Central Peninsula General Hospital

National Labor Relations Board - Administrative Judge Opinions

Jun 7, 2010

19-CA-031917 (N.L.R.B. Jun. 7, 2010)

JD(SF)–22–10
Soldotna, Alaska
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
CENTRAL PENINSULA GENERAL HOSPITAL
and Cases 19-CA-31917
19-CA-31968
LABORERS’ INTERNATIONAL UNION 19-CA-32046
OF NORTH AMERICA, LOCAL 341
David Schaff, Esq. of Anchorage, Alaska
and Susannah Merritt, Esq.
of Seattle, Washington, for the General Counsel
Heidi Drygas, Esq. of Anchorage, Alaska,
for the Charging Party.
James Juliussen, Esq. (Davis, Wright, Tremaine, LLP)
of Anchorage, Alaska for the Respondent
DECISION
Statement of the Case
JOHN J. MCCARRICK, Administrative Law Judge: This case was tried in Kenai, Alaska
on February 23, 2010, upon the second consolidated complaint (Complaint), issued on October
30, 2009, by the Regional Director for Region 19.1 The consolidated the complaint issued on
September 28, 2009 in cases 19-CA-31917 and 19-CA-3168 together with an additional charge
in case 19-CA-32046, based upon charges filed by Laborer’s International Union of North
America, Local 341 (Union) with a second order consolidating Cases, consolidated complaint
and notice of hearing in cases 19-CA-31979, 19-CA-32023 and 19-CA-32089 based upon
charges filed by the Alaska Nurses Association.2
The Complaint alleges that Central Peninsula General Hospital (Respondent) violated
Section 8(a)(1) and (3) of the Act by interrogating an employee about her union activities, by
promulgating and maintaining a rule requiring employees to address work-related complaints
exclusively through its supervisory chain of command, by promulgating and maintaining a rule

1 GC Exh. 1(y).
2 The charges in the second order consolidating cases and consolidated complaint filed by
the Alaska Nurses Association in cases 19-CA-31979, 19-CA32023 and 19-CA-32089 were
withdrawn pursuant to a non-Board settlement agreement entered into by the parties prior to the
hearing. Accordingly, at the hearing Counsel for the General Counsel moved to sever cases
19-CA-31979, 19-CA32023 and 19-CA-32089 from this proceeding. There being no objection,
the motion was granted.
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prohibiting solicitation on an employee’s duty time, by issuing discipline to Janet Nilles (Nilles)
for violating its no solicitation rule and for engaging in protected activity, by denying benefits to
Nilles and by reducing Nilles hours because of her protected activities. In its answer, as
amended, Respondent admitted most of the operative allegations of the Complaint but denied it
had violated the Act.
Upon the entire record herein, including the briefs from the General Counsel and
Respondent, I make the following.
Findings of Fact
I. Jurisdiction
Respondent admitted it is an Alaska corporation with an office and place of business
located in Soldotna, Alaska, where it is engaged in the operation of an acute care hospital.
Annually, Respondent in the course of its business operations derived gross revenues in excess
of $250,000 and purchased and received at its facility goods valued in excess of $50,000 in
directly from points outside the State of Alaska.
Based upon the above, Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. Labor Organization
Respondent admitted and I find that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. The Alleged Unfair Labor Practices
A. The Facts
This case involves an organizing campaign that was conducted by the Union at
Respondent among its non-professional employees, Respondent’s maintenance and
enforcement of its non-solicitation policy and its Complaint Resolution Policy and the discipline it
issued to its unit clerk Janet Nilles pursuant to its non solicitation policy. Nilles has been
employed by Respondent since September 2007. Nilles was supervised by Suzanne Baxter
(Baxter), the Director of Surgical Services and an admitted supervisor. Respondent’s CEO was
Ryan Smith (Smith) and Respondent’s HR Director was Debbie Horner (Horner).
In the spring of 2008 the Union began organizing Respondent’s non-professional
employees. In response to the Union’s organizing campaign, Respondent began conducting
meetings with its employees that were conducted by CEO Ryan Smith. At one such meeting in
late August 2008, Smith said that his prior experience dealing with the Teamsters’ Union at
South Peninsula Hospital was not good. In response Nilles spoke up at this meeting and said
her experience with the Teamsters Union at South Peninsula Hospital was good and that her
health insurance premiums at South Peninsula Hospital were three times less than those at
Respondent and that there was a grievance procedure at South Peninsula Hospital.
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Respondent also sent employees several anti-union emails from August 2008 to
June 2009.3
In a series of emails4 Respondent’s labor consultant Rebecca Smith (Smith) and
Respondent’s Human Resources Vice President Sally Walker (Walker) discussed Nilles. On
April 28, 2009, Smith told Walker, “You will be having trouble with Janet Nilles. She is going
after Charlie (Franz)5 to sway HP people. I will follow up more tonight. Can we send her back
to NC?” (North Carolina) Walker responded, “We are aware of Janet. Are you aware of any
specific comments she is reported to have said about Charlie? I she trying to sway HP staff
when she goes to their home as a representative of LL3416 or is she making the comments
while at work.”
Between September and November 2008 Nilles passed out authorization cards for the
Union at Respondent’s facility on at least 10 occasions. On November 13, 2008, while on a
lunch break, Nilles approached Respondent’s Dishwasher, Evelyn Moran (Moran) who was
standing outside the cafeteria. Nilles asked Moran if she wanted to sign an authorization card.
Moran declined. A few minutes later, when Nilles walked out of the lab, Moran pointed at her
and said “That’s the one who tried to get me to sign a union card.”
The following day in the cafeteria Moran asked Nilles what department she worked in
and Nilles replied Day Surgery. An hour later Nilles’ supervisor, Baxter called Nilles into her
office. There Baxter said that she had received a couple of complaints from Housekeeping,
Registration and Environmental Services departments about Nilles handing out union cards.
Baxter gave Nilles a corrective action7 which provided that she was being disciplined for
violating Respondent’s policy CP-105 which provides that “no individual shall be permitted to
solicit CPGH employees during any employee duty time.” The corrective action also noted that
“It was reported to me today by Human Resources that you have approached several hospital
employees during working hours soliciting their signatures on union cards.” According to the
corrective action, “Several employees have reported to their supervisors that they are
uncomfortable being constantly approached at work about union activities.” At the end of the
meeting Baxter said to Nilles, “You are not going to hand out any more union cards are you.”
While Baxter denied interrogating Nilles about Nilles’ union activities, she admitted that she
discussed with Nilles’ the item on the corrective action about approaching employees about
signing union cards. Baxter at the same time denied asking Nilles about handing out union
cards. Given this inconsistency, I do not find Baxter’s testimony credible and I will credit Nilles
version of this conversation.
Respondent’s no solicitation policy8, CP-105, provides:
5. Employees. No individual or organization shall be permitted to solicit CPGH, Inc.,
employees during any employee’s duty time. The Administration may make
alternative arrangements for charitable organizations or individuals seeking to make
charitable solicitations to CPGH, Inc. employees.

3 GC Exh. 2.
4 GC Exh. 11.
5 The Director of Heritage Place, a nursing home associated with Respondent.
6 Laborers Local 341.
7 GC Exh. 3.
8 GC Exh. 3(a).
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Respondent revised CP-105 on September 24, 2009. The revised policy was not
physically distributed to employees nor was notice of the revision e-mailed to employees.
Rather Respondent put the revised policy on its intranet z drive that includes all of Respondent’s
policies. Employees have access, while at work to Respondent’s intranet. Revised CP-105
provides:
5. Employees. No individual or organization shall be permitted to solicit CPGH, Inc.,
employees during any employee’s working time, including the working time of any
employee making a solicitation or the working time of any employee to whom the
solicitation is directed. The term “working time” does not include an employee’s
authorized lunch or rest breaks or other time when an employee is not required to
be working. The Administration may make alternative arrangements for charitable
organizations or individuals seeking to make charitable solicitations to CPGH, Inc.
employees.
On February 2, 2009, Nilles discovered that she had not received a quarterly bonus9
from Respondent. Nilles made inquiry in the HR department and a few days later Kaylee Hilton,
an HR representative, told Nilles that she did not receive a bonus since she was under
discipline.10
On April 1, 2009, Baxter spoke with Nilles and said she had spoken to Horner in HR and
that Nilles was not yet off discipline and it could go on for six to nine months. Respondent’s HR
Director Debbie Horner admitted that employees are rarely held in disciplinary status for longer
than six months and only when the discipline is for something egregious.
Horner claimed that Nilles’ disciplinary status was extended because another complaint
about Nilles was received in January 2009. No evidence was adduced concerning the nature of
the complaint or whether it was investigated. Nilles was never informed of the alleged January
2009 complaint. Nilles was removed from discipline on July 14, 2009.11
As a result of the November 14, 2008 discipline, Nilles lost three bonuses from
Respondent totaling $250. Respondent’s fiscal year runs from July 1 through June 30. Horner
confirmed that Nilles lost bonuses through the fourth quarter of 2009 (April through June 2009)
since she was under discipline. However, Horner later claimed that Nilles received the $50
fourth quarter bonus based upon payroll records12 reflecting that Nilles received a $504.76 year
end bonus which Horner concluded must have included the $50 quarterly bonus. However the
payroll record does not break the $504.76 bonus into year end and quarterly portions. Horner
said that the year end bonus was calculated on the number of hours an employee worked
during the fiscal year. Thus a full time employee would earn the full $500 bonus but an
employee working half time would earn only $250.
On March 24, 2009, Nilles learned that her hours were being changed from 11 a.m. to
6 p.m. to 2 p.m. to 6 p.m. On March 27, 2009 Nilles spoke to Baxter and said that she had
originally been hired to work from 2:30pm to 6pm. She added that her hours were changed to
1pm to 6pm in January 2008 and then changed again to 11 a.m. to 6 p.m. in October 2008.
Nilles asked Baxter if she could keep her 11am to 6pm shift and Baxter said she could not but

9 GC Exh. 6.
10 GC Exh. 7.
11 GC Exh. 10.
12 Resp. Exh. 5.
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she could work from 1 p.m. to 6 p.m. Nilles asked Baxter if they could follow up on her
discipline. Baxter said everything had been sent to HR. I credit Nilles testimony.
Baxter claimed that she cut Nilles’ hours in March 2009 when another employee, Laurie
Kesner (Kesner), left her position in Day Surgery and was replaced by Nathalie Carmichael
(Carmichael). Kesner’s hours had been 6:30 a.m. to 2:30 p.m. According Baxter, Nilles’ hours
were changed in January 2008 from her start time of 2:30 p.m. to 1 p.m. so that Kesner could
have a lunch break. While in Day Surgery, Kesner began working two hours of her shift in Pre-
Op. Baxter claimed that Kesner’s two hours in Pre-Op, from 11 a.m. to 1 p.m., was the rationale
for changing Nilles’ start time from 1 p.m. to 11 a.m. in October 2008. Baxter claimed that when
Carmichael was hired, Baxter did not know if Carmichael would work in Pre-Op for two hours as
Kesner had. Baxter said she cut Nilles’ hours because she did not want employees’ hours to
overlap when she did not know what Carmichael would be doing. Yet in an email to employees
dated March 26, 2009, Baxter touted Carmichael’s skills as including Pre-Op experience.13
However, Carmichael has not performed any clerical duties in Pre-Op to date.
Respondent’s Complaint Resolution Policy, HR-21214 in effect since at least 2007
provides:
CHP will provide employees with an opportunity to present their concerns and
complaints to their supervisor in an informal discussion, information gathering, and
resolution process. When an issue or complaint cannot be resolved with the Department
Director following the informal process the employee must then exercise the complaint
resolution process outlined below. This complaint resolution process shall be the
exclusive means for resolving claims that arise in the workplace.
Respondent rescinded HR-212 on February 19, 2010 except for employees who are already
utilizing the complaint resolution process.
B. The Analysis
1. The Alleged November 14, 2008 Interrogation
At paragraph 6 of the Complaint it is alleged that on November 14, 2008, Respondent
through Baxter interrogated Nilles about her union activities. Respondent contends that this
allegation is barred by Section 10(b) of the Act and denies that Baxter engaged in any
interrogation.
Section 10(b) of the Act provides:
That no complaint shall issue based upon any unfair labor practice occurring more than
six months prior to the filing of the charge with the Board and the service of a copy
thereof upon the person against whom such charge is made . . .
However, Section 10(b) is not jurisdictional. It is an affirmative defense and, if not
timely raised as an affirmative defense in the answer or litigated at the trial, it is waived
if first raised in the brief to the ALJ. Public Service Co., 312 NLRB 459, 461 (1993);
DTR Industries, 311 NLRB 833 fn1 (1993).

13 GC Exh. 15.
14 GC Exh. 1(s) at Appendix A.
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In the instant case, Respondent raises the 10(b) issue for the first time in its post-hearing brief.
In none of its answers15 is a 10(b) defense raised nor was the matter litigated at the trial.
Having failed to raise Section 10(b) as an affirmative defense to the charge in case 19-CA-
31968 such a defense has been waived and cannot be considered.
In Westwood Healthcare Center, 330 NLRB 935 (2000) the Board discussed the test to
determine whether interrogation is unlawful under Section 8(a)(1) of the Act. In Westwood the
Board applied the totality of the circumstances test adopted in Rossmore House, 269 NLRB
1176 (1984). The Board said it would look at five factors to determine whether the questioning
of an employee constitutes an unlawful interrogation:
(1) The background, i.e. is there a history of employer hostility and discrimination?
(2) The nature of the information sought, e.g., did the interrogator appear to be seeking
information on which to base taking action against individual employees?
(3) The identity of the questioner, i.e. how high was he in the company hierarchy?
(4) Place and method of interrogation, e.g. was employee called from work to the
boss's office? Was there an atmosphere of unnatural formality?
(5) Truthfulness of the reply.16
The Board added:
In the final analysis, our task is to determine whether under all the circumstances the
questioning at issue would reasonably tend to coerce the employee at whom it is
directed so that he or she would feel restrained from exercising rights protected by
Section 7 of the Act.17
In this case there is evidence from the emails of Respondent’s labor consultant Smith
and Respondent’s Human Resources Vice President Walker that they had singled Nilles out
because of her union advocacy and that there was hostility toward her union activity.
Respondent’s CEO Ryan Smith also disclosed his hostility toward unions in his employee
meeting attended by Nilles. Baxter was a high level manger in charge of several departments
and 40 employees. The interrogation took place one on one in Baxter’s office and was
designed to ensure that Nilles did not engage in further union activity. Clearly, the purpose of
this interrogation was to chill Nilles’ rights to engage in Section 7 activity and violated Section
8(a)(1) of the Act as alleged.
2. The Complaint Resolution Policy
In Martin Luther Memorial Home, Inc., 343 NLRB 646 (2004) the Board held that an
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 citing Lafayette Park Hotel, 326 NLRB 824,
825 (1998). The Board starts with the principle that a rule is unlawful if it explicitly restricts

15 GC Exhs 1(u), 1(v), 1(aa).
16 Westwood at page 939.
17 Id. at page 940.
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activities protected by Section 7. However, if the rule does not explicitly restrict activity
protected by Section 7, a violation depends on a showing that: (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.
One of the employer’s rules in Martin Luther King at 654-655 provided: “Selling or
soliciting anything in the building or on company property (the premises) whether you are on
duty or off duty, unless you have been given written permission by the Administrator.” The
Board affirmed the ALJ who reasoned that, “Given its present form, it is not “far-fetched” that
reasonable employees could conclude that some Section 7 activity could be covered by this
rule. . . .”
Another employer rule in Martin Luther King at 655 provides: “Engaging in unlawful strikes,
work stoppages, slowdowns, or other interference with production at any Martin Luther
Memorial Home facility or official business meeting.” Again the ALJ was affirmed by the Board
when he found:
In my opinion this rule can reasonably be read as encompassing Section 7 activity. For
example, the rule as written would prohibit employees from engaging in protected
concerted activities concerning wages, conditions of employment, or safety issues if it
interfered with production or a business meeting. It could be construed to prohibit
employees from voicing concerns over terms and conditions of employment during a
group meeting and if the concerns escalated they could interfere with production.
Here Respondent’s Complaint Resolution Policy explicitly limits employees to the use of
this procedure for resolving workplace disputes. This policy limits employees in their right to
engage in protected-concerted activity with each other or with a collective bargaining
representative in dealing with wages, hours and other terms and conditions of employment
under Section 7 of the Act.
I find that Respondent’s Complaint Resolution Policy violates Section 8(a)(1) of the Act
under Martin Luther King as it explicitly limits Section 7 activity or could reasonably be
construed by employees as limiting such activity. While Respondent may have rescinded its
Complaint Resolution Policy it did not do so until February 19, 2010, and thus violates the Act
as alleged in complaint paragraph 6.
3. The No Solicitation Rule
Counsel for the General Counsel contends that Respondent’s no solicitation policy
embodied in CP-105 until September 24, 2009, limited employee solicitation while on “duty time”
and violated section 8(a)(1) of the Act. General Counsel argues further that Respondent failed
satisfactorily to explain to its employees that “duty time” did not encompass break or lunch time
or time other that working time. Respondent counters that the term “duty time” is the functional
equivalent of “working time” and that it explained to its employees that “duty time” did not
include break, lunch or other than working time.
Contrary to Respondent’s assertion, the Board has never held that “duty time” is the
functional equivalent of “working time.” Rather the Board in Aluminum Casting & Engineering
Co., Inc. 328 NLRB 8, 9 (1999) has held:
Contrary to our dissenting colleague, we agree with the judge that the Respondent
violated Section 8(a)(1) of the Act by maintaining in its rules of conduct a no-solicitation
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rule that prohibits employees from “[s]oliciting or selling on company premises except
when all concerned are relieved from duty.” Although our dissenting colleague claims
that this rule is “unambiguous,” the Board has squarely held that “duty” time rules such
as this one are ambiguous and overbroad because they “reasonably could be
understood to mean that [employees] were prohibited from [engaging in] protected
concerted activity from the time that they came on duty or began their shift, including
during breaks or meal periods.” Central Security Services, 315 NLRB 239, 243 (1994).
Citing Southeastern Brush Co., 306 NLRB 884 fn. 1 (1992), the Central Security Board
analogized a “duty” time rule to an overbroad and unlawful “company” time rule, and
implicitly distinguished a “duty” time rule from a “working” time rule, which is
presumptively lawful under Our Way, 268 NLRB 394 (1983), cited by our dissenting
colleague. Accordingly, we conclude that the judge properly found the Respondent’s
“duty” time rule to be unlawful conduct under established Board precedent.
Further, where an employer has an ambiguous no solicitation rule that is presumptively
unlawful on its face it, “. . . has the burden of showing that it communicated or applied the rule in
such a way as to convey an intent clearly to permit solicitation during break times or other non
work periods. See Pontiac Osteopathic Hospital, 284 NLRB 442, 465 (1987); J. C. Penney Co.,
266 NLRB 1223, 1224–1225 (1983).” Ichikoh Manufacturing, Inc. 312 NLRB 1022 (1993).
Contrary to Respondent’s assertion, there is insufficient evidence that it communicated
to its employees that the term “duty time” meant working time and did not include break or lunch
periods. While Horner testified that she explained that “duty time” meant working time to
several employees, she was able to identify only one example. Such limited explanation does
not satisfy the Board’s requirement that Respondent communicate to all of its effected
employees that they could in fact engage in solicitation during nonworking time.
I conclude that prior to September 24, 2009, Respondent’s no solicitation policy
embodied in CP-105 violated Section 8(a)(1) of the Act as alleged in complaint paragraph 7.
4. The Nilles Discipline
Counsel for the General Counsel contends that in enforcing its no solicitation policy
against Nilles by issuing her written discipline on November 14, 2008 violated Section 8(a)(1)
and (3) of the Act. Respondent argues that Nilles misunderstanding of Respondent’s no
solicitation policy caused her to violate the prohibition on solicitation during an employee’s
working time.
The law is clear that an employer who disciplines an employee for violation of an overly
broad no solicitation rule violates Section 8(a)(3) of the Act. Double Eagle Hotel & Casino, 341
NLRB 112, n.3 (2004). Respondent’s argument defies logic since its rule on its face is overly
broad and violates Section 8(a)(1) of the Act, as found above. I conclude that the discipline
issued to Nilles violates Section 8(a)(1) and (3) of the Act as alleged in paragraph 7 of the
Complaint.
5. The Denial of Nilles’ Bonuses
There is no dispute that Nilles was denied bonuses from November 2008 to July 2009 as
a result of being in disciplinary status. As the denial of the bonuses flows from Nilles’ unlawful
discipline for violating an unlawful no solicitation rule, it follows that the denial of bonuses was a
further violation of Section 8(a)(1) and (3) of the Act as alleged in paragraphs 8(a) through (c) of
the Complaint. Double Eagle Hotel & Casino, 341 NLRB 112, n.3 (2004). The evidence was
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insufficient to determine the exact amount of bonuses to which Nilles is entitled and that will be
left to compliance.
6. The Change in Nilles’ Hours
Counsel for the General Counsel takes the position that the change in Nilles hours was
in retaliation for her union activities. Respondent counters that it reduced Nilles hours without
regard to her union activities. Section 8(a)(3) of the Act prohibits employers from discriminating
in regard to an employee’s, “tenure of employment . . . to encourage or discourage membership
in any labor organization.”18
In 8(a)(3) cases the employer’s motivation is frequently at issue, therefore the Board
applies a causation test to resolve such questions. Wright Line, 251 NLRB 1083, 1088 (1980).
The Wright Line test requires the General Counsel to make a prima facie showing sufficient to
support an inference that the employee’s protected conduct motivated the employer’s adverse
action. “The critical elements of discrimination cases are protected activity known to the
employer and hostility toward the protected activity.” Western Plant, 322 NLRB 183, 194
(1996). Although not conclusive, timing is usually a significant element in finding a prima facie
case of discrimination. Id. at 194. In dual motivation cases, once General Counsel has
established a prima facie case the burden shifts to Respondent to show that it would have
disciplined the employee even in the absence of protected activity.
There is no doubt that General Counsel has established a prima facie case that
Respondent violated Section 8(a)(3) of the Act by reducing Nilles’ hours. Nilles was engaged in
extensive union activities shortly before her hours were cut in March 2009, including solicitation
of employees to sign authorization cards on behalf of the Union in November 2008 and
speaking out in favor of the Union to CEO Smith in August 2008.
It is undisputed that Respondent was aware of Nilles’ union activities and expressed
hostility toward her as recently as April 28, 2009 in the emails between Smith and Walker in
which it was said Respondent would have trouble with Nilles. Nilles discipline, the denial of her
bonuses and the cut in her hours was preceded by her union activities. Having established a
prima facie case that Section 8(a)(3) has been violated the burden shifts to Respondent to show
it would have cut Nilles hours even in the absence of her union activities.
According to Respondent, Nilles hours were changed in October 2008 from 1 p.m. to
6 p.m. to 11 a.m. to 6 p.m. in order to cover for Day Surgery clerical employee Kesner who
worked two hours in Pre-Op, from 11 a.m. to 1 p.m.. Respondent contends that when a new
employee, Carmichael, was hired to replace Kesner, Baxter did not know if Carmichael would
work in Pre-Op for two hours requiring clerical coverage in Day Surgery and Baxter did not want
employee overlap. To date Respondent has not used Carmichael in Pre Op.
Counsel for the General Counsel argues that Respondent’s reasons for cutting Nilles’
hours are pretextual. In support of this position Counsel for the General Counsel makes several
arguments. First, Baxter initially tried to cut Nilles by three hours a day which did not result in a
return to the status quo before Kesner worked in Pre OP. Second, Respondent misstated that
Nilles was being put back into her previous shift which was 1 p.m. to 6 p.m. but rather was to
work from 2 p.m. to 6 p.m. Third, Baxter did not inform Nilles that her hours had been extended
in October 2008 to cover Kesner’s time in Pre Op. Fourth, Respondent cut Nilles’ hours before

18 29 U.S.C. Section 158(a)(3).
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it knew whether Carmichael would work in Pre Op and failed to provide this explanation to Nilles
when her hours were cut. Fifth, Baxter touted Carmichael’s skills in Pre Op. Sixth, Baxter’s
rationale that she did not want employee overlap does not make sense since there was already
overlap between Nilles’ and Kesner’s hours.
As to General Counsel’s arguments, while Baxter initially tried to cut Nilles’ shift by three
hours, in the end her hours were cut by the two hours Nilles had been covering while Kesner
was in Pre Op. I find no probative value to the fact that Baxter did not tell Nilles why her hours
had been extended in October 2008 to from 1 p.m. to 6 p.m. to 11 a.m. to 6 p.m. While Baxter
touted the new employee’s skills in Pre Op and cut Nilles’ hours before the new employee
started, Baxter said she was not sure if the new employee would work in Pre Op at the time she
started. This does not establish that the reasons for cutting Nilles’ hours were false and is not
incredible. Prior to the time Kesner worked in Pre Op she and Nilles overlapped only 1 ½ hours
of their shifts. Baxter’s rationale that she did not want employee overlapping shifts is not false
since reducing Nilles hours did cut back on overlap. Moreover, Respondent did not assign
Carmichael to work in Pre Op, no longer requiring Nilles to cover for an absent clerk in Day
Surgery. This alone justifies Respondent’s reduction in Nilles’ hours. I conclude that
Respondent’s explanation for cutting Nilles’ hours was not pretextual and that Respondent
would have cut Nilles’ hours in the absence of her union activities since she no longer had to
cover for Kesner. I will dismiss complaint allegation 8(d).
Conclusions of Law
On the basis of the above findings of fact and the record as a whole and Section 10(c) of
the Act, I make the following conclusions of law.
1. Respondent has been at all times material an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
2. The Union is, and has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by engaging in the following acts and
conduct:
a. Interrogating employees about their union and other protected concerted
activities.
b. Promulgating and maintaining an overly broad no solicitation rules prohibiting
employees from engaging in solicitation during “duty hours.”
c. Promulgating and maintaining a rule which limits employees’ rights to engage in
Section 7 activity.
4. Respondent violated Section 8(a)(1) and (3) of the Act by:
a. Issuing written discipline to Janet Nilles for violating an overly broad no
solicitation rule and for engaging in union and other protected-concerted activity.
b. Denying Janet Nilles quarterly bonuses for violating an overly broad no
solicitation rule and for engaging in union and other protected-concerted activity.
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5. The unfair labor practices described above are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not otherwise violate the Act as alleged in the Complaint and
the remaining complaint allegations will be dismissed.
The Remedy
Having found that the Respondent violated the Act as set forth above, I shall order that it
cease and desist there from and post remedial Board notices addressing the violations found.
The Respondent having discriminatorily disciplined employees and denied employees
benefits, it must make them whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of denial of the benefits to date of proper offer of reinstatement of the
benefits, plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Based upon the above findings of fact and conclusions of law, and on the basis of the
entire record herein, I issue the following recommended Order.19
ORDER
The Respondent Central Peninsula Hospital, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
a. Interrogating its employees about their union and other protected-concerted
activities.
b. Promulgating and maintaining overly broad no solicitation rules prohibiting
employees from soliciting during “duty time.”
c. Promulgating and maintaining a rule limiting employees’ rights to engage in
Section 7 activity.
d. Disciplining employees and withholding benefits in retaliation for violating an
overly broad no solicitation rule and for engaging in union or other protected-
concerted activity.
e. In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act
2. Take the following affirmative action designated to effectuate the policies of the Act:
a. Make Janet Nilles whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her in the manner set forth in the remedy
section of the decision.

19 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections shall be waived for all
purposes.
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b. Within 14 days from the date of this Order, remove from its files any reference to
the unlawful discipline of Janet Nilles and within 3 days thereafter notify the
employee in writing that this has been done and that the discipline will not be
used against her in any way.
c. Cease giving force and effect to the unlawful no solicitation rule prohibiting
employees from soliciting while on “duty time” and inform all employees that they
are free to solicit other employees during non work times.
d. Cease giving force and effect to HR Complaint Resolution Policy, HR-212.
e. Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable
place designated by the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and papers, and all other
records, including an electronic copy of such records if stored in electronic form
necessary to analyze the amount of backpay due under the terms of this Order.
f. Within 14 days after service by the Region, post at its Soldotna Alaska facility
copies of the attached notice marked “Appendix.”20 Copies of the notice, on
forms provided by the Regional Director for Region 19, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent
immediately upon receipt 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
Respondent has gone out of business or closed any of the facilities involved in
these proceedings, the Respondents shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees
employed by the Respondents at any time since November 14, 2008.
g. Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.

20 If this Order is enforced by a Judgment of the 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.”
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IT IS FURTHER ORDERED that the Complaint is dismissed insofar as they allege
violations of the Act not specifically found.
Dated, Washington, D.C. June 7, 2010
_____________________
John J. McCarrick
Administrative Law Judge
JD(SF)–22–10
Soldotna, Alaska
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 that interferes with these rights. More particularly:
WE WILL NOT discipline you for violating any overly broad no solicitation rule or because you
support or engage in activities on behalf of LABORERS INTERNATIONAL UNION OF NORTH
AMERICA, LOCAL 341.
WE WILL NOT ask you questions about your Union support or activities or the Union support
and activities of other employees.
WE WILL NOT maintain and enforce any rule which limits your right to engage in activities
protected under Section 7 of the Act.
WE WILL NOT maintain and enforce any rule which limits your right to solicit fellow employees
during “duty time.”
WE WILL immediately rescind and give no effect to the written discipline issued to Janet Nilles
on November 14, 2009 and we will remove any reference to that discipline from our records.
WE WILL immediately make Janet Nilles whole with interest for the wages and benefits she lost
because we disciplined her.
WE WILL rescind or otherwise amend policy CP-105 which prohibits solicitation of fellow
employees during “duty time” and make it clear to all employees that they are free to solicit
other employees during non working times.
WE WILL rescind or amend Complaint Resolution Policy, HR-212 which interferes with your
right to engage in activities protected under Section 7 of the Act.
JD(SF)–22–10
Soldotna, Alaska
CENTRAL PENINSULA GENERALHOSPITAL
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
915 2nd Avenue, Federal Building, Room 2948
Seattle, Washington 98174-1078
Hours: 8:15 a.m. to 4:45 p.m.
206-220-6300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 206-220-6284.
THIS NOTICE AND THE DECISION IN THIS MATTER ARE PUBLIC RECORDS
Any interested individual who wishes to request a copy of this Notice or a complete copy of the
Decision of which this Notice is a part may do so by contacting the Board’s Offices at the
address and telephone number appearing immediately above. The final decision and this notice
are available in either English or Spanish.