Dignity Health d/b/a Mercy Gilbert Medical Center

National Labor Relations Board - Unpublished Board Decisions

Jan 6, 2021

28-CA-229160 (N.L.R.B. Jan. 6, 2021)

370 NLRB No. 67
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Dignity Health d/b/a Mercy Gilbert Medical Center
and Service Employees International Union‒
United Healthcare Workers West. Cases 28‒CA‒
229160 and 28‒CA‒238137
January 6, 2021
DECISION AND ORDER
BY MEMBERS KAPLAN, EMANUEL, AND MCFERRAN
On March 19, 2020, Administrative Law Judge Ariel L.
Sotolongo issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Charging Party
filed an answering brief, and the Respondent filed a reply
brief. The General Counsel filed cross-exceptions and a
supporting brief, the Respondent filed an answering brief,
and the General Counsel filed a reply brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions,2 cross-exceptions, and briefs and
1 In its answering brief, the Respondent argues that the General Coun-
sel’s exceptions, which were filed and served on April 16, 2020, were
untimely because the order transferring this case to the Board issued on
March 18 and provided that exceptions were due, pursuant to Board
rules, 28 days after that date, which was April 15. See Sec. 102.46(a) of
the National Labor Relations Board’s Rules and Regulations. However,
we find that the General Counsel’s exceptions qualify as cross-excep-
tions and, as such, were timely filed under Sec. 102.46(c). Cf. Holly
Manor Nursing Home, 235 NLRB 426, 426 fn. 1 (1978).
2 No party has excepted to the judge’s dismissal of the allegations that
the Respondent discriminated against employee Jon Paul Placencio in
violation of Sec. 8(a)(3), (4), and (1) by imposing more onerous respon-
sibilities on him with respect to duties, check-off lists, and triage assign-
ments.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
In finding that the Respondent unlawfully gave the impression of sur-
veillance when Dawn Kimball, the Respondent’s Emergency Depart-
ment director, pointed at employee Placencio during an August 28, 2018
pre-shift meeting and stated she knew that the Union had contacted him,
the judge correctly observed that Kimball did not identify an independent
source of her knowledge concerning Placencio’s activity that might dis-
pel any impression of surveillance. In affirming this finding, we further
observe that Kimball singled out Placencio and identified him as a union
contact even though he had not yet openly declared his union involve-
ment. Those circumstances further support finding that a reasonable em-
ployee would conclude that the Respondent’s knowledge of his personal
union activity was gained through surveillance, and was not attributable
to mere general awareness of the Union’s organizing efforts. In this re-
spect, Placencio’s mere participation in union meetings also would not
has decided to affirm the judge’s rulings, findings,3 and
conclusions and to adopt the recommended Order as mod-
ified and set forth in full below.4
ORDER
The National Labor Relations Board orders that the Re-
spondent, Dignity Health d/b/a Mercy Gilbert Medical
Center, Gilbert, Arizona, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Creating the impression that its employees’ union
or other protected concerted activities are under surveil-
lance.
(b) Interrogating its employees about their union or
other protected concerted activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Gilbert, Arizona facility copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region 28,
have explained how the Respondent knew about such a specific individ-
ual interaction with the Union.
Because we are adopting the judge’s conclusions that the Respondent
violated Sec. 8(a)(1) by giving the impression of surveillance at the Au-
gust 28, 2018 preshift meeting and by interrogating Placencio during a
September 27, 2018 encounter at a health-unit desk, we find it unneces-
sary to pass on the judge’s dismissal of the allegations that the Respond-
ent unlawfully gave the impression of surveillance and interrogated
Placencio during a February 7, 2019 meeting in Emergency Department
Director Kimball’s office, as finding these additional violations would
not materially affect the remedy.
Contrary to her colleagues, Member McFerran would reverse the
judge’s dismissal of the allegation that, during Kimball’s February 7,
2019 meeting with Placencio, the Respondent unlawfully discouraged
employees from engaging in protected conversations when Kimball ex-
pressed concern about “rumors” and instructed Placencio that employees
should bring concerns about the elimination of tech positions to manage-
ment rather than discuss such matters among themselves. In Member
McFerran’s view, although an employer may possess a legitimate inter-
est in quelling demonstrably false rumors about job loss, the Respond-
ent’s directive here swept far too broadly and inhibited clearly protected
conversations about job loss.
4 We have modified the judge’s recommended Order to conform to
our standard remedial language and in accordance with our recent deci-
sion in Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020). We
shall substitute a new notice to conform to the Order as modified.
5 If the facility involved in these proceedings is open and staffed by a
substantial complement of employees, the notices must be posted within
14 days after service by the Region. If the facility involved in these pro-
ceedings is closed due to the Coronavirus Disease 2019 (COVID-19)
pandemic, the notices must be posted within 14 days after the facility
reopens and a substantial complement of employees have returned to
work, and the notices may not be posted until a substantial complement
of employees have returned to work. Any delay in the physical posting
of paper notices also applies to the electronic distribution of the notice if
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, 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. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
August 28, 2018.
(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 com-
ply.
Dated, Washington, D.C. January 6, 2021
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
______________________________________
Lauren McFerran, Member
(SEAL) 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 vi-
olated Federal labor law and has ordered us to post and
obey this notice.
the Respondent customarily communicates with its employees by elec-
tronic means. If this Order is enforced by a judgment of a United States
court of appeals, the words in the notice reading “Posted by Order of the
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 bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT create the impression that we are engaged
in surveillance of your union or other protected concerted
activities.
WE WILL NOT interrogate you about your union or other
protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
DIGNITY HEALTH D/B/A MERCY GILBERT MEDICAL
CENTER
The Board’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.
Judith E. Davila, Esq., for the General Counsel.
Frederick E. Miner, Esq. (Littler Mendelson, P.C.), for the Re-
spondent 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 sur-
veillance and creating the impression of surveillance, and direct-
ing employees not to discuss working conditions among them-
selves, but instead come to management with their concerns; and
National Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DIGNITY HEALTH D/B/A MERCY GILBERT MEDICAL CENTER 3
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 em-
ployee 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 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
The complaint alleges, and Respondent admits, that at all ma-
terial 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
purchased and received at its Gilbert facility goods valued in ex-
cess 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.
The complaint also alleges, Respondent admits, and I find that
the Union has been, at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. FINDINGS OF FACT
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 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 assis-
tants, and charge nurses) techs, paramedics, and scribes. Dawn
6 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 in-
consequential.
7 All dates hereafter shall refer to calendar year 2018 unless otherwise
indicated.
8 These communications, introduced into the record as General Coun-
sel’s (GC) Exhibit 4 (GC Exh. 4), certainly did not paint the union solic-
itors 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
Kimball is the ED director, who supervises the department. Re-
porting to Kimball is Dawn Reh, the nursing manager, who in
turn supervises the charge nurses. Both Kimball and Reh (some-
times collectively referred to in the record as “the Dawns” be-
cause both are named Dawn) are admitted Section 2(11) super-
visors. Charge nurses direct and assign the work of the “techs,”
which also include paramedics.6 In addition to Kimball and Reh,
other management officials who were involved in events sur-
rounding Placencio and the allegations of the complaint were
Joshua Harrison, Respondent’s East Valley cardio-pulmonary
manager, and 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; 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 treat-
ment and patient attention required.
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.7 Indeed, Kimball admitted that Re-
spondent first received reports of union activity by employees in
July, and also admitted that sometime in August she received a
video from a colleague in another facility showing Placencio en-
gaging in union activity. In the wake of learning that the Union
was conducting organizational activities and contacting its em-
ployees, 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 communi-
cations, inter alia, informed 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.8
B. The Allegations in the Complaint
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.9 Placencio, who attended the
meeting, testified that Kimball stated that the Union was passing
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 pro-
tected under Sec. 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 rel-
evant 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 com-
munications are ultimately relevant.
9 Preshift meetings are regularly held by the ED staff, during which
work-related topics and events of the day are discussed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
out flyers to 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.
Kimball testified that she told those at the August 28 pre-shift
meeting that staff had come to her to complain that union organ-
izers had contacted them at home and were upset. She told them
that Respondent had not provided the Union their personal infor-
mation and explained to them what they could do if they did not
wish to be contacted at home. Kimball did not identify those
who had complained to her, and specifically denied singling an-
yone out as being involved in the union organizing.10
I credit Placencio’s version of events, and specifically his tes-
timony 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 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 meet-
ing.
2. The events of September 27 and October 3.
It is undisputed that on September 27, Kimball and Harrison
were “rounding” in the ED, and spoke to various employees, in-
cluding Placencio.11 What is disputed in this case is what Kim-
ball and Harrison said to Placencio.
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. 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 Har-
rison waited. When the phone call ended, Harrison again 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 re-
sponded that he goes by both names. Harrison then said that it
10 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.
was funny that he hadn’t heard anything about the Union, be-
cause the people in the Respiratory Department were saying that
they were being organized by a “JP” from the ED. According to
Placencio, Harrison 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. Har-
rison 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 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 Respondent’s merit pay program,
and how Respondent was very competitive in Arizona regarding
wages and benefits and stressed that Respondent valued its em-
ployees and can share things with them openly. According to
Kimball, Harrison told Placencio that he had been getting con-
cerns from employees about wages in California, and that no one
could promise employees 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.
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 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 ex-
actly what I stated exactly. But it was to that degree. (Tr. 107)
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.
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 ef-
forts. In the email, Placencio admits that he indeed has been ac-
tively supporting the Union’s organizational drive, something
that he acknowledges he denied when confronted by Kimball and
Harrison, “given the circumstances.” (GC Exh. 5).12
11 “Rounding” is a common term used in the healthcare industry that
is short for “making the rounds,” whether by physicians, nurses, manag-
ers, or others.
12 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
DIGNITY HEALTH D/B/A MERCY GILBERT MEDICAL CENTER 5
Neither Kimball nor Harrison ever responded to Placencio’s
email, in writing or otherwise. Kimball testified that she con-
sulted with Respondent’s HR Department in order to seek guid-
ance on the matter.13 HR’s response was to come up with a series
of “Talking Points,” distributed to all the managers and supervi-
sors, 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 sub-
mitted a formal complaint through “appropriate channels,” and
that publicly “defaming or demeaning any coworker is not con-
sistent with our values.” According to Kimball, she used the
“Talking Points” whenever any employee asked her about
Placencio’s allegations.
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 en-
counter with Kimball and Harrison on this date, including the
sequence of events as 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.14 The rich-
ness of the details provided makes it less likely that it was a fab-
rication, and thus more trustworthy. Second, I note that Harrison,
in his testimony, never specifically deny and indeed never ad-
dressed Placencio’s accusations. While it is true that Harrison’s
testimony preceded Placencio’s, he could have easily been re-
called to the stand, as Kimball was. Third, while Kimball denied
that she or Harrison had asked Placencio anything about his un-
ion activities, she had to be coaxed to include Harrison in her
denials, and thus I do not find such denial very convincing.15 Fi-
nally, I find it curious, indeed odd, than in the face of a very
public accusation by Placencio (in his October 3 email) of coer-
cive and possibly unlawful behavior, neither Kimball nor Harri-
son (or Respondent) ever publicly issued a denial, but rather
stuck to a “script” of talking points prepared by the HR depart-
ment—which never directly addressed the accusation made.
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.
13 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, Harri-
son never specifically addressed Placencio’s testimony in that regard.
14 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, in-
cluding whether he was known as “Jon Paul” or simply “JP;” and the
conversation that immediately followed thereafter in another area regard-
ing EKG techniques.
While this may be a case of “staying on message” gone extreme,
it simply runs 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.
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 employ-
ees in the parking lot near the north entrance of the facility, near
the facility’s chapel.16 According to Placencio, the leafletting
took place between 7:30 p.m. and 9 p.m., after the end of his (and
the other’s) shift.17 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 Placen-
cio, 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 facility. According to Placen-
cio, 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 uni-
forms were passing out flyers outside the administrative 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 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 com-
plaints 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
15 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)
16 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)
17 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 p.m., when the leafletting started, it
should have been fully dark. I do note, however, that Placencio also tes-
tified that the facility’s parking lot is well illuminated.
-
-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
replied that they were not.18 He then started walking back to go
inside the facility, when he heard a male voice asking if he
wanted to know anything about the Union, and offering him a
flyer. Biggs declined, and went back inside, where he encoun-
tered 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.
Reh offered a very similar account as Biggs, testifying that
Biggs reported to her that charge nurses had phoned him to com-
plain that staffers were uncomfortable about the activities of in-
dividuals 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 outside to check out
what was occurring. According to Reh, Biggs returned back in-
side 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.
As reflected above, the account of Placencio regarding this in-
cident 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. Addition-
ally, in Placencio’s version, neither Biggs nor Reh engaged in
conversation with the 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.
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 un-
lawful 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 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 Placen-
cio’s and Reh’s estimate to be accurate.
4. The alleged change in Placencio’s working conditions from
October (2018) to January 2019
As briefly described above, Placencio works as an ED tech,
which involves working in different capacities or areas within
18 According to Biggs, this occurred around 7 p.m., which is when
the shifts change.
19 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 sup-
ported by documentary evidence introduced by the General Counsel. In-
deed, 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 as-
signed to Triage more often, Kimball checked the assignment sheets and
agreed with him. Kimball, on the other hand, testified the opposite, that
the department. As described above, these areas, which involve
different duties and responsibilities, are the “Triage” area, 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.
Placencio testified that normally, he was assigned to the “Tri-
age” 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 announc-
ing his involvement in the union organizing, Placencio asserted
that he was “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.19 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 pa-
tients and take them to their rooms. According to Placencio, this
meant that he had to walk about twice the normal distance(s) that
he would otherwise.20 Additionally, this duty includes inter-
viewing 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.
Besides the above-described testimony by Placencio, the Gen-
eral Counsel, in support of its allegation that Placencio was dis-
proportionally—and discriminatorily—assigned additional Tri-
age duty, introduced into evidence a very voluminous exhibit
comprised of over 2 years of daily assignment sheets for the ED,
produced by Respondent under subpoena.21 Notably, the Gen-
eral Counsel, apparently confident that the voluminous exhibit
would support its allegation of discriminatory or retaliatory con-
duct toward Placencio, asked no questions of any witness regard-
ing 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, 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
her review of the assignment sheets did not reveal a disproportionate
number of Triage assignments. I credit Kimball’s testimony in that re-
gard, because as discussed below, the assignment sheets do not support
Placencio’s testimony.
20 Thus, Placencio testified that he wears a “Garmin” GPS tracker,
which measures the number of steps he takes on a given day. On a nor-
mal 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).
21 The exhibit, GC Exh. 14, consists of 34 separate electronic files
consisting of approximately 4400 pp., covering the period from January
2017 through July 2019.
DIGNITY HEALTH D/B/A MERCY GILBERT MEDICAL CENTER 7
December 2018.” 22
The problem with this exceedingly short summary of an argu-
ment, 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 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 “av-
erage” number of Triage assignments for Placencio between Jan-
uary 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 assigned to Triage as
much as 6 times per month.23 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
discriminatory and disproportionate in the case of Placencio.24
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” 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.
In sum, the facts simply do not support the allegation that
Placencio’s Triage duty was significantly increased during the
22 Unfortunately, this practice of the wholesale and automatic intro-
duction of vast amounts of records produced under subpoena, sight un-
seen 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 in-
troduced. 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 subse-
quent 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, wit-
nesses 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
period in question.
5. Respondent’s alleged imposition of more onerous work con-
ditions by instructing Placencio to complete check-off lists
The General Counsel alleges that beginning about November
15, Respondent repeatedly instructed Placencio to complete
check-off lists, therefore imposing more onerous working condi-
tions on him, because of his protected activity.25 The facts are
as follows:
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 concern that techs working in prior shifts
were not completing all their duties during their shifts. Accord-
ing to Kimball and Reh, the lists were a way to standardize prac-
tices and provide consistency and guidance to techs regarding
their duties, none of which were new.26 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
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, Kim-
ball told him to fill out the checkoff lists, and further testified
that other techs only “sporadically” filled them out. The com-
pleted 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 repeat-
edly asked him to fill out the lists, testified that she encouraged
other techs (besides Placencio) to fill out the check-off lists.27
our case, and we don’t have the time or inclination to make such assess-
ment, 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 ap-
proach 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 doc-
uments on a wholesale basis, as it only unnecessarily burdens the record.
23 For example, in September 2018.
24 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 un-
fairly for this duty when in fact others were assigned this allegedly more
onerous duty more often.
25 Complaint par. 6(a).
26 A copy of the check-off list was introduced as GC Exh. 10.
27 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 pe-
riod. 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
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.28
6. The allegation regarding Respondent’s conduct on or about
February 7, 2019
It is undisputed that Kimball met with Placencio in her office
on February 7, 2019, along with Brian Biggs.29 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 tell-
ing—or discussing 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,
Placencio testified that Kimball told him there is a lot of “whis-
pering” going on in the nurses station, that if he needed to whis-
per something, that should be done in the breakroom, adding that
Kimball stated that she had overheard him talking on the phone
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 Reh), and that he replied
that he had in fact done that.
For her part, Kimball testified, regarding the February 7 meet-
ing, that she held this meeting with Placencio, among other rea-
sons, to discuss a “rumor” that he had been telling other employ-
ees that the ER tech positions were going to be eliminated. She
testified that she asked him if he had any questions because
record is silent as to whether these were among the other employees
whom Kimball testified she had encouraged to fill out these lists. Alt-
hough 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.
28 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 vio-
lation, as thus it merits no further discussion.
29 As described earlier, Biggs is Respondent’s Director of Medical-
Surgical floors.
30 Such statement, if accurate, reflects that techs had concerns about
not getting scheduled, which makes it more likely that a rumor was float-
ing that Respondent was planning to do away with their position—some-
thing that Placencio was accused of doing, which he denied. Indeed,
although Placencio denied spreading such rumors, I credit Kimball’s tes-
timony that she had received such reports from other employees and con-
clude this is the reason she brought the subject up. I do not imply that
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.
In addition to presenting Placencio’s testimony about the Feb-
ruary 7 meeting, the General Counsel also introduced into evi-
dence 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 some additional
statements Placencio made which were not included in his testi-
mony. For example, the notes reflect after Kimball told Placen-
cio 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 told Kimball that his coworkers were
asking “why are we not being scheduled and why we are being
made to stay home.”30 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
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
with the events in question.31
IV. ANALYSIS
A. The Allegation of Creating the Impression of Surveillance
on August 2832
As discussed in the Facts section, I credited Placencio’s
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.
31 The General Counsel offered Placencio’s notes under FRE 803(1)
(Present Sense Impression), and I admitted them under such rule. In ret-
rospect, 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 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, Respond-
ent. In other words, the witnesses’ own notes cannot be admitted to but-
tress 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 pro-
vide context that may be beneficial to Respondent’s case, I can assume
that Respondent will no longer object to their admission and may actu-
ally wish it had offered them instead.
32 Complaint ¶ 5(a).
DIGNITY HEALTH D/B/A MERCY GILBERT MEDICAL CENTER 9
testimony that on August 28, 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 sup-
porter, which he did on October 3, when he sent out an email to
the medical center’s staff. The General Counsel alleges and ar-
gues that Kimball’s conduct unlawfully created the impression
that Placencio’s protected activity was being monitored. In so
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 ac-
tivities 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 reasonably have created the impres-
sion 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 Sec-
tion 8(a)(1) of the Act.
The test of whether an employer has unlawfully created the
impression of surveillance is an objective one, that is, whether
under all the circumstances an employee could reasonably con-
clude from the statement or conduct in question that his/her pro-
tected activities had been placed under surveillance. Bridgestone
Firestone South Carolina, 350 NLRB 526, 527 (2007), quoting
Flexsteel Industries, 311 NLRB 257, 257 (1993).33 Thus, when
an employer tells employees that it is aware of their protected
activities, but fails to identify the source of this information, an
unlawful impression of surveillance is created because employ-
ees could reasonably surmise that employer monitoring has oc-
curred. 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 ges-
ture was somehow vague and that Placencio’s reaction to that
conduct was “subjective,” I conclude that any reasonable em-
ployee 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 vio-
lated Section 8(a)(1) of the Act in this instance.
B. The Allegation of Unlawful Interrogation on September 2734
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 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
33 See, also, Consolidated Communications of Texas Co., 366 NLRB
No. 172, slip op. at 1 fn. 1 (2018), citing these cases.
34 Complaint ¶ 5(b).
35 I note that by this time, Respondent had issued numerous commu-
niques to its employees, through its “Let’s Talk” newsletters and e-mails,
indicating its vigorous opposition to the Union.
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.
In determining whether an unlawful interrogation has oc-
curred, 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 question-
ing; and the truthfulness of the employee’s reply to the question-
ing. Rossmore House, 269 NLRB 1176,1177–1178 (1984), cit-
ing Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964); Sunnyvale
Medical Clinic, 277 NLRB 1217, 1218 (1985); Westwood
Health Care Center, A Division of Medcare Associates, Inc., 330
NLRB 935, 939 (2000). In this instance, I note that the interro-
gation was conducted by Harrison, in the presence of Kimball,
both high-level managers for Respondent, and in the case of
Kimball, 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.35 Although the inter-
rogation 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 of the in-
terrogation, given the totality of the circumstances. In that re-
gard I note that Harrison engaged in insistent and repetitive
pressing of Placencio to admit his complicity in the Union or-
ganizing 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.
C. The Allegation that Respondent Engaged in Surveillance in
November 201836
As discussed in the Facts section, it is undisputed that some-
time in November 2018, the exact date unknown, Brian Biggs
left the building and went to the parking lot at the north entrance
of the facility, and briefly engaged in conversation with employ-
ees 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.37 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
Placencio’s version, Biggs did not address the employees, a dif-
ferent version that I conclude is ultimately irrelevant. The Gen-
eral 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
36 Complaint ¶ 5(c).
37 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 discrep-
ancy, since Reh’s presence outside will make no difference to the legal
conclusion ultimately reached.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
would be expected, Respondent begs to differ. This time, I con-
clude Respondent is correct.
It is well settled that where employees are conducting their
(union or protected) activities openly on or near company prem-
ises, 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 In-
dustries, Inc., 251 NLRB 1523 (1980). In other words, employ-
ers need not avert their eyes nor wear blinders where employees
are openly and publicly engaging in protected activity on the em-
ployers’ premises. I note that in this case, the employees were
openly and publicly distributing union literature at the em-
ployer’s parking lot, and that the alleged observation by Briggs
(and perhaps Reh) was neither prolonged (less than 3 minutes)
nor repeated.38 Nor was there anything coercive in Briggs’ ask-
ing the employees if they were off the clock, since the employer
can lawfully restrict protected activity of this nature to nonwork-
ing 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.
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; 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.39
As described above in the Facts section, during the February
7 meeting, Kimball informed Placencio that she had received re-
ports from other employees that he was spreading 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 con-
temporaneous 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 to him with concerns, told him to tell them in-
stead to come to her, and also said “I want to make people aren’t
spreading rumors to create animosity. There is a lot of whisper-
ing going on. People are uncomfortable. These convos need to
be done in the breakroom.”
Thus, in analyzing the statements made by Kimball, as de-
scribed above, the context in which these statements were made
38 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 con-
siderable 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
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 re-
ports from other employees that Placencio was spreading rumors
that the ED tech positions were going to be eliminated, thus
prompting Kimball’s statements to Placencio. I can find no au-
thority or discern any logic for the proposition that spreading
false rumors—particularly rumors of such significant conse-
quences, the loss of many jobs—is automatically protected ac-
tivity, 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 circum-
stances, and given such context, I find that Kimball’s words to
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 en-
gaging in all “protected” activity, rather than what it actually
was: a directive to stop spreading false or misleading infor-
mation. Likewise, Kimball’s statement 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 work-
station. The General Counsel, in an over-reaching analysis,
would have me conclude that (a) “whispering” necessarily re-
ferred to union or protected activity, rather than spreading false
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?40 The simple
answer is that such analysis by the General Counsel is deeply
flawed. Respondent was within its rights, even assuming that the
“whispering” referred to union or other protected activity, to di-
rect that such activity take place in the breakroom, during non-
working time. This is particularly true in the context of a
healthcare facility, where stricter restrictions on engaging in un-
ion 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).
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 ques-
tions about why they were not being scheduled—she was not en-
gaged in a coercive interrogation about protected activities, but
that the General Counsel cited no cases in support of its contention that
Respondent’s conduct in this instance was unlawful.
39 Complaint ¶ ¶ 5(d)(1); (2); (3); and (4), respectively.
40 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.
DIGNITY HEALTH D/B/A MERCY GILBERT MEDICAL CENTER 11
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 Re-
spondent was engaged in surveillance. Indeed, the very use of
the words that others have reported the activity in question, le-
gally and logically forecloses the suspicion that the source of the
information is the employers’ surveillance, and thus no reasona-
ble employee could come to that conclusion. See, e.g., Bridge-
stone Firestone South Carolina, 350 NLRB 526, 527 (2007);
North Hills Office Services, 346 NLRB 1099, 1104 (2006); Con-
ley Trucking, supra. (failure to disclose the source of the infor-
mation 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 allegations
should be dismissed.
E. The Allegations that Respondent Discriminated Against
Placencio by Imposing More Onerous Working Conditions on
Him
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 assign-
ing him more often to the Triage area.41 The General Counsel
alleges that Respondent engaged in this conduct because Placen-
cio 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 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 evi-
dence, that Placencio engaged in protected activity, that the em-
ployer 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
persuasion shifts to the employer “to demonstrate that the same
action would have taken place even in the absence of the pro-
tected conduct.” Wright Line, supra at 1089; see also Manno
Electric, 321 NLRB 278, 280 fn. 12 (1996). The employer can-
not carry this burden merely by showing that it also had a legiti-
mate reason for the action, but must persuade, by a preponder-
ance of the evidence, that the action would have taken place ab-
sent the protected activity. Dentech Corp., 294 NLRB 924, 956
(1989).42
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 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 be-
cause of his protected activity, as indicated by Harrison’s
41 Complaint ¶ ¶ 6(a) & (b); 7; and 8, respectively.
42 The same analysis is applicable to Sec. 8(a)(1)(4) violations.
43 Thus, it is not surprising that the large number of documents intro-
duced by the General Counsel ostensibly to support this allegation
coercive interrogation. The evidence fails to show, however,
that Respondent took an adverse employment action against
Placencio, and this factor fatally undermines the General Coun-
sel’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 tes-
tified, it is truly mystifying as to how such directive was onerous
or, more importantly, resulted in an adverse employment action,
as required under the 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 consti-
tute an “adverse 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 Kim-
ball’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 (or “di-
rectives,” 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 disproportion-
ally assigned Placencio more often to the Triage position, the ev-
idence also fails to show that an adverse employment action took
place, albeit for a slightly different reason. Thus, it might be
argued that the Triage position was more onerous than other as-
signments 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 signifi-
cantly increased during the relevant time period, a valid argu-
ment might exist that an adverse employment action took place.
Nonetheless, even assuming the Triage assignment was indeed a
more onerous one—something that is far from clear—the evi-
dence failed to show that Placencio’s assignment to that role in-
creased 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 was
higher than the average of the preceding 20-month period is sup-
ported by neither the evidence nor the math. Not only is the sta-
tistical evidence used by the General Counsel highly misleading,
and indeed skewed, with the average cited being totally depend-
ent 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 alleged in the complaint.43 Moreover, the evi-
dence also shows that several other employees were assigned to
Triage far more often than Placencio. Thus, contrary to what is
merited nothing more than a single sentence in its posthearing brief sum-
marizing its supposed findings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
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 as-
signed to that task more often.44 In light of the above, I conclude
that the General Counsel has not met its Wright Line burden un-
der to establish that Placencio suffered an adverse employment
action. Accordingly, I recommend that this allegation be dis-
missed.
CONCLUSIONS OF LAW
1. Dignity Health d/b/a Mercy Gilbert Medical Center (Re-
spondent) is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
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 activ-
ities were under surveillance, and by interrogating an employee
about his union activities, Respondent has interfered with, re-
strained, 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.
REMEDY
Having found that the Respondent has engaged in certain un-
fair 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.
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 Re-
spondent be ordered to cease and desist from such conduct. Ad-
ditionally, Respondent will be required to post a notice to em-
ployees 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.
Accordingly, based on the forgoing findings of fact and con-
clusions of law, and on the entire record, I issue the following
recommended45
44 Even if an argument could be made that Placencio was in fact as-
signed 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 character-
ized as an adverse employment action. Moreover, there is an additional
and potentially fatal flaw in the General Counsel’s allegations in this re-
gard. The evidence clearly established that Charge Nurses were exclu-
sively responsible for making the daily assignments for ED techs, yet the
General Counsel never alleged them to be Sec. 2(11) supervisors or Sec.
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
ORDER
Dignity Health d/b/a Mercy Gilbert Medical Center, Gilbert,
Arizona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) creating the impression that its employees’ union activities
are under surveillance;
(b) interrogating its employees about their union activities;
(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 effectu-
ate the policies of the Act.
(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 “Ap-
pendix.”46 Copies of the notice, on forms provided by the Re-
gional Director for Region 28, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily 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 em-
ployees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of busi-
ness 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 em-
ployed by the Respondent at any time since August 28, 2018.
(b) Within 21 days after service by the Region, file with the
Regional Director for Region 28, a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated: Washington, D.C. March 19, 2020
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.
proceeded to check these assignments and concluded that Placencio’s al-
legation lacked merit. In light of my findings above, however, this omis-
sion by the General Counsel is ultimately irrelevant.
45 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended Or-
der 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.
46 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 Na-
tional 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.”
DIGNITY HEALTH D/B/A MERCY GILBERT MEDICAL CENTER 13
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
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 ac-
tivities.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28-CA-229160 or by using the QR code be-
low. 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.