Dignity Health d/b/a Mercy Gilbert Medical Center

National Labor Relations Board - Administrative Judge Opinions

Mar 19, 2020

28-CA-229160 (N.L.R.B. Mar. 19, 2020)

JD(SF)-09-20
Gilbert, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE

DIGNITY HEALTH d/b/a
MERCY GILBERT MEDICAL CENTER

and Cases 28–CA–229160
28–CA–238137

SERVICE EMPLOYEES INTERNATIONAL
UNION-UNITED HEALTHCARE WORKERS WEST

Judith E. Davila, Esq., for the General Counsel.

Frederick E. Miner, Esq. (Littler Mendelson, P.C.)
for the Respondent Employer.

Bruce A. Harland, Esq. (Weinberg, Roger & Rosenfeld)
for the Charging Party Union.

DECISION

Statement of the Case

ARIEL L. SOTOLONGO, Administrative Law Judge. At issue in this case is whether
Dignity Health d/b/a Mercy Gilbert Medical Center (Respondent or the Employer) violated
Section 8(a)(1) of the Act by coercively interrogating employees, engaging in surveillance and
creating the impression of surveillance, and directing employees not to discuss working
conditions among themselves, but instead come to management with their concerns; and whether
Respondent violated Section 8(a)(1), (3) and (4) of the Act by assigning an employee more
onerous duties because the employee engaged in union activities and/or because said employee
cooperated with the Board’s investigation of a charge filed by Service Employees International
Union-United Healthcare Workers West (Union).

I. PROCEDURAL BACKGROUND

Based on a charge filed by the Union in Case 28–CA–229160 on October 11, 2018 and
an amended charge filed on January 17, 2019, and on a charge in Case 28–CA–238137 filed by
the Union on March 19, 2019, the Regional Director for Region 28 of the Board filed a
consolidated
JD(SF)-09-20
2

complaint on May 31, 2019, alleging that Respondent had violated the Act as described above.
Thereafter, Respondent filed a timely answer denying the substantive allegations of the
complaint. I presided over this case in Phoenix, Arizona on July 23-24, 2019.

II. JURISDICTION AND LABOR ORGANIZATION STATUS 5

The complaint alleges, and Respondent admits, that at all material times Respondent has
been a corporation with and office and place of business in Gilbert, Arizona, where it operates a
hospital providing in-patient and out-patient medical care. The complaint further alleges, and
Respondent admits, that during the 12-month period ending on October 11, 2018, Respondent 10
purchased and received at its Gilbert facility goods valued in excess of $50,000 directly from
points outside Arizona, and during the same time period it derived gross revenues in excess of
$250,000. Accordingly, I find that Respondent is an employer engaged in commerce within the
meaning of Sections 2(2), (6) and (7) of the Act.
15
The complaint also alleges, Respondent admits, and I find that the Union has been, at all
times material herein, a labor organization within the meaning of Section 2(5) of the Act.

III. FINDINGS OF FACT
20
A. Respondent’s Operation and Other Background Facts

In this Section, I will discuss some background facts that are not in dispute. As briefly
described above, Respondent operates a hospital and healthcare facility (the facility) in Gilbert, a
suburb of Phoenix, Arizona. The events at issue in this case involve the employees and 25
managers in the Emergency Department (ED), where approximately 80 employees work. ED
personnel, other than management, include physicians and physician assistants, nurses (which
include registered nurses, certified nurse assistants, and charge nurses) techs, paramedics and
scribes. Dawn Kimball is the ED Director, who supervises the department. Reporting to
Kimball is Dawn Reh, the nursing manager, who in turn supervises the charge nurses. Both 30
Kimball and Reh (sometimes collectively referred to in the record as “the Dawns” because both
are named Dawn) are admitted Section 2(11) supervisors. Charge nurses direct and assign the
work of the “techs,” which also include paramedics.1 In addition to Kimball and Reh, other
management officials who were involved in events surrounding Placencio and the allegations of
the complaint were Joshua Harrison, Respondent’s East Valley Cardio-Pulmonary Manager, and 35
Brian Biggs, Respondent’s Director of Medical-Surgical Floors. Both Harrison and Biggs are
admitted Section 2(11) supervisors, although neither actually works in the ED.

There are four (4) areas where employees work in the ED: “Triage,” the patient intake
area also known as PCT Screening; “HUC” (health unit clerks), who basically answer phones; 40
the “Psychiatric Sitter” area, where psychiatric patients in need of observation are located; and
the 3 “floor” zones where floor techs are assigned to work, which are the red, yellow and green
zones, correspondingly named based on the intensity of treatment and patient attention required.

1 Curiously, although the evidence suggests that charge nurses, who played a role in some of the alleged conduct
herein, may also be statutory supervisors, they were not alleged as such in the complaint. For reasons that will be
discussed below, however, such omission is ultimately inconsequential.
JD(SF)-09-20
3

The events at issue in this case involve employee Jon Paul Placencio, also known as “JP,”
who has worked for Respondent as an ED “tech” for 13 years. He began engaging in organizing
activities for the Union in July 2018, which Respondent became aware of soon thereafter.2
Indeed, Kimball admitted that Respondent first received reports of union activity by employees 5
in July, and also admitted that sometime in August she received a video from a colleague in
another facility showing Placencio engaging in union activity. In the wake of learning that the
Union was conducting organizational activities and contacting its employees, Respondent,
beginning in July, began publishing and distributing (via email) a series of newsletters addressed
to its employees under the heading of “Let’s Talk.” These communications, inter alia, informed 10
employees about their options if they received unwelcome communications or solicitations on-
line, on the phone, or by personal visits at home, presumably by union organizers or solicitors.3

B. The Allegations in the Complaint
15
1. The events on August 28

In is undisputed that on August 28, Kimball and Charge Nurse Ryan Sutton conducted a
pre-shift meeting at the ED breakroom attended by about 10 employees.4 Placencio, who
attended the meeting, testified that Kimball stated that the Union was passing out flyers to 20
workers at the facility, and that the workers had a right to form an union, adding that her husband
belonged to one. She also said that the Union was making promises it could not keep, and that it
needed dues because workers in California were not paying theirs in light of a recent Supreme
Court decision. According to Placencio, Kimball then pointed in his direction (at the head of the
table where he was sitting) and said she knew the Union had contacted him. 25

Kimball testified that she told those at the August 28 pre-shift meeting that staff had
come to her to complain that union organizers had contacted them at home and were upset. She
told them that Respondent had not provided the Union their personal information, and explained
to them what they could do if they did not wish to be contacted at home. Kimball did not 30
identify those who had complained to her, and specifically denied singling anyone out as being
involved in the Union organizing.5

2 All dates hereafter shall refer to calendar year 2018 unless otherwise indicated.
3 These communications, introduced into the record as General Counsel’s (GC) Exhibit 4 (GC Exh. 4), certainly did
not paint the union solicitors or solicitation activities in a glossy manner, and indeed sometimes portrayed those
activities (or solicitors) as potentially “suspicious,” warning employees to be careful about giving out personal
information or clicking on links from unknown sources. On the other hand, it also informed employees that
Respondent respected employees’ rights to choose representation. None of these communications were alleged as
unlawful in the complaint, most likely because these expressions are protected under Section 8(c), not to mention the
First Amendment. For this reason, I see no need to discuss or detail these communications at length. I would note,
however, that the GC apparently believes that they are relevant because they allegedly reflect animus, which in turn
is a predicate to finding a violation under the Wright Line analysis (citation omitted). For the reasons I will discuss
below, I am not persuaded that these communications are ultimately relevant.
4 Pre-shift meetings are regularly held by the ED staff, during which work-related topics and events of the day are
discussed.
5 Kimball, who was called as an adverse witness under FRE 611(c) by GC, initially testified before Placencio did,
and did not specifically deny pointing at anyone during the meeting, even when she was recalled to the stand after
Placencio had testified.
JD(SF)-09-20
4

I credit Placencio’s version of events, and specifically his testimony that Kimball pointed
at him and stated that she knew the Union had contacted him. In so doing, I note that Placencio
gave a detailed account of the meeting, including statements that might seem helpful to
Respondent’s case—such as the fact that Kimball stated that Respondent respected its 5
employees’ right to engage in union activities. I also note that Kimball never denied pointing at
Placencio, and that this meeting occurred shortly after Kimball learned that Placencio was one of
the union organizers, which makes it more likely that she singled him out at this meeting.

2. The events of September 27 and October 3. 10

It is undisputed that on September 27, Kimball and Harrison were “rounding” in the ED,
and spoke to various employees, including Placencio.6 What is disputed in this case is what
Kimball and Harrison said to Placencio.
15
Thus, Placencio testified that on the date in question he was working in his capacity as a
health unit clerk (HUC) and had just helped with a patient in critical condition in room #18, who
had just passed away. As he was heading to the HUC desk to answer a phone, Placencio was
approached by Kimball and Harrison, who were on the other side of the HUC desk. According
to Placencio, Harrison introduced himself, then asked if he had heard anything about the Union. 20
Placencio answered that the only thing he had heard was what he had read in the “Let’s Talk”
emails from management. Harrison then said that the Union was making promises they couldn’t
keep, telling people they will get free family health care, then asked “how’s the company going
to pay for that?” At this point, Placencio testified, the phone rang (at the HUC station) and he
answered it, while Kimball and Harrison waited. When the phone call ended, Harrison again 25
asked Placencio if he had heard about the Union, then asked what his name was. When
Placencio pointed at his name tag, Harrison asked Placencio if he went by “JP” or “Jon Paul.”
Placencio responded that he goes by both names. Harrison then said that it was funny that he
hadn’t heard anything about the Union, because the people in the Respiratory Department were
saying that they were being organized by a “JP” from the ED. According to Placencio, Harrison 30
kept asking him if it was “JP” or “Jon Paul,” and kept repeating that employees in the
Respiratory Department had identified a “JP” as the culprit in the union organizing. Harrison
and Kimball then walked away, heading to the room where EKG machines were kept. Then they
called Placencio over, and Harrison showed Placencio the proper technique to perform EKGs,
which Placencio thought was puzzling, since no one had complained about him using the wrong 35
technique.

Kimball testified that she and Harrison used the “Let’s Talk” bulletin about wages (GC
Exh. 4, No. 4), a copy of which they had printed out, as reference to talk to ED employees about
wages, including Placencio, during this occasion. She recounted that she told Placencio about 40
Respondent’s merit pay program, and how Respondent was very competitive in Arizona
regarding wages and benefits, and stressed that Respondent valued its employees and can share
things with them openly. According to Kimball, Harrison told Placencio that he had been getting
concerns from employees about wages in California, and that no one could promise employees

6 “Rounding” is a common term used in the healthcare industry that is short for “making the rounds,” whether by
physicians, nurses, managers or others.
JD(SF)-09-20
5

any particular wage, since that is something that was subject to bargaining. He also stressed that
employees could come to them with any questions they might have. Kimball denied that she or
Harrison asked Placencio whether he was involved with the Union organizing or supported the
Union.
5
Harrison’s recollection of this event wasn’t nearly as detailed or clear as that of
Placencio, or even Kimball. Thus, when asked what he said to Placencio during their encounter
on this day, he testifies as follows:

Basically the same talking points as the wages. I did bring up the information regarding 10
personal experience; my staff have been contacted by several representatives through
Dignity Health showing them wages. Just want to clear the air and make sure that staff
have a -- sorry, I'm losing train of thought here. Staff have an open, informed decision
regarding the wages and that we're not trying to pull one over. I forget exactly what I
stated exactly. But it was to that degree. (Tr. 107) 15

Harrison also testified that he did not know who Placencio was, or that he was a union
organizer, and said that he repeated the same thing he said to Placencio—as described
immediately above—to others.
20
A few days later, on October 3, Placencio sent out a group email to most of the
staff at the facility, including management, in which he accused Kimball and Harrison
of asking him, “point blank,” whether he was spearheading the Union’s organizing
efforts. In the email, Placencio admits that he indeed has been actively supporting the
Union’s organizational drive, something that he acknowledges he denied when 25
confronted by Kimball and Harrison, “given the circumstances.” (GC Exh. 5).7

Neither Kimball nor Harrison ever responded to Placencio’s email, in writing or
otherwise. Kimball testified that she consulted with Respondent’s HR Department in
order to seek guidance on the matter.8 HR’s response was to come up with a series of 30
“Talking Points,” distributed to all the managers and supervisors, to be used in case
any employees asked about Placencio’s allegations. These Talking Points, inter alia,
directed supervisors to state that the employee in question (Placencio) had not
submitted a formal complaint through “appropriate channels,” and that publicly
“defaming or demeaning any coworker is not consistent with our values.” According to 35
Kimball, she used the “Talking Points” whenever any employee asked her about
Placencio’s allegations.

7 In the email, Placencio labels the “interrogation” by Kimball and Harrison as “unacceptable and illegal,” and
expresses his remorse at not having been honest about his union activities when confronted by Kimball and
Harrison. In his testimony, Placencio explained that he had decided to come clean and publicly acknowledge his
union involvement because he had felt uncomfortable not telling the truth to Kimball and Harrison. Placencio also
testified that he informed the Union about this incident at the time he sent the email, which became the basis for the
Union’s filing of a Board charge in Case 28–CA–229160 on October 11.
8 According to Kimball, after she read Placencio’s October 3 email, she spoke to HR Director Deb Sunman on the
phone, who advised her to do nothing. Kimball testified that HR “investigated” the incident, and that Sunman
directly asked her if she had asked Placencio if he was spearheading the union drive, which she denied she did. The
record is silent as to whether the HR Department ever asked Harrison if he had asked Placencio if he was
spearheading the union drive. Indeed, Harrison never specifically addressed Placencio’s testimony in that regard.
JD(SF)-09-20
6

For the following reasons, I credit Placencio’s version of events, and conclude
that Harrison repeatedly questioned him as to whether he was involved in the Union
organizing. First, I note that Placencio gave a detailed, blow-by-blow account of his
encounter with Kimball and Harrison on this date, including the sequence of events as 5
they occurred—a more detailed account that Kimball’s, who generally described how
she and Harrison stuck to the “Talking Points;” and a vastly more detailed account
than Harrison’s befuddled account, as cited above.9 The richness of the details
provided makes it less likely that it was a fabrication, and thus more trustworthy.
Second, I note that Harrison, in his testimony, never specifically deny and indeed 10
never addressed Placencio’s accusations. While it is true that Harrison’s testimony
preceded Placencio’s, he could have easily been recalled to the stand, as Kimball was.
Third, while Kimball denied that she or Harrison had asked Placencio anything about
his union activities, she had to be coaxed to include Harrison in her denials, and thus I
do not find such denial very convincing.10 Finally, I find it curious, indeed odd, than 15
in the face of a very public accusation by Placencio (in his October 3 email) of
coercive and possibly unlawful behavior, neither Kimball nor Harrison (or
Respondent) ever publicly issued a denial, but rather stuck to a “script” of talking
points prepared by the HR department—which never directly addressed the accusation
made. While this may be a case of “staying on message” gone extreme, it simply runs 20
contrary to normal human behavior, which is to forcefully deny a very public false
accusation of improper and unlawful behavior.

Accordingly, I credit Placencio’s testimony in this regard over Kimball’s or
Harrison’s. 25

3. The events at the facility’s north entrance in November

Placencio testified that sometime in November, the exact date uncertain, he was
distributing union leaflets with fellow employees in the parking lot near the north 30
entrance of the facility, near the facility’s chapel.11 According to Placencio, the
leafletting took place between 7:30 p.m. and 9 p.m., after the end of his (and the

9 The details provided by Placencio included the fact that a patient had just passed away in nearby room moments
before his encounter with Kimball and Harrison, which Kimball later confirmed; the things said, in the sequence
they were said, before and after he had to answer a phone call during the encounter; the specific nature of Harrison’s
questions, including whether he was known as “Jon Paul” or simply “JP;” and the conversation that immediately
followed thereafter in another area regarding EKG techniques.
10 Thus, Kimball testified as follows:
Q. Did you or Mr. Harrison ask Mr. Placencio whether he was involved in an organizing campaign?
A. I did not.
Q. Did you or Mr. Harrison ask him whether he supported the Union in an organizing campaign?
A. I did not.
Q. You did not. Did Mr. Harrison?
A. Nope. I did not hear him say anything.
Q. Anything like what?
A. Accusing Jon-Paul of any type of union organization. (Tr. 58. Emphasis supplied)
11 Three aerial photographs of the area (courtesy of Google) where the leafletting took place were introduced into the
record by the General Counsel (GC Exh. 9/1-3)
JD(SF)-09-20
7

other’s) shift.12 While he was distributing leaflets and talking to some employees,
Placencio spotted Managers Brian Biggs and Dawn Reh standing outside under the
cover (awning), about 15 feet away. They were “just standing there,” according to
Placencio, not speaking on their cell phones or doing anything else. He asked them if
they wanted a flyer, but they laughed and declined, and then returned back inside the 5
facility. According to Placencio, the whole encounter lasted 1 to 3 minutes.

Biggs testified that sometime in November, just before he was scheduled to
start “rounding” with Reh, when he received 2 phone calls from charge nurses
complaining that people in uniforms were passing out flyers outside the administrative 10
entrance near the chapel. He reported these phone calls to Reh when she converged
with him before the start of their rounding, and told her that they needed to check this
out. Biggs and Reh proceeded to look out of a window that was near the entrance in
question, but could not see anything, since it was dark outside. Biggs then walked out
the north entrance, while Reh stayed inside, and he approached a group of about 4–5 15
staffers in uniform, who were standing about 20 feet from the entrance (door) to the
facility. According to Biggs, he told this group that he had received complaints that
they were delaying staff coming in, and told them not to do that. He also asked them if
they were “on shift,” and they replied that they were not.13 He then started walking
back to go inside the facility, when he heard a male voice asking if he wanted to know 20
anything about the Union, and offering him a flyer. Biggs declined, and went back
inside, where he encountered Reh, and they went on to do their rounding. According
to Biggs, the entire encounter with the staffers in the parking lot lasted about 20
seconds.
25
Reh offered a very similar account as Biggs, testifying that Biggs reported to
her that charge nurses had phoned him to complain that staffers were uncomfortable
about the activities of individuals distributing leaflets outside. She confirmed that she
and Biggs went to look out of a window near the entrance, but could not see anything,
and confirmed Biggs’ testimony that she stayed inside the building while Biggs went 30
outside to check out what was occurring. According to Reh, Biggs returned back
inside after about 2 minutes, and reported to her that the staffers outside were
distributing union flyers. Biggs told her this was “OK,” so long as they were off duty,
which he confirmed they were. She and Biggs then went ahead and started their
rounding, as had been planned. 35

As reflected above, the account of Placencio regarding this incident differs
somewhat from that proffered by Biggs and Reh. The main difference in their
accounts is that Placencio placed Reh outside with Biggs, while both Biggs and Reh
testified that she stayed inside at all times, never venturing outside. Additionally, in 40
Placencio’s version, neither Biggs nor Reh engaged in conversation with the

12 Placencio testified that there still was some remaining sunlight at the time, although it was beginning to get dark,
which cannot be accurate. In that regard, I take judicial notice that in the month of November the sun sets around
5:30 p.m., so by 7 pm, when the leafletting started, it should have been fully dark. I do note, however, that
Placencio also testified that the facility’s parking lot is well illuminated.
13 According to Biggs, this occurred around 7 p.m., which is when the shifts change.
JD(SF)-09-20
8

employees distributing the union flyers, whereas Biggs admitted he had a brief
conversation with these employees. Finally, both Placencio and Reh testified that
Biggs’ encounter with the employees lasted anywhere from 1 to 3 minutes, whereas
Biggs testified that it lasted about 20 seconds.
5
For the reasons that I will discuss below, I conclude that I need not resolve
these differences in testimony or make credibility resolutions in that regard, because
ultimately these differences will be immaterial in applying the legal analysis of
whether unlawful surveillance took place, as alleged in the complaint. Nonetheless, I
will note that Placencio’s and Reh’s estimate that this encounter lasted about 1 to 3 10
minutes is a far more realistic and reliable estimate than Biggs’ estimate of 20 seconds,
given what transpired, and my legal analysis will thus presume Placencio’s and Reh’s
estimate to be accurate.

4. The alleged change in Placencio’s working conditions from October (2018) 15
to January 2019

As briefly described above, Placencio works as an ED tech, which involves
working in different capacities or areas within the department. As described above,
these areas, which involve different duties and responsibilities, are the “Triage” area, 20
also referred to as the “intake” area or “PCT Screening;” “HUC;” the “ Psychiatric
Sitter” assignment; and the “floor zones,” which are the red, yellow, and green zones.
Kimball testified that the daily assignments to work in one of these areas are made by
the charge nurses, and that these assignments are to be rotated among the techs, to the
extent charge nurses are able to do so. 25

Placencio testified that normally, he was assigned to the “Triage” position, a
position he considers more onerous than his other assignments, very “seldom,” or
about 1 to 3 times per month. After he sent out his group email on October 3
announcing his involvement in the union organizing, Placencio asserted that he was 30
“disproportionally” assigned to the Triage position. He thus testified that after his
email, and thru December, he was assigned to this position from 30 percent to 50
percent of the time.14 In answer to my questioning as to why he considered the Triage
assignment more onerous than other ED tech duties, Placencio testified that in Triage
he had to receive incoming patients and take them to their rooms. According to 35
Placencio, this meant that he had to walk about twice the normal distance(s) that he

14 Initially, Placencio testified that he was assigned 2–3 times a month to this position, but then testified that it was
about once per month. (Tr. 127–129). As discussed below, however, this assessment is not supported by
documentary evidence introduced by the General Counsel. Indeed, the documents in evidence shows Placencio’s
testimony that he was assigned to Triage up to 50 percent of the time during the 3–4 month period in question to be
a significant exaggeration, which diminishes his credibility. Additionally, I would note, Placencio testified that
when he complained to Kimball in January 2019 that he had been unfairly assigned to Triage more often, Kimball
checked the assignment sheets and agreed with him. Kimball, on the other hand, testified the opposite, that her
review of the assignment sheets did not reveal a disproportionate number of Triage assignments. I credit Kimball’s
testimony in that regard, because as discussed below, the assignment sheets do not support Placencio’s testimony.
JD(SF)-09-20
9

would otherwise.15 Additionally, this duty includes interviewing the intake patients in
detail, and on occasion, assisting non-ambulatory patients by physically lifting them in
or out of their wheelchairs or beds. According to Placencio, these duties, which
involve “tons of different patients that come through the door,” make the Triage job
more emotionally draining. 5

Besides the above-described testimony by Placencio, the General Counsel, in
support of its allegation that Placencio was disproportionally—and discriminatorily—
assigned additional Triage duty, introduced into evidence a very voluminous exhibit
comprised of over 2 years of daily assignment sheets for the ED, produced by 10
Respondent under subpoena.16 Notably, the General Counsel, apparently confident
that the voluminous exhibit would support its allegation of discriminatory or
retaliatory conduct toward Placencio, asked no questions of any witness regarding the
contents of these documents, but simply introduced them into evidence, apparently
choosing to save its “coupe de grace” argument for its post-hearing brief. In its brief, 15
however, this argument consisted of only one sentence, thus summarizing the contents
of this 4000+ page exhibit: “Although, between January 2017 and September 2018,
Placencio was assigned to the triage position for an average of 3.4 shifts per month, he
was assigned 5 triage shifts in October 2018, 5 in November 2018, and 6 in
December 2018.” 17 20

15 Thus, Placencio testified that he wears a “Garmin” GPS tracker, which measures the number of steps he takes on a
given day. On a normal day, Placencio testified, he typically walks 7 to 8 thousand steps during the course of his
shift, whereas on Triage duty it is double that amount. (Tr. 131–133).
16 The exhibit, GC Exh. 14, consists of 34 separate electronic files consisting of approximately 4400 pages, covering
the period from January 2017 through July 2019.
17 Unfortunately, this practice of the wholesale and automatic introduction of vast amounts of records produced
under subpoena, sight unseen and no questions asked—what I refer to as a “document dump”—appears to be a
growing and unwelcome practice by the General Counsel. There are significant and often fatal problems with this
approach. First, given the General Counsel’s burden of proof, any lack of clarity, any ambiguity, any entries
difficult to read or decipher, any lack of obvious relevance, will be held against the General Counsel. Introducing
these records, without first carefully analyzing them, is the football equivalent of throwing a “Hail Mary” pass
without first ascertaining if there are any receivers downfield. As a representative of the government, the General
Counsel has an obligation to be fair and impartial, and to make certain that the records clearly support its case—
before such documents are introduced. This, of course, would likely require some old fashioned hard and speedy
work by the General Counsel after receipt of the documents, i.e., the proverbial “burning of the midnight oil” on the
first or subsequent days of the trial, in order to properly analyze the evidence before it is introduced. This effort
could result in having to call, or re-call, witnesses to the stand, and might necessitate asking the judge for additional
time or even for a short postponement if necessary. In this scenario, it is the General Counsel’s obligation and duty,
should the evidence negate or contradict its allegations, to bring it to the attention of the Regional Director and
ultimately the judge, and to move to dismiss the allegations if the documents fail to support the allegations in the
complaint. As of late, with its “document dump” practice, the General Counsel appears to be relegating this task to
the judges, as if saying “we have no idea at this time if the vast number of documents we are introducing actually
support our case, and we don’t have the time or inclination to make such assessment, but we will hope for the best,
make our best argument in our brief, and let the judge decide.” Given the General Counsel’s burden of proof and
obligation to fairness and impartiality, this is simply the wrong approach to prosecuting unfair labor practice cases.
While the General Counsel must give its charging party witnesses the benefit of the doubt, once it has in its
possession records that may support or contradict their allegations, it must examine them thoroughly, and not blindly
introduce these records into evidence hoping for the best. In this instance, I erred in allowing the General Counsel
to do just that. In the future, I give General Counsel notice, I will not allow for the introduction of such documents
on a wholesale basis, as it only unnecessarily burdens the record.
JD(SF)-09-20
10

The problem with this exceedingly short summary of an argument, given the
amount of evidence introduced, is that it is highly misleading, because it focuses on a
very narrow statistic that fails to take many factors—and a broader picture—into
account, and thus discounts and ignores exculpatory evidence that undermines its 5
theory. In so doing, the General Counsel falls very short of meeting its burden to
establish a violation by the preponderance of the evidence. For example, while it may
be true that the “average” number of Triage assignments for Placencio between
January 2017 and September 2018, before he came out as a union supporter, was 3.4
times per month, the records show that during the same time period he was sometimes 10
assigned to Triage as much as 6 times per month.18 Indeed, at other times, Placencio
was assigned to Triage 4 to 5 times per month, certainly more often that the 1 to 3
times a month he claimed. Additionally, the record shows that other ED techs
sometimes worked as often as 7 to 9 times per month in Triage, significantly more
often that the 5–6 times per month which the General Counsel claims was 15
discriminatory and disproportionate in the case of Placencio.19 Moreover, by selecting
a very narrow time frame—the months of October, November, and December alone—
to argue that Placencio was disproportionally being assigned to Triage more than
during his “average” of the previous 20-month period, the General Counsel
mathematically skews the results in its favor. It is likely that Placencio’s “average” 20
would be about the same if the 3 months in question were made part of and included in
the 20-month group from which the average was derived. In any event, it is the
General Counsel’s burden to show otherwise, but it failed to do that in its very
limited—and significantly flawed and skewed—analysis.
25
In sum, the facts simply do not support the allegation that Placencio’s Triage
duty was significantly increased during the period in question.

5. Respondent’s alleged imposition of more onerous work conditions by instructing
Placencio to complete check-off lists 30

The General Counsel alleges that beginning about November 15, Respondent
repeatedly instructed Placencio to complete check-off lists, therefore imposing more
onerous working conditions on him, because of his protected activity.20 The facts are
as follows: 35

It is undisputed that on November 15 Respondent introduced check-off lists for
ED techs working at the HUC positions to complete whenever possible. According to
the testimony of both Kimball and Reh, these lists were introduced at a meeting held in
November, in response to a survey of employees, some of whom had expressed 40

18 For example, in September 2018.
19 These employees include Andrew, Jenna, Kim, and Lucas (all first names, as they appear on the timesheets).
Other ED techs often worked in Triage 6 times a month. Thus, as discussed below, it is difficult to imagine in these
circumstances how Placencio was being singled out unfairly for this duty when in fact others were assigned this
allegedly more onerous duty more often.
20 Complaint paragraph 6(a).
JD(SF)-09-20
11

concern that techs working in prior shifts were not completing all their duties during
their shifts. According to Kimball and Reh, the lists were a way to standardize
practices and provide consistency and guidance to techs regarding their duties, none of
which were new.21 It was not mandatory for the techs to fill out the check-off lists,
which they were expected to do when they had some “down time” while working at the 5
HUC desk, and the lists were not used for evaluations. There is no evidence or any
allegation that any tech, including Placencio, was ever disciplined or reprimanded for
failing to fill out the check-off list.

Placencio testified that on six (6) to ten (10) occasions, Kimball told him to fill 10
out the checkoff lists, and further testified that other techs only “sporadically” filled
them out. The completed lists were kept in a binder at the HUC desk, and were thus
accessible to anyone who wanted to see them. Kimball, who did not contradict or deny
Placencio’s testimony that she had repeatedly asked him to fill out the lists, testified
that she encouraged other techs (besides Placencio) to fill out the check-off lists.22 15
Accordingly, I credit Placencio’s testimony in that regard, and find that he was asked
by Kimball on 6 to 10 occasions to fill out the check-off lists. Whether such conduct
amounts to a violation of the Act will be discussed below.23

6. The allegation regarding Respondent’s conduct on or about February 7, 2019 20

It is undisputed that Kimball met with Placencio in her office on February 7,
2019, along with Brian Biggs.24 According to Placencio, after initially discussing an
entry that Placencio had made in one of the check-off lists (as briefly described above),
the topic turned to things that Placencio had allegedly been telling—or discussing 25
with—other employees. Placencio testified that Kimball told him that other employees
had reported that Placencio was spreading rumors that they should “watch their backs”
because Respondent was going to eliminate (do away with) the ER tech positions.
Placencio denied doing so, saying that he did not know where this was coming from,
but admitting that people had been coming to him with concerns. Additionally, 30
Placencio testified that Kimball told him there is a lot of “whispering” going on in the
nurses station, that if he needed to whisper something, that should be done in the
breakroom, adding that Kimball stated that she had overheard him talking on the phone

21 A copy of the check-off list was introduced as GC Exh. 10.
22 Respondent introduced copies of all the check-off lists filled out between December 19 (2018) and July 16, 2019
(R Exh. 5). This record indicated that Placencio filled out 12 check-off lists during this time period. At least 2 other
employees, however, appear to have completed the lists more often, an employee whose initials are “JCH,” who
completed 19 lists, and another whose initials are “NB,” who completed 14. The record is silent as to whether these
were among the other employees whom Kimball testified she had encouraged to fill out these lists. Although
Placencio testified that he never witnessed Kimball tell any other tech to fill out the checklists, this testimony is
devoid of relevance or significance—unless Placencio could assert that he was always present any time Kimball
spoke to any other tech, something that is simply not possible.
23 Placencio also testified that he was “accused” by Kimball, during a meeting with her in February 2019, of
providing false information in one of the check-off lists that he had submitted (Tr. 146). Kimball, on her part,
testified that she noted that Placencio had indicated in one of the check-off lists that he had performed an
“Accucheck” that had in fact not been performed, and brought it to Placencio’s attention. I would note, however,
that this incident is not alleged in the complaint as a violation, as thus it merits no further discussion.
24 As described earlier, Biggs is Respondent’s Director of Medical-Surgical floors.
JD(SF)-09-20
12

in one of the stations, and that the conversation was not work-related. Finally,
Placencio testified that Kimball asked him who was coming to him with concerns, and
what the concerns were about—and told him that he and others should come to her if
they had concerns. With regard to Briggs, Placencio testified that he asked Placencio
if he felt comfortable telling people to come to “Dawn” (referring to either Kimball or 5
Reh), and that he replied that he had in fact done that.

For her part, Kimball testified, regarding the February 7 meeting, that she held
this meeting with Placencio, among other reasons, to discuss a “rumor” that he had
been telling other employees that the ER tech positions were going to be eliminated. 10
She testified that she asked him if he had any questions because others were reporting
that he was saying this, and he should come to her to get his facts—and to tell others to
do the same if they had any concerns or questions. Briggs did not testify about this
meeting.
15
In addition to presenting Placencio’s testimony about the February 7 meeting,
the General Counsel also introduced into evidence Placencio’s contemporaneous notes
that he took during the meeting (GC. Exh. 12). While these notes generally support
and confirm Placencio’s testimony about what occurred, the notes contain many more
details that help provide context to some of the statements made—and also reveal 20
some additional statements Placencio made which were not included in his testimony.
For example, the notes reflect after Kimball told Placencio that some of his peers were
reporting that he was telling them to “watch out” because Respondent was “doing
away” with the tech positions, Kimball said “You need to come to me. I don’t want
people afraid. Cohesive. I want to clear it up.” The notes also reflect that Placencio 25
told Kimball that his coworkers were asking “why are we not being scheduled and why
we are being made to stay home.”25 Additionally, with regard to the testimony about
Kimball telling Placencio about not “whispering,” the notes reflect that Kimball said
the following: “I want to make sure people aren’t spreading rumors to create
animosity. There is a lot of whispering going on. People are uncomfortable. These 30
convos need to be done in the breakroom.”

Accordingly, while I generally credit Placencio’s testimony, I conclude that to
the extent his notes amplify the nature of the conversation, or clarify the context of
what was said, I give the notes more weight, since they were taken contemporaneously 35
with the events in question.26

25 Such statement, if accurate, reflects that techs had concerns about not getting scheduled, which makes it more
likely that a rumor was floating that Respondent was planning to do away with their position—something that
Placencio was accused of doing, which he denied. Indeed, although Placencio denied spreading such rumors, I
credit Kimball’s testimony that she had received such reports from other employees, and conclude this is the reason
she brought the subject up. I do not imply that Placencio was in fact spreading these rumors, but conclude that
Kimball had a good faith reason to believe that he—or someone else—was doing so.
26 The General Counsel offered Placencio’s notes under FRE 803(1) (Present Sense Impression), and I admitted
them under such rule. In retrospect, this was an error on my part. FRE 803(1) is normally used to admit a statement
or utterance verbally made by a person (usually not on the witness stand), rather than to admit the recorded notes of
the person who is actually testifying. In order to admit the latter, the proper rule is FRE 805 (Recorded
Recollection). The catch under FRE 805, however, is that it is used when the witness—who recorded the matter by
JD(SF)-09-20
13

IV. ANALYSIS

A. The Allegation of Creating the Impression of Surveillance on August 2827

As discussed in the Facts section, I credited Placencio’s testimony that on August 28, 5
during a staff meeting, Kimball, who spoke about the Union, pointed at Placencio and stated that
she knew the Union had contacted him. I note that this occurred long before Placencio publicly
“outed” himself as a union supporter, which he did on October 3, when he sent out an email to
the medical center’s staff. The General Counsel alleges and argues that Kimball’s conduct
unlawfully created the impression that Placencio’s protected activity was being monitored. In so 10
doing, it argues that although Kimball had learned of Placencio’s union activity through a video
it had received from a colleague, she did not point this out but rather left Placencio to wonder
how she knew, thus leading to the reasonable conclusion that his activities were being monitored.
Respondent, on the other hand, argues that Kimball’s alleged act of pointing at Placencio was at
best a vague gesture, and that Placencio’s “subjective” belief of being singled out could not 15
reasonably have created the impression that Respondent was engaged in unlawful surveillance.
For the following reasons, I conclude that the General Counsel has the better argument, and that
Respondent’s conduct violated Section 8(a)(1) of the Act.

The test of whether an employer has unlawfully created the impression of surveillance is 20
an objective one, that is, whether under all the circumstances an employee could reasonably
conclude from the statement or conduct in question that his/her protected activities had been
placed under surveillance. Bridgestone Firestone South Carolina, 350 NLRB 526, 527 (2007),
quoting Flexsteel Industries, 311 NLRB 257, 257 (1993).28 Thus, when an employer tells
employees that it is aware of their protected activities, but fails to identify the source of this 25
information, an unlawful impression of surveillance is created because employees could
reasonably surmise that employer monitoring has occurred. Conley Trucking, 349 NLRB 308,
315 (2007). In this instance, I credited Placencio’s testimony that Kimball directly pointed at
him and stated that she knew he had been contacted by the Union. Contrary to Respondent’s
argument that this gesture was somehow vague and that Placencio’s reaction to that conduct was 30
“subjective,” I conclude that any reasonable employee under the circumstances would have
concluded that he/she was being singled out and that his/her protected activities was being
monitored. This is particularly true since Kimball did not identify the source of her knowledge,
and any employee in such circumstances could reasonably assume that surveillance was the
source. Accordingly, I conclude that Respondent violated Section 8(a)(1) of the Act in this 35
instance.

taking the notes—cannot recall the events, and must therefore rely on the notes to refresh his/her memory. The rule
provides, however, that if admitted, the record (i.e., the notes) may be read into evidence, but may be received as an
exhibit only if offered by an adverse party, in this case, Respondent. In other words, the witnesses’ own notes
cannot be admitted to buttress his/her own testimony, unless that witness cannot recall the events in question—
which was not the case with Placencio. Nonetheless, given the fact that under the Board’s practice, the rules of
evidence need not be rigidly followed, this error is harmless. Indeed, inasmuch the notes provide context that may
be beneficial to Respondent’s case, I can assume that Respondent will no longer object to their admission, and may
actually wish it had offered them instead.
27 Complaint ¶ 5(a).
28 See, also, Consolidated Communications of Texas Company, 366 NLRB No. 172, slip op. at 1 fn. 1 (2018), citing
these cases.
JD(SF)-09-20
14

B. The Allegation of Unlawful Interrogation on September 2729

As described in the Facts Section, I found that on September 27, while rounding with
Kimball, Harrison asked Placencio if he had heard about the Union, and when Placencio denied 5
knowing much about it, repeatedly asked him whether he was known as “JP,” whom the
employees in the Respiratory Department (where Harrison was the manager) had reported was
the culprit in the union organizing effort. The General Counsel alleges this was an unlawful
interrogation, while Respondent argues that there was no unlawful interrogation. I agree with the
General Counsel. 10

In determining whether an unlawful interrogation has occurred, the Board looks at
whether under all the circumstances, the interrogation reasonably tends to restrain, coerce or
interfere with the rights guaranteed by the Act. Relevant factors in that determination include:
the nature of the information sought; the identity of the questioner; the place and method of the 15
questioning; and the truthfulness of the employee’s reply to the questioning. Rossmore House,
269 NLRB 1176,1177–1178 (1984), citing Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964);
Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985); Medcare Associates, Inc., 330 NLRB
935, 939 (2000). In this instance, I note that the interrogation was conducted by Harrison, in the
presence of Kimball, both high-level managers for Respondent, and in the case of Kimball, 20
Placencio’s department head. Harrison repeatedly sought Placencio to admit his complicity, if
not guilt, about spearheading the union organizing campaign, something that Placencio falsely
denied—a clear indication of his concern about the consequences if he revealed the truth.30
Although the interrogation took place at Placencio’s workstation (at the HUC desk), as opposed
to a supervisor’s office, I find that this less formal location did not diminish the coercive impact 25
of the interrogation, given the totality of the circumstances. In that regard I note that Harrison
engaged in insistent and repetitive pressing of Placencio to admit his complicity in the Union
organizing campaign, in the presence of his department head. I conclude that any employee in
Placencio’s shoes would have reasonably felt coerced under the circumstances, and therefore I
find that Respondent violated Section 8(a)(1) as alleged in the complaint. 30

C. The Allegation that Respondent Engaged in Surveillance in November 201831

As discussed in the Facts Section, it is undisputed that sometime in November 2018, the
exact date unknown, Brian Biggs left the building and went to the parking lot at the north 35
entrance of the facility, and briefly engaged in conversation with employees who were
distributing union leaflets. I concluded, based on the credited testimony of Placencio and Reh,
that this encounter lasted from 1 to 3 minutes, and that Biggs then returned inside the building.32
Additionally, I note that Biggs admitted engaging the employees distributing flyers in
conversation, asking them if they were “on shift” (that is, on working time), whereas in 40

29 Complaint ¶ 5(b).
30 I note that by this time, Respondent had issued numerous communiques to its employees, through its “Let’s Talk”
newsletters and e-mails, indicating its vigorous opposition to the Union.
31 Complaint ¶ 5(c).
32 As noted in the Facts section, Placencio also testified that Reh also went outside along with Biggs, which both
Biggs and Reh denied. For the reasons discussed below, I conclude I need not resolve this discrepancy, since Reh’s
presence outside will make no difference to the legal conclusion ultimately reached.
JD(SF)-09-20
15

Placencio’s version, Biggs did not address the employees, a different version that I conclude is
ultimately irrelevant. The General Counsel alleges that by walking outside at “watching” the
employees distribute union leaflets, albeit for only less than 3 minutes, Respondent engaged in
unlawful surveillance. As would be expected, Respondent begs to differ. This time, I conclude
Respondent is correct. 5

It is well-settled that where employees are conducting their (union or protected) activities
openly on or near company premises, open observation of those activities by an employer is not
unlawful. Roadway Package System, Inc., 302 NLRB 961, 961 (1991); Wal-Mart Stores, 350
NLRB 879, 883 (2007); Metal Industries, Inc., 251 NLRB 1523 (1980). In other words, 10
employers need not avert their eyes nor wear blinders where employees are openly and publicly
engaging in protected activity on the employers’ premises. I note that in this case, the employees
were openly and publicly distributing union literature at the employer’s parking lot, and that the
alleged observation by Briggs (and perhaps Reh) was neither prolonged (less than 3 minutes) nor
repeated.33 Nor was there anything coercive in Briggs’ asking the employees if they were off the 15
clock, since the employer can lawfully restrict protected activity of this nature to nonworking
time. Indeed, the exchange appears to have been polite, with the employees even offering Biggs
some union literature. In these circumstances, I do not see how this conduct could be found to be
unlawful, and therefore conclude that this allegation should be dismissed.
20
D. The Allegations Stemming from the Meeting on February 7, 2019

The complaint alleges that on February 7, 2019, during a meeting with Placencio,
Kimball directed him not to discuss working conditions with other employees at the
workstation(s); directed Placencio (and other employees) to send any questions to her; 25
interrogated Placencio about his protected activities and those of others; and created the
impression of surveillance by telling Placencio that she knew about his protected activities.34

As described above in the Facts section, during the February 7 meeting, Kimball
informed Placencio that she had received reports from other employees that he was spreading 30
rumors that Respondent was about to do away with the ED tech positions—something Placencio
denied, although he admitted that people were asking why they weren’t being scheduled.
Placencio’s contemporaneous notes of the meeting, which I have found to be the most accurate
rendition of what occurred, indicate that Kimball said “You need to come to me. I don’t want
people afraid…I want to clear it up.” In this context, Kimball asked Placencio who was coming 35
to him with concerns, told him to tell them instead to come to her, and also said “I want to make
people aren’t spreading rumors to create animosity. There is a lot of whispering going on.
People are uncomfortable. These convos need to be done in the breakroom.”

33 The General Counsel, in an apparent desperate attempt to bolster its weak case, argues in its brief that while
Placencio testified that he only saw Respondent’s representatives in the parking lot for 1 to 3 minutes, “they could
have been there for some time,” and then—displaying considerable chutzpah—argues that this imagined “sustained
presence” was coercive. “Could have been,” however, is not good enough, given the General Counsel’s burden of
proof. As the old saying goes, “if my grandmother had wheels she’d be a bicycle,” but it is ultimately General
Counsel’s burden to prove bicycle status. It is therefore not surprising that the General Counsel cited no cases in
support of its contention that Respondent’s conduct in this instance was unlawful.
34 Complaint ¶ ¶ 5(d)(1); (2); (3); and (4), respectively.
JD(SF)-09-20
16

Thus, in analyzing the statements made by Kimball, as described above, the context in
which these statements were made is crucial, as the Board never applies the test as to whether a
statement is coercive in a rigid or mechanical manner. The facts, and credited testimony,
indicate that Kimball had received reports from other employees that Placencio was spreading
rumors that the ED tech positions were going to be eliminated, thus prompting Kimball’s 5
statements to Placencio. I can find no authority or discern any logic for the proposition that
spreading false rumors—particularly rumors of such significant consequences, the loss of many
jobs—is automatically protected activity, nor is it reasonable to conclude that even if that activity
was somehow protected employers would be defenseless to stop such rumors or prevent their
further spread. In these circumstances, and given such context, I find that Kimball’s words to 10
Placencio to come to her—and tell others to come to her—for clarification, rather than keep
spreading information that was false and causing consternation, cannot be found to be coercive
and thus unlawful. I find that it would not be reasonable, in this context, to interpret Kimball’s
words as a directive to stop engaging in all “protected” activity, rather than what it actually was:
a directive to stop spreading false or misleading information. Likewise, Kimball’s statement 15
about “whispering” in the workstations should be viewed through the same contextual lens.
Indeed, it is notable that Kimball told Placencio not that such “whispering” should never take
place, but rather that such discussions should take place in the breakroom, not in a workstation.
The General Counsel, in an over-reaching analysis, would have me conclude that (a)
“whispering” necessarily referred to union or protected activity, rather than spreading false 20
rumors, and (b) that prohibiting such activity in a workstation, during working time, is unlawful.
Even if I were to make a leap of faith and assume that (a) is correct, since when is prohibiting
union activity during working time unlawful, particularly since there is no evidence that the
employer permits discussions of other nonwork related topics during working time?35 The
simple answer is that such analysis by the General Counsel is deeply flawed. Respondent was 25
within its rights, even assuming that the “whispering” referred to union or other protected
activity, to direct that such activity take place in the breakroom, during nonworking time. This is
particularly true in the context of a healthcare facility, where stricter restrictions on engaging in
union activity in patient-care areas are applicable. See, e.g., Casa San Miguel, 320 NLRB 534,
540 (1995); Mesa Vista Hosp., 280 NLRB 298, 299 (1986). 30

In the above context, I conclude that when Kimball asked Placencio about who was
coming to him with concerns—after Placencio had denied spreading rumors about the
elimination of tech positions, but after admitting that others were raising questions about why
they were not being scheduled—she was not engaged in a coercive interrogation about protected 35
activities, but rather trying to stop a false rumor about the elimination of tech positions.
Similarly, by telling Placencio that other employees had reported that he was spreading rumors
about the elimination of tech positions, Kimball did not create the impression that Respondent
was engaged in surveillance. Indeed, the very use of the words that others have reported the
activity in question, legally and logically forecloses the suspicion that the source of the 40
information is the employers’ surveillance, and thus no reasonable employee could come to that
conclusion. See, e.g., Bridgestone Firestone South Carolina, 350 NLRB 526, 527 (2007); North

35 To establish a violation, the General Counsel would not only have to establish that union-related conversations
during working time were prohibited, but that other nonwork related conversations were routinely tolerated during
working time. No such evidence exits, and it would be improper to presume such, reasonable as such presumption
might be.
JD(SF)-09-20
17

Hills Office Services, 346 NLRB 1099, 1104 (2006); Conley Trucking, supra. (failure to disclose
the source of the information is the key to creating the impression of surveillance).

Accordingly, and for the reasons discussed above, I conclude that Respondent did not
violate the Act as alleged in paragraph 5(d) (1) through (4) of the complaint, and that such 5
allegations should be dismissed.

E. The Allegations that Respondent Discriminated Against Placencio by Imposing More
Onerous Working Conditions on Him
10
The complaint alleges that Respondent violated Section 8(a)(1), (3) and (4) of the Act by
repeatedly instructing him to complete daily check off lists, and by disproportionately assigning
him more often to the Triage area.36 The General Counsel alleges that Respondent engaged in
this conduct because Placencio engaged in union activities and/or because he filed charges or
gave testimony in Board proceedings. Citing Wright Line, 251 NLRB 1083 (1980), enfd. 662 15
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the General Counsel asserts that it has
met its initial burden to prove, by preponderance of the evidence, that Placencio engaged in
protected activity, that the employer knew about it, that the employer had animus resulting from
such protected activity, and the adverse employment action at issue was motivated, at least in
part, by such animus. If the General Counsel is able to make such a showing, the burden of 20
persuasion shifts to the employer “to demonstrate that the same action would have taken place
even in the absence of the protected conduct.” Wright Line, supra at 1089; see also Manno
Electric, 321 NLRB 278, 280 fn. 12 (1996). The employer cannot carry this burden merely by
showing that it also had a legitimate reason for the action, but must persuade, by a preponderance
of the evidence, that the action would have taken place absent the protected activity. Dentech 25
Corp., 294 NLRB 924, 956 (1989).37

I disagree with the General Counsel that it has met its initial burden under Wright Line,
for the following reasons. It is clear that Placencio was engaged in protected activity—indeed he
was one of the main union organizers. It is also clear that Respondent was aware, as of early 30
August 2018, that Placencio was engaged in union activity, as Kimball admitted receiving a
video showing Placencio engaged in such activity. Additionally, the evidence suggests that
Respondent harbored animus toward Placencio because of his protected activity, as indicated by
Harrison’s coercive interrogation. The evidence fails to show, however, that Respondent took an
adverse employment action against Placencio, and this factor fatally undermines the General 35
Counsel’s case.

With regard to the allegation that Placencio was directed to fill out the check-off lists on
six (6) to ten (10) occasions, as he testified, it is truly mystifying as to how such directive was
onerous or, more importantly, resulted in an adverse employment action, as required under the 40
Wright Line analysis. Onerous, the term used in the complaint, is defined as oppressively
burdensome, something that is difficult to conceive would fit the description of occasionally—
even repeatedly—being reminded to fill out a1-page check list, something that other employees
did even more often than Placencio. More importantly, in order to constitute an “adverse

36 Complaint ¶ ¶ 6(a) & (b); 7; and 8, respectively.
37 The same analysis is applicable to Section 8(a)(1) (4) violations.
JD(SF)-09-20
18

employment action,” General Counsel would need to show that the employer did something that
harmed the employee. Newcor Bay City Division, 351 NLRB 1034. 1037 (2007). I note that
Placencio, who obviously often ignored Kimball’s repeated requests to fill out the check-off lists
(hence the repeated requests), was not disciplined, nor even received a warning of any kind for
his failure to do so. Accordingly, I fail to see how Placencio was harmed by Kimball’s requests 5
(or “directives,” as the General Counsel calls them), or how an adverse employment action
resulted. In light of this, I find no merit to the allegation, and recommend that it be dismissed.

With regard to the allegation that Respondent disproportionally assigned Placencio more
often to the Triage position, the evidence also fails to show that an adverse employment action 10
took place, albeit for a slightly different reason. Thus, it might be argued that the Triage position
was more onerous than other assignments that techs were tasked with, because it involves more
rigorous, fast-paced, and physically demanding work than the other assignments. If so, to the
extent that General Counsel could show that Placencio’s assignments to that position
significantly increased during the relevant time period, a valid argument might exist that an 15
adverse employment action took place. Nonetheless, even assuming the Triage assignment was
indeed a more onerous one—something that is far from clear—the evidence failed to show that
Placencio’s assignment to that role increased in frequency in any appreciable manner during the
time period in question. Thus, as thoroughly discussed in the Facts section, the allegation by
General Counsel that the number of Triage assignments during the 4-month period in question 20
was higher than the average of the preceding 20-month period is supported by neither the
evidence nor the math. Not only is the statistical evidence used by the General Counsel highly
misleading, and indeed skewed, with the average cited being totally dependent on the time
period chosen for the statistical analysis, but the actual evidence shows that in other time periods
Placencio had worked the Triage position just as often than during the suspect 4-month period 25
alleged in the complaint.38 Moreover, the evidence also shows that several other employees
were assigned to Triage far more often than Placencio. Thus, contrary to what is alleged by the
General Counsel, the evidence fails to show that Placencio was disproportionally assigned to
Triage—because he was not assigned to that task significantly more than he had been in prior
occasions, and because other employees were in fact assigned to that task more often.39 In light 30
of the above, I conclude that the General Counsel has not met its Wright Line burden under to
establish that Placencio suffered an adverse employment action. Accordingly, I recommend that
this allegation be dismissed.

35

38 Thus, it is not surprising that the large number of documents introduced by the General Counsel ostensibly to
support this allegation merited nothing more than a single sentence in its posthearing brief summarizing its supposed
findings.
39 Even if an argument could be made that Placencio was in fact assigned to the task more somewhat often following
his protected activity than in the past—something the evidence does not support—the increase in question would
likely not be significant enough to be truly characterized as an adverse employment action. Moreover, there is an
additional and potentially fatal flaw in the General Counsel’s allegations in this regard. The evidence clearly
established that Charge Nurses were exclusively responsible for making the daily assignments for ED techs, yet the
General Counsel never alleged them to be Section 2(11) supervisors or Section 2(13) agents of Respondent—as they
likely were. Indeed, the record suggests that Kimball was not even aware of the daily assignment issue until
Placencio complained about it in January 2019, at which time she proceeded to check these assignments and
concluded that Placencio’s allegation lacked merit. In light of my findings above, however, this omission by the
General Counsel is ultimately irrelevant.
JD(SF)-09-20
19

CONCLUSIONS OF LAW

1. Dignity Health d/b/a Mercy Gilbert Medical Center (Respondent) is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
5
2. Service Employees International Union-United Healthcare Workers West (the Union)
is a labor organization within the meaning of Section 2(5) of the Act.

3. By creating the impression that its employees’ union activities were under
surveillance, and by interrogating an employee about his union activities, Respondent has 10
interfered with, restrained, and coerced employees in their exercise of their Section 7 rights, in
violation of Section 8(a)(1) of the Act.

4. Respondent did not violate the Act in any other manner alleged in the complaint.
15
REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act. 20

Specifically, having found that Respondent violated Section 8(a)(1) of the Act by
creating the impression that its employees’ union activities were under surveillance, and by
interrogating an employee about his union activities, I shall recommend that Respondent be
ordered to cease and desist from such conduct. Additionally, Respondent will be required to post 25
a notice to employees assuring them that Respondent will not violate their rights in this or any
other related manner in the future. Finally, to the extent that Respondent communicates with its
employees by email or regular mail, it shall also be required to distribute the notice to employees
in that manner, as well as any other means it customarily uses to communicate with employees.
30
Accordingly, based on the forgoing findings of fact and conclusions of law, and on the
entire record, I issue the following recommended40

ORDER
35
Dignity Health d/b/a Mercy Gilbert Medical Center, Gilbert, Arizona, its officers, agents,
successors, and assigns, shall

1. Cease and desist from
40
(a) creating the impression that its employees’ union activities are under surveillance;

(b) interrogating its employees about their union activities;

40 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
JD(SF)-09-20
20

(c) In any like or related manner interfering with, restraining, or coercing employees
in 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. 5

(a) Within 14 days after service by the Region, post at all its facilities in Gilbert,
Arizona, where notices to employees are customarily posted, copies of the attached notice
marked “Appendix.”41 Copies of the notice, on forms provided by the Regional Director for
Region 28, after being signed by the Respondent’s authorized representative, shall be posted by 10
the Respondent and maintained for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. In addition to physical posting of
paper notices, the notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by the 15
Respondent to ensure that the notices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facilities 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 August 28, 2018. 20

(b) Within 21 days after service by the Region, file with the Regional Director for
Region 28, 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.
25
Dated: Washington, D.C. March 19, 2020

Ariel L. Sotolongo 30
Administrative Law Judge

41 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.”

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 benefits and protection
Choose not to engage in any of these protected activities.

In recognition of these rights, we hereby notify employees that:

WE WILL NOT create the impression that our employees’ union activities are under surveillance.

WE WILL NOT interrogate our employees about their union activities.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed by Section 7 of the Act.

DIGNITY HEALTH D/B/A MERCY GILBERT
MEDICAL CENTER
(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
2600 North Central Avenue, Suite 1400 Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.

JD(SF)-09-20

The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-229160 or by
using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive
Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by
calling (202) 273-1940.

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 (602) 416-4755.