William Beaumont Hospital

National Labor Relations Board - Administrative Judge Opinions

Jan 30, 2014

07-CA-093885 (N.L.R.B. Jan. 30, 2014)

JD–04–14
Royal Oak, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WILLIAM BEAUMONT HOSPITAL
and Case 07-CA-093885
JERI ANTILLA, an Individual
Darlene Haas Awada, Esq.
for the General Counsel.
John P. Hancock, Jr., Esq., and Rebecca S. Davies, Esq., Butzel Long,
for the Respondent.
DECISION
STATEMENT OF THE CASE
SUSAN A. FLYNN, Administrative Law Judge. This case was tried in Detroit, Michigan,
on May 14–16, 2013. The Charging Party filed the charge on November 28, 2012, and the
General Counsel issued the complaint on March 28, 2013.
The complaint alleges that the Respondent violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by discharging employees Jeri Antilla and DeAnna Brandt due to their
alleged protected concerted activities. The Respondent filed an answer denying the essential
allegations of the complaint and raising affirmative defenses.
The General Counsel orally amended the complaint at the beginning of the trial alleging
that the Respondent, through its agent, Anne Ronk, orally promulgated an overly broad rule
prohibiting employees from talking with other employees regarding an investigation into alleged
misconduct. The General Counsel again orally amended the complaint during the second day of
trial alleging that the Respondent promulgated and maintained the Code of Conduct for Surgical
Services and Perianesthesia that includes rules that are overly broad and which employees would
reasonably construe as discouraging Section 7 activities. The General Counsel asserts these
actions also violate Section 8(a)(1) of the Act. The Respondent denies that the allegations
constitute violations of the Act and further contends that the allegation pertaining to the Code of
Conduct was untimely raised.
After the trial, the parties filed briefs, which I have read and considered. Based on the
entire record in this case, including the testimony of the witnesses and my observation of their
demeanor, I make the following
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2
FINDINGS OF FACT
JURISDICTION
The Respondent operates a hospital in Royal Oak, Michigan. During a representative 1-year 5
period, the Respondent derived gross annual revenue in excess of $100,000, and purchased and
received goods and materials valued in excess of $5,000 directly from suppliers located outside
the State of Michigan. Accordingly, I find, and Respondent admits, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
10
The Respondent also admits, and I find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
ALLEGED UNFAIR LABOR PRACTICES15
A. BACKGROUND
The Respondent operates several hospitals including one in Royal Oak, Michigan, that
includes a Family Birth Center (FBC). The hospital CEO is Shane Cerone; the hospital 20
administrator is Maureen Bowman; the human resources representative is Amy Giannosa. In the
Family Birth Center, the director of Women, Children and Psychiatric Services (Maternal Child
Health) is Anne Ronk. She supervises the Nurse Manager, Patricia Knudsen, who has 24/7
responsibility for operations. Knudsen supervises the two associate nurse managers: Alissa
Amlin (afternoon shift) and Tonyie Andrews-Johnson (midnight shift).25
The Family Birth Center includes 20–21 labor/delivery beds, 9 triage beds, and 4 operating
rooms (ORs). In the event of a problem, the newborn would be sent to the newborn intensive
care unit (NICU). The Charging Party, Jeri Antilla, is a Registered Nurse (RN); DeAnna Brandt
is a certified surgical technician. Both worked in the FBC although Brandt also worked at times 30
in the Children’s Surgery Center.
The employees of the Respondent’s hospitals, including William Beaumont Hospital in
Royal Oak, are not unionized.
35
B. CODE OF CONDUCT
Since at least October 9, 2009, the Respondent has maintained a Code of Conduct for
Surgical Services and Perianesthesia, which has been distributed to employees. (R. Exh. 6.)
40
The Code reads as follows, in pertinent part:
Conduct on the part of a Beaumont employee or physician that is inappropriate or
detrimental to patient care of [sic] Hospital operation or that impedes harmonious
interactions and relationships will not be tolerated. Transgressors shall be subject to 45
appropriate remedial or corrective action. Improper conduct or inappropriate behavior or
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defiance in the following example [sic], which includes but not limited [sic] to the
following:
Willful and intentional threats, intimidation, harassment, humiliation, or coercion of
employees, physicians, patients, or visitors.5
Profane and abusive language directed at employees, physicians, patients or visitors.
Behavior that is rude, condescending or otherwise socially unacceptable.
Intentional misrepresentation of information.
Verbal comments or physical gestures directed at others that exceed the bounds of fair
criticism.10
...Negative or disparaging comments about the moral character or professional
capabilities of an employee or physician made to employees, physicians, patients, or
visitors.
....Behavior that is disruptive to maintaining a safe and healing environment or that is
counter to promoting teamwork.15
C. WORKING CONDITIONS
The nursing staff works on two shifts: days and nights. The weekend night shift (referred to
as midnights) generally works from 7 p.m. to 7 a.m., on Friday, Saturday, and Sunday nights. 20
There is a charge nurse1 on duty on midnights but there is rarely any manager on duty on
midnights, although occasionally Andrews-Johnson works Sunday nights. On an average night,
there may be 9 to 12 nurses on duty, with a total of approximately 30 nurses assigned to the night
shift. (Tr. 603, 604, 653.)
25
Nurses may transfer between shifts when a position becomes vacant. In such instances,
management calls and offers the position to the most senior nurse on the other shift, who could
accept or decline. Most nurses prefer the day shift, so experienced nurses are pulled from the
night shift to the day shift, and their slots filled by newer, less experienced nurses. New nurses
would only be assigned one patient, while the more experienced nurses may be responsible for 30
two or three. Thus, experienced nurses are expected to handle their own patients, as well as assist
the less experienced nurses in performing their duties, which causes stress among the nursing
staff. In addition, the midnight shift was chronically understaffed at the relevant time period,
although the reasons for that are unclear. (Tr. 510, 515–516, 517.)
35
It is the hospital’s practice to assign preceptors (experienced nurses) to mentor new nurses.
The new nurse shadows the preceptor and gradually begins performing tasks herself, as she
becomes more confident. The period of orientation lasts a minimum of 12 weeks.
D. RESPONSE TO A SENTINEL EVENT40
In December 2011, a “sentinel event” occurred. A sentinel event is defined as a serious
incident; in this case, a newborn died unexpectedly. An investigation was conducted and it was

1 Charge nurses are not supervisors.
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4
determined there were numerous reasons for the child’s death. Among those reasons were lack
of communication between nursing staff especially during handoffs (when nurses changed shifts)
and failure to provide assistance when requested by a nurse. A 4-hour mandatory training
session was then presented on four dates in January and February 2012, attempting to address the
problems identified in order to ensure there was no recurrence, with a focus on communication.5
On March 5, 2012, the hospital CEO, Shane Cerone, went to the midnight shift and met
individually with several nurses, seeking feedback and input about the work environment. (R.
Exh. 16.) Neither Antilla nor Brandt spoke to Cerone.
10
The following week, one nurse was added 7 nights a week (the equivalent of three nurses)
despite no budgeting for such positions, based on the nurses’ complaints about inadequate
staffing. (Tr. 535.) Later that year, in the summer, additional nurses were hired, approximately
16 in total. Most were graduate nurses, with no experience; a few had some experience but not
in labor and delivery. Two new nurses, Dusta Dukic and Nadia Futalo, began on the midnight 15
shift and did their orientation on that shift; the others received orientation on the day shift, then
transitioned to the midnight shift by September 2012. Thus, at the relevant time period, on an
average midnight shift, most of the RNs had little experience.
E. PROTECTED CONCERTED ACTIVITY20
Many nurses complained to each other about the problems on the midnight shift, especially
understaffing and the effects of having a large number of inexperienced or less experienced
nurses on that shift, causing a heavier burden to fall on the more experienced nurses. They also
felt the situation was unsafe for the patients, and some had concerns about the possibility of 25
losing their nursing licenses if they were held responsible for an error committed by a new nurse
on one of their patients.
The Charging Party, Antilla, was one of the nurses who would discuss these issues and
complain about problems on the midnight shift. (Tr. 191). Those discussions often occurred at 30
the nursing station, but sometimes also occurred in the patients’ rooms. Antilla testified that she
also talked to Amlin about one of the new nurses, Dusta Kukic, after she had precepted her. That
feedback was in response to an email from Amlin asking about a particular incident. (GC Exh.
9.) Antilla also said that she had commented to Andrews-Johnson that Andrews-Johnson had
scheduled a new nurse for triage when an experienced nurse was needed. Neither of those 35
instances involved concerted activity.
DeAnna Brandt was a surgical technician, and therefore was usually in the OR. However,
she, too, discussed the problems of understaffing and inexperienced nurses with nurses. (Tr.
246–247.) In addition, she raised concerns about performance deficiencies with the charge 40
nurses. Brandt testified that she brought such concerns to the charge nurses almost nightly, that
she did not characterize as complaints but rather as areas she noted where the nurses needed
improvement or extra guidance. She said she also reported back to preceptors about new
nurses’ performance.
45
Brandt testified that she did not have the opportunity to talk to Andrews-Johnson about her
concerns because Andrews-Johnson was rarely on duty on midnights (Tr. 297–298, 325–326).
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However, she did testify to a meeting they had on April 16, 2012, when she was issued her
performance evaluation. Brandt added written comments regarding a nurse named Maggie and
her being unfamiliar with Surgiflo or how to do sponge counts; that newer nurses were
unfamiliar with surgical instruments; and that charge nurses sometimes did not call her to open
an OR before the patient was brought in. (GC Exh. 18.) Brandt said that Andrews-Johnson did 5
not read those written comments. (Tr. 242.) Brandt testified that she had raised similar concerns
with Ronk when Ronk had come to the floor to discuss renovations, although Ronk had told her
she was not there to discuss such issues, just the renovations. (Tr. 241–242.)
Lori Post, an RN, testified that she engaged in discussions about short staffing and the 10
inexperienced nurses. (Tr. 74–75, 88–89.) She was unaware whether anyone raised these
concerns with management; she did not, other than talking to Cerone earlier, in March 2012. She
had told him the unit was unsafe due to short staffing, and that she believed “something” was
going to happen. Post felt that, since Diane Glinski had been fired (ostensibly for bullying)2
approximately 2 weeks after she had spoken to Cerone, most nurses then “clammed up” around 15
management for fear of retaliation.
F. MANAGEMENT AWARENESS OF PROTECTED CONCERTED ACTIVITY
Ronk was unaware of these discussions amongst staff about new nurses and safety concerns. 20
(Tr. 514–515, 536.)
Andrews-Johnson was aware that Antilla and Brandt talked to other nurses about staffing and
safety issues working with the new nurses. (Tr. 587–589.) Some of the nurses came to her with
their concerns, which she encouraged, so the matters could be addressed. (Tr. 588.) 25
G. NEW NURSE’S RESIGNATION
One of the new nurses, Tina Wadie, failed to report for duty on October 22, 2012. She called
out sick that day, then sent an email on October 23, 2012, to Amlin, Andrews-Johnson, and 30
Lindsay Decker, clinical nurse specialist. In it, she stated that she would not be returning to work
although this was her “dream job,” since she seemed not to be well-suited for the job and due to
bullying and intimidation by unnamed senior nurses. (R. Exh. 9.) Andrews-Johnson forwarded
the email to HR and the clinical nurse specialist. (Tr. 573–574.)
35
This situation concerned management. Ronk felt that Wadie was considered the best
qualified of the new hires, and she expected the more experienced nurses to help, not intimidate
and drive away, the newer nurses. (Tr. 539.) Andrews-Johnson was concerned that Wadie quit
her dream job, without notice, and that Wadie said it made her ill to think about coming to work.
(Tr. 574.) The allegations Wadie made in her email, such as the statement about the “right way” 40
and the “night way” of doing things and the need to move patients on within 1 hour, suggested
that proper procedures were not being followed on midnights or were being rushed. (Tr. 575–
576.)

2 The record shows that Glinski was not in fact fired. She resigned after being confronted about
misbehavior (including showing photos of a deceased infant). There were no allegations of bullying
against her. (Tr. 520, 567; GC Exh. 25(g).)
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On October 24, Giannosa was asked by her boss, Mike Dixon, director of Human Resources,
to conduct an exit interview with Wadie. She was directed to ask whether Wadie would be
willing to talk to hospital recruiters about taking a position in another unit. Wadie agreed and
returned to work.
5
Giannosa talked to Wadie on at least one other occasion, and Wadie named four employees
as problems: Antilla, Brandt, Post, and Michele Wonch. (R. Exh.10; GC Exh. 27.) Wadie told
Giannosa that Brandt was nasty, huffy, not nice at all, belittling about everything, sarcastic,
condescending, rolling eyes, and made negative comments no matter what you do. Wadie
reported that Antilla said there is a “night way” of doing things, sat around a lot and complained 10
about the unit, other new nurses say she is a bully. Tiffany (last name not reported), Antilla, and
Post made comments about new nurses and about their nursing licenses.
After speaking with Wadie, Giannosa sent an email to Alonzo Lewis, VP of Maternal Child
Health and Women’s Health, Bowman, Ronk, Amlin, and Andrews-Johnson, as well as Dixon, 15
Jennifer Mattucci, Employment Manager, and three recruiters: Marilyn Koski, Laura Velzy, and
April Hornyak, advising them of certain issues raised by Wadie and that the concerns would be
addressed. (GC Exh. 26.)
H. INVESTIGATION20
Based on Wadie’s statements to her, Giannosa decided to proceed with an investigation.
Then, on October 26, the situation was discussed at a meeting attended by Giannosa, Ronk,
Andrews-Johnson, and Amlin; Knudsen was present by telephone (as she was out on extended 25
sick leave). A plan of action was agreed to, that is, that an investigation would be conducted. (Tr.
578–580.) Giannosa assigned that responsibility to Andrews-Johnson, as the first-line supervisor.
She was to talk to the newer nurses about their experience on the midnight shift, without
mentioning any individuals’ names. These were to be open-ended conversations to see if the
nurses raised any concerns. (Tr. 538, 540–541.) Giannosa testified that Andrews-Johnson was to 30
interview a random selection from among the nurses hired in the past couple of years.
Andrews-Johnson took notes of each interview and then sent emails to the management
group, summarizing the discussion following each one. (R. Exh. 13; Tr. 580.)
35
At their October 31 meeting, the group reviewed the interview notes that Andrews-Johnson
had gathered to date. A preliminary consensus was reached based on the feedback received to
date that two employees (Antilla and Brandt) should be terminated and two (Post and Wonch)
counseled. (R. Exh. 11; Tr. 541–542, 566.) Andrews-Johnson continued to conduct interviews
thereafter.40
I. INITIAL MEETING WITH BRANDT AND NONDISCUSSION ORDER GIVEN
Initial meetings were held with Antilla and Brandt, to advise them of the nature of the
charges against them and provide them the opportunity to reply or to resign before disciplinary 45
action was taken. Ronk met with Brandt, and Andrews-Johnson and Amlin met with Antilla.
JD–04–14
7
On November 2, Amlin told Brandt to see Ronk. Brandt testified that Ronk told her that a
nurse had quit and said that Brandt had been mean, nasty, and rude to her, and that an
investigation would be conducted. She said Wadie as well as other new nurses had named her as
nasty and rude. Ronk inquired whether she had taken any communication classes, and Brandt
said she had not. Ronk encouraged her to take some, and said the hospital would pay her for her 5
time in the classes. Ronk further told Brandt to think about her actions and the situation, and that
they would talk again after the investigation. Brandt said she was concerned that she might be
fired and felt she needed to consult an attorney; Ronk replied that she was not allowed to discuss
this with anyone, not even an attorney, as this was hospital business. (Tr. 257, 550; GC Exh. 34.)
Ronk, however, testified that she instructed Brandt not to discuss the matter with anyone on the 10
unit. (Tr. 550.) I find Ronk more credible than Brandt regarding their conversation, and
specifically regarding the nondiscussion instruction. First, Ronk made contemporaneous notes of
the conversation. Second, from those notes it is clear that Ronk made the remark in response to
Brandt’s statement that she would be approaching the new nurses that weekend to introduce
herself and offer any assistance they might want. 15
Brandt did not discuss the matter with anyone. Ronk admitted in her testimony that she
did advise Brandt not to discuss the matter with anyone on staff, as the matter was still under
investigation and she was concerned (given the nature of the complaints against Brandt) that
such discussions may result in additional allegations of intimidation. Ronk’s notes of the meeting 20
confirm that she instructed Brandt not to discuss the meeting with anyone else in the unit (GC
Exh. 34).
Brandt later sent Ronk emails indicating that she had registered for classes and that she
had applied for other positions at the hospital, outside the FBC. (GC Exhs. 19, 20.)25
J. INITIAL MEETING WITH ANTILLA
On November 5, Antilla was asked to meet with Andrews-Johnson and Amlin. She was told
that her name had been brought up by a few nurses as being negative, about making comments 30
about her nursing license being on the line and other remarks about new staff, and how she felt
new nurses shouldn’t be working in labor and delivery. Andrews-Johnson asked Antilla for her
side, and Antilla agreed that she had made the three remarks. She said she had expressed
concerns about not just her license, but other nurses’ nursing licenses. She noted that previously,
nurses had been required to have 1–2 years’ experience before being assigned to labor and 35
delivery, which was a specialty area, and that longer training periods (orientation) or a nurse
residency program would be advisable. She was told that her negativity could be construed as
intimidating and bullying, that she had been negative in early 2012 but had improved, and now
was being negative again. She was told the reports of her negativity came from new nurses, but
no names were revealed. Ultimately, Antilla was encouraged to prepare a reply, and that HR 40
would call her after the investigation was conducted. (R. Exh. 25.)
After meeting with Antilla, Andrews-Johnson reported to Giannosa, Ronk, and Amlin what
had transpired. (Tr. 585.)
45
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8
K. DECISIONS TO DISCIPLINE
Ronk testified that decisions to discipline were made by management and HR. In this
instance, the final decisions were made at a meeting on November 8, by Ronk, Knudsen, and
Giannosa, with any input from Andrews-Johnson and Amlin. The decision to terminate Antilla 5
and Brandt was based on the statements provided by a number of staff nurses in the course of
Andrews-Johnson’s investigation, as well as the statements by Wadie. Those statements were
accepted as true.
Hospital policy provided that progressive discipline was not required when the infraction was 10
serious, including improper conduct. (R. Exh. 14.) Giannosa testified that Antilla and Brandt’s
behavior was severe enough to warrant termination because it was a safety concern, as bullying
affected the nurses’ interactions with each other, discouraged nurses from requesting assistance,
and had contributed to the sentinel event of December 2011. (Tr. 453–454, 465–466.) Ronk
testified that bullying and intimidating behavior has no place in a labor and delivery setting 15
where teamwork is critical. Such behavior “impedes communication, open communication, staff
feeling free to ask questions, ask for help, and that can put a patient’s safety at risk.” (Tr. 544.)
Although there was no specific testimony as to which manager drafted the basic termination
language, it would appear that it was Andrews-Johnson, as the first-line supervisor and the 20
individual who conducted the investigations. She did review the termination documents with
Giannosa. (Tr. 39–40, 472.) Giannosa edited and added to them, specifically adding language
under the form’s future expectations section, as per hospital policy, then returned them to
management for review. (GC Exhs. 4, 5; Tr. 41–42, 48, 472, 475.) The documents were signed
by all necessary parties and issued to Antilla and Brandt. 25
Brandt was fired for exhibiting mean, nasty, intimidating, and bullying behavior. (Tr. 472;
GC Exh. 5.)
Antilla was fired for exhibiting negative, intimidating, and bullying behavior. (Tr. 475; GC 30
Exh. 4.)
Two nurses, Lori Post and Michele Wonch, were counseled. Neither was terminated because
their conduct was not as severe as Antilla and Brandt’s. Andrews-Johnson counseled Post;
Knudsen was supposed to counsel Wonch. (Tr. 583, 605.) There is a memo in Post’s file 35
documenting that counseling but there is none in Wonch’s file. (GC Exh. 25 j.) That counseling
should have been conducted by Knudsen, as determined by the management group.3
40

3 While it is possible that either the counseling did not occur or that the documentation was not
completed due to Knudsen being out on extended medical leave, such is pure speculation as there was no
testimony on this point and there is no documentation that it ever occurred. (GC Exh. 25.)
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L. ISSUANCE OF THE DISCIPLINE
1. Termination of Brandt
On November 8, Brandt was called to a meeting with Ronk, Andrews-Johnson, and Amlin. 5
She was advised that her employment was being terminated and she was given the papers to
read. (GC Exh. 5.) At the bottom, under background and related information, counselings from
August 2006 and June 20114 were noted. Brandt refused to sign the termination but received a
copy. She testified that Ronk explained the Respondent’s internal grievance process to her, but
said that Bowman, who had signed off on the termination, would be the step 1 deciding official. 10
She also said that Ronk said, “Good luck with that.” Ronk denied making such remarks about
Bowman or step 1. (Tr. 546.) Ronk testified that the meeting lasted approximately 5 minutes as
Brandt asked no questions. (Tr. 546, 552.) Andrews-Johnson testified that Brandt said nothing,
that Ronk did all the talking, reviewing the termination papers with Brandt. Andrews-Johnson
corroborated Ronk’s testimony that she did not make such reference to Bowman and the 15
grievance procedure. (Tr. 582.) She agreed that the meeting was very short.
Brandt testified that she was not asked for her side of events. She never submitted a written
reply to the charges.
20
Brandt did not file a grievance. She testified that she was not familiar with the grievance
process, so she looked it up online but did not ask HR or anyone else any questions about it. She
noted that there was a right of appeal to a panel after the first step. Nonetheless, she did not
pursue her grievance rights.
25
I accept and credit the testimony of Ronk and Andrews-Johnson over that of Brandt. Brandt’s
testimony regarding looking up the grievance process online supports Ronk and Andrews-
Johnson. Brandt may have felt that pursuing a grievance was pointless under the circumstances,
but that was her perception, and not based on any attempts by management to discourage her.
30
2. Termination of Antilla
On November 9, Ronk asked to see Antilla before she began her shift. Antilla met with
Ronk and Andrews-Johnson. Ronk told her that, in light of the investigation findings, she was
being fired as the ringleader of negativity on the unit. Ronk said her name had been brought up,35
in a letter from a nurse who recently quit and in discussions with nursing staff, as being
intimidating and bullying.

4 Brandt testified that she had no knowledge of an August 2006 counseling. However, in June 2011,
she was written up for a Facebook posting. (GC Exhs. 16, 17.) Brandt had complained on Facebook about
working nine shifts, plus covering for other surgical technicians. Ronk told her that she appreciated her
hard work but that if she had a problem with someone, she should confront that person rather than post
negative comments about the hospital on the internet. At that meeting, Brandt noted some safety concerns
in the OR, such as when a nurse did not understand that she had contaminated the sterile field, as well as
complaining about the lack of bathroom breaks during a 12-hour shift. Ronk had said she would address
those concerns, and apparently did so. Brandt later sent Ronk an email saying she had gotten her break/s
and indicating that all was well. (R. Exhs. 7, 8.)
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Antilla then explained the stepstool incident to Ronk, that there had not been a stepstool
in the room when it appeared it would be needed for a particular delivery, and that afterward, she
told the new nurse that she needed to ensure that each delivery room had a stepstool, bag, and
mask in case of emergency. She had then gone to the nurses’ station and repeated this.
Antilla denied making any statement about the “right way” and the “night way.” She 5
also denied saying she hated to work weekends with so many new nurses, since that was her
preferred shift, for family reasons.5
Ronk then told her the hospital had a zero tolerance for bullying and intimidation, and
that, therefore, she was being fired. Antilla then presented the reply letter that Amlin had 10
encouraged her to write. (GC Exh. 12.) Ronk collected her badge, gave her Giannosa’s phone
number, and reviewed the grievance process with her.
Antilla filed a grievance. In her grievance, Antilla had indicated that she felt the problem
was a personality conflict, that her statements were taken out of context, and that she had a good 15
relationship with Wadie, as reflected in Wadie’s Facebook posting. (GC Exh. 10.) She met with
Ronk, Bowman, and Giannosa for step 1. She lost at the first step, so she filed an appeal to the
panel, but lost that as well. She then filed the instant unfair labor practice charge.
III. LEGAL STANDARDS AND ANALYSIS20
A. Terminations
The discipline or discharge of an employee violates Section 8(a)(1) of the Act if the
employee was engaged in activity that is “concerted” within the meaning of Section 7 of the Act, 25
the employer knew of the concerted nature of the employee’s activity, the concerted activity was
protected by the Act, and the discharge was motivated by the employee’s protected concerted
activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir 1981), cert denied 455
U.S. 989 (1982); Correctional Medical Services, 356 NLRB No. 48, slip op. at 2 (2010); Naomi
Knitting Plant, 328 NLRB 1279, 1281 (1999) (quoting FPC Holdings, Inc. v. NLRB, 64 F.3d 30
935, 942 (4th Cir. 1995), enfd. 314 NLRB 1169 (1994). If the General Counsel makes such an
initial showing of discrimination, then the Respondent may overcome that inference by
presenting evidence demonstrating that it would have taken the same action even in the absence
of the employee’s protected activity. See Timekeeping Systems, Inc., 323 NLRB 244, 244 (1997);
Williamette Industries, 341 NLRB 560, 563 (2004). 35
Both Antilla and Brandt did routinely and frequently complain to peers about working
conditions, such as understaffing on the midnight shift, and the problems associated with
working with inexperienced nurses—additional burdens on the senior staff, risks to the patients,
and the potential for losing nursing licenses. It is arguable whether these discussions in 40
themselves initially constituted protected concerted activity, as there was no evidence
whatsoever presented that any employee planned to take any action based upon those complaints
and there was no concerted purpose, it was mere complaining. While Antilla testified that she
“found her passion” in advocating for new nurses and obtaining longer orientation periods for

5 She did not address the statement that she hated working with the new nurses, just that part of the
statement pertaining to working weekends.
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11
them, it was established that she did not take any action in that direction with management,
except in one conversation when she stated that she felt orientation periods should be longer.
Ronk was initially not aware that staff, and specifically Antilla and Brandt, engaged in such
discussions or other protected concerted activity until it was revealed in the course of the 5
investigation into the bullying allegations.6 However, Andrews-Johnson had been aware of those
discussions, and that Antilla and Brandt engaged in them. Some nurses brought their concerns
directly to Andrews-Johnson and she encouraged them to do so. However, Andrews-Johnson
noted in her investigation interview notes the complaints raised by Antilla and Brandt and others,
as reported by the interviewees. The other members of the management team, including 10
Giannosa, learned of the complaints through Andrews-Johnson’s interview notes. Subsequent to
their gaining knowledge of the protected activity, management decided to terminate both Antilla
and Brandt. Thus, the General Counsel has met her burden.
However, I find that the Respondent has established that both Antilla and Brandt would have 15
been terminated absent their protected activity.
First, while not determinative, it has been established that other nurses who likewise engaged
in similar discussions complaining about working conditions, were not terminated. Most nurses
engaged in those conversations and several names were raised in Andrews-Johnson’s20
investigation. Of the four who were deemed the primary offenders, only Antilla and Brandt were
terminated. Post was only counseled. While there is no evidence that Wonch was in fact
counseled as the management team agreed, that is immaterial, since the decision had clearly been
made by the team to counsel her, and not to terminate her.
25
Second, management witnesses credibly testified, and both Antilla and Brandt agreed, that
management did not discourage such conversations among the staff.
Third, the reasons that management has given for the terminations are significant and
credible, and were sufficient to justify the terminations. The alleged misconduct must be viewed 30
in context. The General Counsel chooses to interpret the allegations of negativity as directed
toward protected concerted activity. I disagree. The hospital had experienced an unexpected
infant death, and this was found to be due, at least in part, to nurses not cooperating with each
other, not communicating effectively with each other. If new or inexperienced staff does not feel
comfortable asking for assistance or asking questions for fear of being mocked, or humiliated, or 35
yelled at, then there is indeed increased risk to patients. Whether one characterizes the conduct as
bullying or negative or demeaning is immaterial; it is the underlying conduct that is at issue, not
the characterization.
Knudsen testified to being advised of bullying problems within her first month in her current 40
job, in October 2011. (R. Exhs. 26, 27, 28.) An environmental survey (culture of safety survey)
was then conducted. (Tr. 611, 615–618; R. Exh. 29.) Knudsen characterized negative behavior

6 Brandt emailed Ronk a document (comments) that Brandt had wanted attached to her performance
appraisal the prior year. Ronk testified that she never read those comments, as the decision to terminate
her employment was made at approximately the same time, so she had no reason to read the document.
(Tr. 552–553.)
JD–04–14
12
as intimidation, mocking, excessive criticism, hoarding knowledge; and behaviors that are not
conducive to a safe environment. (Tr. 618.) Because of her concern about the staff comments in
response to the survey, Knudsen felt that teambuilding and other training was in order. (Tr. 619.)
However, the sentinel event occurred while the initial planning was taking place, that altered the
strategy. (Tr. 61; R. Exh. 31.) The ensuing investigation into the sentinal event showed that 5
communication, handoffs, and interpretation of fetal tracing, were significant contributing
factors. (Tr. 621.) Therefore, a 4-hour mandatory training, or safety symposium, was presented
for the nurses, to address those issues. (Tr. 622; R. Exhs. 30, 32, 33, 34, 36, 37, 38.) It was
offered four times in January and February 2012.
10
Four culture of safety surveys were conducted in 2012, to see whether any progress had been
made. (Tr. 634.) Several methods were available for staff to report concerns to management.
(Tr. 639, 642.)
Then, despite these efforts, in October 2012, Wadie quit her job and gave, as one of the 15
reasons, the treatment of her by other staff.
The management team accepted as true the statements made by the nurses to Andrews-
Johnson. Those nurses had no reason to fabricate their reports, and their reports were consistent.
20
Brandt was fired for exhibiting mean, nasty, intimidating, and bullying behavior. (Tr. 472;
GC Exh. 5.) Antilla was fired for exhibiting negative, intimidating, and bullying behavior. (Tr.
475; GC Exh. 4.) Giannosa credibly explained that negative behavior meant the negative attitude
exhibited toward the new nurses, belittling, condescending, and demeaning behavior. (Tr. 475.)
That is entirely distinct from complaining about working conditions. 25
Both Antilla and Brandt were terminated due to inappropriate conduct toward other
employees, having nothing whatever to do with workplace grievances. They failed to interact
with other staff in a professional manner, that was part of the cause for Wadie’s resignation, and
were uncooperative with other staff, worsening the situation about which they were purportedly 30
so concerned. Neither Antilla nor Brandt acknowledged any awareness of the effect of their
behavior and comments on the new nurses.
I accept and credit Ronk’s testimony. Ronk testified that when she became aware in October/
November 2012 that Antilla was discussing concerns about staffing with other staff, the fact that 35
she was engaging in such discussions was not of concern to her. (Tr. 514, 536–537.) In fact, the
hospital encouraged such discussions. Ronk testified that she would not consider it a problem for
staff to discuss these concerns, but that it would be a concern to her as a manager if staff had
concerns, because she would want to know about and address or remedy those concerns. (Tr.
515, 536.) Rather, Ronk testified that Antilla and Brandt were terminated because there is no 40
place for bullying and intimidating behavior in a setting such as labor and delivery where
teamwork is critical. (Tr. 544.) It impedes open communication, the freedom to ask questions, or
to ask for help that can put a patient’s safety at risk. (Tr. 544.) This had been made evident in
the investigation into the December 2011 sentinel event.
45
I accept and credit Andrews-Johnson’s testimony that the only things that were considered
when making her decision to terminate the two were Wadie’s feedback and the input from other
JD–04–14
13
new nurses from her investigation. (Tr. 586.) The fact that Antilla and Brandt had discussed
their concerns with each other, with her, or with other nurses was not a factor in the decision to
termination their employment (Tr. 588–589).
Most of the concerns raised by the nurses were well known to management.7 Management 5
agreed that there were problems with understaffing, and hired more nurses. They were aware that
new nurses needed training, and expected the senior staff to assist them during and after their
orientation periods. The only area where management was not in agreement with the nurses’
concerns was about the risk of losing their nursing licenses due to a mistake by another nurse.
However, I find that expressing that misplaced fear was not a factor in the decisions to terminate 10
Antilla and Brandt, and that they would have been terminated even in the absence of making
such statements.
The General Counsel notes that at least one employee who complained about the conduct at
issue felt that “it wasn’t really bullying.” That is of no consequence. As I stated above, the 15
characterization of the conduct is not important; it is the conduct itself that is important.
The General Counsel asserts that the allegations were too vague and that neither Antilla nor
Brandt could fairly respond without further details. However, they were given descriptions of the
conduct and statements at issue, and were given the opportunity to ask questions. Brandt asked 20
no questions and did not file a grievance, electing not to present a defense. Antilla did respond in
writing to the charges, and did file a grievance, although her efforts were unsuccessful.
The General Counsel makes much of Antilla’s good performance and of the positive
Facebook comments, and of Brandt’s good performance as well, all of which are immaterial25
since the terminations were not based on performance, but on conduct. The management team
looked at their performance but it did not outweigh the misconduct. It appears that Antilla
exhibited a very different attitude toward the new nurses when they were coworkers than when
she was acting as charge nurse or preceptor. And, as the record establishes, other senior nurses
were more hostile to the new nurses when Antilla was around than they were otherwise. 30
Therefore, she was characterized as the ringleader. It had nothing to do with her complaints
about working conditions. There is no dispute that Antilla was an excellent nurse; that fact was
recognized by management who used her as a preceptor and as a charge nurse. That good
performance does not outweigh the bad judgment she exercised in her conduct toward the new
nurses.35
The General Counsel is troubled by the conduct of the investigation. Specifically, she argues
that it was suspect because only some, and not all, of the new nurses were interviewed, and some
of the interviewees were not new nurses. That is irrelevant, since positive or neutral reports
would not cancel out the negative ones already received, and there was not a scintilla of evidence 40
presented that Andrews-Johnson improperly selected interviewees or that any interviewee’s
report was improperly influenced. The General Counsel also expresses concern that Ronk had

7 Not only is there no policy prohibiting staff from discussing with each other any issues or concerns,
but the hospital encouraged submission to management of such concerns, via several different methods,
so such concerns could be addressed. (Tr. 521–533; R. Exhs. 17, 18, 19, 20, 21, 22, 23, 24.)
JD–04–14
14
made her own decision that Antilla and Brandt should be terminated by October 29, before all
interviews had been conducted. (GC Exh. 34; Tr. 566.) This is of no consequence; three
negative reports had been received by that point. There is no magic number of negative reports
that would support termination; one may be adequate. It was not necessary to interview all new
nurses and certainly it was not necessary that all new nurses reported misconduct by Antilla and 5
Brandt in order to support the terminations.
The General Counsel asserts that the Respondent departed from past practice in terminating
Antilla and Brandt, since progressive discipline was not applied. However, no comparable
situation had arisen in the past, and the hospital’s personnel policy provided for termination 10
without progressive discipline, in appropriate circumstances.
The General Counsel argues that Respondent had tolerated similar behavior in the past, in
particular by Wonch. However, this hardly supports the General Counsel’s allegation of
retaliatory discharge, since Wonch engaged in the same discussions as Antilla and Brandt, and 15
made the same complaints. If the Respondent were engaging in retaliation, then it would be
expected that Wonch would have been fired as well. In any event, the allegations made in the
past (as well as the current allegations) regarding Wonch were similar but were not of the same
level of severity as those raised against Antilla and Brandt.
20
Finally, the General Counsel contends that Respondent relied upon shifting reasons for the
terminations. She finds it significant that the Respondent’s Position Statement referenced the
Surgical Code of Conduct. That was counsel’s opinion and, in any event, it is not a reason for
the terminations; the reason was the misconduct. She also finds it compelling that matters such as
Antilla’s tongue ring were mentioned in the termination notice and that Brandt’s conduct during 25
her orientation period was noted. However, these are not different or shifting reasons; they are
simply other instances of past problems that were noted. If they were not included in the
termination notices, the result would be the same. The investigation was initiated due to
complaints about mistreatment of new nurses and that was the reason for both terminations.
30
Therefore I recommend that these charges be dismissed as to both Antilla and Brandt.
B. Code of Conduct8
Determination of the legality of work rules requires a balancing of competing interests: 35
the right of employees to organize or otherwise engage in protected activity and the right of
employers to maintain a level of discipline in the workplace.
In determining whether an employer’s work rules violate Section 8(a)(1), the Board has
held that:40

8 The Respondent alleges that this amendment was untimely raised, since the General Counsel
became aware of the Code during the investigation some 5 months earlier yet failed to charge any
violation until late in the trial. While the charge certainly was raised late in the game and no good reason
for the delay was given, I find that the Respondent was not prejudiced by the delay. This is a legal
argument only, no witnesses were relevant to the issue and none were called, and this charge would not
affect the potential relief if retaliatory discharge were found. I therefore decline to reverse my ruling
permitting the amendment.
JD–04–14
15
[A]n employer violates Section 8(a)(1) when it maintains a work rule that reasonably
tends to chill employees in the exercise of their Section 7 rights. Lafayette Park Hotel,
326 NLRB 824, 825 (1998). In determining whether a challenged rule is unlawful, the
Board must, however, give the rule a reasonable reading. It must refrain from reading 5
particular phrases in isolation, and it must not presume improper interference with
employee rights. Id. at 825, 827. Consistent with the foregoing, our inquiry into whether
the maintenance of a challenged rule is unlawful begins with the issue of whether the rule
explicitly restricts activities protected by Section 7….
If the rule does not explicitly restrict activity protected by Section 7, the violation 10
is dependent upon a showing of one of the following: (1) employees would reasonably
construe the language to prohibit Section 7 activity; (2) the rule was promulgated in
response to union activity; or (3) the rule has been applied to restrict the exercise of
Section 7 rights.
15
Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–647 (2004); see Lafayette Park Hotel,
NLRB 824, 825 (1998), enfd. mem. 203 F.3d 52 (D.C. Cir. 1999).
Thus, where the rules are likely to have a chilling effect on Section 7 rights, their
maintenance may be an unfair labor practice even absent evidence of enforcement.20
The Respondent’s Code of Conduct does not explicitly restrict Section 7 activities, nor was it
promulgated in response to union activity, nor has it been applied to restrict Section 7 activities.
Thus, the issue at hand is whether employees would reasonably construe the Code of Conduct to
prohibit Section 7 activity. 25
In Lafayette, supra, the court found a rule prohibiting conduct that does not support the
Respondent hotel’s goals and objectives to be lawful, as it is unreasonable to assume, without
more, that remaining nonunion is one of those goals. The rules address other legitimate business
concerns and the court found unreasonable the position that the rule was ambiguous as to 30
“goals.” However, the rule prohibiting making false, vicious, profane, or malicious statements
toward or concerning the hotel or any employee was found to be a violation. There were similar
results in Cincinnati Suburban Press, Inc., 289 NLRB 966, 975 (1988) (statements are protected
absent a showing of reckless disregard for the truth or maliciousness), and American Cast Iron
Pipe Co., 234 NLRB 1126, 1131 (1978) (false and inaccurate statements that are not malicious 35
are protected). In the instant case, there is no general prohibition against making false
statements. Rather, the Code prohibits intentional misrepresentation of information (which
implies malice) and negative or disparaging comments about the moral character or professional
capabilities of an employee or physician. The Code’s introductory paragraph makes it clear that
the hospital’s concern is patient care, so, when read in context, the rule has nothing to do with 40
protected activity.
The D.C. Circuit Court distinguished the work rules found unlawful in Lafayette and
Flamingo,9 restricting speech that is arguably related to protected activities (and merely false),
from a rule prohibiting “abusive or threatening language” that seeks to maintain basic civility. 45

9 Flamingo Hilton-Laughlin, 330 NLRB 287 (1999).
JD–04–14
16
Adtranz ABB Daimler-Benz Transportation, 331 NLRB 291 (2000), vacated in part 253 F.3d 19
(2001). The court noted that an employer’s effort to squelch criticism from employees, and
threatening to punish “false” statements without evidence of malicious intent is quite different
from demanding that employees comply with generally accepted notions of civility that does not,
in itself, constitute an unfair labor practice. The court reiterated that it must be considered 5
whether there was enforcement of the rule where the language may be protected, or mere
maintenance of the rule. Significantly, the court also observed that threatening and abusive
language is not inherent aspects of union organizing or other Section 7 activities. It specifically
rejected the argument that the mere “unrealized potential” that “the rule could reasonably be
interpreted as barring lawful union organizing propaganda” rendered it facially invalid. Id. at 10
25–26. Ultimately, it determined that “the Board’s position that the imposition of a broad
prophylactic rule against abusive and threatening language is unlawful on its face is simply
preposterous.” Id. at 25. The Board subsequently agreed with and adopted the court’s rationale
when it decided Lutheran Heritage and Palms Hotel. In Lutheran Heritage, supra, the Board
found prohibitions against verbal abuse, abusive, or profane language, or harassment to be 15
lawful. The mere fact that the rule could be read to address Section 7 activity does not make it
illegal. See Lutheran Heritage, supra at 647 (“we will not conclude that a reasonable employee
would read the rule to apply to such activity simply because the rule could be interpreted that
way”). Similarly, in Palms Hotel & Casino,10 the Board found lawful a rule that prohibits
employees from engaging in conduct which is or has the effect of being injurious, offensive, 20
threatening, intimidating, coercing, or interfering with other employees. “Nor are the rule’s terms
so amorphous that reasonable employees would be incapable of grasping the expectation that
they comport themselves with general notions of civility and decorum in the workplace.” Id. at
1368. “We are simply unwilling to engage in such speculation in order to condemn as unlawful
a facially neutral work rule that is not aimed at Section 7 activity and was neither adopted in 25
response to such activity nor enforced against it.” Id at 1368.
However, the Board found unlawful a rule that prohibited loud, abusive, or foul language,
as it was so broad that it could be interpreted as barring lawful union organizing propaganda.
Flamingo Hilton-Laughlin, 330 NLRB at 295. The Board found unlawful a work rule that 30
subjected employees to discipline for the “inability or unwillingness to work harmoniously with
other employees.” 2 Sisters Food Group, 357 NLRB No. 168, slip op. at 1 (2011). In that
instance, the employer neglected to define those terms; the prohibition was merely one of a
laundry list of rules and “was sufficiently imprecise that it could encompass any disagreement or
conflict among employees including those related to Section 7.” Id, slip op. at 2. Similarly, a 35
rule prohibiting “any type of negative energy or attitudes” was deemed unlawful. Roomstore,
357 NLRB No. 143, slip op. at 1 fn. 3 (2011). A rule prohibiting “negative conversations” about
managers was found unlawful, as it had no clarifying language. Claremont Resort & Spa, 344
NLRB 832, 836 (2005). In all of those instances, the rules were ambiguous, and those
ambiguities must be resolved against the employer.40
In the instant case, a reasonable reading of most of the rules shows they are unrelated to
and do not prohibit Section 7 activities. To find otherwise would ignore the employer’s rights in
the Lafayette balancing test and consider only potential employee rights.
45

10 Palms Hotel & Casino, 344 NLRB 1363 (2005).
JD–04–14
17
The Beaumont Code at issue reads as follows:
Conduct on the part of a Beaumont employee or physician that is inappropriate or5
detrimental to patient care of [sic] Hospital operation or that impedes harmonious
interactions and relationships will not be tolerated. Transgressors shall be subject
to appropriate remedial or corrective action. Improper conduct or inappropriate
behavior or defiance in the following example [sic], which includes but not
limited [sic] to the following:10
Willful and intentional threats, intimidation, harassment, humiliation, or
coercion of employees, physicians, patients, or visitors.
Profane and abusive language directed at employees, physicians, patients or
visitors.
Behavior that is rude, condescending or otherwise socially 15
unacceptable. Intentional misrepresentation of information.
Verbal comments or physical gestures directed at others that exceed the
bounds of fair criticism.
...Negative or disparaging comments about the moral character or professional
capabilities of an employee or physician made to employees, physicians, patients,20
or visitors.
....Behavior that is disruptive to maintaining a safe and healing environment or
that is
counter to promoting teamwork.
(R. Exh. 6.)25
Although the introductory paragraph references harmonious relationships, the Code goes
on to define in the six bullets the specific types of conduct that are prohibited. The rules are put
in context via reference to legitimate business concerns (i.e., patient care, hospital operations,
and a safe healing environment), that would tend to restrict their application. 30
I find that a reasonable employee would read the rules in the context of the employment
setting, a hospital, and understand the lawful purpose of the rules.
I find that two of the six work rules (rule 4—“Verbal comments or physical gestures35
directed at others that exceed the bounds of fair criticism” and rule 6 part 2—“Behavior … that is
counter to promoting teamwork”) challenged by the General Counsel violate Section 8(a)(1).
Although neither Antilla nor Brandt nor any other employee was disciplined for violation of the
Code, and no employee actually limited their activities based on the Code, those portions of the
Code do violate the Board’s standards and may reasonably chill the exercise of Section 7 rights. 40
The two terms are ambiguous and undefined in the Code, even when read in context: “comments
or gestures that exceed the bounds of fair criticism,” and “behavior that is counter to promoting
teamwork.” Those terms may reasonably be interpreted as prohibiting lawful discussions or
complaints that are protected by Section 7 of the Act. Although the Respondent has legitimate
concerns regarding appropriate staff behavior, and has a legitimate interest in promulgating work 45
JD–04–14
18
rules to try to maintain a safe atmosphere in the workplace, those portions of the Code are
overbroad and ambiguous. “Where ambiguities appear in employee work rules promulgated by
an employer, the ambiguity must be resolved against the promulgator of the rule rather than the
employees who are required to obey it.” See Norris/O’Bannon, 307 NLRB 1236, 1245 (1992).
However, I find that the other four challenged work rules (1, 2, 3, and 5) as well as the 5
first portion of rule 6 in the Code of Conduct are clear and legitimate when read in context, and
could not reasonably be interpreted as prohibiting lawful discussions or complaints. The first
prohibits willful and intentional conduct; the second profane and abusive language; the third
rude, condescending and otherwise socially unacceptable behavior, as well as intentional
misrepresentations (not merely false, and the intent requirement implies a showing of malice); 10
the fifth pertains to statements regarding moral character or professional capabilities; and part 1
of rule 6 behavior disruptive to a safe and healing environment (a hospital), all of which are clear
and legitimate, and cannot reasonably be read in context to prohibit protected activities.
Therefore, I find that two of the challenged work rules (rule 4—“Verbal comments or15
physical gestures directed at others that exceed the bounds of fair criticism” and rule 6 part 2—
“Behavior … that is counter to promoting teamwork”) violate Section 8(a)(1) as alleged but
recommend that the charges as to work rules 1, 2, 3, 5, and 6 part 1 be dismissed.
C. Nondiscussion Instruction to Brandt20
As discussed above, an employer may not impose work rules that reasonably tend to chill
employees in the exercise of their Section 7 rights. Lafayette Park, supra at 825. The Board has
held that to justify a prohibition on employee discussion of ongoing investigations, an employer
must show that it has a legitimate business justification that outweighs employees’ Section 7 25
rights. See Hyundai America Shipping Agency, 357 NLRB No. 80, slip op. at 15 (2011) (no
legitimate and substantial justification where employer routinely prohibited employees from
discussing matters under investigation).
While in Caesar’s Palace, 336 NLRB 271, 272 (2001), the confidentiality rule imposed 30
during a drug investigation was held lawful where the rule was necessary to ensure the safety of
witnesses and to preserve the integrity of the investigation, no similar rationale was asserted as
the reason for the instruction given to Brandt. In Banner Estrella Medical Center, 358 NLRB
No. 93 (2012), the Board found the employer’s generalized concern with, rather than a
determination of a necessity for, protecting the integrity of its investigations was insufficient to 35
outweigh employees’ Section 7 rights. In order to minimize the impact on Section 7 rights, it is
the employer’s burden “to first determine whether in any give[n] investigation witnesses
need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of
being fabricated, or there [was] a need to prevent a cover up.” Hyundai, supra slip op. at 15.
40
In the instant case, the Respondent had no blanket confidentiality rule, and no such rule
was routinely issued during investigations. (Tr. 551.) Indeed, even in this investigation where
multiple individuals were named, the instruction was only issued to one employee, Brandt. It
seems clear that the instruction was not preplanned, but was given in response to Brandt’s
statement to Ronk that she intended to talk to new nurses and offer to help them. Ronk testified 45
that Andrews-Johnson had advised her that she had learned in the investigative interviews that
staff was fearful of retaliation. (Tr. 550–551.) Ronk stated that she told Brandt not to discuss the
JD–04–14
19
investigation with others on the unit since she feared the possibility of additional charges of
bullying or intimidation.11 However, while it may have been wise for Brandt to refrain from
conversing with the new nurses as she planned, since she now knew that some of them had made
negative reports about her, the instruction given to Brandt not to discuss the investigation was
overbroad, and did prevent her from discussing the investigation with colleagues as she had the 5
right to do.
Therefore, I find that the nondiscussion instruction issued by Ronk to Brandt violated
Section 8(a)(1) of the Act as alleged.
10
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
15
2. By issuing and maintaining portions of the Code of Conduct for Surgical Services and
Perianesthesia, specifically “Verbal comments or physical gestures directed at others that exceed
the bounds of fair criticism” and “Behavior … that is counter to promoting teamwork,” the
Respondent has violated Section 8(a)(1) of the Act.
20
3. By issuing a nondiscussion directive to an employee, the Respondent has violated
Section 8(a)(1) of the Act.
4. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.25
5. The Respondent has not otherwise violated the Act.
REMEDY
30
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the 35
following recommended12
ORDER
The Respondent, William Beaumont Hospital, located in Royal Oak, Michigan, its officers,40
agents, successors, and assigns, shall

11 Protecting the integrity of the investigation was not given as a rationale. In any event, Andrews-
Johnson’s investigation was well underway by November 2, the date the nondiscussion instruction was
given to Brandt, so there could potentially have been only minimal effects on the investigation.
12 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–04–14
20
1. Cease and desist from
(a) Issuing or maintaining rules which employees would reasonably construe to
discourage engaging in protected concerted activities, specifically issuing or maintaining two 5
portions of the Code of Conduct for Surgical Services and Perianesthesia: “Verbal comments or
physical gestures directed at others that exceed the bounds of fair criticism” and “Behavior …
that is counter to promoting teamwork” and issuing nondiscussion directives to employees.
(b) In any like or related manner interfering with, restraining, or coercing employees in 10
the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind portions of the Code of Conduct for Surgical Services and Perianesthesia, 15
specifically “Verbal comments or physical gestures directed at others that exceed the bounds of
fair criticism” and “Behavior … that is counter to promoting teamwork.”
(b) Within 14 days after service by the Region, post at its facility in Royal Oak,
Michigan, copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms 20
provided by the Regional Director for Region 7, 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. 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 25
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 about October 1, 2012.
30
(c) Within 21 days after service by the Respondent, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges35
violations of the Act not specifically found.
Dated: Washington, D.C. January 30, 2014
40
__________________________
Susan A. Flynn
Administrative Law Judge

13 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.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT issue or maintain rules which employees would reasonably construe to
discourage engaging in protected concerted activities, specifically, two portions of the Code of
Conduct for Surgical Services and Perianesthesia: “Verbal comments or physical gestures
directed at others that exceed the bounds of fair criticism” and “Behavior … that is counter to
promoting teamwork” nor will we issue nondiscussion directives to employees.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
Act.
WE WILL rescind portions of the Code of Conduct for Surgical Services and Perianesthesia,
specifically “Verbal comments or physical gestures directed at others that exceed the bounds of
fair criticism” and “Behavior … that is counter to promoting teamwork.”
WILLIAM BEAUMONT HOSPITAL
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees
want union representation and it investigates and remedies unfair labor practices by employers and
unions. To find out more about your rights under the Act and how to file a charge or election petition,
you may speak confidentially to any agent with the Board’s Regional Office set forth below. Hearing
impaired persons may contact the Agency’s TTY service at 1-866-315-NLRB.You may also
obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226–2543
(313) 226-3200, Hours of Operation: 8:15 a.m. to 4:45 p.m.
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 WITH
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE COMPLIANCE OFFICER, (313) 226-3200.