Huron Valley Sinai Hospital

National Labor Relations Board - Administrative Judge Opinions

Nov 9, 2007

07-CA-050192 (N.L.R.B. Nov. 9, 2007)

JD–71–07
Detroit, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
HURON VALLEY SINAI HOSPITAL Cases 7–CA–50192
7–RC–23071
and
MICHIGAN COUNCIL 25, AMERICAN FEDERATION
OF STATE, COUNTY AND MUNICIPAL EMPLOYEES
(AFSCME), AFL-CIO
Robert Drzyzga, Esq., for the General Counsel.
Daryl Adams and Shaun Ayer, Esqs. (Floyd E. Allen and Associates),
of Detroit, Michigan, for the Respondent.
Eric I. Frankie, Esq., (Miller Cohen, P.L.C.), of Detroit, Michigan, for the Charging Party.
DECISION
Statement of the Case
ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Detroit,
Michigan, on July 23-26, and August 20-23, and August 29, 2007.1 The Union, Michigan
Council 25 (AFSCME), filed its original charge on March 2, 2007. On March 23, 2007, the
Union filed timely objections to an election conducted on March 16, 2007. In that election 211
employees voted against representation by the Union and 46 voted in favor of such
representation. The General Counsel issued his Complaint, Report on Objections and Notice of
Consolidation on May 31, 2007.
Respondent, Huron Valley Sinai Hospital (HVSH), is a wholly owned subsidiary of the
Detroit Medical Center (DMC). The General Counsel alleges that Respondent HVSH, by
Clinical Manager Jacqueline Dye, violated Section 8(a) (1) of the Act in coercively interrogating
employee Robin Taylor about his union sympathies and activities in mid-to-late January 2007.
He also alleges that Respondent violated Sections 8(a)(3), 8(a)(4) and 8(a)(1) by taking a
number of adverse personnel actions against Robin Taylor. These include verbal counselings
and two written warnings that Respondent presented to Taylor on February 2, 2007, its
suspension of Taylor on March 2, and its termination of Taylor on March 13, 3 days before
Respondent’s employees participated in the NLRB representation hearing.
Further, the General Counsel alleges that Respondent violated Section 8(a)(1) of the Act
by promulgating and maintaining the following policies: 1) a rule prohibiting employees from
being on its property during non-working hours except under clearly reasonable circumstances;
2) a rule forbidding any solicitation and distribution on its premises without management
approval; and 3) a rule permitting off-duty employees on DMC property for lawful purposes only
to the extent the general public is generally permitted on its property. Respondent prohibits

1 The August 29, 2007 hearing session was conducted via videoconference.
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greater access to its property unless it has granted the off-duty employee specific authorization
to enter areas from which the general public is barred.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondent and the Charging Party, I
make the following
Findings of Fact
I. Jurisdiction
Respondent, a wholly owned subsidiary of the Detroit Medical Center (DMC), is a
hospital in Commerce, Michigan. It admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also find that the Union
is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
Allegations relating to Robin Taylor
Robin Taylor’s work record at HVSH
Robin Taylor has worked at Respondent’s hospital since 1993 or 1994. For
approximately the past 8 years he has been a patient care associate (PCA). In that capacity, he
performs such tasks preparing IVs for the nurses, drawing blood, shaving male patients,
accompanying patients to the toilet, administering physical therapy, inserting and removing
catheters, bathing bedridden patients, transporting patients from one area of the hospital to
another and stocking supplies. He has also on many occasions worked as a sitter. In that
capacity, his job has been to keep patients who are deemed to pose a danger to themselves or
others under continual observation.
As a patient care associate, Taylor worked in the pre-op department. For the first 3-4
years that Taylor worked in that department, the Clinical Manager was June Jones. Three to
four years before his termination, Jones relinquished that position and became the charge
nurse. Jones was replaced as Clinical Manager by Jacqueline Dye. Taylor’s relationship with
Dye was never very good and much worse that his relationship with Jones. His performance
ratings from Dye were appreciably less complimentary than those he received from Jones.
While Jones was clinical manager, Taylor on at least some occasions came to work
earlier than his shift started and left earlier than it ended. On at least one occasion in March
2004, she counseled him about this. Jones offered the following assessment of Taylor:
…sometimes, he was a good worker, and sometimes, he did his own thing, and it’s
difficult to make him change.
Tr. 1023.
In response to my observation that the ratings she gave to Robin Taylor appeared very
favorable, Jones responded:
Well, he—like I said, he can be—he can treat people with kindness. When he brings
them back, he can. And at times, he’s very, very good at what he does. But I liken
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Robin to the—there’s a little kid poem. The little girl with the little curl on the forehead.
When he’s good, he’s very good, and when he’s bad, he’s not.
Tr. 1029-30.
Dye was much harsher in her assessment of Robin Taylor, testifying that incidents of
misconduct were continuous from the day she became his manager, Tr. 668.2 However, Dye
could point to only a few occasions on which she counseled Taylor before he assisted the Union
at the January 2007 representation hearing. In June 2005, Respondent prepared a discipline
report form for Taylor purporting to issue him a written warning for berating a patient for crying.
It has not been established, however, that Respondent ever presented the form to Taylor.3
Taylor testified he never saw it and Dye couldn’t recall whether or not she gave it to him. I find
that Respondent never gave Taylor a written warning prior to February 2, 2007.
Respondent contends that it placed Taylor on two performance improvement plans (PIP)
that are in the record as R Exhibits 12 and 13.4 Like the written warning, I find that it has not
been established that either PIP was ever presented to Taylor. The first from January 2005 to
January 2006 concerned time and attendance issues and failure to do his stocking of supplies
adequately. The second from July 2005 to 2006 involved wearing his ID badge and identifying
himself to patients and their families, his stocking responsibilities, some unspecified concern
about bringing patients and visitors to the department and failure to adhere to DMC customer
service policies. The allegation regarding customer service refers to the incident of June 28,
2005, in which Taylor is accused of berating a patient for crying.
However, Taylor begrudgingly concedes that his supervisor, Jacqueline Dye, put him on
a 30-day PIP in about November 2006. This was administered for poor stocking of supplies
next to the patient’s beds and poor customer relations. The latter deficiency concerned Dye’s
assessment of Taylor’s relations with co-workers, as opposed to patients.
Dye testified that she warned Taylor at least twice in 2004 about taking young girls to the
bathroom and closing the door. However, at hearing, Dye testified that, “I’m not accusing him of
attacking these young girls in the bathroom; I’m thinking it really looks bad…So when I caution
that I’m not saying Mr. Taylor you’re monkeying around with those little girls. I didn’t say that. I
said you don’t go in a room and close the door with you and a young girl in there; do not do
that.”
Tr. 816.
In the performance appraisal Dye signed for Taylor on July 10, 2006, she commented:

2 However, Dye agreed with Jones that “at times” Taylor did his job well.
3 The form, R. Exh. 16 is not signed by Taylor and he denies having seen it prior to the
hearing in this matter. The form states that if an employee declines to comment on the
discipline, “your Supervisor will make a notation to that effect.” Since there is no such notation, I
conclude that the warning was never presented to Taylor.
4 Taylor denies receiving either performance improvement plan (PIP). He signed neither
document. After testifying on direct examination that Taylor’s signature was not required on a
PIP, Jackie Dye conceded on cross examination that DMC policy required both the manager
and the recipient to sign a PIP.
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Robin does take pride in his department and believes he is professional and courteous
with customers. Customers do not always respond well, and at times Robin is
inappropriate with touching and with comments. Robin does not always seem to
understand why some of these issues presented problems.
R. Exh. 15, GC Exh. 85.5
Robin Taylor’s Union and other protected activity
Taylor signed a union authorization card in October 2006. In December 2006, he
attended a meeting with other employees, in which he complained, in the presence of Human
Resources Director Paul Sturgis, about Respondent’s discontinuance of a short-term disability
program and the loss of other benefits and bonuses. Taylor stated in Sturgis’ presence that the
hospital was better off in the old days and that “it was all the fault” of DMC’s chief executive
officer, Mike Dugan.
The Union filed a representation petition on December 4, 2006, withdrew it and then filed
a second petition on January 4, 2007. Between Monday, January 22, 2007 and Thursday,
January 25, the Board conducted a hearing at the Detroit Regional Office pertaining to the
Union’s second petition to represent a unit of Respondent’s employees. One of, if not the
principal issue at the representation hearing was whether patient care associates should be
included in the bargaining unit.
The Union subpoenaed several employees to assist it in this hearing, including Patient
Care Associates Robin Taylor, Lisa Blumerich and Nancy Birrell. Taylor attended all four days
of the hearing, as did Respondent’s human resources director, Paul Sturgis.
Disciplinary actions taken against Robin Taylor after Respondent was aware of his union and
other protected activity
February 2, 2007 Written Warnings
On February 2, 2007, Respondent summoned Robin Taylor to a meeting with Human
Resources Director Paul Sturgis, Jacqueline Dye, the Clinical Manager for the hospital’s
Recovery Room and Pre-Admission testing, and Karen Moore, the Director of Surgical Services.
Ms. Dye was Taylor’s manager and she reports to Ms. Moore. At this meeting Respondent
presented Taylor with a first written warning for leaving work early on January 10, 11, 17 and
19, 2007 (GC Exh. 18). This warning stated that Taylor had been counseled about clocking out
early on July 17, 2006 and that his early departures constituted a violation of DMC Attendance
Policy 1 HR 503.
The Attendance Policy in effect on February 2, 2007 became effective on January 1,
2007, GC Exh. 4. This policy provides in paragraph 3.e. that:
Failure to complete scheduled shift (e.g. going home sick) will count as one unscheduled
absence if employee leaves one hour or more before the end of a scheduled shift. Two
such absences of less than one hour will count as one unscheduled absence.

5 Taylor was off of work for surgery from July 18 to September 2006. Although his
performance appraisal was signed by Dye on July 10, Taylor received it on or about September
25, 2006.
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Paragraph 5, entitled, “Unacceptable levels of unscheduled absence,” provides:
a. Full-time employees: Four (4) unscheduled absences in a quarter will result in
disciplinary action.
Robin Taylor’s duty hours are 5:00 a.m. to 1:30 p.m. Taylor clocked out at 12:52 p.m. on
January 10; 12:35 on January 11; 1:06 on January 17 and 12:16 on January 19. Respondent
alleges that on these four occasions, Taylor did not have permission to leave work early. Taylor
submits that the charge nurse on duty (not necessarily June Jones) approved his early
departure. In any event, pursuant to the Respondent’s attendance policy at the time of the
alleged infraction, Taylor clearly had less than four unscheduled absences for the dates in
question and was not subject to disciplinary action for leaving early on those occasions. This is
so because on only one of the four afternoons did he leave more than one hour before the end
of his shift.
Respondent’s Human Resources Director, Paul Sturgis, contended that this warning was
consistent with the existent attendance policy because Taylor absences were “patterned.”
Paragraph 6 of that policy defines “Patterned Absences.”
Employees will also be subject to disciplinary action for patterned absences in
accordance to (sic) provisions of DMC Progressive Discipline Policy 1 HR 506.
Example: Unscheduled absences that are consistently in conjunction with scheduled
days off, holidays, weekends, paydays, and so forth.
There is nothing in the record that supports Sturgis’ contention that Taylor’s early
departures on January 10, 11, 17 and 19, 2007 can be deemed to be “patterned absences.”
The warning document does not indicate that Taylor violated Respondent’s attendance policy by
means of “patterned absences.” The policy on its face does not appear to be directed to
conduct similar to Taylor’s and there is no indication that any other employee has been
disciplined for “patterned absences” in similar circumstances. Sturgis’ testimony regarding
“patterned absences” is a post-hoc rationalization of a disciplinary action that is inconsistent with
the plain meaning of Respondent’s attendance policy.
On February 2, Respondent also presented Taylor with a second written warning (GC
Exh. 26), which states:
On the mornings of January 24 and January 25th 2007 Mr. Taylor was confirmed to be
present in immediate patient care areas (2-East). On both dates, Mr. Taylor had
indicated that he would be unavailable to work. Mr. Taylor’s presence in the hospital in
patient care areas was not work-related, related to visiting an admitted patient, or
authorized by his supervisor. Violation-On DMC property during non-working hours.
This warning was issued alleging a violation of the following “minor infraction” set forth in
paragraph 12 “o” of its Policy No. 1 HR 506, entitled Progressive Discipline:
Being on DMC property during non-working hours except under clearly reasonable
circumstances.
On the morning of Wednesday, January 24, and again on the morning of Thursday,
January 25, Taylor came to floor 2-East to meet patient care assistants Nancy Birrell and Lisa
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Blumerich.6 Taylor then drove them in his vehicle to the NLRB Regional Office to participate in
the NLRB Representation Hearing.
Robin Taylor is the only employee ever to be disciplined by Respondent for a violation of
this rule. However, it is uncontroverted that on numerous prior occasions several of
Respondent’s employees came onto HVSH property and into patient care areas during non-
work hours.
Taylor himself had, over the course of six years, come to the units to pick up employees
who were riding with him to DMC-sponsored diversity meetings. He gone to the unit to check
his schedule when off-duty. While being treated at the hospital and not on duty, Taylor had
gone to the unit when Jacqueline Dye was present.
An employee named Eric Altis brought his new child to the unit when off-duty. Dye,
Karen Moore and June Jones played with the baby on this occasion. In December 2006 or
January 2007, Nurse Barbara Hunter, dressed in civilian clothes, brought her son and
grandchildren to the nurse’s station in the pre-op unit on one occasion and her daughter on
another. On the occasion when Hunter brought her grandchildren, Dye and Jones played with
the children. Nurse Ellen Brashear also brought her children and grandchildren to the nurse’s
station in 2006 or 2007. On this occasion, as well, Dye and Jones played with the children.
February 2, 2007 counselings
On February 2, 2007, in addition to giving Taylor the two written warnings Respondent
presented him with a verbal counseling memo from Jacqueline Dye, R. Exh. 5. Dye counseled
Taylor for:
Whiting out his time sheet entries for January 23 and 24, which showed that his
absences for those dates were unexcused;
Calling in less than two hours before the start of his shift on January 25 and 26, to inform
Respondent that he would not be at work;
Coming to work more than 15 minutes prior to the start of his shift;
Making clinical assignments, such as room assignments.
The most controversial portion of this counseling is the portion that pertains to calling in
less than two hours before the start of Taylor’s shift. First of all, Respondent’s existing
attendance policy defines a “late call” as failure to report an absence less than 1 hour after shift
start time. Secondly, with regard to January 25, the counseling is factually inaccurate. Taylor
called the hospital at about 3:43 a.m., more than two hours prior to the start of his shift, to inform
his supervisor that he was not coming to work that day in order to attend the representation
hearing (Tr. 182, 192, GC Exh. 17). Moreover, prior to January 24, Taylor had told his
supervisors, Charge Nurse June Jones and Clinical Manager Jacqueline Dye, that he would not
be available to work on January 24 and 25, Tr. 354, also see Tr. 451.7 Finally, Human
Resources Director Sturgis was aware, on Monday, January 22, that Taylor would not be at
work for the duration of the hearing (Tr. 176).

6 On at least one of these occasions, Taylor went first to the employee break room. Then,
not finding his riders in the breakroom, he went to the nurse’s station to look for them.
7 Taylor was not only in compliance with Respondent’s attendance policy with regard to
notifying Respondent of his absence on January 25, but its scheduling policy, R. Exh. 6, as well.
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On Friday, January 26, 2007, Taylor became ill on his way into work and went directly to
the emergency room at Respondent’s hospital. The Emergency Department registered him at
4:25 a.m. with complaints of abdominal pain and vomiting. While in the emergency room,
Taylor vomited again and was admitted to the hospital. An emergency room employee called
Taylor’s unit at 4:45 a.m. to inform unit personnel that he would not be reporting for work that
day. By having someone call into his unit within an hour after the start of his shift, Taylor was
not in violation of Respondent’s attendance policy. Clinical Manager Dye and her supervisor,
Karen Moore, visited Taylor in the hospital on January 26.8 Taylor informed Dye and Moore that
he had called the house supervisor. Moore told him not to worry, everything is being taken care
of and that she did not want him to come to work sick. Taylor was discharged from the hospital
on Saturday, January 27.
Taylor protested the counseling for whiting out his supervisor’s timesheet entry for
January 23 and 24. The entries indicated that his absence that day was unexcused. Taylor,
Nurses Lisa Blumerich and Nancy Burrell were initially told that their absences from work to
attend the representation hearing, pursuant to the Union’s subpoena, would be unexcused. On
January 25, the final day of the hearing, H.R. Director Sturgis had assured the three employees
that their absences from work would be excused. On February 2, management informed Taylor
that he was prohibited from altering his timesheet regardless.
The events of February 23-26, 2007, that led Respondent to terminate Robin Taylor9

8 Dye did not specifically contradict Taylor’s testimony on this point. She testified that she
doesn’t believe that on the morning of January 26, that she knew Taylor was in the emergency
department. She testified that she found out later from other employees. Moore testified that
she did not remember whether on February 2, she was aware that Taylor was in the emergency
room on January 26. I credit Taylor’s testimony that Dye and Moore visited him in the
emergency room on the afternoon of the 26th.
9 With regard to what transpired in Room 334 on February 25, I credit Robin Taylor’s
testimony unless it is contradicted by nonhearsay evidence. Respondent relies completely on
the hearsay testimony of Dorothy Kempf, its Administrative Co-coordinator for Customer
Service, and Billie Jo Anderson, the third sitter for patient 334. Neither was present on February
25 and Respondent has offered no satisfactory reason for failing to call patient 334 to testify to
those matters where its hearsay evidence differs from Taylor’s first-hand account.
I would note that Respondent had information in its records prior to Mr. Taylor’s discharge
that would raise concerns regarding the patient’s reliability. In a discharge summary for a
hospitalization at HVSH for lower back pain, Dr. Jeet N. Pillay observed in November 2006:
There were numerous issues with pain control with the patient. She seemed to have an
exaggerated pain complaint during her admission. Numerous times, she was noted to
appear comfortable, ambulating, sitting up talking in her bed with her roommate on the
phone. However, upon seeing medical staff, the patient would immediately begin to
grimace, lay back and writhe in pain and say the pain control was not working, GC Exh. 79,
p. 2, also see unnumbered progress note dated November 2, 2006.
Additionally, the patient was hospitalized on March 25, 2007 and again on May 7, 2007, for
overdosing with prescription drugs. The March hospitalization was diagnosed as a suicide
attempt, indicating that patient does in fact experience some manner of mood swings. Although
these events occurred after Taylor’s termination, his appeal of the termination was ongoing and
Respondent did not review the records of any hospitalizations, other than that of February 23-
26, in denying his appeal.
Continued
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On Friday, February 23, 2007, a 33-year old Caucasian female, hereinafter referred to
as “the patient” or “patient 334,” was admitted to HVSH after ingesting an overdose of Xanax
(60 pills) and Vicodin (47 pills). The patient had used cocaine at some time in the past and
apparently had attempted suicide in high school. She also suffered from Multiple Sclerosis and
depression. She apparently also overdosed two weeks previously.
After being treated in the HVSH emergency department, patient 334 was sent to the
intensive care unit where she remained until Sunday, February 25.10 On that day, Robin Taylor
was contacted and asked to work overtime as sitter for this patient, who was deemed a potential
danger to herself, pending a psychiatric evaluation. As a sitter, Taylor was obligated not to let
the patient out of his sight—unless some other staff member was observing her in his absence.
Taylor began his shift while the patient was still in the intensive care unit (ICU). He
removed the patient’s catheter, had a female PCA removed the leads for the heart monitor from
the patient’s breast and transported her in a wheelchair to room 334 on HVSH’s 3 East unit. 3
East is not the unit where Taylor usually works.
A student nurse, Jen McRitchie, who is also a PCA, joined Taylor and the patient in
room 334 for a short while. The patient asked if she could take a shower. Taylor asked the
nurse in charge of patient 334 if she could shower and got an affirmative answer. He had
McRitchie sit in the room while he went to get fresh towels, washcloths, tape and scissors.
When Taylor returned he put two towels on the floor and told McRitchie to sit and watch the
patient shower with the bathroom door cracked open. While the patient showered, Taylor went
to obtain fresh hospital garments for her. Taylor returned after 15-20 minutes and handed the
garments to McRitchie. He then went to the nurse’s station to eat a snack.11
_________________________
I do not deem Taylor to be a completely credible witness. At times, he resisted conceding
matters for which there is convincing documentary evidence. Examples of this are Taylor’s
unwillingness to admit that he discussed being abused with the patient and that he was put on a
30-day PIP in November 2006. However, when making a determination as to whether to
believe Taylor’s uncontradicted testimony, subject to cross-examination, versus Respondent’s
total reliance on hearsay, I credit Taylor in every instance.
Many of Respondent’s witnesses are also not completely credible. At various points their
testimony was either contradictory, internally inconsistent or inconsistent with that of other of
Respondent’s witnesses, or simply extremely implausible.
10 Up until the sixth day of hearing, everyone associated with this case assumed that Robin
Taylor sat for patient 334 on Saturday, February 24. Bette Fitz, who reviewed the patient’s
medical records, testified on August 21, that this is incorrect, that the relevant dates regarding
Mr. Taylor’s conduct are Sunday, February 25 and Monday, February 26, 2007. The patient’s
medical records corroborate Ms. Fitz’s testimony in this regard, Tr. 1082-83, R. Exh. 33, pp. 21
and 34.
11 Jen McRitchie did not testify at the hearing in this case. That she is the student nurse in
question is established by R. Exh. 33, pg. 53. She was not interviewed by Respondent before it
terminated Mr. Taylor but was apparently interviewed by Bette Fitz three weeks after Taylor was
fired, R. Exh. 32. To the extent, the hearsay account of this interview conflicts with Taylor’s
account, I credit Taylor. In large part, however, Fitz’s notes are consistent with Taylor’s’
testimony. Although Fitz records that McRitchie told her that the patient was already in the
shower when she entered the room, she confirms that Taylor asked her to watch the patient
Continued
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Afterwards, the patient told Taylor she was hungry and he showed her how to order
food. In the course of conversation, the patient said she worked at an eating establishment.
Taylor mentioned that he had a catering business. Then the patient asked Taylor if he had a
card. He said that on his lunch break, he would get one from his locker. On his lunch break,
Taylor obtained a card and gave it to the patient. On the back of the card Taylor wrote the
telephone number for the pre-op department where he usually works. The phone rings at the
desk of the unit clerk.12
At 3:00 p.m. Nancy Leach relieved Taylor as the patient’s sitter. Leach did not testify at
this proceeding and therefore there is no reliable evidence as to what transpired while Leach sat
for the patient or what the patient said to Leach.
Respondent did not interview Leach prior to terminating Taylor. However, almost a
month after HVSH terminated Robin Taylor, Bette Fitz, Respondent’s Vice-President for Patient
Care Services, interviewed Leach either in person or by telephone. The sum total of what
Leach apparently related to Fitz is as follows:13
She was the sitter for the patient right after Robin was assigned to her. Nancy recalled
the patient and stated that she had an OK shift. The patient was in a very good mood
but did comment to her that Robin had given her his phone number and she was
uncomfortable with this. The sitter encouraged her to talk to her nurse about it. She did
not witness the patient talking to her nurse during that shift. Stated the patient was very
talkative and alert and oriented.
R. Exh. 32(a).
What is very striking is the fact that, other than giving the patient the telephone number
at which he could be reached at the hospital, Leach related none of the accusations of
inappropriate conduct on the part of Taylor that were the basis for his termination.
Monday, February 26, 2007
At 7:00 a.m. on Monday, February 26, 2007, Billie Jo Anderson took over as the sitter for
the patient in room 334. It is not entirely clear whether Leach sat until Anderson took over, or
_________________________
through a crack in the door while he left the room. Had she been subjected to cross-
examination, it is quite possible that McRitchie’s account would be even more supportive of
Taylor’s testimony.
Even the patient’s hearsay account (as told to Dorothy Kempf) contains no allegation that
Taylor observed her in the shower until she was fully dressed, R. Exh. 3, CP Exh. 4. Moreover,
the fact that patient did not mention the fact that a female employee (McRitchie) was stationed
outside the door for part of the time that she showered, but only recalled Taylor talking to her
through the door, raises questions as to the reliability of her account of what transpired.
12 Although Taylor’s testimony regarding the circumstances under which he gave the patient
a card for his catering business is self-serving, I credit it because there is no evidence, even
hearsay evidence, to the contrary. I would note that Dorothy Kempf’s recollection of her
conversation with the patient lends some support to Taylor’s version. Kempf believes that the
patient told her on February 26, that the patient worked in a restaurant.
13 I say “apparently related” in that the only evidence of what Leach told Fitz are Fitz’s brief
notes of the conversation.
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whether someone else watched the patient between their shifts. On that morning, Taylor was
working at his usual job as a patient care assistant in pre-op department. He was assigned to
pick up a surgery patient in the room next to room 334. When he went to 3 East, Taylor entered
room 334 and gave the patient a hug. Several hours later, Taylor took the surgery patient back
to the room next to room 334. He waved to the patient in room 334, but did not enter the room.
Billie Anderson got up and closed the door on him. On at least one of these occasions, Taylor
was in the company of the charge nurse for 3 East, Elizabeth Knoll.
At some point on February 26, the sitter, Billie Anderson, approached Knoll. Knoll then
went to talk to the patient. It is not clear whether this occurred before or after Taylor entered
room 334 and gave the patient a hug.14 The patient told Knoll:
…that she had a sitter that she was very uncomfortable with and he was inappropriately
dressed. He was in jeans and he had a shirt that was unbuttoned with some hair
sticking out. She said that he talked that he had a sideline business, in the catering
business, and that she should actually come and try some of the food. She felt like he
was hitting on her. In the meantime he gave her a business card.
Tr. 1192.
The patient gave Knoll the business card. Knoll took the card to her supervisor, the
manager of 3 East, Carla Bennett. Bennett called Dorothy Kempf, HVSH’s co-coordinator of
customer service, and the human resources department.
Kempf, who reports directly to Respondent’s President, Robert Yellan, went to Room
334, interviewed the patient and took notes. This apparently occurred late in the day on
Monday after Respondent determined that the patient no longer needed a sitter. Kempf did not
mention seeing a sitter and she never spoke to either Anderson or Leach, who apparently
returned to sit for that patient at 3:30 p.m. on Monday. Further, Kempf made no attempt to
interview the other HVSH employees who interacted with the patient during Taylor’s shift.
These employees include, but are not limited to Jen McRitchie and Pam Wegner, RN, R. Exhs.
33, pgs. 21 and 33, R. Exh. 32. Kempf did not ask the patient to review her notes or to indicate
by signing or initialing Kempf’s notes that they were accurate. However, Kempf testified that
she reviewed her notes orally with the patient.
It appears that the patient did not know Robin Taylor’s name when interviewed by
Kempf. She described him as black gentlemen, who was not wearing a uniform and did not
have an ID badge. The patient apparently told Kempf that in the Intensive Care Unit that Taylor
removed her catheter and some wires from her in the presence of a female nurse.
According to Kempf’s account, Taylor told the patient that she could shower. The patient
was bothered by the fact that Taylor came into the shower to pick up dirty towels. The patient
thus never told anyone that Taylor watched her take a shower or that he entered the bathroom
while she was undressed.
Kempf’s account relates that Taylor talked to the patient extensively about his personal
life, including some graphic details of abuse he suffered as a child, namely having been locked
in a closet by his mother and being forced to lick the bathroom floor. She also told Kempf that

14 For reasons stated later, I decline to credit Billie Anderson’s testimony unless
corroborated by other witnesses or circumstances.
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Taylor told her she was beautiful and he asked her to go out to dinner with him.15 While Taylor
was in the room, the patient talked to her fiancée on the phone. The patient also told Kempf
that Taylor had given her a business card for his catering service, with his phone number on the
back. Kempf never asked the patient if she said anything to Taylor.
The patient did not tell Kempf that Taylor touched her; only that he made her
uncomfortable. During the interview, the patient also told Kempf that Taylor came back to room
334 on February 26, and tried to hug her, but that Anderson wouldn’t let him. She also said that
Taylor returned two more times that day, but Billie Anderson closed the door on him both
times.16 She told Kempf that she did not want Taylor to know her address and telephone

15 Taylor denied telling the patient she was beautiful at his meeting with Kempf and Sturgis
on March 2.
16 This account differs from that of Taylor and Anderson and is uncorroborated by Knoll, who
also interacted with the patient on February 26. Taylor testified that he went to the room next
door with Knoll to pick up a patient on February 26. Further, he testified that in the presence of
Knoll and Anderson, he entered the room and the patient gave him a hug and told him that she
was hoping the psychiatrist would discharge her.
Taylor testified that several hours later, he brought the other patient back to the room next to
room 334, with Liz Knoll. He went to wave to the patient in 334 and Billie Anderson closed the
door on him.
Anderson on March 7, apparently told Paul Sturgis that Taylor put his arms around the
patient’s shoulder, but that Anderson immediately stood up and told Taylor he would need to
leave. Anderson told Sturgis that Taylor came into the room a second time and she closed the
door; he came a third time and she closed the door before Taylor came inside.
On April 11, Anderson apparently told Bette Fitz that Taylor gave the patient a hug and that
she could see the patient visibly stiffen. Afterwards, the patient told Anderson that she did not
want Taylor in her room and when Taylor reappeared two more times she closed the door on
him.
At the hearing on August 29, Anderson testified that on the first occasion, Taylor walked in
and hugged the patient. “She just absolutely sat there and didn’t do one thing and then he left.
I stood up. I stood up. I didn’t say anything. I just kind of stood up. I was just surprised. And
then he left….”
“Maybe a couple of hours later, he came in again. Again he walked to the bed. I don’t know
if he hugged her that time but he came in again, very friendly…And I just said, you know, ‘This
patient needs her rest,’ and he left…and she said after both times, ‘I can't believe he came in.’
She said, ‘ that makes me very uncomfortable.’…So then the third time I saw him and I got up,
walked to the door and said, “Excuse us” or something very snotty and …just very emphatic
basically and I closed the door. Tr. 1399-1400. Anderson testified that she did not see Knoll on
any of these three occasions.
Fitz’s notes of her conversation with Knoll on April 6 indicate that Knoll told her that Taylor
came and stood at the patient’s door a couple of times and that the patient was afraid of him.
Fitz also recorded that Knoll told her that she was in the patient’s room when Taylor came by on
one occasion and that the patient pointed to him and told Knoll that he made her uncomfortable.
Knoll’s testimony at the instant hearing convinces me that Fitz’s notes are inaccurate both
as to what occurred and as to what Knoll told her. Knoll testified that it was when she went to
the patient’s room at Anderson’s request that the patient told her that she was uncomfortable
with Taylor; not when Taylor was in the room. Knoll confirmed at hearing that she saw Taylor
once on February 26, when he was picking up a patient from the room next door to room 334.
She did not recall seeing him a second time.
I credit Taylor’s testimony that he went to room 334 only twice on February 26, when picking
Continued
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number.
Kempf did not look at the patient’s medical records.17 She called the patient at home
sometime before March 2, but did not take any notes of the conversation. There is no evidence
as to what the two women discussed. Kempf testified that the patient’s primary concern was
that Taylor not have access to personal information about her. Kempf never informed the
patient that Taylor denied some of the allegations the patient made to Kempf.
On March 2, 2007, Kempf sent a letter to the patient, very generally thanking her for
sharing her concerns regarding her stay at HVSH and offering a very general apology. The
patient did not respond to Kempf’s letter, nor did she ever file a written complaint with the
hospital.
Sturgis and Kempf meet with Robin Taylor on March 2, 2007; Respondent suspends Taylor.
Kempf provided handwritten and typewritten copies of the notes she took of her
conversation with the patient to Human Resources Director Paul Sturgis. At about 11:00 a.m.
on Friday, March 2, 2007, Jacqueline Dye instructed Taylor to report to Sturgis’ office. When
Taylor arrived at Sturgis’s office, Dorothy Kempf and Sturgis were in the room. Prior to the start
of this meeting, Sturgis called the hospital’s security manager, Jeffrey Young, and told Young to
come to the employee resource room next to Sturgis’ office, so that Young could escort Taylor
out of the hospital after the meeting.
_________________________
up the patient next door, and then later when returning that patient from surgery. There does
not seem to be any reason for him to have been on 3 East at any other time.
17 As the General Counsel points out, this in itself is evidence of disparate treatment. When
Respondent investigated complaints of sexual misconduct against another employee in the
summer of 2006, it did investigate the complaining patient’s medical records.
On the other hand, the investigation of the other employee was otherwise done in a similar
manner to the investigation of the complaint against Robin Taylor in that there are no affidavits,
merely the investigator’s account of her interviews with staff on duty.
Nevertheless, since Respondent was aware that the Union had filed a charge prior to
Taylor’s termination, it was incumbent upon it to document its case in support of termination far
more adequately. Moreover, while Taylor had worked for Respondent for 12-13 years, this
other employee worked for HVSH for only 7-8 months prior to his termination.
Additionally, the case for termination regarding the other employee was far stronger than the
case against Taylor. Respondent terminated this other employee after the second complaint
against him for making clearly obscene remarks (with inappropriate physical contact at least in
the first instance) to a female patient within five weeks and the investigation did not, as in
Taylor’s case, contain information that would cause skepticism regarding the second patient’s
complaint. For example, in the other case, the patient complained immediately to the nurse on
duty. In Taylor’s case, Respondent did not even talk to Pam Wegner, the nurse on duty at the
time the alleged inappropriate conduct occurred, Jen McRitchie, who was also in the room with
Taylor and Nancy Leach, the sitter who followed Taylor, prior to terminating this long-time
employee. In the matter regarding the other employee Respondent interviewed all staff
members who could possibly have had information relating to the patient’s complaint.
Finally, the investigator’s report regarding this other employee indicates that she was told of
two physical assaults (not mere conversations which made them uncomfortable) by him on
female staff members, although it is unclear whether these incidents contributed to the
termination decision or not.
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During this meeting, Sturgis showed Taylor the card for Taylor’s catering business.
Taylor admitted giving the card to the patient, but told Sturgis that the patient had asked for the
card. Taylor said the patient wanted to know what the competition was for her employer.
Sturgis asked Taylor if he went into room 334 after his shift as sitter had ended. Taylor
said that he had and that the patient had given him permission to check up on her after his shift.
At the end of this meeting Sturgis handed Taylor a form, GC Exh. 27, suspending him pending
an investigation. He then accompanied Taylor out of his office and went to the employee
resource room to get Jeffrey Young, who had been waiting there during the meeting. Young,
who was in uniform, walked behind Taylor as he escorted him through several corridors of the
hospital to an exit near Taylor’s parking place. This was the last day that Taylor worked at
HVSH.
The discipline form given to Taylor on March 2, states:
A female patient reported that employee, Robin Taylor demonstrated inappropriate
behavior during a sitting assignment. She has provided testimony to Dot Kempf
(Customer Satisfaction) that he made inappropriate comments, behaviors (C maj ac)
and provided her with a personal business card (C maj n). Upon discussion with
employee, he confirmed providing patient with his personal business card.18
At the time that Sturgis suspended Taylor he did not have any information regarding the
events of February 25 and 26, other than the information he received from Kempf. He had not
done an independent investigation into the events of that day, nor had he reviewed the patient’s
medical records.
The Union filed the original charge in this matter on March 2, 2007, alleging that all
disciplinary actions taken against Taylor since January 2007 violated the Act.
Respondent’s investigation during the period between Robin Taylor’s suspension and
his termination
Prior to the March 2, meeting Sturgis conferred with Robert Yellan, the President of
HVSH, Tr. 1202. Between March 2, and March 13, when Respondent sent Robin Taylor a
termination letter, Sturgis conferred again with Yellan and Delores Hunt, DMC’s Vice-President
for Human Resources. In his conversations with Yellan, Sturgis told the HVSH President that
Taylor supported the Union and that he wanted to make sure that Yellan knew that. Yellan was
already aware that Taylor had appeared at the representation hearing in January to testify on
behalf of the Union. Yellan and Sturgis were concerned that Taylor’s termination or suspension
would result in Respondent having to defend its actions in an unfair labor practice proceeding.
After the Union filed its initial representation petition on December 4, 2006, Yellan played
a, if not, the leading role in attempting to convince HVSH employees to vote against the Union.
He conducted approximately 10 meetings for various groups of employees to this end. One of
these meetings was held for the patient care associates (PCAs) to explain why Respondent
objected to their inclusion in the bargaining unit. This was the issue on which Taylor provided
assistance to the Union at the Representation hearing in January.

18 C Maj ac and n refer to infractions mentioned in Respondent’s Progressive Disciplinary
Policy, 1 HR 506, GC Exh. 6.
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Other than conferring with superiors and other management officials, Sturgis did no
investigation regarding the allegations against Taylor and his denials, except to make a
telephone call to Billie Jo Anderson on March 7, 2007. His notes of what Anderson told him are
as follows:
I work with Robin and he seems to normally be a really nice guy. I came in at 7:00 a.m.
on Sunday (2/25/07).19 I began sitting with the patient and she was very chatty. She
said that she loved the hospital but indicated that something happened with the last sitter
that made her uncomfortable. I remember that she indicated that he (the sitter) did not
have scrubs on. She described that he was around while she took a shower, and I told
her that with overdose situations sitters usually stay close to patients. When she
showed me the card that Robin gave her, I told her that she should turn it in to the head
nurse. At some point in our conversation, she said, “Billie stay with me, I don’t want him
to come in”20
Robin did come into the room and asked her how she was doing. He then put his hands
around her shoulder. Following our earlier conversation, when I saw this I immediately
stood up and told him that she needed her rest and that he would need to leave. About
an hour later he walked back into the room and said he was “just checking on her.” I
closed the door. The third time around, the patient said to me, “Billie, he’s here.” Robin
was standing outside the room so I closed the door.
R. Exh. 2.
Without talking to the patient, checking her medical records or talking to anyone else
who worked on 3 East on February 25 and 26, Respondent mailed Robin Taylor a termination
letter on March 13, 2007, three days before the Representation election at HVSH. The letter
informed Taylor that his employment was terminated effective March 14 and briefly stated:

19 If Anderson said the 25th, she was clearly incorrect. She sat for the patient on Monday,
February 26.
20 Anderson’s testimony at hearing on August 29, 2007 was similar, but added the
observation that Taylor “was coming on to the patient”:
And she said, “Well,” she said, “Robin was very, very familiar with me. He sat on the
bed a lot.” He basically was coming on to her. He told her that she could take a shower.
He gave her one towel and watched her take a shower. She felt very uncomfortable about
that. She said he had a lot of jewelry on and he was talking about the fact that he had a lot
of money. He was just very, very friendly and she was very, very uncomfortable with that.
Tr. 1394.
Anderson also testified that the patient told her that she was uncomfortable with Taylor
because he didn’t have scrubs on and didn’t have an ID badge. Anderson explained to the
patient that sitters don’t always wear scrubs and that Taylor had to have had an ID in order to
get into the hospital.
I would note that there is no first-hand evidence that Taylor watched the patient shower.
Even Kempf’s notes do not indicate that the patient ever claimed that Taylor observed her
undressed. I would also note that the patient apparently did not tell Anderson that Taylor told
her that she was beautiful or that he asked her out to dinner.
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You were terminated for committing two major infractions of the Hospital’s Progressive
Disciplinary Policy 1 HR 506 (“the Policy”). More specifically, on February 24th, 2007 you
engaged in an unauthorized solicitation (C Maj n of the policy) and unprofessional
behavior (C Maj ac of the Policy) during your interaction with a patient during a sitting
assignment who reported your conduct.
The letter gave no specifics as to what sort of unprofessional behavior Taylor had
engaged in. The Union filed an amended charge alleging that Taylor’s discharge violated the
Act on March 15. Respondent’s termination letter informed Taylor of his right to appeal
pursuant to an Employee Problem-Solving/Appeals Panel Policy and enclosed a form on which
to appeal. On March 21, Taylor returned the form filling in the blanks for both Step 2,
Department Management’s response and Step 3, Administrator’s Level response.
On March 23, 2007, the day Taylor’s appeal was received, Karen Moore sent Taylor a
letter, assumedly Respondent’s response at step 2, upholding the termination decision. She
purportedly performed “some further investigation.” R. Exh. 8, Tr. 330-31. There is no evidence
that Ms. Moore conducted a “further investigation.” In fact, the record establishes that she did
not make any investigation after Taylor was disciplined, Tr. 836-45.
Bette Fitz, HVSH’s Vice President for Patient Care Services, initiated another
investigation pursuant to step 3 of Respondent’s appeals process. Fitz reports directly to
Respondent’s President, Robert Yellan.
Respondent’s further investigation following Robin Taylor’s termination
Fitz made no attempt to contact the patient. On April 3, 2007, Fitz interviewed Taylor in
the presence of Paul Reichert, a human resource specialist who reports directly to Sturgis.
Taylor’s statements, as recorded by Fitz on this date are generally consistent with his testimony
at the Unfair Labor Practice Proceeding. He stated that in the ICU, that he removed the
patient’s catheter with a female PCA present and had the female PCA remove the leads. He
stated that the patient asked to take a shower after her arrival in room 334 and that he had a
female PCA watch the patient while she showered. Taylor told Fitz that he did not enter the
bathroom until the patient was dressed.
Taylor told Fitz that the patient mentioned that she worked at a catering establishment
and that he responded by telling her about his catering business. According the Taylor, the
patient asked for his card. He said he wrote the number where he could be reached on the back
of the card. Taylor denied telling the patient that she was beautiful. He vacillated between
admitting that he told the patient that he had been abused as a child and denying it.
Fitz interviewed a number of other of Respondent’s employees who were on 3 East on
February 25 and 26. Despite the fact that Respondent was aware that the Union had already
filed an unfair labor practice charge regarding Taylor’s discharge, it did not take any sworn
statements, or have its employees ratify Bette Fitz’s account of these interviews in any way.
According to Fitz’s notes, R. Exh. 32, this is what she was told:
Jen McRitchie, Student Nurse Associate:
I met with Jen McRitchie on 4/6/07 with Carla Bennett. Jen stated that she
remembered the situation as she had never met Robin before and was told that they
were getting an attempted suicide patient and Robin would be the sitter. He got her
settled in and that the patient was in the shower when she came by the room. He asked
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if she would stay in the room for a few minutes while he ran downstairs for something.
She agreed to. She asked Robin about the door being cracked open and he told her to
keep it cracked open due to the patient being a suicide attempt. She stated that she
was in the room perhaps 2-5 minutes at the most while he ran downstairs. She did not
recall what he went downstairs for. When asked if he came back with scrubs, she could
not remember. She thought the patient wore a gown but was not sure. The patient was
still in the shower and in fact Jen states that she never interacted with the patient she
just sat in the room while he was gone for a maximum of 5 minutes. She couldn’t really
remember if Robin asked her to get towels but thought he did. She could not remember
any other details.
Thus, McRitchie corroborated Taylor’s assertion that he had a female monitor the
patient’s shower for at least part of the time. Respondent’s medical records show that
McRitchie took the patient’s vital signs at noon (12:00) and at 2:20 (1420) p.m. on February 25.
There is no evidence that the patient gave McRitchie any indication that she was uncomfortable
or even unhappy over Robin Taylor’s presence in her room, R. Exh. 33, pg. 85.
Pam Wegner RN
Due to Pam Wegner’s schedule, I interviewed her over the phone. When asked what
she recalled of the patient she stated when was told she was getting a suicide patient
she thought oh no, but the patient was cooperative, not suicidal (in her opinion), that she
was joking with the staff, seemed to have a good rapport with staff. That Robin and the
patient were carrying on, laughing and compatible. She was surprised how well they
were getting along, good interactions (emphasis added). When asked if she recalled the
patient stating that if she was to continue to have a sitter she would like someone just
like Robin—Pam did not recall such a comment. She could picture the patient saying
something like that based on how well they were getting along but did not recall hearing
the patient say anything like that (emphasis added). She commented that he came in on
his day off; he usually wears scrubs but he was dressed more casually this day—
wearing jeans “not sure they were suppose to wear jeans” but he looked clean and
decent (emphasis added). She did not remember what the patient wore and she denied
providing any patient care for the patient other than doing her RN assessment. She was
pleasantly surprised that she was a suicide patient and was not acting out or anything;
that she was mentally appropriate, comments were appropriate and she was laughing.
She did not recall any other details.
At a minimum Wegner’s account throws doubt on whether Taylor did anything
inappropriate from an objective standpoint, aside from give the patient his business card, or
even whether the patient considered his behavior inappropriate on February 25. It also casts
doubt on the patient’s statements to Elizabeth Knoll on February 26 as to whether Taylor had
his shirt open with hair sticking out.
Fitz’s notes of her conversation with Wegner are consistent with entries Wegner made
on the patient’s medical chart at about 12:05 p.m. on February 25, one hour after Robin Taylor
began his shift. Wegner noted that the patient was talkative and laughing, R. Exh. 33, pg. 21,
53-54. There is no indication anywhere in the patient’s medical chart of complaints about Mr.
Taylor.
As mentioned previously, Fitz spoke to Nancy Leach, the sitter who followed Robin Taylor
on February 25. Fitz’s notes are very brief and relate that the patient was in a good mood and
that the patient told Leach about being uncomfortable with the fact that Taylor had left her his
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phone number. Leach apparently was completely unaware of the more dramatic accusations
that the patient made to Billie Anderson and Dorothy Kempf on February 26.
Billie Anderson
I met with Billie Anderson on 4/11/07 and asked what she remembered about this
patient. She stated that she was friendly, “not out of it”, that the patient told her that she
took pain killers was not a “drugger”. The patient told Billie “I think I can tell you this”
Somebody was downstairs with me and made me feel uncomfortable. Billie asked her
who it was. The patient said “here’s his card. He was here with me for 4 hours, he was
wearing ordinary clothes and no ID badge.” Billie asked the woman about the no badge
suggesting that perhaps he wore it at his waist but she was sure he had no badge on
and did not know who he was. The patient said that he leaned real close to her and said
everything will be OK. He told her he would have to watch her take a shower. Billie
assured the patient that yes that our suicide protocol does call for keeping an eye on the
patients and that she was surprised that he let her shower. The patient stated that the
sitter said he couldn’t put her clothes in the bathroom. Patient said Robin was nice but
too friendly. Billie assured the patient that she would follow up with the patient’s concern
and notified that charge nurse Liz of the situation and gave Liz Robin’s business card.
Liz took the card and told her she would take care of it. She left the room while Liz came
to talk to the patient. The patient told Billie that Robin said the he would check on her
the next day and he left his card and told her he had a lot of money. The patient stated
that she was very uncomfortable with him. Robin came back while Billie was sitting and
gave the patient a hug; she said that she could visibly see the patient stiffen with this
action. Robin told her it was good to see her and he would talk to her later. When he
left the patient told Billie that she did not want him in her room. Billie stated that he
came up 2 more times and the patient alerted Billie to his presence. The patient
indicated that Robin implied that he would see her outside the hospital and that she felt
very uncomfortable with the shower situation and that she felt like he was coming on to
her. After the patient alerted Billie to Robin’s presence, she got up and told Robin to
please excuse them and closed the door.
Liz Knoll
I met with Liz Knoll on 4/6/0721 with Carla Bennett. Liz is the nurse Robin described
short, fun with the spiky hair. Liz remembered the patient well. Liz stated that the
patient complained that he was inappropriate, that Robin came and stood at the patient’s
door a couple of times and that the patient had stated that Robin scared her and that the
patient felt he was wrong for coming to her room when he was not her sitter. She also
made the comment that the patient was crazy.22 When asked what the patient did that
caused her to make that assessment she had no specifics, just restated that she was
crazy. Liz was in the room when Robin came by the one time and the patient pointed to
him and told Liz that that he made her uncomfortable. The patient also commented that
Robin was inappropriately dressed when he sat for her the previous day, that he wore
jeans and a shirt that was unbuttoned a ways and you could see his chest hair. I asked

21 Knoll testified that she did not recall being interviewed by Fitz, Tr. 1193-94. While I have
no doubt that Ms. Fitz interviewed Ms. Knoll, Knoll’s failure to recall the interview is an object
lesson for why it is desirable to preserve the recollections of potential witnesses by means of a
sworn affidavit as soon possible after the events in question.
22 Knoll at the instant hearing did not recall making such a remark.
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Liz if she recalled the patient stating that she wanted another PCA just like him. Liz was
clear that the patient did not want Robin around her and that she felt scared with him
around. I asked Liz how her rapport was with Robin. She responded that she liked
Robin and that they flirted back and forth and that he has never been inappropriate with
her as a co-worker, that he was friendly.
Fitz’s notes are inconsistent with Knoll’s hearing testimony in certain respects. There is
no probative evidence in this record that the Knoll was in the patient’s room when Taylor came
by on February 26 and that the patient pointed Taylor out to her and told her that Taylor made
her uncomfortable. The record indicates that Anderson summoned Knoll to the patient’s room
and Knoll talked to the patient, who gave her Taylor’s business card. There is no indication that
Taylor was nearby. The only other evidence of Knoll and Taylor being in the vicinity of room
334 is that they transported a patient to and/or from the room next door on one or two
occasions.
In all of these statements there is no indication that Robin Taylor did anything
inappropriate from an objective standpoint—other than give the patient his business card. What
one can readily infer is that on February 26, the patient began to have misgivings about Mr.
Taylor from a subjective viewpoint. Moreover, there is no evidence that the patient ever told or
indicated to Robin Taylor that he made her uncomfortable or that she did not want him to check
up on her after the end of his shift on February 25. Further, neither Billie Anderson nor anyone
else ever informed Taylor that he made the patient feel uncomfortable or that she did not want
him near her. The first time anyone communicated this to Taylor was March 2, when he met
with Sturgis and Kempf.
Analysis
Section 8(a)(3) and Section 8(a)(4) allegations regarding the discipline
and termination of Robin Taylor
In order to prove a violation of Section 8(a)(3), 8(a)(4) and (1), the General Counsel
must generally make an initial showing that (1) the employee was engaged in protected activity;
(2) the employer was aware of the activity; and (3) that animus towards the protected activity
was a substantial or motivating reason for the employer’s action.23 Once the General Counsel
makes this initial showing, the burden of persuasion shifts to the Respondent to prove its
affirmative defense that it would have taken the same action even if the employee had not
engaged in protected activity, Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir.
1981); La Gloria Oil and Gas Co., 337 NLRB 1120 (2002).
In the instant case there is no question but that Robin Taylor engaged in protected
activity in December 2006 and January 2007 and that Respondent’s managers, including
Human Resources Director Paul Sturgis and HVSH President Robert Yellan were aware of that
activity. Thus, the issues to be determined are whether Respondent bore animus towards
Taylor as a result of his protected activities and whether the discipline taken against him,
including his termination was motivated by this animus, or was a substantial factor in its decision
to discipline or terminate him.

23 The Wright Line standard applies in both 8(a)(3) and 8(a)(4) cases, Black’s Railroad
Transit Service, 342 NLRB 549, 554-55 (2005).
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Animus and discriminatory motive often depend upon an evaluation of a body of
circumstantial evidence, Yellow Ambulance Service, 342 NLRB 804 (2004).24 “Direct evidence
of animus is not required,” Tubular Corp. of America, 337 NLRB 99 (2001). Animus and
discriminatory motive may be inferred from a number of factors, including the timing of the
alleged discriminatory action in relation to protected activity, disparate treatment and related
statutory violations by a respondent, Howard’s Sheet Metal, Inc., 333 NLRB 361 (2001).
Respondent admits that it was strongly opposed to its employees choosing the Union as
their collective bargaining representative and was particularly adverse to the inclusion of patient
care associates, such as Robin Taylor, in the bargaining unit. I conclude that the following
disciplinary actions were motivated at least in part by Respondent’s animus towards Taylor’s
protected activities:
The February 2, 2007 written warning for absences on January 10, 11, 17 and 19, 2007
This written warning is inconsistent with Respondent’s attendance policy which was in
effect on the dates that Taylor allegedly violated the policy and on the date that the written
warning was issued to him. Pursuant to that policy his early departure constituted 2 ½
absences, not the four absences required for disciplinary action. H.R. Director Sturgis’
assertion that Taylor was given a written warning for “patterned absences” rather than four
absences is not credible.
First of all, the warning given to Taylor, GC Exh. 18, made no mention of “patterned
absences;” however it does specify four dates on which he left work early. Secondly, there is
nothing to suggest that the provision in Respondent’s attendance policy regarding “patterned
absences” is directed to conduct similar to Taylor’s. That provision appears to be aimed at
employees who schedule absences in order to have a long weekend, etc. Finally, Sturgis’
assertion is just that, unsupported by any evidence, such as discipline issued to an employee
under circumstances similar to Taylor’s. I infer discriminatory motive from the fact that
Respondent issued a written warning for conduct that did not call for disciplinary action under its
existing policies.
The February 2, 2007 written warning for being in patient care areas of ward 2 East
on January 24 and 25.
Robin Taylor did not violate Respondent’s work rule. That rule prohibits off-duty
employees from being on DMC property during non-working hours except under clearly
reasonable circumstances. Taylor went to the nurse’s station on ward 2 East on the morning of
January 24 and 25, 2007 to meet Lisa Blumerich, who works on that ward and Nancy Birrell,
who works in ward 3 East, in order to give them a ride to the representation hearing.
H.R. Director Sturgis was attending a session of the representation hearing at the
Board’s Office in Detroit, when Kathy Bechtold, one of his subordinates in the human resources
office, called him to inform Sturgis that Taylor was, or had been, on the hospital premises in a
suit. Either at the time Sturgis received the call, or soon thereafter, he observed Taylor in the
hearing room wearing a suit. He also saw Blumerich and Birrell. Sturgis never asked Taylor
why he was at the hospital that morning, probably because the reason was obvious to him.

24 An employer’s knowledge of protected activity may also be based on circumstantial
evidence, Mays Electric Co., 343 NLRB 121, 127 (2004); Metro Networks, 336 NLRB, 63, 65
(2001).
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Thus, the circumstances for which Taylor went to 3 East were reasonable, and Respondent
knew it—unless it deemed his presence to be unreasonable because it involved union activity
protected by Section 7 of the NLRA. Assuming that Sturgis failed to “connect the dots,” his
failure to make any investigation prior to presenting Taylor with a written warning is itself
evidence of discriminatory motive.
Taylor is the only HVSH employee ever disciplined for a violation of paragraph 12 “o” of
DMC Policy No. 1 HR 506. In addition to the reasons stated above, I infer discriminatory
motivation from the fact that Taylor’s uncontradicted testimony establishes that this rule was
disparately enforced against him. Other employees routinely came to the nurse’s station in his
department and other HVSH units when they were not working. They did so to pick up their
paychecks, visit with coworkers and show off their children and grandchildren. Taylor’s
manager Jacqueline Dye and her supervisor Karen Moore were aware that off-duty employees
came to the nurse’s station. Taylor’s testimony that Dye and Moore played with the children
and grandchildren of off-duty employees is uncontradicted.
It is hard to conceive of more convincing testimony of disparate treatment and
discriminatory motive than Karen Moore’s regarding this written warning to Taylor:
Q. Do you know what was the basis for Mr. Taylor receiving that written warning?
R. He called in for his shift and said he would not be there and then was present in a
patient care area. And our employees are not supposed to be in a patient care area
unless they’re—they have a legitimate reason to be there. They’re not to be there
just visiting or I mean for social reasons.
Q. Are you aware of whether or not other patients (sic) have—who are not scheduled to
work whether or not they have shown up on patient—in patient care areas just to
show their kids or babies?
R. And when they do, we ask them to take them to the lounge because you’re really –a
patient care area is a patient care area…
Q. And with respect to those individuals that have shown up when they’re not scheduled
to work, is that—do you draw any distinction between that and Mr. Taylor showing up
on a day he was scheduled to work and then he showed up?
R. Well, I was going to say there’s a big difference when somebody comes in to pickup
their paycheck or their normal day off and they want to have a chat at the desk.
We’ll tell them to move to the lounge, which makes sense. Now if somebody calls in
for the shift and says they can’t be available and then they showed up, it’s a
completely different scenario.
Tr. 851-52.
First of all, Moore admits that other employees who came to patient care areas were
simply asked to move to the lounge. These employees were not disciplined even though
Respondent cannot seriously argue that coming to the nurse’s station to show off one’s family is
a “reasonable circumstance,” while meeting employees to give them a ride to an NLRB
proceeding, is not. Secondly, I find Moore’s testimony to the extent she suggests that she
always and immediately asks off-duty employees to go to lounge, to be incredible. She did not
specifically contradict Taylor’s testimony that he has seen her playing with the children and
grandchildren of off-duty employees at the nurse’s station; I credit Taylor. I also credit Taylor’s
uncontradicted testimony that he informed Jacqueline Dye and June Jones on Friday, January
19, that he was going to attend the representation hearing, Tr. 451. Further, Mr. Sturgis
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conceded that Taylor advised his supervisors prior to January 24, that he would not be available
for work on January 24 and 25.
In sum, it is clear that this written warning was discriminatory motivated and in fact was
given for conduct protected by the Act.25
February 2, 2007 counseling for failing to call-in two hours prior to the start of Taylor’s shift on
January 25 and 26.
With regard to January 25, the record establishes that Robin Taylor called in at 3:43
a.m., more than 2 hours prior to the start of his shift. Thus, assuming that Respondent has a
rule requiring an employee to call in at least two hours in advance of the start of his or her shift,
Taylor did not violate the rule. Given, Respondent’s other obviously discriminatory actions
against Taylor, I assume this counseling was not an honest mistake, but was like the written
warnings, discriminatorily motivated.
With regards to January 26, Respondent does not dispute that Taylor became ill on the
way to work and had an emergency room employee call his unit, prior to the start of the shift. It
has offered no explanation for how Taylor was supposed to comply with the 2-hour rule,
assuming it had such a requirement. Moreover, Karen Moore, Respondent’s Director for
Anesthesia and Surgical Services, (Taylor’s boss’ supervisor) conceded that Taylor should not
have been counseled if he called-in from the emergency room, Tr. 874.
Additionally, the record establishes that Taylor did not violate any of Respondent’s rules.
Respondent’s Attendance Policy, 1 HR 503, effective January 1, 2007, provides that a “late call”
is “failure to report absence less than 1 hour after shift start time (emphasis added). A no
call/no show is a “failure to report absence within 1 hour of start of shift.”26
Respondent’s suspension and termination of Robin Taylor
With the exception of giving the patient in room 334 the card for his catering service,
Respondent has failed to establish that Robin Taylor did anything that violated any hospital rule
or policy. Taylor certainly did not violate any rule or policy that Respondent had communicated
to him. Moreover, it also failed to prove that he did anything else that was objectively
inappropriate at work on February 25 and 26, 2007. Given the prima facie case of
discrimination made by the General Counsel with regard to its suspension and discharge of
Robin Taylor, Respondent has failed to meet its burden of proving that it would have suspended
or fired Taylor in the absence of his union and other protected activity.

25 Although, as discussed below, Respondent’s rule was overbroad and facially invalid, in
that it can be read as excluding off-duty employees from non-work areas inside and outside of
the hospital, Respondent certainly could have excluded off-duty employees from patient-care
areas if it had done so on a non-discriminatory basis.
26 Respondent gave a first written warning to nurse Judith Lipinski in January 2006, R. Exh.
11. Although the document states that she failed to provide 2 hours of notice for call in on
January 13, 2006, it appears that Lipinski may have called after her shift started. Moreover, she
was disciplined under a different policy than was Taylor. Both policies provide that a
department at HVSH may have more stringent call-in procedures than provided in the policy.
There is no evidence that the pre-op department in which Taylor worked had more stringent
call-in procedures than that set forth in 1 HR 503.
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Although Respondent contends that Taylor could have been terminated for giving the
patient his business card, in the absence of any other misconduct, it hasn’t established that it
would have done so but for his protected activities. HVSH certainly hasn’t shown that in the
absence of union activity that it would terminate a long-time employee for a first offense of the
no solicitation rule under circumstances similar to Taylor’s, i.e., where the employee was not
selling something or soliciting money on hospital property.
HVSH hasn’t shown that it ever disciplined anyone for solicitation in patient areas, let
alone terminating an employee for this offense alone. In fact, the only other employee
disciplined between March 2005 and March 2007 for violating the no-solicitation rule was
Connie Meador, who was issued written warnings in March 2006 for distributing union
authorization cards.27 Moreover, the record shows that other employees violated the solicitation
rule in working and non-working areas without being disciplined at all.
For example, for several weeks in July 2007, flyers promoting the candidacy of a 2 East
patient care associate for the Mrs. Michigan International pageant were distributed to patients in
their rooms. Some of the flyers were signed by the contestant for patients. While there is only
hearsay evidence as to whether the contestant distributed the flyers, it has been established
that the distribution of the flyers was common knowledge on 2 East and there is no evidence
that Respondent made any inquiry as to who distributed the flyers or took any steps to stop this
distribution, or took any disciplinary action.
The timing of Taylor’s termination for conduct Respondent had tolerated for years establishes a
prima facie case of discrimination on the basis of his recent union activity.
Assuming that Taylor’s behavior was “unprofessional” or “inappropriate” on February 25 and 26,
2007; it was no different than his behavior prior to his union activities for which he was never
severely disciplined.
One of the factors on which the General Counsel’s prima facie case of discriminatory
discharge was established is the timing of this personnel action. According to Jacqueline Dye,
Taylor’s misconduct was continuous. For example, her July 10, 2006 performance appraisal
notes that, “at times Robin is inappropriate with touching and with comments.” However,
Respondent had not formally disciplined Taylor for such shortcomings until he assisted the
Union at the Representation hearing. His very familiar manner with patients and staff was well
known to Respondent. It did not become a major disciplinary issue until Respondent became
aware of his activities on behalf of the Union. I conclude that it became a major issue due to
Respondent’s strong animus towards to the Union and Taylor’s efforts on its behalf.
There is no reliable, probative evidence that Robin Taylor engaged in any objectively
“unprofessional” or “inappropriate” behavior on February 25 and 26, 2007.
As to “unprofessional behavior during your interaction with a patient during a sitting
assignment,” there is no evidence of any objectively inappropriate or unprofessional conduct by
Robin Taylor. Indeed, even the evidence of behavior which might be deemed inappropriate or
unprofessional is entirely hearsay evidence. The only non-hearsay account of what transpired
in room 334 on Sunday, February 25, 2007, is the testimony of Robin Taylor. This is the only

27 The Union filed a unfair labor practice charge regarding this warning which Respondent
settled with the General Counsel. The settlement contained a non-admissions clause, but
HVSN posted a notice to employees as a result of the settlement.
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first-hand evidence subject to cross-examination and therefore the only evidence that can be
considered reliable. Respondent has not offered a sufficient reason for calling the patient as a
witness—particularly when it intends to justify the termination of a long-term employee. Indeed,
not only was Taylor a long-time employee, but he is an employee against whom Respondent
had three weeks previously taken discriminatory disciplinary action for his union activities.
What occurred in room 334 on February 25, by Taylor’s account provides no
nondiscriminatory basis for his termination. Moreover, even the hearsay evidence uncovered by
Respondent in its two investigations of the matter provide no objective basis for concluding that
Taylor did anything “inappropriate” or “unprofessional” during his four-hour shift.
Inappropriate dress: The patient told Elizabeth Knoll on February 26, that Taylor wore
jeans and had a shirt that was unbuttoned with some hair sticking out. However, Nurse Pam
Wegner, who saw Taylor on February 25th, told Bette Fitz that Taylor “looked clean and decent.”
The patient apparently did not complain to Dorothy Kempf about Taylor’s attire, other than
stating that he was not wearing an ID badge. Taylor denies that this is true. I credit his
testimony over the patient’s hearsay testimony and find that he was wearing his ID badge.
There is absolutely no evidence that Taylor violated any hospital policy by wearing
civilian clothes while sitting for the patient. There is also no evidence that it was inappropriate
for him to do so.
Watching the patient shower: I credit Robin Taylor’s testimony that he never observed
the patient while she was undressed. I credit his testimony that he had the student nurse, Ms.
McRitchie, monitor the patient while she was showering. Ms. McRitchie’s hearsay account
corroborates Taylor’s testimony that he asked her to watch the patient shower for at least part of
the time she was undressed. Even the patient’s hearsay account, taken by Dorothy Kempf,
contains no allegation that Taylor observed her undressed.28 Moreover, even if he had, as Billie
Anderson apparently explained to the patient, Taylor was supposed to monitor her at all times
because she was deemed a suicide risk.29
Flirting or “Coming On” the patient:
The specifics of the patient’s complaints to Kempf, apart from the catering business
card, are set forth below. In addition to the fact that the evidence regarding these facts is
entirely hearsay, I note that virtually none of these specific complaints were mentioned by
Anderson on March 7 or April 11, or by Knoll on April 6. Anderson’s hearing testimony as to
how Taylor made the patient “uncomfortable” on February 25, is similarly unspecific.

28 The patient told Kempf that Taylor talked to her through the door, not that he watched her
take a shower.
29 I do not regard Anderson to be a neutral witness. She testified at Tr. 1404, that she took
offense to being contacted by the Board Agent through a pro-union employee because, “I’m
representing the hospital,” and asked Respondent that its counsel accompany her to the
interview with the Board agent. For this reason, among others, I find that Anderson was
consciously attempting to assist Respondent in establishing its defense to the Complaint.
Anderson testified on August 29, 2007, at Tr. 1394, that “he gave her one towel and
watched her take a shower.” In her March 7, 2007 telephone interview with Paul Sturgis, R.
Exh. 2, she apparently said, “She described that he was around while she took a shower and I
told her that with overdose situations sitters usually stay close to patients.”
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Taylor told her how beautiful she was.
Taylor denied this under oath, Tr. 560. I credit his sworn testimony over Kempf’s
hearsay account.
Taylor said he would like to take her out to dinner.
There is no nonhearsay evidence that Taylor told the patient he would like to take her
out to dinner. Moreover, Anderson apparently told Bette Fitz on April 11, 2007, that, “the patent
indicated that Robin implied that he would see her outside the hospital…” Given the fact that all
this evidence is hearsay and that fact that patient apparently never made the specific allegation
to anyone else, I find that as far as this record is concerned, Taylor did not tell the patient he
would like to take her out to dinner.
Taylor graphically described being abused as a child and other details of his personal
life, such that he was a recovering alcoholic.
I find that in the course of four hours Taylor did tell the patient about being abused as a
child and other personal information about himself. Otherwise, I see no way Kempf would have
had this material in her report in the interview. Taylor confirmed the accuracy of some of the
things the patient related to Kempf about his personal life and there is no way she or Kempf
would have known these details unless Taylor related them to the patient.
All this said, there is no evidence that Taylor violated any rule in telling the patient about
his past. There is absolutely no basis to conclude that Respondent would have fired him for
doing so.
Taylor asked the patient personal questions after her fiancée talked to her on the
telephone.
There is no corroboration for this in the hearsay accounts of Anderson or Knoll. I decline
to credit this hearsay testimony on the part of the patient, via Kempf.
Taylor hugged the patient, or attempted to hug her on Monday, February 26 in the
presence of Billie Anderson.
There is no question that Taylor hugged the patient on February 26. Even Anderson,
hostile to Taylor, stated in her affidavit that it would have been okay for Taylor to hug the patient
if she had not previously said she was uncomfortable with him. It is uncontroverted that the
patient never told Taylor that he made her uncomfortable and that Anderson never told Taylor
that he made the patient uncomfortable. Thus, his giving the patient the hug is not a legitimate
ground for disciplining him.
Pulling out the patient’s catheter:
By the patient’s hearsay account, Taylor removed the catheter in the ICU the presence
of a female nurse, after the patient asked if she could have it removed. The patient also told
Kempf that Taylor removed the wires from her chest and finger. Taylor’s uncontradicted non-
hearsay testimony is that the female employee, who he testified was a PCA, removed the leads.
Moreover, there is nothing in this record to indicate that it would have been against any HVSH
policy for Taylor to remove the leads himself.
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Respondent’s woefully inadequate investigation of the allegations against Robin Taylor is
compelling evidence of discriminatory motivation for his suspension and termination and
establishes that it did not have a reasonable basis for his suspension and discharge.
On March 2, 2007, Jacqueline Dye told Robin Taylor to report to Paul Sturgis’ office.
When he arrived, Dorothy Kempf was in the office with Sturgis and they asked him questions
about his interaction with the patient in room 334 on February 25 and 26. Up until this meeting,
Taylor had no inkling that he was in any trouble with respect to the events of February 25 and
26. At the end of the meeting, Sturgis handed Taylor GC Exh. 27, a discipline report form,
suspending Taylor “pending investigation.”
I infer that Sturgis prepared this form prior to meeting with Taylor and prior to giving him
an opportunity to defend his conduct. Thus, the decision to suspend Taylor was made before
anyone in Respondent’s management talked to him about the events of February 25-26. I infer
this because the suspension document is typed and there is no indication that anyone was
typing up the document while Taylor was being interviewed. Furthermore, Sturgis met with
Karen Moore and Jacqueline Dye before suspending Taylor. Their names are on GC Exh. 27,
indicating that it was prepared prior to Sturgis ever talking to Taylor.30 At the conclusion of the
meeting, Security Chief Jeffrey Young, who Sturgis had contacted for this purpose prior to the
meeting, escorted Taylor through several corridors and out of the hospital. The fact that
Respondent decided to suspend Taylor without even giving him an opportunity defend himself
against the allegations made against him indicates that the reasons for his suspension were
pretextual, Air Flow Equipment, 340 NLRB 415, 419-20 (2003).
At the time Sturgis prepared the suspension notice, all the information he had about the
Taylor’s sitting assignment was Dorothy Kempf’s hearsay account. He had never spoken to the
patient, not discussed the matter with Taylor, or any other employee who interacted with the
patient during her stay at HVSH. He had, however, conferred with Respondent’s President
Robert Yellan. No one else in HVSH had interviewed any other employees present on the day
in question, or reviewed the patient’s medical records.
Between the March 2, suspension and Taylor’s termination on March 13, the only other
“investigation” performed by Sturgis was a brief telephone interview with Billie Anderson and
additional consultation with Yellan. The inadequacy of this investigation and Respondent’s
failure to even given Taylor an opportunity to defend himself before deciding to suspend him
contributes heavily to my conclusion that both the suspension and termination were
discriminatorily motivated.
After Taylor’s termination, in connection with Taylor’s internal appeal, Bette Fitz did a
more thorough, but also totally inadequate investigation. Her investigation, however,
demonstrates how grossly inadequate the allegations against Taylor were investigated before
he was terminated.

30 The fact that GC Exh. 27 states that Taylor confirmed that he gave the patient his
business card does not indicate that it was prepared during or after the meeting. This comment
appears above the typed signatures of Dye and Moore, who were not at the March 2, meeting
with Taylor and who never discussed the business card with him. Neither Dye nor Moore ever
discussed the events of February 25-26, with Robin Taylor. I infer that Respondent knew before
the March 2, meeting that Taylor would have to admit to giving the card to the patient.
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Fitz interviewed, but did not get signed statements from a number of employees who
had contact with Taylor and/or the patient. These employees included Elizabeth Knoll, Billie
Anderson, Nancy Leach (the sitter who followed Taylor) and Jen McRitchie. There is no
indication that Respondent ever interviewed several other nurses who took care of the patient
on February 25 and 26; namely, Tera Thomson, who was responsible for the patient from 1530
to 1730 (3:30 to 5:30) on February 25; and D. Coopersmith, who was responsible for the patient
from 1700 or 1730 hours on February 25, until 0730 on the 26th, R. Exh. 33, pp. 85-86.31
Fitz , the Respondent’s Vice-President for Patient Care Services, reports directly to
HVSH President Robert Yellan. The manner in which she conducted her investigation and the
reasons for which she upheld Taylor’s termination, are other factors in my conclusion that
Respondent reliance on the events of February 25 and 26, as a basis for Taylor’s termination is
pretextual and that the termination was motivated in large part by animus towards the union and
Taylor’s union activities.
Fitz testified that despite the fact that she never spoke with the patient, she believed the
patient rather than Robin Taylor. Any unbiased decision maker would at least be troubled by
the fact that the patient gave Dorothy Kempf the wrong date for when Taylor sat for her
(Saturday rather than Sunday) and that there is no indication that the patient made any of the
dramatic allegations to Nancy Leach that she made to Anderson and Kempf. The rather
cavalier manner in which Respondent ignored the lack of corroboration by Leach strongly
suggests that it was determined to get rid of Taylor. At the very least the patient’s apparent
failure to tell Leach the story she told Anderson, suggests a mood change on the part of the
patient from the 25th to the 26th. Pam Wegner’s observations as to how well the patient seemed
to interact with Taylor suggests the same thing. Moreover, as the General Counsel repeatedly
argued, an unbiased observer who reviewed the patient’s medical records, might not take
everything the patient said at face value.
Under these circumstances, Respondent’s failure to conduct a fair and timely
investigation is evidence of discriminatory intent, especially when viewed in light of
Respondent’s hostility to the Union, Metal Cutting Tools, 191 NLRB 536, 542-543 (1971); NKC
of America, 291 NLRB 683, 684 (1988).
Shifting and Inconsistent Justifications for the Termination
When called as an adverse witness, H.R. Director Sturgis testified that Respondent fired
Robin Taylor solely for his conduct regarding patient 334 on February 25 and 26, and that prior
discipline was not a factor. As a witness in Respondent’s case, Mr. Sturgis recanted and
testified exactly opposite. Jacqueline Dye also had trouble specifying the reasons for which
HVSH fired Taylor. At Tr. 658, she testified that, “it was progressive.” At Tr. 823, she couldn’t
remember what other of Taylor’s misdeeds she discussed with Sturgis and Moore.
Karen Moore also had trouble testifying as to what Taylor did that warranted his
termination. First, she testified that it was removing the catheter when nobody else was in the
room—a statement that is clearly incorrect. Then she testified that it was “the whole thing”
which “ties into his behavior at other times with patients where he was once again
inappropriate,” Tr. 843.

31 Coopersmith took the patient’s vital signs at 2245 hours on February 25, and at 0620 on
February 26. Thompson took the patient’s vital signs at 1435 on February 26.
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Shifting and inconsistent justifications for an adverse personnel action often provide a
basis for concluding that such actions were discriminatory, Pacific Design Center, 339 NLRB
415 (2003). However, in this case, reliance on such inconsistencies is unnecessary, since
much of Mr. Taylor’s prior discipline was also discriminatory and violative of the NLRA.
In conclusion, for the myriad of reasons set forth above, I conclude that in issuing Robin
Taylor two written warnings on February 2, counseling him for failing to call-in on time on
January 25 and 26, suspending and terminating him in March 2007, Respondent was
substantially motivated by animus towards Taylor’s protected union and concerted activities,
including his assistance to the Union in the representation hearing. I therefore conclude that
each of these personnel actions violated Sections 8(a)(3), 8(a)(4) and (1) of the Act.
Complaint paragraph 7: Alleged coercive interrogation by Jacqueline Dye
The General Counsel alleges that Respondent, by its agent, Jacqueline Dye, coercively
interrogated its employees about their union sympathies and activities. However, he introduced
no evidence in support of this allegation. Thus, paragraph 7 of the Complaint is dismissed.
Complaint paragraphs 8(a) & 8(b): Respondent’s rules regarding access to its property by off-
duty employees and solicitation and distribution
Respondent’s rules excluding off-duty employees from non-work areas inside the hospital and
outside of the hospital are overly broad and violate Section 8(a)(1).
The General Counsel alleges that several provisions of Respondent’s progressive
discipline, and solicitation and distribution policies, are overbroad and therefore violate Section
8(a)(1). These policies were promulgated and maintained on Respondent’s intranet and were
available at each employee’s workstation.
Paragraph 12 “o” of Respondent’s Policy No. 1 HR 506, entitled Progressive Discipline,
provides that an employee may be disciplined for:
Being on DMC property during non-working hours except under clearly reasonable
circumstances.
Respondent’s Solicitation and Distribution Policy, 1 HR 509 (GC Exh. 9), which was
revised on September 27, 2006, provides in paragraph 2. d., Access to Premises, “Employees
who are off-duty are permitted to be on DMC property, and adjacent working areas, for lawful
purposes to the extent that the general public is generally permitted on DMC property and
adjacent working areas. If off-duty employees desire to go beyond exterior areas, they must
obtain authorization for security purposes.”
In Tri-County Medical Center, 222 NLRB 1089 (1976), the Board held as follows with
respect to the validity of an employer no-access rule concerning off-duty employees:
We conclude, in order to effectuate the policies of the Act, that such a rule is valid only if
it (1) limits access solely with respect to the interior of the plant and other working areas;
(2) is clearly disseminated to all employees; and (3) applies to off-duty employees
seeking access to the plant for any purpose and not just to those employees engaging in
union activity. Finally, except where justified by business reasons, a rule which denies
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off-duty employees entry to parking lots, gates, and other outside nonworking areas will
be found invalid.
The Board has made clear that a no-access rule which goes beyond the limitations of Tri-
County is unlawful on its face, without regard to whether the rule was motivated by antiunion
considerations or invoked to restrict union activity, and that the Tri-County standard is applicable
to health-care facilities (as in Tri-County itself). See Hudson Oxygen Therapy Sales Co., 264
NLRB 61 (1982); Comet Corp., 261 NLRB 1414, 1427 (1982); Continental Bus System, 229
NLRB 1262 (1977).
To justify such a facially unlawful rule, an employer bears the burden of showing that it
communicated or applied the rule in a way that conveyed a clear intent to permit protected
activities in nonworking areas on nonworking time, Ichikoh Mfg., 312 NLRB 1022 (1993). In the
present case, Respondent did not meet this burden. Off-duty employees had no assurance that
their presence on the parking lots, at entrances or on other exterior portions of the hospital
premises would automatically be regarded as authorized. By excluding off-duty from non-
working areas inside and outside of the hospital, this rule is overly broad and violates Section
8(a)(1) of the Act, Lafayette Park Hotel, 326 NLRB 824, 828 (1998).
Additionally, any rule that requires employees to secure permission from their employer
prior to engaging in protected activities on an employee’s free time and in nonwork areas is
unlawful, Teletech Holdings, Inc., 333 NLRB 462 (2001); Brunswick Corp., 282 NLRB 794, 795
(1987).
Respondent’s rules regarding solicitation and distribution are overly broad
The General Counsel alleges that the following paragraph of Respondent’s Solicitation
and Distribution Policy, 1 HR 509, also violates the Act due to being overbroad:
General Provision, paragraph 1. e., states that “Except as provided by law, no
solicitation or distribution activity may take place on DMC premises without management
approval.”
In recognition of the fact that a hospital's primary function “is patient care and that a
tranquil atmosphere is essential to carrying out that function,” the Board has permitted health
care facilities to impose somewhat more “stringent prohibitions” on solicitation and distribution
than are generally permitted. St. John's Hospital & School of Nursing, Inc., 222 NLRB 1150
(1976), enfd. in part 557 F.2d 1368 (10th Cir. 1997); see also Beth Israel Hospital v. NLRB, 437
U.S. 483 (1978) (approving the standard applied by the Board in St. John's Hospital). A hospital
may prohibit solicitation and distribution at any time in immediate patient care areas (such
patients' rooms, operating rooms, X-ray areas, therapy areas), even during nonworking time. St.
John's Hospital, supra at 1150-1151; see also Health Care & Retirement Corp., 310 NLRB
1002, 1004-1005 (1993). However, a hospital may not ban solicitation and distribution in other
areas to which patients and visitors have access (such as lounges and cafeterias) unless the
evidence shows that such a ban is necessary to avoid a disruption of patient care. Id.; NLRB v.
Baptist Hospital, 442 U.S. 773, 781-787 (1979).
In this case, the Respondent does not limit the prohibition on solicitation and distribution
to immediate patient care areas. In fact, the Respondent's rule is so broad as to prohibit
employees from petitioning public support regardless of where or when such activity occurs.
The policy, on its face, would apply to locations outside and even distant from, the hospital.
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Therefore, the rule is invalid unless the Respondent can show that it is necessary to avoid a
disruption of patient care.
Here, the Respondent has produced no evidence showing that such an unqualified ban
on solicitation and distribution is necessary to avoid a disruption of patient care. Therefore, the
Respondent's rule is overbroad and unlawful. It also produced no evidence that the rule was
communicated or applied in such a way to clearly convey to employees that they were permitted
to distribute literature in nonworking areas during nonworking time.
The Union’s objections to conduct that allegedly affected the results of the March 16, 2007
representation election
In addition to the alleged unfair labor practices committed with regard to Robin Taylor,
the Union alleges that the election results were affected by 1. a promise of wage increases and
2. Respondent’s offering a short-term disability insurance benefit in the weeks just prior to the
election. The Union lost the March 16, 2007 election by a vote of 211-46.
With regard to #1, the Union objects to a flyer Respondent handed out the day before
the March 16 representation election. That flyer stated that the Union misrepresented the
compensation of HVSH environmental employees and neglected the fact that the one employee
mentioned by the Union would have received a 2% increase in base wages and an additional
1% increase for attendance in 2007 and another increase in 2008. The flyer also stated that, “in
2008, HVSH will have non-lead environmental services workers paid as high as $14.18 an
hour.”
With regard to #2, sometime in early March, Respondent posted an announcement that
onsite enrollment meetings would be held in its cafeteria from March 19, through April 6, 2007
for a new Breakthrough Benefits Program. This poster was displayed in the atrium near the
ground floor entrance to the hospital. The flyer announced that employees could choose from
whole life insurance with a long term care rider, accident insurance and automobile and
homeowner’s insurance. These benefits had not been available to bargaining unit employees
previously.
The election must be set aside and a second election must be conducted
In Dal-Tex Optical Co., 137 NLRB 1782, at 1786–1787 (1962), the Board held that
conduct in violation of Section 8(a)(1) of the Act that occurs during the critical period prior to an
election is “a fortiori, conduct which interferes with the exercise of a free and untrammeled
choice in an election.” There is an exception to Dal-Tex, however, where the conduct is so
minimal or isolated that “it is virtually impossible to conclude that the misconduct could have
affected the election results.” Clark Equipment Co., 278 NLRB 498, 505 (1986).
It is impossible to conclude that Respondent’s discriminatory suspension and discharge
of Robin Taylor could not have affected the election results, despite the lopsided vote against
union representation. News of Robin Taylor’s discharge was disseminated by the Union the day
before the election and I would hesitate to overturn the election if that were the only evidence
that bargaining unit employees were aware of his discharge and his support for the Union.
However, some employees may have been observed him being escorted out of the hospital on
March 2, and the testimony of Autumn Patterson/Gallaher makes it apparent that some
employees became aware of the discharge prior to the election “through the grapevine.” Her
testimony and other evidence also establish that some unspecified number of employees also
knew that Taylor actively supported the Union. It is therefore impossible to know how many
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employees were aware of Mr. Taylor’s plight apart from the Union’s efforts to publicize it. It is
also impossible to conclude that his suspension and discharge could not have affected the
election results.
In addition, Respondent maintained rules regarding solicitation and distribution, and the
access of off-duty employees to its property during the critical period that violated Section
8(a)(1). These policies were available to all employees via computers at their work stations.
Respondent discriminatorily enforced one of these rules against Mr. Taylor for engaging in
union activity. This is another reason why the results of the March 2007 election must be set
aside.32
The Respondent having discriminatorily discharged an employee, it must offer him
reinstatement and make him whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).33
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended34
ORDER
The Respondent, Huron Valley Sinai Hospital, Commerce, Michigan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employee for supporting
Michigan Council 25, American Federation of State, County and Municipal Employees
(AFSCME), or any other union.
(b) Maintaining and enforcing any rules that prohibit or inhibit employees from engaging
in protected solicitation during nonworktime in nonimmediate patient care areas or that prohibit
or inhibit employees from engaging in protected distribution during nonworktime in nonwork
areas that are not immediate patient care areas.
(c) Discriminatorily enforcing its rules and policies regarding employee access to the
areas of its facility and its rules and policies regarding solicitation and distribution.

32 The Union objections covered only Mr. Taylor’s discharge, the “breakthrough benefits
program,” and the flyer, it contends promised certain employees a wage increase. However,
the Board will permit, indeed require, an election to be set aside based on evidence uncovered
during the Regional Office’s investigation even through it was not the subject of a specific
objection, American Safety Equipment Corp., 234 NLRB 501 (1978); White Plains Lincoln
Mercury, 288 NLRB 1133 (1988).
33 The General Counsel asks that the remedy provide that interest be compounded on a
quarterly basis. Such a change from the current practice must be made by the Board.
34 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Robin Taylor full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Robin Taylor whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, suspension, written warnings and counseling, and within 3
days thereafter notify Robin Taylor in writing that this has been done and that the discharge and
these disciplinary actions will not be used against him in any way.
(d) Rescind the rules and/or policies that prohibit or inhibit employees from engaging in
protected solicitation during nonworktime in nonimmediate patient care areas or that prohibit or
inhibit employees from engaging in protected distribution during nonworktime in nonwork areas
that are not immediate patient care areas and remove these rules from the printed and/or
electronic documents in which they are published and inform employees in writing that these
rules are no longer in effect.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(f) Within 14 days after service by the Region, post at its Commerce, Michigan facility,
copies of the attached notice marked “Appendix.”35 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being signed by the Respondent’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.
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 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 employees employed by the Respondent at any time since
February 2, 2007.

35 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
(h) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
(i) IT IS ALSO ORDERED that Case No. 7-RC-23071 be remanded to the Regional
Director to take appropriate action consistent with this decision.
Dated, Washington, D.C., November 9, 2007.
____________________
Arthur J. Amchan
Administrative Law Judge
JD–71–07
Detroit, MI
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against any of you for supporting Michigan
Council 25, American Federation of State, County and Municipal Employees (AFSCME) or any
other union, or for engaging in protected concerted activity.
WE WILL NOT maintain rules that prohibit or inhibit you from engaging in protected solicitation
during nonwork time in nonimmediate patient care areas or that prohibit or inhibit you from
engaging in protected distribution during nonwork time and in nonwork areas that are not
immediate patient care areas.
WE WILL NOT discriminatorily deny off-duty employees access to areas of our facility.
WE WILL NOT maintain rules that deny off-duty employees access to the outside nonwork
areas of the facility.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Robin Taylor full reinstatement to his
former job or, if that job no longer exists, to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Robin Taylor whole for any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharge, suspension, written warnings and counseling of Robin Taylor, and WE
WILL, within 3 days thereafter, notify him in writing that this has been done and that the
discharge will not be used against him in any way.
JD–71–07
Detroit, MI
WE WILL rescind the overly broad provisions of our solicitation and distribution policy and our
policy restricting access of off-duty employees to our property.
HURON VALLEY SINAI HOSPITAL
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300
Detroit, Michigan 48226-2569
Hours: 8:15 a.m. to 4:45 p.m.
313-226-3200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 313-226-3244.