El Paso Healthcare System, Ltd. d/b/a Las Palmas Medical Center

National Labor Relations Board - Board Decisions

Jun 15, 2012

358 N.L.R.B. 460 (N.L.R.B. 2012)

460
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

358 NLRB No. 54
El Paso Healthcare System, Ltd. d/b/a Las Palmas
Medical Center and National Nurses Organizing
Committee––Texas/NNU. Case 28–CA–023368
June 15, 2012
DECISION AND ORDER
BY MEMBERS HAYES, GRIFFIN, AND BLOCK
On September 29, 2011, Administrative Law Judge
Gerald M. Etchingham issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
Acting General Counsel and the Charging Party filed
answering briefs, and the Respondent filed reply briefs to
each. The Acting General Counsel filed cross-exceptions
and a supporting brief, the Respondent filed an answer-
ing brief, and the Acting General Counsel filed a reply
brief.
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, cross-exceptions, and briefs,
and has decided to affirm the judge’s rulings,1 findings,2
and conclusions, as modified herein,3 and to adopt the

1 We find that the judge did not abuse his discretion in denying the
Acting General Counsel’s motion, made at the hearing, to amend the
complaint to add an allegation that the Respondent unlawfully promul-
gated an overbroad rule barring “gossip” about care-related incidents.
See Sec. 102.17 of the Board Rules and Regulations (providing that a
“complaint may be amended upon such terms as may be deemed just”);
Pincus Elevator & Electric Co., 308 NLRB 684, 685 (1992), enfd.
mem. 998 F.2d 1004 (3d Cir. 1993) (observing that an administrative
law judge has “wide discretion to grant or deny motions to amend a
complaint”).
2 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 preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard 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.
We adopt the judge’s findings, in the absence of exceptions, that the
Respondent violated Sec. 8(a)(1) by interrogating Karin Moore and
threatening Anna Barker.
3 We agree with the judge, for the reasons he states, that the Re-
spondent violated Sec. 8(a)(1) by denying Karin Moore’s request for
union representation at an August 14, 2010 interview. See NLRB v. J.
Weingarten, 420 U.S. 251 (1975). In adopting this finding, we find it
unnecessary to pass on the judge’s conclusion that Smitha Philip—
whom the Respondent unilaterally directed to witness Moore’s inter-
view—is not a statutory supervisor. Further, we do not rely on the
judge’s citation to Williams Pipeline Co., 315 NLRB 1 (1994), in sup-
port of this finding.
Having adopted the judge’s finding that the Respondent unlawfully
denied Moore’s request for union representation, we find it unnecessary
to pass on the allegation that the Respondent also unlawfully denied Ida
(Cindy) Toth’s request for union representation at an October 13, 2010
recommended Order as modified and set forth in full
below.4
ORDER
The National Labor Relations Board orders that the
Respondent, El Paso Healthcare System, Ltd. d/b/a Las
Palmas Medical Center, El Paso, Texas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to honor employees’ requests for union
representation during investigatory interviews.
(b) Interrogating employees about their requests to
have union representation during investigatory inter-
views.
(c) Threatening employees by telling them that exer-
cising their rights to have union representation during
investigatory interviews would be futile.
(d) 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) Within 14 days after service by the Region, post at
its Las Palmas Medical Center facility in El Paso, Texas,
copies of the attached notice marked “Appendix.”5 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 28, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
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 pendency of these proceedings, the Re-

interview. Finding this additional violation would be cumulative and
would not materially affect the remedy.
4 Contrary to the judge, we find that the violations committed by the
Respondent do not require a broad cease-and-desist order or other
special notice posting and notice reading remedies. Accordingly, we
will modify the recommended Order and substitute a notice with tradi-
tional remedial provisions for these violations. In addition, the judge’s
recommended remedial language addresses violations not found while
omitting provision for a violation that was found. We shall modify the
Order and notice provisions to conform to the violations actually found.
5 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 Na-
tional 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.”
LAS PALMAS MEDICAL CENTER

461
spondent has gone out of business or closed the facilities
involved in these proceedings, the Respondent shall du-
plicate 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 14, 2010.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT deny your requests to have representa-
tives of the National Nurses Organizing Committee-
Texas/NNU (the Union) present during investigatory
interviews.
WE WILL NOT interrogate you about your requests to
have union representation during investigatory inter-
views.
WE WILL NOT threaten you by telling you that exercis-
ing your rights to have union representation during inves-
tigatory interviews would be futile.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
EL PASO HEALTHCARE SYSTEM, LTD. D/B/A LAS
PALMAS MEDICAL CENTER

Liza Walker-McBride, Esq., for the General Counsel.
Paul R. Beshears, Esq., for the Respondent.
Brendan White, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, Administrative Law Judge. This
case was tried in El Paso, Texas, on June 28 and 29, 2011. The
National Nurses Organizing Committee—Texas/NNU (Union)
filed the initial charge on February 11, 2011,1 which was
amended subsequently on March 25, 2011, and April 29, 2011,
and the Acting General Counsel issued the complaint on April
29, 2011. The complaint alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by refusing two employees, Karin Moore
and Ida Catherine Toth, on separate occasions, their
Weingarten2 rights to union representation at Respondent’s
investigatory interviews on August 14 and October 13, respec-
tively. The complaint also alleges the unlawful acts of interro-
gating and threatening employees concerning the exercise of
the same Weingarten rights. Respondent filed an answer deny-
ing the essential allegations of these four claims in the com-
plaint.
As the trial commenced, counsel for the Acting General
Counsel sought leave to make two 8(a)(1) allegation amend-
ments to the complaint. One is the promulgation and mainte-
nance of an overly broad rule with respect to discussing certain
terms and conditions of employment that arose out of one of the
Weingarten allegations. This charge was alleged in the 1st
charge but dropped out of the 2nd amended charge and did not
make the complaint. (GC Exh. 1.)
As to the first proposed oral amendment of the complaint,
about unilaterally adopting an overbroad rule, I find that by
amending its charge a second time and dropping out the allega-
tion of an overbroad rule from the charge and the complaint,
Charging Party and Acting General Counsel waived the right to
resurrect the charge at trial having lulled Respondent into think-
ing that it did not need to defend the charge. It is improper for
the judge to find a violation based on an unalleged theory
where the General Counsel’s representations would reasonably
have led the respondent to believe that it would not have to
defend itself on that basis. Buonadonna ShopRite, 356 NLRB
857 (2011); and Laborers Local 190 (VP Builders, Inc.), 355
NLRB 532 (2010). Because Respondent did not have adequate
prior notice of the intended resurrection of claim, allowing it
here would be unjust and provide undue prejudice to Respond-
ent who basically was served with this notice at trial without a
valid reason for the delay in moving to amend sooner. (Tr. 37.)
3
The second new oral charge at trial is an alleged December
2010 creation of the impression of surveillance. I find that this
new charge constituted an entirely new matter unrelated to the
three charges in this case or the corresponding allegations. I
find that permitting this amendment would deprive counsel for
the Respondents of any opportunity to prepare a defense to this
newly raised allegation. As a result, applying Folsom Ready
Mix, Inc., 338 NLRB 1172 fn. 1 (2003), I also denied the mo-
tion to allow this amendment. (Tr. 37–38.)

1 All dates are in 2010 unless otherwise indicated.
2 NLRB v. J. Weingarten, 420 U.S. 251 (1975).
3 Acting General Counsel requests that I reconsider my ruling from
the bench as to her request that I allow the additional claim to the com-
plaint concerning the alleged overly broad email policy, grant the mo-
tion for reconsideration, admit GC Exh. 7 into the record, and find
against Respondent for an addition violation of Sec. 8(a)(1) of the Act.
(GC Br. at 19–20.) For the reasons stated above, I deny the motion for
reconsideration.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

462
Also, Respondent renewed its motion for partial summary
judgment denied without prejudice earlier by the Board. I de-
nied the motion based primarily on the arguments that there is
hearsay in the exhibits, a lack of foundation, a factual ambigui-
ty, and a lack of authenticity concerning various alleged events
including the email exchange between Aguilar and Toth in
2010 as to the alleged purpose of the interview and resulting
coaching report.
After the trial, the Acting General Counsel, Respondent, and
the Charging Party filed closing briefs on August 3, 2011 (GC
Br.; R. Br.; and CP Br., respectively), which I have read and
considered. Based on the entire record in this case,4 including
the testimony of the witnesses and my observation of their de-
meanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
El Paso Healthcare System, Ltd. d/b/a Las Palmas Medical
Center (Respondent) is a Texas corporation, a full service hos-
pital with a facility and place of business in El Paso, Texas, and
has been engaged in the business of operating a full service
medical care center. During the 12-month period ending Febru-
ary 11, 2011, Respondent admits that it derived gross revenues
in excess of $250,000 and purchased and received at the Re-
spondent’s facility goods valued in excess of $50,000 directly
from points outside of Texas. Furthermore, Respondent admits
and I find accordingly, that Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act and has been a health care institution within the mean-
ing of Section 2(14) of the Act. Respondent further admits and
I also find that the Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Union Certification at Respondent on June 7
On June 7, Respondent’s registered nurses (RNs) voted to
join the Union which was certified as the exclusive collective-
bargaining representative of the unit employee RNs (unit RNs)
described as follows:
INCLUDED: All full-time, regular part-time, and per diem
Registered Nurses, employed by the Employer [Respondent]
at 1801 N. Oregon Street, El Paso, Texas.
EXCLUDED: All other employees, confidential employees,
physicians, nurse and/or clinical educators or coordinators,
clinical nurse specialists, clinical coordinators, case manag-
ers/utilization review and/or discharge planners, nurse practi-
tioners, accounting or auditing RNs, infection con-
trol/employee health nurses, risk management/performance
improvement and/or quality assurance or quality management
nurses, employees of outside registries and other agencies
supplying labor to the Employer [Respondent], already repre-
sented employees, permanent charge nurses, managerial em-

4 I hereby correct the transcript as follows: Tr. 161, L. 18: “no”
should be deleted.

ployees, guards and supervisors as defined by the Act. [GC
Exhs.5 1 and 2.]
Respondent’s vice president of human relations, Timothy
Meeks has represented Respondent’s management at collective-
bargaining agreement negotiations over the past year.6 (Tr. 134,
207–208.) On June 25, the Union notified Respondent of the
identity of the Union’s rank-and-file nurse representatives oth-
erwise known as the union’s shop stewards. (GC Exh. 3.) Anna
T. Barker (Barker), an RN in the Respondent’s neo-natal inten-
sive care unit nursery (NICU) for the past 4 years, has repre-
sented the Union at collective-bargaining sessions. Barker and
Lucia Adams (Adams) both have been the designated nurse unit
representatives or stewards (nurse representatives) for the Un-
ion at all relevant times since the June certification.7 (Tr. 50,
144; GC Exh. 3 at 2.)
For the past 6 years, Barker and Adams have been super-
vised by Respondent’s NICU director, Arleen Casarez-Aguilar
(Aguilar), who supervises all of the NICU nurses and the new-
born department which consist of several different wards occu-
pying a wing of the hospital. (Tr. 38–39.) The infants are divid-
ed into levels based on varying degrees of health needs and as
director, Aguilar is responsible for discipline of the depart-
ments’ RNs who report to her. (Tr. 38–43; GC Exhs. 1(g) and
4.)
B. Respondent’s Evolving Disciplinary Process After
Union Certification
Before the Union was certified, Aguilar would regularly al-
low an RN under investigation the right to have another RN
present as a witness at any investigatory interview she conduct-
ed on the condition that the RN witness could not speak in par-
ticipation at the meeting nor were they allowed to take notes.
(Tr. 59.) Also before union certification, Respondent would
occasionally issue its employees “coaching” reports that in-
cluded “counseling” references within that Aguilar would
maintain as a “shadow” file in her office concerning incidents
which could result in discipline if a nurse accumulated some
unknown number of these “coaching” reports in Aguilar’s per-
sonal “shadow” file for each employee. (Tr. 228–229, 235,
238–239; GC Exh. 9 at 3.) Sometime after late August, Re-
spondent’s management actively sought to distinguish the
“coaching” report from a “counseling” report to create the im-
pression that the earlier “coaching” reports had no effect on
discipline decisions.8 Beginning on August 25, the NICU

5 Hereafter, GC Exh., R. Exh., and CP Exh. as appropriate.
6 As of time of trial, there was no binding collective-bargaining
agreement between Respondent and Union though negotiations contin-
ue between Respondent’s management and the Union to sign a final
written agreement.
7 Nurse representatives receive specialized training regarding an em-
ployee’s rights and protections during meetings with supervisors. (Tr.
134–135.)
8 I find that at all times relevant here the “Coaching” reports were in-
terchangeable with Respondent’s “Counseling” reports which became
separately formalized in use after the union certification in June in an
attempt by Respondent to separate “coaching” from “counseling”
events. I further find that Respondent created the new separate forms to
distance itself from the fact that it was using its “Coaching” reports as a
LAS PALMAS MEDICAL CENTER

463
charge nurse “New Business” agenda listed “Counsel forms” as
a new item. (GC Exh. 9 at 1.)
Yolanda Carrillo (Carrillo), Respondent’s human resources
director, was familiar with Respondent’s “Coaching” report
form and credibly confirmed that it is maintained in Aguilar’s
“shadow” file for each NICU RN she supervises. Carrillo fur-
ther opined that an RN’s accumulation of coaching reports
could lead to counseling or other disciplinary actions taken by
Respondent against the RN who accumulated some unknown
number of coaching reports. (Tr. 227–229, 238–239.) She fur-
ther confirmed that this is an unwritten policy at Respondent as
there has been no formal written policy or document dissemi-
nated to Respondent’s employees to explain “counseling” ver-
sus “coaching” reports. (Tr. 239.) As of August 25, the Em-
ployee Coaching Report form used by Respondent began with
“This Counseling record has been reviewed with me” and fur-
ther provides that this “counseling record will be placed in my
personnel file.” (GC Exh. 9 at 3.)9 In addition, Respondent’s
labor relations manager, Leonard Ochart further admitted that
Respondent does not have a formal written discipline policy
but, instead, has the practice outlined in Respondent’s employ-
ee coaching and counseling reports. (Tr. 16, 52; GC Exh 5.)
These documents were submitted by Respondent in response to
the Union’s June 2011 request for all disciplinary policies. (GC
Exh. 5.)
After the Union was certified in June, Respondent conducted
union training for its management personnel, including Aguilar,
via a July 7 PowerPoint presentation entitled “Post-election
Issues,” which included disclosure of the RNs’ newly gained
Weingarten rights. (Tr. 43–44; GC Exh. 8 at 2.) In addition, by
letter dated June 25, Aguilar was notified that Nurse Repre-
sentative Adams had been selected as a nurse representative.10
(Tr. 49–50; GC Exh. 3 at 2.) Later, Barker told Aguilar that she
too was a nurse representative for the Union.11 (Tr. 49–50.)
Despite this training, however, Aguilar admittedly was con-
fused about the role of the Union after its certification at Re-
spondent, its nurse representatives, and her changed responsi-

form of discipline for its RNs up through the incidents involving Unit
RNs Moore and Toth in this case. (See Tr. 236–239, 242–243; GC
Exhs. 5, 9 at 1 and 3, 11, and 14 at 1, 8–9.)
9 Respondent did not provide evidence showing when its counseling
report first came into existence and its coaching report form was re-
vised to eliminate the “counseling” references before 2011. However, it
appears that by September 10, Respondent was using a revised coach-
ing report. Yet in December, Respondent simply crossed-out the word
“Coaching” and replaced it with “Counseling.” (See GC Exhs. 5, 11,
and 14.)
10 While Aguilar was evasive as to whether she recalled seeing
Nurse Representative Adams’ name specifically identified under NICU
on the June 25 email list of nurse representatives to Respondent, Agui-
lar initially admitted seeing the list and knowing nurse representative
Adams was a listed nurse representative. Observing Aguilar at hearing,
I do not find her testimony credible that she did not know that Adams
was a nurse representative at the time of the August 14 meeting dis-
cussed below. (See Tr. 49–52.)
11 Aguilar was more comfortable communicating with Barker than
with the other nurse representatives after union certification. (Tr. 139–
140.)
bilities as a supervisor in a unionized workplace. (Tr. 38, 44,
56; GC Exh. 8 at p. 2.)
C. Karin Moore’s August 14 Investigatory Interview
1. Events leading to August 14 meeting
Karin Moore (Moore) was employed by Respondent as a
NICU RN from July 2009 until April 2011. (Tr. 157.) She was
supervised by Director Aguilar like all other unit RNs.12 (Tr.
39, 157.) After certification in June, Moore was a unit RN and a
nurse representative like Adams and Barker. (Tr. 135–136.)
Early Saturday morning on August 14, Moore arrived at her
work to find out that on her previous day shift on Friday, she
had mistakenly connected the wrong intravenous (IV) line con-
taining sugar solution to a premature infant’s umbilical arterial
line. (Tr. 46, 158.) This error destabilized the baby’s blood
sugar and during the night medical intervention became neces-
sary to correct the problem compounded by the fact that anoth-
er RN, Donald Tanner (Tanner), following Moore in the care of
the infant, also did not immediately recognize the problem
which delayed corrective action until sometime Friday night.
(Tr. 47, 158–159, 162, 174; CP Exh. 1.)
On discovering her serious mistake, Moore felt panicked and
was very upset about the incident though by the start of her
shift Saturday morning the baby’s condition had stabilized and
temporary or relief Charge Nurse Smitha Philip (TCN Philip)
assigned Moore to return to her care of the infant. (Tr. 159–
160, 165–166.) After learning that Supervisor Aguilar was
called in to the hospital and anticipating an investigative meet-
ing resulting from her mistake, Moore approached Nurse Rep-
resentative Adams Saturday morning at approximately 7 a.m.
and asked her if she could accompany her to any meeting with
Aguilar as her nurse representative. (Tr. 145–146, 161–162.)
Nurse Representative Adams agreed to assist Moore as a nurse
representative and the two nurses continued their regular nurse
duties awaiting the anticipated meeting with Aguilar some time
later that morning. (Tr. 134–135, 145–146, 161.)
As stated above, Aguilar learned of the incident involving
Moore’s mistake early on the morning of Saturday, August 14,
when she received a telephone call at her home on her day off.
(Tr. 45–46.) Aguilar went to the hospital early Saturday morn-
ing to find out more about the incident from the charge nurse,
patient chart notes, and later-planned interviews with Tanner
and Moore. (Tr. 46–47, 162.) Aguilar also organized a staff
“huddle”13 to discuss the previous day’s medication error and a
reminder to double check that IV lines were connected correct-
ly. (Tr. 47.)
The timing of Aguilar’s actions is not in dispute as she ar-
rived at the hospital at approximately 8 a.m. (Tr. 46, 151.)
Aguilar then spent approximately 30 minutes talking to Swanda
George, the charge nurse who had contacted her about the
emergency, and reviewing information about the incident from

12 While Director Aguilar supervised all of Respondent’s NICU
RNs, permanent and temporary charge nurses also provided daily input
and evaluated unit RNs like Moore and Toth. (See fn. 15 below.)
13 An informal meeting wherever a group of nurses can gather at the
hospital for communications and discussions for improvement and
training.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

464
patient chart notes, medication orders, and other nurses’ notes.
(Tr. 47.) Aguilar requested that Tanner and Moore meet with
her separately later that morning. (Tr. 47, 162.) The “huddle”
lasted an additional 5 minutes and Aguilar then waited approx-
imately 15 minutes for the off going shift to finish giving pa-
tient reports to the new shift. (Tr. 47–48, 85.)
Aguilar next met briefly with night shift RN Tanner as part
of her investigation before asking Moore if she was ready to
meet as part of her investigation of the incident. (Tr. 47–49,
162.) This took place approximately 45–60 minutes after Agui-
lar’s arrival at the hospital and Moore responded that she was
ready to meet. (Tr. 49, 56–57.) Sometime between the time
Moore asked Nurse Representative Adams to be present at the
anticipated meeting and the time of the actual meeting, Moore
requested and Aguilar agreed that Nurse Representative Adams
could attend the meeting as her representative. (Tr. 49–50, 56,
162; GC Exh. 3 at 2.)
2. Moore’s investigatory meeting with Director/Supervisor
Aguilar
Aguilar’s stated purpose for her meeting with Moore was
that she “wanted to get [Moore’s] side of the story of what
happened.” (Tr. 60.) When Aguilar finally turned to Moore to
proceed to her office for the anticipated meeting, Nurse Repre-
sentative Adams was performing her regular nurse duties
changing out an IV bag or assisting a physician who was get-
ting an update on his infant patient’s condition including re-
viewing lab reports and X-rays—either procedure expected to
take no more than 5 to 10 minutes to complete. (Tr. 57–58, 84,
147–149, 163.) Nurse Representative Adams was only a few
cribs away from Moore and Aguilar at this time. (Tr. 57, 61,
147.)
Rather than: (1) waiting no more than 5–10 minutes for
Nurse Representative Adams to complete her duties and join
the meeting; or (2) communicating in any way with Adams,
only two cribs away, her readiness to meet; (3) inquiring as to
when Nurse Representative Adams would be ready to meet; or
(4) advising Moore that the Respondent would not proceed with
the interview unless Moore was willing to go without Nurse
Representative Adams, Aguilar instead decided on her own that
Moore did not need a nurse representative and could get by
with only a nurse “witness” at the investigatory meeting.14 (Tr.
57–63, 85, 147, 163.) Aguilar also told Moore that Moore had
no right to insist on Adams being her nurse representative and
that, instead, anyone could act for her. (Tr. 163, 166.) Aguilar
also admitted that she did not explain to Moore her distinction
between “witness” and “representative” but insisted that it was
always Aguilar’s preunion certification practice to permit “wit-
nesses” in the type of meeting she was walking to with
Moore.15 (Tr. 59, 62–63.)

14 Aguilar admits that she reverted to her preunion certification wit-
ness at meetings practice while heading with Moore to her office. (Tr.
57–58, 81) (“. . . it just clicked to me.”).
15 Aguilar’s attempt to convince me that she asked Moore what func-
tion—witness or Nurse Representative—she wanted Nurse Representa-
tive Adams to serve was not credible given her demeanor, the fact that
she was guessing as to Moore’s alleged “witness” response, the absence
of this alleged reference in her August 14 notes of her meeting with
In place of Nurse Representative Adams, Aguilar selected
TCN Philip to act as a “witness” as TCN Philip was standing
next to Aguilar when she decided to conduct the meeting with-
out Nurse Representative Adams. (Tr. 162–163.) Both Aguilar
and TCN Phillip then proceeded to conduct an interrogation of
Moore in Aguilar’s office.16 (Tr. 123, 163–164, 167–168; CP
Exh. 1.) When TCN Philip entered the office with Moore,
Aguilar asked TCN Philip to act as a “witness” and instructed
her to listen, but not speak, during the conversation between her
and Moore. (Tr. 59, 123, 164.) Moore did not say anything in
response. (Tr. 164.)
Moore credibly explained that she did not respond and did
not object to TCN Philip’s presence at the meeting because she
was upset with herself for having made the error and was afraid
about whether she would lose her job or whether there would
be long-term effects on the baby. (Tr. 165–167.) Aguilar then
turned to Moore and repeatedly asked why she wanted someone
in the meeting in the first place when “the Union is not even
here yet?”17 (Tr. 164.) When Moore was finally allowed to
respond, she convincingly explained to Aguilar that she under-
stood from the Union that unit RNs had a right to call a nurse
representative into a disciplinary meeting if any of the unit RNs
were being called in for such meeting that could lead to disci-
pline. (Tr. 165.) Aguilar repeated that Moore had no right to a
nurse representative. (Tr. 167.)
Throughout the meeting, TCN Philip did as she was told and
said nothing, took no notes, and made no record of the meeting.
(Tr. 125.) In fact, TCN Philip could not even say with certainty
that Moore had approved her presence at the meeting and could
only add that Moore “did not say ‘No’ to a ‘witness.’” (Tr.
124.)

Moore, and Aguilar’s later testimony showing her confusion as to the
role of nurse representatives after the June union certification. (See Tr.
36, 81, 134, 136–137, 138–139, 144, 247; CP Exh. 1.) Moreover, TCN
Philip, the August 14 charge nurse who Aguilar selected to act as a
“witness” in place of Nurse Representative Adams as Moore’s nurse
representative, credibly explained that she never heard of Aguilar’s
alleged practice of allowing a nurse “witness” at interrogation meet-
ings. (Tr. 130.) Consequently, I reject Aguilar’s attempt to distinguish
an alleged and unsupported procedure of interrogation at Respondent’s
human relations office with a nurse representative from her continued
practice of allowing silent RN witnesses to join in during her investiga-
tions in August.
16 TCN Philip was assigned as a temporary or relief charge nurse on
August 14 and assigned Moore to work with the same patient involved
in the incident the day before. (Tr. 115, 118, 159–160, 165–166.) TCN
Philip worked as a relief charge nurse an uncertain frequency varying
from no work to twice a week for the past 3 years. (Tr. 118.) Except for
issuing written discipline and hiring or firing employees, as a tempo-
rary or relief charge nurse, TCN Philip’s duties were the same as a
permanent charge nurse with the following supervisory duties: (1) takes
reports from previous shift charge nurses; (2) assigns patients and du-
ties to RNs; (3) assigns her own patients; (4) reports dangerous patient
incidents directly to Aguilar; and (5) prepares performance evaluations
for all RNs including other charge nurses for submittal to Aguilar. (Tr.
86–88, 121–122; GC Exh. 12 at 4.)
17 Even during the second day of her testimony, Aguilar maintained
her unsupported position that the Union was not yet in the hospital
despite the June certification. (Tr. 252–253.)
LAS PALMAS MEDICAL CENTER

465
The meeting lasted for 15–30 minutes. (Tr. 125, 167.) The
only interruption occurred when Aguilar’s telephone rang and
went unanswered. (Tr. 168.) Moore was interrogated with a
series of questions coming from Aguilar so fast that Moore
could not answer one before Aguilar leveled another. (Tr. 167–
168.)
Sometime during Moore’s meeting with Aguilar, Nurse Rep-
resentative Adams was notified by a fellow nurse coming to the
bedside of the baby she was caring for and informed her that
Aguilar and Moore had left for a meeting without Adams. (Tr.
147.) Adams went looking for Moore. (Tr. 149.) Nurse Repre-
sentative Adams tried to attend the meeting between Aguilar
and Moore and placed a call to Aguilar’s office which Aguilar
did not pick up. (Tr. 153, 168.) Later, after the meeting had
concluded, Aguilar returned Nurse Representative Adams’
telephone call and told her that her participation in the investi-
gatory meeting with Moore was unnecessary because the meet-
ing was over.18 (Tr. 154–155.)
After awhile during the heated interrogation, Moore broke
down and began to cry. (Tr. 169.) Aguilar explained to Moore
the possible discipline she faced as a result of the incident in-
cluding discipline handed down from Respondent and/or the
Board of Nursing. (Tr. 169–170.) After the meeting ended at
approximately 9:30 a.m., Aguilar stayed at the hospital for at
least another 45 minutes and spent time drafting an email to the
unit RNs which she sent at 10:18 a.m. (CP Exh. 2.) Respondent
admits that Moore had reasonable cause to believe that her
meeting with Aguilar could result in discipline. (GC Exh. 1(i).)
D. Aguilar’s Admitted Confusion with Union Representatives
After the June Certification
In late August, Aguilar approached Nurse Representative
Barker in the employee lounge with questions concerning the
role of nurse representatives to assist unit RNs at meetings with
management. (Tr. 136–137.) At that time, Aguilar opined that
Nurse Representatives could not talk or participate at such
meetings just the same as Aguilar’s own practice had prohibited
RN “witnesses” from participating in past investigatory meet-
ings before union certification. (Tr. 136–138.) Aguilar further
expressed to Nurse Representative Barker her belief that the
Union’s role through its nurse representatives in these meetings
was being blown out of proportion and that Aguilar admittedly
wanted clarity as she did not fully understand what role nurse
representatives fulfilled after the new union certification. (Tr.
138–139; 251.)19 Barker explained to Aguilar that, instead,

18 At hearing, Aguilar did not recall whether the phone rang during
her meeting with Moore and TCN Philip but Respondent, instead,
argues that the call from Nurse Representative Adams did not take
place. (Tr. 251–252; R. Br. at 5.) I find Nurse Representative Adams’
testimony particularly credible over Aguilar’s testimony given the fact
that Adams’ testimony is more consistent with trial testimony and she
testified against her own interests as at the time of trial she remained
employed at Respondent and must continue to face Director Aguilar as
her immediate supervisor after trial. See S.E. Nichols, Inc., 284 NLRB
556 fn. 2 (1987) (Current respondent employee’s testimony more relia-
ble because it is given against his interest to remain employed by Re-
spondent.).
19 Aguilar did not recall discussing nurse representatives’ roles with
Barker as Barker explained. (Tr. 251.) After viewing the demeanor of
nurse representatives’ roles are more than mere witnesses and
they can actually attend investigative meetings with Respond-
ent’s management and the unit RN under investigation, take
notes, be cognizant that the unit RN’s rights are not being vio-
lated, and talk to management and try to resolve issues on be-
half of the unit RN. (Tr. 134, 136–137, 144.)
E. Ida Toth’s October 13 Investigatory Interview
Ida (Cathy) Toth (Toth) has been employed at Respondent as
an RN for approximately 25 years working in the nursery since
1998. (Tr. 183.) Toth works the night shift and is also a mem-
ber of the Union as a unit RN and is supervised by Director
Aguilar.
In early September, Aguilar claims she heard from two RNs
in Respondent’s post-partum department that a new mother in
their department was complaining of an incident where Toth
allegedly telephoned the new mother in her hospital room with
her baby crying in the background and stated: “Do you hear
your baby crying? Your baby is crying because the post-partum
nurses won’t pick up your baby.” (Tr. 65–66.) Aguilar further
explained that she interviewed the nurses and the new mother
about the alleged incident and took notes of these conversations
as is her custom and practice. (Tr. 68, 94, 189.)
On September 15, Aguilar wanted to get Toth’s side of the
story and conduct an investigatory meeting so she sent Toth an
email stating that she wanted Toth to set up an appointment
with her and that they needed to talk.20 (Tr. 67, 93, 185; GC
Exh. 6 at 3.) On September 20, Toth inquired further and re-
sponded to Aguilar by emailing: “what is it that you need to
talk with me about? I’ll wait to hear from you.” (GC Exh. 6 at
3.) On September 23, Aguilar responded: “I need to review
with you about a patient complaint the other night. Please
schedule an appointment with me. I don’t know your schedule,
but let me know and I will come in early or stay late. Please
advise. Thank you.” (GC Exh. 6 at 2–3.) Toth delayed her re-
sponse to Aguilar and credibly explained that the anticipated
meeting could potentially involve discipline so she tried to
arrange for a union representative to be present. (Tr. 186.)
On October 7, Toth writes: “[S]orry Arleen. Will this meet-
ing that you would like to have with me possibly lead to me
being disciplined? If so, I would like to have a union rep. pre-
sent. I can meet with you on [F]riday, tomorrow, if you like,

both Aguilar and Nurse Representative Barker at trial, I find Barker to
be the more credible witness due to the ease and clarity of her recollec-
tion of the employee lounge incident with Aguilar and Aguilar’s admis-
sion that she needed “clarity” from Barker on the roles of nurse repre-
sentatives as of late August since the Union’s certification “was so
new.” (Tr. 251.) In addition, like Adams, Barker testified against her
own interests as at the time of trial she remained employed at Respond-
ent and must continue to face Director Aguilar as her immediate super-
visor after trial. See S.E. Nichols, Inc., supra at fn. 2 (Current respond-
ent employee’s testimony more reliable because it is given against his
interest to remain employed by respondent.).
20 Toth appeared credible when she remarked that the email request
from Aguilar to set up a meeting was unusual as Aguilar typically
called nurses if she wanted to speak with them. Toth became concerned
by the unusual email from Aguilar that something more serious might
have happened. (Tr. 186.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

466
7:30 to 8:00 a.m. sounds good to me. [L]et me know.”21 (GC
Exh. 6 at 2.) Despite admitting at trial that Toth would have
been disciplined depending on her actual response at the meet-
ing to the alleged incident, later on October 7, Aguilar replies:
“No, it is not . . . . I just need to ask you some questions. When
are you available next week?” (Tr. 68, 93–94; GC Exh. 6 at 2.)
From this reply, Toth reasonably believed at that time that the
meeting with Aguilar was not about Toth’s own work conduct
but, instead, involved some other person or incident that Agui-
lar needed Toth’s input. (Tr. 187.)
On October 13, after a few more email exchanges, Aguilar
and Toth finally met in Aguilar’s office for about 10–15
minutes without Toth having a nurse representative present.22
(Tr. 188, 191.) Aguilar began the meeting by recounting the
alleged incident involving the new mother and her crying baby
in the post-partum unit and a nurse allegedly calling the mother
so she could hear her baby’s cries because the post-partum
nurses would not pick up the baby. (Tr. 188.)
Toth convincingly explained that because Aguilar recounted
the alleged incident in an accusatory tone without identifying
Toth as the nurse who made the alleged phone call to the new
mother, Toth responded to Aguilar’s recount of the alleged
incident by telling Aguilar that she was not the nurse who made
the call. (Tr. 188–189, 191.) Aguilar responded by telling Toth
that the new mother had identified Toth by name and, after
Toth further defended herself with a second denial, Aguilar
responded that “I [Aguilar] wouldn’t make this up.” (Tr. 189.)
When asked by Toth if she had any documented proof of her
allegations, Aguilar claimed to have lost all her paperwork and
could not recall the name of the new mother or whether she met
her in her office or spoke to her over the phone. (Tr. 68, 189–
190.) Aguilar admitted to Toth at their meeting and again at
trial that she would have imposed more severe consequences on
Toth if she had either not lost her interview notes and paper-
work or if Toth admitted doing what was alleged in the patient
complaint. (Tr. 68, 93–94, 190–191.)
At the conclusion of their meeting, Aguilar presented Toth
with a pre-prepared “Employee Coaching Report,” a form that
Toth had not seen before, which memorialized the incident,
required both to sign, and recommended that Toth retake the
customer service (AIDET) training because Toth had not com-
plied with AIDET practices and expectations required of Re-
spondent’s nurses. (Tr. 190; GC Exh. 11.) At the bottom of the
October 13 coaching report, Toth wrote “[a]s per Arleen Cas-
arez-Aguilar, this is not a counseling. No paperwork available
concerning this alleged incident.” (GC Exh. 11.) Toth credibly
explained that she wrote this because she felt deceived by
Aguilar’s earlier email statement that the meeting would not

21 Apparently some time between Aguilar’s initial September 15
email request to Toth to set up a meeting and Aguilar’s October 7 reply
referred to below, Aguilar claims she lost all of her notes and paper-
work from the new mother and the two nurses she interviewed about
the alleged incident involving Toth. (Tr. 68, 94, 189.)
22 When asked why Aguilar did not offer Toth a witness for the
meeting as she had done with the Moore investigatory meeting as her
custom and practice, Aguilar responded that Toth hadn’t asked for a
witness, she had asked for a representative and Aguilar still needed to
get Toth’s side of the story. (Tr. 93.)
end in discipline and she wanted anyone reading this coaching
report to know that Aguilar had deceived her. (Tr. 193.)
III. DISCUSSION AND ANALYSIS
A. Credibility
The key aspects of my factual findings above with respect to
various incidents and meetings between Respondent’s director
and supervisor, Aguilar and her staff RNs incorporate the cred-
ibility determinations I have made after carefully considering
the record in its entirety. The testimony concerning the material
events in 2010 contain sharp conflicts. Evidence contradicting
the findings, particularly testimony from Aguilar, has been
considered but has not been credited.
My credibility resolutions have been formed by my consid-
eration of a witness’ opportunity to be familiar with the sub-
jects covered by the testimony given; established or admitted
facts; the impact of bias on the witness’ testimony; the quality
of the witness’ recollection; testimonial consistency; the pres-
ence or absence of corroboration; the strength of rebuttal evi-
dence, if any; the weight of the evidence; and witness demeanor
while testifying. More detailed discussions of specific credibil-
ity resolutions appear herein in those situations that I perceived
to be of particular significance.
The facts concerning Aguilar’s admitted confusion about the
Union’s Weingarten rights after the June certification as re-
called by Nurse Representative Barker and described by her
were most convincing as it consistently explains Aguilar’s un-
lawful behavior toward both Moore and Toth.
Barker’s demeanor at trial was impressive. Nurse Repre-
sentative Barker has worked under Respondent’s direc-
tor/supervisor, Aguilar for almost 4 years and was still super-
vised by her at the time of the hearing. Nurse Representative
Barker’s chronology of events and detailed recollection of
Aguilar’s confusion and outright refusal to recognize and allow
Weingarten rights at her August 14 and October 13 investigato-
ry interviews was quite credible especially when verified by
Nurse Representative Adams, Moore, and Toth.
I found key elements of the testimony given by Respondent’s
principal witnesses, Aguilar and Meeks, that conflict with the
testimony of unit witnesses unworthy of belief especially given
Aguilar’s obvious deception toward Toth and the misrepresent-
ed circumstances resulting in their October 13 meeting. As
referenced above, I further find that Aguilar incorrectly be-
lieved that the Union did not have any rights to represent unit
RNs in investigatory meetings until a formal collective-
bargaining agreement was firmly in place.
Also, I reject Aguilar’s unbelievable attempt to break her
meetings into “witness” meetings taking place in Aguilar’s
office without Respondent’s HR representative where a nurse
representative was unnecessary and “representative” meetings
which would take place “down to HR” where a nurse repre-
sentative would be allowed to attend on behalf of a unit RN.
(See Tr. 56–57.) In addition, I further find Aguilar noncredible
with her statements in the Toth incident that she had lost all her
paperwork and could not recall the name of the new mother or
whether she even met her in her office or spoke to her over the
phone. In virtually all of the significant instances, reliable doc-
LAS PALMAS MEDICAL CENTER

467
umentary evidence failed to support accounts provided by Re-
spondent’s key witnesses.
Adams, Moore, and Toth were also credible witnesses as
they were earnest, genuine, and their testimonies were reasona-
ble and consistent with the record. In addition, they appeared
serious and respectful of the hearing process. In contrast, Agui-
lar appeared scattered, unorganized, and had less reliable recol-
lection than the other witnesses. Also, TCN Phillip testified
reluctantly and was very soft spoken in her demeanor which
gave me the impression that she preferred saying a little as
possible in fear of possibly upsetting Respondent’s manage-
ment if she said something that hurt their case.
B. General Weingarten Right
In NLRB v. Weingarten, 420 U.S. 251 (1975), the Supreme
Court upheld the “Board’s construction that Section 7 creates a
statutory right in an employee to refuse to submit without union
representation to an interview which the employee reasonably
fears may result in his discipline.”23 The Court also upheld the
contours and limits of the statutory right shaped by the Board in
prior decisions:
First, the right adheres in Section 7’s guarantee of the right of
employees to act in concert for mutual aid and protection. . . .
Second, the right arises only in situations where the employee
requests representation. . . . Third, the employee’s right to re-
quest representation as a condition of participation in an inter-
view is limited to situations where the employee reasonably
believes the investigation will result in disciplinary action . . .
. [Emphasis added.] Fourth, exercise of the right may not in-
terfere with legitimate employer prerogatives. Fifth, the em-
ployer may carry on its inquiry without interviewing the em-
ployee, thus leaving to the employee the choice between hav-
ing an interview unaccompanied by his or her representative,
or having no interview and foregoing any benefits that might
be derived from one. Sixth, the employer has no duty to bar-
gain with any union representative who may be permitted to
attend the investigatory interview. [Id. at 256–259.]
In Quality Mfg. Co., 195 NLRB 197, 199 (1972), cited with
approval by the Supreme Court in its Weingarten decision, the
Board said:
This seems to us to be the proper rule where as here, the inter-
view, whether or not purely investigative, concerns a subject
matter related to disciplinary offenses. We would not apply
the rule to such run-of-the-mill shop-floor conversation as, for
example, the giving of instructions or training or needed cor-
rections of work techniques. In such cases there cannot nor-
mally be any reasonable basis for an employee to fear that any
adverse impact may result from the interview, and thus we
would then see no reasonable basis for him to seek the assis-
tance of his representative.

23 Even an employee’s request for the assistance of a representative
from a newly elected but not yet certified union must be honored by the
employer under Weingarten. ITT Corp. Lighting Fixtures Division, 261
NLRB 229 (1982), enf. granted in part and denied in part 719 F.2d 851
(6th Cir. 1983).
The Board and the courts, however, have had difficulty in
determining under what circumstances a reasonable basis exists
for believing that the investigatory interview will result in dis-
ciplinary action. AAA Equipment Service Co., 238 NLRB 390
(1978), enf. denied 598 F.2d 1142 (8th Cir. 1979); Good Hope
Refineries, Inc. v. NLRB, 620 F.2d 57 (5th Cir. 1979), cert.
denied 449 U.S. 1012 (1980).
Thus, even a conversation between a supervisor and an em-
ployee about improving the employee’s production may trigger
Weingarten rights if sufficiently linked to a real prospect of
discipline for poor production. Quazite Corp., 315 NLRB 1068
(1994).24 Moreover, Weingarten rights are applicable even at a
disciplinary interview if the employer engages in investigatory
conduct “beyond merely informing the employee of a previous-
ly made disciplinary decision.” Baton Rouge Water Works Co.,
246 NLRB 995, 997 (1979). Furthermore, the Board has held
that where an employer informs an employee of a disciplinary
action and then questions the employee to seek information to
bolster that decision, the employee’s right to representation
applies. Becker Group, Inc., 329 NLRB 103, 107 (1999).
In Titanium Metals Corp., 340 NLRB 766 (2003), enf. in
part 392 F.3d 439 (D.C. Cir. 2004), 340 NLRB 766, the Board
held that an employer unlawfully denied an employee’s request
for a union representative at a meeting, even though the ex-
pressed purpose of the meeting was simply to inform the em-
ployee of a decision regarding discipline that the employer had
already made. The Board found that the employee had a right to
a union representative’s presence because the employer went
beyond its stated purpose by interrogating and searching the
employee for newletters in an attempt to support its decision to
discipline him.
Even if the employee at issue is an officer of the union, the
employee is still entitled to union representation if requested. In
United States Postal Service, 345 NLRB 426 (2005), the Board
held that the employer violated Section 8(a)(1) when it refused
to allow an employee, a union steward, to apply his Weingarten
rights prior to an investigatory interview.
The employee’s right to the assistance of a union representa-
tive arises only upon the request of the employee; the employer
has no duty to inform the employee of the right. NLRB v. New
Jersey Bell Telephone Co., 936 F.2d 144 (3d Cir. 1991). Once
an employee makes a valid request for union representation, the
employer is permitted one of three options: (1) grant the re-
quest; (2) dispense with or discontinue the interview; or (3)
offer the employee the choice of continuing the interview unac-
companied by a union representative, or of having no interview
at all, thereby foregoing any benefit that the interview might
have conferred on the employee. Roadway Express, Inc., 246
NLRB 1127 (1979). The employer, however, may not continue
the interview without granting the requested union representa-

24 In contrast, see Southwestern Bell Telephone Co., 338 NLRB 552
(2002), where the Board found that there was “no basis for concluding
that [the employee] could have reasonably believed that the . . . meet-
ing would result in discipline” where there was no evidence to show
that the employer disciplined employees for low production perfor-
mance and, even if the manager had referred the employee to the EAP
program, the EAP was a benefit provided for the employees and not a
form of discipline.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

468
tion unless the employee “voluntarily agrees to remain unrepre-
sented after having been presented by the employer with the
choices” just described, or “is otherwise made aware of these
choices.” United States Postal Service, 241 NLRB 141, 142
(1979) (emphasis in original); see also Penn Dixie Steel Corp.,
253 NLRB 91 (1980).
An employer violates Section 8(a)(1) of the Act by proceed-
ing with an investigatory interview without the union repre-
sentative, after the employee has requested union representa-
tion, even if a fellow employee monitors the interview as a
witness. Williams Pipeline Co., 315 NLRB 1 (1994) (where
lone union steward was unavailable at time employer conduct-
ed interview, presence of fellow employee did not satisfy em-
ployee’s right to be represented by agent of exclusive repre-
sentative of employees). Moreover, the employer cannot insist
that the union representative be merely an observer but must be
afforded the opportunity to provide “advice and active assis-
tance” to a represented employee. Washoe Medical Center,
Inc., 348 NLRB 361 (2006); Barnard College, 340 NLRB 934
(2003).
Weingarten does not require an employer to postpone an in-
terview because the specific union representative the employee
requests is absent, so long as another union representative is
available at the time set for the interview. However, where the
employee’s chosen union representative is available, the em-
ployer violates Section 8(a)(1) by insisting that another union
representative more to the employer’s liking represent the em-
ployee. Consolidated Coal Co., 307 NLRB 976 (1992).
Once a union is certified by the Board, a union enjoys a pre-
sumption of continuing majority support, and the employer has
a corresponding continuing obligation to recognize and bargain
with the union. Minn-Dak Farmers Cooperative, 311 NLRB
942, 949 (1993); Burger Pits Inc., 273 NLRB 1001 (1984).
Here, as explained below, Aguilar was ignoring recognition of
the Union by failing to provide Unit RNs Moore and Toth their
Weingarten rights.
C. Moore Was Unlawfully Denied Her Weingarten Rights
Respondent has stipulated, and I find, that the investigatory
interview that Moore was to have with Aguilar on August 14
could have resulted in Moore being disciplined. (Tr. 60, 161;
GC Exh. 1(i).) I further find that Moore validly requested Ad-
ams to be her nurse representative and expressed that desire to
Respondent who was aware that Adams was a designated nurse
representative. (Tr. 49–52; GC Exh. 3 at 2.) Moreover, an em-
ployee has only to ask once for her union representative to in-
voke the right to representation. Ball Plastics Division, 257
NLRB 971, 976 (1981). Respondent did not cancel the investi-
gatory interview but went forward with it. Respondent’s arbi-
trary timing of the proposed interview and its refusal to let
Nurse Representative Adams, who was present but briefly oc-
cupied, to represent Moore at the investigatory interview was a
violation of Section 8(a)(1) of the Act. See GHR Energy Corp.,
294 NLRB 840 (1989) (Violation of the Act found to deny an
employee his choice of representative, who was from the Inter-
national union and present, and force the employee to proceed
with another representative.).
In the instant case, it would not have been a violation of the
Act if Respondent denied Moore’s request for representation by
Nurse Representative Adams if Adams was not present or was
materially unavailable, and to grant the request would force a
postponement of the investigatory interview. See Coca-Cola
Bottling Co., 227 NLRB 1276 (1977). But in the instant case as
in GHR Energy supra, and Anheuser-Busch, Inc., 337 NLRB 3
(2001), enfd. 338 F.3d 267 (4th Cir. 2003), the requested repre-
sentative (Adams) was present, and, but for a brief delay of no
more than 10 minutes, was ready to go forward. (Tr. 84, 148.) I
do not believe that the fact that Adams was performing her
regular RN duties for a short period of time of no more than 10
minutes when Aguilar arbitrarily decided to conduct the inves-
tigatory meeting made Adams any less “available” than had
Aguilar attempted to secure Nurse Representative Barker’s
presence instead. Respondent presented no evidence that a short
5–10-minute delay in commencing the investigatory meeting
with Moore and Adams was somehow unreasonable especially
given the fact that Aguilar spent an additional 45 minutes in her
office after the meeting with Moore and TCN Philip.25 (CP
Exh. 2.) Rather, here, the requested Nurse Representative Ad-
ams was present and, but for no more than a 5- to 10-minute
delay, was ready to go forward. Hence, Respondent violated
Section 8(a)(1) of the Act.
Although Moore had requested and informed Direc-
tor/Supervisor Aguilar she wanted and preferred the presence
of Nurse Representative Adams at the investigatory interview
on August 14, the evidence of record fails to show that Aguilar
ever advised Moore that the Respondent would not proceed
with the interview unless Moore was willing to go forward with
the interview unrepresented without Union Nurse Representa-
tive Adams, as Weingarten requires an employer to do.
Weingarten, supra.
At the hearing, Aguilar tried to give the impression that
Moore was willing to substitute TCN Phillip for Nurse Repre-
sentative Adams as her nurse representative. However, the
credited evidence shows that Moore unwillingly elected to go
forward with TCN Phillip as a witness because she did not feel
she had the freedom to postpone the meeting without Nurse
Representative Adams. Moore’s feeling of being constrained to
go forward with the interview unrepresented by Adams is obvi-
ously, the very reason why Weingarten requires the employer
to advise the requesting employee that the employer will not
proceed with the interview unless the employee is willing to
proceed unrepresented by the union. Since neither Aguilar nor
TCN Philip so advised Moore, it is reasonable and understand-
able why Moore felt constrained (conflicted) to proceed with-
out Nurse Representative Adams, who was briefly unavailable
at the arbitrary time set for the interview.
Additionally, an employee’s “right to representation” in an
investigatory interview is an employee’s right to a representa-
tive who is an agent of the labor organization—which is the
exclusive representative of the employees. Sears, Roebuck &

25 See also Anheiser-Busch, Inc., supra at 8, where it was determined
that the interview could have proceeded with only minimal delay (15-
minute delay due to lunch break was immaterial) which was insuffi-
cient to deny the employee the representative of his choice.
LAS PALMAS MEDICAL CENTER

469
Co., 274 NLRB 230 (1985); T.N.T. Red Star Express, 299
NLRB 894, 898 fn. 12 (1990); NLRB v. J. Weingarten, supra.
In the instant case, it is without dispute that employee TCN
Philip was not a nurse representative, steward, or an agent of
the Union in August when she sat in on Moore’s investigatory
interview as a witness. Moore’s involuntary election for TCN
Philip’s presence in the interview did not transform TCN Philip
into a union agent or nurse representative. Nor did TCN Phil-
ip’s presence constitute a waiver by Moore of her right to union
representation at the interview. See Southwestern Bell Tele-
phone Co., 227 NLRB 1223 (1977). Also in Super Valu Stores,
236 NLRB 1581, 1591 (1978), the administrative law judge
with Board approval, described an employer’s objections, in a
Weingarten situation, when a union representative is not avail-
able by stating:
In this circumstance, the employer had the choice of giving
the employee time or a postponement to obtain the representa-
tion or as the Supreme Court pointed out in Weingarten . . . of
advis[ing] the employee that it will not proceed with the inter-
view unless the employee is willing to enter the interview un-
accompanied by his representative.
With respect to an employee going forward with the inter-
view without the requested union representation, the adminis-
trative law judge further stated:
The fact that [the employee] stayed, and answered the ques-
tions put to him, did not make his participation voluntary or
constitute a waiver of his right to union representation. It
should not be a requisite of union representation that the lone
employee further antagonize the employer and jeopardize his
job by walking out of the meeting or refusing to answer ques-
tions. [Id.]
At the hearing here, Moore credibly and convincingly ex-
plained why she did not walk out of the meeting because Nurse
Representative Adams was briefly unavailable. The record
shows that Respondent did nothing to make her feel welcome
to walk out or to request a postponement of the interview until
Nurse Representative Adams was available. Instead Respond-
ent suggested and acquiesced in TCN Philip being present at
the interview, though through Aguilar’s unlawful confusion,
she required TCN Philip to be present merely as a witness
without any power to document what was said or provide ad-
vice to Moore.26
Under such circumstances I do not find that because Moore
felt constrained to go forward with the interview without Nurse
Representative Adams, meant that she voluntarily went for-
ward, or that her going forward constituted a waiver of her right
to union representation. See Super Valu Stores, supra. Moreo-

26 See Williams Pipeline Co., 315 NLRB 1 (1994) (Lone union stew-
ard was unavailable at time employer conducted interview, presence of
fellow employee did not satisfy employee’s right to be represented by
agent of exclusive representative of employees); see also Washoe Med-
ical Center, Inc., 348 NLRB 361 (2006) (Employer cannot insist that
the union representative be merely an observer but must be afforded the
opportunity to provide “advice and active assistance” to a represented
employee); Barnard College, 340 NLRB 934 (2003) (Same).

ver, during the investigatory meeting, Moore was once again
denied her Weingarten rights when Aguilar unlawfully repeated
that Moore had no right to a nurse representative and refused to
answer Nurse Representative Adams call to attend the meeting
while it was taking place in Aguilar’s office.
Consequently, based on the foregoing findings and cited le-
gal authority, I conclude and find that Moore validly requested
Nurse Representative Adams be her representative at the up-
coming investigatory meeting with Aguilar and Aguilar went
forward with the investigatory interview without the presence
of Nurse Representative Adams, without affording Moore the
brief time necessary to have Nurse Representative Adams at-
tend the meeting, and without Respondent having advised her
that the Respondent would not proceed with the interview un-
less Moore was willing to go forward unrepresented by the
Union. I further find that such conduct by the Respondent con-
stituted an interference with, a restraint on, and coercion against
the exercise of employee’s Section 7 rights, in violation of Sec-
tion 8(a)(1) of the Act.
D. Toth was also Unlawfully Denied Her Weingarten Rights
The record evidence is uncontroverted that in response to
Toth’s October 7 email question about potential discipline aris-
ing from the anticipated investigatory interview, Aguilar either
remained confused and ignored that Toth even had Weingarten
rights, just the same as she had done with Moore in August, or
Aguilar plainly lied to Toth by responding: “‘No, it is no’ . . . I
just need to ask you some questions.” (GC Exh. 6 at 2.)
At trial, Aguilar admitted that she, in fact, was prepared to
hand out more severe discipline to Toth depending on Toth’s
telling her side of the story at the scheduled October 13 investi-
gatory interview. (Tr. 67.) Thus, Toth had ample reason to be-
lieve she could or would be subjected to disciplinary action
because of Aguilar’s admission and the unusual means Aguilar
chose to communicate with Toth. Any contrary finding would
violate public policy by allowing a supervisor’s deception to
defeat a union employee’s Weingarten rights. Moreover, be-
cause the employer first determines whether to permit union
representation, it must bear the risk for falsely characterizing
the nature of the interview. Consequently, I find that Respond-
ent violated Section 8(a)(1) of the Act by the actions of its su-
pervisor, Aguilar, in denying employee Toth her union repre-
sentation upon her request before Aguilar sought information
from Toth at the investigatory meeting.
In his brief the Respondent contends that the “conversation”
between Aguilar and Toth was not an interview as Aguilar
sought no information from the employee, but rather involved
Aguilar simply communicating to Toth her need for additional
customer service training. However, Aguilar’s own admission
indicates that she was seeking information and inquiring of
Toth about whether she would admit to Aguilar’s undocument-
ed version of facts concerning the patient complaint. Linked as
this was with the threat of further discipline if Toth admitted to
calling the new mother by phone for her to hear her crying
baby, I find that this was an investigatory interview to learn
Toth’s own version of facts surrounding the patient complaint
and I further find that Toth had a reasonable basis for believing
that this meeting could lead to discipline. See Quazite Corp.,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

470
315 NLRB 1068, 1069–1070 (1994) (Even conversation be-
tween a supervisor and an employee about improving the em-
ployee’s production may trigger Weingarten rights if sufficient-
ly linked to a real prospect of discipline for poor production).
Moreover, contrary to Respondent’s argument, I further find
that Carrillo’s admission that Respondent used its Coaching
Reports (recorded in its employees’ files and maintained by
Aguilar) to discipline employees who accumulated an unstated
number of such reports proves that the Coaching Report di-
rected at Toth could be used against Toth as a form of disci-
pline, and was not merely an educational or training tool.27 As
such, this combined with Aguilar’s admission that Toth was
exposed to more severe discipline depending on what Aguilar
elicited from Toth during the course of her obtaining Toth’s
side of the story, I further find that the October 13 meeting
between Toth and Aguilar was a disciplinary interview trigger-
ing Toth’s Weingarten rights.
Because: (1) these Coaching Reports were not simply used
as an educational or training benefit but, instead, were a form of
discipline dutifully maintained and recorded in Respondent’s
employees’ records for future use, if necessary, in Aguilar’s
shadow files; and (2) Aguilar lied to Toth about the nature of
their investigatory meeting—this case is factually distinguisha-
ble from the facts in Baton Rouge Water Works, Success Vil-
lage Apartments, and other cases cited by Respondent.
In sum, I find that because Respondent admittedly engaged
in conduct beyond merely informing Toth of a previously made
disciplinary decision, the Coaching Report, the full panoply of
protections accorded Toth under Weingarten is applicable.
Thus, I find that because Respondent informed Toth of the
disciplinary Coaching Report action and then sought facts or
evidence in support of that action, and attempted to have Toth
admit her alleged wrongdoing, Toth’s right to union representa-
tion attached. See Baton Rouge Water Works, supra at 997;
Manor Care of Easton, 356 NLRB 202 (2010). The interroga-
tion took place in a supervisor’s office. Also, based on Becker
Group, Inc., supra, I find Respondent violated Section 8(a)(1)
when Aguilar went beyond informing Toth of the disciplinary
Coaching Report and elicited Toth’s side of the story to deter-
mine whether to impose more severe discipline concerning the
patient complaint in the absence of a union representative.
E. TCN Philip was not a Supervisor when She met with
Moore and Aguilar
The Acting General Counsel urges that remedial relief here
be expanded in its favor due to the egregious nature of replac-
ing Nurse Representative Adams with alleged supervisor TCN
Philip at the meeting between Moore and Aguilar.

27 While normally there is not a reasonable basis to believe that a
coaching would lead to an adverse impact (Weingarten, supra at 247–
258), here, Carrillo admitted that Respondent’s Coaching Reports were
recorded in its employees’ files maintained by their supervisor, Aguilar,
and that these reports could be used against an employee in a discipli-
nary action. (Tr. 227–229, 238–239.) Contrary to Respondent’s argu-
ment, Toth credibly responded that she did not know at the October 13
interview whether any negative consequences could flow from the
Coaching Report though she believed it was a disciplinary form. (Tr.
196–197.)
Under Board and Supreme Court precedent, in order to be a
statutory supervisor, an individual must have the authority to
effectuate or effectively recommend at least one of the supervi-
sory indicia enumerated in Section 2(11) of the Act, using in-
dependent judgment in the interest of the employer. Oakwood
Healthcare, Inc., 348 NLRB 686, 687 (2006) (citing NLRB v.
Kentucky River Community Care, 532 U.S. 706 (2001)). It is
well established that the party asserting supervisory status bears
the burden of proof on the issue, Oakwood Healthcare, Inc.,
supra at 686. The burden must be carried as to each particular
individual who is alleged to be a supervisor.
Section 2(11) of the Act provides that a supervisor is one
who possesses, “authority, in the interest of the employer, to
hire, transfer, suspend, layoff, recall, promote, discharge, as-
sign, reward, or discipline other employees, or responsibly
direct them, or to adjust their grievances, or effectively to rec-
ommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.” The
Board noted in Oakwood Healthcare Inc., supra, citing Chev-
ron Shipping Co., 317 NLRB 399, 381 (1995), that as a general
principle, it has exercised caution not to construe supervisory
status too broadly because the employee deemed a supervisor is
denied rights the Act is intended to protect.
In addition, for an employee to be deemed a supervisor, they
must spend a “regular” and “substantial” amount of time per-
forming supervisory functions. Oakwood Healthcare, Inc.,
supra at 694. For the reasons that follow, I find that while TCN
Philip used independent judgment in exercising her supervisory
functions in evaluating RNs’ work performances and managing
and directing their work, there is inadequate evidence showing
that TCN Philip spent a “regular” and “substantial” amount of
time performing supervisory functions.
Here, TCN Philip testified that she assigns work to RNs and
evaluates their performance which evaluations are not merely
routine or clerical in nature and may be used in combination
with other charge nurse or supervisor evaluations to promote or
reward other employees. (Tr. 86–88, 121–122; GC Exh. 12 at
4.) As a result, I find that because TCN Philip prepares evalua-
tions of RNs’ work performances, she must use her own inde-
pendent judgment to prepare an evaluation which contributes to
promote or reward an employee who excels.
As to the analysis of whether TCN Philip spends a “regular”
and “substantial” portion of her work time performing the su-
pervisory functions of a charge nurse, “[t]he Board has not
adopted a strict numerical definition of substantiality and has
found supervisory status where the individuals have served in a
supervisory role for at least 10–15 percent of their total work
time.” Oakwood Healthcare, Inc., supra at 694. In this case,
the only evidence put forth regarding how often TCN Philip
spends as a relief charge nurse was her response when asked as
follows:
Depending on the need of the [U]nit, it’s not a regular pattern.
Like depending on the need of the unit. Anywhere from one
to two per week. I can’t say it’s one to two. Sometimes I have
done none that week, and sometimes two and sometimes one
[shift]. [Tr. 118.]
LAS PALMAS MEDICAL CENTER

471
I find this evidence is inadequate to support a factual finding
that TCN Philip served in a supervisory role for at least 10–15
percent of her total time at work. Therefore, I find that there is
insufficient evidence to support a finding that TCN Philip spent
a “regular” and “substantial” portion of her time performing
supervisory functions. Thus, there is inadequate evidence to
prove that TCN Philip was a supervisor when she met on Au-
gust 14 with Moore and Aguilar.
F. The Employer Unlawfully Violated Section 8(a)(1)
when Aguilar Threatened and Interrogated Other Union
Employees Concerning their Weingarten Rights and by
Informing them that Exercising their Right to Union
Representation Would be Futile
It is alleged in paragraphs 5(a) and (b) of the complaint that
on or about August 14, Aguilar “interrogated employees con-
cerning their request for Union representation for an investiga-
tory meeting” and “threatened employees by informing them
that exercising employee rights to Union representation for
investigatory interviews would be futile.” (GC Exh. 1(g) at 3.)
From counsel for the Acting General Counsel’s posthearing
brief, it is apparent that these allegations are intended to relate
to conversations on August 14 between Aguilar and Moore as
to the alleged interrogation and later in August between Aguilar
and Nurse Representative Barker as to the alleged threats. (See
Tr. 134-139, 144, 164–165, 167–170, and 251–253.)
1. Aguilar interrogated employees concerning their
request for union representation for an
investigatory meeting.
Traditionally, the Board looks to the “totality of the circum-
stances” in determining whether a supervisor’s questions to an
employee about his protected activity were an unlawful interro-
gation under the Act. Rossmore House, 269 NLRB 1176
(1984), affd. sub nom. In Medcare Associates, Inc., 330 NLRB
935 (2000), the Board listed a number of factors considered in
determining whether alleged interrogations under Rossmore
House were coercive. These are referred to as “Bourne factors,”
so named because they were first set forth Bourne v. NLRB, 332
F.2d 47, 48 (2d Cir. 1964). These factors include the back-
ground of the parties’ relationship, the nature of the information
sought, the identity of the questioner, the place and method of
interrogation, and the truthfulness of the reply. Under this test,
either the words themselves, or the context within which they
are used, must suggest an element of interference or coercion.
Stabilus, Inc., 355 NLRB 836, 850 (2010).
Applying these factors, I find that there is no history of em-
ployer hostility toward or discrimination against union activity
though the evidence shows that Respondent’s expressed posi-
tion was that the Union was “not in” despite the certification of
the Union on June 7. (See Tr. 164.) Aguilar questioned Moore
in a Weingarten meeting like an interrogator with quick fol-
lowup questions about Moore’s request for representation even
after Aguilar had already unlawfully denied Moore a nurse
representative, she continued with her specific inquiry “why do
you want someone here with you[?] [T]he Union is not even
here yet.” (Tr. 164.) I further find that this type of questioning
no doubt had a chilling effect on Moore’s ability to answer
Aguilar’s questions. Regarding the interrogator’s identity,
Aguilar was a statutory supervisor. She possessed authority to
evaluate employees and to determine who would be disciplined.
Furthermore, August 14 investigatory meeting with Moore took
place in Aguilar’s office behind closed doors. Under these
circumstances, I find that the Respondent violated Section
8(a)(1) of the Act by coercively interrogating Moore about her
desire for union representation.
2. Aguilar threatened employees by informing them that
exercising employee rights to union representation
for investigatory interviews would be futile
An employer may not tell employees that it would be futile
for them to seek Weingarten rights after union certification.
Examples of unlawful statements of futility include advising
employees that the employer will never permit its workplace to
be unionized (see Goya Foods, 347 NLRB 1118, 1128–1129
(2006), enfd. 525 F.3d 1117 (11th Cir. 2008); Wellstream
Corp., 313 NLRB 698, 706 (1994)), and advising employees
that the employer will not negotiate with a union (Altercare of
Wadsworth Center for Rehabilitation and Nursing Care, Inc.,
355 NLRB 565, 574 (2010); Goya Foods, 347 NLRB at 1132)).
In late August, Aguilar approached Nurse Representative
Barker in the employee lounge with questions concerning the
role of nurse representatives to assist unit RNs at meetings with
management or, in sum, allowing the exercise of their
Weingarten rights. (Tr. 136–137.) At that time, Aguilar opined
that nurse representatives could not talk or participate at such
meetings just the same as Aguilar’s own practice had prohibited
RN “witnesses” from participating in past investigatory meet-
ings before union certification. (Tr. 136–138.)
Aguilar further expressed to Nurse Representative Barker her
belief that the Union’s role through its nurse representatives in
these meetings was being blown out of proportion and that
Aguilar admittedly wanted clarity as she did not fully under-
stand what role nurse representatives fulfilled after the new
union certification. (Tr. 138–139, 251.) Specifically, Aguilar
said: “Well they [Nurse Representatives] can’t do anything—
you guys can’t do anything when you’re in there [attending an
investigatory meeting] anyways, you guys aren’t supposed to
participate in the meeting.” (Tr. 137.) Thus, Aguilar effectively
told Nurse Representative Barker that Barker could not partici-
pate in an investigatory meeting because the parties had no
contract [i.e., “the Union is not even here yet.” (Tr. 164)], and
the Respondent did not recognize the nurse representatives as
shop stewards. Thus, Aguilar unlawfully threatened employees
in violation of Section 8(a)(1) of the Act by suggesting to Bark-
er that efforts to seek union representation would be futile. See
Dish Network Service Corp., 339 NLRB 1126, 1128 (2003)
(Board held that employer statements casting doubt on the right
of shop stewards to participate in investigatory meetings
“communicated to employees the futility of trying to deal with
the respondent through their own designated representatives.”);
see also Morse Operations, Inc., 336 NLRB 1090, 1099 (2001)
(Same.)
CONCLUSIONS OF LAW
1. Respondent, El Paso Healthcare System, LTD, d/b/a Las
Palmas Medical Center, El Paso, Texas, is an employer en-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

472
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent engaged in conduct in violation of Section
8(a)(1) of the Act.
(a) Interrogating Karin Moore at the August 14, 2010 inter-
view.
(b) By denying Karin Moore’s request for union representa-
tion at the August 14, 2010 interview.
(c) By threatening Nurse Representative Anna Barker that by
exercising unit RNs’ right to union representation would be
futile.
(d) By denying Ida (Cindy) Toth’s request for union repre-
sentation at the October 13, 2010 interview.
4. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The above violations are unfair labor practices within the
meaning of the Act.
6. The Respondent has not otherwise violated the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist from engaging in such conduct in the future and to take
certain affirmative action designed to effectuate the policies of
the Act. To remedy the Respondent’s violations of Section
8(a)(1) of the Act, I shall recommend that the Respondent post
and abide by the attached notice to employees.
The General Counsel requests a broad remedial order in this
case. The Board in Hickmott Foods, 242 NLRB 1357 (1979),
held that a broad cease-and-desist order requiring a Respondent
to cease and desist from “in any other manner” restraining or
coercing employees in the exercise of their Section 7 rights
rather than the narrow “in this or any like manner” language
should be reserved for situations where a Respondent is shown
to have a proclivity to violate to Act or has engaged in such
egregious or widespread misconduct as to demonstrate a gen-
eral disregard for the employees’ fundamental statutory rights.
Aguilar’s conduct here and in the Toth incident shows a bla-
tant disregard or understanding of its unit RNs’ Weingarten
rights. This combined with Aguilar’s deception in the Toth
incident is adequate for me to grant the application for a broad
remedial order.
[Recommended Order omitted from publication.]