Veritas Health Services, Inc. d/b/a Chino Valley Medical Center

National Labor Relations Board - Administrative Judge Opinions

Oct 17, 2011

31-CA-029713 (N.L.R.B. Oct. 17, 2011)

JD(SF)–39–11
Chino Valley, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
VERITAS HEALTH SERVICES, INC d/b/a
CHINO VALLEY MEDICAL CENTER
and Cases 31–CA–29713
31–CA–29714
UNITED NURSES ASSOCIATIONS OF 31–CA–29715
CALIFORNIA/UNION OF HEALTHCARE 31–CA–29716
PROFESSIONALS, NUHHCE, AFSCME, AFL–CIO 31–CA–29717
31–CA–29738
31–CA–29745
31–CA–29749
31–CA–29768
31–CA–29769
31–CA–29786
31–CA–29936
31–CA–29965
31–CA–29966
Joanna F. Silverman and Simone Pang, Esqs.,
for the General Counsel.
Theodore R. Scott and Brady J. Mitchell Esqs.,
(Littler Mendelson, P.C.) of San Diego, California,
for the Respondent.
Lisa C. Demidovich, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Los Angeles,
California, on June 6–10 and 15, 2011. The United Nurses Association of California/Union of
Healthcare Professionals, NUHHCE, AFSCME, AFL–CIO (the Union) filed the first charge on
May 7, 20101 and the General Counsel issued the order consolidating cases and consolidated
complaint on February 23, 2011.
The complaint alleges that Veritas Health Services , Inc., d/b/a Chino Valley Medical
Center (Chino Valley) violated Section 8(a)(1) of the Act by threatening employees with loss of
employment, termination, and adverse consequences if they supported a union, threatening
and impliedly threatening employees with a reduction in benefits if employees supported a
union, interrogating an employee about union activities, telling employees that since employees

1 All dates are in 2010 unless otherwise indicated.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
2
chose union representation they would lose previously-enjoyed benefits, threatening employees
that it would more rigorously enforce its policies and enforce previously unenforced policies
since the employees chose union representation, instructed employees not to speak to third
parties and/or the media about their protected concerted activities and/or their terms and
conditions of employment, threatening to discipline employees since they chose union
representation, creating the impression among employees that their union and/or protected
concerted activities were under surveillance, and issuing subpoenas duces tecum to employees
and union representatives requiring them to produce communications with each other and
signed authorization and membership cards.2
The complaint alleges that Chino Valley violated Section 8(a)(3) by discharging
employee Ronald Magsino because he supported the Union.
The complaint also alleges that Chino Valley violated Sections 8(a)(3) and (5) by
beginning to enforce a rule requiring employees to be present for mandatory meetings and
disciplined employees who broke this rule; beginning to enforce a rule requiring employees to
clock in for their shifts at their start times, without any grace periods, and disciplined employees
who broke this rule, all because employees engaged in union activities and all without first
giving notice to the Union and giving it an opportunity to bargain about the changes.
Finally, the complaint alleges that Chino Valley violated Section 8(a)(5) when it notified
employees that they could not make shift changes once schedules are posted, and ceased
reimbursing employees who are not full-time for time spent attending certification classes,3
without first giving notice to the Union and giving it an opportunity to bargain about the changes
and by refusing to provide the Union with requested and relevant information.
Chino Valley’s answer admitted the allegations in the complaint concerning the filing and
service of the charges, jurisdiction and interstate commerce, the Union’s labor organization
status, certain agency and supervisory status, appropriate unit, the election, the request and
refusal to provide information and the termination of Magsino. It denied that the Union had
Section 9(a) status, the relevance of the requested information, and that it committed any unfair
labor practices. Finally, it admitted that the Board certified the Union but denies that the
certification is valid. The answer set forth a number of affirmative defenses.
On the entire record,4 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Chino Valley, and the Union, I make
the following.
FINDINGS OF FACT
I. JURISDICTIION
Chino Valley, a corporation, operates an acute-care hospital at its facility in Chino,
California, where it annually derives gross revenues in excess of $250,000 and purchases and
receives goods or services valued in excess of $5,000 directly from points outside California.

2 At the trial, I granted the General Counsel’s motion to withdraw an allegation in the
complaint concerning a Weingarten violation.
3 At the trial, I granted the General Counsel’s motion to withdraw the portion of this
allegation concerning failure to reimburse expenses.
4 Chino Valley’s unopposed motion to correct transcript is granted.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
3
Chino Valley admits, and I find that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Chino Valley employs about 560–570 persons of whom about 130–135 are
nonsupervisory registered nurses. The election was conducted on April 1 and 2. The Union
won the election 72 to 39, Chino Valley filed objections, and on January 25, 2011, the Board
overruled the objections and certified the Union as the collective-bargaining representative of
the unit employees. Chino Valley has refused to recognize the Union and continues to test the
validity of the certification.
During the election campaign Chino Valley distributed campaign leaflets to employees
urging them to vote “no.” One of the leaflets announced:
PROTECT YOUR FLEXIBILITY!
What Might Happen If A Union Contract Locks In Working Rules That Don’t Fit Individual
Needs?
Have You Ever …
…
had your schedule rearranged to make it to school or another job?
changed your schedule with a co-worker after it was posted?
…
made an honest mistake and your director treated it as nothing more than a lesson
learned (our practice of “Just Culture)?[”[
…
Contracts require complete and consistent obedience to what is spelled out in the
contract. If privileges that you value now are not in the contract, the rules in the contract
will prevail.
CAN UNAC GUARANTEE THAT ANY OF THOSE THINGS WILL BE IN
A UNION CONTRACT?
B. Alleged 8(a)(1) Violations
The complaint alleges that on about March 8 Chino Valley threatened employees with
loss of employment if employees supported the Union. Lisa Metheny works part time as a
registered nurse for Chino Valley. She has worked there for 16 years. On March 8, Roberta
“Robin” Buesching, a labor consultant hired by Chino Valley to speak to employees about the
Union, visited Metheny’s work area. Metheny heard Buesching tell two other nurses that during
negotiations, if lawyers were going “head-to-head” and management wouldn’t give anything
else, there could be a strike. Buesching said that Chino Valley could bring in nurses from other
facilities to replace them and Chino Valley could possibly keep some of those nurses at Chino
Valley to work. One of the employees appeared frightened and asked Buesching if Chino
Valley would let her continue to work. Buesching assured the employee that it would and then
said “You know, also the hospital could be closed down and they could fire all the nurses and
then reopen it and keep some of the nurses if they want and bring in others from other facilities.”
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
4
The facts in the preceding paragraph are based on Metheny’s testimony. Metheny’s
demeanor was convincing. Importantly, she did not strike me as a person with the knowledge to
simply invent the fine-line distinctions presented by her testimony. Moreover, Chino Valley’s
cross-examination established that Metheny’s testimony was consistent with the affidavit she
had earlier given the Board during the investigation of the charge. Buesching denied making
those statements but I did not find her to be a convincing witness.
Analysis
While Chino Valley lawfully told employees of the possibility of a strike and consequent
permanent replacement of employees, Buesching also said that Chino Valley could close down,
fire the employees, and then reopen; the latter statements are clearly unlawful. By threatening
to close the facility and terminate employees if they selected a union, Chino Valley violated
Section 8(a)(1). NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).
The complaint alleges that Chino Valley impliedly threatened an employee with reduction
of benefits if employees supported the Union. Teer Lina has worked for Chino Valley since 2000
and works in the emergency room. Her supervisor is Cheryl Gilliatt. But during a time before
the election, Carlos Gonzalez was emergency room supervisor. One day before the election,
Lina was summoned into Gonzalez’s office where Gonzalez handed her the leaflet described
above and said how the relationship between management and the employee would change
when the union was elected. Gonzalez then mentioned how Lina took her vacation an entire
month overseas. Lina did not respond. These facts are based on Lina’s credible testimony.
Gonzales, who is no longer employed by Chino Valley, did not testify at the hearing.
It will be recalled that the leaflet Gonzalez gave to Lina described how current flexibility
could be lost if the Union was selected. Gonzalez then mentioned how Lina took her vacation
for an entire month as she went to visit her home country. The implication was clear: Lina might
not be able to take a 1-month vacation if the Union was selected by the employees as their
bargaining representative. The coerciveness of the statement was heightened by the fact that
she was summoned to Gonzalez’s office. By threatening employees with loss of benefits if they
selected the Union as their collective-bargaining representative, Chino Valley violated Section
8(a)(1). Noah’s Bay Area Bagels, 331 NLRB 188 (2000).
Continuing, the complaint alleges that Chino Valley threatened employees with a
reduction of benefits if employees supported a union. Ronald Magsino worked for Chino Valley
from January 2005 until May 10, 2010. His discharge is alleged to be a violation of the Act and
is discussed below. He worked as a registered nurse in the emergency room. A couple of
weeks before the election he attended a meeting held in the conference room at Chino Valley.
Present were Ruggio and Susanne Richards, Chino Valley’s vice president of operations; less
than ten nurses were also present. Richards displayed slides about the Union. She explained
about employees paying dues, the benefits employees already enjoyed at Chino Valley without
the Union, and that after negotiations, employees could end up with more, the same or less
benefits, and if the Union is selected, communications with Chino Valley have to go through the
Union. Richards also said that if the Union gets voted in, the employees might lose or would
lose the family atmosphere and flexibility of scheduling.
The foregoing facts are based of Magsino’s credible testimony. Richards admitted
having such a meeting and showing slides to employees. She also testified that she had been
trained concerning what she could and could not say about a union to employees. Importantly,
however, she did not deny telling employees that they might lose the family atmosphere and
flexibility of scheduling.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
5
Analysis
As indicated, Richards stated that employees might lose the family atmosphere and
flexibility of scheduling at Chino Valley if they selected the Union. By doing so Chino Valley
violated Section 8(a)1). Flagstaff Medical Center, 357 NLRB No. 65, slip op. at p. 6 (2011);
Gissel Packing, supra.
Next, the complaint alleges Chino Valley interrogated an employee about her union
activities and impliedly threatened an employee with adverse consequences if employees
supported the Union. Rosalyn Roncesvalles has worked at Chino Valley as a nurse for about 5-
1/2 years and beginning in 2009 she became a per diem employee. As such she generally
works only 1 day per week. She works in the emergency room where Gilliatt is her supervisor.
She is paid $35 per hour, plus $4 per hour for the night shift, plus $1.50 as a mobile intensive
care nurse. Roncesvalles pictures, along with the pictures of many other employees, appeared
in fliers distributed by the Union before the election; the pictures showed the employees holding
signs indicating that they supported the Union. On March 31, Roncesvalles was instructed to go
to the conference room because James Lally, Chino Valley’s chief medical officer, wanted to
talk to her. Present in the conference with Lally were Ruggio and two other persons. After
Roncesvalles said good evening, Lally asked how her evening was going. Roncesvalles replied
that it was going okay. Lally produced the flier with Roncesvalles’ picture and asked if she knew
about the flier. Roncesvalles did not answer. Lally then looked at the flier and said [W]here are
you at? Let me look at you. Oh, there you are. You look nice in this picture.” Lally said that he
knew that the signs the employees were holding were actually blank when they took the picture
and the language on the sign was thereafter inserted into the blank sign held by the employees.
Again Roncesvalles did not reply. Lally then jokingly belittled the flier and the employees
appearing in it by saying that it was a good thing they didn’t fill in blank sign held by one
employee with “you’re stupid” and an arrow pointing to the picture of another employee and
filling the blank sign of that employee with “you’re dumb” and an arrow pointing back to the first
employee. Lally then asked Roncesvalles how long she had worked at Chino Valley; she
replied she had worked there about 5 years. He then asked whether Chino Valley had “laid-off
anyone during the five years” and she said, “No”. Lally added that Chino Valley had “been
through a lot of crises and still did not layoff anyone”, Roncesvalles replied “yes”. Lally ended
by saying that he “knows what’s going on in Chino . . .” and that he does not like the Union and
he wanted Roncesvalles to vote no for him because they had a good working relationship even
without the Union. Lally then mentioned that there was food available and Roncesvalles could
help herself; Roncesvalles declined the offer. Roncesvalles had never before personally met
Lally.
As further background, the Union admitted that Lally was correct when he asserted that
some employees held blank signs that were thereafter filled in with words of support for the
Union.
The facts in this section are based on Roncesvalles’ credible testimony which seemed to
have good recall of this meeting. Lally did not testify. I infer that his testimony would not have
been helpful to Chino Valley.
Analysis
Questioning employees about their union activities is not necessarily a violation of the
Act. Rather, all relevant circumstances must be considered to determine whether the
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
6
interrogation was coercive. Rossmore House, 269 NLRB 1176 (1984). On the one hand,
Roncesvalles was an open supporter of the Union; her picture appeared in a flier distributed to
employees. On the other hand, the questioning was repetitive in the sense that Lally asked
about whether Roncesvalles had seen the flier, where her picture appeared in the flier, and
whether she knew that some employees in the flier had actually been holding blank signs.
Importantly, Lally did not disclose to Roncesvalles the sources of his information; this might
have made the questioning more rhetorical and less inquisitorial in nature. Lally was one of
Chino Valley’s highest ranking officials. Indeed, Roncesvalles had never met him before this
meeting. The location of the interrogations occurred away from the work floor in a conference
room. Roncesvalles’ supervisor, Gilliatt, was also in attendance. Roncesvalles faced Lally and
Gilliatt alone. Under all the circumstances I conclude that the questioning was coercive. By
coercively interrogating employees about their union activities, Chino Valley violated Section
8(a)(1).
As described above, Lally then asked Roncesvalles how long she had worked at Chino
Valley and she replied she had worked there about 5 years. He then asked whether Chino
Valley had laid-off anyone during the 5 years; she said no. Lally added that Chino Valley had
been through a lot of crises and still did not layoff anyone; Roncesvalles replied yes. Lally
ended by saying that he 'knows what’s going' on in Chino, that he does not like the Union and
he wanted Roncesvalles to vote “no” for him because they had a good working relationship
even without the Union. Lally thereby raised the matter of the lack of layoffs, even through hard
times, and then linked that subject to how he did not like unions and said he wanted
Roncesvalles to vote “no” in light of their good working relationship. Implicit in these comments
was that with a union, Lally’s good working relationship with Roncesvalles would end and layoffs
could occur. By impliedly threatening employees with layoffs if they supported a union, Chino
Valley violated Section 8(a)(1). National Ass. of Government Employees, 327 NLRB 676, 680–
681 (1999) and cases cited therein.
The complaint also alleges that Chino Valley threatened an employee with termination
because of his union activities and created the impression among its employees that their union
activities were under surveillance. A couple of days after the election, Lally again spoke to
Magsino, this time at an ambulance bay. Lally said he was going to give Magsino a warning.
Lally said that Magsino had been really good about the whole union thing and they were saying
that Magsino violated the solicitation policy. Lally continued, saying that they saw Magsino in a
camera talking to a group of nurses during work hours and organizing something. When
Magsino replied “Dr. Lally …” he was not allowed to continue as Lally said he knew it was crap
and they are making him do it. He said that the policy had been in place for a while and that he
thinks the Union would be able to protect Magsino. Magsino asked when he could expect the
letter; Lally said anytime before the end of the day. Magsino asked whether he would be written
up or suspended: Lally said no, that it was grounds for termination. Apparently the plan of
action described by Lally was changed, as nothing came of the alleged solicitation and no
warning was given.
The foregoing facts are based on Magsino’s credible testimony. I again infer that had
Lally testified, his testimony would not have been helpful to Chino Valley.
Analysis
As indicated, Lally stated that Chino Valley had observed Magsino on camera engaging
in what Chino Valley thought was union activity. This gave Magsino the impression that his
union activity was under surveillance. By doing so, Chino Valley violated Section 8(a)(1).
Flexsteel Industries, 311 NLRB 257 (1993). Lally also threatened to discipline Magsino
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
7
because of what Chino Valley perceived to be his union activities. By threatening to discipline
employees because they engaged in union activities, Chino Valley violated Section 8(a)(1).
The complaint also alleges that Chino Valley told employees that since they chose union
representation, they would lose previously-enjoyed benefits. Terri Hower is a charge nurse and
an admitted supervisor for Chino Valley. After the election in around late April, she announced
to several nurses in the Telemetry Department that employees could no longer take vacations
longer than 2 weeks. Employees, including Tyrone Clavano, had previously been allowed to
take vacations for periods over 2 weeks.
These facts are based on Clavano’s credible testimony; at the time Hower made the
announcement he had recently returned from an extended vacation in the Philippines. Hower,
for her part, did not deny making those statements but instead testified that she could not recall
making them.
Analysis
Hower’s announcement of the change in vacation policy was not explicitly linked to the
employee’s selection of the Union. However, it came shortly after the election and was not
accompanied by any other reason for the change. Remember that before the election, as
described above, Chino Valley explicitly threatened employees that they would no longer be
able to take month long vacations if they selected the Union. And Hower’s announcement
occurred in the context of many other unfair labor practices, described above and below. Under
these circumstances, I conclude that the employees would reasonably link the announcement
with their selection of the Union to be their collective-bargaining representative. In reaching this
conclusion I rely the Supreme Court’s admonition that we:
[M]ust take into account the economic dependence of the employees on their employer,
and the necessary tendency of the former, because of that relationship, to pick up
implications of the latter that might be more readily dismissed by a more disinterested
ear.
Gissel Packing, supra, at 617. By informing employees that they could no longer take vacations
longer than 2 weeks because the employees had selected the Union to represent them, Chino
Valley violated Section 8(a)(1).
Next, the complaint alleges that Chino Valley created the impression among its
employees that their union activities were under surveillance. Dolly Casas is a charge nurse
and an admitted supervisor for Chino Valley. In May, Tyrone Clavano and other employees
were having a conversation in the intensive care unit. Casas approached the group and said
“what are talking about because we’re supposed to know what you are talking about.” These
facts are based on Clavano’s credible testimony. Casas testified that she did not recall saying
those words to Clavano and others and she did not remember much of anything else she was
questioned about. I did not find her demeanor convincing.
Analysis
Like the preceding complaint allegation, the comments here were not explicitly linked to
union activity. But here too, Chino Valley had earlier unlawfully given an employee the
impression that his union activity was under surveillance. For reasons stated in the previous
analysis section, I conclude that employees would reasonably make the connection to their
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
8
union activities. By giving the impression to employees that their union activities were under
surveillance, Chino Valley violated Section 8(a)(1).
Next, the complaint alleges that Chino Valley unlawfully threatened to more vigorously
enforce its policies and enforce previously unenforced policies since employees chose union
representation and instructed employees not to speak to third parties and/or the media about it.
In early May, mandatory meetings for unit employees were held in the first floor conference
room. Present at various times for management were Linda Ruggio, director of nursing, Arthi
Dupher, director of human resources, and Cheryl Gilliatt, manager. Lex Reddy, Chino Valley
chief executive officer, spoke at these meetings. Reddy told the employees that the election
was over and they had to move on. He told the employees that from then on policies and
procedures would be strictly enforced and that violators would be dealt with accordingly, being
late and sick calls would be monitored. He said that there would be no more family atmosphere
at Chino Valley. Reddy informed employees that Chino Valley was contesting the results of the
election because the Union used charge nurses to intimidate the staff. Reddy said that Chino
Valley knew about the employees’ Weingarten rights but employees would be disciplined
without a union representative present. He informed employees that someone had scratched
Gilliatt’s car with a key and he displayed a photograph of the car and blamed this on the Union
He mentioned that someone had been negligent in the emergency room. Reddy continued,
informing the employees that Chino Valley would be hiring some additional nurses. He said
they should make the newly-hired employees feel welcome. Reddy then instructed employees
not to speak to the media but rather they should through channels.
The foregoing facts are based on a composite of the credible testimony of Teer Lina,
Marlene Bacani, Vincent Hilvano, Ronald Magsino, Yesenia De Santiago, Lisa Metheny and
Tyrone Clavano. In this regard I rely heavily on the testimony of Clavano; he seemed to have a
clear and accurate recollection of what Reddy said at this meeting. Indeed, shortly after the
meeting he made notes of what was said there. I note that Reddy did not testify at the hearing;
I infer that his testimony would not have been favorable to Chino Valley. I have considered
Gilliatt’s and Dupher’s testimony concerning these meetings but, I did not find their demeanor
convincing; it seemed that they were attempting to disclose only evidence helpful to Chino
Valley and withhold or gloss over testimony not so helpful. For example, when Gilliatt was
examined by the Union concerning this meeting the following transpired:
Q Okay. And do you recall who was present at that meeting other than you and Lex
Reddy?
A No, I don’t recall.
Q Do you recall anything that Lex Reddy said in that meeting?
A I don’t recall, no.
Q Do you recall if Lex Reddy said anything about the Union?
A I really, it’s vague to me, the whole meeting. I don’t recall. I’m sorry.
Q Do you recall Lex Reddy showing a picture of your car?
Analysis
The foregoing facts show that Reddy announced the end of the family atmosphere at
Chino Valley and that henceforth, because the employees voted for the Union, Chino Valley
would begin strictly enforcing its policies and procedures, including tardiness. By doing so
Chino Valley violated Section 8(a)(1). Fieldcrest Cannon, 318 NLRB 470, 495 (1995), citing
United Artists Theatre, 277 NLRB 115 (1985). Reddy also instructed employees not to talk to
the media but instead they should go through channels. In this regard Reddy did not narrowly
tailor this instruction to not speak to the media on behalf of Chino Valley; rather it was a broad
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
9
prohibition. Employees have a Section 7 right to speak to the media about the Union and to
concertedly discuss their terms and conditions of employment. Kinder-Care Learning Centers,
299 NLRB 1171, 1172, (1990): Auto Workers Local 980, 280 NLRB 1378 (1986), enfd. 819 F.2d
1134 (3d Cir. 1987), Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984). By broadly prohibiting
employees from speaking to the media, including about the Union or about terms and conditions
of employment, Chino Valley violated Section 8(a)(1). In its brief, the Union requests that I find
that a related rule in Chino Valley’s written confidentiality policy is unlawful. I decline to do so.
The rule is not alleged to be unlawful in the complaint and the General Counsel did not
challenge the policy either at the hearing or in his brief. The bare minimum of due process
requires that a respondent know ahead of time what it must defend against.
The complaint alleges that by serving subpoenas duces tecum on employees and the
Union, Chino Valley violated Section 8(a)(1) The hearing on the objections to the election
began on May 10. One of the issues in that hearing was whether the conduct in favor of the
Union by Chino Valley’s supervisory charge nurses tainted the election results. Prior to that
hearing, Chino Valley served issued subpoenas duces tecum to current or former employees
and representatives of the Union requesting, inter alia, the following information:
Any and all documents relating to any communication during the relevant time period
between you and any representative of the Union,
All authorization and/or membership cards signed by any Charge Nurse during the
relevant time period, including any authorization and/or membership cards you signed, if
you were employed by Respondent as a Charge Nurse during said period,
All authorization and/or membership cards signed by any RN during the relevant period,
All documents relating to the distribution and/or solicitation of Union authorization and/or
membership cards during the relevant time period.
The subpoena advised employees that if they were never employed as a charge nurse during
the relevant time period, Chino Valley was willing to allow the documents to be produced to the
hearing officer for:
[A]n in camera inspection, whereupon only non-privileged documents that are relevant to
the Employer’s Objections are provided to the Employer.
Tyrone Clavano has worked for Chino Valley as a registered nurse since July 2005. He
received a subpoena duces tecum to appear at the hearing and he brought documents with him
to comply with the subpoena but he was not required to actually give those documents to Chino
Valley.
Analysis
Employers are generally not entitled to know which employees sign union cards. To do
otherwise would discourage support for a union because employees might fear retaliation from
their employer if the employer was armed with information concerning who had signed cards.
National Telephone Directory, 319 NLRB 420 (1995). However, under certain circumstances
employees can be required to reveal this information. Guess?, Inc., 339 NLRB 432 (2003).
Applying the analysis set forth in that case, the information sought by Chino Valley was not
relevant to the issues at the objections hearing. Had Chino Valley narrowly subpoenaed
information concerning the union activity of its supervisory charge nurses a different conclusion
might be reached. But here Chino Valley sought information about employees’ union activities
with other employees and with the Union.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
10
In its brief, Chino Valley argues that by advising the employees of the possibility of an in
camera inspection by the Hearing Officer, it cured any otherwise unlawful requests. I disagree.
The harm is in the interrogation and the possibility that the employees might feel compelled to
produce evidence of union activities by them and other employees to Chino Valley. Also,
antiunion employees might be quite willing to share with Chino Valley the prounion activities of
other employees. Chino Valley also raises BE &K Construction, 351 NLRB 451 (2007). There,
after remands from the Supreme Court concerning the need for the Board to recognize the First
Amendment Rights of an employer, the Board concluded that the filing and maintenance of a
reasonably-based lawsuit does not violate the Act. But here Chino Valley’s conduct went well
beyond what is protected by the First Amendment. It sought information that, even under broad
discovery rules, was not related to any issue in the proceeding. In other words, Chino Valley’s
conduct was not “reasonably based.” Certainly the Supreme Court in BE&K did not intend to
privilege a lawsuit to compel employees to disclose evidence of their union activities and the
union activities of others where that matter is not related to any legitimate issue. I am mindful of
the Supreme Court’s admonitions to the Board that the Act should not be interpreted in a
manner that even chills the exercise of First Amendment rights. But this is not such a case.
Here Chino Valley sought under the guise of subpoenas information that was not related to the
legal proceeding and which otherwise violated the Act. By serving subpoenas on employees
and unions that request information about employees’ union activities, under circumstances
where that information is not related to any issue in the legal proceeding, Chino Valley violated
Section 8(a)(1). Dilling Mechanical Contractors, 357 NLRB No. 56, slip op. a p. 2 (2011).
C. Section 8(a)(3) Allegation
The complaint alleges that Chino Valley fired Ronald Magsino in violation of Section
8(a)(3). Magsino was a visible supporter of the Union prior to the election; he talked to fellow
nurses about the Union, helped arrange meetings with the Union and nurses, and his picture
appeared frequently in flyers distributed by the Union. Indeed, a day or two before the election
Lally appeared at a nursing station in the emergency room with such a flier in his hand and
announced to Magsino that he was a “movie star” because his picture appeared in the flyer
three times. Magsino smiled but said nothing.
I now turn to describing the events surrounding Magsino’s termination. I first describe
the written warning Chino Valley gave Magsino; although this discipline is not alleged to be
unlawful, it is intimately tied to his subsequent termination. I alert the reader that Chino Valley
contends that it fired Magsino for violating the Health Insurance Portability and Accountability
Act of 1996 (HIPAA) in that he accessed certain medical records and then copied a medical
record that contained the transaction number5 and a patient’s medical record; I do this so that
the reader may observe how Chino Valley itself handled such information.
At some point the California Department of Public Health inspected certain emergency
room records. Thereafter Ruggio advised Gilliatt that the Department had found that Magsino
and another employee, Yesenia De Santiago, did not take the vital signs of a patient a second
time before the patient was discharged from the emergency room. Ruggio instructed Gilliatt to
give Magsino a written warning. On May 5, Gilliatt summoned Magsino and showed him a final
written warning, dated May 4, concerning events that occurred on April 1. The “reason for the
action”, according to the written warning, was:

5 The transaction number, otherwise described in the record a unit number or job number, is
the number Chino Valley attaches to the transaction. This number may be used to locate and
access the details of what occurred during the transaction.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
11
Unsatisfactory work performance. Per California Department of Public Health surveyors,
upon review during a complaint survey it was found that the documentation failed to
meet the Standard of Care regarding appropriate re-assessment of a patient and failure
to comply with Chino Valley Medical Center’s Policy regarding re-assessment.
The “facts and events”, again according to the warning, were:
See attached. On 4-1-10, Ronald was the primary nurse for patient MR# 178946.
Ronald failed to obtain and document updated vital signs to patient Discharge Summary.
Note the use and dissemination of the patient’s medical record number. The warning warned:
Continued failure to comply with any hospital policy will result in immediate termination
with cause.
Gilliatt said that she was giving Magsino a final written warning for unsatisfactory work
performance. She explained that the Department of Health had come in and did a random audit
of the charts and they discovered that Magsino and another employee did not reassess the
patient’s vital signs before releasing the patient from the emergency room. Gilliatt showed
Magsino the nursing notes that Magsino had prepared concerning his treatment of the patient.
The nursing notes contained the patient’s name, medical record number, and transaction
number. It also contained a description of the patient’s medical condition and course of
treatment. Gilliatt also showed Magsino the emergency room report containing the doctor’s
dictation regarding the patient visit; this document contains the patient’s name, date of birth, and
medical record number and describes how the patient was presented at the emergency room,
the patient’s signs and symptoms, and what the doctor did in terms of treatment and decision
making. Gilliatt also showed Magsino Chino Valley’s patient reassessment policy. Magsino
looked at it and commented that the policy did not mention any requirement that a nurse had to
repeat taking a patient’s vital signs before being discharged from the emergency room.
Magsino then asked if he could leave Gilliatt’s office to more carefully review the emergency
room report. Gilliatt allowed him to leave her office and also said that it was okay for Magsino to
view and print a copy of the emergency room report as well; she wrote the patient’s name and
medical record number on a slip of paper and gave it to Magsino. Magsino then left the office
and went to the nursing station where he accessed the electronic copy of his nursing notes and
the emergency room report. He also printed a copy of the emergency room report. He then
redacted the patient’s name from the record using a marker, but he discovered that the name
still appeared as if engraved on the copy, so he made a copy of that copy and then destroyed
the original and first redacted copy of the medical record. Magsino returned to Gilliatt’s office
later that day, this time accompanied by coworker Ahmed Kassim. Magsino informed Gilliatt
that he had reviewed the paperwork and according to the doctor’s dictation the doctor was
aware of the patient’s blood pressure and the doctor was okay with the patient being
discharged. Magsino also stated that there was nothing in the written policy concerning
reassessment about taking the patient’s vital signs. Rather, it indicates that the nurse should
review the patient’s chief complaint and that according to his nurse’s notes he had done so. So
he asked Gilliatt why he was getting a final warning. Gilliatt answered that Chino Valley was
getting fined so that was why he was being disciplined. Magsino asked if Gilliatt thought this
was unsatisfactory work performance and Gilliatt replied that she did not make the warning, that
management just asked her to give the warning to him. Later that same day Gilliatt found
Magsino at the nurses’ station searching through material and writing things on scratch paper;
Gilliatt told him that he had to get back to work and do his research at home. She admitted that
she allowed Magsino to take the policies home with him.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
12
A day earlier, on May 4, Chino Valley also gave a similar warning to Yesenia De
Santiago. De Santiago was also a union supporter and her photo also appeared in literature the
Union had distributed before the election. Like with Magsino warning, Gilliatt gave De Santiago
the warning, explained that De Santiago could challenge the warning, allowed her to access the
patient chart and wrote the patient’s name and medical record number on a “sticky” for
DeSantiago to use. Like Magsino, De Santiago accessed the patient’s record and printed a
copy of it.
Chino Valley invites its employees to use its internal grievance procedure. On May 6,
Gilliatt had given a copy of this procedure to Magsino and urged him to use the procedure to
challenge his written warning. On May 12, Magsino vigorously challenged his discipline under
the grievance procedure. As described below, it is the content of that grievance that ultimately
leads to Magsino’s discharge. In his grievance Magsino wrote how Gilliatt informed him that
Ruggio had instructed Gilliatt to give Magsino the final written warning. He went on to describe
how the medical records showed that the patient had been presented to the emergency room
complaining of flank pain, how the emergency room doctor was aware of the patient’s high
blood pressure, how the patient was in the emergency room for less than a hour, and how the
doctor, of course, approved the discharge of the patient. He explained how the policies and
procedures required him to assess and reassess the chief complaint of the patient—flank pain—
and how he had done so and documented that in his nurse’s notes. He stated that he examined
the policies and procedures provided to him by Gilliatt and found nothing to indicate he should
have reassessed the patient’s blood pressure. He indicated:
If Chino Valley Medical Center would like RN’s to take repeat vital signs when a patient
is in the ER for less than one hour and the treating physician has ordered discharge
knowing the initial vital signs, it must revise its policy regarding reassessment
accordingly.
. . .
I respectfully request that the final written warning be removed from my file immediately,
and that I receive written notification of the Hospital’s decision.
Providing the highest quality of patient care is my constant objective, and I will continue
to follow all known policies, standards of care, orders, and directives when treating
patients in the ER.
Magsino had a number of documents attached to his grievance. One attachment was a copy of
the emergency room report. This report describes the patient’s condition upon arrival at the
emergency room and the results of the physical examination. It sets forth the diagnostic data
and how the doctor apparently treated the patient’s complaint of flank pain with pain relief
medication. Magsino was careful to redact the patient’s name from the emergency room report.
However, the medical record and transaction numbers remained in the attachment that Magsino
provided to Chino Valley personnel. Another attachment was from the emergency room doctor
that read as follows:
To whom it may concern,
In reference to unit # 178946, Ronald [Magsino] did inform me regarding her blood
pressure. There was no indication for treating patient’s blood pressure at the time. I did
not order any medications for her blood pressure. I reminded the patient to take her
medications regularly.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
13
In other words, the patient was already taking medication to control her blood pressure (Lipitor)
and the doctor reminded the patient to take that medication regularly. The reader should note
that the emergency room doctor also disclosed the transaction number involved.
Also attached to the grievance were a number of testimonials such as:
To Whom It May Concern:
I’ve had the pleasure of working with Ronald Magsino for 4 years. He is an excellent
nurse and has always worked and conducted himself at the highest level. He takes
pride in his work and is an outstanding nurse. Any questions about his dedication or
commitment are without merit. Ronald has my complete confidence and support.
Sincerely,
Jose J. Diaz, M.D.
Chino Valley Emergency Department
Assistant Clinical Professor of Emergency Medicine
Western University Medical School
Another testimonial read:
To Whom It May Concern:
My name is Lisa Giles and Ronald Magsino is one of my co-workers in the Emergency
Room at Chino Valley Medical Center. In regards to his character he is always a team
player and always willing to help his co-workers when they are in need. He has proven
to be a great patient advocate by always putting their needs first. He continues to
provide excellent patient care by furthering his education to learn better and more
effective ways to help his patients. His kind and compassionate nature makes him a
great asset to the ER and I am honored to work with him. Furthermore, I look forward to
him mentoring me as I transition from EMT to RN. Thank you for your time and
consideration.
Sincerely,
Lissa Giles, EMT
Others descriptions included:
Ronald is a positive, influential, and inspiring person to me and in my work experience.
Working with Ronald has not only been a pleasure but a privilege.
and
I’ve seen Ronald take a deep interest in the lives of many of the people he comes in
contact with. For example, Ronald taught me not only the value of helping others, but
the importance of loyalty and commitment.
Ronald has many good qualities – he is caring, efficient, fair-minded, helpful, hard
working, diligent and organized to name a few. Instead, I would simply like to state as a
fellow co-worker, it is a pleasure to work with Ronald.
and
I know I can always depend on Ronald as my greatest resource. He is highly
enthusiastic and very motivated when it comes to patient care. Ronald has excellent
bed-side manners, very sensitive o patient’s needs. Patient’s respond to him with a
smile and patients have told me, “He’s such a nice nurse!”
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
14
and
I would like to take a moment to put into writing what an OUTSTANDING nurse Ronald
Magsino is. His bedside manner is incredible, his knowledge is remarkable. He is such
an inspiration to everyone around him. He always has a positive attitude and is always
one step ahead to insure a great patient outcome.
I am currently an LVN and I hope one day I can be as great of an RN that Ronald is. It’s
hard to express in writing what a key attribute he is to our nursing staff. No words can
really sum him up or adequately stat how great Ronald is.
Per Chino Valley’s grievance procedure Magsino submitted the grievance with the attachments
to the human resources department.
On May 14 Magsino was summoned to Ruggio’s office. There with Ruggio was Tina
Yago, head of information technology. Ruggio said that on April 5 Magsino had viewed and
printed a chart of a patient. After checking his schedule on his mobile phone to see if he worked
that day, Magsino said that he had no idea why the record was printed that day and that the
only thing he could think of was that he left his computer open and someone printed the patient
record. Ruggio said that was a HIPAA violation.6 Ruggio then said that Magsino had printed
the chart of the same patient on May 5 and that was a HIPAA violation as well. Magsino
explained that this was the time he received the final written warning from Gilliatt and Gilliatt
gave him permission to copy the chart. Ruggio said that she would talk to Gilliatt about that.
Ruggio asked what Magsino did with the record he printed. Magsino explained that after he
printed the record he redacted with a marker the patient’s name, birth date, date of service and
left only the patient’s medical record number and transaction number for reference. He
explained that even after the redaction the patient’s name remained engraved on the copy, so
he printed a copy of the redacted version and shredded the original copy. Gilliatt said that was
a violation also. Magsino retorted that when Gilliatt gave him the final written warning on May 5,
she had an unredacted copy of the patient’s record that included that patient’s name, date of
birth and date of service. Ruggio said that she would talk to Gilliatt about that also. Finally,
Ruggio asked whether Magsino included a copy of the medical record with his grievance. After
Magsino replied that he did, Ruggio stated that was another HIPAA violation. Magsino
explained that he attached the redacted version in his grievance. Magsino asked if they wanted
the copy of the medical record that he had retained; after Ruggio said yes Magsino left the office
and retrieved the copy from his backpack in his locker and came back gave it to her. Ruggio
said that was another HIPAA violation.
On May 19 Ruggio prepared a “Potential Privacy Breach Reporting Form” describing the
events involving Magsino and De Santiago and the potential HIPPA breaches. In that report
Chino Valley acknowledged that Gilliatt did give Magsino and De Santiago permission to access
the patient’s medical record and had written the patient’s name on a piece of paper so that they
could do so. Importantly, the report also stated:
It is the opinion of [Chino Valley] that there was no breach when [Magsino and De
Santiago] accessed the computer to review the electronic record as [they] did believe
that [they were] accessing as part of [their] job because it was in direct relation to a
disciplinary counseling [they] had received.

6 Chino Valley later excused Magsino from any wrongdoing concerning this April 5 incident.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
15
The report indicated that Chino Valley would retrain and reeducate both employees regarding
accessing medical records and HIPAA and that Magsino and De Santiago would be given
written warnings.
On May 20 Arti Dhuper, Chino Valley’s human resources director, informed Magsino:
Thank you for the written dispute you submitted on May 12, 2010. I have conducted an
investigation and the discipline will not be overturned.
Please be assured that there will be no retaliation as a result of your written dispute
submitted on May 12, 2010.
Thus, Chino Valley never did address Magsino’s contention that its existing policies did not
require him to reassess the blood pressure of a patient complaining of treated for flank pain.
After Dhuper gave Magsino this letter, she announced that Magsino can no longer work there
because of the HIPAA violations; Remember the day before Ruggio reported that Magsino
would receive a written warning and be retrained and reeducated. She gave him a termination
notice that listed, under the heading “Has the employee been counseled and received
counseling action for the same or similar reason” the following:
. 5/4/10: Per California Department of Public Health surveyor’s documentation, employee
failed to meet standard of care regarding appropriate re-assessment and discharge
summary.
5/3/10: Not complying with the attendance policy (Policy #400.402).
I note the apparent disconnect between the similarity of attendance and patient care on the one
hand and HIPAA matters on the other hand. Later in this decision, I describe how Chino Valley
itself acknowledges this lack of similarity. Ruggio, who was also at the meeting, said that Chino
Valley contacted the patient to advise the patient that there had been a breach in the privacy of
her medical record and also advised the California Department of Public Health of the breach.
Remember above Ruggio wrote that there was no breach and as described below Chino
Ruggio explained that there were four counts of HIPAA violations. First was when he viewed
the chart on May 5; Remember the day before in the written report Ruggio acknowledged that
this was not a HIPAA violation. Second was printing the chart. Third was making copies of the
chart. Fourth was when he put a copy of the chart in his backpack. Ruggio then added that
when he attached the medical record to his dispute letter that was another violation of HIPAA.
That same day, May 20, Chino Valley sent a letter to the patient informing her of the
accessing of her medical records. In that letter Chino Valley found it important to advise the
patient:
We were able to establish that your records were not distributed to anyone else and your
personal information was never compromised
After his termination for a period of time, Magsino was paid in excess of $7000 while
employed by the Union. He was no longer employed by the Union at the time of the hearing in
this case.
Meanwhile, Yesenia De Santiago also submitted a grievance concerning the warning
she had received. She too printed a copy of the patient’s medical record and was thereafter
summoned to Ruggio’s office. Gilliatt was also there. Among other things, Ruggio told De
Santiago that she had accessed a patient chart and that was a HIPAA violation. De Santiago
replied that Gilliatt had given her permission to do so and in fact had written the patient’s name
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
16
and medical record number on a “sticky” so that she could do so; Gilliatt confirmed that she had
done so. De Santiago also explained that otherwise she had no idea which patient she was
being warned about and therefore no way to challenge the warning. Ruggio then asked why De
Santiago had printed the medical record. De Santiago explained that she wanted to get the
exact times to include in her written grievance. Ruggio answered that it would have been okay
if Gilliatt had printed the record but it was not okay for De Santiago to print it herself. Ruggio
warned that De Santiago might be fired or her record as a nurse might be blotted. However,
unlike Magsino who was fired, De Santiago received a written warning on May 24 for:
Breach of information; HIPAA violation. Accessed patient electronic medical record
and printed record without appropriate authorization.
This discipline is not alleged to be unlawful in the complaint. Even so, De Santiago received
this warning despite the fact that Gilliatt had authorized her to access the record and had
admitted doing so in the meeting with Ruggio. When Ruggio gave De Santiago a copy of the
written warning, De Santiago asked whether she was being fired now that she had received two
written warnings. Ruggio replied “no” and explained that the written warnings were unrelated to
each other; one was for treatment of a patient and the other was for HIPAA violations.
Remember above, Magsino’s identical two warnings were considered similar.
The facts in this section of the decision are based on Magsino’s credible testimony. He
impressed me as someone relating the facts to the best of his ability. His testimony is
consistent with the written documents described above and overall consistency was again
revealed during the cross-examination of him by Chino Valley. They are also based on
De Santiago’s testimony. Her tearfulness while testifying was certainly not staged for my
benefit. Rather, it showed how these events vividly remained in her memory. In certain
respects the testimony of Magsino and De Santiago corroborated each other. For example,
both testified that Gilliatt allowed them to access the patient records and gave them the patient’s
name and medical record number. I have considered but do not credit Gilliatt’s testimony that
she did not permit Magsino to copy the medical record. Given her admissions that she allowed
Magsino to access the medical records and encouraged him to prepare a grievance but also
admonished him that he could not research the matter while at work, her testimony in this
regard seems unlikely, given that Magsino certainly could not access the medical records at
home and as I have described elsewhere in this decision, I have not generally found Gilliatt to
be a credible witness.
Importantly, records of the California Department of Public Health show that the alleged
breaches of HIPAA reported to it by Chino Valley concerning Magsino and De Santiago were
“unsubstantiated” in that:
No breach actually occurred, no information was shared. It was for personal use
in defending themselves. (Internal P & P breach).
According to documents used by Chino Valley:
HIPAA permits use or disclosure of PHI (personal health information) for health care
operations, which includes the resolution of internal grievances.
The term “breach” means the unauthorized acquisition, access, use, or disclosure of
PHI that compromises the security or privacy of the PHI, unless the recipient would not
reasonably have been able to retain the information.
The term “breach” does not include:
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
17
1. Unintentional acquisition, access, or use of PHI by an employer or individual acting
under authority of a covered entity or business associate if:
a. The acquisition, access, or use was made in good faith and within the course
and scope of employment (or other professional relationship); and
b. The PHI is not further acquired, accessed, used, or disclosed by any person
Employees have mistakenly sent medical records to the wrong address, thereby
disclosing confidential information to third parties; those employees were counseled. An
employee left a patient chart in a bathroom; Chino Valley considered that to be a HIPAA
violation. That employee received a verbal warning and was reeducated. On another occasion,
a patient’s test order sheet was inadvertently given to the wrong patient; Chino Valley regarded
this as a HIPAA violation. There is no evidence that the offending employee was disciplined.
Of course, as Chino Valley points out, there is a difference between an unintentional breach of
HIPAA and an unauthorized breach of HIPAA. However, there is no credible evidence as to
why that difference should result in different penalties, especially where the unintentional
breaches result in the actual compromise of a patient’s personal medical information, something
that did not occur in Magsino’s case. Moreover, there is no credible evidence that Magsino’s
alleged breach was intentional in the sense that he knowingly violated HIPAA. There is not
even credible evidence that Magsino should have even reasonably known he was violating
HIPAA because Chino Valley never produced a written policy that covered this situation or a
training session or class that advised employees that they could not access and print a medical
record, even with a manager’s permission. To the contrary, the evidence shows that the
information Chino Valley supplied to Magsino would objectively lead him to believe he was
allowed to access the medical records. For example, the information security agreement that
Chino Valley required Magsino to sign includes his agreement:
Not to operate or attempt to operate computer equipment without specific authorization
from supervisors.
Not to disclose any portion of a patient’s record except to . . . a recipient authorized by
the Hospital who has a need-to-know in order to . . . discharge one’s employment or
other service obligation to the Hospital.
Other documents supplied by Chino Valley to Magsino indicate:
HIPAA & Confidentiality
(Health Insurance Portability and Accountability Act of 1996)
All hospital personnel are obligated to protect patient privacy rights, including any form of
media that is electronic, paper, oral, CD, or diskette. We value the confidentiality of our
patients and information systems. Patient Health Information (PHI) is given only to those
who have an appropriate and authorized need for this information. Patients have a right
to privacy regarding PHI.
In other words, Chino Valley informed Magsino that while generally patient information should
not be accessed or disseminated, it could be accessed with permission (Magsino had
permission) and disclosed to those who had a need-to-know related to their employment at
Chino Valley (Magsino needed to know in order to assert his employment related claim and HR
needed to know in order to understand his grievance). Remember, Magsino did not gain
information about a patient’s medical condition or course of treatment that he did not already
know; He treated the patient and Gilliatt had already shown him his nurse’s notes and the
doctor’s dictation.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
18
I have considered the testimony of Suzanne Richards. She is chief clinical officer and
corporate compliance officer for Chino Valley. Her many duties include overseeing patient
privacy issues. I conclude that her testimony is not credible as it pertains to the Magsino matter
and I now explain why I reach that conclusion. Among other things, she testified that Ruggio
informed her of a potential HIPAA breach when Magsino attached a copy of a medical record to
something he gave to human resources. Richards had the Information Technology Department
run a report concerning who had accessed the patient’s medical record. The computer-
generated report revealed that Magsino had accessed the patient’s medical records on May 5 at
4:57 p.m. and then made a copy of a medical record. Richards testified that she then informed
Ruggio that:
[T]here was activity on the patient’s medical record when the patient was not in the
hospital and I asked her to investigate a potential privacy breach.
The report, of course, also showed that Gilliatt had accessed the same patient’s medical record
and printed a copy of the same medical record that Magsino had printed; Gilliatt had a copy of
the record and showed it to Magsino when she disciplined him. The report showed that this
activity also occurred when the patient was not in the hospital. Richards testified that she
concluded Magsino’s conduct violated HIPAA and she later volunteered that Magsino (and De
Santiago as well) be terminated for that conduct. When asked to explain why Gilliatt’s
accessing and copying the patient’s medical report was not a HIPAA violation, Richards first
testified that she believed that it could have been in connection with the state’s request to view
and copy the record; the state has a right to copy any record she explained. But then she
testified that after she asked Gilliatt why Gilliatt accessed and copied the medical record she
concluded that Gilliatt was performing quality assurance and therefore properly accessed and
copied the medical records. When I asked Richards whether there was an exception in the law
that allows employees to access medical records and patient information for use in internal
grievance procedures she replied:
I would say no. We have a risk management policy that if you need to access a medical
record once that record is closed you actually have to sit with the Risk Manager or you
have to sit with the Manager while you review that record. . . .
But Chino Valley never produced a copy of that policy, and no one else testified as to its
existence. Indeed, Gilliatt did not follow such a policy; she admitted that she allowed both
Magsino and De Santiago to access the medical records without anyone present while they did
so. Ruggio was well aware of this fact and never chastised Gilliatt for failing to follow this
alleged policy. And never in any of its written or verbal accounts of the reasons for Magsino’s
discharge did Chino Valley ever mention that Magsino should have had a manager with him
when he accessed the medical records. I conclude Richards simply fabricated this testimony.
And besides, she never directly answered my question. Richards conceded that typically the
California Department of Health calls Chino Valley after Chino Valley reports an alleged breach
of HIPAA and notifies Chino Valley of the outcome of the Department’s investigation and then
follows by sending Chino Valley a copy of its written report. However, when shown a copy of
the California Department of Health report, described above, that showed that it concluded that
no breach occurred, Richards was asked if she had seen that report. She answered “I’ve seen
hundreds of these forms.” Richards testified that she would not know that report from any other
report. I find this testimony incredible. In response to questions that I asked concerning how
the process was to work when employees sought to disprove claims of poor patient care on
their part, Richards ended her testimony by saying;
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
19
You’re not supposed to just access a medical record and write an entire letter and then
attach somebody’s personal health information to that record. I don’t know if that’s been
brought [up] here, but this tells you everything about this person. I personally wouldn’t
want that in somebody’s hand.
I make two comments about this testimony. First, it appears that at that point Richards was
mixing her personal views with the existing policy that Magsino allegedly violated. Second, it
leads me to infer me that Ruggio never bothered to tell Richards that Magsino had redacted that
patient’s name from his copy of the medical record; Richards never testified that she was
informed of this fact. This is important because, as Ruggio conceded, someone viewing
Magsino’s copy of the medical record would have no idea of who the patient was unless they
could access Chino Valley’s computer system and thereby connect the patient with the medical
record, but Chino Valley has the ability, and indeed is required by law, to monitor such access
and act accordingly. In sum, if Magsino’s copy of the medical record pertained to Richards, no
one would have been able to connect that record to her. I am left uncertain how, if at all,
Richards’ testimony would have changed if she had been informed of this fact.
I also reject much of the testimony given by Linda Ruggio. Parts of her testimony were
given in response to leading questions, with Ruggio appearing eager to give the response
sought by the question. I have also examined the notes she made of interviews during the
investigation she conducted that lead to Magsino’s termination. For example, the notes of her
interview of De Santiago do not indicate that De Santiago claimed that Gilliatt allowed her
access to the medical record but rather curiously the notes do indicate that De Santiago
understood that she could not remove the records from the facility. Remember, there was no
assertion that De Santiago had done so. To that extent it seems Ruggio was more concerned
about building a case against Magsino than conducting an impartial interview and making
accurate notes. Ruggio also had notes of her interview of Gilliatt after Ruggio directed Gilliatt to
interview Magsino; those notes indicate that Gilliatt said that she:
[D]oes not recall ever telling [Magsino] it was okay to print as long as he blanked out the
pts name and but to leave the account # or the MR # for future research use.
By the time of trial, Ruggio testified that Gilliatt flatly denied she ever permitted Magsino to print
the medical record. Richards testified that Ruggio informed her that the California Department
of Public Health:
[D]id report that they were not going to give us any kind of fine because they were happy
with the disciplinary process of (Magsino and De Santiago); that the reason they weren’t
going to write anything was that the employee that took the record out of the building
was not going to have the opportunity to take medical records because he had been
discharged.
Of course, the Department said no such thing. This testimony shows the depth of the
fabrications that Chino Valley created to justify its termination of Magsino.
Finally, I have considered the evidence proffered by Christy Navarro. She was offered
by Chino Valley as an expert witness with respect to privacy issues involving California acute-
care hospital standards, practices, and procedures. I conclude she is not qualified as an expert
in those areas. Rather she is an employee with training and experience in those areas; that is
not, of course, sufficient to qualify as an expert. Moreover, the proffered testimony does not
qualify as the type of scientific, technical, or other specialized knowledge that would assist me.
Instead of offering expert testimony on how hospitals must deal with HIPAA and related policies
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
20
as they pertain to employee use of medical records to defend themselves against discipline, the
proffered testimony dealt with the Navarro’s assessment of the reasonableness of Chino
Valley’s actions against Magsino. Certainly under HIPAA Chino Valley must have a procedure
in place that allows employee access to medical records under those circumstances yet
safeguards patient privacy, but Navarro offered no insight into that area. And to the extent that
Navarro’s testimony can read that employees must first get a lawyer to do so, that testimony,
standing alone, is simply not credible.
Analysis
I apply Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982) to determine whether Chino Valley unlawfully discharged Magsino.
I have already described above Magsino’s union activity and Chino Valley’s knowledge of that
activity. Chino Valley’s animus toward that activity is shown by the numerous unfair labor
practices it committed, as described both above and below. Magsino was fingered as a union
“movie star” and was himself the subject of several unfair labor practices. His discharge
occurred in the weeks following the election and, as described more fully below, it was part of a
general crackdown Chino Valley initiated after the election. Moreover, prior to the election
Magsino had no disciplinary record and was widely regarded among coworkers as a highly
professional and competent employee. I conclude that the General Counsel has made a very
strong showing in meeting his initial burden under Wright Line. Where, as here, the General
Counsel makes a strong showing of discriminatory motivation, an employer’s rebuttal burden is
substantial. See Eddyleon Chocolate Co., 301 NLRB 887, 890 (1991); see also Van Vlerah
Mechanical, 320 NLRB 739, 744 (1996).
I turn now to examine whether Chino Valley has shown that it would have fired Magsino
anyway, even if he and the employees would not have supported the Union. As an initial
matter, I conclude that Chino Valley has failed to show that Magsino’s conduct violated HIPAA.
In this regard I am careful not to conclude that Magsino did not violate HIPAA; I leave that
assessment to the appropriate governmental authorities. Rather, I conclude only that to the
extent Chino Valley relies on breaches of HIPAA to justify its firing of Magsino, it has failed to
establish by a preponderance of the evidence that any violations occurred. In reaching this
conclusion, I rely on the assessment of the California Department of Public Health that no
breach occurred. Up through the trial Chino Valley provided no credible evidence concerning
how, under HIPAA, Magsino would have been able to gain access to information necessary to
defend against wrongful discipline; certainly such a procedure must exist. But finally in its brief,
Chino Valley concedes that HIPAA allows access to patient’s records for the “resolution of
internal grievances” of the type filed by Magsino. But then it argues that this does not allow
Magsino access because “Magsino was a nurse and was employed by the Hospital to provide
patient care, not to investigate or process internal grievances.” Chino Valley provides no
authority to support such a peculiar interpretation and I reject it. And in this regard Chino Valley
ignores the fact that, as it knew, it had given permission to Magsino to access the information
and even supplied him with the information to do so. Next, Chino Valley argues that even if
disclosure of patient information was allowed, such disclosure should be “to the minimum
necessary to accomplish the intended purpose of the use, disclosure, or request.” But here all
Magsino did was view the patient’s record, print it so he could study it carefully on his own time,
and attach a copy of the partially redacted record to his grievance, thereby allowing human
resources to view the patient’s full file if necessary. He appears to have nothing beyond what
was necessary to effectively present his grievance.
Citing cases such as Affiliated Foods, 328 NLRB 1107, fn. 1 (1999) and GHR Energy,
294 NLRB 1011 1012–1013 (1989), Chino Valley argues that even if Magsino’s conduct did not
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
21
“technically” violate HIPAA, Chino Valley acted under a good-faith, if mistaken, belief that he
had done so. I reject that assertion; to the contrary, for reasons that follow I conclude Chino
Valley seized upon the alleged HIPAA violation as a pretext in a thinly veiled attempt to disguise
its unlawful motive. Chino Valley charged Magsino with a HIPAA violation when he first viewed
the patient chart even though it knew that Gilliatt granted him permission to do so and even
though it had otherwise indicated that this was not a HIPAA violation. Permitting an employee
to do something and then using that a basis to terminate the employee is a classic example of
pretext.
Other facts support the pretextual nature of Magsino’s discharge. When reporting the
potential privacy breach, Chino Valley indicated it would give Magsino a written warning, yet the
next day it fired him. The emergency room doctor revealed the transaction number in an
attachment to Magsino’s grievance, just as Magsino had done, yet Chino Valley was entirely
indifferent to that potential HIPAA breach. Of course, that doctor was not a direct employee of
Chino Valley. Nonetheless Chino Valley’s own HIPAA policies cover doctors and those policies
require action be taken against doctors for HIPAA breaches. As the Union points out in its brief,
the emergency room doctor wrote his letter of support for Magsino over a month after the
patient’s emergency room visit. I infer that the doctor too accessed the patient’s medical record
to refresh his recollection of that visit and gain the transaction number. And in the termination
notice that Chino Valley gave to Magsino it equated the warning it gave Magsino for tardiness
as “similar” in nature to the alleged HIPAA breaches. In the absence of some credible
explanation, the similarity between the two escapes me. Moreover, I conclude below that the
discipline for tardiness itself was unlawful. Gilliatt herself accessed and printed the patient’s
medical record and showed the entirely unredacted version to Magsino, and she admitted she
wrote the patient’s name and medical record number on a slip of paper, gave it to Magsino and
authorized him to view the medical record. Indeed, as described above, in the final written
warning that Chino Valley gave Magsino prior to his termination for alleged HIPAA violations,
Gilliatt herself included the patient’s medical record number thereby disseminating this
information. None of this raised any concerns by Chino Valley nor is there any credible
explanation as to why it did not. Chino Valley contends Gilliatt had a “need to know”, but of
course as Gilliatt conceded by her conduct, so did Magsino.
I turn now to describe the evidence of disparate treatment. As described above, other
employees actually breached patient confidentiality by, for example, leaving a patient’s medical
record in a restroom where it was viewed by another patient. Unlike the copy Magsino attached
to his grievance, that patient record named the patient as well as the patient’s medical
information. Moreover, De Santiago also accessed and copied a patient’s medical record, yet
she was not discharged.
Even assuming that Chino Valley established that Magsino either violated HIPAA
protocol or that it reasonably believed he had, its remains Chino Valley’s burden to show that it
would have fired him for the violations even absent his union activity. Chino Valley has an
enforcement and discipline policy that covers HIPPA infractions; it is divided into three levels of
violations.
Level and Definitions of Violations
I Accidental and/or due to lack of proper education
II Purposeful break in the terms of the Confidentiality Agreement, Security Agreement,
or an unacceptable level of previous violations
III Purposeful break in the terms of the Confidentiality Agreement or an unacceptable
level of previous violations and accompanying verbal disclosure of patient information
regarding treatment and status
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
22
The recommended penalty for a Level I violation is an oral warning or reprimand accompanied
by retraining and discussion of policy and procedure. Level II is a written warning and
acknowledgement of consequences of subsequent infractions, and for Level III it is termination
of employment. Applying Chino Valley’s own standards to the facts it knew concerning any
infraction that Magsino may have committed, Level I seems to squarely fit Magsino’s situation;
at most Magsino’s use of the patient’s partially redacted medical record stemmed from a lack of
proper education. Any assertion to the contrary is simply not backed by credible evidence. In
this regard, recall how before the election Chino Valley bragged about how employees may
have “made an honest mistake and your director treated it as nothing more than a lesson
learned (our practice of “Just Culture)?” After all, Magsino had been careful to redact the
patient’s name from all copies of the medical record, thereby assuring that no one could connect
the medical information with the name of the patient without accessing Chino Valley’s computer
system, something that Chino Valley would have been aware of. This is not a matter of
substituting my judgment for that of Chino Valley’s concerning the type of discipline that should
have more fairly been given to Magsino. Rather, I am careful to use Chino Valley’s own
standards and statements to examine whether it has met its burden, in the face a strong
showing of unlawful motivation, that it would have fired Magsino anyway even absent his union
activities.
For all these reasons I conclude that Chino Valley has failed to show that it would have
terminated Magsino even if he and the employees had not supported the Union. Rather, the
utter lack of justification for his discharge strengthens the conclusion that it was unlawful.
Finally, Chino Valley asserts that Magsino was a supervisor under Section 2(11) and
therefore not entitled to engage in union activity in that he sometimes worked as a relief charge
nurse. I note that Magsino voted without challenge in the election. As part of the election
agreement, Chino Valley and the Union specifically named several charge nurses who they
agreed were supervisors; Magsino was not one of them. And as described above Chino Valley
was aware of Magsino’s union activities; it even commented about his “movie star” status. Yet it
never advised Magsino that he was a supervisor and had to stop his union activity on that basis.
Nurses work three 12-hour shifts per week. Chino Valley assigns a charge nurse to
each of the 14 weekly shifts. Chino Valley has three fulltime charge nurses; they each also
work at least three shifts per week. There are several other nurses who work as relief charge
nurses besides Magsino. Nurses are selected to serve as relief charge nurses based on their
seniority and experience and willingness to do so. Chino Valley asked Gilliatt several leading
questions concerning the duties of charge nurses, Gilliatt answered affirmatively to those
questions. But I have already explained why I have discounted Gilliatt’s other testimony and for
the same reasons I do not rely on this testimony. It is not sufficient to present entirely
conclusory evidence to show supervisory status. Avante at Wilson, 348 NLRB 1057, 1057
(2006). The burden is on Chino Valley to prove Magsino’s supervisory status; it has failed to do
so. Oakwood Health Care, 348 NLRB 686, 694 (2006). By discharging Ronald Magsino
because he and other employees supported the Union, Chino Valley violated Section 8(a)(3)
and (1).
D. Alleged 8(a)(3) and (5) Violations
In this section of the decision I first describe some analysis before getting to the specific
allegations in the complaint. In assessing whether an employer violates the Act by retaliating
against employees because they supported a union, I again apply the shifting burden analysis in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
23
989 (1982). In determining whether the General Counsel has met his initial burden under that
case, I describe the conclusions that I rely on that are common to the 8(a)(3) allegations that
follow. First, obviously, the employees engaged in union activity and Chino Valley knew this.
Indeed, they selected the Union as their collective-bargaining representative over the strenuous
objections of Chino Valley. Next, Chino Valley had deep hostility towards the lawful right of
employees to select the Union. This is shown by the numerous violations of the Act, described
above, that it committed. Those violations of the law were committed by a wide range of
individuals, from front line supervisors through middle management and include some of the
highest ranking officials at Chino Valley. Next, all the alleged discriminatory acts were
committed in close proximity to the election; thus timing also supports the General Counsel’s
case. Continuing, Chino Valley explicitly threatened employees that it would impose harsher
working conditions on employees because they selected the Union. All these factors point to a
very compelling case made by the General Counsel under Wright Line.
An employer violated Section 8(a)(5) and (1) when it unilaterally changes terms and
conditions of employment for employees represented by a union without first notifying the union
of the proposed change and giving it an opportunity to bargain about the change. NLRB v.
Katz, 369 U.S. 736 (1962). Here, it is undisputed that Chino Valley did not give the requisite
notice to the Union. Chino Valley has not yet recognized the Union and is pursuing an appeal
challenging the results of the election. However, the Board has certified the Union and I am
bound by Board law at this point. Nonetheless, should a final ruling emerge from the appeal
process that overturns the results of the election it will follow that the Section 8(a)(5) should be
dismissed. So the only remaining issue in the Section 8(a)(5) allegations is whether Chino
Valley actually made changes to the working conditions of the represented employees.
On April 12, 10 days after the election, Lally sent the following message to his managers
and supervisors:
It is very important that staff comply with our written policies and procedures especially
those related to attendance and tardiness. I am asking my directors to monitor and
address appropriately any shortcomings in these areas. This is a survey year and that is
an area of focus. The manuals are available for your review through HR and/or soon on-
line. Thank you for your anticipated cooperation.
I make several observations concerning this message. First, the timing of the message in the
context of the prior unlawful statements leaves little doubt that this directive was in response to
the employees’ union activities. As such, it constitutes additional evidence of unlawful
motivation for conduct taken by Chino Valley’s supervisors in compliance with this directive.
Next, implicit in the message is an admission that managers and supervisor had been lax in
enforcing policies and procedures, especially attendance and tardiness.
Tardiness Policy
The complaint alleges that Chino Valley violated Section 8(a)(3) and (5) when it began to
enforce a rule requiring employees to clock in at their start times, without any grace periods, and
thereafter disciplined employees who violated the rule. Before the election, the employees
understood that there was a 7-minute grace period in reporting for work. As long as employees
were no more than 7 minutes late they were not disciplined for tardiness. The foregoing facts
are based on a composite of the credible testimony of Teer Lina, Marlene Bacani, Vincent
Hilvano, Ronald Magsino, Yesenia De Santiago, and Rosalyn Roncesvalles. In particular, I find
Roncesvalles to be a credible witness; her demeanor was impressive and her testimony
detailed. Chino Valley’s cross-examination of her added the factor of consistency to her
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
24
credibility. And Chino Valley’s exhibit 6 confirms that De Santiago was late in March several
times during the 7-minute window period but was not disciplined.
On May 11 Ruggio sent an email message to employees as follows:
I would like to clarify the issue of what constitutes tardy:
Tardy is defined as being late for your designated shift. If you are to start your work shift
at 0700 and you clock in at 0701, you are considered tardy.
Regarding the 12 minute (formerly 7 minute) grace period;
This grace period is a JD Dev policy that is strictly for time-keeping purposes and has
absolutely no bearing on Tardiness. Following is the verbiage from JB Dev
* A grace period of 12-minutes is applied to the total time worked for the day. The paid
hours will be rounded up to the nearest hour or half hour if the total worked minutes fall
within the 12-minute grace period. All minutes falling outside the 12-minute grace period
will be rounded to the nearest tenth of an hour*.
For the issue of tardiness, the grace period is non-consequential. Whatever the hour
you have been instructed to begin your work shift is the time you are expected to be at
your work station ready to begin that shift. Even 1 minute late is considered Tardy.
On May 4, Chino Valley gave Yesenia De Santiago a written warning for being tardy eight times
during the month of April and, on May 5,Chino Valley gave Marlene Bacani and Ronald Magsino
a copy of a verbal warning for being tardy two or more times in 1 month. This was the first time
that they had ever been disciplined for tardiness by clocking in within the 7 minute period
described above. That same day Chino Valley gave Vincent Hilvano a copy of a verbal warning
for being tardy two or more times in 1 month. Hilvano had earlier received a written warning for
tardiness on December 30, 2009, but that warning indicated that Hilvano frequently came to
work late by over 30 minutes. On May 12, Chino Valley gave Rosalyn Roncesvalles a copy of a
verbal warning for being tardy two or more times in 1 month. This was the first time she had
ever been disciplined for tardiness for clocking in within the 7-minute period. Other employees
have also been similarly disciplined.
Analysis
First, as to the 8(a)(3) allegation, the facts show that before the election employees were
allowed a 7-minute grace period before they were disciplined for tardiness but after the election,
per Lally’s directive, that policy changed and Chino Valley began disciplining employees who
were tardy even 7 minutes or less. Having already described the other elements of the General
Counsel’s case, I conclude he has easily met his burden under Wright Line. I turn now to
whether Chino Valley has established its burden to show the change and consequent discipline
would have occurred even in the absence of union activity. In this regard Chino Valley points to
the policies that it had not previously strictly enforced. However, such unenforced policies do
not satisfy Chino Valley’s burden under Wright Line. Flagstaff Medical Center, supra, at p. 7.
Chino Valley also contends that the “verbal” warnings did not constitute discipline. That
argument is frivolous; verbal warnings are part of Chino Valley’s disciplinary process. In fact, as
described above, the verbal warnings given to Magsino and De Santiago were considered by
Chino Valley in deciding whether to fire them. By more strictly enforcing a tardiness rule and
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
25
disciplining employees pursuant to that more strictly enforced rule because employees
supported the Union, Chino Valley violated Section 8(a)(3) and (1) of the Act.7
Tardiness and attendance policies are mandatory subjects of bargaining; an employer
may not unilaterally change them for employees who are represented by a labor organization.
Alcoa, Inc., 352 NLRB 1222, 1223 (2008). Similarly, an employer may not unilaterally change
the enforcement of policies. San Luis Trucking, 352 NLRB 211, 229 (2008). By more strictly
enforcing a tardiness rule and disciplining employees pursuant to that more strictly enforced rule
without first giving the Union an opportunity to bargain concerning the change, Chino Valley
violated Section 8(a)(5) and (1) of the Act.
Mandatory Meetings
The complaint alleges that Chino Valley Sections 8(a)(3) and (5) of the Act when it
began enforcing a rule requiring employees to be present for mandatory meetings. Chino
Valley holds “mandatory” meetings every few months for emergency room staff. Teer Lina did
not attend any of these meetings, save for one, over the last several years; she had never been
disciplined for failure to attend these meetings. Tyrone Clavano’s supervisor allowed
employees to miss one mandatory meeting per year without discipline. Marlene Bacani also
missed several mandatory meetings; she was not disciplined. Similarly, Roncesvalles did not
attend a couple of the meetings in the past and was not disciplined for failing to attend. On
March 31 Gilliatt announced a mandatory meeting for April 4. On April 9, a week after the
election, Lina and Roncesvalles each received a copy of a verbal warning for missing the
mandatory staff meeting the day before. Lina wrote on the warning that she was working at her
other job and that that had been approved by Carlos Gonzalez, her former supervisor; she also
told this to her supervisor, Cheryl Gilliatt. Roncesvalles wrote on her warning that she was
working at her full-time job and got off work at 8 a.m. and that was why she was unable to
attend the meeting. In fact Gilliatt knew that per diem nurses like Roncesvalles, who work at
Chino Valley only 1 day per week, work full-time jobs elsewhere and that it would be difficult if
not impossible for them to attend every mandatory meeting. Other employees were also
disciplined for failing to attend these meetings.
There are no real credibility issues to resolve thus far in this section of my decision,
because the testimony that Chino Valley itself elicited from Gilliatt shows that before the
election, only about 25 percent of the nurses attended mandatory meetings and at the April
mandatory meeting again only about 25 percent attended. The only difference was before the
election, employees were not disciplined and after the election the employees were disciplined.
I do not, however, credit Gilliatt’s testimony that she decided to discipline employees without
regard to Lally’s instructions to start fully enforcing the rules. Gilliatt both received his written
instructions and also heard him tell employees that Chino Valley would begin doing so. Gilliatt
impressed me as someone who, at times, was doing her best to defend the actions taken by her
superiors rather than someone simply truthfully relating factual information.
Analysis
As to the 8(a)(3) allegation, the facts show that before the election employees were not
disciplined for failing to attend mandatory meetings but after the election, per Lally’s directive,

7 I leave the full identification of these employees to the compliance stage of this
proceeding. However, that assessment should begin with the comprehensive charts located in
pages 18–23 of the General Counsel’s brief.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
26
that policy changed and Chino Valley began disciplining employees who did not attend those
meetings. Having already described the other elements of the General Counsel’s case, I
conclude he has again easily met his burden under Wright Line. I turn now to whether Chino
Valley has established its burden to show the change and consequent discipline would have
occurred even in the absence of union activity. In this regard Chino Valley again points to the
policies that it had not previously strictly enforced. However, as I have already concluded, such
unenforced policies do not satisfy Chino Valley’s burden under Wright Line. By disciplining
employees who failed to attend mandatory meetings because employees supported the Union,
Chino Valley violated Section 8(a)(3) and (1) of the Act.8
As to the 8(a)(5) allegation, attendance and disciplinary measures concerning
attendance are mandatory subjects of bargaining. In its brief Chino Valley argues that this
change was not substantial, but it does so by ignoring the testimony it elicited from its own
witness Gilliatt who confirmed that 75 percent of employees were not regularly in attendance at
mandatory meetings and that after the change that 75 percent either were disciplined or were
subject to discipline for conduct that Chino Valley had previously overlooked. Also in its brief,
Chino Valley argues that the Union waived its right to bargain by not requesting to bargain;
Chino Valley correctly points out that the mere filing of a charge does not constitute a request to
bargain. But all this obviously misses the point because Chino Valley has not yet recognized
the Union. Chino Valley began disciplining employees for failing to attend mandatory meetings;
it did so without giving the Union an opportunity to bargain. By doing so, Chino Valley violated
Section 8(a)(5).
E. Section 8(a)(5) Allegations
1. Attending Certification Classes
The complaint alleges that Chino Valley violated Section 8(a)(5) by ceasing to pay
employees for time spent attending certification classes. Nurses, of course, must retain certain
certifications. In order to do so they must periodically attend refresher courses. Chino Valley
notifies its nurses when their requisite certifications are about to expire. Prior to the election,
Chino Valley paid Rosalyn Roncesvalles, then a part-time, per diem nurse, for the time she
spent taking the classes needed to retain her certifications. At some time prior to March 31
Chino Valley notified Roncesvalles that her certification was about to expire and she needed to
take a course to renew it; Roncesvalles did so and then completed a time sheet requesting
payment for the 8 hours she spent on March 31 attending the course she needed to retain the
certification. However, thereafter Gilliatt disallowed the claim and indicated on the time sheet
that payment was for full-time employees only. So Roncesvalles called Gilliatt and explained
that when she checked the timesheet she noticed that Gilliatt had indicated that payment for
class time was for full-time employees only. Roncesvalles asked if this was a new policy
because previously she and other per diem nurses had been paid for that time. Gilliatt said she
would check with human resources and get back to her. Chino Valley’s written policy
concerning this subject is not limited to full-time time employees; rather it indicates that all
employees will be paid for time spent attending these classes. On April 14, after not having
received a response from Gilliatt, Roncesvalles sent her a message as follows:

8 I leave the full identification of these employees to the compliance stage of this
proceeding. That assessment should begin with the comprehensive charts located in pages
11–12 of the General Counsel’s brief.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
27
I checked my time adjustment sheet and saw the note regarding my PALS renewal and
I just want to clarify my situation because I was not paid on the 8 hours class renewal.
I changed my status as per diem January 2009 and Carlos [Gonzalez] paid me the hours
that I attend on class credentials that I have to renew, including my MICN. I was
surprised when you noted that only full time employees will be reimbursed with the class.
Is this new policy? John and I checked on our policy that we get paid on attending and
renewing the mandatory class. I never saw anything that is written that only full time
employees get paid and not per diem.
On about May 12 Roncesvalles again raised the matter with Gilliatt. This time Roncesvalles
said that another required certification was going to expire in June 2011; she asked if she would
be paid for time spent renewing that certification. Gilliatt replied that Chino Valley needed
nurses with that particular certification so they might pay for that time, she would have to find
out. Gilliatt said that there were a lot of changes happening then. In December Roncesvalles
again asked about whether she would be paid for the time spent getting her next certification;
this time Gilliatt gave her an unambiguous “no”.
As noted, Chino Valley distributed flyers to employees prior to the election. One flyer
touted the benefits the employees received. A benefit listed there was
- Flex Ed, paid while you are learning.
There was no indication that this was limited to only full-time employees. And as Chino Valley’s
counsel highlighted during cross-examination, this is despite the fact that third and fourth bullet
points above the quoted portion of the flyer it read;
- Education Tuition Reimbursement ($2,500 for FT and $750 for PT, per calendar year
with prior approval
- 1x base annual salary company paid life insurance (FT only)
and the two bullet points immediately following the original quoted bullet point read:
- Paid BLS/ACLS certifications & required courses for employment (FT)
- Certification Recognition ($500 for FT, $300 for PT)
I conclude that a practice developed whereby Chino Valley paid part-time employees for the
time spent attending classes needed to maintain the certification necessary to perform their
work at Chino Valley.
These facts in this section are based on the credible testimony of Roncesvalles. Her
testimony was corroborated by documentary evidence. I have considered Gilliatt’s testimony; to
the extent it is inconsistent with the facts described above, I do not credit that testimony. Again,
her demeanor was not convincing and her answers were, at times, evasive.
Analysis
Work-related educational assistance programs are mandatory subjects of bargaining
and cannot be changed unilaterally. Tocco, Inc., 323 NLRB 480 (1997). Chino Valley had a
practice of paying part-time employees for the time spent attending classes needed to maintain
the certification necessary to perform their work at Chino Valley. Chino Valley then terminated
that benefit without first allowing the Union an opportunity to bargain concerning that change.
By doing so Chino Valley violated Section 8(a)(5).
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
28
2. Shift Changes
The complaint alleges that Chino Valley violated Section 8(a)(5) when it notified
employees that they could not make changes or exchange shifts once schedules are posted.
Remember, before the election Chino Valley distributed flyers that asked, among other things, if
the employee had “changed your schedule with a co-worker after it was posted?” On April 13,
the day after the marching orders from Lally as described above, Anne Marie Robertson, Chino
Valley’s director of nursing, on behalf of Gilliatt sent a message that read in pertinent part:
This is a reminder to ALL staff. . . .
Once a schedule is posted by the Nursing managers there will be no changes or
exchanges. If an emergency arises the Manager needs to be informed to remove the
staff member from the Master /unit schedule. If it is off shift/the House supervisor will
make the immediate change and forward the the [sic] department manager. If an
employee has a request for time off they are to utilize the "Request for time off' form
which is found on the intranet under Human Resources/forms. The form needs to be
completed by the employee and submitted to the Manager for approval allowing
sufficient time for review-The employee is responsible to contact the Manager to confirm
that a change has or has not been granted. Please do not leave requests on voicemail.
As General Counsel’s witness Teer Lina admitted. the practice has always been that after a
schedule is posted, an employee needed a supervisor’s permission to alter the schedule.
Sometimes the supervisor would make the change and other times the supervisor would tell her
to find another employee willing to change shifts with her. And as General Counsel’s witness,
Marlene Bacani and others credibly explained, before the election employees were able to
switch shifts with other employees so long as no overtime resulted; she simply informed her
supervisor of the change. Bacani also admitted that Gilliatt told her the same thing concerning
the shift change policy after the election notwithstanding the message described above.
Vincent Hilvano worked as a registered nurse in the emergency room from August 2008 until
July 2010. Before the message, Hilvano changed his shifts about once every 3 months even
after the schedule was posted, but he admitted that even after receiving the message, he
continued to trade shifts with coworkers. Before the message, Ronald Magsino switched shifts
with coworkers every 2 weeks or so. His former supervisor said that employees could do that
so long as it did not generate overtime costs. After the message, Magsino did not attempt to
change his shift after the schedule was posted. Robertson, Chino Valley’s director of nursing in
April 2010, similarly explained that there had not been a formal written policy concerning shift
changes but that the practice had been that employees could switch shifts after the schedule
was posted with approval of the appropriate supervisor and that if the switch involved the
creation of overtime, the supervisor might not approve. I conclude that the practice concerning
shift changes after the schedule is posted remained the same both before and after the election;
if the two employees agreed to swap shifts and no overtime was generated then the change
was approved by the supervisor.
Analysis
To the extent that the complaint alleges and the General Counsel argues that an actual
change occurred, I have concluded that the facts do not support that allegation. However, the
General Counsel also argues that the announcement of a change alone may violate Section
8(a)(5). In ABC Automotive Products, 307 NLRB 248, 249–250 (1992) the Board did hold that
the announcement of a change, even if not implemented, may constitute a violation of Section
8(a)(5). That case involved a situation where the employer announced that when strikers
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
29
returned to work, the employer would no longer make contributions to the union’s health fund;
the striker’s never returned to work and thus the change was never actually implemented. But
there the announced change was significant—an end to contributions to the union’s health fund.
Here, the announcement was roughly consistent with the existing practice. I dismiss this
allegation of the complaint.
3. Information Request
On April 9, 2010 the Union requested Chino Valley to furnish it with, inter alia, the
following information:
lists of employees including details as to full or part-time status, hourly wage rates,
wage increases, fringe benefits, classifications, shifts, addresses and phone numbers;
employee handbooks; company policies and procedures; job descriptions; benefit
plans; costs of benefits; and disciplinary notices.
On April 14 Chino Valley refused to provide the information, indicating that it had filed objections
to the election.
Analysis
The information sought by the Union is presumptively relevant to the Union’s
performance of its representational duties. Chino Valley violated Section 8(a)(5) and (1) by
failing to provide this information. The Union in its brief faults me for failing to consider
additional information that it requested but was not provided. However, the additional
information was not specifically alleged in the complaint and I reaffirm my conclusion that
sufficient due process has not been provided to Chino Valley to allow it to mount a defense to
the Union’s claim.
F. Procedural Issues
Prior to and during the hearing, I disposed of several petitions to revoke subpoenas.
Because Chino Valley will apparently challenge my rulings I explain my reasoning. Prior to the
hearing, Chino Valley served six subpoenas on the California Department of Public Health. The
subpoenas sought documents from the Department concerning other health care providers who
had disciplined employees who violate patient privacy rights. The Department filed a petition to
revoke the subpoenas and on June 1, during a pretrial conference call, I granted the petition to
revoke. I granted the petition to revoke because Chino Valley sought information that
concerned the disciplinary practices of other employers. Of course, only Chino Valley’s
disciplinary practices are at issue in this proceeding; what other hospitals do is not the least bit
relevant. As I stated on the record, I challenge Chino Valley to cite a single Board case that
holds that the disciplinary records of nonlitigant employers are relevant in determining the
lawfulness of a termination of an employee.
On June 8, 2011, I received into evidence a document (GC Ex. 84) from the California
Department of Public Health that indicated that it concluded that no breach had occurred when
Magsino accessed the patient’s medical record.
On June 7, 2011, Chino Valley served another subpoena on the Department and the
Department filed a petition to revoke that same day. Chino Valley sought the testimony of Lena
Resurreccion. On June 15, moments before the hearing closed, Chino Valley asked that I deny
the petition to revoke and require the testimony of Resurreccion. Chino Valley indicated that it
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
30
wanted the testimony “to explain what is in evidence as General Counsel Exhibit 84.” But after
Chino Valley conceded that Resurreccion did not participate at all in preparation of that exhibit,
I granted the Department’s petition to revoke. I reaffirm that ruling. Absent first hand
participation in the matter Resurreccion’s testimony would have minimal value in this case. In
this regard I also note that Chino Valley did not make a more detailed offer of proof concerning
this testimony, so it should not be allowed hereafter to raise matters not presented to me for my
consideration.
On July 18, over a month after the trial had closed, Chino Valley filed a motion to reopen
the record. The motion again concerns GC Ex. 84 that I had received into evidence on
June 8, 2011; the hearing did not close until June 15. The General Counsel and the Union filed
oppositions to the motion to reopen. In the motion Chino Valley seeks to reopen the record to
present testimony and evidence from the supervisor of the Department’s employee who
prepared the document to show that the “investigator incorrectly stated in those notes that no
breach had occurred with respect to the actions reported to her by Respondent, and that the
reported actions of Ronald Magsino constituted an intentional breach of HIPAA.” In support of
the motion Chino Valley filed an affidavit from Ruggio containing email exchanges between her
and Lena Resurreccion of the Department that culminate in a telephone conversation as
follows:
Ms. Resurreccion called me and we discussed Mr. Magsino’s conduct in greater detail.
During this phone call Ms. Resurreccion stated that Mr. Magsino’s conduct was indeed a
breach of HIPAA because the breach was intentional even if it was not malicious. Ms.
Resurreccion also stated that she could not comment on what Ms. Robin Burton may
have been thinking when she wrote the comment on her worksheet stating “no breach
actually occurred” because there definitely was a breach by Mr. Magsino.
I first note that this exchange confirms my ruling that Resurreccion had nothing to contribute
concerning GC Ex. 84; rather she could only provide testimony concerning other situations
presented to her by Chino Valley; the fact pattern that Ruggio apparently presented
Resurreccion omitted critical facts such as Magsino use of the information for internal grievance
matters and the permission granted to him by Gilliatt. Chino Valley has not shown the
“extraordinary circumstances” as required under Section 102.65(e)(1) of the Board’s Rules and
Regulations. I therefore deny the motion to reopen the record.
In its opposition to the motion to reopen, the Union asks that I award attorneys fees to it
for having to defend against the motion to reopen. Chino Valley’s motion was indeed utterly
without merit. Although the issue is a close one, I cannot say that Chino Valley’s motion was so
frivolous so as to warrant the extraordinary sanction of attorney’s fees. I deny the Union’s
request.
Citing Peyton Packing, 129 NLRB 1358 (1961) and Jefferson Chemical, Co., 200 NLRB
992 (1972) in its brief, Chino Valley again asserts that the complaint that issued in the test of
certification case should have been consolidated with the complaint in this case. That assertion
is wholly without merit. The Board has historically allowed test of certification cases to proceed
in an expedited fashion through summary judgment. That case is already before a court of
appeals for review; this case is still at the initial stages of litigation. There is simply no reason to
delay the resolution of that case by consolidating it with this case.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
31
CONCLUSIONS OF LAW
1. By the following conduct Chino Valley has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
(a) Threatening to close the facility and terminate employees if they selected a union.
(b) Threatening employees with loss of benefits if they selected the Union as their
collective-bargaining representative.
(c) Coercively interrogating employees about their union activities.
(d) Impliedly threatening employees with layoffs if they supported a union.
(e) Telling employees that they might lose the family atmosphere and flexibility of
scheduling at Chino Valley if they selected the Union.
(f) Giving employees the impression that their union activities are under surveillance.
(g) Threatening to discipline employees because they engaged in union activities.
(h) Informing employees that they could no longer take vacations longer than 2 weeks
because the employees had selected the Union to represent them.
(i) Telling employees that the family atmosphere at Chino Valley is over and that
henceforth Chino Valley would begin strictly enforcing its policies and procedures, including
tardiness, because the employees voted for the Union.
(j) Broadly prohibiting employees from speaking to the media, including about the
Union or about terms and conditions of employment.
(k) Serving subpoenas on employees and unions that request information about
employees’ union activities, under circumstances where that information is not related to any
issue in the legal proceeding.
2. By the following conduct Chino Valley has engaged in unfair labors affecting
commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
(a) More strictly enforcing a tardiness rule and disciplining employees pursuant to
that more strictly enforced rule because employees supported the Union.
(b) Disciplining employees who failed to attend mandatory meetings because
employees supported the Union.
(c) Discharging Ronald Magsino because he and other employees supported the
Union
3. By the following conduct Chino Valley has engaged in unfair labors affecting
commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
(a) More strictly enforcing a tardiness rule and disciplining employees pursuant to
that more strictly enforced rule without first giving the Union an opportunity to bargain
concerning the change
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
32
(b) Beginning to discipline employees who failed to attend mandatory meetings;
without first giving the Union an opportunity to bargain concerning the change.
(c) Terminating the practice of paying part-time employees for the time spent
attending classes needed to maintain the certifications necessary to perform their work at Chino
Valley without first allowing the Union an opportunity to bargain concerning that change.
(d) Failing to provide requested information that is presumptively relevant to the
Union’s performance of its representational duties.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. Having found that the Respondent has unlawfully more strictly
enforced a tardiness rule and unlawfully disciplined employee pursuant to that more strictly
enforced rule, I shall require the Respondent to rescind the stricter enforcement of the rule and
restore the practice that existed prior thereto and rescind to all discipline resulting from the
stricter enforcement of the rule.9 Having found that Respondent unlawfully began disciplining
employees who failed to attend mandatory meetings because employees supported the Union, I
shall require the Respondent to rescind that discipline.10 Having found that the Respondent
unlawfully terminated the practice of paying part-time employees for the time spent attending
classes needed to maintain the certifications necessary to perform their work at Chino Valley I
shall require it to make whole those employees who lost money as a result of the unlawful
termination, with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), compounded daily as prescribed Kentucky River Medical Center, 356 NLRB No. 8
(2010). Respondent, having discriminatorily discharged Ronald Magsino, it must offer him
reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily
as prescribed Kentucky River Medical Center, 356 NLRB No. 8 (2010). Because of the serious
nature of the violations and because of Respondent’s egregious widespread misconduct,
demonstrating a general disregard for the employees’ fundamental rights, I find it necessary to
issue a broad Order requiring the Respondent to cease and desist from infringing in any other
manner on rights guaranteed employees by Section 7 of the Act. Hickmott Foods, 242 NLRB
1357 (1979). Finally, as requested by the General Counsel, we order Respondent to have the
attached notice publicly read by a responsible corporate management official or by a Board
agent in the presence of a responsible management official. We find that the Respondent’s
unfair labor practices are sufficiently serious and widespread to warrant having the attached
notice read aloud to the employees so that they “will fully perceive that the Respondent and its
managers are bound by the requirements of the Act.” Federated Logistics & Operations, 340
NLRB 255, 258 (2003), enfd. 400 F.3d 920, 929–930 (D.C. Cir. 2005). The public reading of the
notice is an “effective but moderate way to let in a warming wind of information and, more
important, reassurance.” United States Service Industries, 319 NLRB 231, 232 (1995) (citations
omitted), enfd. 107 F.3d 923 (D.C. Cir. 1997). In order to monitor the reading of the notice,
representatives of the Board and of the Union shall have the right to be present. Texas Super

9 Said differently I am only requiring Respondent to go back to its old practice concerning
the 7 minute grace periods.
10 Although I have concluded that Chino Valley’s conduct also violated Section 8(a)(5), in
this case the Section 8(a)(3) remedy subsumes that Section 8(a)(5) remedy in this regard.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
33
Foods, 303 NLRB 209, 220 (1991). See also Santa Barbara News-Press, 357 NLRB No. 51.
slip op. at 9–10, (2011). In its brief the Union seeks a requirement that Respondent mail the
Notice from this matter to all persons employed by Respondent from the time that the unfair
labor practices were committed to the present. But I will issue a broad cease and desist order,
require Respondent to post, email, and read the Notice to employees. I think this will
adequately remedy the unfair labor practices.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.11
ORDER
The Respondent, Chino Valley, California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening to close the facility and terminate employees if they selected a
union.
(b) Threatening employees with loss of benefits if they selected the Union as their
collective-bargaining representative.
(c) Coercively interrogating employees about their union activities.
(d) Impliedly threatening employees with layoffs if they supported a union.
(e) Telling employees that they might lose the family atmosphere and flexibility of
scheduling at Chino Valley if they selected the Union.
(f) Giving employees the impression that their union activities are under
surveillance.
(g) Threatening to discipline employees because they engaged in union activities.
(h) Informing employees that they could no longer take vacations longer than 2
weeks because the employees had selected the Union to represent them.
(i) Telling employees that the family atmosphere at Chino Valley is over and that
henceforth Chino Valley would begin strictly enforcing its policies and procedures, including
tardiness, because the employees voted for the Union.
(j) Broadly prohibiting employees from speaking to the media, including about the
Union or about terms and conditions of employment.

11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
34
(k) Serving subpoenas on employees and unions that request information about
employees’ union activities, under circumstances where that information is not related to any
issue in the legal proceeding.
(l) More strictly enforcing a tardiness rule and disciplining employees pursuant to
that more strictly enforced rule because employees supported the Union.
(m) More strictly enforcing a tardiness rule and disciplining employees pursuant to
that more strictly enforced rule without first giving the Union an opportunity to bargain
concerning the change.
(n) Disciplining employees who fail to attend mandatory meetings.
(o) Discharging or otherwise discriminating against any employee for supporting the
Union or any other union.
(p) Beginning to discipline employees who fail to attend mandatory meetings without
first giving the Union an opportunity to bargain concerning the change.
(q) Terminating the practice of paying part-time employees for the time spent
attending classes needed to maintain the certifications necessary to perform their work at Chino
Valley without first allowing the Union an opportunity to bargain concerning that change.
(r) Failing to provide the Union with requested information that is presumptively
relevant to the Union’s performance of its representational duties.
(s) In any other manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order rescind the stricter
enforcement of the tardiness rule and restore the practice that existed prior thereto and within
14 days from the date of the Board’s Order, remove from its files any reference to the unlawful
disciplines of employees, and within 3 days thereafter notify the employees in writing that this
has been done and that the disciplines will not be used against them in any way.
(b) Within 14 days from the date of the Board’s Order rescind the discipline imposed
on employees who failed to attend mandatory meetings and within 14 days from the date of the
Board’s Order, remove from its files any reference to the unlawful discipline of employees, and
within 3 days thereafter notify the employees in writing that this has been done and that the
discipline will not be used against them in any way.
(c) Within 14 days from the date of the Board’s Order restore the practice of paying
part-time employees for the time spent attending classes needed to maintain the certifications
necessary to perform their work at Chino Valley and thereafter make whole those employees
who lost money as a result of the unlawful termination, with interest as described in the remedy
section of this decision.
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
35
(d) Within 14 days from the date of the Board’s Order provide the Union with the
requested information that is presumptively relevant to the Union’s performance of its
representational duties.
(e) Within 14 days from the date of the Board’s Order, offer Ronald Magsino full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(f) Make Ronald Magsino whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him in the manner set forth in the remedy section of the
decision.
(g) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify the employee in writing
that this has been done and that the discharge will not be used against him in any way.
(h) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
(i) Within 14 days after service by the Region, post at its in Chino, California, copies
of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by the
Regional Director for Region 31, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. 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 involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent at any time since
March 8, 2010.
(j) 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.

12 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(SF)–39–11
5
10
15
20
25
30
35
40
45
50
36
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. October 17, 2011
____________________
William G. Kocol
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT threaten to close the facility and terminate employees if they selected a union.
WE WILL NOT threaten employees with loss of benefits if they select the United Nurses
Association of California/Union of Healthcare Professionals, NUHHCE, AFSCME, AFL-CIO (the
Union) as their collective-bargaining representative.
WE WILL NOT coercively interrogate employees about their union activities.
WE WILL NOT impliedly threaten employees with layoffs if they supported a union.
WE WILL NOT tell employees they might lose the family atmosphere and flexibility of
scheduling at Chino Valley if they selected the Union.
WE WILL NOT give employees the impression that their union activities are under surveillance.
WE WILL NOT threaten to discipline employees because they engaged in union activities.
WE WILL NOT inform employees that they could no longer take vacations longer than 2 weeks
because the employees had selected the Union to represent them.
WE WILL NOT tell employees that the family atmosphere at Chino Valley is over and that from
now on Chino Valley would begin strictly enforcing its policies and procedures, including
tardiness, because the employees voted for the Union.
WE WILL NOT broadly prohibiting employees from speaking to the media, including about the
Union or about terms and conditions of employment.
WE WILL NOT serve subpoenas on employees and unions that request information about
employees’ union activities, under circumstances where that information is not related to any
issue in the legal proceeding.
WE WILL NOT more strictly enforce a tardiness rule or discipline employees pursuant to that
more strictly enforced rule because employees supported the Union.
WE WILL NOT more strictly enforcing a tardiness rule and disciplining employees pursuant to
that more strictly enforced rule without first giving the Union an opportunity to bargain
concerning the change
WE WILL NOT discipline employees who fail to attend mandatory meetings.
WE WILL NOT discharge or otherwise discriminate against employees for supporting the Union
or any other union.
WE WILL NOT began disciplining employees for failing to attend mandatory meetings without
first giving the Union an opportunity to bargain concerning the change.
WE WILL NOT terminate the practice of paying part-time employees for the time spent
attending classes needed to maintain the certifications necessary to perform their work at Chino
Valley without first allowing the Union an opportunity to bargain concerning that change.
WE WILL NOT fail to provide the Union with requested information that is presumptively
relevant to the Union’s performance of its representational duties.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order rescind the stricter enforcement of
the tardiness rule and restore the practice that existed prior thereto and WE WILL within 14
days from the date of the Board’s Order, remove from its files any reference to the unlawful
discipline of the employees, and within 3 days thereafter notify the employees in writing that this
has been done and that the discipline will not be used against them in any way.
WE WILL within 14 days from the date of the Board’s Order rescind the discipline we imposed
on employees who failed to attend mandatory meetings and WE WILL within 14 days from the
date of the Board’s Order, remove from its files any reference to the unlawful discipline of
employees, and within 3 days thereafter notify the employees in writing that this has been done
and that the discipline will not be used against them in any way.
WE WILL, within 14 days from the date of this Order, offer Ronald Magsino full reinstatement to
his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Ronald Magsino whole for any loss of earnings and other benefits resulting
from his discharge, less any net interim earnings, plus interest compounded daily.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharge of Ronald Magsino, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not be used against him in any way.
WE WILL within 14 days from the date of the Board’s Order restore the practice of paying part-
time employees for the time spent attending classes needed to maintain the certifications
necessary to perform their work at Chino Valley and WE WILL make whole those employees
who lost money as a result of the unlawful termination of that practice, with interest.
WE WILL within 14 days from the date of the Board’s Order provide the Union with the
requested information that is presumptively relevant to the Union’s performance of its
representational duties.
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
11150 West Olympic Boulevard, Suite 700
Los Angeles, California 90064-1824
Hours: 8:30 a.m. to 5 p.m.
310-235-7352
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY
BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 310-235-7123.