemployee union representatives engage in organizational
efforts from its cafeteria the Respondent relies on Oakwood
Hospital v. NLRB, 983 F.2d 698 (6th Cir. 1993); NLRB v.
Southern Maryland Hosp. Center, 916 F.2d 932 (4th Cir.
1990); Baptist Medical System, 876 F.2d 661 (8th Cir. 1989).
The Respondent further contends that Moran did not threaten to
arrest employees and did not engage in unlawful surveillance.
Finally, the Respondent contends that under the circumstances
it had a right to request the individuals seated at the table with
the union representatives to produce identification to determine
who was an employee.
I find that the Respondent’s reliance on Farm Fresh, Inc.,
332 NLRB 1424 (1998) (Farm Fresh I), as supporting its right
to bar the union representatives from its cafeteria on February
21 to be misplaced. In Food & Commercial Workers, Local 400
v. NLRB, 222 F.3d 1030 (D.C. Cir. 2000), the court reversed
the Board majority opinion in Farm Fresh I and remanded the
case to the Board. In its supplemental decision and order, Farm
Fresh, Inc, 326 NLRB 1424 (2000) (Farm Fresh II) the Board
specifically noted that the legal issue of whether the Supreme
Court’s decision in Lechmere, Inc. v. NLRB, 502 U.S. 527
(1992), had effectively overruled the Board’s decision in Mont-
gomery Ward & Co., 288 NLRB 126 (1988) was not presented
in Farm Fresh I. The Board therefore vacated the part of the
original Board decision that addressed that issue. In deciding
the issue in Farm Fresh II of whether the employer was entitled
to eject to union representatives from its cafeteria solely on the
basis of trespass warrants pending against them, the Board
adopted and relied on the analysis set forth in the concurring
opinion of Members Fox and Liebman in Farm Fresh I, 326
NLRB at 1425.
The concurring opinion of Members Fox and Liebman in
Farm Fresh I that became the rationale for the Board’s deci-
sion in Farm Fresh II noted at 326 NLRB at 1006-1007 that :
UPMC 21
The rule that union organizers cannot be barred from engag-
ing in solicitation in restaurants if they are conducting them-
selves in a manner consistent with that of other restaurant pa-
trons is specifically predicated on the Supreme Court’s ad-
monition in Babcock & Wilcox, [351 U.S. 105 (1956)] that an
employer’s access rules may not discriminate against union
solicitation. Montgomery Ward & Co., supra at 288 NLRB at
127. As the Board has repeatedly recognized Lechmere did
not disturb the prohibition against discrimination in Babcock.
See, e.g., Schear’s Food Center, 318 NLRB 261 (1965);
Great Scot, Inc., 309 NLRB 548 fn. 2 (1992), enf. denied on
other grounds 39 F.3d 678 (6th Cir. 1994).
The opinion further noted at 1007 that:
[U]nder the long-standing rule reaffirmed by the Board in the
1988 Montgomery Ward case, the Board and the courts have
traditionally held that union organizers cannot be prohibited
from soliciting off-duty employees in restaurants open to the
public as long as they conduct themselves in a manner con-
sistent with that of other patrons of the restaurant. 288 NLRB
at 126.
I find that the Board’s decision in Farm Fresh II clearly es-
tablishes the continued viability of the Board’s decision in
Montgomery Ward, 288 NLRB 126 (1988). In doing so, it also
implicitly reaffirmed the continued viability of the Board’s
decisions in Oakwood Hospital, 305 NLRB 680 (1991); South-
ern Maryland Hospital Center, 293 NLRB 1209 (1989); Baptist
Medical System, 288 NLRB 882 (1988); and Southern Mary-
land Hospital Center, 276 NLRB 1349 (1985) enf. in relevant
part 801 F.2d 666 (4th Cir. 1986).
In these cases, the Board held that it was a violation of Sec-
tion 8(a)(1) of the Act for an employer to cause the removal of
nonemployee union organizers from a hospital cafeteria, open
to use by the general public, who were using the cafeteria to
meet with off-duty employees while eating in the cafeteria. As
noted above, the Respondent relies on circuit court decisions
denying enforcement to the Board’s order in three cases noted
above as supporting its position. With all due respect to the
court of appeals for the 4th, 6th and 8th circuits, I am obligated
to follow Board precedent unless and until it is reversed by the
Supreme Court. Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984);
Los Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979),
enfd. 640 F.2d 1017 (9th Cir. 1981); and Iowa Beef Packers,
144 NLRB 615, 616 (1963), enfd. in part 331 F.2d 176 (8th Cir.
1964). Accordingly, I will apply the principles expressed in the
Board’s decisions in Montgomery Ward, Oakwood Hospital,
and both decisions in Southern Maryland Hospital Center in
deciding whether the Respondent violated Section 8(a)(1) of
the Act when it caused the removal of nonemployee union or-
ganizers from its cafeteria on February 21, 2013.
The Respondents cafeteria is primarily patronized by em-
ployees and visitors to patients, although, at times, patients also
use the cafeteria. Union representatives Fishbein and Stenman
conducted themselves in a manner consistent with the purpose
of the cafeteria. In this regard, they purchased food and bever-
age and behaved in an orderly fashion. They did not go from
table to table in the cafeteria and they did not distribute any
union literature while they were there. The union representa-
tives spoke to off-duty employees about the Union and particu-
larly the recent settlement that the Union, the Respondent, and
the General Counsel had entered into. It is clear that the Re-
spondent instructed the union representatives to leave the cafe-
teria and caused the police to remove them because they were
discussing union related matters with employees. Under exist-
ing Board precedent, set forth in the cases noted above, to ex-
clude the union representatives on this basis treats them in a
disparate and discriminatory basis from the other members of
the public patronizing the cafeteria. Accordingly, I find that by
causing the police to remove the union representatives, the
Respondent interfered with the Section 7 rights of its employ-
ees to lawfully communicate with the Union and therefore vio-
lated Section 8(a)(1) of the Act.13
I also find that the Respondent violated Section 8(a)(1) of the
Act by Moran’s conduct in the remaining in close proximity to
the employees speaking to Fishbein and Stenman in the cafete-
ria. Since the employees were engaged in lawful, protected
activity in meeting with and talking to the two union represent-
atives, the Respondent acted unlawfully in engaging in surveil-
lance of such activity. Oakwood Hospital, supra at 688-689 and
cases cited therein. See also Southern Maryland Hosp., 293
NLRB at 1217.
I further find that by asking the employees seated at the table
with the union representatives in the cafeteria to provide identi-
fication, the Respondent further violated Section 8(a)(1). In
Oakwood Hosp., supra at 688- 689, the Board found that such
conduct is in the nature of unlawful surveillance and discour-
ages employees from engaging in this type of lawful union
activity.
Since there is no evidence that the Respondent threatened to
arrest employees on February 21, I shall dismiss this allegation
in the complaint.
The 8(a)(2) and (1) Allegations
Facts
The complaint alleges that since about February 20, 2013,
the Respondent has recognized the ESS employee council at
Presbyterian Hospital as the exclusive bargaining representative
of its ESS employees at Presbyterian Hospital and has dealt
with the ESS employee council concerning working conditions
in violation of Section 8(a)(2) and (1) of the Act.
Current employee Shaun Painter testified on behalf of the
General Counsel pursuant to a subpoena. At the time of the
hearing, Painter worked in the Presbyterian Hospital environ-
mental support services department, also referred to as the
housekeeping department. Painter worked in the Montefiore
building and had been employed by the Respondent for approx-
imately 4 years. I found Painter to be a credible witness. His

13 I find that this conduct by the Respondent is sufficiently related to
the allegation in par. 11 of the complaint that the Respondent threat-
ened to arrest nonemployees engaged in lawful union activity with its
employees to be considered as an unfair labor practice. High-Tech
Cable Corp., 318 NLRB 280 (1995), enfd. in part 128 F.3d 271 (5th
Cir. 1997); Irving Ready-Mix, Inc., 357 NLRB 1272, 1785 fn. 13
(2011). Since there is insufficient evidence to support the allegation
that the Respondent, through Moran, threatened to arrest nonemployees
on February 21, I shall dismiss that specific allegation in the complaint
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
testimony was detailed and thorough and was consistent on
both direct and cross-examination. In addition, as a current
employee who was testifying against the interest of his Em-
ployer, it is unlikely that his testimony would be false. Bloom-
ington-Normal Seating Co., 339 NLRB 191, 193 (2003).
Daniel Gasparovic testified on behalf of the Respondent re-
garding this issue. Gasparovic is employed by Aramark, one of
the Respondent’s contractors, and at the time of the hearing was
the area manager for health care in the greater Pittsburgh area.
In 2012 and 2013 Gasparovic, although employed by Aramark,
was the director of environmental services at Presbyterian Hos-
pital. Gasparovic generally testified credibly, particularly with
respect to the genesis of the ESS employee council at Presby-
terian Hospital. With respect to the actual meetings and opera-
tion of the ESS employee council, however, to the extent that
Gasparovic’s testimony conflicts with that of Painter, I credit
Painter. Gasparovic’s testimony on those issues was not as
detailed as that of Painters and consequently I do not find it as
reliable.
Gasparovic testified that during the time he was the director
of environmental support services at Presbyterian Hospital, he
reported to John Krolicki, the Respondent’s vice president of
operations. Five managers, who were employed by Aramark,
reported to Gasparovic, as did approximately 13 supervisors,
who were employed by the Respondent. There were approxi-
mately 260 environmental services support employees em-
ployed at Presbyterian Hospital in 2013.
In approximately August 2012, Krolicki informed Gasparov-
ic that an employee council had been established by the Re-
spondent at Shadyside Hospital and asked Gasparovic if one
could be formed at Presbyterian Hospital. In this connection,
Krolicki asked Gasparovic to contact Amy DiPasquale, who
was the director of environmental support services at Shadyside
Hospital, to find out how the Shadyside employee council op-
erated. Krolicki also told Gasparovic that the Shadyside em-
ployee council had established bylaws that could be used at
Presbyterian Hospital. Gasparovic then contacted DiPasquale
and she sent the Shadyside employee council bylaws to him by
email.
The Respondent then posted a notice inviting employees to
join an employee council at Presbyterian Hospital. Painter testi-
fied that he observed a notice posted on a bulletin board near
the employee time clock in the Montefiore building. The notice
indicated that a council was being established to discuss em-
ployment issues and that a manager would be present for all of
the meetings. Employees were asked to sign an attached sign-
up sheet if they were interested. Painter signed the sign-up
sheet and 1 week later he was informed by his supervisor that
he was on the employee committee and the date, time, and
place of the meeting.
According to Gasparovic’s uncontradicted testimony, ap-
proximately 10 employees signed the signup sheets and all of
those employees were invited to attend the first meeting. The
meeting was conducted at sometime in October 2012, at 3
p.m.in the manager’s conference room at the BMT building in
Presbyterian Hospital. Gasparovic determined the date, time,
and place of the first meeting.
Painter was present at the first meeting along with employees
Donna Green, Janine Graham, Lucas Cope, Sade Russell, and
William Wingo, all of whom were housekeeping employees in
the Montefiore building. In addition, employee Andrew Pitt,
who was employed in the Presbyterian building was also pre-
sent. Gasparovic was also present. All of the employees who
attended were on the work schedule at the time of the meeting
and all were paid for their attendance at this meeting and all
future ESS employee council meetings.
Gasparovic began the meeting by indicating that the purpose
of the ESS employee council was to be involved in process
improvement, team building and increasing morale. Gasparov-
ic passed out the Shadyside employee council bylaws that he
had received from DiPasquale and stated that they had seemed
to work well for that organization. The employee Council
members approved the Shadyside employee council bylaws and
mission statement in its entirety except for a change as to the
date and time for future meetings. Gasparovic said that he
would be attending the future ESS employee council meetings.
Painter testified that Gasparovic also told the employee mem-
bers of the ESS employee council that he would be the liaison
between it and upper management and that “anything that the
committee came up with as far as ideas, he would take them
and see whether or not would be feasible for us to do.” (Tr.
1350.)
The ESS employee council met again 2 weeks after the ini-
tial meeting. At this meeting, even though no vote had been
taken by the committee, Gasparovic informed the employee
council members that Janine Graham was the chairperson of the
ESS cmployee council and Sade Russell in and Andrew Pitt
would share the co-chairperson position.
At one of the early ESS employee council meetings, Pitt
raised the issue of employees “hoarding” mop heads and not
returning them to the appropriate location so that other employ-
ees may use them. This caused a shortage for other employees
regarding that piece of equipment. ESS Employee Council
members also discussed a concern that some housekeeping
employees were not using the appropriate machine to distribute
the proper amount of cleaning chemicals, but rather were just
pouring them into cleaning equipment. This resulted in an im-
proper concentration of chemicals to water and was a wasteful
practice that at times led to a shortage of supplies. With regard
to the usage of chemicals and the issue of employees retaining
mop heads, the committee proposed to Gasparovic that the
Respondent provide them bulletin boards in both the Presbyter-
ian and Montefiore buildings in order to carry out an educa-
tional campaign to the housekeeping employees on these and
other topics. Gasparovic admitted that this issue of not having
enough supplies when employees started their shifts was an
important issue to council members (Tr. 3007). In response to
this request, Gasparovic had the maintenance staff put up new
bulletin boards for the ESS employee council in both the Pres-
byterian and Montefiore buildings.
ESS employee council members Graham, Cope, and Russell
placed letters at the top of each bulletin board stating “ESS
Council.” Committee members posted on the bulletin boards a
cartoon with a caption stating “Don’t be a deadhead, return
your mop heads.” The two bulletin boards also contain infor-
mation about properly mixing the appropriate chemical solu-
UPMC 23
tions for use in cleaning.
At an ESS employee council meeting held in the fall of
2012, a council member raised the issue that some employees
were not returning their cleaning carts to the appropriate desig-
nated area and that when the next shift came in to work, some
employees would have to spend time locating the cleaning cart
and the appropriate supplies. The ESS employee council pro-
posed to Gasparovic that the carts be locked in the location to
which they should be returned, so that the employees on the
next shift would have to use their own carts. After the ESS
employee council raised this issue with Gasparovic, he spoke to
supervisors about the issue and a few days after the council
meeting, supervisors advised employees that they were to re-
turn their cleaning cart to the appropriate location at the end of
their shift.
At one of the early meetings ESS employee council members
also raised an issue with Gasparovic regarding the department
dispatcher calling employees to give them their next assign-
ment during their lunch break. When employees would not
immediately return her calls, the dispatcher would complain to
an employee in a lunchbreak that her call was not returned
sooner. Gasparovic indicated that he would speak to the dis-
patcher and supervisors about this issue and thereafter, for the
most part, the dispatcher did not call people during their lunch
breaks.
At the ESS employee council’s third meeting in approxi-
mately December 2012, members discussed a proposal ad-
vanced by Graham regarding having an “Employee of the
Month Award “ (EOM award) in the Presbyterian and Mon-
tefiore buildings, in order to recognize environmental service
employees for performing good work. In establishing the basis
to grant such an award the Council discussed with Gasparovic
what the criteria should be. When ESS employee council mem-
bers were having difficulty in determining what the criteria
should be, Gasparovic suggested that the awards be based on
based on employees’ attendance records and their HCAP
scores.14 The ESS employee council members agreed with
Gasparovic’s suggestion. At the first meeting when the issue of
the EOM award was discussed, ESS employee council mem-
bers proposed to Gasparovic that the winner of each award be
given a month of free parking or a bus transit pass for the
month. The ESS employee council also considered and pro-
posed to Gasparovic that the Respondent award the winners a
grocery store or gas station gift card. Gasparovic indicated that
he had to discuss with human resources whether these pro-
posals would be approved. At approximately the fifth ESS em-
ployee council meeting, Gasparovic and Graham told the em-
ployee council members that the other proposals made by the
employee council were too expensive and that the employee of
the month award would be a $25 Visa gift card.
With regard to the determination of the two EOM award re-
cipients, Gasparovic would review the HCAP scores and at-
tendance record and announce to the council members at a
meeting the employee in each building that had the highest
score and best attendance. Those individuals were the winners

14 HCAP scores are based on a supervisor's review of a housekeep-
ing employee’s work in keeping his or her assigned area clean.
of the award. The money for the gift cards came from Aramark
and was accounted for in Aramark’s budget for services that are
provided to the Respondent. 15 The first EOM awards were
given in January 2013. (GC Exh. 83(c).)
After the winners of the EOM awards were determined, the
photographs of the winners were taken, and were posted on the
ESS employee council bulletin boards in both the Presbyterian
and Montefiore buildings. At the monthly departmental meet-
ing of the environmental services department, which was at-
tended by approximately 100 employees, the manager conduct-
ing the meeting would present the EOM award winners with
their gift cards. At these meetings, the Respondent set aside
time for ESS employee council chairperson Graham to speak.
Graham would discuss activities that the employee council was
involved in including the EOM award. The Respondent pre-
pared minutes of the monthly departmental meetings which
were posted on bulletin boards in both the Presbyterian and
Montefiore buildings which included Graham’s monthly ESS
employee council reports and the announcement of the EOM
award winners. (GC Exh. 83.)
At one of the ESS employee council meetings, Painter raised
an issue regarding the fact that second shift employees at Mon-
tefiore were being required to perform work extra at Presbyteri-
an because the second shift housekeepers assigned to Presbyter-
ian would regularly call off without any action being taken
against them. This meeting was attended by Gasparovic and
another manager, either Krolicki or Tom Faulk. Painter could
not recall specifically who the other manager was. Painter was
asked what he thought could be done about that and he re-
sponded that discipline should be imposed on the people who
were calling off every weekend. Painter was told that manage-
ment would look into the issue but there is no evidence that any
changes were made as a result of the ESS employee council’s
proposal.
At one of the ESS employee council meetings, members also
raised with Gasparovic the fact that the department printer was
broken and requested a new one. While Gasparovic indicated
that he would look into having the printer replaced, there is no
evidence that it was. Similarly, an issue was raised at a meeting
about the Respondent needing to monitor the stock of house-
keeping supplies and supply closets. While Gasparovic indicat-
ed that he would look into that issue, there was no evidence that
the Respondent instituted any changes pursuant to this request.
At one meeting, an employee council member stated her de-
sire for a reevaluation of her work assignments as she believed
she had too much to do. Painter acknowledged, however, that
this employee had a tendency to complain about her work as-
signments. While the Respondent did, in fact, alter work as-
signments after this meeting, Gasparovic testified, without con-
tradiction, that the distribution of work in the ESS department
is regularly reviewed and revised periodically.
The distribution of work is determined by computerized pro-

15 While Aramark had previously given $25 gift cards to employees
on a somewhat regular basis, those were based on recommendations
from a patient or a doctor and were not given on the basis of the objec-
tive, performance related criteria established by the Respondent and the
ESS employee committee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
gram that considered factors such as square footage, the type of
room to be cleaned, and the frequency of tasks to be performed
in the room. Gasparovic further testified that the changes that
were made in 2013 were instituted as a result of the application
of the Respondent’s normal processes and that nothing was
changed because of any discussions regarding work assign-
ments that were conducted in the ESS employee council. I find,
based on the record as a whole, that any changes in the distribu-
tion of work that occurred in 2013 did not occur as a result of
any proposals made by the ESS employee council.
On May 26, 2013, the ESS employee council held a social
event, referred to as a “Memorial Day picnic,” on the 7th floor
of the Montefiore building. Next to the room where the food
was located there was an outdoor space where people could sit
and eat. The Respondent donated the meat that was prepared
for the picnic and assigned one or two dietary employees to
assist in preparing the food for this event. For several months
prior to this event, the ESS employee council held bake sales
and candy sales at the Respondent’s facility to raise money for
this event. Gasparovic donated $100 of his own money to assist
in getting the fundraising efforts going. The bake sales were
located on the third floor of the Montefiore building, outside of
a supervisor’s office. One manager baked some items for the
bake sales and several supervisors purchased baked goods. The
candy sales were held in a management office. The Respondent
also permitted employees to post flyers regarding this event
throughout the hospital. As part of its effort to raise funds for
the Memorial Day picnic, the ESS employee council sold raffle
tickets for a “Work Your Boss Day.” The winner of the raffle
could choose a manager or supervisor in the environmental
services department to perform the winning employee’s work
for half a day.
The ESS employee council stopped meeting and conducting
activities in September or October 2013.
Analysis
The General Counsel and the Union contend that the ESS
employee council is a labor organization as defined in Section
2(5) of the Act and that the Respondent has dominated and
interfered with the formation and administration of the ESS
Employee Council within the meaning of Electromation, Inc.,
309 NLRB 990 (1992), enfd. 35 F.2d 1148 (7th Cir. 1994), and
E. I. DuPont & Co., 311 NLRB 893 (1993) and therefore has
violated Section 8(a)(2) and (1) of the Act.
The Respondent contends that the ESS employee council is
not a labor organization as defined in the Act as it did not it did
not deal with the ESS employee council regarding mandatory
subjects of bargaining. The Respondent also contends that it did
not dominate or otherwise interfere with the operation of the
ESS employee council.
Section 2(5) of the Act provides:
[t]he term “labor organization” means any organization of any
kind, or any agency or employee representation committee or
plan, in which employees participate and which exists for the
purpose, in whole or in part, of dealing with employers con-
cerning grievances, labor disputes, wages, rates of pay, hours
of employment, or conditions of work.
In the instant case, it is clear that employees participated in
the ESS employee council. The real issue in determining
whether the ESS employee council is a labor organization with-
in the meaning of the Act is whether it exists for the purpose, at
least in part, of “dealing with” the Respondent concerning the
matters set forth in Section 2(5). In EFCO Corp., 327 NLRB
350, 353 (1998), the Board held:
The concept of “dealing with” essentially involves a bilateral
process, ordinarily entailing a pattern or practice by which a
group of employees makes proposals to management and
management responds to these proposals by acceptance or re-
jection by word or deed. E. I. du Pont & Co., 311 NLRB 893,
894 (1993). In NLRB v. Cabot Carbon Co., 360 U.S. 203,
210- 211 (1959), the Supreme Court held that the term “deal-
ing with” in Section 2(5) is broader than the term “collective
bargaining” and applies the situations outside the negotiation
of collective-bargaining agreements.
In the instant case, the evidence set forth above establishes
that employee members of the ESS employee council raised
issues regarding the working conditions of the employees in
the Respondent’s environmental services department. For ex-
ample, the ESS employee council members raised the issue of
employees hoarding mop heads and improperly mixing clean-
ing solvents, both of which caused the shortage of supplies. In
order to address this problem, the ESS employee council pro-
posed that the Respondent provide it with bulletin boards so
that the ESS employee council could post materials urging
employees to follow proper procedures regarding the use of
equipment and supplies. The Respondent responded to this
proposal by placing two bulletin boards in both the Presbyterian
and Montefiore buildings and allowing ESS employee council
members to post materials on those boards regarding the proper
use of cleaning equipment and supplies.
The ESS employee council also raised the issue of the dis-
patcher notifying employees of their next assignment while
they were on a lunchbreak. Gasparovic responded by saying
that he would speak to the dispatcher and supervisors involved
about this concern of ESS employee council members and
thereafter such calls stopped for the most part.
ESS employee council members raised the issue of the fail-
ure of some employees to return their cleaning carts to the ap-
propriate designated area, causing the employees on the next
shift to spend time locating the cleaning cart and the appropri-
ate supplies. The ESS employee council proposed that the areas
to which the carts were returned be locked, so that the employ-
ees on the incoming shift would have to use their own carts. In
response, Gasparovic spoke to supervisors and, a few days after
this ESS employee council meeting, supervisors instructed
employees that they were to return their cart to the appropriate
location at the end of their shift.
As noted above, the ESS employee council proposed that
employees be given an employee of the month award but had
difficulty in determining what the criteria should be. Gasparov-
ic suggested criteria and the ESS employee council agreed with
his proposal. The ESS Employee Council also made sugges-
tions as to the appropriate benefit that an employee should re-
ceive for this award. Gasparovic indicated that he would dis-
UPMC 25
cuss this issue with human resources and respond at a later
meeting. Gasparovic later indicated that some of the proposals
made by the ESS employee council were too expensive and that
the employee of the month award would be a $25 Visa gift
card.
Other issues raised by the ESS employee council such as a
broken printer, a suggestion that the Respondent more closely
monitor cleaning supplies and the apparent avoidance of some
employees to working on weekends, were not specifically ad-
dressed by the Respondent. However, when these issues were
raised, Gasparovic told ESS employee council members that
management would “look into” the issues raised, and they were
never informed that these were inappropriate topics for the ESS
employee council to raise.
I find that the evidence establishes that the Respondent en-
gaged in “dealing with” the ESS employee council with respect
to the subjects set forth in Section 2(5) of the Act. The process
between the ESS employee council and the Respondent was
bilateral in that employee members of the ESS Employee
Council made proposals and a management representative,
typically Gasparovic, responded to the proposal and often
granted it. This process occurred on a regular basis over a sus-
tained period of time and numerous proposals were made. Ap-
plying the principles expressed above to the circumstances
present in this case, I find that the ESS employee council and
the Respondent dealt with each other over wages and condi-
tions of work, subjects enumerated in Section 2(5) of the Act.
In Electromation, supra, 309 NLRB at 995 the Board held
that a labor organization that is the creation of management,
and whose structure, function, and continued existence are
essentially determined by management, is one whose formula-
tion or administration is dominated under Section 8(a)(2).
In the instant case, it was the Respondent’s idea to create the
ESS employee council as the Respondent’s vice president
Krolicki suggested to Gasparovic that he solicit volunteers to
establish such a committee at Presbyterian Hospital. Krolicki
also suggested that Gasparovic contact the director of environ-
mental services at Shadyside Hospital and obtain the bylaws
that the employee council at that hospital was using. The Re-
spondent, through Gasparovic, then solicited volunteers from
the Presbyterian ESS department and determined the date and
time and place of the initial meeting. This meeting was held in
a management conference room as were all the other committee
meetings. At the first meeting, Gasparovic presented at the ESS
employee council with the Shadyside employee council bylaws,
which the ESS employee council accepted as their own with
one minor exception
Despite telling the ESS employee council members at the
first meeting that they would vote on a chairperson and co-
chairpersons, at the second meeting Gasparovic and informed
the ESS Employee Council that Graham was the chairperson
and that two other employees had been designated as co-
chairpersons.
The ESS employee Council’s fundraising efforts, the “Work
Your Boss” raffle, the bake sales and candy store, all required
the use of the Respondent’s facility and the permission of man-
agement. The employee of the month award was determined
based on information supplied by management and manage-
ment funded the gift cards that were given to the selected em-
ployees. The Respondent specifically provided the ESS em-
ployee council with bulletin boards to promote its activities. It
is clear that the ESS employee council’s activities were all
conducted inside the facility and done with the Respondent’s
approval and assistance. There is no evidence that the ESS
employee council conducted any activities outside of the facili-
ty. In Miller Industries Towing Equipment, 342 NLRB 1074,
1090 (2004), the Board found that a”continous improvement
committee” that dealt with the employer regarding mandatory
subjects of bargaining was formed, sponsored and assisted by
the employer in violation of Section 8(a)(2) and (1). In so find-
ing the Board specifically noted that there was “no evidence
that the committee had any independent existence outside the
will of Respondent.”
I also note that the Respondent formed and assisted the ESS
employee council in the context of the Union’s organizing
campaign that was directed toward employees that included the
environmental services department employees. As set forth in
this decision, I find that the Respondent responded to this cam-
paign, in part, by the commission of unfair labor practices.
Under the circumstances present here, I find that the Respond-
ent’s initiation and support of the ESS employee council was
designed to interfere with employee free choice in selecting a
bargaining representative.
I find the instant case to be distinguishable from Stoody Co.,
320 NLRB 18 (1995), which is relied on by the Respondent. In
that case the employer established a handbook committee and
contributed financial support to it. The purpose of that commit-
tee was to gather information about different areas in the hand-
book that were inconsistent with current practices, obsolete, or
misunderstood by employees in order for the employer to revise
the handbook. However, the handbook committee conducted
only one meeting that lasted for 1 hour. The Board concluded
that the 1-hour meeting did not establish a pattern or practice of
dealing with the employer. In the instant case, as set forth in
detail above, the Respondent, after establishing the ESS em-
ployee council, engaged in a practice of dealing with it for a
period of approximately 10 months.
On the basis of the foregoing, I find that the Respondent vio-
lated Section 8(a)(2) and (1) by initiating, forming and thereaf-
ter sponsoring, assisting and dominating the ESS employee
council.
The Alleged Discriminatory Application of the Respondent’s
Solicitation Policy
Paragraph 27 of the complaint alleges that during the time
material to the complaint. Respondent maintained a solicitation
policy which reads, in pertinent part, as follows:
II. SCOPE
This policy applies both to the person doing the soliciting or
distribution of literature and the person being solicited or re-
ceiving the distribution in UPMC facilities located in the
United States.
. . .
IV. PROCEDURE
A. No staff member shall engage in solicitation of other staff
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
members, patients, and visitors during working time.
B. No staff member may engage in solicitation during work-
ing or nonworking time in patient care areas, such as patient
rooms, operating rooms, patient lounges, areas where patients
received treatment, corridors and sitting rooms adjacent to pa-
tient care areas if a patient or family member is present. For
other work areas, no staff member may engage in solicitation
during working time.
C. No staff member may distribute any form of literature that
is not related to UPMC business or staff duties at any time in
any work area, patient care, or treatment areas. Additionally,
staff members may not use UPMC electronic messaging sys-
tems to engage in solicitation . . .
E. Only professional recognition, employer service pins and
staff member ID badges may be worn in patient care or treat-
ment areas.
G. All situations of unauthorized solicitation or distribution
must be immediately reported to a supervisor or department
director and the Human Resources Department and may sub-
ject the staff member to corrective action up to and including
discharge.
As finally amended, paragraph 34 of the complaint alleges
that the Respondent, through named supervisors, on dates listed
below, disparately enforced the above noted rule by requiring
employees to remove items bearing prounion insignia, while
permitting its employees to wear, in patient care areas, items
bearing insignia that did not qualify as “professional recogni-
tion, items, “employer service pins” and/or “staff member ID
badges.”
(d) April 2013-Tim Nedley
(e) April 5, 2013-Lisa Fennick
(f) April 16, 2013- Carlton Clark
(g) February 2013-Nickolai Stoichkov16
Paragraphs 29 and 30 of the complaint allege that the Re-
spondent, in March 2013, through Denise Touray and Emily
Bowman, disparately enforced the above noted solicitation rule
by permitting employees to utilize the Respondent’s bulletin
boards for purposes not related to Respondent sponsored mat-
ters but prohibiting employees from posting items in support of
the Union on such bulletin boards.
With respect to the allegations of paragraphs 34, I will ad-
dress only paragraph 34(e) in this section of the decision.
Turner is the primary witness with respect to paragraphs 34(d)
and (f). David Jones is the primary witness with respect to par-
agraph 34(g). I will address those allegations of the complaint
in relation to discussion of the 8(a)(3) and (1) allegations re-
garding Turner and Jones.
Several witnesses testified on behalf of the General Counsel
regarding the Respondent’s practice with respect to the wearing
of various insignia on employee uniforms and with respect to
its practice of posting materials on bulletin boards. Employees
are required to wear an ID badge attached to their uniform

16 The General Counsel amended the complaint at the beginning of
the hearing to add the allegation contained in paragraph 34g.
while at work. Current employee Chaney Lewis testified that at
the time of the hearing he had been employed by the Respond-
ent for 9 years as a transporter in the Respondent’s transporta-
tion department. By virtue of his position Lewis transports
patients in patient care areas. Lewis testified during the entire
time of his employment he has observed employees in the
transportation department with lanyards attached to their ID
badges with various insignia that had not been issued by the
Respondent. Lewis testified that the entities displayed on lan-
yards worn by employees included the Cleveland Browns,
Pittsburgh Penguins and the US Army. Lewis often wore a
lanyard stating, “WPIAL Wrestling.”17 Lewis is an open union
supporter and after the campaign began he also often wore a
purple and yellow lanyard stating “You Can’t Stop Us Now”
with the Union’s logo on it.
Shortly after the settlement agreement in Case 06–CA–
081896 was entered into between the General Counsel, the
Respondent, and the Union on February 7, 2013, Lewis re-
ceived a call from his immediate supervisor, Darnell Grinage,
instructing him to report to the office of the transportation de-
partment manager, Denise Touray.18 Jackie Loveridge, a human
resources consultant, was also present for the meeting. Touray
told Lewis that the purpose of the meeting was to explain the
terms of the settlement agreement and the new solicitation poli-
cy and how it affected him. At this meeting, Touray explained
the rules that Lewis should follow according to the new solici-
tation policy. Touray told Lewis that he was able to pass out
union literature in the break room only during nonworking
hours and that he was not allowed to enter the facility if he was
not working.
According to Lewis, both Loveridge and Touray spoke to
him about the bulletin boards in the hospital. Lewis was told
that he could not post literature on the bulletin boards anywhere
in the hospital unless it was UPMC issued material. Lewis
asked whether that instruction covered the bulletin boards in the
break room. Loveridge answered and confirmed that he was not
allowed to post union material on the bulletin boards in the
break room. Lewis was also told that he could go to the cafete-
ria and pass out literature on nonwork time. Lewis was further
informed that he was not permitted to wear any buttons that
were not UPMC related.
Approximately 20 minutes after his meeting with Touray and
Loveridge, Lewis received a call from Grinage, who told Lew-
is that he had received instructions to tell Lewis to remove the
lanyard that he was wearing displaying support for the Union.
Lewis went to the locker room and removed his union lanyard
and put on his WPIAL lanyard.
Since that time, Lewis has continued to wear his WPIAL
lanyard but has not worn his union lanyard. Since that date
Lewis has continued to see transportation department employ-
ees wear lanyards that do not refer to UPMC. He has worn his
WPIAL lanyard in the presence of his supervisors Hank Ran-

17 WPIAL stands for Western Pennsylvania Interscholastic Athletic
League.
18 Pursuant to the terms of the settlement agreement, a final written
warning issued to Lewis was rescinded and he was offered monitor
technician training.
UPMC 27
kin, Denise Touray, Carolina Clark, and Ed Keller and none of
his supervisors have instructed him to remove that lanyard. The
testimony of Lewis on these issues is uncontradicted
Former employee Bonita McWhirter was employed by the
Respondent as a patient care technician from September 2007
until August 2013, when she voluntarily resigned. As a patient
care technician McWhirter worked in patient care areas. The
uncontradicted testimony of McWhirter establishes that for
several years prior to March 2013 she had worn a “heart” lan-
yard that was pink and attached to that was a “Pillsbury dough-
boy” pin about 4 inches long. The Pillsbury doughboy pin had
been given to her by her grandchildren. In March, around St.
Patrick’s Day, McWhirter had always worn a St. Patrick’s Day
pin.
McWhirter was an open union supporter and, during the pe-
riod from January to March 20 13, she wore union insignia in
addition to the other personal insignia displayed on her uni-
form. In January 2013, McWhirter wore a black and gold union
pin stating “Make It Our UPMC” for 1 day.
In mid-March 2013, McWhirter wore her union pin for the
second time along with a lanyard with the Union’s logo on it
and the legend “Can’t Stop Us Now!” On this particular day
she also was wearing her heart lanyard, and Pillsbury doughboy
and St. Patrick’s Day pins. Her supervisor, Mara Schubert
called McWhirter into her office to discuss her annual evalua-
tion with her. Marina Goodman, a human resources representa-
tive, was also present. Goodman told her that they have heard
that she was talking to a new employee in housekeeping about
the Union and that she was not allowed to talk about the Union
at work. Goodman also told her that she needed to take off the
union lanyard and pin, the heart lanyard and the Pillsbury
doughboy pin. McWhirter immediately took off those items.
McWhirter asked why she had to take off her Pillsbury dough-
boy pin and further asked, “What am I doing, soliciting for
Pillsbury doughboy.” Goodman said she had to take all of those
items off because of the settlement between the NLRB and
UPMC and because it did not meet the dress code. Goodman
did not instruct McWhirter to take off her St. Patrick’s Day pin
and she left that on. Goodman gave her an ID holder with the
UPMC logo on it that stated, “We Care” which McWhirter put
on. After this meeting McWhirter continued to see employees
wear lanyards reflecting entities not associated with the Re-
spondent, and Steelers and St. Patrick’s Day pins.
Current employee Jamie Hopson has worked for the Re-
spondent since October 2010 as a patient care technician for the
Respondent. In April 2013 she was working in the Montefiore
building on unit 12 S. Her supervisor was Lisa Fenick. One day
in April 2013 Hopson wore a badge pull given to her by the
Union that stated “Can’t Stop Us Now” in purple letters. On top
of the above noted legend Hopson had pasted a sticker that
stated, “We’re With Ron.”19 According to Hopson’s uncontro-
verted testimony, when she approached the nurses’ station on
unit 12 S, Fenick told Hopson to take the “We’re with Ron”

19 The "Were With Ron” stickers were given to employees by the
Union and reflected support for employee Ron Oakes. As noted above,
Oakes was reinstated pursuant to the settlement agreement on February
25, 2013. He was discharged again on March 20, 2013
sticker off and she immediately did so. Fenick did not indicate
why Hopson had to take off the sticker. Hopson had been wear-
ing the sticker for about an hour. Fenick did not say anything
about the badge pull that stated “Can’t Stop Us Now” and Hop-
son continued to wear it.
The Alleged Disparate Enforcement of the Solicitation Policy
regarding Union Insignia
The General Counsel does not contend that the solicitation
rule set forth above, which was amended on February 27, 2013,
is facially invalid. Rather, the General Counsel contends that
the evidence establishes that the Respondent enforced its solici-
tation policy in a discriminatory manner against union support-
ers.
The Board has long held that the application of a presump-
tively valid rule in a disparate manner violates Section 8(a)(1)
of the Act. Circuit-Wise, Inc. 306 NLRB 766, 787–788 (1992);
South Nassau Hospital, 274 NLRB 1181 (1185); St. Vincent’s
Hospital, 265 NLRB 38 (1982), enfd. in pertinent part 729 F.2d
730 (11th Cir. (1984).
Recently, the Board has summarized its policy with respect
to the right to wear union insignia in a health care institution. In
Healthbridge Management, LLC, 360 NLRB 937, 938 (2014),
the Board stated:
It is well established that employees have a protected right to
wear union insignia at work in the absence of “special cir-
cumstances.” See London Memorial Hospital, 238 NLRB
704, 708 (1978); Ohio Masonic Home, 205 NLRB 357
(1973), enfd. 511 F.2d 27 (5th Cir. 1975); see also Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 801-803 (1945). In
healthcare facilities, however, the Board and the courts have
refined that basic rule due to concerns about the possibility of
disruption to patient care. In nonpatient care areas, restrictions
on wearing insignia are presumptively invalid in accordance
with the basic rule, and it is the employer’s burden to establish
special circumstances justifying its action. Casa San Miquel,
320 NLRB. 534, 540 (1995); see also NLRB v. Baptist Hospi-
tal, 442 U.S. 773, 781, (1979); accord: St. John’s Hospital,
222 NLRB 1150, 1150-1151 (1976). By contrast, restrictions
on wearing insignia in immediate patient care areas are pre-
sumptively valid. See Baptist Hospital, above. That presump-
tion of validity, however, does not apply to a selective ban on
only certain union insignia in immediate patient care areas.
See St. John’s Health Center, 357 NLRB No. 170, slip op. at
2 (2011). In those circumstances, it remains the employer’s
burden to establish special circumstances justifying its action;
specifically, that its action was “necessary to avoid disruption
of health-care operations or disturbance of patients.” Beth Is-
rael Hospital v. NLRB, 437 U.S. 438, 507 (1978).
In the instant case, the Respondent required Hopson to re-
move the “We’re with Ron” union sticker she was wearing in
April 2013. The credited testimony of McWhirter and Lewis
establishes, however that the Respondent permitted employees
to wear insignia regarding professional sports teams, local
youth wrestling, the United States Army, St. Patrick’s Day pins,
and other personal messages, in immediate patient care areas.
Since the Respondent allowed other types of insignia to be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
worn in immediate patient care areas, it cannot rely on the pre-
sumed validity of a ban against wearing all nonofficial insignia
in patient care areas in barring the union sticker that Hopson
was wearing in April 2013. St. John’s Hospital, 337 NLRB 94,
95 (2011).
The next issue is whether the Respondent was justified in in-
structing Hopson to remove the “We’re With Ron” union stick-
er based on special circumstances establishing that it was “nec-
essary to avoid disruption of health-care operations or disturb-
ance of patients.” The Respondent presented no evidence to
support a reasonable belief that banning the wearing of Hop-
son’s union sticker was justified by any special circumstances.
Accordingly, applying the principles set forth above, I find that
the Respondent violated Section 8(a)(1) of the Act when it
required Hopson to remove her union sticker in April 2013.20
The Alleged Disparate Application of the Respondent’s Policy
Regarding Bulletin Boards
As noted above, paragraphs 29 and 30 of the complaint al-
lege that the Respondent, in March 2013, through Denise Tou-
ray and Emily Bowman, disparately enforced the above noted
solicitation rule by permitting employees to utilize the Re-
spondent’s bulletin boards for purposes not related to Respond-
ent sponsored matters but prohibiting employees from posting
items in support of the Union on such bulletin boards.21

20 As noted above I have relied on the testimony of Lewis and
McWhirter in finding this violation. Although there are no allegations
in the complaint alleging that the Respondent violated Section 8(a)(1)
by requiring McWhirter and Lewis to remove union insignia, in his
post-hearing brief the General Counsel urges me to find that these
incidents are violative of the Act. The Union also urges me to make
such a finding in its post hearing brief. I decline to do so. At the hear-
ing, the Respondent objected to the testimony of Lewis regarding the
solicitation rule and its alleged disparate enforcement, contending that
there were no complaint allegations regarding this issue. In response to
this objection, the General Counsel indicated that this testimony was
directly related to the existing allegations of the complaint regarding
the solicitation rule (Tr 562). At no time during the hearing did the
General Counsel move to amend the complaint to allege the incidents
involving Lewis and McWhirter constituted separate unfair labor prac-
tices. If the General Counsel wished to amend the complaint to allege
additional violations of the Act, the time to take such action was before
the General Counsel rested his case in chief. Under the circumstances
present in this case, I find that the Respondent was deprived of the
opportunity to defend the incidents involving Lewis and McWhirter as
separate unfair labor practices and accordingly I will not consider them
as such. See Desert Aggregates, 340 NLRB 289, 292–293 (2003).
21 While the above noted solicitation policy does not specifically re-
fer to bulletin boards, I note that the Respondent’s corrective action and
discharge policy that became effective on August 30, 2012, provides
that a written warning can be issued for the “unauthorized use of busi-
ness unit bulletin boards.” (GC Exh. 161, p. 2.) While these allegations
of the complaint are inartfully drawn because of their reference to the
solicitation policy, I find that they are sufficient to put the Respondent
on notice that its policy regarding the posting of union materials on
bulletin boards was to be litigated in this case. Section 102.15 of the
Board's Rules and Regulations requires only that a complaint contain "a
clear and concise description of the acts which are claimed to constitute
unfair labor practices, including where known, the approximate dates
and places of such acts and the names of respondent's agents or their
In addition to the testimony of Lewis noted above, several
other witnesses testified on behalf of the General Counsel re-
garding the Respondent’s policy with respect to the posting of
materials on bulletin boards. Felicia Penn testified the “work
room” utilized by anesthesia technicians at Presbyterian Hospi-
tal contained a bulletin board. According to Penn’s credited
testimony, employees posted a number of personal items on the
bulletin board such as information regarding the rental of
homes and the sale of cookies. Penn indicated that she posted
several different items in support of the Union on the bulletin
board but generally these items were taken down by the time
she returned to work the next day.
Penn recalled having a telephone conversation with Emily
Bowman, a human resources representative about this bulletin
board in 2013 although Penn could not recall the date.22 Penn
was discussing a grievance with Bowman when Bowman asked
where Penn was posting things at work regarding the Union.
Penn replied that she posted union material on the bulletin
board in the work room. Bowman said it was up to the discre-
tion of her manager as to what could be posted on that bulletin
board, but that Penn was not allowed to post anything to do
with the Union on the bulletin boards at work.
McWhirter testified that in January 2013 in unit 7D of Pres-
byterian Hospital there were two bulletin boards in the break
room. One bulletin board had work related issues posted on it,
such as proper skin care for patients. The other bulletin board
had personal items post on it, such as Christmas cards, letters to
the staff and patients, and notifications regarding charity events
for organizations such as the American Heart Association. In
the main all of unit 7D the was a “Kids and Critter’s” bulletin
board on which employees posted pictures of their families and
pets.
During the period from January through March 2013
McWhirter posted union materials on approximately 15 occa-
sions on both bulletin boards in the break room. Within a very
short period of time these items would be removed but
McWhirter did not know who removed them or the reasons for
their removal On one occasion she posted on the “ Kids and
Critter’s” bulletin board a newspaper article relating to the
reinstatement of Ron Oakes. RN Ronnie Hall told McWhirter
that she had to take it down pursuant to the instructions of su-
pervisor Mara Schubert. McWhirter continued to see personal
postings on the nonwork related bulletin board until she left her
employment in August 2013.
Current employee Lou Berry also testified on behalf of the
General Counsel regarding materials posted on the Respond-
ent’s bulletin boards. At the time of the hearing, Berry had been

representatives by whom committed." See also Artesia Ready Mix
Concrete, Inc., 339 NLRB 1224, 1226–1227 (2003)
22 Penn first contacted Emily Bowman, at times referred to in the
record as Emily Rankin, by a fax dated January 23, 2013, regarding a
written warning that Penn received on December 20, 2012 (GC Exh.
16). Penn also sent a fax dated March 21, 2013, to Bowman in which
Penn mentioned posting union materials on bulletin boards at the hospi-
tal (GC Exh. 113). Based on the March 21, 2013 fax, I find that Penn’s
telephone conversation with Bowman regarding the posting of union
materials on bulletin boards occurred shortly after March 21, 2013.
UPMC 29
employed at the Respondent’s Montefiore building for several
years as an environmental services employee. The environmen-
tal services office in the Montefiore building is located on the
third floor. According to Berry, in early 2013 there were two
bulletin boards located at each side of the entrance to the de-
partmental office that were generally used to post employee
schedules and other departmental matters. Across the hall from
the office three or four additional bulletin boards were located
that often had nothing posted on them.
In early 2013 Berry observed the bulletin boards across the
hallway from the office door in the Montefiore building con-
tained postings for the ESS employee council regarding bake
sales and other fundraising events that the ESS employee coun-
cil was sponsoring. These bulletin boards also contain notices
regarding the meetings of the ESS employee council. Berry
also observed on one of the bulletin boards located next to the
door to the department office in the Montefiore building a post-
ing under the heading “UPMC Employee Council” that con-
tained the picture and information regarding the employee of
the month for a 5 or 6 month period. (Tr. 675–678; GC Exh.
197.)
Berry further testified that since he began to support the Un-
ion in 2011 he posted union related material on the bulletin
boards across from the environmental services department of-
fice in the Montefiore building. His union postings would be
taken down but he did not observe who removed them. In early
February 2013, the day after Berry became aware of the settle-
ment in UPMC I, he discussed his right to post union related
literature on the bulletin boards with department manager Gas-
parovic. According to Berry’s uncontradicted testimony, he told
Gasparovic that he understood that he would have the right to
post union literature wherever the Respondent posted literature
in the hospital. Gasparovic told Berry that he had heard about
the settlement but was not sure about Berry being able to post
union literature and would get back to him regarding that issue.
Approximately 2 days later Gasparovic called him and told him
that he would not be able to post union literature on the bulletin
boards as they were for department use only.
As I noted above in this section of the decision dealing with
the ESS employee council, from approximately January 2013
through May 2013, the Respondent permitted employees to
have bake sales outside of the department office in order to
raise money for the ESS employee council’s Memorial Day
picnic. The Respondent also permitted the ESS employee coun-
cil to conduct candy sales in a management office. Finally, the
Respondent permitted employees to post flyers regarding the
Memorial Day picnic throughout the hospital. In addition in
early 2013, the Respondent permitted employees associated
with the ESS employee council to post notices regarding the
meetings held by the ESS employee council. Pursuant to the
request of the ESS employee council the Respondent furnished
it with bulletin boards which the ESS employee council used to
communicate with environmental services employees about
what it viewed as appropriate procedures to be used by em-
ployees in performing their work. Finally, the Respondent per-
mitted the ESS employee council to use the departmental bulle-
tin boards to publicize the employee of the month for at least 5
or 6 months. As I found above, the ESS Employee Council is a
labor organization that the Respondent established and assisted
in violation of Section 8(a)(2) and (1) of the Act.
Current employee Charles Patterson works as a medical pro-
cedure unit (MPU) technician in the GI lab at Presbyterian
hospital. Until May 2013, Betsy Yetiskul was the unit director
at the GI lab/MTU. Patterson is an open supporter of the Union
and has distributed flyers to employees at the hospital and post-
ed union flyers on bulletin boards in the MPU department. Ac-
cording to Patterson’s credited testimony, at the beginning of
2013 there were two bulletin boards in the MPU department.
One bulletin board was located behind a desk near the nurses’
station in the MPU unit. The other bulletin board was located in
the employee break room, which Patterson also referred to as
the employee locker room. Patterson described the break room
as having three tables and a TV hanging on the wall. This room
also contains what Patterson referred to as the kitchen area
which contained two refrigerators, a microwave, and a vending
machine. Behind this area there were approximately 45 em-
ployee lockers. The bulletin board was located in the kitchen
area near the refrigerator.
Patterson credibly testified that prior to February 2013, he
had seen nonhospital related material posted on both bulletin
boards. With respect to the bulletin board that was located be-
hind the desk in the MPU unit, Patterson had observed jokes
posted on it that employees had sent through the Respondent’s
email system. With respect to the bulletin board in the employ-
ee break room, in the February/March 2013 period, Patterson
recalled seeing postings regarding a bowling party and an em-
ployee selling Pittsburgh Steelers tickets. Patterson’s testimony
regarding the bulletin board located in the break room is cor-
roborated by a photo of that bulletin board reflecting the items
that he mentioned; it also depicts restaurant menus and a flyer
for “American Discount Uniform.” (GC Exh. 47.)
On February 7, 2013, at approximately 8:33 a.m. Patterson
posted a union flyer on the bulletin board that was located be-
hind the desk in the MPU unit. Shortly afterwards Patterson
was working at that desk when Betsy Yetiskul, the unit direc-
tor, took the union flyer from the bulletin board. Patterson then
posted another flyer which Yetiskul promptly removed. This
process of Harrison posting the union flyer on the bulletin
board and Yetisku removing it occurred a total of approximate-
ly 6 times until about 1:40p.m.. During this entire period, nei-
ther Patterson nor Yetiskul spoke to each other about what they
were doing. According to Patterson there were jokes posted on
the bulletin board that day that Yetiskul did not remove Patter-
son also recalled that Yetiskul did not remove a flyer that she
had placed on the bulletin board regarding the sale of daffodils.
At some point after the February 7 incident, another employ-
ee in the MPU Department, Jose O’Neill, took down the bulle-
tin board that was located behind the desk in the MPU unit.
Patterson was present when this occurred and when he asked
O’Neill what he was doing, O’Neill replied that Yetiskul had
instructed him to take the bulletin board down. Patterson’s
testimony regarding this incident is unrebutted as Yetiskul did
not testify at the hearing.23

23 Patterson's testimony as a whole makes it clear that the bulletin
board that was removed was the one behind the desk in the MPU de-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
In support of the complaint allegations regarding the Re-
spondent’s alleged disparate application of its bulletin board
policy, the General Counsel contends that the Respondent
maintained bulletin boards that were available for employee
use, but prohibited the posting of union literature on those
boards. Relying on cases such as Bon Harbor Nursing and
Rehabilitation Center, 348 NLRB 1062, 1065 fn. 4 (2006);
Holly Farms Corp., 311 NLRB, 273, 274 (1993), enfd. 48 F.3d
1364 Cir. (1995)); and Honeywell, Inc., 262 NLRB 1402
(1982), enfd. 722 F.2d 405 (8th Cir. 1983), the General Counsel
acknowledges that there is no statutory right for employees to
use an employer’s bulletin boards but contends that the Re-
spondent cannot discriminatorily prohibit employees from post-
ing union notices on bulletin boards that are available for gen-
eral use by employees. The Union’s argument in support of
these complaint allegations is similar to that of the General
Counsel.
The Respondent contends that it did not enforce its bulletin
board policy discriminatorily pursuant to the standards set forth
by the Board in Register Guard, 351 NLRB 1110 (2007), enfd.
in relevant part and remanded, 571 F. 3d 53 D.C. Cir.(2009))
(Register Guard I).
In Register Guard the Board reiterated its well-established
rule that there is no statutory right of employees or a union to
use an employer’s bulletin board, equipment or media as long
as the restrictions are nondiscriminatory. 351 NLRB at 1114.
In its decision in Register Guard I, the Board also set forth a
new analysis regarding the manner in which it would determine
whether an employer discriminated against employees who
attempted to utilize its equipment, including the email system
and bulletin boards, in support of a union. In its decision the
Board adopted the analysis of the Seventh Circuit in Fleming
Co., 336 NLRB 192 (2001), enf. denied 349 F. 3d 968 (7th Cir.
2003), and Guardian Industries, 313 NLRB 1275 (1994), enf.
denied 49 F.3d 317 (7th Cir. 1995).
In Register Guard I the Board stated:
We find the Seventh Circuit’s analysis, rather than existing
Board precedent, better reflects the principle that discrimina-
tion means the unequal treatment of equals. Thus, in order to
be unlawful, discrimination must be along Section 7 lines. In
other words, unlawful discrimination consists of disparate
treatment of activities or communications of a similar charac-
ter because of their union or other Section 7-protected status.
. . . .
For example, an employer clearly will violate the Act if it
permitted employees to use email to solicit for one union but
not another, or if it permitted solicitation by antiunion em-
ployees but not by prounion employees. Id. at 1117–1118
(footnote omitted).
In its supplemental decision after remand from the D.C
Court of Appeals, Register Guard, 357 NLRB 187 (2011) (Reg-

partment and that this occurred after the February 7 incident. Thus, I
find that the portion of his direct testimony that indicates that O'Neill
informed Patterson that Yetiskul had instructed O'Neill to take down
the bulletin board in the locker room in January 2013 is incorrect and I
do not credit it.
ister Guard II) the Board reiterated the new standard regarding
discrimination that it set forth in Register Guard I, supra. slip
op. at 2. The Board also noted in Register Guard II that, in
contrast, under pre-Register Guard I precedent, discriminatory
enforcement of rules governing the use of an employer’s
equipment or other resources consisted of allowing employees
to use that equipment for nonwork related purposes while pro-
hibiting its use for Section 7 related purposes. In Register
Guard II the Board specifically noted that no party had asked it
to revisit this issue. 357 NLRB 188 fn. 7. Accordingly, the
principles set forth in Register Guard I represents existing
Board law on the matter and I shall apply those principles in
deciding this issue in the instant case. Applying the Board’s
rationale in Register Guard I, the substantial amount of evi-
dence introduced by the General Counsel and the Union regard-
ing the rental of homes, the sale of sports tickets, and other
personal postings placed on the bulletin boards by individual
employees is of no relevance in determining whether the Re-
spondent discriminatorily prohibited the posting of union mate-
rials on its bulletin boards.
What is relevant is the Respondent’s conduct in permitting
the ESS employee council’s use of its bulletin boards. As set
forth in detail above, employees were permitted to post flyers
on behalf of the ESS employee council regarding the Memorial
Day picnic throughout the hospital for months preceding that
event. In addition, in early 2013 the Respondent permitted em-
ployees associated with the ESS employee council to post no-
tices regarding the meetings held by the employee council.
Pursuant to the request of the ESS employee council, the Re-
spondent furnished to the ESS employee council with bulletin
boards which it used to communicate with employees about
what it viewed as appropriate procedures to be used by envi-
ronmental services employees in performing their job. Finally,
the Respondent permitted the ESS employee council to use
departmental bulletin boards to publicize the employee of the
month award for at least 5 or 6 months. As I have found above,
the ESS employee council is a labor organization that the Re-
spondent initiated, dominated, and unlawfully assisted in viola-
tion of Section 8(a)(2) and (1) of the Act.
The Respondent permitted the frequent use of its bulletin
boards by the ESS employee council during this same period
that Touray and Loveridge informed Lewis in February 2013
that he could not post literature on the Respondent’s bulletin
boards and when Bowmann informed Penn in March 2013 that
she was not permitted to post union material on the Respond-
ent’s bulletin boards. Although not alleged to be unfair labor
practices in the complaint, the Respondent also refused to per-
mit Berry to post union materials on bulletin boards and the
Respondent supervisor Yetiskul repeatedly took down union
material posted on a bulletin board by Patterson.
It is clear that the Respondent permitted the use of its bulle-
tin boards by employees to solicit interest in, and funds to sup-
port, the ESS employee council, an unlawfully assisted labor
organization. At the same time, the Responded refused to allow
the employees supporting the Union to post materials on bulle-
tin boards in support of the Union. Thus, based on the princi-
ples set forth in Register Guard I, the Respondent has drawn a
line between permitted and prohibited activities on Section 7
UPMC 31
grounds and has discriminatorily applied its bulletin board poli-
cy and thereby violated Section 8(a)(1) of the Act by informing
employees that they could not post union materials on bulletin
boards.
Paragraph 33 alleges that the Respondent, by Betsy Yetiskul,
on May 14, 2013, disparately enforced the above noted solicita-
tion rule by permitting employees to solicit in patient care areas
for purposes not related to Respondent-sponsored matters,
while prohibiting its employees from soliciting in patient care
areas in support of the Union.24
Patterson also testified regarding this complaint allegation.
According to Patterson, on May 14, 2013, the Pennsylvania
lottery jackpot was over $250 million and employees in the
MPU unit were discussing buying lottery tickets. Patterson was
at the nurses’ station in the MPU unit when Eileen Massof, a
RN in the MPU unit, approached him and asked him if he
wanted to play the lottery. Patterson indicated that he did and
gave Massof $2 to participate in a lottery pool. Massof also
went to other employees and asked them if they want to partici-
pate in lottery pool. At the end of the day Massof gave the par-
ticipating employees the ticket numbers she had purchased.
According to Patterson, there was no winning ticket in the
lottery on May 14 so that the lottery jackpot was even larger on
May 16. On that date, Massof again went around and asked
employees if they want to participate in a lottery pool and col-
lected money from them if they did. Patterson was in the post-
recovery area, a patient care area, when Massof approached
him and Patterson again gave Massof $2 in order to participate
in the lottery pool. Patterson also observed Massof asking other
employees to participate in collecting money from employees
at the nurse’s station. Later that morning, Patterson was talking
to Massof when Yetiskul approach them. Massof asked Yeti-
skul if employees could play the lottery and Yetiskul replied
that they could play “among their clique” but not to post any-
thing on the bulletin board.
Masoff testified on behalf of the Respondent pursuant to a
subpoena. Massof recalled that the Pennsylvania lottery had a
large jackpot in May 2013. According to Massof, she was at her
work station before starting work that day, when she stated to
employees in the area that there was a large lottery pool and
asked if everybody had heard about it. Massof further stated
that she was going to buy tickets for herself when some of the
employees in the area then asked her if they could go in with
her. According to Massof, employees then approached her and
gave her money in order to participate. Massof purchase 11
tickets altogether and wrote down on the list the names of the
employees who participated. She also made copies of the tick-
ets purchased but she did not recall distributing those copies to
the participating employees. She testified that someone else
may have. Massof testified that no supervisors participated in
the lottery pool and that none were present when she spoke to

24 Pars. 28, 31, and 32 of the complaint allege that the Respondent
applied the rule for disciplinary purposes only against employees who
support the Union. These allegations will be addressed later in this
decision in the discussion of the complaint allegations that the Re-
spondent violated Sec. 8 (a)(3) and (1) in disciplining certain employ-
ees.
other employees about it. Massof specifically denied having a
conversation with Yetiskul about playing the lottery. Massof
did not recall speaking to other employees about another lottery
drawing later that same week.
To the extent there is conflict between the testimony of Pat-
terson and Massof, I credit Patterson. His testimony on this
issue is straightforward and his demeanor reflected certainty
regarding the events he was testifying about. In addition, Pat-
terson is a current employee with no personal stake in the out-
come of this proceeding. As a current employee who testified
against the interest of his employer, it is unlikely that his testi-
mony is false. Bloomington-Normal Seating Co., 339 NLRB
191, 193 (2003). Massof’s demeanor while testifying reflected
some uncertainty with regard to these events and on cross-
examination she admitted she did not recall much of the details
of what occurred. (Tr. 2799.)
Based on Patterson’s credited testimony, I find that on May
14 and 16, 2013, in patient care areas, Massof spoke to em-
ployees about playing the Pennsylvania lottery and collected
money from the employees who indicate a desire to participate.
When Massof asked Yetiskul if it was okay for employees to
play lottery, Yetiskul indicated that they could play but they
were not to post anything on the bulletin board.
While the credited evidence establishes that the Respondent,
through Yetiskul permitted employees to solicit for the lottery
in patient care areas on or about May 14, 2013, there is no evi-
dence that the Yetiskul prohibited employees from soliciting on
behalf of the Union on or about the date as alleged in paragraph
33 of the complaint. Accordingly, I shall dismiss that complaint
allegation.
Independent Allegations of Violations of Section 8(a)(1)
of the Act
Paragraphs 17 and 18 of the complaint allege that the Re-
spondent by John Burns, and/or William Dilla and/or Dan Gas-
parovic interrogated employees and threatened employees with
discipline unless they agreed to write a statement regarding
their union activities.
As noted above, Franklin Lavelle and Ronald Oakes
werereinstated pursuant to the settlement in UPMC I on Febru-
ary 25, 2013. As will be discussed more fully below, on Febru-
ary 28, 2013, Leslie Poston sent an email message to a substan-
tial number of the Respondent’s employees welcoming Oakes
and Lavelle back to work following their reinstatement. During
the Respondent’s investigation of Poston’s email message, the
Respondent met with Lavelle and questioned him about his
involvement in the sending of the message.
The only evidence in support of this allegation is a document
signed by Gasparovic and Dilla dated March 1, 2013 (GC Exh.
148). This document states:
At approximately 3:45 PM on Friday, March 1, 2013, I had
called Frank Lavelle down to the office with William Dilla
present. I informed Mr. Lavelle that human resources is con-
ducting an investigation and that I had a few questions for him
to answer.
1. I asked Mr. Lavelle if he instructed Leslie Poston to post or
email the letter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
2. I asked Mr. Lavelle if he gave the letter to Leslie.
3. I asked Mr. Lavelle he wrote the letter, and if it was not
him, who wrote the letter.
Mr. Lavelle said that he had no comment and was not writing
a statement. I said to him that he could have until Monday to
write it. Mr. Lavelle again said he had no comment.
I then instructed that the line of questioning as part of an in-
vestigation conducted by human resources and if he fails to
cooperate that he will be subjected to disciplinary action up to
and including termination.
Mr. Lavelle then said he had no comment and was not writing
a statement.
In Scheid Electric, 355 NLRB 160, 161 (2010), the Board
indicated in deciding whether the questioning of an employee
violate Section 8(a)(1) it determines:
{w}hether under all the circumstances the interrogation [of an
employee] reasonably tends to restrain, coerce or interfere
with rights guaranteed by the Act.” Bloomfield Health Care
Ctr., 352 NLRB 252 (2008), quoting Rossmore House, 269
NLRB 1176, 1178 fn. 20 (1984), enfd. sub nom. HERE 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). Among the factors that
may be considered in making such an analysis are the identity
of the questioner, the place, and method of the interrogation,
the background of the questioning and the nature of the in-
formation sought, and whether the employee is an open union
supporter.
In Intertape Polymer Corp., 360 NLRB 957 (2014), the
Board also applied the above noted factors in finding the ques-
tioning of an employee to be an unlawful interrogation
Applying the factors set forth by the Board in Scheid Elec-
tric, Intertape Polymer and Rossmore House, I find that Gaspa-
rovic’s questioning of Lavelle regarding this incident constitut-
ed an unlawful interrogation regarding his union activities in
violation of Section 8(a)(1) of the Act. In this regard, the Re-
spondent has demonstrated hostility to the Union’s attempt to
organize its employees. I find that the questions directed to
Lavelle by Gasparovic regarding who wrote the email that
Poston sent to employees and what, if any, role Lavelle had in
instructing Poston to send it, is not a legitimate area of inquiry
regarding the question of whether Poston used the Respond-
ent’s email system in violation of its policy in transmitting the
email. In addition, Gasparovic was the manager of the envi-
ronmental services department and summoned Lavelle to his
office for the interrogation, which was conducted in the pres-
ence of another manager, Dilla. Finally, Gasparovic’s threat
that Lavelle could be terminated for refusing to answer his
questions adds to the coercive nature of the interrogation. The
fact that Lavelle was in open union supporter does not privilege
the Respondent to interrogate him in such a coercive fashion
Under the circumstances, I also find Gasparovic’s threat to
discipline Lavelle for refusing to participate in an unlawful
interrogation is also a violation of Section 8(a)(1) of the Act.
Paragraph 20 of the complaint alleges that the Respondent,
by Jason Hogan, at Shadyside Hospital impliedly threatened
employees with a poor evaluation if they continued their sup-
port for the Union.
Former employee Jynella Everett testified on behalf of the
General Counsel regarding this allegation. Everett began work-
ing for the Respondent at Shadyside Hospital as a housekeeper
in October 2012 and resigned from her employment with the
Respondent in July 2013. While she was employed by the Re-
spondent her immediate supervisor was Jason Hogan. In
March, 2013 Everett wore, for the first time, a badge pull given
to her by the Union which stated: “Can’t Stop Us Now.” (GC
Exh. 95.) Everett was walking down a hallway the basement of
Shadyside Hospital, a nonpatient care area, with another em-
ployee when Hogan stopped her and asked her if she knew her
evaluation was coming up. Everett replied, “Yes, I do.” Hogan
looked down at her badge pull and said, “Okay. I’m just letting
you know your evaluation is coming up.” Everett replied that
she knew that already. The conversation then ended. After her
conversation with Hogan, Everett took the union badge pull off
but later that day “put it back on because I did not want him to
stop me from wearing it.” (Tr. 1395.) However, Everett did not
wear the union badge pull the next day and did not wear any
union insignia until shortly before she resigned her employ-
ment.
Hogan testified that he recalls giving Everett a performance
evaluation in March 2013. Hogan recall discussing Everett’s
upcoming evaluation with her on one occasion a few weeks
prior to giving her the evaluation. According to Hogan, he re-
ceived a call asking for a restroom cleanup and assigned Ever-
ett that task of cleaning a restroom. Everett later reported to
him that restroom had been “really, really bad.” Hogan apolo-
gized and told Everett that he did not know what condition the
restroom was in when he assigned for the task of cleaning it up.
He gave Everett two meal tickets and informed her that he
would include her performance on that day in her evaluation.
Hogan recalled that Everett was wearing her regular house-
keeping uniform on this occasion and he did not observe her
wearing anything to show support for the Union. He specifical-
ly denied seeing Everett wear a badge pull with the legend
“Can’t Stop’s Now.”
The evaluation that Hogan gave Everett is dated March 27,
2013. In this evaluation Hogan commented favorably on Ever-
ett’s performance in cleaning a restroom. (R. Exh. 388, p. 4.)
I credit Everett’s testimony regarding Hogan’s actions on the
first day that she wore her Union badge pull. Everett’s demean-
or while testifying demonstrated certainty regarding her en-
counter with Hogan. While the encounter was brief, Everett’s
testimony indicated a vivid recollection of the event. I do not
credit Hogan’s denial that he ever observed Everett wearing a
badge pull with the commonly known Union phrase “Can’t
Stop Us Now” on it as I do not find it convincing. I do not
doubt that Hogan told Everett that he would comment favorably
on her evaluation regarding her performance in cleaning the
restroom but I find that he was describing a different conversa-
tion than the one that Everett testified about.
Based on Everett’s credited testimony, I find that, under all
the circumstances, Hogan’s comments to Everett constituted an
implied threat that her union activities could adversely affect
her upcoming appraisal in violation of Section 8(a)(1) of the
Act. I find that Hogan’s repeated statements regarding Everett’s
UPMC 33
upcoming evaluation while looking at her union badge pull had
a tendency to interfere with Everett’s protected right to display
union insignia. In making this finding, I specifically note that
Hogan’s comments were made in the context of the Respondent
committing a substantial number of other unfair labor practices.
The Alleged Violations of Section 8(a)(3), (4), and (1) and
Related Independent Alleged Violations of Section 8(a)(1)
of the Act
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), the Board established a framework for deciding cases
turning on employer motivation regarding an adverse employ-
ment action taken against an employee. To prove an employer’s
action is discriminatorily motivated and violative of the Act,
the General Counsel must first establish, by a preponderance of
the evidence, an employee’s protected conduct was a motivat-
ing factor in the employer’s decision. The elements commonly
required to support such a showing are union activity by the
employee, employer knowledge of the activity and antiunion
animus on the part of the employer. If the General Counsel is
able to establish a prima facie case of discriminatory motiva-
tion, the burden of persuasion shifts “to the employer to
demonstrate the same action would have taken place even in
the absence of the protected conduct.” Wright Line, supra, at
1089. Accord: Mesker Door, Inc., 357 NLRB 591, 592 (2011).
In the instant case, I will apply the Board’s Wright Line doc-
trine in deciding the 8(a)(4), 3), and (1) allegations in the com-
plaint, except for the allegations in the complaint regarding the
suspension and final written warning given to Leslie Poston and
the final written warning given to Chaney Lewis.
An employee’s union activity and/or involvement with
Board processes and the Respondent’s knowledge of that ac-
tivity varies from one employee to another and will be set forth
in detail herein. It is clear, however, that the Respondent op-
poses the unionization of its nonclinical support employees.
This animus to the union activities of its employees is primarily
established by the violations of the Act that I find it committed
herein. The Respondent’s opposition to the Union’s organizing
campaign expressed on its internal website is also indicative of
animus. The Board has noted that an employer’s antiunion
campaign literature, although not itself unlawful, can be con-
sidered as further evidence of animus. Embassy Vacation Re-
sorts, 340 NLRB 846, 849 fn. 15 (2003); Overnite Transporta-
tion. Co., 335 NLRB 372, 375 fn. 15 (2001) Thus, the record as
a whole clearly establishes that the Respondent possesses anti-
union animus.
The December 20, 2012, Written Warning issued to Felicia
Penn and Related 8(a)(1) Allegation
Paragraphs 36, 48, and 53 of the complaint allege that about
December 20, 2012, the Respondent issued a final written
warning to employee Felicia Penn in violation of Section 8
(a)(3) and (1).
Penn’s Union Activity
Current employee Felicia Penn testified in support of these
allegations. Penn began working for the Respondent at Presby-
terian hospital in approximately 2004 as an anesthesia techni-
cian in the operating room. Jane Hackett was her direct supervi-
sor until October 2013. During the same period, Amy Bush the
Respondent’s then director of surgical services, was Penn’s
department manager, and the human resources representatives
assigned to Penn’s department included Kathy Grills and Emily
Bowman.
Penn is an open union supporter. While her testimony is
somewhat lacking in detail, Penn testified that she had been
discussing the Union at work for substantial period of time and
made reference to having been engaged in open union activity
“since Frank Lavelle was terminated.” (Tr. 471.) The record
does not contain the date of Lavelle’s termination, but he was
reinstated pursuant to the settlement agreement in Case 8–CA–
081896, which was executed on February 7, 2013. According
to Judge Goldman’s decision noted above, the original com-
plaint in 06–CA–081896 issued on December 13, 2012. (JD–
28–13, slip op. at 2.) Thus, it is clear that Lavelle’s discharge
occurred several months prior to December 13, 2012.
Penn also spoke to employees about supporting the Union on
breaks in the anesthesia technicians’ “work room” and outside
the work room in November 2012. (Tr. 505–506.) The work
room contains supplies and a computer. The room also contains
a table and a bulletin board. Anesthesia technicians take breaks
in that room, which is also used by supervisors. The work room
is inside the Presbyterian Hospital’s operating room area.
According to Penn’s credited testimony, employees posted a
number of personal items on the bulletin board in the anesthesia
technicians work room such as information regarding the rental
of homes and the sale of cookies. Penn testified that she was
posting information regarding the Union on the bulletin board
in the work room in November 2012. (Tr. 505–506.) She fur-
ther testified at these items were taken down by the time she
returned to work the next day. Penn testified that she would
then repost the union materials.
According to Penn’s uncontradicted testimony, Hackett was
present, at times, when Penn posted union material on the bul-
letin board and spoke to employees about the Union (Tr. 506–
507.)25 It is therefore that clear that prior to Penn’s final writ-
ten warning issued on December 20, 2012, she had been en-
gaged in open union activity at work and that Hackett had
knowledge of her union support in November 2012.
Hackett’s office was located directly across from the work
room. Penn testified that, sometime in the first part of 2013,
Penn was in Hackett’s office when Hackett asked her why she
was monitoring two phones for other technicians. Penn replied
that she was “holding their phones” so they could take a lunch
break. Hackett asked how Penn could give other employees an
adequate lunch period if she was monitoring two phones at one
time. Penn replied that this was a regular practice and that if she
needed help she could get help from another employee. Hackett
then told Penn that she “was well aware of what had been going
on as she has heard her talking about the union” and that she
knew exactly what Penn was doing. (Tr. 469.) Penn indicated
that Hackett was present in the lunch room earlier that day
when Penn was discussing the Union.

25 Hackett did not testify at the trial.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
Sometime in March 2013 Penn began to wear a lanyard with
the Union’s logo that stated “CAN’T STOP US NOW” (GC
Exh. 94) and that Hackett had observed her on several occa-
sions while she was wearing the union lanyard. Penn also testi-
fied that Hackett told her in approximately June 2013 that she
knew Penn was distributing information to other employees.
Hackett then told Penn that she knew what Penn was doing on
her breaks and that Penn did not have time for that.
As noted in detail above, in March 2013, a human resources
representative for the Respondent, Emily Bowman, told Penn
that she was not allowed to post anything to do with the Union
on the bulletin boards at work in violation of Section 8(a)(1) of
the Act.
Penn’s December 20, 2012 Final Written Warning
Facts
Anesthesia technicians have a wide variety of responsibilities
including setting up operating rooms for anesthesia and assist-
ing an anesthesiologist throughout surgical cases including
organ transplants and traumatic injuries. The Respondent oper-
ates a level 1 trauma center and the anesthesia technologist
team handles approximately 80 to 110 surgical cases a day.
The anesthesia technicians schedule is designed to accom-
modate the anticipated surgical volume. In this connection, the
number of anesthesia technicians on duty increases from the
early morning to mid day, when staffing is at its peak, then
gradually is reduced during the afternoon and into the evening.
Only two anesthesia technologists are scheduled to work over-
night.
On each shift one anesthesia technician is designated by an
asterisk on the schedule, which signifies they are scheduled for
overtime. While technicians are scheduled to come in at night if
additional help is needed, the designated overtime technician is
required to stay over and provide additional help for the next
shift if the volume of work requires it. If no lead anesthesia
technician is present, the most senior technician takes on the
role of “charge technician.” The duties of the charge technician
include carrying the “charge phone” used to communicate with
the other anesthesia technicians, the anesthesiologist in charge
and the nurse in charge. The charge technician also has the
responsibility to ensure proper and adequate staffing coverage
and giving a report to the next person taking charge regarding
any outstanding issues or staff changes that have occurred.
On November 28, 2012, Penn clocked in for her shift at
10:34 a.m. and worked until 7:04 p.m. (R. Exh. 272.) Anesthe-
sia technician Aleasha Curtaccio was also working on the same
shift as Penn. When Hackett left at approximately 4 p.m., as the
most senior person on the shift, Penn became the charge techni-
cian. Penn was also the designated overtime technician on the
schedule. Prior to Hackett leaving, she discussed the assign-
ment of overtime with Penn and because the operating room
was busy, Hackett approved the assignment of overtime. While
Hackett was still at work, Penn called Mikeia Davenport, who
was scheduled to begin work at 10:30 p.m. and asked her to
come in early for overtime. Davenport agreed to come in early
for overtime. The assigned, overnight call person was Andrea
Davis (formerly known as Andrea Henry). The overnight call
person is responsible for coming in at any time from 10:30 p.m.
to 7 a.m. if there is too much work for the two night-shift tech-
nicians and they need assistance.
The only two witnesses who testified regarding the events of
November 28 who were present at the hospital that evening
were Penn and Curtaccio, a current employee who testified on
behalf of the Respondent. To the extent their testimony con-
flicts, I credit Curtaccio as her testimony was thorough and
detailed and consistent on both direct and cross-examination. In
addition, her demeanor was impressive in that she exhibited
certainty when testifying about the events of that evening. On
the other hand, Penn’s testimony was, at times, vague and
somewhat generalized. Most importantly, however, her testi-
mony conflicts with objective evidence on an important point.
Penn testified that she did, in fact, work overtime on the even-
ing of November 28 until 8 p.m. The Respondent’s payroll
record for that day, however, clearly establishes that Penn
clocked out at 7:04 p.m. after working for 8 hours. (R. Exh.
272, p. 10.) Accordingly, I have determined that Curtaccio’s
account of the events of that evening is more reliable than that
of Penn.
According to Curtaccio’s credited testimony, she had agreed
with Davis to cover the on-call responsibility for that night.
Accordingly, starting at 10:30 p.m., Curtaccio was subject to
being called back in to work if necessary.
On November 28 at 7 p.m. there was a heart transplant in
progress and there were additional transplants pending, two in
the Montefiore building and two at Presbyterian. As noted
above, at 7:04 p.m. Penn clocked out after giving the charge
telephone to technician Ronda Kastle, who then took over as
the charge technician. At the end of her scheduled shift at ap-
proximately 7 p.m., Curtaccio met Kastle in the work room and
Kastle informed Curtaccio that Penn had left. Curtaccio and
Kastle discussed the workload and discussed what was still
needed to be done. Curtaccio felt it was too busy for Kastle and
Abe Young, the other anesthesia technician who was present at
Presbyterian, to handle the workload. At that time anesthesia
technician Todd Drelick was also still on duty at Montefiore.
Curtaccio told Kastle that she would help set up for the two
transplants that were still pending but that she was going to call
Hackett to make sure she was allowed to stay because she was
not the designated overtime person and was the on-call person.
At approximately 7:15 p.m., Curtaccio called Hackett and
received permission to stay. At approximately 7:45 p.m. Cur-
taccio saw Davenport in the locker room and reported to her
regarding the pending workload and then Curtaccio clocked out
at 8 p.m. At approximately 10:20 p.m., Kastle called Curtaccio
and told her that the transplants had been canceled and that it
would not be necessary for her to come in.
On November 30, 2012, Hackett spoke to Penn about the
events of November 28, in the employee locker room. Hackett
asked Penn why she not stayed overtime on November 28, as
she was the overtime person. Penn testified that she told Hack-
ett that she did stay for overtime and that Penn had initiated the
phone call Curtaccio had with Hackett as Penn was still at work
when a call was made.26 Penn also stated that the problem was

26 While Penn was scheduled to work from 9:30 a.m.to 6 p.m. on
November 28 (R. Exh. 272) she actually began work at 10:34 a.m.and
UPMC 35
that they did not have a call person that night and Hackett was
mistaken about what Curtaccio’s phone call meant. Hackett told
Penn that if she wanted to discuss it more she could meet her in
Amy Bush’s office.
Penn testified that when Hackett, Bush and Penn met later
that day in Bush’s office, Bush told Penn that she was not a
team player and that she engaged in job abandonment when she
left work when her team still needed her. Penn told Bush that
she performed her duties and that a call person was in place but
did not have to be used so that there was no actual problem that
evening. Bush responded she would be in contact with human
resources because Penn had abandoned her job.
Bush testified that on November 30 prior to the meeting she
held with Hackett and Penn, Hackett reported to her that Penn
had spoken to Hackett in an inappropriate way in the locker
room, using curse words. Hackett also reported that Penn had
left work early when she knew there was a potential for more
surgical cases but that she had to attend to her children. Hackett
also informed Bush that Penn had stated she was not going to
work on Christmas even though she was on the schedule.
There is some conflict between the testimony of Penn and
Bush regarding what was discussed at the November 30 meet-
ing. Bush testified that at the meeting with Penn and Hackett
held in Bush’s office, she told Penn that it was inappropriate for
her to be using such language with Hackett. She also said that
as a charge technician she had to make sure that the technicians
and patients were taken care of and that she could not leave
until the extent of the pending transplants were known and that
the work was finished. she also told Penn that Christmas was
her scheduled holiday to work and that unless she could switch
with another employee this was her holiday to work.
I credit Bush’s testimony regarding the meeting held with
Hackett and Penn with respect to the topics that were discussed
at that meeting, as the Respondent’s later investigation into the
incident on November 28 supports Bush’s testimony on this
point. However, I credit Penn’s testimony that Bush accused
her of “job abandonment.” My finding on this point is support-
ed by the fact that on December 5, 2012, Bush sent an email to
Hackett and human resources representative Grills stating, in
part: “Felicia was insubordinate by telling Jane she would not
work her scheduled-she spoke in loud voice. She also aban-
doned her job and responsibilities by leaving work prior to
work being completed. Please get statement from Felicia and
with Kathy’s permission, let’s move forward with termination.”
(GC Exh. 134.)
After the meeting on November 30, an investigation was
conducted by the Respondent regarding Penn’s conduct on
November 28 and 30. Penn and Hackett furnished statements as
did anesthesia technicians Curtaccio and Davenport.
Hackett’s statement dated December 5 (GC Exh. 133) was
submitted to Bush and Grills. Hackett statement indicates that
when she spoke to Penn on Friday, November 30, Penn told her
that that she would not be working on Christmas even though it

punched out at 7:04 p.m. that evening. (R. Exh. 272, p. 10.) Thus Penn
did not actually work overtime that evening. In addition, as noted
above, I find that Curtaccio called Hackett after Penn had left work that
evening and thus Penn’s testimony on this point is not credible.
was scheduled because of family issues. Penn asked Hackett if
they can work something out since she would not be able to
work and Hackett told her that they would discuss it later.
Hackett then asked Penn about the events of November 28.
Hackett’s statement referred to the phone call that she had re-
ceived from another staff member who indicated Penn was the
designated lead person and left at 7 p.m. with a busy schedule
and work still to be done. Hackett told Penn “the lead person
and especially one in charge, needs to stay until the work is
done and all cases are covered. So she needed to stay until all
that was accomplished.” Hackett statement then indicated that
Penn indicated in a loud voice that she did stay late until 7 p.m.
Hackett’s statement also indicated that Penn said, “I have a lot
going on at my home and with my family and I just can’t stay
any later.” Hackett’s statement further indicates “Felicia uses
inappropriate language in everyday speech and this encounter
was no exception.”
As noted above, on December 5, Bush sent an email to
Hackett and Grills, the human resources representative indicat-
ing she wanted to terminate Penn because of abandoning her
job and for being insubordinate. Bush sent this email before
obtaining a statement from Penn or other employees regarding
the events of November 28.
Penn’s statement (R. Exh. 263) is dated December 6, and
states in relevant part, that she had worked until 7 p.m. on No-
vember 28 and before she left, she made sure that things were
under control and personally spoke to everyone before she left
making sure it was okay for her to leave. Penn’s statement also
indicates that the last person she spoke to was Curtaccio and
that she specifically asked her if she had spoken with the call
person, Andrea Henry (Davis). Penn’s statement indicated that
Curtaccio told her she had not spoken to Davis and if she need-
ed would take the call for Davis but for the time being she
would stay and help out. Penn’s statement indicates said she
informed Hackett in their meeting on November 30 that when
Penn left it was not busy. Penn statement also indicated, “it had
the potential to be a disaster if all four transplants went that
were booked and the only issue I was aware of was we could
not contact the call person.”
Curtaccio’s statement dated December 11 (GC Exh. 123)
was submitted to Hackett and indicates:
You requested a statement for the evening of 11/28/12. I
called you that evening to see what I should do. When we
spoke, I told you of the multiple transplants that were sched-
uled at PUH/MUH that night with multiple donors. One do-
nor in OR at 8:40 pm. Abe I set up for two of the PUH trans-
plants while Felicia [Penn] started a transplant in OR 6. Todd
was at MUH waiting to hear of the two transplants that were
pending there. With other rooms coming out and going inand
being short staffed, Felicia was the overtime person and had
to stay. And she did until 7:00pm. At7:00 pm, it had slowed
down case wise but there was a lot cleanup/set up to be done
and if I would have left it would have only been Rhonda and
Abe (Keia was on her way in). I stayed until 8:00 pm until I
knew Keia was coming and after talking to you. I then left in
case I needed to take Andrea’s call which started at 10:30 pm,
and come back in. The transplants ended up canceling around
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
10:30 pm and Rhonda contacted me to let me know I didn’t
need to come in.
Davenport’s statement dated December 11 (GC Exh. 121)
states:
I am writing this email on behalf of Felicia regarding the situ-
ation that arisen (sic) on wed. nov 28, I did not feel that Feli-
cia abandoned us. I was under the impression that things were
to be a bit busy so I came in early that evening at 7:30 pm.
When I came in Aleasha [Curtaccio] was in the locker room
preparing and to leave. She informed me of the transplants
that were scheduled for later on that evening and stated that
everything had already been set up for them. So when I went
into the work room Rhonda and Abe both had no more than 2
rooms each and I was able to set up the entire OR for the next
day. Halfway through setting up the OR we were informed
that all the transplants had been canceled but one and that was
a kidney-panc to go in at 4:30 AM. I was not under any sort
of distress by Felicia leaving early and did not feel the need
for her or Aleasha to stay once I had arrived.
After some further emails from Grills asking for further de-
tails from Hackett regarding any inappropriate language that
Penn used in their November 30 discussion, the Respondent
concluded its investigation on December 16.
At that point Hackett drafted the substance of a written warn-
ing to Penn. Because Penn had previously received a verbal
warning and a written warning under the Respondent’s correc-
tive action policy this, was a final written warning. The final
written warning, (GC Exh. 114) indicated the following:
On November 28, 2012, you were the designated layperson.
You failed to stay beyond 7 PM to ensure that there was ade-
quate staffing to handle the cases as well as set up for the next
day. Instead you gave the charge phone to another employee
and left. This is considered work negligence. On November
30, 2012 when I spoke you concerning the incident your be-
havior and demeanor were inappropriate.
On December 20, 2012, Hackett and Grills met with Penn
and gave her the final written warning. Thereafter, Penn filed a
grievance under the Respondent’s internal grievance procedure
that was ultimately denied.
After the final written warning was issued to Penn on De-
cember 20, 2012, Hackett failed to forward the signed final
written warning notice and the executed disciplinary authoriza-
tion form to the human resources department to be included in
Penn’s file. When the Respondent discovered that the signed
copies of these documents could not be located, the discipline
was rescinded because of the lack of signed copies.
On June 18, 2013, Bush and Emily Bowman, a human re-
sources consultant, met with Penn and Bush and informed Penn
that the December 20, 2012 final written warning had been
rescinded and would not be used against her. Bush also provid-
ed Penn with a letter dated June 14, 2013, indicating that the
final written warning was rescinded and would not be used
against her in any future corrective actions (GC Exh. 122).
Analysis
Applying the Wright Line analysis to Penn’s final written
warning, it is clear that prior to November 28, 2012, Penn was
an open employee advocate for the Union. In this regard, she
frequently spoke to other employees in support of the Union at
work. She also posted literature in support of the union on bul-
letin boards in the anesthesia technician break room. I also find
that Penn’s support for the Union was known to the Respondent
by November 28, 2012. In this connection, Penn’s uncontra-
dicted testimony, which I credit, establishes that Hackett was
present, at times prior to November 28, 2012, when Penn post-
ed union material on the anesthesia technicians’ bulletin boards
and spoke to employees about the Union. Although both Bush
and Grills testified that they were not aware of Penn’s support
for the Union prior to issuing her a final written warning on
December 20, 2012, I do not credit their testimony on this point
as I find it to be implausible. It is clear that Hackett, Bush, and
Grills had frequent discussions regarding Penn during the peri-
od between November 28 and December 20. The record as a
whole supports the fact that the Respondent had an intense
interest in the Union’s organizing campaign and its supporters,
and I simply do not believe that Hackett did not relay her
knowledge of Penn’s support for the Union to Bush and Grills.
The Respondent has demonstrated its antiunion animus through
the violations of Section 8 (a)(1), (2), (3) and (4) that I find it
committed in this case. In addition, I find that the timing of the
discipline issued to Penn, shortly after she engaged in open
union activity in November 2012, supports an inference that the
Respondent’s final written warning was motivated by Penn’s
union activity. State Plaza Hotel, 347 NLRB 755, 755–756
(2006); Toll Mfg. Co., 341 NLRB 832, 833 (2004). Thus, I find
that Penn’s final written warning was motivated by her union
activity, and the burden of persuasion shifts to the Respondent
to demonstrate the same action would have taken place even in
the absence of the protected conduct. Wright Line, supra, at
1089.
Turning to the Respondent’s defense, in its brief the Re-
spondent contends that Penn’s final written warning was justi-
fied because it was her responsibility to stay and work overtime
if additional assistance was needed on the evening of Novem-
ber 28, but instead she clocked out after 8 hours and Curtaccio
had to work an extra hour until additional help arrived. The
Respondent contends that Penn’s conduct constituted work
negligence. In assessing the Respondent’s defense, I note that
the Board has held “[a]n employer cannot simply present a
legitimate reason for its action but must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected activity.” W. F.Bolin,
Co., 311 NLRB 1118, 1119 (1993), enfd. mem 99 F.3d 1139
(6th Cir. 1996). In order to meet the Wright Line burden of
persuasion, an employer must establish that it is consistently
and evenly applied its disciplinary rules. DHL Express, Inc.,
360 NLRB 730, 736 (2014). In the instant case, the Respondent
has produced no evidence of other employees who have been
disciplined for “work negligence” or “inappropriate behavior
and demeanor.” In light of that, I have only the circumstances
surrounding Penn’s warning in which to assess the lawfulness
of the Respondent’s discipline of her. In this regard, the Re-
spondent does not point to any evidence that establishes objec-
tive standards regarding what constitutes “work negligence” or
UPMC 37
inappropriate demeanor or behavior.
An important factor in assessing the Respondent’s defense is
that on December 5, before a written statement was obtained
from Penn or any other employee with knowledge of the events
of November 28, Bush was advocating that Penn be terminated
for acting in an insubordinate manner to Hackett on November
30 and abandoning her job on November 28. This advocacy for
termination, without an adequate investigation, when coupled
with suspicious timing, supports a finding of discriminatory
motivation. Ferguson Enterprises, Inc., 355 NLRB 1135, 1146
(2010). While Bush’s initial recommendation to terminate
Penn, without conducting an investigation, was not followed,
the evidence revealed in the investigation does not convince me
that the Respondent would have taken the same action against
Penn in the absence of her protected union activity. As noted
above, before Hackett left work on November 28, she knew
that Penn had contacted Davenport and that Davenport was
going to come in earlier than her scheduled 10:30 p.m. start in
order to work overtime. In addition, the witness statements of
Curtaccio and Davenport, disinterested employees who were on
duty that night, do not support the allegation that Penn engaged
in work negligence of November 28 when she left at 7 p.m. As
noted above, Davenport’s statement reflects that when she ar-
rived at approximately 7:30 p.m., the workload was managea-
ble. While setting up the operating room Davenport was in-
formed that all of the scheduled transplants had been canceled,
except one. Davenport indicated that Penn’s leaving did not
cause her any “distress” and that she did not feel any need for
Curtaccio to stay any longer after she had arrived. Curtaccio’s
statement reflects that by 7 p.m. the caseload had slowed down
but there was clean up and set up work to be done and she
stayed until 8 p.m.until she knew that Davenport was coming
in. The statement further indicates that the transplants were
canceled at approximately 10:30 p.m. It thus appears that the
fact that Penn left at 7 p.m. had no effect on patient care. The
only effect on employees was that Curtaccio and not Penn
worked an additional hour. The fact that Curtaccio believed that
an additional hour of work was appropriate in order to properly
staff the department, and sought the approval of Hackett to do
so, does not , in my view, establish that Penn engaged in “work
negligence” by leaving at 7 p.m.
With regard to the allegations in the written warning that
Penn’s behavior toward Hackett was insubordinate on Novem-
ber 30, Hackett's witness report indicates that the language used
by Penn on that occasion was the language that she commonly
used.
After considering all of the evidence, I conclude that the Re-
spondent has not demonstrated that it would have taken the
same action toward Penn in the absence of her protected union
activity and accordingly find that the final written warning
issued to her on December 20, 2012,” violated Section 8(a)(3)
and (1) of the Act.
The Alleged 8(a)(1) Violations Directed to Penn
Paragraph 10 of the complaint alleges that about February
14, 2013, the Respondent violated Section 8(a)(1) of the Act,
by Jane Hackett, by telling employees it knew what they were
discussing, created an impression among its employees that
their union activities were under surveillance.
As set forth above, Penn’s uncontradicted testimony estab-
lishes that during the early part of 2013, Hackett told Penn
during the conversation that she “was well aware of what had
been going on as she has heard [Penn] talking about the union
and that she knew exactly what Penn was doing. This conversa-
tion occurred shortly after Hackett was present in the lunch
room earlier that day when Penn had been discussing the Union
with other employees. In addition, Penn had on several occa-
sions openly posted union materials on the bulletin board in the
lunch room when Hackett was present.
In determining whether an employer has created an unlawful
impression of surveillance of employees’ union activities, the
Board considers “whether under all the relevant circumstances
reasonable employees would assume from the statements in
question that their union or other protected activities had been
placed under surveillance.” Camaco Lorain Mfg. Plant, 356
NLRB 1182, 1183 (2011); Frontier Telephone of Rochester,
Inc., 344 NLRB 1270, 1276 (2005), enfd. 181 Fed Appx. 85
(2d Cir. 2006). Applying that test in the instant case, it is clear
that Penn openly conducted activities in support of the Union
on a number of occasions when Hackett was present. Penn was
very open about her support for the Union and took no steps to
keep her activities secret. Under the circumstances, I find that
Hackett’s remark was simply an observation about Penn’s un-
ion activity which was conducted openly in front of her. Ac-
cordingly, I find that, in this context, Hackett statement would
not have reasonably caused Penn to conclude that the Respond-
ent was engaged in surveillance of employees’ union activities.
Accordingly, I find that the Respondent has not violated Sec-
tion 8(a)(1) as alleged in paragraph 10 of the complaint and I
shall dismiss this allegation.
Paragraph 23(b) of the complaint alleges that on or about
June 18, 2013, the Respondent, by Amy Bush and Emily Bow-
man, intimidated and coerced its employees in the exercise of
their Section 7 rights by disparaging employees who engaged in
protected concerted activities in. violation of Section 8(a)(1) of
the Act
Penn testified that at the June 18, 2013, meeting between
Penn, Bowman and Bush at which Penn was notified that her
December 20, 2012, final written warning was rescinded, Bush
told her that the letter was written being rescinded not because
of a finding that she was right, but because she “bullied her way
through this process.” Bush added that Penn’s coworkers were
afraid of her and that is why they wrote statements on her be-
half. According to Penn, she was not given any further infor-
mation at this meeting about the reason that her final warning
was being rescinded.
Bush testified that at the June 18, 2013 meeting with Penn,
she informed Penn that the final written warning she received
on December 20, 2012, was being rescinded. Bush also testified
that she reminded Penn of an unrelated matter regarding her
absences and also reminded her that it was important for her to
get a report when she came on her shift as well as to give a
report when she left her shift. Bush did not deny that she made
any statements to Penn regarding her “bulllying” the grievance
process or that her coworkers were afraid of her and that is why
they wrote statements on her behalf. As noted earlier, Bowman
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
did not testify at the hearing.
I credit Penn’s uncontradicted testimony that Bush told her
on June 18, that Penn’s December 20 warning was not being
rescinded because Penn was right in the matter but rather that
she had the grievance process and that coworkers were afraid of
her and that is why they wrote statements on her behalf. There
is no credible evidence in the record to support such a state-
ment. The Respondent has admitted that the reason for the re-
scission was the fact that the Respondent could not produce
signed copies of the warning in Penn’s personnel file. Under
the circumstances, I find that Bush’s critical comments to Penn
regarding the manner in which she solicited other employees to
write statements on her behalf during the Respondent’s internal
grievance procedure restrained and coerced Penn that and other
employees in the exercise of the protected right to engage in
concerted activity for the purpose of mutual aid and protection.
Accordingly, I find that Bush’s statement to Penn violated Sec-
tion 8(a)(1) of the Act.
The February 27, 2013 Written Warning issued to David Jones
and Related 8(a)(1) Allegation
As amended at the hearing paragraph 34(g) of the complaint
alleges that on or about February 2013, the Respondent,
through Nikolai Stoichkov, violated Section 8(a)(1) of the Act
by requiring employees to remove pro union insignia.
David Jones testified that he was employed by the Respond-
ent from August 1, 2010, until January 24, 2014, when he vol-
untarily left his employment to return to school. He was em-
ployed in the environmental services department. Jones was
active in the Union’s campaign. In this connection, he solicited
other employees to join the Union. During the period from
December 2012 until mid-February 2013 he wore the union
pin indicating “Make It Our UPMC” on his uniform once or
twice a week. Jones testified that he wore this pin in the pres-
ence of supervisors Karen Reynolds, Gloria Maxell, and Niko-
lai Stoichkov. According to Jones uncontroverted testimony, in
approximately the mid-January 2013, Stoichkov saw him in the
supply room in the basement of the hospital, a nonpatient care
area. Jones was wearing his union pin and Stoichkov told Jones
that if he continued to wear it, Stoichkov was going to have to
give him a disciplinary action.
At the hearing, the General Counsel introduced two docu-
ments entitled “Documentation of Coaching/Counseling” that
were contained in Jones personnel file and produced by the
Respondent pursuant to the General Counsel’s subpoena duces
tecum. Both of these documents were prepared and signed by
Stoichkov. The first one is dated February 19, 2013, and states
“On 02-19-2013 I spoke to David Jones about wearing union
badge on his uniform and that he is not allowed to wear it dur-
ing working hours or any areas while working and on the clock.
(GC Exh. 155.) The second one is dated February 21, 2013, and
states, “On 02-21-2013 I spoke to David Jones again about
wearing union badge on his uniform and that he is not allowed
to wear it during working hours or any areas while working and
on the clock. This is the second time he has been made aware
of this and was very clear to him that next time he is seen wear-
ing his union badge on the floor while working and on the
clock he will be counseled. No exceptions.” (GC Exh. 159).
I find that the Respondent’s records establish that Stoichkov
instructed Jones on two occasions to remove his union pin and
on the second occasion threatened him with discipline if he was
observed wearing it again. I find that Jones testified credibly
regarding his second encounter with Stoichkov which involved
a threat of discipline if he continued to wear his union pin.
Jones, however, did not correctly recall the date as the Re-
spondent’s records establish that the date of these occurrences
were February 19 and 21, 2013.
During this same period that Stoichkov instructed Jones to
remove his union pin in a nonpatient care area or be subject to
discipline, Jones observed other employees continuing to wear
personal buttons. As examples, Jones recalled seeing pins de-
picting pictures of owls and holiday greetings.
As I have set forth above in section of this decision entitled
“Alleged Disparate Enforcement of the Solicitation Policy Re-
garding Union Insignia,” employees have a protected right to
wear union insignia at work in the absence of “special circum-
stances.” In a healthcare facility restrictions on wearing union
insignia in nonpatient care areas are presumptively invalid un-
less the employer can establish special circumstances justifying
its action. There are no special circumstances which would
justify the Respondent’s action in requiring Jones to remove his
union insignia in a nonpatient care area and accordingly I find
that the Respondent has violated Section 8(a)(1) of the Act by
requiring Jones to remove his prounion insignia.
Paragraph 37, 48, and 53 of the complaint allege that on Feb-
ruary 27, 2013, the Respondent issued a written warning to
Jones in violation of Section 8(a)(3) and (1) of the Act.
Facts
On February 27, 2013, Jones was working as environmental
services employee on the 7a.m.to 3 p.m. shift at Presbyterian
Hospital. There is no evidence that he was wearing his union
pin that day. According to Jones, at approximately 2:30 p.m.
his work for the day was finished and he was in the area of the
environmental services supervisors’ office in the basement of
the hospital. Jones asked Supervisors Karen Reynolds and Tim
Armstrong and the arriving second-shift supervisor, Jason Ho-
gan, if they had any work for him to perform and they all re-
plied negatively.
Jones then took the elevator up to the fourth floor to go to a
waiting area for patients’ families to get a drink for his ride
home. As he exited the elevator and was walking down the hall
approaching the waiting room, Supervisor Gloria Moxie saw
Jones and asked him what he was doing. Jones replied that he
was going to get a drink for his ride home. According to Jones,
Moxie replied that he could not do that and that he should know
that. Moxie also told him that she was going to have to “write
him up.” Moxie then instructed Jones to accompany her to the
room of a patient who had been discharged from the hospital
and instructed him to help another employee get the room ready
for the next patient. After finishing this assignment, Jones shift
was ending and he swiped out and left.
The next day, February 28, Moxie asked Jones to write a
statement regarding the incident that occurred the previous day
on a form used by the Respondent for witness statements. Jones
briefly recounted the incident on the form. In the portion of the
UPMC 39
form stating “Please add any additional comments,” Jones
wrote “If I wasn’t for the union would I really be getting this
write up!” (GC Exh. 158.)
On March 2, 2013, Jones was called to the supervisors’ of-
fice, where he met with Reynolds and Stoichkov. Jones was
given a written warning (GC Exh. 157) which stated, in rele-
vant part:
On Wednesday, February 27, 2013, you were scheduled for
your work shift. You were witnessed, by Gloria Moxie, Su-
pervisor, on an unauthorized break at 2:45 pm at the main en-
trance to the 4 East Unit. When asked for the reason, he re-
sponded that you were there to get a bottle of soda from the
vending machine. Your scheduled break and lunch for that
date were as follows: break time 8:30 am and Lunchtime
11:30 am. Therefore this is considered an unauthorized break
and a violation of our Absenteeism and Tardiness policy HR-
03. Unauthorized breaks disrupt department operations and
can negatively impact our ability to provide patient care/ cus-
tomer service. A single unauthorized break is grounds for the
next level of corrective action notice.
The warning further noted that Jones received a verbal warn-
ing for a violation of the no smoking ordinance on April 16,
2012, and that is that “in accordance with UPMC policy” he
was receiving a written warning.
Current employee Lisa Jones testified on behalf of the Gen-
eral Counsel in support of this complaint allegation. Jones is an
advanced patient care technician and testified that there has
been occasions when she has gone to a vending machine on the
Starbucks on the first floor of the hospital when she has not
been on a scheduled break or lunch time. There is no evidence,
however, that any supervisor was aware of Jones engaging in
such conduct.
On June 30, 2013, Amy DiPasquale, the director of envi-
ronmental services at Shadyside Hospital, met with Jones and
gave him a letter indicating that the written warning he received
on March 2, 2013, for taking an unauthorized break on Febru-
ary 27, 2013, would be expunged from his personnel file and
not used against him in any way (GC Exh. 156.) DiPasquale
testified that she was instructed to give Jones the letter rescind-
ing his written warning from the human resources department.
DiPasquale further testified that prior to giving Jones rescission
letter, she spoke to Richard Hrivnak, the Respondent’s then
director of human resources, and informed him that she disa-
greed with the decision of the human resources department to
rescind the written warning because she believed that the warn-
ing was consistent with the disciplinary policy.
Analysis
As noted above, prior to receiving his written warning on
March 2, 2013, Jones had openly demonstrated support for the
Union by wearing his union pin at work. The Respondent was
clearly aware of his support for the Union since his supervisor,
Stoichkov, unlawfully instructed him to remove his union pin
on February 19 and 21 and on February 21 further threatened
him with discipline if he continued to wear it. As I noted earli-
er, the record establishes that the Respondent possesses animus
toward the Union’s efforts to organize its nonclinical support
employees. Accordingly, I find that the General Counsel has
established a prima facie case under Wright Line and the bur-
den shifts to the Respondent to establish that it would have
taken the same action against Jones in the absence of his of his
union activity.
DiPasquale testified that the environmental services depart-
ment at Shadyside hospital operates three shifts and each em-
ployee is assigned a 45-minute lunch and a 15-minute break.
An employee’s lunch and break time is set forth on the sched-
ule each day. If an employee cannot take a break at the sched-
uled time the employee must notify his or her supervisor and
secure permission for another time. Environmental services
employees are permitted to take breaks in the environmental
services locker room and lounge located in the basement of the
hospital, the cafeteria and the West Wing Café. Employees can
leave the building for lunch and break but must first notify their
supervisor and punch out; employees cannot leave their as-
signed work areas other than when they are on lunch break.
Employees are not permitted to take breaks in patient waiting
rooms.27 DiPasquale defined an unauthorized break as leaving
an assigned work area and going to another area when not on
an authorized break or taking a break at a time when an em-
ployee is not authorized to do so.
DiPasquale testified that the Respondent’s corrective action
policy was applied in the following fashion in the environmen-
tal services department: a verbal warning was given for the
initial violation of the Respondents corrective action policy, a
written warning was given for a second offense, a written warn-
ing in lieu of a 3-day suspension was given for a third offense
and finally termination for fourth offense.
On Jones schedule for February 27, 2013, his arrival time
listed as 6:30 a.m. and he left at 3 p.m. His break time was
scheduled for 8:30 a.m. and his lunchtime was scheduled for
11:30 a.m. (R. Exh. 364.) Thus, it is clear that Jones was taking
a break at 2:45 p.m. was at an unauthorized time. Consistent
with the Respondents corrective action policy, Jones was given
a written warning because he had previously been given a ver-
bal warning for violating the Respondent’s no smoking rule.
The Respondent introduced records establishing that it imposed
the appropriate level discipline on the following environmental
services employees on the following dates for taking an unau-
thorized break or an extended lunch in 2012 and 2013: Jamiya
Gamble, September 24, 2012 (R. Exh. 544.); Gary Jackson,
February 7, 2013 (R. Exh. 546); Tracy Butler, March 4, 2013
(R. Exh. 543); James McCoy, March 4, 2013 (R. Exh. 549);
Gary Jackson, March 13, 2013 (R. Exh. 547); Treay McClen-
don, May 14, 2013 (R. Exh. 548); Rony Aristil, September 24,
2013 (R. Exh. 542); Francis Togbah, September 24, 2013 ( R.
Exh. 553); Tony Upshaw, September 25, 2013 (Part. Exh.
554 ); Damar Read, October 4, 2013 (R. Perry Exh. 551.); Wil-
liam Northington, November 17, 2013 (R. Exh 550); Wayne
Smith, November 12, 2013 (R. Exh. 552). The discipline im-

27 The Respondents environmental services housekeeping policy and
procedure dated October 6, 2000, a copy of which Jones signed when
he was hired in August 2010, indicates in paragraph I (i) "DO NOT
take break time in a public lounge, public lobby, or public waiting
room. (Emphasis in the original) (R. Exh. 386.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
posed on Gamble and Jackson occurred prior to the incident
involving Jones and thus demonstrates that the Respondent’s
policy was applied consistently with respect to Jones.
The other incidents occurred after the discipline imposed on
Jones. While such evidence is relevant, I assign less weight to it
because, in my view, after an employee is disciplined and an
unfair labor practice charge is filed, disciplinary action taken by
a respondent could be influenced by the desire to show a con-
sistent pattern of discipline for that offense, in order to defend
against the unfair labor practice charge. In this circumstance,
however, I find that these warnings constitute further evidence
of a consistent practice regarding imposing discipline on em-
ployees for taking unauthorized breaks in the environmental
services department.
With regard to actions of Lisa Jones in going to a vending
machine or the Starbucks located in the hospital while not on a
scheduled break and lunch, there is no evidence that any super-
visor was aware of this conduct. Thus there is no evidence of
disparate treatment.
In Septix Waste, Inc., 346 NLRB 494 (2006), the Board indi-
cated that in order to establish a valid Wright Line defense, an
employer must establish that it is applied its disciplinary rules
regarding the conduct at issue consistently and evenly. I find
that the Respondent has met this burden with respect to the
application of its disciplinary rules regarding Jones’ conduct in
taking an unauthorized break. Under the shifting burden analy-
sis of Wright Line, the General Counsel must establish an unfair
labor practice by a preponderance of the evidence, Wright Line,
supra at 1088 fn. 11. I find this burden has not been met with
respect to the written warning given to Jones on March 2, 2013.
Accordingly, I conclude that the Respondent did not violate
Section 8(a)(3) and (1) with respect to the discipline imposed
on Jones on that date and I shall dismiss that allegation in the
complaint.
The February 28, 2013 Suspension and March 11, 2013 Final
Written Warning Issued to Leslie Poston and Related 8(a)(1)
Allegations
Paragraph 28 of the complaint alleges that about February
28, 2013, the Respondent, by Gina Barry, disparately enforced
its solicitation rule with respect to Poston in violation of Sec-
tion 8(a)(1).
Poston, a current employee of the Respondent, started work-
ing at Presbyterian Hospital on October 13, 2003. At the time
of the hearing she was a health unit coordinator (HUC) and had
been in that position for approximately 9 years. In this position
she is responsible for answering telephones, making appoint-
ments for patients and placing current information regarding
the nurse and nurse’s aide assigned to a patient in patient
rooms. At the time of the hearing, she was regularly assigned to
unit 9D and her supervisor was Gina Barry.
Poston is an open supporter of the union. In this regard, she
began to wear the Union’s “Make It Our UPMC” pin in January
2013.28 Poston had been wearing a Pittsburgh Steelers pin

28 In addition to openly displaying support for the Union by wearing
union insignia at work, as noted above, on February 21, 2013, Poston
was among the group of employees that Fishbein and Stenman met
before she began wearing the union pin and wore both of them
for a period of about 2 weeks. In early February, 2013, Berry
asked her to remove her pins and Poston asked Barry the reason
for her request. Barry replied it was not part of her uniform.
Poston complied with Barry’s request and removed both of her
pins. During the period of time that Poston was wearing her
union pin she observed employees wearing pins and lanyards
that were not issued by the Respondent, including those identi-
fying the Pittsburgh Penguins and the Cleveland Browns. She
also saw employees wearing pictures of their children on pins
or on their lanyards. After being asked to remove her buttons,
Poston continued to observe employees wearing buttons and
lanyards that were not related to the hospital such as those de-
scribed above in patient care areas. Although Barry was called
as a witness by the Respondent, she was not asked any ques-
tions regarding this incident and thus Poston’s testimony is
uncontradicted and I credit it.
Poston was working in a patient care area when Berry re-
quested her to take off both her Pittsburgh Steeler and union
pins. Poston’s uncontradicted testimony establishes that after
Barry instructed her to remove her buttons, other employees,
working same patient care area as Poston, continued to wear
insignia identifying sports teams and pictures of their children.
For the reasons I have expressed in detail above in this section
of this decision title “The Alleged Disparate Enforcement of the
Solicitation Policy Regarding Union Insignia” since the Re-
spondent allowed other types of insignia to be worn in immedi-
ate patient care areas, it cannot rely on the presumed validity of
a ban against wearing all nonofficial insignia in patient care
areas in order to justify instructing Poston to remove the union
button she was wearing in February 2013. In addition, the Re-
spondent has produced no evidence to establish that an instruc-
tion to Poston to remove her union pin was justified by any
special circumstances. Accordingly, I find that the Respondent
violated Section 8(a)(1) of the Act when it required Poston to
remove her union pin in February 2013.
Poston’s Suspension and Warning
Facts
Paragraphs 38(a) and (b), 48, and 53 of the complaint allege
that the Respondent suspended Poston on February 28, 2013,
and issued her a final written warning on March 11, 2013, in
violation of Section 8(a)(3) and (1) of the Act.
On February 27, 2013, the Respondent issued a revised solic-
itation policy that provides in relevant part:
C. No staff member may distribute any form of literature that
is not related to UPMC business or staff duties at any time in
any work, patient care or treatment areas. Additionally staff
members may not use UPMC electronic messaging systems
to engage in solicitation (see also Policy HS-IS0147 Electron-
ic Mail and Messaging ). (GC Exh. 162, p. 2.)
This particular provision was unchanged from the previous
solicitation policy dated October 10, 2012. (GC Exh. 163, p. 2.)
On February 27, 2013 the Respondent issued an electronic

with in the cafeteria before the union representatives were required to
leave.
UPMC 41
mail and messaging policy that provides, in relevant part:
1. UPMC Electronic Messaging Systems are provided to fa-
cilitate UPMC business, education & research and/or patient
care.
Also on February 27, 2013, the Respondent issued an “Ac-
ceptable Use of Information Technology Resources” that pro-
vides in relevant part:
1. UPMC workforce members shall only use UPMC infor-
mation technology resources for authorized activities. Author-
ized activities are related to assigned job responsibilities and
approved by the appropriate UPMC management. To the ex-
tent that a UPMC information technology resource is assigned
to an employee, the employee is permitted de minimis per-
sonal use of the UPMC information technology resource.
On February 28, 2013, Poston was assigned to work as a
“sitter” rather than performing her regular duties.29 Poston was
scheduled to begin work at 7 a.m. on that date but arrived at
work early. When Poston arrived she checked her computer in
unit 9D and saw that she had received an email from Fishbein
containing a letter regarding the recent reinstatement of Ron
Oakes and Frank Lavelle. Fishbein had asked Poston to email
this letter to coworkers. Poston sent an email dated February
28, 2013, at 6:04 a.m. (GC Exh. 175 and R. Exhs. 24 and 335),
that stated:
Hi, everyone.
I wanted to pass along this letter from our coworkers Frank
Lavelle and Ronald Oakes.
Were Back at Work and the Union is Here to Stay!
A letter from Frank Lavelle and Ronald Oakes
Wow.
In all our years at UPMC, nothing can compare to what hap-
pened on Monday. Nearly 200 people came out to support us
on our first day at work after winning our jobs back as part of
the historic settlement of workers’ rights charges against
UPMC.
It feels great knowing we’re here because we stood up with
our co-workers to protect our rights. We want to thank our co-
workers and the community for being there for us. Together,
we prove that it is possible for workers to stand up to UPMC
and win.
Now we’re back, and we’re going to keep working to form
our union, so that we can win the good wages, affordable
health benefits and respect that we deserve.
We are sharing the news of our victory so that everyone at
UPMC knows that we have the right to talk about the union
and the improvements we want to make at work. We won’t
let management stop us from exercising our rights.
Nothing can stop us now.

29 A sitter is an employee who is assigned to observe patients who
are deemed to require close scrutiny. Poston testified that she would
volunteer to work as a sitter in order to obtain additional hours.
Sincerely,
Frank Lavelle, Housekeeping, Presbyterian Hospital
Ron Oakes, Transport, Presbyterian Hospital
Poston sent the email to everyone on the mailing list marked
“NU ALL.” Poston testified that she knew when she sent the
email that there were a substantial number of employees on that
mailing list but she did not know how many. The record estab-
lishes that the email was sent to approximately 2176 individu-
als, including employees and supervisors, in 45 patient care
units. After sending the email, Poston punched in at the appro-
priate time and started her shift as a sitter in unit 10d.30
Poston testified that later that morning, Linda Haas, the clin-
ical director of Presbyterian Hospital, came into the patient’s
room where Poston was located and asked her to step into the
hallway. When Poston came into the hallway, two security
guards asked her to go across the Hall into an office. Poston
entered the office with Haas, and saw that Barry and Jaclyn
Loveridge, a human resources representative, were already in
the office. The security guards remained in a hallway. After
Poston and Haas entered the office, Haas informed Poston she
was suspended. When Poston asked what for, Haas replied
because of the email that Poston had sent out that morning.
Poston stated that she sent out a lot of emails, why did this
particular one result in a suspension. Haas did not specifically
respond to Poston’s question but asked Poston if she had any
personal items in the hospital. Poston replied that her purse was
in the patient’s room where she had been working and her coat
was located on unit 9d.
Haas left to retrieve Poston’s personal items and Barry then
read Poston the suspension notice (GC Exh. 151) and gave her
a copy. The suspension was for an indefinite period pending
completion of the Respondent’s investigation. After Barry read
the suspension notice, Loveridge asked Poston to write a state-
ment regarding what computer Poston had used to send the
email and where that computer was located. Poston then wrote
a brief statement indicating the location of the computer that
she had used and gave the statement to Loveridge. (GC Exh.
176) When Haas returned with Poston’s coat and purse, Poston
asked “How does the shuttle run to get me back to my car.”
Haas replied that that the security guards would take Poston to
her car. The security guards then accompanied Poston from the
office and gave her a ride to her car.
On March 8, 2014, Berry called Poston and informed her
that she could return to work on Monday, March at 11 a.m. and
to see her when she arrived. Poston met with Barry on March
11 and was given several documents. Berry gave Poston a
“Corrective Action/Discipline Authorization Form.” (GC Exh.
149.) On the first page under “Recommended Corrective Ac-
tion” a check was placed next to “Final Written Warning (Un-
paid Suspension 2/28/13-3/10/2013). The second page of this

30 On February 27, 2013, at 6:51 p.m. an employee sent an email
containing the identical letter regarding the reinstatement of Oakes and
Lavalle to 34 nonsupervisory personnel employed at the Respondent.
(R. Exh. 24; Tr. 288–289.) The parties agreed to redact the names of
the sender and the recipients of this email and stipulated that Poston
was not the sender
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD42
document indicated:
On February 28, 2013, Ms Poston sent an email using a hospi-
tal computer located on patient Unit 9D in Presbyterian. The
email was addressed to Nu all which is an address listing for
2176 Presbyterian patient care employees on 45 patient care
units. This email contained a letter allegedly written by two
other employees concerning their return to work after being
discharged from their employment. The letter expressed intent
by the two employees to continue to work for the union.
Ms. Poston’s use of the email system is a violation of policy
HS-ISO 147, Electronic Mail and Messaging since the mes-
sage did not facilitate UOMC business, education & research
and/or patient care. Ms. Poston’s use of the email system also
violated Policy HS-HR 0704, Corrective Action and Dis-
charge.
Barry also gave Poston a final written warning indicating, in
part:
On February 28, 2013, you sent an email to all nursing asso-
ciates at UPMC Presbyterian. This email contained a letter
written by two UPMC Presbyterian associates recently rein-
stated to their positions. In this letter, the Associates discussed
their reinstatement to work and support of the union. This is in
violation of UPMC ISO 147, Electronic Mail and Messaging.
Poston was also given a copy of the “Corrective Action and
Discharge” portion of the UPMC policy and procedural manual
and the “Electronic Mail and Messaging” portion of that manu-
al.
Loveridge testified that the morning of February 28, Lou
Goodman, a vice president of human resources, forwarded
Poston’s email to her between 8 and 9 a.m. After receiving the
email, Loveridge was instructed by Hrivnak and Goodman to
obtain a statement from Poston. Loveridge contacted Barry by
phone and was informed by Barry that Poston was not on the
schedule that day. Loveridge was working in conjunction with
Hrivnak on this matter and they contacted the Respondent’s IT
Department to determine if the email had been sent from a
computer in the hospital since Poston was not scheduled in a
regular unit that day. IT informed Hrivnak and Loveridge that
the email had been sent from a computer on unit 9D. Lover-
idge and Hrivnak then contacted the security department and
security personnel and IT personnel confiscated the computer
that Poston had used to send email. The human resources de-
partment also determined that Poston was working in another
unit, 10D, that day.
According to Loveridge, Hrivnak made the decision to sus-
pend Poston and Loveridge conveyed this decision to Barry.
Loveridge testified the reason for the suspension was that if the
Respondent allowed Poston to continue to work, it could inter-
fere with the investigation, because if Poston was on the site
she would have access to the email system.
Loveridge testified that at the meeting with Poston, Barry in-
formed Poston that it had been brought to their attention that
Poston had sent an email that morning on the UPMC system
that was not work related and that Poston was being suspended
pending the outcome of the investigation. (Tr. 2177.)
Barry testified that she was contacted on the morning of Feb-
ruary 28, 2013, as she was on her way to work by Linda Haas
who informed her that Poston had sent an email to “NU ALL.”
Barry asked Haas what the email was about and Haas read to
Barry the part of Poston’s email regarding the reinstatement of
Oakes. When she arrived at work, Barry and Haas spoke to
Loveridge by phone. Loveridge informed Barry that Poston had
violated the email policy by sending an email to over 2000
employees and that Loveridge would get back to her regarding
the discipline to be imposed. Loveridge called Barry at approx-
imately 9 a.m. and informed her that Poston would be suspend-
ed pending investigation.
Barry testified that she was “a little nervous” as to how
Poston would react because of Poston’s behavior during a pre-
vious conversation she had had with her. Haas call security to
meet with her and Barry on 10D where Poston was working.
When Poston arrived Barry told her that she was suspended for
sending an email to “NUAll. Barry then asked Poston to write a
statement regarding the computer that she used to send the
email.31
The General Counsel introduced a substantial amount of evi-
dence establishing that the Respondent permitted a variety of
non-work-related emails without imposing any discipline on
employees for doing so. In this regard, in December 2012,
Poston sent the message to all of the individuals employed in
unit 9D, including Barry, wishing everyone a Merry Christmas.
(GC Exh. 179.) The mailing list for unit 9D is composed of 89
employees. (GC Exh. 2; Tr. 1417–1418.) On March 18, 2013,
Barry sent an email to all of the employees in unit 9D regarding
the death of the spouse of an employee. (GC Exh. 178.) On
March 3, 2013, an employee sent an email message concerning
the sale of T-shirts to 7 separate nursing units, which included a
total of 328 individuals, including supervisors and managers.
(GC Exh. 180; GC Exh 61; Tr. 427.)
The General Counsel introduced three emails that was sent
by employees to “NU ALL” as was Poston’s. On November 7,
2012, an employee sent such an email seeking the donation of
toys to the “Brashear Association” for distribution to those in
need (GC Exh. 79). On November 29, 2012, an employee sent
such an email with a spiritual message (GC Exh. 80). On De-
cember 4, 2012, an employee sent such an email seeking the
identity of the purchaser of a winning ticket for a gift basket
raffle (GC Exh. 73).
On December 13, 2012, an email asking employees to join in
a celebration of some sort was sent to 43 nursing units. (GC
Exh. 81) While there is no specific evidence regarding the
number of employees that this email was sent to, since Poston’s
email was sent to 2176 individuals in 45 units, I draw the infer-
ence that this email was sent to approximately 2000 individu-
als.
The email list for the NU 12 S nursing includes approximate-
ly 100 individuals, including supervisors. The record contains
several examples of nonwork-related emails that were sent to
everyone on the NU12S email less during the months of Sep-

31 As noted above, Poston testified that Loveridge asked her to write
a statement regarding what computer she had used. I credit Poston's
testimony as she appeared to have a vivid recollection of the events
occurring at this meeting.
UPMC 43
tember and October 2012. These emails include recipes, infor-
mation about an international food festival and various jokes.
(GC Exh. 74–78.)
Analysis
The Respondent contends that under the Board’s decision in
Register Guard I, supra, it had a right to discipline of Poston
for her use of its email system because employees do not have a
statutory right to use its email system for Section 7 purposes.
The Respondent further contends that the evidence regarding
the other nonwork-related emails that were sent by employees
and did not result in discipline shows, “at most that there was
imperfect enforcement of the policy, not intentional discrimina-
tion.” Finally, the Respondent contends that because a union
organizer requested Poston to send the email her conduct was
unprotected because the Union’s motive was to generate merit-
less unfair labor practice proceedings. (R. br., at 195.)
In Register Guard I the Board noted that the Wright Line
analysis is not appropriate when an employee is admittedly
disciplined for union or other protected activity. Register
Guard, 351 NLRB, at 1120, citing St. John’s Hospital, 337
NLRB 94, 95 (2001). In the instant case, the final written warn-
ing that Poston received on March 8 clearly indicates that both
the final written warning and her suspension was for sending an
email discussing the reinstatement of Lavelle and Oakes and
their continued support for the Union. Thus, the warning itself
makes it clear that the Respondent disciplined Poston for send-
ing a union related email. Register Guard I indicates “although
there is no Section 7 right to use an employer’s email system,
there is a Section 7 right to be free from discriminatory treat-
ment.” Register Guard I supra, 1120.
In analyzing the final written warning and suspension given
to Poston, I find that her February 28 email was not a solicita-
tion. In Wal-Mart Stores, 340 NLRB 637, 639 (2003), the
Board held: “As defined, solicitation activity prompts an im-
mediate response from the individual or individuals being solic-
ited and therefore presents a greater potential for interference
with employee productivity if the individuals involved were
supposed to be working.” The email sent by Poston did not call
for any immediate action by employees, rather it simply in-
formed them of the rally that was held and the continued sup-
port of the Union by Lavelle and Oakes. In this regard, it is
very similar to the email in Register Guard I that was found not
to be a solicitation because it merely clarified the facts sur-
rounding a union rally held the day before the email. Register
Guard I, 351 NLRB at 1119. As set forth above, the Respond-
ent has permitted a variety of nonwork-related emails including
several that were sent to the “NU ALL” mailing list and thus
reached the same number of individuals as the email sent by
Poston. The only difference appears to be that Poston’s Febru-
ary 28 email was union-related. Thus, the Respondent’s en-
forcement of its email and solicitation policy with respect to
Poston’s February 28, 2013, email discriminated along Section
7 lines. Accordingly, by suspending Poston in issuing her a
final written warning for sending her February 28, 2013 email,
the Respondent violated Section 8 (a)(3) and (1) of the Act.
Register Guard I, 351 NLRB at 1119–1120; California Institute
of Technology Jet Proportion Laboratory, 360 NLRB 504,
516–517.
In making this finding, I do not agree with the Respondent’s
argument that the nonwork-related emails that were introduced
into evidence did not establish disparate treatment with respect
to Poston’s February 28, 2013 email. The dissemination of
three emails hospitalwide, which included a substantial number
of supervisors and managers, establishes that the Respondent
had knowingly tolerated the use of the email system for non-
work related matters in the past. I note, moreover, that there is a
substantial amount of other evidence reflecting that nonwork-
related emails were sent to a substantial number of employees,
but not hospitalwide, with supervisory knowledge.
The Respondent additionally claims that the union related
content of Poston’s February 28 email was not the basis for
discipline because the same email was sent on February 27 by
another employee to a far lesser number of employees, without
disciplined being imposed. It is clear, however, that this email
was sent only to statutory employees and not supervisors and
therefore there is no basis for me to find that the Respondent
had knowledge of this email at the time it imposed discipline on
Poston.
I also find no merit the Respondent’s novel argument that
because Poston sent the email pursuant to the request of a union
organizer, her conduct was unprotected because the Union’s
motive was to generate meritless unfair labor practices. There is
simply no evidence to suggest that the Union’s interest in hav-
ing Poston sent the email was anything other than to inform
employees of the rally welcoming Oakes and Lavalle back to
work after their reinstatement. Merely because the Union re-
quested Poston to send the email does not serve as a basis to
find Poston’s conduct unprotected. It is the conduct itself that
determines whether it is protected or unprotected, regardless of
whether it is done on the employee’s own initiative or at the
request of a union.
Paragraph 16 of the complaint alleges that about February
28, 2013, the Respondent by Jaclyn Loveridge and/or Linda
Haas, violated Section 8(a)(1) by asking Poston to write a
statement about her union activity.
As noted above after sending her email regarding the rein-
statement of Lavelle and Oakes on the morning of February 28,
Poston met with Haas, Barry and Loveridge and Haas informed
Poston that she was suspended pending investigation of the
email that she had sent that morning. Loveridge then asked
Poston to write a statement regarding what computer Poston
had used to send the email. Poston then wrote a brief statement
indicating the location of the computer that she had used to
send the email.
As noted above, I have concluded that the suspension and fi-
nal written warning issued to Poston for sending her February
28 email are unlawful. Prior to meeting with Poston, the Re-
spondent’s IT Department had already determined that the
email had been sent from a computer located in Unit 9D. In its
brief, the Respondent does not assert why it was necessary to
have Poston write a statement regarding this matter but merely
claims that the question was noncoercive. (R. brief at p. 199.) I
conclude that under the circumstances present in this case, re-
quiring Poston to write a statement about which computer she
used to send the email regarding the reinstatement of Oakes and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD44
Lavalle, when the Respondent already knew the answer to that
question, establishes that the question was coercive and violates
Section 8(a)(1) of the Act.
In reaching his conclusion, I have applied the factors I have
noted above in the Board’s decisions in Scheid Electric, In-
tertape Polymer and Rossmore House. In this connection, I find
that there is a history of employer hostility to the union and
protected activity; the information sought by the Respondent
from Poston was information that it already possessed; the
question was asked by Loveridge, a human resources repre-
sentative, who was accompanied by two other supervisors; and
the question was asked in a private office with two security
guards posted outside the door. Notwithstanding the coercive
nature of this interrogation, Poston answered the questions
truthfully, consistent with the information the Respondent al-
ready had obtained from its IT Department. In finding the ques-
tioning of Poston to be unlawful, I specifically rely on the fact
that the Respondent was attempting to elicit information from
Poston that its IT department had already given to them. Thus,
it appears that there was no legitimate investigatory reason to
require Poston to write a statement regarding what computer
she had sent the email from.
The March 20, 2013 Discharge of Ronald Oakes and Related
8(a)(1) Allegations
Paragraph 15 of the complaint alleges that about February
25, 2013, The Respondent, by Denise Touray and/or Jacqlyn
Loveridge in Touray’s office, interrogated employees about
their union membership and activities in violation of Section
8(a)(1).
Oakes began working at Presbyterian Hospital as a trans-
porter in April 2011 and was discharged in July 2012. As noted
above, he was reinstated pursuant to the settlement agreement
in Case 06–CA–081896, that was approved by the Regional
Director on February 7, 2013. On February 15, 2013, Denise
Touray, the Respondent’s director of transportation and linen,
sent a letter to Oakes indicating that the Respondent was offer-
ing him reinstatement to his former position effective Monday,
February 25, 2013. The letter also indicated that any reference
to his discharge for excessive absenteeism would be removed
from his personnel file but that he would be returned to the
third step, the “final written warning” stage of the discipline
policy, because of other violations of the Respondent’s correc-
tive action policy. Oakes returned to work on February 25,
2013. At the end of Oakes’ shift at 3 p.m., the Union staged a
rally in support of the reinstatement of Oakes and Lavalle
across the street from the emergency room entrance to Presby-
terian Hospital that was attended by approximately 200 em-
ployees. Oakes left work, accompanied by employees Finley
Littlejohn and Chaney Lewis to attend the rally. Oakes spoke at
the rally, thanking the employees who had attended for their
support.
Oakes testified that during the 1st week after his reinstate-
ment, he had a meeting with Touray and Loveridge in Touray’s
office. They showed Oakes a copy of the letter that Poston had
sent out by email to employees at the hospital regarding the
rally that was held after his reinstatement. Touray asked Oakes
if he knew about the letter and he responded that he did. Touray
then asked Oakes how he felt about the letter being sent out
with his name on it and he replied that he did not care.
Touray testified that she was asked by Human Resources Di-
rector Richard Hrivnak to meet with Oakes and ask him if he
was aware that the email had been sent out on his behalf and
whether he was comfortable with the email. Pursuant to this
instruction, Touray and human resources consultant Loveridge
met with Oakes on March 4, 2013, in Touray’s office. Touray
admitted asking Oakes the questions that Hrivnak had instruct-
ed her to ask. Touray testified that Oakes responded that he did
not mind that the letter was sent out on his behalf.
On March 4, Touray sent the following email (GC Exh. 32)
to Hrivnak stating, in relevant part:
Jaki and I met with Ron Oakes this morning. I asked Ron if
he was aware of the email that was sent out on his behalf. He
said he helped draft a letter but he was not aware that it was
sent out by email. I showed him the message that was includ-
ed in the email and pointed out that was signed with his name.
I asked him if he requested anyone to send this email on his
behalf and he said did not. When asked if he was comfortable
with someone signing his name for him on an email he did
not send, he said he did not have a problem with this.
I find that Touray’s March 4 email, which is corroborated by
the testimony of both Touray and Oakes, actually sets forth the
conversation between Touray and Oakes on that date.
Applying the factors set forth above in Scheid Electric and
Intertape Polymer Co., supra, I find that the Respondent’s in-
terrogation of Oakes on March 4 violated Section 8(a)(1) of the
Act. In making this finding I rely on the fact that while Oakes
was an open union supporter, he was called into his immediate
supervisor’s office and questioned about his role in an email
sent by another employee involving the reinstatement of Oakes.
There was no legitimate purpose in asking Oakes about his role
in the preparation of the email since Poston had already admit-
ted to sending it. After considering all the circumstances, I find
that Touray’s questioning of Oakes regarding this matter was
coercive.
The March 20, 2013, Termination of Oakes
Facts
Background
After his reinstatement on February 25, 2013, Oakes worked
on the 7a.m.to 3 p.m. shift. His regular supervisor was on vaca-
tion when he reported back to work and he was assigned to
Supervisor Carolina Clark. Clark informed him that Touray had
ordered that he goes through a week of training. Oakes was
assigned to work with transporter Claude Smith for this training
As noted above, on about March 5, Oakes was unlawfully in-
terrogated by Touray and Loveridge regarding the email that
Poston sent to employees regarding the reinstatement of Oakes
and Lavalle.
The Respondent’s transportation and services department in-
cludes approximately 110 individuals including supervisors.
There are approximately 90 transporters that move patients to
designated locations in both Presbyterian and Shadyside hospi-
tals. There are five dispatchers and four supervisors who over-
see the operations of the transport system and report to Tou-
UPMC 45
ray.32 Approximately 30 of the transporters are transport moni-
tor technicians that have been trained to transport patients who
are on heart monitors
Transporters are dispatched to jobs transporting patients by
the Respondent’s Teletracking system which uses software that
allows departments in the hospital to enter a request that pa-
tients be transferred from one location to another. The request
is placed in a “queue” of jobs that are awaiting assignment to
transporters. The Teletracking software finds the closest trans-
porter to the patient and also prioritizes how long that job has
been waiting and where it is coming from in order to determine
how quickly the job gets dispatched to a transporter. All de-
partments that need to request transport, transporters, dispatch-
ers, supervisors, and Touray have access to the Teletracking
system.
A transporter receives assignments through a Spectralink
wireless phone which operates only in the hospital. These
phones are also referred to as “pickle” phones. A pickle phone
is assigned to a transporter each day when a transporter reports
to work. The pickle phone is used by transporters to log into the
Teletracking system. Transporters also log into the Teletracking
system when they arrive at a patient, when they start moving
the patient, and when they deliver the patient to the designated
destination. The transporters also carry pagers which are per-
manently assigned to them. As noted above, when a transporter
is available for an assignment, Teletracking will assess which
transporter is available for a transport assignment and automat-
ically page that transporter. The pager will alert the transporter
that there is a pending job so that the transporter knows to call
in and accept the job. After receiving notification of an availa-
ble assignment through the pager, a transporter will use the
pickle phone to call into the Teletracking system and log with
his or her identification code. The transporter will then hear a
recorded message about the assignment such as the originating
location and destination. The transporter will then use the pick-
le phone to accept the job assignment by entering a code that
indicates the transporter is accepting the job. Another code is
entered if the job is rejected.
After a transporter accepts the job he or she uses the pickle
phone to update the Tele-tracking system about the status of the
job. For example, when a transporter has reached the patient
and the transporters underway, the transporter enters a code
into the system to indicate that the job is “in progress.” When
the patient is delivered to the destination, the transporter will
enter a different code into the system to indicate that the trans-
porter has been completed. The Teletracking system will then
automatically place a transporter into “idle” status and the pro-
cess will begin again, with the transporter awaiting the next
assignment. The fact that a transporter is in “idle” status does
not mean that the employee is not actively working. At times,
transporters are given assignments directly by a supervisor or
dispatcher, for example, collecting wheelchairs, operating an
elevator or, at times, delivering food trays for patients beyond
normal hours. During these periods of such direct assignments
a transporter will be registered as “idle” in the Teletracking

32 The parties agree, and the record establishes, that dispatchers are
not supervisors within the meaning of the Act.
system.
Touray testified that there are two Teletracking records that
she normally reviews regarding the activity of transporters. The
log viewer file records the activity of each employee daily,
including when an employee calls in to check for jobs, when an
employee is dispatched for jobs and when a job is completed.
(R. Exhs. 135, 517.) The pager history is a record of the pages
sent by Teletracking to each employee on a daily basis. Each
employee is identified by a specific pager identification num-
ber. (R. Exhs. 134, 516.) The pager history is routinely written
over by the computer so that the pager history of an employee
on a given day is no longer available after a couple of days.
The dispatcher’s role in the Teletracking system is to moni-
tor a computer screen that shows the status of all jobs that have
been entered into the system as well as the status of all trans-
porters on duty. The dispatchers’ have responsibility to ensure
that the transport system is functioning efficiently. Dispatchers
also answer phone calls from individuals requesting a transport
and from those who have questions about a transport assign-
ment that is already in the system. Normally, a dispatcher does
not directly assign a job to a transporter and does so only when
there is an unusual circumstance.
The Transportation Department maintains a department
handbook. (GC Exh. 9.) This handbook indicates the following
regarding employee breaks: “Employees have one 35 minute
lunch break. This is assigned by the dispatcher.” The handbook
also contains the following procedures:
Transporters must view their pager and respond appropriately
when receiving a page. (GC Exh. 9, p.17.)
Transporters who are idle must call into the system a mini-
mum of once every five minutes to check for pending jobs
even if they are not paged. (GC Exh. 9, p. 18.)
Transporters are permitted to reject a job only when starting
their lunch/break or at the end of their work shift. (GC Exh. 9,
p.18.)
Transporters who log into the Transport Tracking System
within two minutes of their scheduled starting time must ac-
cept jobs from the Transport Tracking system to maximum of
5 minutes before the end of the shift. (GC Exh. 9, p. 19.)
Oakes’ Discharge
Oakes testified that on March 10, near the end of his shift he
arrived back at the transporter office at approximately 2:50 p.m.
When he arrived, he observed some employees getting ready to
swipe at the end of the shift at 3 p.m. Some employees already
had their coats on. According to Oakes, he had completed
transporting a patient and there were no jobs that he had been
assigned in the Respondent’s Teletracking system. Oakes fur-
ther testified that since it was a Sunday, work had been slow
and he decided to return to the office area in order to swipe out
at 3 p.m.
When Oakes returned to the office area, he sat down outside
the dispatcher’s office and began to speak to another employee.
Dispatcher Jayme McGough came out of the office and in a
loud voice told Oakes that he was going to take another job.
Oakes thought that McGough’s assignment was unusual since
other employees were already outside the dispatcher’s office
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD46
waiting to swipe out when he had arrived. Oakes went into the
office of his supervisor, Grinage, and asked him why McGough
was taking a job out of the Teletracking system and assigning it
to him. He also complained to Grinnage about the tone in
McGough’s voice when she made the assignment. Grinage told
Oakes “we’re having problems with her.” Greenwich then
asked Oakes to accept a transport at Presbyterian Hospital
which Oakes completed and then swiped out.
When Oakes returned to work on March 13, Grinage gave
him a piece of paper (GC Exh. 70.) that contained the following
information:
(1) Idle from 1:41 pm-2:03pm. Received 7 pages. Did not re-
spond to pages, did not call into Teletracking every 5
minutes to check for jobs.
(2) Idle from 2:26 pm-2:50 p.m. Received 5 pages and 3 calls
from dispatcher. Did not respond to pages, did not answer the
calls from dispatcher, and did not call into Teletracking every
5 minutes to check for jobs.
When Grinage gave Oakes the information, he told him that
it had come from Touray and was from the Teletracking sys-
tem. Oakes told Grinage “This is going to get blown out of
proportion.” Grinage responded by telling Oakes not to worry
about it. Grinage also told Oakes to write out a statement re-
garding the times mentioned on the paper. 33Oakes then wrote
the following statement (GC Exh. 35) and gave it to Grinage:
Calls on Sunday 3/10-2:26 patient Mrs. Smith 10 E/W-From
Presby to 10 E/W- any time in between did call in “no jobs.”
Dispatcher never called me.
At the trial, Oakes testified did not recall receiving any direct
phone calls from McGough on his pickle phone on March 10.
Oakes specifically denied hanging up on McGough on March
10 regarding a job assignment. In addition, Oakes did not recall
being paged by the Teletracking system on that date and failing
to respond to the pages.
On March 20, Oakes was working when he received a call
from Grinage to report to Touray’s office. When he arrived at
Touray’s office, Touray and Grinage were present. Touray told
him that he was terminated and handed him a letter dated
March 20, 2013, (GC Exh. 33.) which states in relevant part:
On March 10, 2013 you took two unauthorized breaks while
working. Your first unauthorized break occurred from 1:41
pm until 2:03 pm. You were paged seven (7) times and did
not respond to these pages. Your second unauthorized break
occurred from 2:26 pm until 2:50 pm. You were paged five
(5) times and did not respond to these pages. You were called
three (3) times by the dispatcher and did not answer your
phone. You also did not call into Tele-tracking every five (5)
minutes as is required for the Transport Tracking Procedures.
These are considered unauthorized breaks.
Your corrective action history is as follows:
1/23/2012 Final Written Warning in Lieu of a 3-Day Suspen-
sion Unauthorized Break

33 Oakes testimony on this point is uncontradicted as Grinage did not
testify at the hearing.
11/20/2011 Written Warning Unauthorized Absence
As a result of your actions, your employment with UPMC
Presbyterian Shadyside is terminated effective immediately.
Jayme McGough was called as a witness by the Respondent.
McGough testified that she has been a dispatcher in the trans-
portation office for approximately 2 years. McGough further
testified that on March 11, she sent an email to Touray because
Oakes’ had been on an unauthorized break on March 10.
McGough also testified that she was not aware that Oakes was
a union supporter when she sent the email. McGough’s email to
Touray (GC Exh. 34.) states, in relevant part:
Sunday 3/10 I had a small incident with Ron. He was being
paged multiple times by the system, I paged him and I called
him 3 times. The first time I called he hung up on me, the oth-
er two he ignored. After I couldn’t reach him he came into the
office and sat down at a table so I called him into transport
tracking myself since he clearly wasn’t doing anything. I let
him know that I called him in and explained to him that he
was paged by the system, myself, and called more than once
so I assigned him to a job since he wasn’t calling in. He said
was not going to do it because he didn’t pick that job up and I
let him know that I picked up the job for him. He still was
saying he wasn’t going to do it so he went over to Darnell. He
did end up doing the job I called him in for but I wasn’t sure if
I should still write you an email about it or not with the whole
union situation, or if how it was handled was fine.
McGough did not testify regarding the incidents referred to
in her March 11 email.
Touray testified that she became aware that Oakes took an
unauthorized break from the email that McGough sent her on
March 11. After Touray received this email, she retrieved data
from the Teletracking system (R. Exh. 135.) to determine if
Oakes had been idle when McGough claimed that he was.
When Touray reviewed the Teletracking records she found a
period from 2:26 p.m. to 2:50 p.m. when Oakes was not in-
volved in a transport and was therefore idle. While Touray was
reviewing this document she also noticed that Oakes was also
idle from 1:41 p.m. to 2:03 p.m. Touray also reviewed the pag-
er history records which indicated the times when Oakes was
paged on March 10. These records reveal that 7 pages were sent
to Oakes’ pager number, 2750, between 1:41 p.m.and 2:01 p.m.
and that 5 pages were sent to Oakes pager between 2:33 p.m.
and 2:47 p.m. (R. Exh. 134A and B.)
Pursuant to the Touray’s request, on March 12, Grinage sent
the following email to her (R. Exh. 133.):
On Sunday 3/10/13 Ron Oaks (sic) came to me asking what’s
wrong with my dispatcher. He was speaking of Jayme
McGough, and I asked him what did he mean. He explained
that he came in the office and Jayme told him that he was on a
transport job but he actually didn’t call in and pick one up. He
said Jayme called into the tracking system with his number
and assigned him a job. I spoke with Jayme and she said that
she tried to call and page Ron multiple times with no esponse.
She wanted him to take a job before ending his shift to which
he still had 15 minutes left on at the time. I told him that as a
UPMC 47
dispatcher she is able to call in so he can be assigned jobs and
he will have to take the job he has been assigned to. He still
had 10 minutes left on his shift at that time and he went and
did his job.
On March 12, Touray sent the following email to Loveridge
and Hrivnak (R. Exh. 512.):
On Sunday, 3/10/2013, Ron Oakes took 2 unauthorized
breaks. The first was from 13: 41-14: 03, the second was from
14:26-14:50. I was notified of the 14:26 break by an email I
received on 3/11/2013 from dispatcher Jayme McGough.
While investigating this unauthorized break, I uncovered the
13:41 unauthorized break as well.
13:41-14:03-Paged 7 times from 13:41-14:03. Did not re-
spond to pages. Did not call in to check for jobs every 5
minutes as is expected of all transporters. Was not dispatched
on job until 14:03.
14:26-14:50-Paged 5 times, called 3 times by dispatcher
Jayme McGough. Did not answer calls, did not respond to
pages. When he came into transport break area during this un-
authorized idle time, Jayme told him he was expected to take
jobs and respond to pages. She then informed him that she
would be calling into Teletracking on his behalf and dispatch-
ing him to his next job assignment since he would not call in
himself. He then went to supervisor Darnell Grinage to com-
plain that this step was taken by the dispatcher. Darnell ex-
plained to Ron that he is expected to work until the end of his
shift and that Jayme (and all dispatchers) have the ability to
dispatch transporters to jobs themselves if transporters fail to
call in to Teletracking to accept jobs. Darnell informed Brown
that he would need to complete the job he was dispatched to
by Jayme. Ron completed his job at 15:09 and logged out of
Teletracking at 15:09.
Attached are supporting documents. The first document is a
history of Ron’s activity on 3/10/13 in Teletracking. The next
two documents are a history of pages Ron received on his
pager on 3/10/13. His pager number is 2750. The last two
documents are statements from dispatcher Jayme McGough
and supervisor Darnell Grinage.
Ron is aware that he must accept jobs until 5 minutes before
the end of his shift as he has received corrective action in the
past for violating this policy on 1/23/12 for rejecting a job at
2:48 pm on 1/5/2012. His shift on this day ended at 3:00 pm.
He is also aware of this policy as it was included in the
Transport Department Handbook that was reviewed with him
and provided to him on his first day back to work after his re-
instatement, 2/25/2013.
Ron Oakes is not here today, but is scheduled to work tomor-
row, 3/12/13 from 7a-3p. Please let me know if we should ob-
tain a statement regarding these two unauthorized breaks.
Touray testified that she sent her March 12 email to human
resources because any time there is the potential that discipline
may be issued, she discusses it with human resources before
issuing it. After the human resources department advised Tou-
ray to take a statement from Oakes, she had Grinage obtain the
statement from Oakes that is noted above. Loveridge and Tou-
ray then discussed Oakes and agreed that Oakes had taken an
unauthorized break on March 10 and should be disciplined.
Thereafter, the human resources department prepared a “Cor-
rective Action/discipline Authorization Form.” This document
noted that on November 20, 2011, Oakes had received a written
warning for an unauthorized absence and on January 23, 2012
had received the final written warning in lieu of a three day
suspension for taking an unauthorized break. Under the caption
“Description of Specific Event” the document indicated:
On March 10, 2013, Ron took two unauthorized breaks while
working. His first unauthorized break occurred from 1:41 pm
until 2:03 pm. Ron was paged seven (7) times and did not re-
spond to these pages. Ron second unauthorized break oc-
curred rom to 2:26 pm until 2:50 pm. He was paged five (5)
times and did not respond to these pages is well. Ron was
called three times by the dispatcher and did not answer his
phone. These are considered unauthorized breaks.
In addition, Ron did not call into Teletracking every five
minutes during this time as is expected of all Transporters for
the Transport Tracking Procedures.
This document was signed by the Loveridge, Touray, human
resources manager Kathy Grills and Touray’s manager, Laurie
Rack.
Touray testified that after the requisite signatures were ob-
tained on this document a termination letter was prepared be-
cause Oakes was already at the final written warning stage of
the corrective action policy. Touray and Grinage met with Oak-
es and presented him with the termination letter on March 20.
With regard to Oakes conduct on March 10, 2013, the Re-
spondent’s Teletracking record (R. Exh. 135) shows that Oakes
completed a job at 14:2634 and immediately thereafter called in
to check for jobs but did not receive an assignment. Between
2:33 p.m. and 2:48 p.m. Oakes received 5 pages but did not call
into Teletracking during that period. (R. Exh.134A and B.) The
Teletracking record also shows that at 13:41 Oakes called in to
Teletracking to check for a job (R. Exh. 135). Between 1:41
p.m. and 1:59 p.m. Oakes was sent 7 pages. (R. Exh. 134 A-B).
Oakes called in to accept an assignment at 2:03 p.m. (R. Exh.
135).
Oakes testified that he did not recall failing to respond to
pages from the Teletracking system on March 10. However,
with regard to the time period close to the end of Oakes’ shift at
3 p.m., which that was the subject of McGough’s email to Tou-
ray, the objective pager history records shows that Oakes re-
ceived 5 pages between 2:33 p.m. and 2:50 p.m. before he re-
sponded. The investigation of Oakes’ Teletracking records and
pager history that Touray undertook on her own initiative estab-
lished that Oakes received 7 pages between 1:41 p.m. and 1:58
p.m. before he accepted an assignment at 2:03 p.m.
As noted above, McGough testified only that she sent her
email March 11 to Touray and that she was not aware that Oak-
es was a union supporter at the time that she sent her email.
McGough did not testify regarding her alleged attempts to

34 This document records time in military time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD48
reach Oakes by phone on March 10 or any interaction that she
had with him when he returned to the dispatch office new the
end of his shift.
I do not find McGough to be a credible witness and I do not
credit her testimony that she did not know Oakes was a union
supporter when she sent her email to Touray. The email indi-
cates that while Oakes ended up performing the assignment in
question that he had not originally accepted, McGough “was
not sure if I should write you or email about it or not with the
whole union situation.” The only possible explanation regard-
ing the reference to “the whole union situation” is that
McGough was aware that Oakes was a union supporter when
she sent the email to Touray.
Oakes also testified that he did not recall receiving any direct
phone calls from McGough on March 10. Since McGough did
not testify at the trial regarding any attempts that she made to
reach Oakes by phone on March 10, I am unwilling to rely on
the claim in her March 11 email that she attempted to reach him
three times by phone as I find such hearsay evidence is insuffi-
cient to establish that as a fact. Accordingly, I credit Oakes
testimony that he did not receive any direct phone calls from
McGough, and that he did not hang up on one of her calls
While the objective evidence establishes that Oakes failed to
respond to pages during the time periods noted above on March
10, the uncontradicted testimony of General Counsel witness
Gregory Bodeck is instructive on this point. Bodeck worked as
both a transporter and a dispatcher at Presbyterian hospital from
March 2010 until November 1, 2013. According to Bodeck,
transporters would often wait for a second or third page before
accessing the Teletracking system. Bodeck indicated that an
acceptable reason for such conduct would be if the transporter
was in the restroom. Bodeck also testified, however, that trans-
porters would, at times, not respond to a page immediately
because they were waiting to see whether the assignment would
be picked up by another employee. Bodeck credibly testified
that he was never instructed that he had to call into the Tele-
tracking system every 5 minutes when he had his pager availa-
ble and that his practice was not to do so. Bodeck also testified
that when he had left his pager home he was instructed that he
would have to call in every 5 minutes to ensure that he would
receive a job since he was not able to receive pages. In this
connection, Touray testified that the Respondent did not issue
discipline to transporters solely on the basis of violating the 5-
minute rule and that it was used only in conjunction with “other
behavior.” (Tr. 1505.)
Analysis
In applying the Wright Line analysis to the allegation that
Oakes was discharged in violation of Section 8(a)(4),(3) and (1)
of the Act, it is clear that Oakes was an active supporter of the
Union and that he had participated in proceedings before the
Board prior to his March 20, 2014 termination.35 Oakes was
named in a prior unfair labor practice charge and was named as
a discriminatee in the complaint that issued against the Re-

35 The Board applies Wright Line in deciding cases involving allega-
tions of discrimination arising under Sec. 8(a)(4). Grand Rapids Die
Casting Corp., 279 NLRB 662, 668 fn. 24 (1986).
spondent in the previous Case 06–CA–081896 et al. Oakes was
reinstated on February 25, 2013, pursuant to a settlement
agreement entered into between the Respondent, the Union and
the General Counsel in that case. On February 25, Oakes at-
tended and spoke at the Union rally held across the street from
Presbyterian Hospital celebrating his reinstatement along with
that of employee Frank Lavelle. During his interrogation by
Touray on March 4, Oakes admitted that he had been involved
in drafting the email that Poston sent to employees regarding
his reinstatement and that it was acceptable to him that his
name was used in the email.
Touray’s March 4 interrogation of Oakes establishes that the
Respondent knew of his continuing support for the Union after
his reinstatement. In addition, the Respondent does not deny
having knowledge of Oakes’ support for the Union and his
involvement with NLRB processes prior to his March 20, 2014
termination.
I also find that the Respondent harbored animus toward the
union activities of its non-clinical support employees primarily
based on the unfair labor practices that I find it committed here-
in. With regard to the evidence of motivation regarding the
8(a)(4) allegation, I note that Touray admitted that she did not
agree with the decision to reinstate Oakes pursuant to the set-
tlement agreement, as she believed his first discharge was ap-
propriate. I also find that the timing of Oakes’ discharge, com-
ing shortly after his reinstatement pursuant to the NLRB set-
tlement and after Oakes admitted to Touray his continued sup-
port for the Union is also persuasive evidence that the Re-
spondent’s motive in discharging Oakes for the second time
was his union activity and his participation in NLRB proceed-
ings. DHL Express, Inc., 360 NLRB 730, 736 (2014); Toll
Mfg. Co., 341 NLRB 832, 833 (2004). On the basis of the fore-
going, I find that the General Counsel has established a prima
facie case under Wright Line, and the burden shifts to the Re-
spondent to establish it would have taken the same action
against Oakes in the absence of his union activities and in-
volvement in proceedings before the Board.
Turning to the Respondent’s defense under Wright Line, the
Respondent contends that Oakes took two unauthorized breaks
on March 10, 2013, and that such conduct constituted a legiti-
mate basis for disciplinary action. The Respondent further con-
tends that since Oakes was at the last step of progressive disci-
plinary policy such conduct warranted termination. The Re-
spondent further contends it has disciplined other employees
for conduct similar to that of Oakes.
As noted above, the Respondent contends that Oakes was at
the last step of its progressive disciplinary policy before engag-
ing in the alleged conduct of taking an unauthorized break on
March 10, 2013. In fact, Touray specifically testified that Oak-
es was terminated for his conduct on March 10 because he was
already at the final written warning stage of the Respondent’s
corrective action policy because of his prior conduct. (Tr. 1543-
1544).36 In this connection, the discharge notice that Oakes

36 The Respondents corrective action policy (GC Exh. 161, pp. 2–3)
specifically provides for the following steps: verbal warning; written
warning; suspension/final written warning; and discharge/suspension
pending investigation. The suspension/final written warning stage
UPMC 49
received on March 20, 2013 (GC Exh. 33) specifically refers to
him as receiving a “Final Written Warning in Lieu of a 3-Day
Suspension” on January 23, 2012, for taking an “unauthorized
break.”
In fact, however, the warning that Oakes was given on Janu-
ary 23, 2012, clearly reflects on its face that it is a “Written
Warning in Lieu of a Three (3) Day Suspension.” for his refusal
to do a transport assignment at 2:48 p.m. prior to the end of the
shift at 3 p.m. (R. Exh. 119). The “Corrective action/Discipline
Authorization Form” that preceded this warning also clearly
states on its face that it is for a “Written Warning in lieu of a
Three (3)-Day Suspension” (GC Exh. 207). The corrective
action and discipline authorization form was signed by a human
resources consultant, a human resources manager, a department
head and the vice president on dates from January 17, 2012, to
January 20, 2012. There is some ambiguity created by the cor-
rective action and discipline authorization form, however, be-
cause in the second page of that document the following state-
ment appears: “Due to his actions and previous disciplines,
Ronald is receiving a FWW in lieu of a 3 day Suspension.”
There is no record evidence explaining the apparent discrepan-
cy between the second page of the corrective action and author-
ization form, which appears from its reference to a “FWW” to
mean a final written warning and the first signed page which
reflects only a written warning. Given the fact that the correc-
tive action and discipline authorization form reflecting that
Oakes was being given a final warning was reviewed and
signed by four different managers above the supervisory level, I
find that the Respondent intended to give Oakes only a written
warning. It is eminently clear that the actual warning given to
Oakes and signed by a management official on January 23,
2012, reflects that it is a written warning and not a final written
warning (R. Exh. 119.)
Thus, it appears from the Respondent’s own documents that
Oakes was not, in fact, at the final written warning stage of its
progressive disciplinary policy when he was discharged on
March 20, 2013. The Respondent’s action in discharging Oakes
when, in fact, he was not at the final written warning stage of
the progressive disciplinary policy supports an inference of
unlawful motivation as it is a deviation from its past practice.
Embassy Vacation Resorts, 340 NLRB 846, 848 (2003).
As noted above, based only on McGough’s email and with-
out any report of any alleged misconduct on Oakes’s behalf by
Supervisor Grinage, Touray reviewed in detail the Respond-
ent’s Teletracking and pager history records for Oakes on
March 10. Touray did not, however, review the Teletracking or
pager history records of other transporters on duty on March 10
in order to compare Oakes activity to other transporters. The
General Counsel and the Union argue that Touray did not con-
duct a meaningful investigation prior to concluding that Oakes
had taken an unauthorized break that warranted discipline. I
note that the Board has found that the failure to conduct a
meaningful investigation has been found to be an important
factor in determining whether there is discriminatory intent. K

provides that suspension without pay of up to 5 days or a final written
warning is used to address continuing problems where previous action
has been ineffective.
& M Electronics, Inc., 283 NLRB 279, 291 fn. 45 (1987). In
support of their contention, the General Counsel and the Union
rely on a log viewer Teletracking record for March 10, 2013,
that is kept in military time. (GC Exh. 205) This document
indicates the activity of all of the transporters on that date, us-
ing initials to identify them. For example, Ronald Oakes is
identified as “ROAK.” General Counsel Exhibit 205 indicates
the following activity of other transporters on March 10, 2013:
Transporter CWER checked into the system at 13:17 and
was not dispatched until 13:56.CWER also checked in at 14: 32
and did not check him again until 14:53 (GC Exh. 205, pp.14–
18). Transporter ESTA checked into the system at 10:12 and
did not check in again until 10:45 and was not dispatched until
10:59 (GC Exh. 205, pp. 7–8). TEDM checked in at 14:19 and
was not dispatched until 14:36 (GC Exh. 205 pp. 17–18).
NPAS checked in at 2:03 and was not dispatched until 14:41
(GC Exh. 205 pp. 16–17). ADRE logged out of the system at
12:23 and did not log in again until 14:18 and then immediately
logged out again (GC Exh. 205, pp. 12, 17). ADRE next
checked in at 14:54 (GC Exh. 205 p. 18). Finally, MMCC com-
pleted an assignment at 13: 58 and rejected jobs at 13:58, 14:10
and 14:17 before being dispatched at 14:18 to another assign-
ment (GC Exh. 205 pp. 16–17).
The fact that these employees were not shown to have been
actively working under the Teletracking system does not neces-
sarily mean they were not performing work as the Tele-tracking
system does not account for certain tasks, but the lack of activi-
ty during these periods would appear to have required investi-
gation, in order to determine if Oakes activity on that day was
out of the ordinary.
As noted above, the pager history of employees is automati-
cally written over the computer in a matter of days. The “screen
shot” of Oakes’ pager history for March 10 that Touray took as
part of her investigation does show that the transporter assigned
to pager 1699 received nine pages between 12:58 p.m. and 1:29
p.m., four of which occurred between 12:58 p.m. and 1:08 p.m.
In addition, the transporter assigned pager 2513 received seven
pages between 2:06 p.m. and 2:40 p.m. (R. Exh. 134.) Again,
there was no investigation as to why these employees were sent
numerous pages without responding.
The record does contain evidence establishing that the Re-
spondent has disciplined other transporters for taking an unau-
thorized break. In this regard, a corrective action/disciplinary
authorization form signed by Respondent managers on April 25
and April 26, 2011, reflects that Mariah Jackson was given a
written warning in lieu of a 5-day suspension on April 26,
2011, for taking an unauthorized break. Prior to this incident,
Jackson was already at the final written warning stage of the
Respondent’s progressive disciplinary procedure, as she had
been given a final written warning on December 20, 2010 for
transferring a patient to a wrong location. Jackson’s corrective
action/discipline authorization form indicates that on April 13,
2011, she finished a patient transport assignment at 9:31 p.m.
and became idle. She did not call back into the transport track-
ing system to check for pending assignments until 10:10 p.m.
During this period there were several attempts to contact her on
both her phone and pager to inform her that there were patients
waiting to be transferred. (R. Exh, 525, pp. 8–9.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD50
On August 16, 2011, Joshua Young was given a written
warning for taking an unauthorized break on August 2, 2011,
and incorrectly transporting a patient on August 3, 2011. With
regard to his unauthorized break, Young was dispatched to
assist a coworker in transporting a deceased patient to the
morgue at 1:08 p.m. At approximately 1:20 p.m. his supervisor
noticed that it was taking longer than normal to complete the
assignment and both Young and his coworker were paged.
After the supervisor did not receive a call back from either
employee, he proceeded to the morgue and noticed that both
transport stretchers were empty and sitting outside of the
morgue. After checking with the dispatcher to see if the as-
signment had been completed and being informed that it had
not, the supervisor returned to the morgue area. At that point he
found Young talking with his coworker while Young’s assign-
ment was still showing “ in progress” in the Teletracking sys-
tem. For both the unauthorized break and the improper
transport of a patient, Young was given one written warning.
(R. Exh. 525, pp. 10–11.)
On November 14, 2012, Olivia Horton was given a final
written warning in her orientation period (CP Exh. 18). The
warning indicates “On 11/13/12, at 2:47 pm, you were instruct-
ed by your dispatcher to call into Teletracking and accept a job
assignment. You refused to accept a job assignment and used
inappropriate and unprofessional language towards the dis-
patchers. This does not reflect the values of dignity and respect
expected by all UPMC employees. Additionally, all transport-
ers are expected to except job assignments until 5 minutes be-
fore the end of their shift.”
On January 3, 2013, Bridgette Fields was given a written
warning taking an unauthorized break on December 16, 2012.
Fields was idle for 139.59 minutes and during this period of
time was paged six times, rejected the work she was assigned in
Teletracking and refused to complete the job assigned to her by
the dispatcher. (R. Exh. 525, p. 3.)
On January 7, 2013, Jayme McGough was given a written
warning in lieu of a 3-day suspension for an unauthorized
break. McGough had previously been given a written warning
under the Respondent’s progressive disciplinary policy. Her
warning indicated that on December 19, 2012, McGough was
idle for 82 minutes. During this time she had been paged twice
by tele-tracking and did not respond. While McGough claimed
that she was taking jobs outside of the system and that a
coworker could affirm that, the statement of the coworker indi-
cated he did not recall the jobs that McGough mentioned being
completed with him. (R. Exh. 528.)
On January 10, 2013, India Johnson was discharged for an
unauthorized break during her orientation period. Johnson had
previously received a final written warning during her orienta-
tion period. The January 10, 2013 warning reflects that on De-
cember 16, 2012, Johnson was idle for 78.95 minutes. During
this period she was paged three times and was assigned a job
when she called into the Teletracking system but rejected the
job. Due to her actions, patients were waiting for transport for
an extended period of time. Johnson admitted not accepting the
last call because she would have been late for her bus if she had
accepted it. (R. Exh. 525, pp. 1–2.)
On January 16, 2013, Phillip Johnson was given a final writ-
ten warning for taking an unauthorized break. Prior to this inci-
dent, Johnson was at the written warning stage of the Respond-
ent’s progressive disciplinary system. Johnson’s warning indi-
cates that on January 8 he was idle for 51 minutes. During this
period of time he was paged 12 times but did not respond. (R.
Exh. 527.)
On March 14, 2013, Olivia Horton was given a final written
warning for taking an unauthorized break. Horton had previous-
ly received the final written warning during her orientation
period. Horton’s warning indicates that on March 6, 2013, she
was at lunch from 9:15 p.m. until 10:45 p.m, and that her lunch
should have concluded at 9:50 p.m. During this period, Horton
was paged multiple times by the dispatcher but failed to re-
spond and did not request permission to extend her lunch by
approximately 55 minutes. Horton admitted that she extended
her lunch but claimed that it was due to her losing her debit
card and going to look for it (R. Exh. 525, pp. 5–6.)
The above noted warnings establish the Respondent’s disci-
plinary record regarding unauthorized breaks before it dis-
charged Oakes for an unauthorized break on March 20, 2013.
The Respondent also introduced evidence regarding employees
disciplined for taking unauthorized breaks after March 20,
2013. As I noted in assessing whether the warning given to
Jones was unlawful, such evidence, while relevant, is entitled to
less weight in my opinion.
The evidence of discipline administered to employees for
taking an unauthorized break after Oakes’ March 20, 2013
discharge consists of the following:
On April 19, 2013, Donald Luffley was given a written
warning for taking an unauthorized break. Luffley’s warning
indicates that on April 12, 2013, he was dispatched on a call
that took 31 minutes. The warning indicates that taking 31
minutes to travel between the two units involved “is excessive
and is considered an unauthorized break.” (R. Exh. 525, p. 7.)
On October 18, 2013, Ashley McGhee was discharged for
taking an unauthorized break. McGee had previously received a
final written warning during her orientation period on July 11,
2013. McGhee’s October 18, 2013 warning indicates that on
September 21, 2013, she was idle in Teletracking from 1:49
p.m. until 2:51 p.m. and that this was considered an unauthor-
ized break. (R. Exh. 525, p. 4.)
Finally, Barry Johnson received a verbal warning on Decem-
ber 20, 2013. Johnson’s warning indicates: “On December 17,
2013 you completed the transport assignment at 7:25 PM. You
then remained idle until your assigned lunch break at 9:04 PM-
a total of 1 hour and 35 minutes. During this one hour and 39
minutes period, you were paged 15 times to call into teletrack-
ing and accept a job assignment. You did not respond to these
pages. You also did not call in to check for jobs assignments
every 5 minutes. All transporters are expected to immediately
respond to pages in to check Teletracking for job assignments
every 5 minutes. This is considered an unauthorized break.”
Johnson received a verbal warning because he had no prior
discipline. (R. Exh. 525, p. 14.)
In assessing the Respondent’s defense, I note that in order to
meet the Wright Line burden of establishing that it would have
taken the same action against Oakes in the absence of his union
activity, the Respondent must establish that it has consistently
UPMC 51
and evenly applied its disciplinary rules. Septix Waste, Inc., 346
NLRB 494, 495–496 (2006). In this regard, as I have previous-
ly noted, an employer simply cannot present a legitimate reason
for its action but must prove by a preponderance of the evi-
dence that it would have taken the same action in the absence
of the protected activity. W.F. Bolin, Co., supra. While the Re-
spondent has produced evidence that it has disciplined employ-
ees for taking unauthorized breaks, I must consider this evi-
dence in the context of the Respondent mischaracterizing the
correct status of Oakes’ position in the Respondents progres-
sive disciplinary system when it discharged him on March 20,
2013, for allegedly taking an unauthorized break. As I have
noted above, prior to March 20, 2013, Oakes had received a
written warning but had not received a final written warning. I
also must consider the evidence set forth above establishing
that Touray focused only on the conduct of Oakes on March 10,
2013, without regard to the manner in which other employees
were effectuating their transporter duties on that day.
In assessing the Respondent’s evidence regarding other em-
ployees disciplined for taking an unauthorized break, I note that
the only employee discharged for such an offense prior to Oak-
es was India Johnson. As noted above, this occurred during her
orientation period after she had received a final written warn-
ing. In addition, Johnson had been idle for approximately 80
minutes.
The other employee discharged for taking an unauthorized
break was Ashley McGhee. In the first instance, she was dis-
charged on October 18, 2013, after Oakes was discharged and
therefore this evidence is entitled to less weight. While I cannot
determine from her termination letter whether she was still in
her orientation period when she was discharged, it is clear that
McGhee did receive a final written warning during her orienta-
tion period on July 11, 2013. I also note that her unauthorized
break lasted over an hour.
Jackson, Fields, McGough, India Johnson, Philip Johnson,
Horton, and Barry Johnson had all been in in “idle” status for
longer periods than Oakes. The Respondent’s investigation
clearly established that Young and McGough were not engaged
in their duties while India Johnson and Horton admitted that
they had not been working during the period that was consid-
ered an unauthorized break. Fields, India Johnson, Horton, and
Luffley had either affirmatively rejected or refused work during
the period that they were considered “idle.” Young, Fields,
McGough, and Philip Johnson had all caused delays in patient
care.
I find particularly important that Jackson was given a second
final written warning for taking an unauthorized break when
she was already at the final written warning stage of the Re-
spondent’s progressive disciplinary procedure. McGough was
given a second written warning for taking an unauthorized
break when she was already at the written warning stage of the
disciplinary procedure. Horton was also given a second final
written warning for taking an unauthorized break after she had
previously received a final written warning. All these employ-
ees could have received greater discipline under the Respond-
ents progressive disciplinary policy.
Oakes, however, was discharged for his alleged unauthorized
break when in actuality he was at the written warning stage of
the progressive disciplinary policy. There is no evidence of
another employee who was beyond the orientation period, who
was at the written warning level of discipline, but was dis-
charged for an unauthorized break rather than receiving a final
written warning. I also note that it was not affirmatively estab-
lished that Oakes was not actively working during the period of
his alleged unauthorized break and he did not refuse or reject
work. Finally, there is no evidence to show that he caused any
delay in patient care on March 10, 2013.
After considering all of the circumstances, I conclude that
the Respondent has not presented sufficient evidence to estab-
lish that it has consistently and evenly applied its unauthorized
break policy to Oakes as it is required to do so under Septix
Waste, supra. I therefore find that the Respondent has not pro-
duced sufficient evidence under Wright Line that it would have
discharged Oakes for his conduct on March 10, 2013, even if he
had not engaged in union activity or testified before the Board.
Accordingly, I find that the General Counsel has established by
a preponderance of the evidence that Oakes’ discharge violates
Section 8(a)(4), (3), and (1) of the Act.
The March 9, 2013 Discharge of Finley Littlejohn
The complaint alleges that Littlejohn was discharged in vio-
lation of Section 8(a)(3) and (1) of the Act.
Facts
Littlejohn began working for the Respondent as a transporter
on April 22, 2012. After approximately 6 months Littlejohn
became certified as a monitor technician. Littlejohn worked on
the 3 p.m. to 11 p.m. shift and his supervisor was Hank Rankin.
According to the credited testimony of Fishbein, Littlejohn was
a member of the committee of employees who were supporting
the Union’s organizing campaign.
As noted above, Littlejohn left Presbyterian Hospital on the
afternoon of February 25, 2013, together with Oakes and
Chaney Lewis to attend the rally the Union had scheduled
across the street from the Presbyterian Hospital emergency
room. Littlejohn was wearing a transportation department uni-
form and his ID badge. (GC Exh. 198.) Several of the Re-
spondent’s security guards, including Donald Charley, the Re-
spondent’s vice president of parking and security, were stand-
ing outside the emergency room entrance to the hospital as the
three employees exited the building and walked across the
street to attend the union rally. The Respondent’s security per-
sonnel engaged in surveillance of the rally and reported on it to
certain Respondent administrators. In this connection, an email
sent by a security officer to the Respondent’s security admin-
istration on February 25, 2013, at 2:45 p.m., indicated that Un-
ion was holding a rally for the employees that had been dis-
charged. The security officer reported that the employees were
at that time walking to Presbyterian Hospital and further report-
ed “Them being there is a disruption.” On February 25 at 4:38
p.m., Charley sent an email to several of the Respondent’s ad-
ministrators, including Hrivnak and Goodman in human re-
sources, that the rally had been “orderly but loud” and an ended
at approximately 3:15 p.m.. (GC Exh. 164.) These emails did
not contain the names of any employees who attended the rally.
The Respondent’s Teletracking record establishes that Lit-
tlejohn began work on February 22, 2013 at 15:02 (3:02 p.m.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD52
(R. Exh. 517.) Littlejohn testified that he had finished transport-
ing a patient to the Montefiore building at approximately 10:40
p.m. After Littlejohn had delivered the patient to the designated
location, the Teletracking record establishes that Littlejohn
logged in to indicate that he had completed that assignment at
22:41:21. The Teletracking record also establishes that Lit-
tlejohn rejected an assignment at 22:41:39. (R. Exh. 517.) Lit-
tlejohn testified that immediately after completing his previous
assignment he had a need to use a stall in a restroom and that he
entered the restroom at approximately 10:45 p.m. Littlejohn
experienced some difficulty in the restroom and it took him
some time to eliminate the waste from his system. During the
period of time that he was in the restroom stall, the Teletrack-
ing system paged him at 10:47p.m., 10:50 p.m., 10:57 p.m., and
11 p.m. Littlejohn did not immediately answer the pages be-
cause he felt it was “disgusting and unsanitary to answer a page
and call on the pickle phone” while he was in the restroom stall.
Littlejohn testified that after washing his hands, but while still
in the restroom, he attempted to call into the Teletracking sys-
tem but the battery fell out of his pickle phone. (Tr. 1039–
1040.) After Littlejohn placed the battery back into the phone,
he received a call from dispatcher Jason Spirk, who asked Lit-
tlejohn “what was going on.”37 Littlejohn replied that he had
been using the restroom. Spirk told Littlejohn there was a job in
the system and asked Littlejohn if he could handle it. Littlejohn
accepted the assignment, which involved the transport of an
emergency room patient to the Montefiore building.38 The as-
signment took approximately 20 minutes to complete because
after Littlejohn arrived at the emergency room and attached a
heart monitor to the patient he had to wait for the doctors and
nurses to finish their notes and release the patient to be trans-
ported.
I credit the testimony of Littlejohn that he was in the re-
stroom from approximately 10:45 p.m until approximately
11:10 p.m. His testimony in this regard was detailed and plau-
sible and entirely uncontradicted. I find, however, based on the
objective Teletracking report, that he rejected the assignment to
transport a patient from the PACU Center at 22:41:39 (10:41:39
p.m.). While Littlejohn may have had cause to reject the as-
signment at that time given the fact that he was about to enter
the restroom, he did not testify that this was the reason. In fact,
he did not testify at all regarding the Teletracking record estab-
lishing the fact that he called in to reject the assignment at
22:41:39. I find that the Teletracking system’s record that this
assignment was rejected at 22:41:39 did not occur as a result of
the batteries following out of Littlejohn’s pickle phone. Lit-
tlejohn’s testimony clearly establishes that the batteries fell out
of his phone while he was in the restroom and that he entered
the restroom at approximately 10:45 p.m. He did not testify that
the batteries fell out of the pickle phone in the 17 seconds that
elapsed between his entry into the Teletracking system that he

37 The record establishes that the batteries frequently fall out of the
pickle phones but can be reinserted in a matter of seconds.
38 Littlejohn testified he did not recall logging out of the Teletrack-
ing system that evening. The tele-tracking record establishes, however,
that he logged out at 23:02:22. (11:02 p.m.) This fact clearly establishes
that at 11:02 p.m., Littlejohn's pickle phone was in operation.
had completed his previous assignment and the assignment to
transport a patient from the PACU.
After Littlejohn had taken the patient to the designated loca-
tion in the Montefiore building, he returned to the transporta-
tion office in Presbyterian Hospital. As Littlejohn arrived at the
transportation office, he saw Spirk and apologized for how long
the assignment had taken but that he had to wait for the patient
to be released to transport. Spirk said that was “okay” and that
he was going to send Touray an email so that they “will be on
the same page” and there should not be a problem with it. Lit-
tlejohn then swiped out at approximately 11:27 p.m. and left
the hospital.
That evening at 11:44 p.m., Spirk sent an email to Touray
regarding Littlejohn. This email (R. Exh. 70) states in relevant
part:
I took over dispatch at 11:00 pm and Pacu central called ask-
ing why a monitor tech hasn’t been dispatched to their job
which was put in at 10:41 pm. Finley was the monitor tech
and he was idle since 10:41 pm also. They said they were su-
per busy and demanded a monitor tech, and so I tried to call
Finley but no answer. Hepicked up around 11: 10 or so and I
asked him if he could do the Pacu monitor patient and he
agreed to. So him and Matt Recker took the patient over in
their bed. So Finley clocked out at 11:27 approximately. I
tried to ask Janelle why he was idle, and didn’t get the Pacu
job? She didn’t know why and said she missed it.
On Monday, February 25, at 6:48 p.m., Touray replied by
email to Spirk’s email and asked him what time he began call-
ing Littlejohn. Touray added: “I will research in Teletracking
on Tuesday-I was out on sick on Monday.”
On Wednesday, February 27, at 3:20 a.m. Spirk responded to
Touray by an email stating in relevant part: “Probably no later
than 11:05. I tried and he didn’t pick up until maybe 11:10 or
so?”
On February 27, Rankin asked Littlejohn to write a statement
about the events of February 22.39 According to Littlejohn’s
uncontradicted testimony, Rankin asked him to write a state-
ment regarding what happened. When Littlejohn asked “why,”
Rankin responded there was nothing to worry about but that
Rankin had to give Touray a statement from Littlejohn. 40 Lit-
tlejohn’s written statement (GC Exh. 42) is dated February 27,
2013, and states in relevant part:
In regards to not answering my pager (4) times & rejecting
the call, was that during the time my pager was going off I
was in the bathroom. During the time I was in the bathroom I
dropped the phone while I was about to accept the job. At no

39 Littlejohn testified at the hearing that Rankin asked Littlejohn to
give him a statement on February 23, the day following the events at
issue. The record clearly establishes, however, that Touray was not
aware of the February 22 incident involving Littlejohn until Monday,
February 25. Thus, I find that Littlejohn was incorrect when he testified
he was asked to give a statement by Rankin on February 23 as Touray’s
investigation into this conduct had clearly not begun on that date. I find,
based on the record as a whole that Littlejohn gave his statement on the
date indicated on the statement, February 27, 2013.
40 The Respondent did not call Rankin as a witness.
UPMC 53
time whatsoever was Finley Littlejohn attempting to defer his
duties. Instead Jason called me to complete it around 11:00
PM and since it was over in [Montefiore] it took 10 min. to
do.
On March 9, Littlejohn was called into the transportation of-
fice by supervisor Ed Keller. Keller handed Littlejohn a letter
and said that he had to let him go. When Littlejohn asked what
for, Keller replied that it was for failing to accept a page. The
termination letter that Keller gave Littlejohn (GC Exh. 39)
states, in relevant part:
During your shift on February 22, 2013, you failed to respond
to multiple pages and even rejected it at one point. During the
time that you failed to respond and/or rejected the job, you
were not on an authorized break. Your actions were inappro-
priate and you are considered to have been on an unauthorized
break.
The letter further indicated that Littlejohn had received a fi-
nal written warning in lieu of a 3-day suspension for excessive
tardiness on January 2, 2013. The letter also indicated that he
had received a final written warning in his orientation period on
September 11, 2012, and a verbal warning on August 1, 2012,
for excessive tardiness. The letter advised Littlejohn that he
was terminated effective immediately.
After his discharge Littlejohn filed a grievance with the Re-
spondent regarding his discharge under the Respondent’s inter-
nal grievance procedure. In support of his grievance, Littlejohn
submitted a statement denying that he was on an unauthorized
break on February 22. In his statement he indicated that he
received the call in question but when he answered the call the
battery in his pickle phone fell out of the phone. He denied that
he rejected the call and noted that he ultimately completed the
assignment (R. Exh. 75.)
In a letter dated April 1, the Respondent’s then director of
human resources, Richard Hrivnak, denied Littlejohn’s griev-
ance and upheld his termination.
Current employee Jason Spirk testified that he has been a
dispatcher in the transportation Department for approximately
5½ years. On February 22, 2013, his shift began at 11p.m.
Spirk was replacing dispatcher Janelle Hinds whose shift ended
at 11p.m. Spirks asked why the Teletracking system showed a
patient had been assigned to Littlejohn but had not been trans-
ported. Hinds replied that she had missed the job and did not
say whether she had tried to reach Littlejohn. Spirk called Lit-
tlejohn but did not reach him. At approximately 11:10 p.m.,
Littlejohn called Spirk and Spirk asked Littlejohn to transport
the patient because they were getting complaints from the unit
that had requested the transport. Littlejohn accepted the as-
signment and, in fact, transported the patient.
Spirks testified that he sent his email to Touray on February
22 because Spirk had asked Littlejohn to work beyond his
scheduled shift and Spirk did not want Littlejohn to be charged
with an” unauthorized swipe.” 41 Spirk testified that as of Feb-

41 The record establishes that if an employee swipes in more than 5
minutes before or 5 minutes after a scheduled shift, the employee may
be charged with an “unauthorized swipe” which is considered an occur-
rence under the Respondents attendance policy.
ruary 22, he was not aware of any union activity engaged in by
Littlejohn nor was he aware of where Littlejohn stood on the
Respondent’s progressive disciplinary policy. Spirk was not
interviewed by Touray or any other management representa-
tives prior to Littlejohn’s discharge.
Touray testified that she was not aware that Littlejohn was a
supporter of the Union prior to his discharge. In this connec-
tion, Touray indicated that she had never discussed the Union
with Littlejohn nor had she observed him display any support
for the Union. With respect to Littlejohn accompanying Oakes
to the union rally on February 25, Touray testified that she was
not at work that day but was rather at home sick. While Touray
testified she knew the Union had planned to have a rally on that
date she had not seen any pictures of Littlejohn going to the
rally or attending the rally prior to his discharge.
According to Touray, she did not see Spirk’s February 22
email until Monday, February 25, as she does not work on the
weekends and she was home sick on February 25. As noted
above, Touray replied to Spirk’s email on February 25 at 6:48
p.m. In her email, Touray asked Spirk when he began calling
Littlejohn and informed Spirk she would research Teletracking
information regarding Littlejohn on Tuesday, February 26. In
this connection, Touray reviewed “log time” information from
Teletracking regarding Littlejohn’s activities on February 22 (R
Exh. 517.) According to Touray, the log viewer confirmed that
Littlejohn had completed the transport of a patient at 22:42:21
(10:42:21 p.m.) and rejected another assignment at 22:42:39
(10:42:39 p.m.). Touray also reviewed the pager history for
Littlejohn on that date. (R. Exh. 516.) This document reflects
that pages were sent to Littlejohn’s pager ID (0296) at the fol-
lowing times: 10: 47:17 p.m.; 10:50:52 p.m.; 10:57:29 p.m.;
and 11: 00:57 p.m.
Touray testified that she submitted the log file viewer, the
pager history, Spirk’s email and Littlejohn’s statement to
Loveridge in human resources. A series of emails indicates that
Littlejohn’s statement was the last information that was submit-
ted to Loveridge (R. Exh. 519). On February 28 at 12 a.m.,
Rankin sent Littlejohn’s statement to Loveridge and Touray by
email. On February 28 at 11:01 a.m Touray sent an email to
Rankin asking “Can you please ask Finley why, if he dropped
his phone and this made him reject the job, he didn’t just called
back in and immediately accept the job?” On February 28 at
10:29 p.m. Rankin replied to Touray in an email indicating
“His response was that the battery fell out the phone and he
could not reach it and by the time he was out of the bathroom,
Jason called him at around 10:55 p.m. to ask him to complete
the job.”
On March 1, 2013, at 10:03 a.m., Touray sent an email to
Marina Goodman, a human resources consultant who was fill-
ing in for Loveridge, indicating the following: “Marina-See
follow-up below regarding Finley Littlejohn’s potential unau-
thorized break. “What do you think, I’m leaning towards still
considering this an unauthorized break.” On March 1 at 10:19
a.m. Goodman replied:” I have to agree with you since 14
minutes passed prior to responding to the call. I will prepare the
paperwork for Jaki so, it is ready for Monday. Is that okay?”
Touray testified that she spoke to both Goodman and Lover-
idge regarding Littlejohn and that a decision was made that he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD54
was on an unauthorized break and that the Respondent would
proceed with discipline, which in Littlejohn’s case would be
termination based on his previous discipline record. Loveridge
then drafted a corrective action/discipline authorization form
(GC Exh. 41) that listed Littlejohn’s previous discipline record
and indicated that the recommended corrective action was dis-
charge. The second page of the document indicating “descrip-
tion of specific event” states:
February 22, 2013 at 10:41 PM, PACU placed a request for a
Transport Monitor job. Finley was paged to pick up the job;
however, he was paged 4x prior to responding to the job.
Below are the following times he was paged:
1st page: 10:47 pm
2nd page: 10:50 pm
3rd page: 10:57 pm
4th page: 11:00 pm
Finley rejected the job during the page process. In his state-
ment, he states he was in the restroom and dropped the phone
and the battery on the phone came off and was unable to pick
up the battery and reconnect it to the phone. Finley finally re-
sponded to the page at 11:00 p.m. and finished the shift at
11:27 p.m.
This document contains Loveridge’s typed name with the
date of March 5, 2013. On March 8 it was signed by Human
Resources Manager Laura Zaspal; Touray; Lori Rack, who is
Touray’s supervisor; and vice president, Holly Lorenz. There is
also the signature of a human resources representative that Tou-
ray could not identify
On cross-examination by the Charging Party, Touray could
not recall whether she told Loveridge prior to her preparation of
this document that transporters are not required to respond to
pages that come to them immediately prior to the end of their
shift. 42 At the trial, Touray conceded that Littlejohn was not
required to respond to the pages at 10:57 p.m. and 11 p.m. that
were listed on the corrective action form that resulted in Lit-
tlejohn’s discharge as his shift was scheduled to end at 11 pm.
After the corrective action form was returned to the human
resources department, Loveridge drafted the discharge letter
that was signed by Supervisor Edward Keller on March 9,
2013, and given to Littlejohn by him on that date.
Analysis
In applying the Wright Line factors to Littlejohn’s discharge,
it is clear that he was a supporter of the Union. He was a mem-
ber of the Union’s employee committee and, on February 25,
2013, openly displayed his support for the Union by walking
out of the Respondent’s facility with Oakes and Lewis and
attending the union rally held across the street from the emer-
gency room entrance to Presbyterian Hospital.
The Respondent denies, however, that Touray and Lover-

42 As noted above, the UPMC Presbyterian transportation depart-
ment handbook, paragraph 18, states: "Transporters who log into the
Transport Tracking system within 2 minutes of their scheduled starting
time must accept jobs from the Transport Tracking system to a maxi-
mum of 5 minutes before the end of the shift (GC Exh. 9, p. 19).
idge, the individuals primarily involved in the decision to dis-
charge Littlejohn, had any knowledge of Littlejohn’s support
for the Union at the time he was discharged. In this connection,
at the trial, both Touray and Loveridge denied that they had
knowledge of Littlejohns’ support for the Union. There is no
direct evidence that either Touray or Loveridge either directly
observed or was informed of Littlejohn’s union activity before
his discharge.
The Board has held, however, that knowledge of an alleged
discriminatee’s union activity may rest on circumstantial evi-
dence from which a reasonable inference may be drawn. Mont-
gomery Ward & Co., 316 NLRB 1248, 1253–1254 (1995),
enfd. 97 F.3d 1448 (4th Cir. 1996). In Montgomery Ward, the
Board noted that it has inferred knowledge of union activity
based on circumstantial evidence such as the timing of the al-
leged discriminatory action; a respondent’s general knowledge
of union activity; the respondent’s animus toward union activi-
ty; and the weakness of a respondent’s reasons for the adverse
personnel action. Id. at 1253.
Applying the factors noted above, I find that compelling cir-
cumstantial evidence supports a finding that the Respondent,
specifically Touray and Loveridge, had knowledge of Lit-
tlejohn’s overt support for the Union that he demonstrated on
February 25 by walking out of Presbyterian Hospital with Oak-
es and Lewis and attending the union rally held across the
street. There is substantial evidence that the Respondent, and
specifically Touray and Loveridge, were generally aware of the
Union’s organizing efforts. In this regard, both Oakes and Lew-
is, prominent and open supporters of the Union, worked in the
transportation department, which was managed by Touray.
Loveridge was the human resources representative assigned to
work with Touray regarding labor relations issues in that de-
partment. As noted above, the Respondent’s security personnel
engaged in surveillance of the union rally on February 25 and a
report regarding this rally was submitted to Hrivnak and
Goodman in the human relations department. Since Oakes was
one of the principal speakers at the rally and was accompanied
from the hospital to the rally by Lewis and Littlejohn, I find it
reasonable to infer that Touray and Loveridge were informed of
Littlejohn’s open support for Oakes and the Union shortly after
it occurred.
As I have noted earlier in this decision, the Respondent’s an-
imus toward the Union’s attempt to organize its nonclinical
support employees is clearly demonstrated by the unfair labor
practices I find that it committed. This animosity toward union
activities also supports an inference that Littlejohn’s depart-
ment manager and the human resources representative assigned
to that department were made aware of the overt union activity
he engaged in on February 25.
The timing of Littlejohn’s discharge further supports an in-
ference that his termination was unlawfully motivated. While
Littlejohn was not discharged until March 9, Touray began an
investigation into Littlejohn’s actions on February 22, on Feb-
ruary 26, after receiving Spirk’s email informing her that Lit-
tlejohn had to stay beyond his scheduled shift to complete an
assignment. Thus, shortly after Littlejohn’s overt union activity
on February 25, Touray began to investigate his conduct on
February 22 even though neither Spirk nor Supervisor Rankin
UPMC 55
had requested her to do so. Finally, as I will discuss further
below, the Respondent’s asserted reasons for discharging Lit-
tlejohn are not convincing.
Based on the circumstantial evidence as set forth above, I
find that the Respondent, and specifically Touray and Lover-
idge, had knowledge of Littlejohn’s demonstrated support for
the Union that he exhibited on February 25. In so finding, I do
not credit the testimony of Touray and Loveridge that they had
no such knowledge. Based on the circumstantial evidence set
forth above, I find such testimony to be implausible based on
the record as a whole. In addition, I found that neither Touray
nor Loveridge was impressive as a witness. Both witnesses
were somewhat evasive on cross-examination. In addition, they
both testified, at times, in a way that appeared to be designed to
support the Respondent’s defense.
Based on the above, I find that the General Counsel has pre-
sented a prima facie case under Wright Line that the Respond-
ent has discharged Littlejohn for discriminatory reasons.
In its defense, the Respondent contends that the evidence es-
tablishes that Littlejohn took an unauthorized break on the
evening of February 22, 2013. The Respondent further argues
that during this unauthorized break Littlejohn rejected a job and
then failed to respond to four pages until he finally accepted a
call from his dispatcher and transported the patient before he
left work. The Respondent further contends that Littlejohn’s
actions caused a delay of approximately 30 minutes in moving
the patient. The Respondent relies on the instances of discipline
administered to transporters discussed above in the section of
this decision regarding Oakes’ discharge, in contending that it
is consistently disciplined transporters for taking unauthorized
breaks.
As noted above, I find that Littlejohn was in the restroom
experiencing difficulty from approximately 10:45 p.m.to 11:10
p.m. on the evening of February 22, 2013. While the transporta-
tion department handbook indicates that a transporter is al-
lowed to be logged out for lunch for 35 minutes, not surprising-
ly, there are no specific rules regarding the length of time an
employee can spend in the restroom. The practice is the trans-
porters go to the restroom during the workday as necessary. As
noted above, former dispatcher Bodeck credibly testified that
being in the restroom is an acceptable reason for a transporter
to fail to immediately respond to a page.
The transportation department handbook also recognizes that
transporters have the right to reject an assignment under limited
circumstances. The handbook recognizes that transporters have
the right to reject the last job before their lunchbreak, but then
must log out immediately for lunch after doing so. (GC Exh. 9,
p. 15) Obviously, if an employee did not have the right to reject
assignments immediately before lunch, on busy days it would
be difficult to have a lunch break.In Littlejohn’s case, while he
rejected an assignment, he did so immediately before entering
the restroom, where he remained for approximately 20 to 25
minutes because of the difficulty he was experiencing.
On February 27, Littlejohn’s immediate supervisor, Rankin
asked him to write a statement about the events of February 22.
When Littlejohn asked why he had to write a statement, Rankin
responded that there was nothing to worry about but that Tou-
ray wanted to get a statement from him. In Littlejohn’s written
statement he indicated that he was in the bathroom during the
time his pager was going off. On February 28, Touray did ask
Rankin to find out some additional information from Littlejohn
about why he rejected the job initially and Rankin furnished
some brief information from Littlejohn regarding the battery
falling out of his pickle and and not being able to reach it. De-
spite being aware that Littlejohn stated that he was in the re-
stroom during the period that he was being paged and the rea-
sons as to why he rejected the job being unclear, Touray did not
personally speak to Littlejohn to find out more about the cir-
cumstances of his restroom stay. As noted above, I find, based
on Littlejohn’s trial testimony, that the batteries fell out of his
phone while he was in the restroom. I therefore find that Lit-
tlejohn’s initial rejection of the assignment was not based on
the batteries falling out of the phone. I find his trial testimony
to be more reliable evidence than Littlejohn’s brief statement
submitted to Rankin regarding the reasons for his initial rejec-
tion of the assignment. Given that Littlejohn indicated in his
brief statements during the Respondent’s investigation that his
restroom stay was the primary reason he failed to respond to the
transport assignment in a more timely manner, I find that the
Respondent’s investigation was somewhat cursory in that it
failed to clarify the circumstances surrounding his stay in the
restroom. I note that the Board has found an employer’s failure
to conduct a fair and full investigation and to give employees
the opportunity to explain their actions before imposing disci-
pline is a significant factor in finding discriminatory motiva-
tion. Publishers Printing Co., Inc., 317 NLRB 933, 938 (1995)
enfd. 106F.3d 41 (6th Cir. 1996).
As noted above, in the discipline authorization form given to
Littlejohn regarding his alleged unauthorized break on February
22, 2013, specifically refers to the fact that he was paged four
times, and that the last two pages occurred at 10:57 p.m. and 11
p.m. It is undisputed that Littlejohn’s shift was scheduled to
end at 11:02 p.m. (since he since he clocked in at 3:02 p.m.).
The record clearly establishes that transporters are not obligated
to answer pages that they receive within 5 minutes of the end of
their shift. In fact, Loveridge admitted at the hearing that under
the established policy Littlejohn was not required to accept
pages within the last 5 minutes of his shift (Tr. 2217). Lover-
idge claimed, however, that Littlejohn’s failure to respond to
the first two pages was a sufficient basis for discipline. The fact
remains, however, that the Respondent’s official document
advising Littlejohn of his corrective action and discharge spe-
cifically refers to the 10:57 p.m. and 11 p.m. pages that under
the Respondent’s established policy would not result in any
discipline. As noted above, a deviation from past practice when
administering discipline supports an inference of unlawful mo-
tivation. Embassy Vacation Resorts, 340 NLRB 846, 848
(2003).
With regard to the Respondent’s contention that Littlejohn’s
actions caused the delay in the transport of a patient for approx-
imately a half hour, it appears, that there was, in fact, no delay
in transporting the patient because Littlejohn’s uncontradicted
testimony establishes that when he arrived to transport the pa-
tient at some time after 11:10 p.m., he had to wait while doctors
and nurses finished their chart notes regarding the patient be-
fore he could transport the patient.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD56
I find that Littlejohn’s willingness to transport the patient
when requested by Spirk, even though Littlejohn had already
logged out of the Teletracking system, is supportive of the fact
that he was not taking an unauthorized break in order to avoid
his assigned duties, but rather was justifiably delayed by his
necessity to go to the restroom. If Littlejohn was really attempt-
ing to avoid work, he could have claimed at that point that he
worked 8 hours and had logged out of the system. Instead, Lit-
tlejohn completed the assignment Spirk asked him to do and
did not request that he be paid overtime for doing so.
The examples of the discipline given to other employees for
taking unauthorized breaks does not support the Respondent’s
discipline of Littlejohn was based on legitimate business con-
siderations for the simple reason that none of them involved
employees being disciplined for an unauthorized break while in
the restroom. Thus, I find that there is no evidence that the
Respondent has disciplined an employee under circumstances
similar to those involving Littlejohn.
On the basis of the foregoing, I find that the Respondent has
not established that it has consistently and evenly applied its
unauthorized break policy to Littlejohn as is required to do so
under Septix Waste, supra. I therefore find that the Respondent
has not produced sufficient evidence under Wright Line that it
would have discharged Littlejohn for his conduct on February
22, 2013, absent his union activity. Accordingly, I find that the
General Counsel has established by a preponderance of the
evidence that Littlejohn’s discharge violates Section 8(a)(3) and
(1) of the Act.
The March 28, 2013 Final Written Warning Issued to
Chaney Lewis
The complaint alleges that the Respondent issued a final
written warning to Chaney Lewis on March 28, 2013, in viola-
tion of Section 8(a)(4), (3), and (1) of the Act.
The complaint also contains 8(a)(1) allegations related to the
alleged discriminatory warning given to Lewis on March 28.
Paragraph 19 of the complaint alleges that the Respondent, by
Ed Keller, interrogated employees by asking him to write a
statement about their union membership, activities and sympa-
thies. Paragraph 29 of the complaint of the complaint alleges
that on March 28, 2013, the Respondent, by Touray, disparately
enforced its policy regarding employee use of bulletin boards
by prohibiting employees from posting items in support of the
Union.
Facts
The credited testimony of human resources consultant Mari-
na Goodman establishes that on March 20, 2013, she observed
Chaney Lewis post what appeared to be a newspaper article on
a bulletin board located near a timeclock at the bottom of an
escalator in Presbyterian Hospital that was adjacent to the Falk
building.43 Apparently, this article referred to the Union as

43 At the trial, Lewis did not specifically deny posting a union litera-
ture on the bulletin board in question. Rather, he appeared to question
the quality of the evidence against him by referring to previous situa-
tions when he posted union literature at the hospital and the Respond-
ent’s security force clearly identified him as the individual who posted
the literature. Goodman's testimony regarding her observation of Lewis
Lewis was later disciplined for posting “union related materi-
als” on the bulletin board.
Lewis testified that at some time in March 2013, he was ap-
proached by his supervisor, Ed Keller, who told him that he had
been instructed by Touray to obtain a statement from Lewis
because he had been observed posting literature on the bulletin
board on the ground floor of Presbyterian Hospital near the
walkway to the Falk clinic. When Lewis replied he did not
recall doing that, Keller said that it had occurred on the prior
Wednesday at 2 p.m. Lewis wrote a statement indicating that he
did not recall the incident and gave it to Keller.
On March 26, 2013, a “Corrective Action/Discipline Author-
ization Form” was prepared by the Respondent indicating that
the recommended corrective action for Lewis was a final writ-
ten warning in lieu of a 3-day suspension. Loveridge’s name is
typed on the document as the human resources consultant and
several management officials, including Touray, signed the
document on that date. With respect to the description of the
events leading to the discipline, the document states: “On
Wednesday, March 20, 2013, Chaney was observed posting
union-related materials on the business unit bulletin board at
the bottom of the escalators going from PUH to Falk.” (GC
Exh. 49.)
On March 28, 2013, Supervisor Carolina Clark called Lewis
into the transportation department supervisor’s office and gave
him a final written warning. (GC Exh. 31.) This document
states in relevant part: “On Wednesday, March 20, 2013 you
were observed posting unauthorized material on a business unit
bulletin Board. This is not appropriate and a violation of UPMC
Policy HS-HR 0704, Corrective Action and Discharge.”
On April 5, 2013, Lewis filed a grievance regarding his final
written warning pursuant to the Respondent’s internal griev-
ance procedure. In preparation for his grievance meeting, on
April 26, 2013, Lewis took a photograph of a bulletin board in
the GI breakroom which clearly reflects that non-UPMC mate-
rials were posted on it. The postings include restaurant menus,
Pittsburgh Steeler tickets for sale, a flyer for a uniform store,
and an invitation to a bowling party. (GC Exh. 47.) Lewis cred-
ibly testified, without contradiction, that in his movements
through the hospital as a transporter he observed many bulletin
boards with non-UPMC materials of a similar nature posted on
them. He specifically testified that on the bulletin board adja-
cent to the Falk building he observed signs indicating cars and
motorcycles for sale and restaurant menus.
On April 26, 2013, Lewis met with HR representative, Judy
Molli, regarding his grievance. Lewis told Mollie that he
thought it was unfair that he was being given a write up without
the incident being captured on a surveillance camera or having
a security officer check his badge to establish a positive identi-
fication. Lewis also showed Molli the photograph of the bulle-
tin board in the GI breakroom that he had taken and told her
that there were other bulletin boards in the hospital with non-
UPMC materials posted on them and that no action had been
taken regarding the posting of those materials. Lewis stated

on March 21 posting material on the bulletin board was consistent on
both direct and cross-examination and I credit her testimony in this
regard.
UPMC 57
that the Respondent only enforced the rule prohibiting the post-
ing of literature on bulletin boards with respect to the union
literature. Molli said she would look into the situation.
In a letter dated May 6, Molli denied Lewis’ internal griev-
ance regarding his final written warning. However, on May 15,
2013, Lewis received the following letter signed by Touray:
On March 28, 2013 you were issued a Final Written Warning
in Lieu of a Three-Day Suspension. This notice is to advise
you that effective May 15, 2013, the Final Written Warning in
Lieu of a Three-Day Suspension has been expunged from
your personnel file and that such Final Written Warning in
Lieu of a Three Day Suspension will not be used against you
and any future personnel actions.
Analysis
As noted above, on March 26, 2013, Lewis was given a final
written warning in lieu of a 3-day suspension. The warning
indicates that the basis for it was that Lewis was observed
“posting union-related materials” on a bulletin board on March
20, 2013. While Lewis did not testify that he in fact posted
union literature on the bulletin board on the date in question,
the Respondent clearly believed that he had and disciplined him
for doing so. The Board has consistently held that if an em-
ployer suspects that an employee has engaged in union activity,
even if the employee has not, in fact, done so, the requirement
of establishing an employer’s knowledge of an employee’s
union activity is established. Trader Horn of New Jersey, Inc.
316 NLRB 194, 198 (1995); Respond First Aid, 299 NLRB
167, 169 fn. 13 (1990).
As I previously noted in this decision, Register Guard I, 351
NLRB at 1120, makes it clear that when an employee is admit-
tedly disciplined for using an employer’s equipment, such as a
bulletin board, a Wright Line analysis is not appropriate. In the
instant case, the warning clearly indicates that the Respondent
disciplined Lewis from posting what it believed to be was un-
ion related materials on a bulletin board. As I have indicated
earlier in this decision entitled “The Alleged Disparate Applica-
tion of the Respondents Policy Regarding Bulletin Boards,”
Register Guard I sets forth the Board’s current analysis regard-
ing allegations of disparate treatment with respect to the posting
of union materials on an employer’s bulletin board.
As noted in that section of the decision, the Respondent per-
mitted the ESS employee council free use of its bulletin boards
at the same time it disciplined Lewis for posting what it be-
lieved to be materials supportive of the Union. Under these
circumstances, pursuant to the principles set forth in Register
Guard I, the Respondent has discriminatorily applied its bulle-
tin board policy to employees posting union related materials
and has thereby violated Section 8(a)(1) of the Act. By issuing
a final written warning to Lewis based upon its disparate appli-
cation of its bulletin board policy, the Respondent has addition-
ally violated Section 8(a)(3) and (1) of the Act. In finding that
the Respondent’s conduct also violates Section 8(a)(4) of the
Act, I note that the Respondent was aware of the fact that Lewis
had participated in proceedings before the NLRB because he
was a specifically named in the settlement agreement that re-
solved the first case between the parties. In this regard, on
March 4, Touray and Loveridge met with Lewis to discuss the
settlement agreement and the Respondent’s new solicitation
policy and how it applied to him. At this meeting Touray told
Lewis that he could not post any material that was not related to
UPMC on any bulletin boards in the facility. By disparately
applying its bulletin Board policy to discipline Lewis shortly
after this meeting supports a finding that the Respondent was
motivated to retaliate against Lewis because of his prior in-
volvement in NLRB processes.
With regard to the complaint allegation that the Respondent
violated Section 8(a)(1) by requiring Lewis on March 22 to
write a statement about posting literature on the bulletin board,
the Respondent contends that it has the right to investigate the
circumstances involving potential employee misconduct. The
cases relied on by the Respondent, Manville Forest Products,
269 NLRB 390 (1984), and Service Technology Corp., 196
NLRB 845 (1972), support the proposition that an employer
may compel its employees to submit to questioning concerning
employee misconduct when the employer’s inquiry is still in
the investigative stage and a final disciplinary action has not
been taken. In those cases, the questions were directed to em-
ployees in order to determine whether other employees had
engaged in misconduct in violation of plant rules. Here, the
Respondent disciplined Lewis admittedly for engaging in union
activities under circumstances that I find violative of the Act
and the question went directly to the nature of the union activity
that the Respondent believed he had engaged in. Thus, I find
the instant case presents circumstances that are distinguishable
from those present in the cases relied on by the Respondent.
Accordingly I find that requiring Lewis to write a statement
regarding the union activity that the Respondent believed he
engaged in, and then disciplining him for the same conduct
constitutes an unlawful interrogation and violates Section
8(a)(1) of the Act.
The April 23, 2013 Final Written Warning Issued to Albert
Turner, Turner’s June 18, 2013 Discharge and Related 8(a)(1)
Allegations
The complaint alleges that the Respondent issued Turner a
final written warning on April 23, 2013, and discharged him on
June, 18 2013 in violation of Section (8)(a)(3) and (1) of the
Act.
The complaint also alleges the Respondent committed fol-
lowing violations of Section 8(a)(1) of the Act for which
Turner is the principal witness: about April 15, 2013 Carlton
Clark interrogated employees (paragraph 22); on April 15, Tim
Nedley demanded to take a photograph of an employee’s union
button (paragraph 23(a)); in April 2013, Tim Nedley required
employees to remove pro union insignia (paragraph 34(d)); and
on April 16, 2013, Carlton Clark required employees to remove
pro union insignia (paragraph 34(f)).
The 8(a)(1) Allegations Involving Turner
Facts
As noted earlier in this decision, Turner began working for
the Respondent when it took over the employee shuttle service
in 2010. Turner worked on a split-shift schedule. He would
swipe in at 5:40 a.m. and swipe out at 9 a.m. He would then
return to work from approximately 1:15 p.m. until 8 p.m. After
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD58
the Respondent assumed responsibility for the transit depart-
ment, Turner’s immediate supervisors were Carlton Clark and
Ted Hill. Bart Wyss was then the Respondent’s operations
manager for employee transit. Wyss reported directly to Tim
Nedley the Respondent’s ‘senior director of materials manage-
ment. The human resources consultant assigned to the employ-
ee transit department was Shannon Corcoran
Turner testified that after he became involved in the Union’s
campaign in 2012 he wore the union pin that stated “Make It
Our UPMC.” He also wore a lanyard with the Union’s logo that
also stated “Make it our UPMC.” In 2013, he also put the same
union pin and the union sticker indicating “We’re With Ron”
on his lunch bag that he took to work daily. Turner placed the
lunch bag on the console next to his driver’s seat in the shuttle
bus where it could be viewed by passengers coming onto the
bus. Since Turner began working for the Respondent in 2012 he
observed other employees wear pins on their uniforms that
were not provided by the Respondent. In this connection,
Turner recalled one driver who wore a four leaf clover pin
around St. Patrick’s Day. Turner wore a Pittsburgh Steelers pin
during the football season in the presence of Supervisors Bert
Wyss, Ted Hill, and Carlton Clark. No supervisor ever told him
he could not wear his Pittsburgh Steelers pin.
In the beginning of 2013, Turner also posted flyers in sup-
port of the Union on the bulletin board in the trailer where the
drivers swiped in and out of work and placed flyers on the table
located in the trailer. The union flyers would be taken down
from the bulletin board and removed from the table within a
day or 2 but Turner never observed who removed them. 44
Turner observed nonhospital materials posted on this bulletin
board. He recalled that in the fall of 2012 and employee post
information on the bulletin board regarding a trip to the gar-
ment district in New York City. That notice was posted for
about 2 weeks but management then asked the employee to
take it down. Turner posted on that bulletin board a flyer he
was given by the Union regarding a 5K race to see how long it
would stay up. The poster stayed up for about 2 weeks before it
was taken down. On cross-examination, Turner admitted there
was, in fact, no 5K race. Turner also recalled information being
posted on the bulletin board regarding the funeral arrangements
for the wife of one of the drivers.
In February 2013, Turner also placed some union flyers on
his shuttle bus. Turner testified that he did so after observing
that the Respondent had posted a flyer on the bus indicating
opposition to the Union (GC Exh. 10). He also observed anoth-
er shuttle bus driver had posted a Philadelphia Eagles’ flyer on
his shuttle bus.
Clark testified that in February 2013, he told Turner that

44 Keith Lewis, a former supervisor in the Respondent's transit de-
partment, testified on behalf of the General Counsel pursuant to a sub-
poena. Lewis credibly testified that he removed the flyers from the
trailer pursuant to instructions from Wyss. Lewis also testified that
Wyss told him that that Turner, “the ringleader” of organizing, had
placed the flyers in the trailer. (Tr. 1130–1131.) While Lewis testified
that he recalls this occurring in March through April 2012, the record as
a whole convinces me that he was mistaken as to the date and that
Lewis removed the union literature from the trailer in March or April
2013.
Turner should not be wearing his union pin and that the only
pins that were permitted were “recognition” pins regarding
service provided to the Respondent. Clark made a note of his
conversation with Turner which establishes the date of the con-
versation was February 11, 2013 (CP Exh. 33). Clark’s note
regarding February 11, reflects the following: “I had a conver-
sation with Al instructing him that he was not to distribute the
union flyers, and the only pins allowed were for recognition of
accomplishments.” Clark’s note also indicates the following
with respect to a conversation he had with Turner on February
12: “Ted Hill and I talked to Albert Turner at approximately
4:00 PM and instructed him that he was not to post or distribute
any non-UPMC information including Union articles on UPMC
property, including the bus. I informed him that any further
postings or distribution of union information on company time
would be considered insubordination.”45
Although instructed not to do so by Clark in February 2013,
Turner continued to wear his union pin. On April 11, Lisa
Stanicar, one of the Respondent’s managers, sent an email to
Hrivnak, the human resources director, reporting that she had
seen union flyers on the bus that Turner was driving. She also
reported seeing Turner wearing a union pin on his ID badge and
the “We’re with Ron” sticker on a bag sitting beside the driv-
er’s seat. That same day, Hrivnak forwarded Stanicar’s email to
Wyss. After receiving this report, Wyss obtained permission
from Nedley to have transportation department employee Gary
Sargent ride Turner’s shuttle bus in order to investigate the
matter.
On April 15, 2013, Turner was wearing his ID badge with
his “Make It Our UPMC” pin right above it. Sargent rode
Turner’s bus as a passenger to verify that he was wearing his
union pin. After exiting Turner’s bus, Sargent approached
Turner while he was stopped and picking up passengers and
asked to take a picture of his name tag. Turner initially refused
but when Sargent told him that he worked for Bart Wyss,
Turner consented to have his picture taken. Sargent then photo-
graphed Turner wearing his union pin.
After receiving Sargent’s report that Turner was wearing his
union pin, that same day Wyss directed Clark to obtain state-
ments from Turner as to why he was continuing to wear his
union pin. Clark and Sargent waited in a car for Turner’s bus to
arrive at the Respondent’s parking lot on Swineburn Street.

45 There are no complaint allegations regarding Turner's distribution
of union flyers on his shuttle bus and accordingly I make no findings
regarding that issue. While the General Counsel acknowledges that
there are no specific complaint allegations regarding Clark's directive to
Turner on February 11 and 12 regarding the distribution of literature
and the wearing of union insignia, in his brief the General Counsel
claims that Clark’s statements constitute violations of Sec. 8(a)(1). As I
noted earlier in this decision, I will not make any findings of unfair
labor practices with regard to matters that that were not specifically
alleged as complaint allegations prior to the General Counsel closing of
his case in chief. I note, moreover, that additional findings regarding
these matters would be cumulative as I find in this decision that the
Respondent has committed other unfair labor practices regarding those
issues. I have, however, considered this evidence as background to the
specific unfair labor practices involving Turner alleged in the com-
plaint.
UPMC 59
There were no passengers on Turner’s bus as he drove up the
ramp and entered the parking lot. As he was entering the lot,
Turner’s cell phone rang and he answered the phone. Clark and
Sargent observed Turner using his cell phone. After Turner
parked his bus, Clark and Sargent approached Turner’s bus.
Clark entered Turner’s bus and asked Turner to provide a
statement as to why he continued to wear his union pin. After
initially refusing, Turner wrote a statement that indicated, “I
wear the button because I like UPMC.” (GC Exh. 172.) Ac-
cording to Turner’s credited testimony, after Clark had obtained
the statement from Turner, Clark told him, “You’re not allowed
to talk on your cell phone while driving.” (Tr. 962.) Clark for-
warded Turner’s statement to Wyss by email. Clark also sub-
mitted to Wyss three reports he prepared regarding this incident
(GC Exhs. 19, 21 and CP Exh. 31.)
At 10 a.m. on the morning of April 15, Clark received a
voice mail message from Turner asking him to return Turner’s
call. When Clark returned the call, Turner asked Clark if he was
going to be written up for wearing his union pin on his ID
badge. Clark informed him that the matter was being investi-
gated and he could not be sure what would happen. Turner told
Clark he would no longer wear his union pin.
Turner testified that on the morning of April 16, he pulled
his bus up to the shelter in the south parking lot and Tim
Nedley entered the bus and said, “Let me get a picture of that
button.” Turner then looked out and saw a “Make It Our
UPMC” pin on his vest. Turner testified that he had forgotten
the pin was on the vest when he put it on that morning. After
Nedley’s statement, Turner took the union pin off and told
Nedley that he had called Clark the day before and told him he
would take all the union pins off but he had forgotten that one.
Nedley said, “okay” and left the bus without taking a picture of
Turner.
Later that morning, another driver, Williams, told Turner that
Clark wanted Turner to go with him somewhere so that Wil-
liams was going to run Turner’s route. Clark drove Turner to
one of the Respondent’s offices located nearby. When Turner
arrived in the office, Nedley was present and handed Turner a
note pad and instructed him to write a statement as to why he
was still wearing his union pin. Turner dutifully wrote the
statement that indicated: “I had forgotten I had a pin on my vest
when I put it on this morning,” (GC Exh. 171) and gave the
statement to Nedley. Turner testified that during this meeting
he was also wearing a union lanyard that had the legend “Make
It Our UPMC” on it. Nedley told Clark to get Turner a UPMC
lanyard but that Clark did not do so.
Clark’s testimony confirms that of Turner in material re-
spects with respect to this incident. Clark testified that on April
16, 2013, Turner was at the Respondent’s south side distribu-
tion center when Tim Nedley asked Clark to bring Turner to
meet with him. Nedley had been meeting with busdrivers at the
facility and had observed Turner wearing his union pin and
informed Clark that he wanted to meet with Turner about wear-
ing his union pin. Clark then brought Turner to meet with
Nedley.
Analysis
With respect to the complaint allegation that on April 15, the
Respondent demanded to take a photograph of an employee’s
union button in violation of Section 8(a)(1), Sargent first de-
manded that Turner consent to have his photograph taken and
then in fact photographed Turner wearing his union pin. The
Board has long held that the photographing of employees en-
gaged in protected concerted activities, absent proper justifica-
tion, has a tendency to intimidate employees and thus violates
the Act. F. W. Woolworth Co., 310 NLRB 1197 (1993); Waco,
Inc., 273 NLRB 746, 747 (1984). In the instant case, Turner
was engaging in his protected right to wear union insignia
while driving his bus. It is undisputed that Turner’s work as a
busdriver never requires him to enter into a patient care areas
and the Respondent has produced absolutely no evidence that
there are “special circumstances” that would privilege it to
restrict Turner’s right to wear his union insignia at work. Ac-
cordingly, there is no evidence that the Respondent had any
legitimate justification for photographing Turner while he was
wearing his union insignia. Accordingly, I find that the Re-
spondent violated Section 8(a)(1) of the Act by demanding that
Turner consent to have his photograph taken and by photo-
graphing him wearing his union insignia.
As noted above, on April 15, Wyss directed Clark to obtain a
statement from Turner as to why he was continuing to wear his
union pin. Pursuant to these instructions Clark asked Turner to
provide a statement as to why he continued to wear his union
pin. Applying the factors set forth in Rossmore House, Scheid
Electric, and Intertape Polymer, supra, I find that Clark’s inter-
rogation as to the subjective reasons as to why Turner contin-
ued to wear his union pin constitutes a violation of Section
8(a)(1). In so finding, I rely particularly on the history of em-
ployer hostility to the union activities of its nonclinical support
staff employees and specifically the hostility demonstrated to
the union activities of Turner. In addition, I can see no legiti-
mate basis for the Respondent to inquire as to the subjective
reasons that Turner continued to wear his union pin.
As described in detail above, the complaint also alleges that
on two occasions on or about April 16, 2013, the Respondent
required employees to remove pro union insignia. In the first
incident, on April 15, after Turner was unlawfully photo-
graphed while wearing his union pin and interrogated as to the
reasons he was continuing to wear it, Turner called Clark and
asked him if he was going to be written up for wearing his un-
ion pin. Clark informed him that the matter was being investi-
gated and that he could not be sure what would happen. Turner
then told Clark he would no longer wear his union pin. Occur-
ring in the context of the unlawful photographing and interroga-
tion, Clark’s response to Turner’s question can only be con-
strued as an implicit demand to take the pin off.
The next day, April 16, when Nedley observed Turner wear-
ing his union pin, Nedley said he wanted to get a picture of that
button. Turner immediately took the pin off and told Nedley
that he had called Clark the day before and told him that he
would not wear any more union pins, but he had forgotten that
one. Wanting to drive home the point that the Respondent
would not tolerate Turner wearing any union insignia, Nedley
instructed Clark to bring Turner to his office. Once again, the
Respondent, this time by Nedley, directed Turner to write a
statement about why he was continuing to wear his union in-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD60
signia. Under the circumstances, it is clear that the Respond-
ent’s actions, through Clark and Nedley, constituted an implicit
demand that Turner was to remove his union insignia and not
wear it again. Accordingly, I find that on April 15 and 16, the
Respondent compelled Turner to remove his union insignia and
that such conduct violated Section 8(a)(1) of the Act.
Turner’s Final Warning and Discharge
Facts
On April 23, 2013, Clark and Hill approached Turner’s bus
as he was completing a route. Turner testified that Clark and
Hill came onto the bus and that Clark gave him a final written
warning (GC Exh. 24) which indicated in relevant part:
You are receiving a final written warning for safety violation.
On September 28, 2012, you received a written warning for
safety violation.
On April 15, 2013, you were witnessed with your cell phone
to your ear operating a shuttle bus. On December 27, 2011
you signed the cell phone and electronic devices policy which
outlines the U.S. Department of Transportation’s rule prohib-
iting commercial drivers from using a hand-held mobile tele-
phone while operating a commercial bus or truck. This is also
an Employee Transportation department policy.
After Turner read the final written warning, he asked Clark
whether he should have received a verbal warning but Clark
replied that an employee did not get a verbal warning for safety
violation.
As noted above, on April 15, when Clark was securing a
statement from Turner about why he was continuing to wear his
union button, Clark told him that operating a company vehicle
while using the cell phone was a violation of company policy.
Turner credibly testified that from April 15 until he was given
his final written warning on April 23, no one in management
had spoken to him about his use of his cell phone on that date.
On June 18, 2013, Hill told Turner that Clark wanted to see
him in Clark’s office. Hill drove Turner over to meet with
Clark in a commercial passenger that Hill normally used in the
performance of his duties. When Turner arrived at Clark’s of-
fice, Clark presented Turner with a termination notice. (GC
Exh. 25.) The termination notice states, in relevant part:
On April 23, 2013, you received the final written warning for
a safety violation.
To date, you have obtained 7 tardiness occurrences for the
departments (sic) SCM Distribution and Materials Manage-
ment tardiness policy. Per this policy, you moved to the next
step in the corrective action process.
The termination notice then listed 7 occurrence dates from
December 10, 2012, through June 7, 2013, when Turner had
missed a punch.
According to Turner’s credited testimony, he told Clark this
occurred because he supported the Union and Clark did not
respond. After the discharge meeting was over, Hill drove
Turner back to where Turner’s car was located. Hill was driv-
ing the commercial passenger van that he normally used in his
duties. According to Turner’s credited testimony, Hill stated “I
do not believe it” and added “they should tell me when they are
going to fire somebody.” At that point, Hill’s cell phone rang
and he answered it. While Turner could not hear the other
speaker, he heard Hill speaking to the caller about a about a bus
route. (Tr. 979.)
The UPMC Supply Chain Management-Distribution and
Materials Management Tardiness Policy (the tardiness policy)
applies to employees in the Respondent’s transit department.
(R. Exh. 17.) According to the tardiness policy the definition of
“occurrence” is as follows:
1. A missed punch in Kronos (any occasion when there is no
confirmed time Swipe in Kronos)
2. Swiping in late (tardiness).
3 Swiping in early without prior supervisory approval.
4. Swiping in early or late without prior supervisory approval.
According to the progressive discipline provision of the poli-
cy, employees are disciplined for accrued occurrences accumu-
lating within a rolling12-month period as follows: For the first
four occurrences, there is no disciplinary action. For the fifth
occurrence a verbal warning is given. For the sixth occurrence
there is no disciplinary action. For the seventh occurrence a
written warning is given. For the eighth occurrence a final writ-
ten warning in lieu of suspension is given. For the ninth occur-
rence an employee is discharged.
The uncontroverted testimony of the Respondent’s human
relations director, Sheila Heckla, establishes that although the
tardiness policy provides that an employee that with nine occur-
rences will be discharged, the level of discipline may be accel-
erated if the employee has received other discipline under the
Respondent’s Corrective Action and Discharge Policy. (GC
Exh. 161.) Thus, if an employee has reached the final written
warning level of discipline, a single, subsequent violation of
any Respondent policy, including the tardiness policy, may
result in termination. The final written warning given to Turner
(GC Exh. 24) indicates that “a violation of any UPMC or de-
partment policy shall result in further corrective action, up to
and including termination of employment.”
Analysis
Initially, I note that the complaint alleges that the final writ-
ten warning issued to Turner and his discharge are discrimina-
torily motivated, but there are no other complaint allegations
regarding other discipline issued to Turner.
In analyzing the circumstances of Turner’s final written
warning and discharge under Wright Line is clear that Turner
was openly active on behalf of the Union and that all of the
Respondent’s supervisors in the transit department were aware
of his support for the Union. In fact, the credited testimony of
former Supervisor Keith Lewis establishes that Wyss referred
to Turner as a Union “ringleader.” As I have noted previously
in this decision, the Respondent has exhibited substantial ani-
mosity toward the Union’s attempt to organize its nonclinical
support employees through its commission of multiple unfair
labor practices. In addition, however, the Respondent exhibited
substantial animus toward the union activities of Turner. After
Turner refused to acquiesce in Clark’s February 2013 directive
to not wear any union insignia at work, in April 2013, the trans-
UPMC 61
it department supervisors launched a campaign against Turner
to ensure that he complied with their demand that he stop wear-
ing union insignia. In this regard, in April 2013, Turner was
unlawfully photographed while wearing his insignia, unlawful-
ly interrogated as to why he continued to wear it, and was sub-
ject to implicit demands on two occasions that he remove his
union insignia. Faced with this onslaught of unlawful activity,
Turner finally stopped wearing his union pin on April 16. On
the basis of the foregoing, I find that the General Counsel has
established under Wright Line, supra, that Turner’s union activ-
ity was a motivating factor in the employer’s decision to give
him a final warning and discharge him. Accordingly, the bur-
den shifts to the Respondent to show that it would have taken
the same action against Turner in the absence of his union ac-
tivities.
As I noted previously in this decision, in order to meet its
Wright Line burden, the Respondent must establish that it has
applied its disciplinary rules consistently and evenly. DHL
Express, 360 NLRB 730, 736 (2014). In support of its defense
with respect to Turner’s alleged discriminatory final warning
for using his cell phone while driving his shuttle bus, the Re-
spondent notes that on March 27, 2013, employee Janell Saban
received a written warning for using her cell phone while driv-
ing her shuttle bus. (GC Exh. 30.) The warning indicates that
Saban admitted to answering her phone while her bus was in
operation and passengers were on board. The warning does not
indicate that Sabin had received any prior discipline. The Re-
spondent contends that Saban was given a written warning
because that is the appropriate first step of discipline for safety
violation. The Respondent’s corrective action policy indicates
that the violation of a safety rule, depending on the circum-
stances, may be appropriate for written warning without prior
counseling. (GC Exh. 161, p. 2.)
After Turner was issued his final written warning for using
his cell phone while driving his bus, the Respondent issued two
other written warnings to employees for cell phone usage while
driving. While this evidence is relevant, since it occurred after
the discipline issued to Turner, I assign it less weight than the
evidence regarding the Respondent’s practice with respect to
this issue prior to the discipline issued to Turner. On October
14, 2013, the Respondent issued a written warning to David
Byers. (R. Exh. 322.) Byers’ warning reflects that he was ob-
served by his supervisor using his cell phone while operating a
shuttle bus and that he admitted to using the phone while the
bus was in operation. Finally, on November 21, Richard Tyree
was issued a written warning for using his cell phone while
operating his shuttle bus. Tyree admitted using the phone while
his bus was in operation. (R. Exh. 323.) Clark testified that both
Byers and Tyree were driving on public roads when they were
observed using their cell phones.
The General Counsel and the Union contend that the Re-
spondent has disparately applied its policy regarding the issu-
ance of warnings to employees for cell phone usage. In this
connection, Clark testified that he had received a report from a
dispatcher Nancy McCracken that employee Marilyn Showater
used her cell phone while operating a shuttle bus. Clark further
testified that he spoke to Showater and that while she did not
admit to using her cell phone, he told her she should not be
using her cell phone while driving a bus. (Tr. 2602–2603.)
Showater was not issued any discipline for this incident. I also
credit Keith Lewis’s testimony that he observed Showater’s cell
phone use while driving and reported it to both Hill and Clark.
(Tr. 1135–1136.) According to the portion of Lewis’ pretrial
affidavit that was read into the record by Respondent’s counsel,
Showater was driving through the parking lot near the garage
when she was observed on her cell phone. (Tr. 1138.)
The General Counsel and the Union also contend that the
Respondent has not applied to supervisors its policy of issuing
discipline to individuals who use cell phones while driving. On
its face, the UPMC cell phone and electronic devices policy (R.
Exh. 12) applies to all of the individuals employed in the Re-
spondent’s employee transit department. In fact, Wyss specifi-
cally admitted that it applied to both supervisors and employees
(Tr. 2536). I find, based on Turner’s credited testimony, that he
observed Supervisor Hill frequently using the cell phone while
Hill was driving the commercial van he utilized in the perfor-
mance of his duties. (Tr. 973.)
As I have noted above, former Supervisor Keith Lewis testi-
fied on behalf of the General Counsel.46 Lewis testified regard-
ing a specific incident when he spoke to Wyss while Lewis was
on his cell phone driving one of the Respondent’s trucks. Lewis
and Clark were driving to an accident scene when Wyss called
Lewis on his cell phone. When Lewis answered, Wyss asked
him why he was answering the phone while he was in his truck,
as he was not allowed to do so. Lewis responded, “I only an-
swer this phone for two people. My bosses, one is you and one
is my wife.” Wyss then asked Lewis where he was going and
details of the accident he was investigating (Tr. 1126–1128.)
Lewis testified he received no discipline for this incident. Lew-
is also testified that he observed Hill on his cell phone while
driving one of the Respondent’s vehicles approximately three
times a week. Lewis testified that, while he could not recall
specific dates, he mentioned to Wyss on several occasions that
he observed Hill using his cell phone while driving (Tr. 1134.)
Wyss denied talking with Lewis on his cell phone while
Lewis was driving (Tr. 2134) Wyss recalled an incident when
he spoke on the phone with Lewis and asked him if he was
driving but Lewis answered that he was not. Wyss further testi-
fied that all individuals who were observed using the cell phone
while driving had been counseled or disciplined.
I credit Lewis with respect to the conflict in the testimony
between Lewis and Wyss. Lewis’ testimony was detailed and
his demeanor reflected that he distinctly recalled the events that
he testified about. I do not think the fact that Lewis had been
discharged by the Respondent motivated him to give false tes-
timony. I could detect no animosity toward the Respondent
with regard to the manner in which Lewis answered questions
on both direct and cross-examination. On the other hand, Wyss
testified regarding these issues in a somewhat perfunctory

46 Lewis was employed by the Respondent as the fleet supervisor. He
supervised the six mechanics that were responsible for maintaining the
vehicles used in the Respondent's transit department. Lewis was em-
ployed from September 6, 2011, to July 10, 2013, when he was dis-
charged for directing an employee to operate a vehicle with an expired
inspection sticker.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD62
manner and without much detail. On balance, I find that the
testimony of Lewis is the more reliable version.
In further assessing the Respondent’s defense, I also note
that the Respondent conducted no investigation into the cir-
cumstances surrounding Turner receiving a cell phone call as
he entered the parking lot from the entrance ramp. Despite the
Respondent’s marked propensity to obtain a written statement
from an employee under investigation for possible discipline,
Turner was never asked to provide a written statement to ex-
plain why he had answered his cell phone. This failure to give
Turner any opportunity to explain his conduct before issuing a
final warning is in marked contrast to the extensive investiga-
tion that was directed toward Turner’s union activity during the
period surrounding April 15. On April 15, when Clark and
Sargent observed Turner on his cell phone, they were at the
parking lot to secure a statement from him about why he con-
tinued to wear his union pin. When Turner called Clark to ask
whether he would be written up for wearing his union pin,
Clark informed him that there was an investigation pending and
he was not sure what would happen. The next day, after Nedley
observed Turner still wearing his union button, Nedley com-
pelled Turner to come to his office and Turner was required to
give another written statement explaining why he was still
wearing union insignia. During this entire period of investigat-
ing Turner’s union activity, there was no mention made of his
cell phone use. Under the circumstances, I find that the Re-
spondent’s lack of investigation into the circumstances sur-
rounding Turner’s cell phone usage is indicative of a discrimi-
natory motive with respect to the written warning he was given.
Publishers Printing Co., supra.
After considering all the foregoing, I have concluded that the
Respondent has not met its burden under Wright Line of estab-
lishing that it would have given Turner a final written warning
for his cell phone usage, absent his union activity. While the
Respondent has issued a written warnings to three employees
for engaging in cell phone usage, only one of those employees,
Saban, was disciplined prior to the final written warning given
to Turner. In addition, Saban was talking on her cell phone
while passengers were on her bus. The written warnings issued
to employees Byers and Tyree both occurred several months
after the final written warning issued to Turner. I also note in
both instances, these employees were driving their bus on a
public road when they were observed on their cell phone.
As noted above, employee Marilyn Showater was merely
given a verbal counseling when it was reported by both a dis-
patcher and supervisor Lewis that she was observed on her cell
phone while in a parking lot near the garage. While the testi-
mony did not establish the date of this occurrence, since Lewis
testified he observed it, it occurred prior to July 2013, when
Lewis was discharged. Since there is no evidence that Showater
had any employees on her bus and was observed on her cell
phone while in a parking lot, I find that the situation regarding
her cell phone use while driving is comparable to that of
Turner.
I also find Turner’s credited testimony establishes that he ob-
served Hill talking on his cell phone while driving on numerous
occasions. The credited testimony of Keith Lewis establishes
that while Lewis was driving one of the Respondent’s trucks,
he had a cell phone conversation with Wyss, under circum-
stances which establish that Wyss knew that Lewis was driving.
In addition, Clark was present with Lewis when this conversa-
tion occurred. I also find that that Lewis informed Wyss on
several occasions that he observed Hill using his cell phone
while driving a company vehicle. There is no evidence that
Lewis or Hill were ever disciplined for their cell phone usage
while driving. I note that the Board has held that failing to dis-
cipline a supervisor for engaging in similar conduct for which
an employee is disciplined, is evidence of disparate treatment.
Manimark Corp., 307 NLRB 1059 (1992), enf. denied 7 F.3d
547 (6th Cir. 1993).
After considering all the foregoing, I find that the Respond-
ent has not met its burden of showing that it has consistently
and evenly applied its policy regarding the discipline adminis-
tered to employees for the use of a cell phone while driving.
Accordingly, I find that the Respondent has not met its burden
under Wright Line to establish that it would have given Turner
a final written warning absent his union activity. Accordingly, I
find that Turner’s final written warning violates Section 8(a)(3)
and (1) of the Act. Because Turner’s final written warning was
unlawful I find that the Respondent was not privileged to rely
on it to accelerate Turner’s discipline to the discharge level
under its progressive disciplinary policy. As noted above,
Turner had received seven occurrences under the tardiness
policy and it requires nine occurrences for an employee to
reach the discharge level under that policy. By relying on the
discriminatorily motivated final warning to accelerate Turner to
the discharge level under its progressive discipline policy, the
Respondent’s discharge of Turner also violates Section 8(a)(3)
and (1) of the Act.
The Allegations Regarding James Staus
James Staus was the principal General Counsel witness in
support of the following complaint allegations alleging that the
Respondent violated Section 8(a)(1) of the Act. Paragraph 9 of
the complaint alleges that in February 2013, the Respondent, by
Ryan Beaver impliedly threatened its employees because of
their union activities. Paragraph 21 of the complaint alleges that
on April 3, 2013, the Respondent, by Beaver, interrogated its
employees about their union membership. Paragraph 31 of the
complaint alleges that the Respondent, by Ryan Beaver and
Paul Ondo, disparately applied the Respondent’s solicitation
policy to employees who supported the Union. Finally, para-
graph 25 alleges that on April 26, the Respondent, by Paul On-
do, interrogated employees about their union membership.
The complaint also alleges that the Respondent issued ver-
bal warnings to James Staus on April 4 and 26, 2013, placed
Staus on a performance improvement plan (PIP) on May 14,
2013 and discharged him on July 1, 2013, in violation of Sec-
tion 8(a)(3) and (1) of the Act.
Background
The Respondent has a department known as supply chain,
which includes various divisions such as employee transit, con-
tracting, moving and storage, and central supply and distribu-
tion. Central supply and distribution involves the moving and
maintenance of medical supplies. The supply chain department
is responsible for the supply rooms, which are also referred to
UPMC 63
as PAR locations that are located within clinical areas of the
hospital. PAR stands for “preferred amount of reorder.” A PAR
level is a threshold amount of a given product that is deter-
mined by a computer. A minimum par is 6 days worth of prod-
uct. PAR levels are reevaluated every 3 months to 6 months.
This is referred to as a PAR reset. The supply rooms are main-
tained by supply specialists. Each supply specialist is assigned
to specific supply rooms. Supply specialist have the following
primary duties: ordering products, stocking products, rotating
supplies, and maintaining the cleanliness of supply rooms.47
Supply specialists at Presbyterian Hospital work from approxi-
mately 5 a.m. until 1 p.m., Monday through Friday.
In early 2013, Ryan Beaver, a senior materials manager, and
Paul Ondo, a supervisor, were assigned to supervise the supply
specialists at Presbyterian Hospital.48 There were 12 supply
specialists at Presbyterian Hospital who reported to Ondo and
Beaver and these employees supplied 87 supply rooms. The
supply specialists who supplied the operating room supply
rooms reported to another manager.
In January 2013, Beaver and Ondo began rearranging the 87
supply rooms they were responsible for in a process referred to
as “PAR rebuilds.” A PAR rebuild involves rearranging the
manner in which materials are stored in a way that is deemed to
be more efficient. This process ended in approximately the
middle of March 2013. After the PAR rebuilds were complete,
Beaver and Ondo changed the department’s ordering system.
Prior to this time the supply chain department in Presbyterian
Hospital used a same day ordering system in which products
arrived the day after it was ordered. Presbyterian Hospital was
the only hospital in the UPMC system using the same day
method of ordering. Beaver and Ondo instituted a next day
ordering system in which products are received 2 days after
they are ordered. However, some units, such as intensive care
units and emergency rooms continued to be ordered on an eve-
ryday basis.
Clinical employees constantly go into supply rooms
throughout the day to obtain needed supplies. At times, em-
ployees from one unit will go to the supply room in another
unit to obtain supplies if the supply room in their unit does not
have what is needed. As noted above, supply specialists are
finished with their work at approximately 1 p.m. and conse-
quently do not see their assigned supply rooms until the next
morning.
The February 2013 8(a)(1) Allegation
James Staus began to work as a supply specialist for the Re-
spondent in 2006 at Presbyterian Shadyside hospital. In 2012
Staus began to openly support the Union. In this connection, he
wore a pin indicating “Make It Our UPMC” and placed union
literature in the loading dock area of the hospital and in the

47 The Respondent is monitored by various regulatory agencies in-
cluding the Department of Health which monitor standards governing
supply operations. These standards include that products must be stored
6 inches above the ground and 18 inches away from the ceiling, and
may not be expired.
48 Beaver also had supervisory responsibility for approximately 11
facilities affiliated with UPMC and supervised altogether approximate-
ly 120 employees.
supply specialist locker room.
From the time he was hired in 2006 until he went on medical
leave in December 2012, for knee surgery, Staus did not have
permanent assignment regarding the supply closets he was
responsible for. Rather, he was a “floater” and filled in for sup-
ply specialists that were absent or on vacation. From the time
he began working for the Respondent until 2013, Staus had not
been disciplined or counseled for his job performance. His
evaluations for the period from 2006 through 2008 indicate
generally that he met or exceeded the requirements of his posi-
tion (GC Exhs. 104, 105, and 106). His evaluations for the pe-
riod from July 2010 to July 2011 (GC Exh. 183) and July 2011
to July 2012 (GC Exh. 184) indicate indicates that overall he
was rated as a “Solid, Strong, Good Performer.”
When Staus returned from his medical leave on February 13,
2013, he was assigned for the first time the task of attending to
specific supply closets. Staus was assigned nine supply rooms,
a number consistent with those serviced by the other supply
specialists. At this time Staus was the only one of the 12 supply
specialist to openly support the Union.
According to Staus’s uncontradicted testimony, shortly after
his return to work in February 2013, he attended a meeting with
the other supply specialists and Beaver and Ondo. Staus was
wearing his union button that indicated “Make It Our UPMC.”
Beaver asked Staus whether he was “going to continue to put
up the union stuff.” (Tr. 1231.) Staus replied, “Yes. It’s my
right.” Beaver then indicated that Staus did not need a union as
it “takes all your money in union dues and people hate it.” Bea-
ver added that a person he knows who is in a union received
only a 3 percent raise last year. Staus replied that he had re-
ceived only a 2 percent raise. Although Beaver and Ondo testi-
fied at the hearing, they did not testify regarding this conversa-
tion.
I find that Beaver’s statement to Staus in the presence of
other employees that he did not need a union, as a union takes
all your money in union dues and people hate it, is not an im-
plied threat that violates Section 8(a)(1). Beaver’s statement
regarding the payment of dues reflects the economic reality that
unions collect dues from employees they represent. The state-
ment does not convey any implicit threat of reprisal against
employees for selecting a union. Office Depot, 330 NLRB 640,
642 (2000). The portion of the statement indicating that Staus
did not need a union and that “people” hate having dues de-
ducted is not a threat but merely an expression of opinion that
is protected by Section 8(c) of the Act. Accordingly, I shall
dismiss this allegation in the complaint.
The 8(a)(3) Allegations and the April 2013 8(a)(1) Allegations
Regarding Staus
Facts
On April 3, 2013, Staus was wearing on his uniform a
“We’re with Ron” sticker that he had been given by the Union.
Beaver saw the sticker and asked Staus if he was “coming out.”
Staus replied “no”, it’s for Ron Oakes who had been fired
twice. Beaver asked him if it was a union thing and Staus re-
plied that it’s a grass roots union effort to get Oakes’ job back
because he was fired under a policy that nobody has followed
before or since and that his firing was illegal in the view of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD64
union supporters. Later that same day, Staus saw Beaver again
and told him that Staus did not appreciate that Beaver had
called his sexuality into question. Beaver asked Staus what he
was talking about as Beaver did not understand what Staus
meant. Staus stated that Beaver said that he was “coming out.”
Beaver said that if he had offended Staus, he was sorry.
On April 4, Ondo paged Staus to meet him on the loading
dock. When Staus arrived both Beaver and Ondo were present.
Beaver told Staus that he had to write him up because Beaver
had talked to HR earlier that day and that he had to verbally
warn him about his “We’re With Ron” sticker and his “Make It
Our UPMC” button. Beaver handed Staus a verbal warning
dated April 4, 2013 and signed by Beaver (GC Exh. 185),
which stated the following:
James Staus received a verbal warning from Ryan Beaver,
Senior Manager, Materials Management, due to wearing the
stickers and buttons on his uniform that were not approved
under UPMC policy.
They were:
A sticker that said “We’re with Ron” and “Make it our
UPMC”
Management expects James Staus to take advantage of this
verbal warning. He was informed that any further vio-
lations of hospital/department policy will result in a next step
in the corrective action process.
Staus credibly testified that from his return to work in Febru-
ary 2013 through April 2013 he observed employees working
in the same areas as he did wearing lanyards and buttons that
were not related to the Respondent. In this connection, Staus
regularly observed employees wearing lanyards and pins dis-
playing support for the Pittsburgh Steelers, Penguins and Pi-
rates. Staus had a Pittsburgh Penguin’s lanyard that hung out of
his pocket and was attached to his work keys. Staus also saw an
employee with a lanyard that indicated “Zoo Med” although he
testified he did not know what that referred to.
In June 2013, Ondo approached Staus at work and told him
that the verbal warning he received on April 4 was being re-
scinded. When Staus asked why Ondo merely walked away
without answering him. In this regard, the Respondent’s human
resources department issued a memorandum to Staus, dated
June 21, 2013, and signed by both Staus and Ondo which indi-
cates that the verbal warning that Staus received on April 4,
2013, for wearing union buttons and stickers on his uniform
was rescinded from his file. (GC Exh. 186.)
For the reasons expressed above in section of this decision
entitled “The Alleged Disparate Enforcement of the Solicitation
Policy Regarding Union Insignia” I find that Respondent ap-
plied its solicitation policy in a disparate manner by barring
employees from wearing union insignia at work while permit-
ting employees to wear other nonofficial insignia. Accordingly,
I find that the verbal warning given to Staus on April 4, 2013,
violates Section 8 (a)(3) and (1) of the Act. I also find that by
asking Staus if he was “coming out” after observing him wear-
ing his union sticker and pin, Beaver unlawfully interrogated
Staus under the standards set forth in Rossmore House, Scheid
Electric and Intertape Polymer Corp., supra. While by that
point, Staus was an open and known union adherent, the answer
to the question that Beaver asked Staus about his union sticker
and pin was used by the Respondent to give Staus a discrimina-
tory warning. Accordingly, I find that the Respondent, violated
Section 8(a)(1) of the Act by unlawfully interrogating Staus
regarding his union activity.
According to the testimony of Staus, in April 2013 he placed
union literature in the employee break room and on a table in
the dock area where supply specialists swiped in for their shift.
Ondo testified that in April 2013 he observed union materials
placed on the table in the employee break room. Ondo also
testified that he observed union materials posted in a bulletin
board in the dock area where employees swiped in and also on
the refrigerator in the break room. The testimony of both Staus
and Ondo regarding this issue was brief. During his testimony,
Staus did not deny posting union materials on the bulletin board
and on the refrigeration. While I did not find Ondo to generally
be a credible witness, I credit his testimony on this issue as it is
corroborated by the language of the warning given to Staus on
April 3.. I also note that Staus did not specifically deny posting
union materials on the bulletin board in the dock area and on
the refrigerator. Accordingly, I find that Staus placed union
literature on tables in both the employee break room and in the
dock area where employees swiped in. I also find that he posted
union material in the bulletin board in the dock area and on the
refrigerator in the break room.
On April 26, Ondo asked Staus if he had distributed union
literature. Staus indicated that he had and stated that it was his
right to do so. Ondo told him that it was against company poli-
cy and that he would have to write him up for it. Staus testified
that he did not receive anything in writing regarding this inci-
dent. A document subpoenaed by the General Counsel and
introduced into evidence further establishes that on April 26,
2013, Staus received a verbal warning from Ondo “due to post-
ing union materials in the employee break room and on the
dock at Presbyterian Hospital that were not approved under
UPMC policy.” (GC Exh. 110.)
Staus’ testimony establishes that he placed union literature in
nonworking areas and Ondo specifically admitted that he ob-
served union materials placed on the table in the employee
break room. There is no evidence that Staus distributed union
materials during working hours. The Board has long held that
employees have a Section 7 right to distribute union literature
during nonworking time in nonworking areas of an employer’s
premises. Stoddard -Quirk Mfg. Co. 138 NLRB 615, 621
(1962); St. John’s Hospital, 222 NLRB 1150 (1976,) enfd. in
part 557 F.2d 1368 (10th Cir. 1977); Hale Nani Rehabilitation,
326 NLRB 335 (1998). While the warning given to Staus on
April 26, 2013, indicates that it was given to him because he
had “posted” union materials in the employee break room, On-
do’s testimony establishes that the Respondent was also aware
that union material was distributed in the employee break
room. Since the employee break room is clearly a nonworking
area, the warning given to Staus is discriminatory and violates
UPMC 65
Section 8(a)(3) and (1) of the Act.49 The fact that Staus also
posted union literature on the bulletin board in the dock area
and on the refrigerator in the break room does not privilege the
Respondent to issue him a warning for that conduct. As I have
noted above in the section of this decision entitled “Alleged
Disparate Application of the Respondent’s Policy Regarding
Bulletin Boards,” the Respondent has maintained a discrimina-
tory policy with regard to the posting of union materials on
bulletin boards. Accordingly, the warning given to Staus on
April 26, 2013, is also violative of Section 8(a)(3) and (1) on
that basis.
The Placement of Staus on a Performance Improvement Plan
(PIP) and his Discharge
On May 14, 2013, Staus was called to Beaver’s office, where
Ondo and human resources representative Shannon Corcoran
were also present. At this meeting, Beaver gave Staus a “Per-
formance Improvement Plan Document” (PIP). (GC Exh. 187.)
Beaver read the document aloud to Staus and told him that they
were trying to help him. The PIP listed Staus’ alleged perfor-
mance deficiencies, which included products missing from his
supply rooms, products stored in an incorrect manner,and the
unit directors and clinicians in some departments not knowing
Staus’ name and not having his pager number. The PIP also
noted that Staus had been observed taking excessive breaks.
With respect to the goals and objectives of the PIP, the docu-
ment indicated that Beaver and Ondo were to monitor Staus’
units “looking for outages” and that they would review issues
on a daily basis with Staus as they occur. It also indicated that
Beaver and Ondo would determine if all of the regulatory pro-
tocols for storage were met and, if not, photographs would be
shown to Staus. It further indicated that Staus was to meet with
the directors of each unit and share his pager number with the
clinical staff. It also instructed Staus to complete computer
courses involving “Time Management” and “Basics of Effec-
tive Communication” and return the completed certificate for
these courses to Beaver or Ondo by May 27, 2013. The PIP
document also indicated that Beaver, Ondo, and Staus were to
have a weekly meeting to discuss performance improvement
and deficiencies. Finally, the PIP indicated that Staus’ perfor-
mance would be formally reviewed on the plan ending date,
June 28, 2013, and that if Staus’ performance improvement was
not satisfactory, further action would be taken, up to and in-
cluding termination.
Staus testified that he was not asked to explain anything
about his job performance at this meeting and that he had not
seen this action coming. Both Beaver and Ondo testified that at
the end of the meeting, Staus testified that he understood and
that he was going to “go putz around in his supply room.” I do
not credit the testimony of Beaver and Ondo on this point, as it
appeared that they were attempting to portray Staus as indiffer-
ent to this action. I find this testimony to be implausible. Staus,
an employee who had a good work record up until this point,
had been given a document alleging that he had serious perfor-

49 Since the complaint does not allege that Respondent’s solicitation
and distribution policy is facially unlawful, I make no findings regard-
ing the rule itself.
mance deficiencies that, if not corrected, could result in his
termination. Staus’ demeanor did not suggest to me that he
would react to this situation in the flippant manner described by
Beaver and Ondo.
Beaver and Ondo testified that prior to giving the PIP to
Staus they had received numerous phone call complaints about
his performance from unit directors, clinicians, and nurses.
Beaver and Ondo also testified that in April 2013 they began to
counsel Staus . Ondo testified that he worked with Staus in his
supply rooms to show him what he was doing wrong.
According to Beaver, when the efforts to counsel Staus were
unsuccessful, Beaver contacted Corcoran to discuss the next
step. According to Beaver, Corcoran advised him to provide
corrective coaching. Thereafter, Beaver and Ondo continued to
counsel Staus about his deficiencies in maintaining his supply
rooms.
Staus testified that he was not notified of any of complaints
set forth in the PIP before it was given to him and that neither
Beaver nor Ondo had expressed concerns to him about his job
performance.
The testimony of Beaver and Ondo that they extensively
counseled Staus prior to giving him the PIP is not corroborated
by any documentary evidence. In this connection, there are no
emails predating the PIP reflecting complaints regarding the job
performance of Staus. In addition, there are no notes of any
counseling sessions that either Beaver or Ondo had with Staus
prior to giving him the PIP. At the hearing, Ondo conceded that
putting an employee on a PIP is a “last resort.” (Tr. 2276.)
Thus, it would appear, before proceeding to the PIP stage, there
would be some documentary evidence reflecting complaints
regarding Staus and what steps were taken to correct any per-
formance deficiencies. The lack of evidence corroborating the
testimony of Beaver and Ondo in this regard convinces me that
it is another attempt by them to overstate the performance defi-
ciencies of Staus. Accordingly, I credit Staus’ testimony that he
was not advised of the alleged deficiencies in his performance
and counseled regarding how to correct them before he was
given the PIP.
Pursuant to the PIP, either Beaver or Ondo performed daily
audits of Staus’ supply rooms to determine whether the supply
rooms for properly stocked and maintained in the appropriate
fashion. (R. Exhs. 149–152, 154–156, 158–160, 162–165, 168–
177). The daily audits were conducted in the afternoon after
Staus had completed his work day. The daily audit report was
dated on the date it was performed and listed the stock numbers
used to order a product if the supply room was out of such a
product. The daily audit reports contained in the record reflect
that often Staus’ supply rooms would be out of a number of
items. For example, the daily audit for May 23, 2013 (R. Exh.
154), reflects that the supply rooms serviced by Staus were out
of a total of 31 items. On May 28, Staus’ supply rooms were
out of 55 items, (R. Exh. 155); on May 31, 31 items were miss-
ing (R. Exh. 158); and on June 3, 63 items were missing (R.
Exh. 159). Other daily audits reflected, however that between
10 to 20 items were missing and at least 1 day, May 29 (R. Exh.
156) no items were reported as missing. The morning after an
audit either Beaver or Ondo would give Staus the daily audit
report.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD66
Also pursuant to the terms of the PIP, Staus met weekly with
Ondo to discuss the issues set forth in the PIP. Beaver attended
many these meetings but not all. These meetings lasted approx-
imately 15 to 20 minutes. Before the meeting, Beaver or Ondo
would give Staus an agenda of the items to be discussed regard-
ing the manner in which Staus was performing his job and what
steps should be taken to improve. (GC Exhs. 107–109, 189–
192.)
The weekly agenda minute for June 5, 2013, contains a
handwritten notation reflecting “retraining 6/5/13” after the
printed question “What can we do to help improve?” Staus
credibly testified that when he was asked if there was anything
that Ondo or Beaver could do to help improve his performance
Staus replied that he would take any training they had as he
wanted to improve. Shortly thereafter, he worked with Ondo on
two occasions. On the first occasion, Staus would prepare the
order for one supply room and Ondo would prepare the order
for another supply room and they then compared notes to see
what, if anything, Staus was doing wrong. Staus testified that
Ondo could not point out to him any problem with what Staus
had done. On another day Ondo worked with Staus while he
stocked his supply rooms. According to Staus, Ondo did not
inform him of anything he was doing wrong and he did not
observe Ondo perform the job in a different manner than he
did.
Several of the weekly agendas contain references to “email
from units.” Staus was generally not provided information re-
garding these emails. At one meeting, however, Staus was
provided with copies of emails that Gina Barry, the supervisor
in unit 9D, had sent to Ondo and Beaver, indicating that her
unit was getting low on supplies and, in some instances, had
run out for an item. Staus testified that he discussed with Ondo
how Barry had a tendency to exaggerate the status of her sup-
plies, and that Ondo had agreed with him. Ondo did not refute
this testimony and I credit Stuas’ uncontradicted testimony on
this point.
Staus credibly testified that because he had difficulty access-
ing the online courses on the hospital’s computer, he was given
additional time to complete the online courses by Ondo. Staus’
testimony is corroborated by the agenda for the June 26, 2013
weekly meeting, signed by Ondo, which reflects that Staus had
completed the courses by that date. (GC Exh. 192.) I do not
credit the testimony of Beaver and Ondo that Staus was not
given additional time to complete the online courses as the
comments in the June 26, 2013 weekly agenda merely reflects
that the courses were completed, not that they were completed
late.
While there are some references to photographs in the week-
ly agendas, the only photographs that Staus was given during
the period of the PIP were photocopies of four photographs
provided to him at the June 12 meeting. (GC Exhs. 193a-d.) I
find that Staus testified credibly regarding the photographs that
were shown to him. With respect to General Counsel Exhibit
193a, at the hearing Staus identified it as a picture of a pallet on
the loading dock that was not stacked properly Staus testified
Ondo and Beaver told him that it was his pallet and should not
be stacked like that, but that Staus had responded to them that
because of the poor quality of the photograph he could not be
certain it was his. There are no identifying marks on the photo-
graph to clearly establish that the pallet was in fact stacked by
Staus. Even if it was, however, it is only one photograph of a an
allegedly improperly stacked pallet
General Counsel Exhibit 193b is a photograph of a cabinet in
unit 9D, which Staus was responsible for. Staus acknowledged
that the blood tubes pictured in the photograph were not
stacked properly and told Beaver and Ondo that he would not
have left them in that condition. According to Staus, they told
him that it did not matter who did it but that he should just
clean it up. With respect to General Counsel Exhibit 193b, the
photograph was marked “6G,” which is a unit that Staus is
responsible for. Staus was told the photograph shows that there
was an overstock of syringes. Staus reminded Ondo that he had
spoken to him and asked him if he could leave the syringes
there and at the time Ondo had replied that it was fine. Accord-
ing to Staus, Ondo replied that he thought that they were all
going to be used that day.
With respect to the photograph depicted in General Counsel
Exhibit 193d, Staus acknowledged that it showed an overstock
of blood tubes. Staus testified that 6G is an ICU unit and the
clinical personnel in that unit went through a lot of this item
and that he would tend to overstock them on purpose because
of that. Staus testified that he and other supply specialists
would at times overstock items that they knew a unit would use
a lot of, rather than not having enough. Strauss acknowledged,
however, that the rule was that items should not be overstocked
above the PAR.
On July 1, 2013, the Respondent terminated Staus in a meet-
ing he attended with Beaver and Ondo. Staus was given a PIP
conclusion document (GC Exh. 195) that states that there had
been no improvements in keeping his supply rooms clean. The
document also indicates “Paul Ondo and Ryan Beaver have
taken many pictures of product residing in the wrong spot, bins
being unkempt,” and regulatory policies being ignored. With
regard to communication, the PIP conclusion document states
that while Staus met with unit directors, he had not communi-
cated back to them “when they call for missing items.” With
respect to the ordering of items, the document indicated there
had been no improvement and further states that Staus averaged
at least 30 missing items at the end of each day and there had
been days when he had been out of 60 items. The document
also indicates that while Staus completed the “time manage-
ment” computer course but there was no record of him com-
pleting the “Basics of Effective Communication.”
According to Staus’ credited testimony, there was no discus-
sion about the PIP conclusion document when he was terminat-
ed and he was not given an opportunity to respond to the con-
clusion set forth in the document. After the document had been
given to him and read by Beaver he was escorted from the fa-
cility by security. I do not credit the testimony of Beaver and
Ondo that Staus laughed during this meeting. I find that, as with
other parts of their testimony, this was an effort to support the
Respondent’s position that Staus was indifferent to his job at
the hospital. I saw nothing in Staus’ demeanor at the trial that
would indicate that he saw any humor in being discharged from
a job that he had held for 7 years.
UPMC 67
Analysis
In applying the Wright Line analysis to the allegation that
Staus was placed on a PIP and discharged in violation of Sec-
tion 8(a)(3) and (1) of the Act, it is clear that Staus was an ac-
tive and known union supporter. In this regard Staus wore un-
ion insignia that was observed by his direct supervisor. Staus
had also distributed literature on behalf of the union at the facil-
ity and posted literature on a bulletin board. When questioned
about whether he had distributed union material at the facility
by Ondo, Staus readily admitted that he had done so.
I also find that the Respondent harbored animus toward the
union activities of its nonclinical support employees based on
the unfair labor practices that I find it committed. In addition,
the Respondent harbored specific animus toward the union
activities of Staus, the only open union supporter among the
supply specialists. The Respondent demonstrated this animus
by virtue of the unfair labor practices discussed above specifi-
cally directed to Staus’ conduct in wearing union insignia and
distributing and posting union material at the facility.
As noted above, on April 26, Ondo asked Staus if he had dis-
tributed union literature at the facility. Staus admitted that he
had done so and resolutely told Ondo that it was his right to do
so. Ondo told Strauss that it was against company policy to
distribute union literature in the facility and that he would have
to write him up for doing so. Ondo then prepared a verbal
warning dated April 26, 2013, because of Staus’ conduct in
posting union materials in the break room and in the dock area.
On May 14, 2013, Staus was placed on a PIP, approximately 3
weeks after he was unlawfully disciplined for distributing union
literature on April 26, 2013. The timing of the placement of
Staus on a PIP, shortly after Staus asserted his right to distrib-
ute union literature at the facility, is persuasive evidence that
the Respondent’s motive in placing Staus on a PIP was his
union activity. DHL Express, Inc., 360 NLRB 730, 736 (2014);
Toll Mfg. Co., 341 NLRB 832, 833 (2004). Based on the cred-
ited testimony of Staus, I find that he was not given any prior
warning by either Ondo for Beaver that his work performance
was considered to be deficient. Despite this lack of any prior
warning, Staus was placed on a PIP which the Respondent
views as a last resort in correcting employee deficiencies. This
lack of any prior warning prior to being placed on a PIP is a
further indication of a discriminatory motive.
Based on the foregoing, I find that the General Counsel has
established a prima facie case under Wright Line that Staus’
placement on a PIP and his discharge pursuant to the PIP was
discriminatorily motivated and the burden shifts to the Re-
spondent to establish that would have taken the same action
against Staus in the absence of his union activities.
The Respondent contends that Staus was placed on a PIP and
ultimately terminated because the new management team of
Beaver and Ondo concluded that he did not meet the require-
ments of his position. In assessing the Respondent’s defense, I
found particularly probative the credible testimony of Sean
Matulevic, who was called as a witness by the General Coun-
sel. At the time of the hearing, Matulevic was employed as a
supply specialist at Presbyterian Hospital and had worked there
since May 2011. Matulevic worked with Staus and was super-
vised by Ondo and Beaver. While Staus was off from work
because his knee surgery from December 2012 to February
2013, Matulevic supplied the supply rooms in units 6F and 6G
that were assigned to Staus upon his return to work. Matulevic
testified that 6F and 6G are ICU units and would go through a
lot of items. He testified that both units had two supply rooms
supply rooms and that made ordering supplies somewhat more
difficult because of the lack of space in each one. Matulevic
testified that when he supplied unit 9D, another unit normally
serviced by Staus, Matulevic noted that the clinical personnel in
that unit went through a high volume of supplies. He also noted
that the clinical personnel who used that supply room would
often leave it in somewhat more disarray than supply rooms in
other units. Matulevic also testified that when Ondo and Beaver
instituted the new ordering system in March 2013, while he did
not have a problem adjusting to it, some of the other supply
specialists did. Specifically with respect to Staus, Matulevic
testified that Staus did not keep his supply rooms as orderly as
most of the supply specialists but that he was not the worst in
that regard.
Gina Barry, the unit director of unit 9D, testified that Staus
did not keep the supply room stocked during the period of time
that he serviced her unit and that she had to constantly call for
more supplies. Barry further testified that Staus’ performance
never improved during the time that he was the supply special-
ist assigned to her unit. While Barry’s testimony regarding her
request for more supplies is corroborated by emails that she
sent to Ondo and Beaver, I have credited Staus’ testimony that
Ondo agreed with him that Barry would exaggerate the lack of
supplies in her unit. Consequently, I do not assign much weight
to this aspect of her testimony With regard to the portion of her
testimony indicating that Staus’ performance never improved, I
find it to be conclusionary and I give it little weight.
Leslie Poston, the health unit coordinator in unit 9D, testified
that when Staus finished stocking supply room in unit 9D it was
clean, but within hours after being used by the unit personnel, it
would be in disarray. She also testified that employees from
other units would also ask to take supplies from unit 9D when
they had run out. Poston testified that during the time that Staus
supplied the unit 9 supply room, no one had complained to her
about a lack of necessary supplies. Poston’s testimony regard-
ing the fact that the supply room in unit 9D would often be-
come somewhat messy throughout the afternoon is corroborat-
ed by Matulevic’s testimony. The fact is, however, that it is the
responsibility of a supply specialist to maintain a degree of
order in the manner in which materials are stored. While no one
may have complained to Poston about the lack of necessary
supplies while Staus serviced the supply room in unit 9D, her
supervisor Barry, did in fact make some complaints in this re-
gard. Accordingly, I find Poston’s testimony regarding Staus’
job performance to have limited probative value.
In support of its position that it relied on nondiscriminatory
considerations in placing Staus on a PIP and ultimately dis-
charging him, the Respondent relies on the fact that it placed
supply specialist Matthew Schmidt on a PIP on October 14,
2013. Schmidt’s PIP indicates that his performance deficiencies
involved a significant amount of missing product. In this re-
gard, the PIP noted that after the Respondent began to audit
Schmidt’s supply rooms on September 11, he was out of 48
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD68
items in 10 locations. The PIP also noted that Schmidt stored
products in a manner that was not in accordance with the regu-
latory guidelines. Beaver testified that Schmidt was terminated
during the PIP because of an attendance infraction which auto-
matically results in the termination of an employee on a PIP.
While the placement of Schmidt on a PIP for issues similar to
that involving Staus is supportive of the Respondent’s defense,
the fact that it occurred approximately six months after Staus
was placed on a PIP, and an unfair labor practice charge was
filed, lessens its evidentiary value. In addition, the fact that
Schmidt was ultimately terminated for attendance rather than
his performance is also a distinguishing factor from Staus’ situ-
ation.
The Respondent also relies on the fact that Theresa Thomp-
son, a supply specialist at UPMC Hamot in Erie, Pennsylvania,
was placed on a PIP in February 2013. (R. Exh. 411.) I note
that in the instant proceeding, the Respondent denies that it is a
single employer with UPMC, but nonetheless contends that the
placement of Thompson on a PIP in another hospital affiliated
with UPMC supports its position that the action taken against
Staus was nondiscriminatory. While Beaver did not directly
supervise Thompson he had some involvement with the “doc-
umentation” of the PIP (Tr. 1948.) Thompson’s PIP reveals that
her performance deficiencies involved incorrectly storing prod-
ucts. The PIP also notes that because Thompson did not follow
the established guidelines for scanning the items in the supply
closets, and this led to items being out of stock in multiple “par
locations.” Finally, the PIP reflects that Thompson failed to
follow directions given by management and relied on previous
practices that were contrary to current policies. Prior to the
completion of her PIP, Thompson was discharged because of
an attendance violation. Since Thompson did not work at Pres-
byterian Hospital, I find that her placement on a PIP has limited
value in assessing the placement of Staus on a PIP and his ulti-
mate discharge. For example, there is no record evidence indi-
cating that at the UPMC Hamot facility the placement of an
employee on a PIP is considered to be a last resort as it is at
Presbyterian Hospital.
The Respondent also relies on the fact that Mary Fisher, who
was employed as a supply team lead in the UPMC Hamot facil-
ity in Erie, Pennsylvania, was placed on a PIP on May 7, 2012,
and terminated at the conclusion of that plan on June 25, 2012.
The PIP conclusion document reflects that Fisher was unable to
demonstrate leadership qualities to the staff that she was re-
sponsible for. The document also notes that Fisher did not im-
prove in providing accurate information to other hospital em-
ployees and she did not utilize the standard inventory practices,
but rather created her own procedure that was proven to be
ineffective in managing the inventory. As with Thompson, the
fact that Fisher did not work at Presbyterian Hospital, but at
another facility related to UPMC, lessens the value of this evi-
dence. In addition, Fisher held a different position, team leader,
from that of Staus and was terminated because of an inability to
communicate and implement the facility’s procedures. Thus, I
find Fisher’s placement on a PIP and her discharge for failing
to meet the requirements set forth in her PIP to involve circum-
stances substantially different than those involving Staus.
The General Counsel and the Union contend that the Re-
spondent’s treatment of supply specialist Barbara Mathis estab-
lishes that the Respondent treated Staus in a disparate manner.
In this regard, they argue that Mathis had similar documented
performance problems to those of Staus but was never placed
on a PIP or subject to any discipline. Mathis was a supply spe-
cialist at Presbyterian Hospital at the same time that Staus was
employed. Beaver testified that because of concerns about
Mathis’ performance, she was subject to daily audits for several
months beginning on June 12, 2013. The daily audit for June
17, 2013, reflects that there were “complaints from Units that
they were “consistently out of items.” This document also re-
flects that other rooms were overstocked and that there were
items stored on the floor and overflowing product was coming
out of bins. (GC Exh. 91, p. 4.) During the period between July
18, and September 23, 2013, Ondo received email complaints
from approximately 5 unit directors whose supply rooms were
stocked by Mathis. The complaints included supply rooms be-
ing in disarray, overstocked items and missing items. (GC Exh.
91, pp. 7–10, 13.) The daily audit for September 17 reveals that
the areas serviced by Mathis were out of 54 items, that rooms
needed to be cleaned and that there were broken bins and divid-
ers. (GC Exh. 91, p. 12.) On September 18, the rooms supplied
by Mathis were out of 31 items, some rooms had overstock and
rooms needed to be “straightened out.” On September 25, the
supply rooms stocked by Mathis were out of 51 items and
rooms needed to be cleaned and overstock removed. (GC Exh.
91, p.14.) Beaver testified that Mathis was never placed on a
PIP because she responded well to coaching.
As I have noted previously in this decision, in order to meet
its burden under Wright Line, an employer must establish that it
has consistently and evenly applied its disciplinary policies.
DHL Express, Inc., supra; Septix Waste, Inc., 346 NLRB 494,
495–496 (2006.)
The Respondent has placed one other employee, Schmidt, on
a PIP for performance related problems similar to those of
Staus but this action occurred after Staus was placed on a PIP
and ultimately discharged for allegedly not improving his per-
formance. As I have noted above, however, the Respondent’s
action toward Schmidt occurred several months after the
placement of Staus on a PIP and therefore I give it less weight
to conduct that occurred before or during this same period that
Staus was evaluated. Moreover, Schmidt was ultimately dis-
charged for having an occurrence during the period he was on
the PIP, which resulted in his automatic discharge. Thus, the
circumstances of his discharge is not comparable to that of
Staus, since he was not discharged for failing to complete the
requirements set forth in the PIP.
The placement of employees Thompson and Fisher on PIPs
is distinguishable from Staus’ situation as they occurred at a
different facility than the Respondent. In addition, Fisher held a
different position, supply lead, and was placed on a PIP ulti-
mately discharged because of her inability to effectively
demonstrate leadership and communication skills.
I find that the evidence establishes that the Respondent treat-
ed Staus in a disparate fashion from Mathis. Both employees
held the same position contemporaneously. Shortly after Staus
engaged in open union activity, he was placed on a PIP, without
receiving prior counseling and was then discharged for alleged-
UPMC 69
ly failing to improve his performance. Mathis, on the other
hand, was closely monitored from June to September 2013, and
at the end of that period was still having the same performance
related problems of missing products, overstocked items and
disorderly supply rooms. While Beaver claims that Mathis was
not placed on a PIP because she responded well to coaching,
the objective evidence described above establishes that his
testimony in this regard is not credible. While the objective
evidence establishes that Staus had performance related issues,
they were similar to those involving Mathis, but he was treated
in a much different fashion. Under the circumstances, I find
that the Respondent has not met its burden under Wright Line to
establish that it would have placed Staus on a PIP absent his
union activity. Accordingly, I find that his placement on a PIP
violates Section 8(a)(3) and (1) of the Act.
With respect to his discharge, the evidence described above
establishes that the Respondent has not discharged any other
supply specialist for performance related problems. Rather, the
evidence indicates that the Respondent tolerated similar per-
formance from Mathis without the imposition of any discipli-
nary action. Accordingly, I find that the Respondent’s dis-
charge of Staus also violates Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act by
(a) Denying nonemployee organizers access to its cafeteria
by causing the police to remove them while permitting other
visitors and guests of hospital personnel to use the cafeteria.
(b) Engaging in the surveillance of conversations and meet-
ings between employees and union organizers.
(c) Engaging in the surveillance of employees meeting with
union organizers by requiring employees to produce identifica-
tion.
(d) Discriminatorily prohibiting employees from wearing
union insignia in patient care areas while permitting employees
to wear insignia regarding other entities not related to the hos-
pital in patient care areas.
(e) Prohibiting employees from wearing union insignia in
nonpatient care areas.
(f) Discriminatorily prohibiting employees from posting un-
ion materials on its bulletin boards while allowing the ESS
employee council to post materials on its bulletin boards.
(g) Coercively interrogating employees regarding their un-
ion activities.
(h) Threatening to discipline employees for refusing to par-
ticipate in an unlawful interrogation.
(i) Impliedly threatening an employee with a poor evalua-
tion because of her union activities.
(j) Instructing employees they were not allowed to post any
union materials on bulletin boards.
(k) Coercively requiring employees to write a statement re-
garding their union activities.
(l) Demanding employees’ consent to be photographed and
photographing employees engaged in union activity without
proper justification.
(m) Coercively informing an employee that the manner in
which she solicited statements from employees during its inter-
nal grievance process was the reason a warning had been re-
scinded.
2. The Respondent has engaged in an unfair labor in viola-
tion of Section 8(a)(2) and (1) of the Act, by dominating, inter-
fering with the formation and administration of, and rendering
unlawful assistance in support to the ESS employee council.
3. The Respondent has engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act by
(a) Issuing a final written warning to Felicia Penn because
of her union activity.
(b) Suspending and issuing a final written warning to Leslie
Poston because she used its email system to send a union relat-
ed message.
(c) Discharging Finley Littlejohn because of his union activ-
ities
(d) Issuing a final written warning and discharging Albert
Turner because of his union activities
(e) Issuing a verbal and written warning to James Staus,
placing him on a Performance Improvements Plan (PIP) and
discharging him because of his union activities..
4. The Respondent has engaged in unfair labor practices in
violation of Section 8(4), (3), and (1) of the Act by.
(a) Discharging Ronald Oakes because of his union activi-
ties and because he was named in a prior unfair labor practice
charge
(b) Issuing a final written warning to Chaney Lewis because
of his union activities and because he was named in a prior
unfair labor practice charge.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
6. The Respondent has not otherwise violated the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair 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.
I order that the Respondent withdraw all recognition and
completely disestablish the ESS employee council and refrain
from recognizing it, or any successor, as a representative of any
of the Respondent’s employees for the purpose of dealing with
the Respondent concerning terms and conditions of employ-
ment.
The Respondent, having discriminatorily discharged Ronald
Oakes, Albert Turner, Finley Littlejohn, and James Staus, must
offer them reinstatement and make them whole for any loss of
earnings and other benefits. Backpay shall be computed in ac-
cordance 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 prescribed in Kentucky Riv-
er Medical Center, 356 NLRB 6 (2010).
The Respondent, having discriminatorily suspended Leslie
Poston must make her whole for any loss of earnings and other
benefits. Backpay shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD70
I shall order the Respondent to compensate the above-named
employees for the adverse tax consequences, if any, of receiv-
ing lump sum backpay awards and to file a report with the So-
cial Security Administration allocating backpay awards to the
appropriate calendar quarters for each employee. Don Chavas,
LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014).
In the complaint the General Counsel sought the following
additional remedies for any unfair labor practices I may find in
this proceeding: (a) a 120-day notice posting period; (b) a read-
ing of the notice “at a meeting or meetings of UPMC Presbyter-
ian Shadyside employees, scheduled to ensure the widest possi-
ble employee attendance, during working hours in the presence
of the Board agent.”; (c) grant the Union access to public areas
in the UPMC Presbyterian Shadyside facilities with the right to
speak to employees during employees’ non-working time; and
(d) “[d]uring the period that the NLRB Notice to Employees is
posted in connection with this proceeding, allow current em-
ployees to post Union literature and notices on its bulletin
boards and all places where notices to employees are custom-
arily posted within Respondent’s UPMC Presbyterian
Shadyside facilities.” In their briefs, the General Counsel and
the Union argue in support of these additional remedies, while
the Respondent opposes the imposition of any additional reme-
dies beyond those usually provided for.
I deny the General Counsel’s request for 120-day notice pe-
riod as neither the General Counsel Union nor the Union has
provided any authority for extending the Board’s traditional 60
day notice posting period.
In considering the other special remedies sought by the Gen-
eral Counsel, I note that the Board has held that in determining
whether additional remedies are necessary to fully dissipate the
coercive effect of unlawful discharges and other unfair labor
practices it has broad discretion to fashion a remedy to fit the
circumstances of each case. Pacific Beach Hotel, 361 NLRB
709, 710–711 (2014); Excel Case Ready, 334 NLRB 4, 5
(2001). In this regard, the Board has held that a public reading
of the notice is an “effective but moderate way to let in a warm-
ing wind of information, and more important, reassurance.”
Federated Logistics & Operations, 340 NLRB 255, 256 (2003)
citing J.P. Stevens & Co. v. NLRB, 417F.2d 533, 539–540 (5th
Cir. 1969). In the instant case, I find that the unfair labor prac-
tices of the Respondent justify the additional remedy of a notice
reading. The Respondent responded to the Union’s organizing
campaign with extensive and serious unfair labor practices. In
the first instance, the Respondent has engaged in numerous
violations of Section 8(a)(1) of the Act. As part of its campaign
in opposing the Union, and in order to dissuade employees
from supporting it, the Respondent formed and dominated the
ESS employee council in violation of Section 8(a)(2) and (1) of
the Act. In addition, the Respondent discharged four employee
supporters of the Union, including three of the most visible,
Oakes, Turner, and Staus. The Board has noted that the unlaw-
ful discharges of union supporters are highly coercive and that
is particularly true when employee leaders of the union move-
ment have been terminated. Excel Case Ready, supra at 5.
While the potential unit of nonclinical support employees
that the Union is attempting to organize is large, approximately
3500 employees, the Board has granted a notice reading reme-
dy when serious unfair labor practices have been committed in
a relatively large unit. In this connection, the Board granted a
notice reading remedy in Audubon Regional Medical Center,
331 NLRB 374 (2000). In that case, the union was seeking to
represent a unit of approximately 650 employees. During the
union’s campaign, the employer engaged in several violations
of Section 8(a)(1) and discharged one employee and denied
three other employees certain positions in violation of Section
8(a)(3) and (1) of the Act. Given the seriousness of the of the
Respondent’s unfair labor practices in the instant case, which
were committed in several different departments, I find that a
reading of the notice to the employees the Union is seeking to
organize, the Respondent’s nonclinical support employees, will
serve to appropriately ameliorate the lasting impact of the Re-
spondent’s coercive conduct.
As noted above, I have broad discretion in terms of fashion-
ing an appropriate remedy. Although the General Counsel did
not specifically request a broad order as a remedy, I find that
the Respondent has engaged in such egregious and widespread
misconduct so as to demonstrate a general disregard for em-
ployees’ statutory rights and I will therefore issue a broad order
requiring the Respondent to refrain from violating the Act “in
any other manner,” instead of a narrow order to refrain from
engaging in conduct violative of the Act “in any like or related
manner.” Hickmott Foods, 242 NLRB 1357 (1979). The Board
has noted that a broad order can be appropriate even when a
respondent has not been shown to have committed prior viola-
tions of the Act, when the conduct engaged in is egregious or
widespread. Federated Logistics & Operations, supra at 258 fn.
9.
I find that my order that the notice be read to the Respond-
ent’s nonclinical support employees and the issuance of a broad
order are sufficient special remedies to address the unfair labor
practices that occurred herein. Accordingly, I deny the General
Counsel’s request that the Union be given access to public are-
as in the Respondent’s facilities with the right to speak to em-
ployees during their nonworking time. The Board has typically
granted such a remedy in circumstances different than those
present in the instant case. For example, while the Board grant-
ed such a remedy in United States Service Industries, Inc., 319
NLRB 231 (1995), the employer in that case was a third time
recidivist with a long history of opposition to the statutory
rights of its employees. In Audubon Regional Medical Center,
supra, the Board imposed such a remedy, in addition to other
special remedies, in lieu of granting a bargaining order under
NLRB v. Gissel Packing Co., 395 U.S. (1969), and in conjunc-
tion with a direction of a second election.
I also deny the General Counsel’s request that during the no-
tice posting current employees be permitted to post union litera-
ture and notices on bulletin boards and in all places where no-
tices are customarily posted. Given the notice reading remedy
and broad order I am ordering in this case, I do not believe this
additional special remedy is warranted under the circumstances
present here. While such a remedy was granted in United States
Service Industries, supra, as noted above, that case involved a
serial recidivist. In Excel Case Ready, the Respondent commit-
ted egregious unfair labor practices, including the discharge of
3 employees, in a relatively small unit of 32 employees which
UPMC 71
exacerbated the effect of those unfair labor practices. In Block-
buster Pavilion, 331 NLRB 1274 (2000), this special remedy,
in addition to others, was imposed in lieu of granting a Gissel
bargaining order.
While I have found that the Respondent has discriminatorily
applied its bulletin board policy, I find that, under the circum-
stances of this case, the Board’s traditional remedy for such a
violation is sufficient, as modified by the Board’s analysis in
Register Guard I, supra. See Vons Grocery Co., 320 NLRB 53,
57 (1995), and Honeywell, Inc., 262 NLRB 1402, 1403 (1982).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended50
ORDER
The Respondent, UPMC Presbyterian Shadyside Hospital,
Pittsburgh, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Denying nonemployee organizers access to its cafeteria
by causing the police to remove them while permitting other
visitors and guests of hospital personnel to use the cafeteria.
(b) Engaging in the surveillance of conversations and meet-
ings between employees and union organizers.
(c) Engaging in the surveillance of employees meeting with
union organizers by requiring employees to produce identifica-
tion.
(d) Discriminatorily prohibiting employees from wearing
union insignia in patient care areas while permitting employees
to wear insignia regarding other entities not related to the hos-
pital in patient care areas.
(e) Prohibiting employees from wearing union insignia in
nonpatient care areas.
(f) Discriminatorily prohibiting employees from posting un-
ion materials on its bulletin boards while allowing the ESS
employee council to post materials on its bulletin boards.
(g) Coercively interrogating employees regarding their un-
ion activities.
(h) Threatening to discipline employees for refusing to par-
ticipate in an unlawful interrogation.
(i) Impliedly threatening an employee with a poor evalua-
tion because of her union activities.
(j) Instructing employees they were not allowed to post any
union materials on bulletin boards.
(k) Coercively requiring employees to write a statement re-
garding their union activities.
(l) Demanding employees’ consent to be photographed and
photographing employees engaged in union activity without
proper justification.
(m) Coercively informing an employee that the manner in
which she solicited statements from employees during its inter-
nal grievance process was the reason a warning had been re-
scinded.
(n) Forming, dominating, and rendering unlawful assistance

50 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.
to the ESS employee Council, or any other labor organization
(o) Issuing verbal or written discipline to its employees,
suspending its employees, placing its employees on a Perfor-
mance Improvement Plan (PIP), or discharging its employees
for engaging in union activities
(p) Issuing written discipline or discharging its employees
because they were named in an NLRB charge or participated in
a Board proceeding.
(q) In any other manner interfering with, restraining, or co-
ercing 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) Withdraw recognition from and completely disestab-
lished the ESS employee council, and refrain from recognizing
the ESS employee council, or any successor thereof, as repre-
sentative of any of its employees for the purpose of dealing
with the Respondent concerning terms and conditions of em-
ployment.
(b) Within 14 days from the date of the Board’s Order, offer
Ronald Oakes, Albert Turner, Finley Littlejohn, and James
Staus full reinstatement to their former jobs or, if those jobs no
longer exists, to a substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed.
(c) Make Ronald Oakes, Albert Turner, Finley Littlejohn,
James Staus, and Leslie Poston whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section of
the decision.
(d) Compensate Ronald Oakes, Albert Turner, Finley Lit-
tlejohn, James Staus, and Leslie Poston for the adverse tax
consequences, if any, of receiving a lump-sum backpay awards,
and file a report with the Social Security Administration allo-
cating the backpay awards to the appropriate calendar quarters
for each employee.
(e) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges of
Ronald Oakes, Albert Turner, and Finley Littlejohn, and within
3 days thereafter notify these employees in writing that this has
been done and that the discharge will not be used against them
in any way.
(f) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful placement on
a PIP and discharge of James Staus and within 3 days thereafter
notify the him in writing that this has been done and that his
placement on a PIP and discharged will not be used against him
in any way.
(g) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful suspension
and written warning given to Leslie Poston and within 3 days
thereafter notify her in writing that this has been done and that
the suspension and written warning will not be used against her
in any way.
(h) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful verbal and
written warnings issued to Felicia Penn, Chaney Lewis, Albert
Turner, and James Staus and within 3 days thereafter notify the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD72
in writing that this has been done and that the written warnings
will not be used against them in any way.51
(i) 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.
(j) Within 14 days after service by the Region, post at its fa-
cilities in Pittsburgh, Pennsylvania, copies of the attached no-
tice marked “Appendix.”52 Copies of the notice, on forms pro-
vided by the Regional Director for Region 6, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees 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
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved 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 Respondent at
any time since February 21, 2013.
(k) During the time the notice is posted, convene the non-
clinical support employees, during working time at the Re-
spondent’s Pittsburgh, Pennsylvania facility, by shifts, depart-
ments, or otherwise, and have a responsible management offi-
cial of the Respondent read the notice to employees or permit a
Board agent, in the presence of a responsible management offi-
cial of the Respondent, to read the notice to employees.
(l) 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.
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. November 14, 2014.
APPENDIX
NOTICE TO EMPLOYEES

51 While the Respondent rescinded the written warnings issued to
several employees, the Respondent either gave no reason or unclear
reasons as to why the warnings were rescinded. I believe it is necessary
to have the written warnings rescinded pursuant to this decision and
order so that employees are made expressly aware that the warnings
were unlawful and were rescinded through operation of law.
52 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.”
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 deny nonemployee organizers of the SEIU
Healthcare Pennsylvania, CTW, CLC, or any other union, ac-
cess to our cafeteria by causing the police to remove them
while permitting other visitors and guests of hospital personnel
to use the cafeteria.
WE WILL NOT engage in the surveillance of conversations and
meetings between employees and union organizers.
WE WILL NOT engage in the surveillance of employees meet-
ing with union organizers by requiring employees to produce
identification.
WE WILL NOT discriminatorily prohibit employees from
wearing union insignia in patient care areas while permitting
employees to wear insignia regarding other entities not related
to the hospital in patient care areas.
WE WILL NOT prohibit employees from wearing union insig-
nia in nonpatient care areas.
WE WILL NOT discriminatorily prohibit employees from post-
ing union materials on our bulletin boards while allowing the
ESS employee council to post materials on our bulletin boards.
WE WILL NOT coercively interrogating employees regarding
their union activities.
WE WILL NOT threaten to discipline employees for refusing to
participate in an unlawful interrogation.
WE WILL NOT impliedly threaten an employee with a poor
evaluation because of her union activities.
WE WILL NOT instruct employees that they are not allowed to
post any union materials on bulletin boards.
WE WILL NOT coercively require employees to write a state-
ment regarding their union activities.
WE WILL NOT demand employees’ consent to be photo-
graphed and photograph employees engaged in union activity
without proper justification.
WE WILL NOT coercively inform an employee that the manner
in which she solicited statements from employees during our
internal grievance process was the reason a warning had been
rescinded.
WE WILL NOT form, dominate, and render unlawful assistance
to the ESS employee council, or any other labor organization.
WE WILL NOT issue verbal or written warnings to our em-
ployees, suspend our employees, place our employees on a
Performance Improvement Plan (PIP), or discharge our em-
UPMC 73
ployees for engaging in union activities.
WE WILL NOT issue written warnings or discharge our em-
ployees because they were named in an NLRB charge or partic-
ipated in a Board proceeding.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
WE WILL withdraw recognition from and completely dises-
tablish the ESS employee council, and refrain from recognizing
the ESS employee council, or any successor thereof, as a repre-
sentative of any of our employees for the purpose of dealing
with us concerning terms and conditions of employment.
WE WILL within 14 days from the date of the Board’s Order,
offer Ronald Oakes, Albert Turner, Finley Littlejohn, and
James Staus full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent position, with-
out prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Ronald Oakes, Albert Turner, Finley Lit-
tlejohn, James Staus, and Leslie Poston whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them, in the manner set forth in the remedy sec-
tion of the decision.
WE WILL compensate Ronald Oakes, Albert Turner, Finley
Littlejohn, James Staus and Leslie Poston for the adverse tax
consequences, if any, of receiving a lump-sum backpay awards,
and file a report with the Social Security Administration allo-
cating the backpay awards to the appropriate calendar quarters
for each employee.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharges
of Ronald Oakes, Albert Turner, and Finley Littlejohn, and
within 3 days thereafter notify these employees in writing that
this has been done and that the discharge will not be used
against them in any way.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful placement
on a PIP and discharge of James Staus and within 3 days there-
after notify him in writing that this has been done and that his
placement on a PIP and discharge will not be used against him
in any way.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful suspension
and written warning given to Leslie Poston and within 3 days
thereafter notify her in writing that this has been done and that
the suspension and written warning will not be used against her
in any way.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful verbal and
written warnings issued to Felicia Penn, Chaney Lewis, Albert
Turner, and James Staus and within 3 days thereafter notify
them in writing that this has been done and that the warnings
will not be used against them in any way.
UPMC PRESBYTERIAN SHADYSIDE
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/06-CA-102465 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.