Brooke Glen Behavioral Hospital

National Labor Relations Board - Board Decisions

May 15, 2017

365 NLRB No. 79 (N.L.R.B. 2017)

365 NLRB No. 79
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
BHC Northwest Psychiatric Hospital, LLC d/b/a
Brooke Glen Behavioral Hospital and Brooke
Glen Nurses Association, Pennsylvania Associa-
tion of Staff Nurses and Allied Professionals.
Cases 04–CA–164465 and 04–CA–174166
May 15, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On October 5, 2016, Administrative Law Judge Robert
A. Giannasi issued the attached decision. The Charging
Party filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the Charging Par-
ty filed a reply brief.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. May 15, 2017

1 In adopting the judge’s dismissal of the allegation that the Re-
spondent violated Sec. 8(a)(5) and (1) by refusing to bargain in the
presence of mental health technicians at the November 10, 2015 bar-
gaining session, we rely solely on the fact that the Respondent bar-
gained in the presence of the mental health technicians the very next
day. We also observe that there is no evidence that this incident nega-
tively affected subsequent bargaining between the parties.
In adopting the judge’s dismissal of the allegation that the Respond-
ent violated Sec. 8(a)(3) and (1) by discharging Elisa DiGiacomo,
Members Pearce and McFerran find that even assuming that the Gen-
eral Counsel established that DiGiacomo’s union activity was a moti-
vating factor in the Respondent’s decision to discharge her, the Re-
spondent established that it would have discharged DiGiacomo for her
November 12, 2015 conduct even in the absence of her union activity.
We find it unnecessary to pass on the judge’s analysis under Atlantic
Steel, 245 NLRB 814 (1979), because the record does not establish that
DiGiacomo’s November 12 conduct involved protected activity.
Chairman Miscimarra would adopt the judge’s finding that the sole
motivation for DiGiacomo’s discharge was her misconduct on Novem-
ber 12, 2015. Accordingly, in adopting the judge’s dismissal of the
allegation that the Respondent violated Sec. 8(a)(3) when it discharged
DiGiacomo, Chairman Miscimarra would not apply Wright Line, 251
NLRB 1083 (1980) (subsequent history omitted). In his view, Wright
Line only applies in dual-motive cases, see Hawaiian Dredging Con-
struction Co., 362 NLRB No. 10, slip op. at 14 (2015) (Member
Miscimarra, dissenting), and the judge’s findings establish that there
was only one, lawful motive for DiGiacomo’s discharge, and that the
General Counsel failed to satisfy his burden of proving that DiGiaco-
mo’s discharge occurred because of unlawful considerations.
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
David G. Rodriguez, Esq., for the General Counsel.
Diane Hauser, Esq. (Paisner Litvin, LLP), of Bala Cynwyd,
Pennsylvania, for the Respondent.
Jonathan Walters, Esq. (Markowitz & Richman) of Philadelph-
ia, Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on August 18, 2016.
The consolidated complaint alleges that Respondent violated
Section 8(a)(5) and (1) of the Act by cancelling a bargaining
session because employees represented by a union other than
the Charging Party Union (referred to hereafter as the Union or
PASNAP) were present as “observers.” The complaint also
alleges that Respondent violated Section 8(a)(3) and (1) by
discharging employee Elisa DiGiacomo because she supported
and assisted the Union and engaged in concerted activities and
to discourage employees from engaging in these activities.
Respondent filed an answer denying the essential allegations in
the complaint.1
After the trial, the parties filed briefs, which I have read and
considered. Based on those briefs and the entire record, includ-
ing the testimony of the witnesses and my observation of their
demeanor, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a limited liability company, operates an inpa-
tient facility or hospital that provides behavioral health care
services in Fort Washington, Pennsylvania. During a repre-
sentative 1-year period, Respondent received gross revenues in
excess of $1 million and purchased and received at its facility
goods valued in excess of $50,000 directly from points outside
the Commonwealth of Pennsylvania. Accordingly, I find, as
Respondent admits, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and a

1 At the outset of the hearing the General Counsel withdrew two ad-
ditional complaint allegations based on an all-party settlement of those
allegations.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
healthcare institution within the meaning of Section 2(14) of
the Act.
I also find, as Respondent admits, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Background
Respondent treats patients from age 13 to adulthood with se-
rious mental and emotional problems. (Tr. 147.) For many
years Respondent has recognized the Union as the bargaining
representative for a unit of all full-time and regular part-time
registered and graduate staff and charge nurses at its hospital in
Fort Washington. This recognition was last embodied in a
collective-bargaining agreement effective from October 1,
2010, through September 30, 2014. In July 2015, after an elec-
tion it conducted, the Board certified that the unit could include
a group of per diem nurses. The unit thus enhanced totals about
85–90 nurses. (Tr. 100–102, GC Exhs. 1 and 5.)
At some point after the last agreement was concluded, Re-
spondent was sold by the former owner, Psychiatric Solutions,
Inc., to the present owner, Universal Health Services (UHS).
Since the expiration of the old agreement in September 2014,
the parties have been in continuous negotiations for a new con-
tract—with some 50 meetings over a period of almost 2
years—that have not resulted in a new agreement. (Tr. 102–
103, 22–23.)
Prior to the Board election that led to the certified addition of
the per diem nurses to the unit represented by the Union, the
Respondent opposed the inclusion of those nurses. During the
election campaign, in the spring of 2015, the lead organizer in
the Union’s effort to include the per diem nurses was Elisa
DiGiacomo, a registered nurse who was also on the Union’s
bargaining committee. There is no dispute that she was very
active in this effort. (Tr. 104–105, 24–25, 28.)
In the late summer or early fall of 2015, another group of
Respondent’s employees, the mental health technicians, ex-
pressed an interest in affiliating with the Union. The Respond-
ent employed some 120 of those technicians, who were already
represented by another union—Local 1 of the Teamsters. Ac-
cording to Union Staff Representative Bill Zoda, PASNAP
undertook to organize the mental health technicians, thereby
seeking to replace Local 1 as their bargaining representative.
(Tr. 105, 108.) DiGiacomo also spearheaded this effort, meet-
ing with interested employees and speaking on behalf of the
Union. (Tr. 105–107, 29–31.) During this period of time, Lo-
cal 1 was bargaining with the Respondent with respect to the
technicians’ unit in negotiations separate from the negotiations
between Respondent and the Union. (Tr. 108.) Simultaneous-
ly, the Respondent was opposing the Union’s effort to organize
the mental health technicians and have them turn away from the
Teamsters. (Tr. 108–109–110, 32.) Respondent conducted
meetings with the technicians urging them to stay with the
Teamsters and to reject PASNAP. (Tr. 125–128.)2

2 The Respondent and Teamsters Local 1 eventually reached a col-
lective-bargaining agreement in early 2016, at which time the Union’s
organizing effort for that unit of employees ceased. Tr. 108–109.
The Bargaining Sessions of November 10 and 11, 2015
On November 10, 2015, the Union and the Respondent met
for a bargaining session at the Hilton Hotel in Fort Washington.
Union Staff Representative Zoda headed the Union’s bargain-
ing team, which included DiGiacomo. Respondent’s bargain-
ing team was headed by its attorney, Frank Kurtz, and included
Laura Nolet, Respondent’s human resources director, Jennie
Smith, vice president of Labor Relations for the corporate own-
er of Respondent, UHS, and Autumn DeShields, who was, at
the time (Tr. 185), acting or interim assistant director of nurs-
ing. (Tr. 106.)3
DiGiacomo, brought several mental health technicians to the
November 10 meeting. (Tr. 106.) Attorney Kurtz objected to
the presence, at the bargaining session, of “Teamsters,” refer-
ring to the mental health technicians. Zoda said that the techni-
cians were “here as witnesses to what’s happening at the table
with us.” (Tr. 107.) In response to Kurtz’s objection, however,
Zoda suggested that he would agree to remove the Teamsters
technicians if Respondent would cease mandatory meetings
with the technicians in which, as he described them, Respond-
ent misrepresented what was happening during the Union’s
bargaining with Respondent. Respondent rejected that proposal
and the Respondent’s bargaining team left the meeting. (Tr.
109–110.)
It is unclear whether another bargaining session for the next
day, November 11, was previously scheduled, but the parties
did meet on that day, at the same location. The Union again
brought the technician observers, but the Respondent met and
bargained with the Union, even though the technicians were
present. (Tr. 110.) According to the Union’s bargaining notes,
the parties met from 10:44 am until 3:59 pm, discussing several
substantive issues. (GC Exh. 11.)4 Zoda testified that, toward
the end of the session, DiGiacomo and DeShields engaged in a
“fairly intense” debate about staffing and morale at the hospital.
(Tr. 111.) The Union had a staffing proposal on the bargaining
table that increased the number of nurses and technicians as a
ratio to patients. In that connection, DiGiacomo asked
DeShields “about not helping with the staffing” and “why she
was not doing anything.” (Tr. 111–112.)5
DiGiacomo also asked Smith “who Jose was,” an apparent
reference to someone by that name who apparently was sent by

3 The Respondent admitted the agency status of the following offi-
cials of Respondent described in the complaint: Neil Callahan, chief
executive officer; Laura Nolet, human resources director; Mary Mullen,
interim director of nursing; Autumn DeShields, assistant director of
nursing; Bill Thomas, director of plant management; Glenn Gabris,
chief financial officer; Jennie Smith, vice president of labor relations;
and Ellen Strauss, director of admissions and referral. Tr. 5–7.
4 The above exhibit was misnumbered in the record as GC Exh. 9
and the actual GC Exh. 9 was misnumbered as GC Exh. 11. The par-
ties stipulated to the correct exhibit numbers. I accept that stipulation
and hereby correct the record accordingly.
5 DeShields, who described herself as the interim assistant director
of nursing at the time (Tr. 185), had just transferred to Respondent’s
hospital in early October from Friends Hospital, another facility owned
by UHS. She was unsure whether she attended a bargaining session in
October, but, in any event, she was a newcomer to Respondent’s bar-
gaining team. Tr. 184–187.
BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC D/B/A BROOKE GLEN BEHAVIORAL HOSPITAL 3
the corporate office to the hospital to talk to employees in sup-
port of Respondent’s position during the Union’s organizing
campaign among the mental health technicians.6 Smith replied
that DiGiacomo should ask Jose himself what he was doing at
the hospital. (Tr. 111.) DiGiacomo also expressed concern that
employees were not comfortable with Jose’s presence at the
hospital and that employees had complained to her about his
presence, suggesting something like “intimidation” in his pres-
ence. Nolet responded that if DiGiacomo felt intimidated or
harassed in the workplace there was a process by which internal
charges could be filed. (Tr. 112–113.)7
The Nolet/DiGiacomo Meeting
Early on the morning of November 12, Nolet approached
DiGiacomo and presented her with a copy of Respondent’s
policy on harassment, stating that that was what she was refer-
encing the day before during bargaining. (Tr. 46.) This is
DiGiacomo’s testimony about what followed (Tr. 47–48):
BY MR. RODRIGUEZ:
Q. Okay.How did you respond?
A. I said what if the CEO is the one harassing me?
Q. What did she say?
A. She said that she could see how I felt— how I could feel
harassed sitting on the other side of the table, that she could
feel the tension too and that sometimes she felt attacked or
harassed when she sat on the other side of the table. And—
Q. Did you say anything in response?
A. I did.I said that when she feels attacked or harassed
it’s at the table in her position as the Director of HR.I was
being attacked in management meetings personally by people
who were never at the table so it was not the same and it was
based on my— just because of— she’s saying it’s on the other
side of the table.That’s based just on my Union activity and
that’s ridiculous.
Q. What did she say?
A. She said that I could contact a man named Charles Sen-

6 In response to questions from the General Counsel on cross-
examination, DeShields testified that Jose was a labor consultant and
that his last name is Sargato. She also testified that she thought he was
at the facility to talk to employees about the Teamsters contract that
was being negotiated. Tr. 199–201. Although I permitted many ques-
tions about Sargato and his interactions with DeShields, not only from
counsel for the General Counsel, but also from counsel for Charging
Party, at one point in the cross-examination, Respondent objected to
further questions on this subject, which had not been explored in
DeShields’ direct examination. I sustained that objection because the
relevance of further testimony from DeShields on the subject was re-
mote. See Tr. 207–209; and also Rule 403 of the Federal Rules of
Evidence.
7 The above description of the bargaining sessions of November 10
and 11 is based on the uncontradicted testimony of Zoda, who was not
cross-examined by Respondent. His testimony is also supported by the
Union’s bargaining notes of these sessions. GC Exh. 11. DiGiacomo
also testified about the November 10 and 11 meetings and her testimo-
ny generally supports that of Zoda. I found DiGiacomo’s testimony not
as reliable as that of Zoda, however, in part because I thought she em-
bellished it and conflated her subjective thought processes with what
actually transpired at the bargaining sessions.
ior who’s above Neil Callahan, the CEO, and that he would
have to do an investigation. And I said they were passing a
picture around, a management meeting flash and making
comments about me. And she said I don’t know when this
was. You know, I’m not at every flash meeting, but whenever
they start to talk about you I right away, zip, zip, zip, I tell
them zip, zip, zip.
Q. And you just made a motion of your hand going across
your lips like a zipper.
A. Yes.
In her direct testimony, DiGiacomo seques from describing
the meeting with Nolet to what happened in bargaining and her
perception of what was happening in so-called flash meetings
of Respondent’s managers (Tr. 66–67), specifically stating,
without factual support, that she was being “attacked” at those
flash meetings for her union activity. (Tr. 47.) But, initially on
cross-examination, she seemed to assume that Nolet brought up
her union activity only in the context of the discussion about
her feeling of tension at being on “the other side of the table
and harassed.” (Tr. 85–86.) Later in her cross-examination,
she admitted, as confirmed by her pretrial affidavit, that she
expressed to Nolet her concern that managers in the flash meet-
ings were referring to her as a “loose woman.” (Tr. 86–90, R.
Exh. 2.) On redirect, she complained that more was said in the
meeting than was in the affidavit. (Tr. 96–97.) I found DiGia-
como’s testimony about this meeting somewhat rambling and
incoherent, an effort to substitute her subjective and unsupport-
ed thoughts about perceived harassment for an accurate rendi-
tion of objective facts. More importantly, perhaps, nothing in
her testimony or her affidavit mentions any discussion, in the
meeting with Nolet, of Jose Sargato, the alleged perpetrator of
the harassment about which she complained in the bargaining
session the day before and the very reason for Nolet’s meeting
with her. In short, I found DiGiacomo’s testimony on this mat-
ter completely unreliable and that assessment makes me doubt
the reliability of any of her testimony in this case.
DiGiacomo’s Conduct with Respect to a Tour Group
On the afternoon of November 12, DeShields conducted a
tour of Respondent’s hospital for managers and staff, including
mental health technicians (Tr. 202), at Friends Hospital, a sister
facility also owned by UHS. The purpose of the tour, which
was pre-arranged sometime before, was to give the Friends
Hospital people a view of what was being done at Respondent’s
facility and to exchange views of best practices from a man-
agement standpoint. There were about five Friends representa-
tives on the tour, including Maurice Washington, the Chief
Nursing Officer and Chief Operating Officer at Friends, with
whom DeShields had had a professional relationship when she
worked at Friends before coming to Respondent’s hospital.
(Tr. 188–192.)
At one point during the tour, the participants, led by
DeShields, came to the adolescent unit, where DiGiacomo was
on duty at the nurses’ station. The adolescent unit has some 18
beds and treats children from age 13 to 18. (Tr. 19, 78.) When
the visitors and DeShields entered the unit, they were met by
screaming or yelling from DiGiacomo. She pointed to them
and wanted to know who the visitors were and why they and
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DeShields were there. (Tr. 51, 76–77, 192–194.) There was a
patient lounge adjacent to and within view of the nurses’ station
where DiGiacomo was sitting. Present in the lounge at the time
was an adolescent patient, who, DiGiacomo admitted, could
have heard her yelling. (Tr. 77–78, 93.) DiGiacomo testified
that she knew the visitors were from Friends; she apparently
objected to their presence because of that and because, about a
year and a half before, she and a union official had tried to
handbill on behalf of the Union at Friends, but were prevented
from even getting “inside the door.” (Tr. 49, 53, 55, 94–95.)8
DeShields, to whom DiGiacomo reported as an employee
(Tr. 188), was embarrassed by DiGiacomo’s conduct and did
not respond. Receiving no response from her initial remarks,
DiGiacomo again asked what the visitors were doing at the
hospital, asked one particular visitor how many orientations he
needed, and pointed out, sarcastically, “here’s the hallway,
here’s the window.” (Tr. 52, 55, 193.) As a result of DiGia-
como’s conduct and the visitors’ reaction to it, DeShields de-
cided to sidetrack the visit to the adolescent unit and the group
left and went elsewhere. (Tr. 192–194, 203.) As the visitors
were leaving the unit, DiGiacomo asked, “Does this mean I get
to tour Friends?” (Tr. 53.)
Sometime later that afternoon, the tour group was in a hall-
way when DiGiacomo approached the group. She asked why
she could not take a tour of Friends. She said, “I didn’t get this
kind of hospitality when I went to Friends, I got kicked out in
like ten minutes.” (Tr. 55–56.) DeShields testified she had no
idea what DiGiacomo was talking about. (Tr. 194–195.)9
After the tour, DeShields and the visitors discussed the re-
sults of the tour, including DiGiacomo’s conduct, in a confer-
ence room at the hospital. (Tr. 195–196.) Still later, at the end
of the workday and after the conclusion of the tour, the Friends
group was in the Respondent’s parking lot talking with
DeShields before leaving the hospital premises. DiGiacomo
was also leaving, apparently to go to her car and drive home.
She approached the group, addressed Washington and asked if
he was going to work at Respondent’s hospital. He said, “pos-
sibly.” Then DiGiacomo said, “good,” and, pointing to
DeShields, stated, “this one don’t do shit, she ain’t shit. She

8 DiGiacomo also testified that, in her mind and based on conversa-
tions with other employees, she feared that the purpose of the tour was
a preparation to use Friends employees as strike breakers in the event of
a strike by PASNAP. Tr. 49–50. There is, of course, no evidence that
this was the purpose of the tour. Indeed, DiGiacomo never even men-
tioned this asserted fear of hers to DeShields or anyone else during the
tour so it is difficult to make anything of the above testimony. Thus,
the General Counsel’s attempt to show that DiGiacomo was engaged in
protected concerted activity by reference to her asserted subjective fear
of strike breaking preparations (GC Br. 17) is completely off the mark.
9 The above description of what happened at the adolescent unit and
in the hallway is based on the composite testimony of DeShields and
DiGiacomo, which is not substantially at odds. DeShields’ version is
also supported by the contemporaneous statements she and Maurice
Washington, the Friends official, gave to the Human Resources de-
partment, both of which were introduced into evidence by the General
Counsel. GC Exh. 7, Tr. 116–119. Washington’s statement is particu-
larly critical of DiGiacomo. It states that, in his experience, he has
“never come across such blatant disrespect and disregard for an em-
ployer and visitors in the workplace.”
walks around here with an air of—the ADON title doesn’t do
shit.” As DiGiacomo was leaving the group to go to her car,
she made this statement: “I’m going to get you the fuck out of
here.” (Tr. 196–197.)10
Immediately thereafter, DeShields and Washington reported
the matter to Respondent’s Director of Human Resources,
Laura Nolet, and provided her with written statements docu-
menting what happened on November 12. (Tr. 198–199.)
The Discharge of DiGiacomo
The following Monday, November 16, Interim Director of
Nursing Mary Mullen and Nolet met with DiGiacomo and pre-
sented her with a summary of the reports of DeShields and
Washington about her conduct on November 12. They asked
for and received DiGiacomo’s response. Thereafter, Mullen
alone made the final decision to discharge DiGiacomo, who
was presented with a written notice to that effect. The notice
described her misconduct and stated that it constituted a viola-
tion of specific portions of Respondent’s Conduct and Work
Rules. (GC Exh, 4. Tr. 158–164.) Mullen, who did not attend
bargaining sessions on behalf of Respondent and did not partic-
ipate in any of Respondent’s opposition campaigns against the
Union (Tr. 149–150, 167–170), credibly testified that her deci-
sion was based not only on DiGiacomo’s unprofessional con-
duct and the violation of Respondent’s policy, but also because
DiGiacomo did not acknowledge her misconduct. That, Mullen

10 The above description of what happened in the parking lot is based
primarily on the testimony of DeShields. Although DiGiacomo’s tes-
timony is generally supportive of that of DeShields, it downplays the
severity of her conduct. For example, she testified that she told Wash-
ington she hoped he planned on doing work at the hospital if he came
there “because we don’t need any more ADONs,” a reference to
DeShields, “who come here and just walk around intimidating people.”
Tr. 57. She also admitted stating that DeShields did not “do shit,” but
placed it in the context of mentioning that the hospital was short of
staff. Tr. 57. And she denied saying she would get “you the fuck out
of here.” Tr. 62. To the extent that DiGiacomo’s testimony differs
from that of DeShields, I credit DeShields, whose testimony is corrobo-
rated by her contemporaneous statement of the events in the parking
lot. DeShields also impressed me as a reliable witness with a truthful
demeanor. She was particularly candid in answering questions on
cross-examination about Jose Sargato. On the other hand, as I have
indicated elsewhere in this decision, DiGiacomo did not impress me as
a reliable witness. Particularly on the parking lot incident, she ap-
peared to be straining not only to downplay what she said and did, but
also to tie her remarks to staffing problems and DeSheilds’ alleged
harassment in an obvious effort to bring them under the umbrella of
protected activities. She also strained to justify her conduct earlier that
afternoon by testifying that she told DeShields in the parking lot, but
apparently not before, that DeShields was supposed to notify DiGiaco-
mo when visitors came to her unit. Tr. 56. There is in fact no policy
requiring such prior notification, according to the credible testimony of
Mullen. Tr. 154. But, more importantly, it defies belief that DiGiaco-
mo mentioned these matters in the parking lot, as she testified. I specif-
ically reject as implausible, self-serving post-hoc rationalizing and
fabricated DiGiacomo’s testimony that, in her parking lot confronta-
tion, she mentioned staffing problems, DeShields’ alleged intimidation,
or the need for DeShields to notify her before bringing the tour visitors
to her unit.
BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC D/B/A BROOKE GLEN BEHAVIORAL HOSPITAL 5
testified, made it difficult for her to trust DiGiacomo’s future
conduct in the presence of patients and families. (Tr. 164.)11
B. Discussion and Analysis
The Alleged Cancelled Meeting Violation
Section 8(a)(5) makes it an unfair labor practice for an em-
ployer to refuse to bargain collectively with the union that rep-
resents its employees. Section 8(d) defines the duty to bargain
collectively to include the obligation to “meet at reasonable
times” and “confer in good faith.” The cancellation of bargain-
ing sessions is an indicia of a failure to bargain in good faith,
although ordinarily much more than a single, isolated cancella-
tion of a bargaining meeting is required before a violation is
found. See Pavilion at Forrestal Nursing & Rehabilitation,
346 NLRB 458 (2006); Golden Eagle Sporting Co., Inc., 319
NLRB 64, 75–79 (1995); and Radisson Plaza Minneapolis v.
NLRB, 987 F.2d 1376, 1382 (8th Cir. 1993). It is also well
settled that unions and employers are free to select the members
of their bargaining teams. But that is not an absolute. A party
may properly refuse to bargain if the person selected by the
other side “makes collective bargaining impossible or futile.”
Wellington Industries, Inc., 357 NLRB 1625 fn. 1 (2011), and
cases there cited. See also Milwhite Co., Inc., 290 NLRB 1150,
1151 (1988).
Although, as shown above, parties are generally permitted to
select their own bargaining team, that does not necessarily in-
clude the selection of “observers” who are not members of the
bargaining team and have nothing to add to the bargaining.
Extending bargaining to such observers—by either side, over
the objection of the other—would raise the potential for mis-
chief and serious interference with good-faith bargaining.
The facts in this case illustrate the point. Here, the observers
were not only not members of the Union’s bargaining team, but
they were represented by a different labor organization, whom
they were not themselves representing, that was in separate
negotiations with the Respondent. Indeed, the Union was try-
ing to oust the other bargaining agent, Local 1 of the Teamsters.
Zoda’s testimony makes clear that he wanted the mental health
technicians to observe the bargaining in order to counter Re-
spondent’s apparent argument that the Union was not a good
choice for the technicians because of its conduct in its bargain-
ing for the nurses. This injects a tangential and corrosive ele-
ment in the bargaining—an issue separate and apart from the
bargaining issues being discussed. It is one thing for the Union
to engage in an organizing campaign against another union—
and, by the way, for the Respondent to oppose that campaign.
Both, within certain limitations, are perfectly proper. But it is
quite another to take that fight to the bargaining table involving
a separate unit. Compare, for example, the opposite situation:
Would it be permissible for an employer, who was opposing a
union trying to oust the bargaining agent of employees in unit

11 The above is based on Mullen’s testimony, which, in its essentials,
was direct and forthright, the product of a truthful demeanor, and sur-
vived vigorous cross-examination. It was also supported in many re-
spects by that of DiGiacomo. To the extent that there are differences, I
credit Mullen rather than DiGiacomo, whose testimony I found general-
ly unreliable, as I have discussed elsewhere in this decision.
A, to bring, as “observers,” unit A employees to a bargaining
session involving the union representing employees in unit B in
order to convince them to reject the union because it was not
doing a good job for the employees in unit B?12
Whether or not the Respondent’s refusal to bargain in the
presence of the observers at the November 10 bargaining ses-
sion met the standard set forth by the Board for a proper refusal
to meet with particular individuals brought to the bargaining
table by a union, I find that cancellation of that session for the
reason given did not rise to the level of an unfair labor practice
within the meaning of the Act. My view is reinforced because
the very next day Respondent met and bargained with the Un-
ion for a full day in the presence of the mental health technician
observers. Thus, the cancellation on November 10 was an iso-
lated event that was mooted by the Respondent’s good faith
acceptance of the presence of the observers the next day. The
parties have not cited a case in which a single cancellation of a
bargaining session that was cured by a meeting the very next
day constituted, in and of itself, an unfair labor practice. And I
have found none.13

12 The cases cited by the General Counsel and the Charging Party
(GC Br. 29; C.P. Br. 39–41) in support of a contrary position are inap-
posite. In neither General Electric Co., 173 NLRB 253 (1968), enfd.
412 F.2d 512 (2d Cir. 1969), Harley-Davidson Motor Co., Inc., 214
NLRB 433 (1974), nor Standard Oil of Ohio, 137 NLRB 690 (1962),
did the unions seek to include, at the bargaining table, mere “observers”
like those in this case, who were brought into the negotiations not to be
part of the bargaining team, but rather to help the union in a separate
organizing campaign. In the cited cases, including the non-binding
decision of an administrative law judge cited by the Charging Party
(C.P. Br. 41, fn. 18), the unions included on their bargaining teams
representatives of other unions that had bargaining relationships with
the employer or representatives of international or regional entities
affiliated with the bargaining unions, likely in an effort at coordinated
bargaining, which was not the situation here. As the Board stated in
General Electric, cited above, 173 NLRB at 255, unions have the right
“to select the people who will represent them at the negotiating table.”
But, in this case, the mental health technicians were not members of the
Union’s bargaining team and they did not represent the Union at the
bargaining table; they were in fact represented by another labor organi-
zation and they were not authorized to represent that other labor organ-
ization. Nor was the inclusion of these employee-observers part of an
effort to engage in coordinated bargaining.
13 The General Counsel and the Charging Party assert that there are
indeed Board cases finding a bargaining violation solely for the cancel-
lation of a single day’s bargaining session (GC Br. 29, C.P. Br. 41, fn.
18). But the cases cited do not support that proposition. The main case
cited, Dilene Answering Service, Inc., 257 NLRB 284, 291 (1981), is
inapposite. While the administrative law judge in that case, with the
Board’s approval, found that the employer’s refusal to meet on one
occasion in the presence of a group of employees selected by the union
constituted a violation, the facts were different than those presented
here. First, there was no finding in that case that the employer agreed
to meet the next day—or ever—with the employees selected by the
union present. Thus, it can be fairly assumed that the refusal to meet
with those employees present continued over the entire period of nego-
tiations, which lasted many months. Moreover, it is clear that the find-
ing of a violation in Dilene Answering Service was premised on the
union’s assurance that the employees it selected, who were, unlike in
this case, unit employees, were indeed members of its bargaining team.
As the judge stated, “the statement of the union president and of union
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Even if Respondent could be viewed as having committed a
technical violation of Section 8(a)(5) by cancelling the Novem-
ber 10 bargaining session, there is no need for a remedial order
for that violation. The record does not show any other bargain-
ing violations by Respondent and the parties are continuing to
bargain. Moreover, the technicians’ lawful bargaining agent,
the Teamsters, concluded a collective-bargaining agreement
with the Respondent and the Union’s campaign to organize the
technicians has ceased. The only appropriate remedy if a tech-
nical violation were found would be to order the Respondent to
cease and desist from cancelling meetings because technician
observers were brought to bargaining sessions and to post a
notice to that effect. The changed circumstances, however,
make such a remedy unnecessary. A similar scenario is highly
unlikely to occur in the future; thus, to require a notice posting
and a cease and desist order in these circumstances would, in
my opinion, create more tension and ill will than would letting
things stand as they are.
The Alleged Unlawful Discharge
The General Counsel alleges that the discharge of DiGiaco-
mo was unlawful under two theories: 1. The Wright Line dual
motive analysis;14 and 2. The Atlantic Steel analysis governing
discharges or discipline during the course of protected concert-
ed activity.15 As shown below, I reject both theories and dis-
miss the relevant complaint allegation.
Wright Line
Under Wright Line, the General Counsel must satisfy an ini-
tial burden of showing by a preponderance of the evidence that
the employee’s union or other protected activity was a motivat-
ing factor in the respondent’s adverse action. If the General
Counsel meets that initial burden, the burden shifts to the re-
spondent to show that it would have taken the same action even
absent the employee’s protected activity. The respondent does
not meet its burden merely by showing that it had a legitimate
reason for its action; it must persuasively demonstrate that it

counsel that the Union had asked the four employees to be present at
the negotiations as part of the committee should have foreclosed any
further inquiry by [the employer].” 257 NLRB at 291 (emphasis add-
ed). The Board affirmed the judge’s finding discussed above, but went
further, reversing her failure to find other bargaining violations. Thus,
the Board’s refusal to bargain finding in Dilene Answering Service was
not based solely on a single cancellation of a bargaining session; it also
included findings that the employer unilaterally implemented a wage
increase and engaged in “ritualistic pro forma bargaining.” 257 NLRB
at 285. The other two cases cited (C.P. Br. 41, fn. 18), the Board’s
decision in General Electric and the non-binding decision of an admin-
istrative law judge, have been distinguished in a preceding footnote.
But in neither was the alleged failure to meet cured the very next day,
as it was in this case. Moreover, in the administrative law judge’s
decision, as in Dilene Answering Service, there were other bargaining
violations found. And in General Electric, the Board found that the
refusal to meet violation that first occurred on May 4 “continued until
August 23” and recurred on two occasions thereafter. 173 NLRB at
258.
14 Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
15 Atlantic Steel Co., 245 NLRB 814, 816–817 (1979).
would have taken the same action in the absence of the protect-
ed conduct. See Boothwyn Fire Company No. 1, 363 NLRB
No. 191, slip op. 7 (2016), citing authorities.
The General Counsel has not satisfied the initial burden of
showing that Respondent’s discharge of DiGiacomo was moti-
vated by her union or other protected activity. There is no
doubt that DiGiacomo engaged in union activity and Respond-
ent knew about such activity, the most recent of which was an
effort to organize the mental health technicians. And Respond-
ent clearly opposed the Union’s efforts to extend its representa-
tive status to include the per diem nurses and to oust the Team-
sters from its representative status for the mental health techni-
cians. But there is no credible evidence that such opposition
focused on DiGiacomo or could reasonably lead to the infer-
ence that her discharge was motivated by her union or protected
activity.16
The strongest evidence in support of the General Counsel’s
case is that which is closer in time to the discharge, but that too
falls far short of showing that DiGiacomo’s union or protected
activity was a motivating factor in her discharge. DiGiacomo’s
sharp language at the November 11 bargaining session and her
role in bringing technician observers to the November 10 and
11 bargaining sessions did not seem to evoke any significant
adverse response from Respondent. It does not appear that
anyone other than the Respondent’s attorney objected to the
presence of the observers, a somewhat technical objection, for
which no one blamed DiGiacomo. In any event, Respondent
relented from its position and met in the presence of the ob-
servers the very next day. Moreover, there was no apparent
reaction from DeShields to DiGiacomo’s personal attack at the
November 11 bargaining session. And Nolet went out of her
way to meet with DiGiacomo about her complaint of alleged
harassment the day after DiGiacomo made the charge at the
November 11 bargaining session. Nor do I see how Respond-
ent’s refusal to permit the technicians to be present in PASNAP
union meetings on the Respondent’s premises at about this time
(Tr. 113–115) shows anything more than the Respondent’s
preference to have the technicians continue to be represented by
the Teamsters. Significantly, there are no allegations that Re-

16 The General Counsel and Charging Party refer to testimony from
DiGiacomo and fellow employee Lara Palmer that they assert amounts
to evidence of discrimination. But, upon analysis, that testimony does
not persuasively show that union activity was a motivating factor in
DiGiacomo’s discharge. Thus, DiGiacomo testified that, in about
March 2014, Director of Admissions and Referrals Ellen Strauss told
her that she was being watched because she was active in the Union
(Tr. 26–27), a conversation that took place, according to DiGiacomo,
well before the union campaigns to organize the per diem nurses and
the mental health tecnicians, well before the commencement of the
latest set of negotiations with Respondent and some 18 months before
her discharge. DiGiacomo also testified that she overheard a statement
made by Director of Plant Management Bill Thomas to another em-
ployee in the summer of 2015 that “they don’t mind the Teamsters, but
they hate PASNAP.” Tr. 113–114. Palmer testified to similar state-
ments from Thomas Tr. 127–128. However, neither Strauss nor Thom-
as was DiGiacomo’s direct supervisor and they played no role either in
the November 2015 bargaining or in DiGiacomo’s discharge. These
statements are thus too remote and attenuated to show that union or
protected activity was a motivating factor in DiGiacomo’s discharge.
BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC D/B/A BROOKE GLEN BEHAVIORAL HOSPITAL 7
spondent engaged in threats or other acts of coercion in viola-
tion of Section 8(a)(1) of the Act—the usual backdrop for a
finding of unlawful motivation.
Indeed, the real motivating factor for the discharge was an
independent set of circumstances completely divorced from any
union or other protected activity—DiGiacomo’s unprovoked
misconduct that interfered with a legitimate tour group on the
afternoon of November 12. And there is no evidence that Mary
Mullen, who alone made the decision to discharge DiGiacomo,
was a participant either in bargaining or any other activity that
had her in an adverse position vis-à-vis the Union or DiGiaco-
mo. In these circumstances, I cannot find that the General
Counsel proved, as an initial matter, that the discharge was
motivated by DiGiacomo’s union or other protected activity.17
In an apparent effort to show disparate treatment that would
support a finding of discrimination, the General Counsel devel-
oped testimony from DiGiacomo and other witnesses that pro-
fanity was commonplace at the hospital, even in the presence of
supervisors. Documentary evidence was also submitted show-
ing lesser punishments for profanity or other misconduct, some
involving supervisors or patients, over the past 6 years. (GC
Exh. 9.) But none of that testimony or documentary evidence
provided details or context similar to what happened here.
Indeed, here, there were three separate incidents in one after-
noon. Profanity was only part of DiGiacomo’s misconduct—
that it was addressed to a superior and in the presence of visi-
tors was far more significant. The derogation of a superior in
the presence of visitors shows a serious problem that is qualita-
tively different from the comparatives that the General Counsel
alleges amount to disparate treatment. In short, the General
Counsel has not shown that DiGiacomo was the subject of dis-
parate treatment or that such alleged disparate treatment
showed that her discharge was discriminatorily motivated.18
Even if I could find that the General Counsel met the initial

17 Moreover, it appears that Mullen had no problems with DiGiaco-
mo and, in fact, was sympathetic to DiGiacomo prior to the incidents
involving the tour group, as shown by Mullen’s adjusting a grievance in
her favor in September of 2015. Tr. 149, 151–153. Significantly, the
grievance was adjusted at a time when DiGiacomo’s organizing activi-
ties were already well known.
18 In its brief (C.P. Br. 28–29), the Charging Party asserts that, on
November 4, just 12 days before the discharge, DiGiacomo made simi-
lar statements about DeShields to Mullen that went uncriticized.
DiGiacomo testified that she had a conversation with Mullen on that
day, in which she complained about DeShields and Sargato and told
Mullen that DeShields “don’t do shit.” Tr. 58–60. I specifically dis-
credit DiGiacomo’s testimony in this respect, even though it is uncon-
tradicted. Not only did I find DiGiacomo generally an unreliable wit-
ness, but her testimony that she made the same comment about
DeShields she made during the tour group in a separate conversation
with Mullen 8 days before strains credulity. Indeed, the comment was
supposedly made a week before DiGiacomo and DeShields sparred
about staffing problems at the November 11 bargaining session.
DiGiacomo’s testimony in this respect was an obvious self-serving
effort to diminish her misconduct, by asserting that something similar
happened earlier that went without punishment. However, even if I
found that this conversation occurred, I could not find that it showed
that the discharge was discriminatorily motivated. The conversation
with Mullen fell far short of the three acts of interference with
DeShields’s tour group that precipitated the discharge.
burden of proving unlawful motivation, I also find that Re-
spondent has shown persuasively that it would have discharged
DiGiacomo even in the absence of her protected activity be-
cause of her serious misconduct on November 12. On three
separate occasions that afternoon she injected herself into the
tour group, concerning which she had no business. The tour
was conducted by DeShields, who was DiGiacomo’s superior,
for purely management and professional reasons that had noth-
ing to do with DiGiacomo. She repeatedly questioned the pres-
ence of the visitors, yelling, at one point, in way that might well
have been heard by a nearby patient. And, especially during
the confrontation in the parking lot, she insulted her superior,
addressing profanity to her in the presence of visitors. An em-
ployer need not put up with such insults that show blatant dis-
regard for authority and proper decorum, especially in a hospi-
tal setting. It was thus reasonable for Mullen to determine, as
she did, that DiGiacomo’s misconduct—which, in her view,
was not even acknowledged—made DiGiacomo a bad risk for
future interactions with patients or families.
Accordingly, I reject the General Counsel’s theory of a vio-
lation under the Wright Line discriminatory motivation analy-
sis.
Atlantic Steel
Atlantic Steel normally applies when “an employer defends a
disciplinary action based on employee misconduct that is part
of the res gestae of the employee’s protected activity.” Public
Service Company of New Mexico, 364 NLRB No. 86, slip op. 7
(2016). In these circumstances, the Board balances the alleged
misconduct against the protected activity to determine whether
the misconduct is so serious that it deprives the employee of the
protection of the Act, taking into account several factors: (1)
The place of the discussion; (2) The subject matter of the dis-
cussion; (3) The nature of the employee’s misconduct; and (4)
Whether the misconduct was in any way provoked by the em-
ployer’s misconduct or unfair labor practices. Ibid, citing At-
lantic Steel, cited in full above, 245 NLRB at 816–817. The
Board has long recognized that “although employees are per-
mitted some leeway for impulsive behavior when engaging in
concerted activity, this leeway is balanced against an employ-
er’s right to maintain order and respect.” Piper Realty Co., 313
NLRB 1289, 1290 (1994), citing NLRB v. Thor Power Tool
Co., 351 F.2d 584, 587 (7th Cir. 1965).
In this case, the incidents on the afternoon of November 12
did not involve protected concerted activity by DiGiacomo or
anyone else. DiGiacomo was at work during two of the con-
frontations; and the third took place after work in Respondent’s
parking lot. The tour and its aftermath in the parking lot were
not an invitation for her to interfere with the tour so as to turn
those acts of interference into protected activity. At best,
DiGiacomo’s testimony shows that, in her mind, she perceived
the tour as somehow related to her union activity. But protect-
ed activity must be based on objective fact, not subjective per-
ceptions of the party or witness making the claim.19

19 The General Counsel asserts that DiGiacomo was engaged in
“protected Union activity when she disrupted the November 12 tour for
Friends employees, complained about staffing levels, and DeShields’
role in the facility.” GC Br. 16. As the General Counsel concedes,
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nor can it be persuasively shown that the tour and DiGiaco-
mo’s reaction to it were part of the res gestae of her protected
activity at the bargaining sessions of November 10 and 11 or
the meeting with Nolet earlier on November 12. The tour, as I
have indicated, involved a completely independent set of cir-
cumstances that had nothing to do with whatever protected or
union activity was involved in the bargaining sessions or in the
Nolet/DiGiacomo meeting. The tour was conducted for purely
management reasons having nothing to do with DiGiacomo.
And her reaction to the tour had nothing to do with her union or
protected activity and everything to do with injecting herself
into something that did not involve her. There is thus nothing
to balance in this case.20
But even if I were to conclude that somehow DiGiacomo
was engaged in protected activity during her confrontations
with DeShields and her tour on the afternoon of November 12,

DiGiacomo did indeed “disrupt” the tour. And the reference to com-
plaints about staffing levels and DeShields’ role at the facility is based
on DiGiacomo’s testimony about her parking lot remarks (GC Br. 17).
But her testimony about mentioning staffing levels was discredited, and
the insults she hurled at DeShields, which she falsely tried to tie to
staffing levels, can hardly be called “complaints about DeShields’ role
at the facility.”
20 The cases cited by the Charging Party (C.P. Br. 18–19) in support
of the notion that DiGiacomo’s interference with the tour on November
12 was part of the res gestae of earlier or ongoing protected activity are
clearly distinguishable. Unlike the situation here, in none of those
cases cited by the Charging Party, or the one related case cited by the
General Counsel (GC Br. 17), did the employee inject herself into
matters clearly unconnected with employee wages, hours or conditions
of employment.
and, if I were to apply the Atlantic Steel factors to DiGiacomo’s
misconduct, I would still find no violation. The place of the
discussion was in a hospital setting, very near, on one occasion,
to a patient care area; the subject matter of the discussion had
more to do with insulting a management official in the presence
of visitors and interfering with a legitimate tour of the hospital
than anything resembling protected activity; the nature of the
employee’s misconduct was the same, but it was exacerbated
by virtue of three separate acts of interference; and there was
absolutely no provocation and no context of unfair labor prac-
tices. Thus, DiGiacomo’s misconduct clearly outweighs any
protected activity that was involved. Accordingly, I reject the
General Counsel’s reliance on the Atlantic Steel theory of a
violation. See Piper Realty, cited above.
CONCLUSION OF LAW
The General Counsel has not proved by a preponderance of
the evidence that Respondent violated Section 8(a)(5) and (1)
or Section 8(a)(3) and (1) of the Act, as alleged in the com-
plaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended21
ORDER
The complaint is dismissed in its entirety.
Dated, Washington, D.C., October 5, 2016.

21 If no exceptions are filed as provided by Sec. 102.48 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.