Kaiser Permanente, Kaiser Foundation Hospitals; Southern California Permanente Group: The Permanente

National Labor Relations Board - Board Decisions

Sep 17, 2013

360 N.L.R.B. 1 (N.L.R.B. 2013)

KAISER FOUNDATION 1
360 NLRB No. 2
Kaiser Foundation and National Union of Healthcare
Workers. Cases 31–CA–089178 and 31–CA–
091298
September 17, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On May 20, 2013, Administrative Law Judge Gregory
Z. Meyerson issued the attached decision. The Respond-
ent, Kaiser Foundation Hospitals, filed exceptions and a
supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.2
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law
3(a).
“(a) Making coercive statements to employees about
engaging in protected concerted activity.”
2. Delete Conclusion of Law 3(b) and renumber the
subsequent conclusions accordingly.
ORDER
The National Labor Relations Board orders that the
Respondent, Kaiser Foundation Hospitals, Harbor City,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Making coercive statements to employees about
engaging in protected concerted activity;
(b) Threatening to discipline employees if the employ-
ees continue to engage in protected concerted activity;
and

1 In the absence of exceptions, we adopt the judge’s findings.
2 We conform the judge’s Conclusions of Law, recommended Or-
der, and notice to his findings and to the Board’s standard remedial
language. Specifically, although the judge found that the Respondent
made a coercive statement to an employee about engaging in protected
concerted activity and properly included a reference to this finding in
the notice, the judge inadvertently failed to include this violation
among his Conclusions of Law and in the recommended Order. Addi-
tionally, although the judge did not find that the Respondent either
unlawfully instructed employees not to engage in protected concerted
activity or threatened to discipline employees because they engaged in
protected concerted activity, he mistakenly included such violations in
his Conclusions of Law, recommended Order, and notice.
(c) Impliedly threatening to discharge employees if the
employees continue to engage in protected concerted
activity.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its South Bay facility in Harbor City, California, copies
of the attached notice marked “Appendix”3 in both Eng-
lish and Spanish. Copies of the notice, on forms provid-
ed by the Regional Director for Region 31, 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 post-
ed. In addition to physical posting of paper notices, no-
tices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily com-
municates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since September 6, 2012.
(b) Within 21 days after service by the Region, file
with the Regional Director for Region 31 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the consolidated com-
plaint be dismissed insofar as it alleges violations of the
Act not specifically found.
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.

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT make coercive statements to you about
engaging in protected concerted activity.
WE WILL NOT threaten to discipline you if you contin-
ue to engage in protected concerted activity.
WE WILL NOT impliedly threaten to discharge you if
you continue to engage in protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
KAISER FOUNDATION
Cecelia Valentine, Esq., for the Acting General Counsel.
Karen Rooney, Esq., of Los Angeles, California, and Diana
Casares Bell, Esq., of Pasadena, California, for the Re-
spondent.
Florice Hoffman, Esq., of Orange, California, for the Union.
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu-
ant to notice, I heard this case in Los Angeles, California, on
March 25 and 26, 2013. This case was tried following the issu-
ance of an order consolidating cases, consolidated complaint,
and notice of hearing (the complaint) by the Regional Director
for Region 31 of the National Labor Relations Board (the
Board) on December 27, 2012. The complaint was based on a
number of original and amended unfair labor practice charges,
as captioned above, filed by National Union of Healthcare
Workers (NUHW, the Union, or the Charging Party). It alleges
that Kaiser Foundation Hospitals (the Respondent, the Employ-
er, the Hospital, or Kaiser) has violated Section 8(a)(1) of the
National Labor Relations Act (the Act). The Respondent filed
a timely answer to the complaint denying the commission of
the alleged unfair labor practices.1
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, and to argue
orally and file briefs. Based on the record, my consideration of
the briefs filed by counsel for the Acting General Counsel,

1 All pleadings reflect the complaint and answer as those documents
were finally amended at the hearing. The General Counsel’s formal
documents (GC Exh. 1) contain the charges, amended charges, and
affidavits of service establishing the dates on which those charges and
amended charges were filed with the Board and served on the Re-
spondent, as alleged in the complaint.
counsel for the Union,2 and counsel for the Respondent, and my
observation of the demeanor of the witnesses,3 I now make the
following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the Respondent’s answer admits, and
I find that at all times material, the Respondent has been a cor-
poration engaged in the business of operating acute care hospi-
tals in the State of California, including a hospital in Harbor
City, California (the Hospital), where it also maintains an office
and place of business. This is the only facility involved in this
proceeding. Further, I find that during the 12-month period
ending October 30, 2012, the Respondent, in conducting its
business operations just described, derived gross revenues in
excess of $250,000; and during the same period of time, pur-
chased and received at the Hospital located in Harbor City,
California, goods valued in excess of $5000 directly from sup-
pliers located outside the State of California.
Accordingly, I conclude that the Respondent is now, and at
all material times has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the Respondent’s answer admits, and
I find that at all times material herein, the Union has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts and the Dispute
The Respondent’s Harbor City facility is also known as the
South Bay facility. At the time of the hearing, certain of the
Respondent’s nonsupervisory employees at the South Bay facil-
ity were members of a bargaining unit represented by Service
Employees International Union, United Healthcare Workers-
West (SEIU-UHW). Those represented employees included
those employed in the Respondent’s Environmental Services
(EVS) Department. Accordingly, at all relevant time periods
the SEIU-UHW has been the exclusive collective-bargaining
representative for those nonsupervisory EVS Department em-
ployees. (See Stipulation of Facts, GC Exh. 2.)
I will take administrative notice that since some time in the
recent past the National Union of Healthcare Workers (NUHW)
has been seeking to represent the same unit of employees as is
currently represented by the SEIU-UHW. To that end, the
NUHW filed a representation petition with the agency in Case
32–RC–5775. It is perhaps an understatement to say that these

2 Counsel for the Union filed a statement in which she joined in the
brief filed by counsel for the Acting General Counsel.
3 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits with consideration given for
reasonable probability and the demeanor of the witnesses. See NLRB v.
Walton Manufacturing Co., 369 U.S. 404, 408 (1962). Where witness-
es have testified in contradiction to the findings herein, I have discred-
ited their testimony, as either being in conflict with credited documen-
tary or testimonial evidence, or because it was inherently incredible and
unworthy of belief.
KAISER FOUNDATION 3
two labor organizations have been engaged in an aggressive,
hotly contested campaign to represent these employees. On
February 11, 2013, the Regional Director for Region 32 issued
an Order and notice of second election directing a mail ballot
election with a number of named employers, one of whom is
the Respondent, the NUHW, as the Petitioner, and the SEIU-
UHW, as the Intervener, among the unit of employees men-
tioned above, which unit includes the Respondent’s nonsuper-
visory EVS Department employees. (Un. Exh. 1.) At the time
of the hearing in this matter, that election was still pending.
Maria Bodkin (Bodkin) is an EVS Department employee at
the Respondent’s South Bay facility. She has been employed at
that facility in that capacity for approximately 14 years. Bod-
kin’s first language is Spanish, however, she testified in Eng-
lish. She declined the offer of having a Spanish language inter-
preter, indicating that she understands “almost everything” in
English. Further, it was my observation when watching her
testifying that she is fluent in the English language.
It is undisputed that while Bodkin was represented by SEIU-
UHW at her place of employment, she was, in fact, a very
strong, vocal supporter of the NUHW. Her support for the
NUHW was well known among her fellow employees, man-
agement, and by the two respective labor organizations. She
distributed to fellow employees petitions, pamphlets, and litera-
ture on behalf of the NUHW and orally attempted to garner
support for that labor organization among her coworkers. In
fact, her picture and name were prominently displayed on two
pro-NUHW flyers distributed on the Respondent’s South Bay
campus and mailed to employees. (GC Exhs. 3 & 4.) It is also
undisputed that Bodkin frequently spoke up at gatherings of
employees and managers where she was critical of the man-
agement in the EVS Department, and where she raised such
issues as a lack of cleaning supplies, inequitable work sched-
ules, the awarding of overtime, and worker injuries allegedly
caused by excessive work.
The Respondent has out sourced the management of the EVS
Department to a company known as Xanitos. The overall re-
sponsibility for the Respondent’s EVS Department rests with
Saro Tomasian, the managing director, support operations, who
is an employee of the Respondent. Working under his direction
is Susanne Corlett, environmental services assistant director,
who is an employee of Xanitos. The Respondent’s answer
admits the supervisory status of both Tomasian and Corlett, as
well as that of Heidi Greene, a human relations consultant em-
ployed by the Respondent.
Each morning, before the start of their work shift duties, the
EVS Department housekeepers, approximately 15–20, and
some of their supervisors attend a “huddle.” These huddles are
run by a supervisor, and are held in the combined area of the
EVS office and a storeroom. They are intended for the supervi-
sors to inform the assembled employees of developing issues,
to discuss safety matters, matters of concern to the supervisors,
and also matters of concern to the employees. Generally they
last from 10 to 20 minutes, after which the employees begin
their housekeeping duties.
The Respondent contends that Bodkin was frequently a dis-
ruptive influence at these huddles, raising issues only of per-
sonal concern to her, and/or matters that should not have been
discussed in a group setting, sometimes having to do with other
employees who could have raised these issues themselves.
Allegedly, Bodkin had a private agenda, delayed the huddles
with issues unrelated to the matters at hand, was disrespectful
to the supervisors, and was loud and rude. It is the position of
the Respondent that it’s supervisors who subsequently spoke to
Bodkin regarding her alleged disruptive behavior at the huddles
were in no way intending to restrict any legitimate union or
protected concerted activity, but merely to moderate her behav-
ior so as to cause her to stop disrupting the huddles. Similarly,
the Respondent contends that its supervisors attempted to coun-
sel Bodkin for distributing petitions and materials on behalf of
the NUHW in work areas of the facility. It denies any attempt
to limit Bodkin’s legitimate protected concerted or union activi-
ty, and denies that its solicitation/distribution rules were over-
broad.
On the other hand, counsel for the Acting General Counsel
and counsel for the Union allege that the Respondent’s supervi-
sors who counseled Bodkin regarding her comments at the
huddles and her distribution of petitions and literature on behalf
of the NUHW were unlawfully attempting to limit her legiti-
mate protected concerted and union4 activity in violation of
Section 8(a)(1) of the Act. Also, they allege that the Respond-
ent’s supervisors similarly violated the Act by orally stating an
overbroad rule on solicitation and distribution. They suggest
that the claim that Bodkin was disruptive at the huddles was
merely a pretext for the Respondent’s unlawful conduct.
B. Legal Analysis and Conclusions
Section 7 of the Act guarantees employees “the right to self-
organization, to form, join, or assist labor organization . . . and
to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.” Employees
are engaged in protected concerted activities when they act in
concert with other employees to improve their working condi-
tions. Eastex, Inc. v. NLRB, 437 U.S. 556 (1978); NLRB v.
Washington Aluminum Co., 370 U.S. 9, 14 (1962). An em-
ployer may not retaliate against an employee for exercising the
right to engage in protected concerted activity. Triangle Elec-
tric Co., 335 NLRB 1037, 1038 (2001); Meyers Industries, 268
NLRB 493, 497 (1984). An employer violates Section 8(a)(1)
of the Act when it discharges an employee, or takes some other
adverse employment action against her, for engaging in pro-
tected concerted activity. Rinke Pontiac Co., 216 NLRB 239,
241, 242 (1975). It is axiomatic that an employer violates Sec-
tion 8(a)(1) of the Act when it interferes with, restrains, or co-
erces employees for engaging in protected concerted activity.
The Board, with court approval, has construed the term
“concerted activities” to include “those circumstances where
individual employees seek to initiate or induce or to prepare for
group action, as well as individual employees bringing truly
group complaints to the attention of management.” Meyers

4 In fact, the complaint does not specifically mention “union activi-
ty,” but, rather, only the more generic “protected concerted activity,”
which would by definition include union activity. Concomitantly, the
complaint does not allege a separate violation of Sec. 8(a)(3) of the Act,
but only of Sec. 8(a)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Industries, Inc., 281 NLRB 882 (1986), affd. 835 F.2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988); See Mush-
room Transportation Co., v. NLRB, 330 F.2d 683, 685 (3rd Cir.
1964) (observing that “a conversation may constitute a concert-
ed activity although it involves only a speaker and a listener” if
“it was engaged in with the object of initiating or inducing or
preparing for group action or . . . it had some relation to group
action in the interest of employees”); See also NLRB v. City
Disposal Systems, Inc., 465 U.S. 822, 831 (1984) (affirming the
Board’s power to protect certain individual activities and citing
as an example “the lone employee” who “intends to induce
group activity”).
It is beyond question that Section 7 of the Act gives employ-
ees the right to communicate with each other regarding their
wages, hours, and working conditions. Further, the Board has
consistently held that communication between employees “for
nonorganizational protected activities are entitled to the same
protection and privileges as organizational activities.” Phoenix
Transit Systems, 337 NLRB 510 (2002); citing Container Cor-
poration of America, 244 NLRB 318, 322 (1979).
Although the Respondent does not concede the matter, in my
view there is no doubt that Bodkin was engaged in concerted
activity at the Hospital. She did have an “agenda,” that being
to support the NUHW in its organizing campaign, and to make
the SEIU-UHW and the Hospital management look bad in the
eyes of the employees. However, her activities in support of
this agenda were both concerted and protected. When she
spoke up at the daily huddles and at safety meetings and com-
plained about working conditions such as a lack of cleaning
supplies, or being forced to work too quickly and in an unsafe
manner, or the inequitable distribution of overtime, she was
speaking about matters that concerned both her and other mem-
bers of the bargaining unit. Further, her distribution of flyers
and other materials on behalf of the NUHW was clearly con-
certed, and, in fact, constituted the most basic form of union
and protected concerted activity. Nevertheless, the question
remains whether the conduct of the Respondent’s supervisors
towards Bodkin violated the Act, as an attempt to unlawfully
interfere with, restrain, or coerce her in the exercise of legiti-
mate protected concerted activity.
1. The June 2012 conversation between Susanne Corlett
and Bodkin
Complaint paragraph 6 alleges that in the first or second
week of June 2012, Susanne Corlett, in the Hospital EVS store
room, instructed [Bodkin] not to engage in protected concerted
activity. The facts concerning this allegation, as well as others
in the complaint, are in dispute. In each instance, the dispute
involves the words spoken by various supervisors and whether
the version of the events as told by Bodkin or that version told
by various supervisors is correct. Therefore, it is necessary for
the undersigned to determine in each instance the credibility of
the various witnesses to these conversations.
For the most part, I did not find Bodkin to be a credible wit-
ness. She seemed mainly focused on furthering her agenda on
behalf of the NUHW, and less so on testifying truthfully. I
believe that she exaggerated and embellished her testimony, at
times to a ridiculous degree. She appeared to be following a
script, describing statements that if true would obviously con-
stitute blatant unfair labor practices, but which any knowledge-
able supervisor would be highly unlikely to make. Further, it is
important to note that while Bodkin was clearly on a campaign
to assist the NUHW in its organizing efforts, the hearing re-
vealed no evidence of any antiunion animus by the Respondent
towards the NUHW. To the contrary, it appeared that the Re-
spondent had remained neutral in the long standing conflict
between the NUHW and the SEIU-UHW.
Bodkin testified about a particular employee “huddle,”
which took place in the beginning of June 2012, and at which
Susanne Corlett, environment services assistant director and an
admitted supervisor, was the person who conducted the session.
As noted above, these huddles were held for generally 10–20
minutes prior to the start of the EVS employees beginning their
cleaning and housekeeping duties. They were designed to give
management an opportunity to raise any issues of concern, to
discuss safety, and also so that individual employees could
raise their concerns. From time to time, Bodkin would raise
issues of concern that she had. While various witnesses for the
Respondent testified that Bodkin was frequently loud and rude
at these sessions, the record is void of any probative evidence
that would establish the degree of obnoxious behavior on the
part of Bodkin as would serve to remove such conduct from the
protections of the Act. For her part, Bodkin denied that she
was ever rude and claimed that because the room where the
huddles were held was very noisy, she had to speak in a raised
voice in order to be heard.
At the meeting in question, Bodkin raised two issues of con-
cern. She complained about inadequate cleaning supplies, in
particular towels, and complained of management failing to
follow contractual seniority on the overtime rotation list. Be-
yond question, these were matters related to employee terms
and conditions of employment and constituted protected con-
certed activity.
Bodkin testified that following this meeting, Corlett indicat-
ed that she needed to talk with Bodkin and the two of them
walked about 20 feet away where they proceeded to have a
conversation. In this regard, it is very important to note that
when asked on direct examination by counsel for the Acting
General Counsel whether fellow employees were “close enough
to hear,” Bodkin responded, “No, they are about 20 feet away
from me.”
According to Bodkin, Corlett said, “Maria, why are you do-
ing this? Don’t stick your face in this for all these people. You
are going to get all of the battles. You are going to be by your-
self at the end. Your co-workers are not going to, you know,
support you.” Allegedly, Bodkin responded, “I am going to be
stand up for my-coworkers and I am ready for it.”
Corlett testified that she has chaired huddles where Bodkin
was present. According to Corlett, at such meetings employees
are frequently asked whether they have any questions, and it is
not unusual for employees to bring up concerns that they may
have. To such questions supervisors sometimes respond that
they will look into the matter and get back to the employees
with an answer. Corlett indicated that management is interest-
ed in the concerns raised by employees during the huddles, and
KAISER FOUNDATION 5
it serves as an opportunity for management and employees to
exchange information.
It was Corlett’s testimony that she has never instructed an
employee not to speak up during a huddle, nor has she ever
chastised an employee for speaking up during a huddle. She
acknowledged that from time to time she has been present
when Bodkin spoke up in a huddle. Specifically, she recalled
Bodkin speaking on behalf of employees who might be too shy
or timid to bring up a concern themselves. Further, Corlett
recalled Bodkin raising issues related to inadequate supplies,
such as towels. She characterized the concerns raised by Bod-
kin as “pretty good ideas or issues,” of the type that manage-
ment would likely respond positively to. Other employees
would also raise similar concerns. Corlett does not attend every
huddle.
Corlett testified that she did not recall a huddle during which
Bodkin raised a concern about the assignment of overtime
hours to employees. Further, she did not recall ever pulling
Bodkin aside after a huddle to talk with her about something
that Bodkin had said at the huddle. When asked by the Re-
spondent’s counsel whether she had made any of the statements
attributed to her by Bodkin about not bringing certain matters
up at huddles, or staying out of other people’s business, or end-
ing up alone, or words to that effect, Corlett responded, “Abso-
lutely not.” She then specifically denied each and every state-
ment attributed to her by Bodkin. Corlett denied ever threaten-
ing Bodkin in any way in response to anything that Bodkin
said, whether at a huddle or elsewhere. Also, she denied ever
discussing union related activities with Bodkin.
I found Corlett to be a highly credible witness. She is a
graduate of the United States Military Academy at West Point
with a degree in psychology, and served in the army as a mili-
tary police officer. She testified in a straight forward, no non-
sense manner with clarity and certainty. Her testimony was
reasonable and seemed more probable than not. Although an
admitted supervisor of the Respondent, she is actually an em-
ployee of Xanitos, the company with which the Respondent has
contracted to provide the management services for the EVS
Department. Thus, she is unaffected by the organizing efforts
of the NUHW and/or the rivalry between that Union and the
SEIU-UHW. However, the most significant reason for finding
her credible is because, as will be noted at some length later in
this decision, she testified candidly about certain alleged unfair
labor practices committed by the Respondent through the
statements of Saro Tomasian, her immediate supervisor. In this
regard, she supported the complaint allegations as alleged by
the Acting General Counsel. Such testimony was clearly ad-
verse to the interests of the Respondent and to Tomasian,
demonstrating her propensity to tell the truth, even when it is
contrary to her personal best interests.
Besides Bodkin and Corlett, there were two other individuals
who had something to say regarding the alleged coercive con-
versation. Noemi Maldonado, an employee in the EVS de-
partment, testified on behalf of the Acting General Counsel.
Her primary language is Spanish and, so, she testified by means
of a Spanish Language interpreter. I found her testimony con-
fusing and somewhat contradictory. She testified that she has
heard Bodkin complain at huddles about the lack of mops and
towels, about employee schedules and overtime rotations, and
about safety and performance issues, specifically that the
housekeepers are not “robots.” She recalled an incident in May
or June of 2012, where Susanne Corlett spoke with Bodkin
about comments Bodkin had made during a huddle. At first she
seemed to be saying that she heard the conversation, which
would have been contrary to Bodkin’s testimony that no em-
ployees were close enough to overhear it. However, she then
made it clear that she had merely been told later by Bodkin of
the substance of the alleged conversation. According to the
initial translation, Bodkin told her that Corlett had said that,
“She [Bodkin] shouldn’t be facing the music, because in the
end, she was going to end up alone.” Following an objection
by counsel for the Acting General Counsel, the interpreter
changed the translation to Maldonado testifying that Bodkin
said that Corlett had told her [Bodkin] that, “She should stop
facing the music on behalf of others because, in the end, she
was going to stand alone.”
Later, during cross-examination, Maldonado acknowledged
that during the huddle in question, Bodkin had only complained
about inadequate mops and towels available for the housekeep-
ers. According to Maldonado, Bodkin had also complained
about the way work assignments were made, about the house-
keepers not being robots, and about overtime, but these matters
were raised by Bodkin at some huddles other than the one that
allegedly precipitated the conversation between Corlett and
Bodkin. Further, on cross-examination, Maldonado made it
clear that she had not overheard the private conversation be-
tween Corlett and Bodkin, but only Bodkin’s version of that
alleged conversation.
I do not give any probative weight to Maldonado’s testimony
because it is confusing, somewhat contradictory, and mostly
because Maldonado did not actually overhear the alleged con-
versation, but only Bodkin’s version.
The second employee to have something to say about the al-
leged conversation between Corlett and Bodkin was EVS de-
partment employee George Briggs. He testified on behalf of
the Respondent and was generally hostile to Bodkin. However,
during cross-examination, he testified that on one occasion he
observed Corlett “pull[ing] Bodkin to the side” and telling her
that when they have huddles, “can she please keep her com-
ments to herself, and after the huddles come to [Corlett] and
discuss it with [Corlett], not in front of the whole group . . .
because what [Bodkin] did was rude and disrespectful.”
Once again, I have decided to give this testimony no proba-
tive weight. Briggs never indicates when this alleged conversa-
tion occurred, and, even more significant, his claim to have
overheard the conversation is contrary to Bodkin’s testimony
that no employees were close enough to have overheard the
alleged conversation between Corlett and Bodkin in June of
2012. The conversation testified to by Briggs, assuming it
occurred at all, may well have occurred at some totally different
time, and the actions which precipitated it may have been total-
ly different.
Accordingly, as I have found Corlett to be a much more
credible witness than Bodkin, I have accepted her testimony
that the conversation in question that Bodkin alleges took place
in early June of 2012, did, in fact, not occur. The counsel for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
the Acting General Counsel has failed to meet her burden of
proof to support this allegation by a preponderance of the evi-
dence. Therefore, I shall recommend to the Board that com-
plaint paragraph 6 be dismissed.
2. The August 23, 2012 conversation between Heidi Greene
and Bodkin
Complaint paragraph 7(a) and (b) alleges that on about Au-
gust 23, 2012, the Respondent by Heidi Greene orally stated an
overbroad solicitation and/or distribution rule, and threatened to
discipline [Bodkin] because of her exercise of Section 7 rights.
Greene is an employee of the Respondent, an admitted supervi-
sor, and a human resource consultant.
The Respondent has a written “On Premises Solicitation”
policy, effective September 27, 2011. Section 5.1 to 5.5 of that
policy describes what employees may and may not do on the
Hospital property. (GC Exh. 5.) It is important to note that the
Acting General Counsel has not alleged that this written policy
is in anyway unlawful. Rather, the Acting General Counsel
alleges that Greene, in a private conversation with Bodkin,
deviated from that written policy and orally announced an over-
ly broad solicitation and/or distribution rule.
This issue was apparently precipitated by a complaint from
Pamela Watson, the SEIU-UHW contract specialist. According
to Greene’s testimony, in August of 2012, she was contacted by
Watson who reported that Bodkin had been observed distrib-
uting NUHW flyers in a working area of the Hospital. If true,
this conduct would seem to be in violation of section 5.2 of the
above cited policy, which section reads as follows: “Employees
may not engage in distribution in working areas at any time.
Employees may not engage in distribution in nonworking areas
on working time.” It was clear from the testimony of Bodkin
that Watson and other officials of the SEIU-UHW, the certified
exclusive collective-bargaining representative of Bodkin’s bar-
gaining unit, harbor some animosity towards Bodkin because of
her support for the rival NUHW, which was seeking to replace
the SEIU-UHW as the exclusive collective-bargaining repre-
sentative. Greene, as a human resource consultant, was obvi-
ously aware of the rivalry between the two labor organizations,
the recent period of organizing activity, the first NLRB con-
ducted election, the objections to the results of that election
filed by the NUHW, and the fact that a second election had
been scheduled.
It is undisputed that Greene contacted Bodkin, told her about
the report that she had received, said that she would like to
meet with her to discuss the incident and told Bodkin that she
could bring a union representative with her. Of course, the
union representative would have been a representative of the
SEIU-UHW, the exclusive collective-bargaining representative
of Bodkin’s bargaining unit. Because of the animosity between
Bodkin and that union, she decided to meet with Greene with-
out a union representative present.
The two women met in Greene’s office on August 23, 2012.
However, there is a dramatic difference in the two versions of
the story as told by Greene and Bodkin regarding the events
that occurred in Greene’s office. At Greene’s request, Bodkin
signed a “declination of representative form.” (R. Exh. 3.)
Greene informed Bodkin that the meeting was investigatory in
nature and its purpose was not to discipline her. Although the
language on the form indicates that the investigation may result
in “corrective action,” Green testified that this was simply the
standard and only form used when union representation is de-
clined.
According to Greene, Bodkin acknowledged that she had
been distributing flyers in a working/patient area of the Hospi-
tal, as had been alleged. Greene had with her the two flyers
involved, which were highly critical of both the Hospital man-
agement as well as the SEIU-UHW. The flyers, which were in
both English and Spanish, indicated support for the NUHW,
and prominently displayed the photographs of a number of
employees, one of whom was Bodkin. (GC Exhs. 2 and 3.)
Greene testified that she explained the “On Premises Solici-
tation” policy to Bodkin and asked her to sign a copy of the
written policy to acknowledge receipt of it. This explanation
included the provision, as found in section 5.2 of the policy,
that “[e]mployees may not engage in distribution in working
areas at any time[, and e]mployees may not engage in distribu-
tion in nonworking areas on working time.” (GC Exh. 5.) It
seemed to Greene as if Bodkin had not previously been familiar
with the policy. Bodkin and Greene read the policy together,
and then Bodkin signed the document acknowledging that she
understood it. (GC Exh. 5.) During the course of their discus-
sion, Bodkin asked a number of questions about the policy,
which questions Greene answered. According to Greene, she
informed Bodkin that in the future Bodkin would need to com-
ply with the policy in order to avoid corrective action. Greene
testified that the meeting lasted 15–20 minutes and was congen-
ial.
Bodkin’s version of this meeting was very different. Ac-
cording to Bodkin, she understood Greene’s explanation to
mean that she and her coworkers were not to congregate any-
where on the Hospital campus at any time. This allegedly in-
cluded a “bench” outside of the Vermont Pavilion building,
which bench is available for public use and where employees
have traditionally sat to discuss all sorts of subjects, including
those of a personal nature. Shocked by these instructions, Bod-
kin allegedly asked whether Greene was saying that she could
not be with her coworkers after work, on a bench, or be any
other place on the campus, including the sidewalk. Bodkin
testified that Greene responded that she could not.
Allegedly, Bodkin was very surprised by Greene’s state-
ments, which seemed to contradict Bodkin’s understanding of
the Respondent’s policy as a 14-year employee of the Hospital.
Thereafter, she informed her fellow employees and the NUHW
that Greene had told her that employees were not permitted to
meet together on the “bench” or after work at other locations on
the campus.
Greene testified that during her meeting with Bodkin she
never instructed Bodkin that she could not talk to her co-
workers at work; never told her that she could not solicit in
connection with collective action; never stated a blanket rule
that she could not solicit or distribute flyers before, during, or
after work; never told her that she could not sit on the bench
outside the Vermont Pavilion and talk with her coworkers;
never told her that she could not talk with her coworkers on the
sidewalk; and never told her that she could not engage or so-
KAISER FOUNDATION 7
cialize with her peers. Further, Greene denied telling Bodkin
that she could be disciplined if she passed out flyers again on
campus.
Obviously, a credibility determination must be made in order
to resolve the dispute regarding what was said in Greene’s of-
fice on August 23, 2012. As I noted earlier in this decision and
for the reasons previously stated, I did not find Bodkin to be a
credible witness. I believe that in this instance as well, she is
not credible, having at best grossly exaggerated and embel-
lished Greene’s statements to her. Frankly, it strains credulity
to believe that any human resource consultant would have made
such overreaching and ridiculous statements to an employee,
which would so obviously have been a violation of the Act.
According to Bodkin, Greene was telling her that she was pro-
hibited, not only from engaging in legitimate Section 7 activity,
but also from having any social contact with fellow employees
at any time and at any place on hospital property. This is ridic-
ulous and is totally implausible. It seems to be that Bodkin’s
testimony in this regard was given in an attempt to make the
Respondent look as malevolent as possible so as to aid the
NUHW in its organizing efforts.
On the other hand, Greene seemed reasonably credible. Her
testimony was straight forward, and she did not appear to exag-
gerate or embellish, willingly admitting when she did not recall
something. She is an experienced human resource consultant
who logically would have been very unlikely to have made the
statements attributed to her by Bodkin. Her testimony was
reasonable, inherently plausible, and had the “ring of authentic-
ity” to it. Further, she gave no indication that she was personal-
ly hostile to Bodkin or to the NUHW, or favored one union
over the other. Also, no credible, probative evidence has been
presented that the Respondent harbored antiunion animus to-
wards the NUHW, or that the Respondent was anything other
than neutral in the rival organizing campaigns of the SEIU-
UHW and the NUHW.
Accordingly, I credit the testimony of Greene over that given
by Bodkin regarding the statements made in Greene’s office on
August 23, 2012. I conclude that Greene did not orally state an
overbroad solicitation and/or distribution rule, and did not
threaten to discipline Bodkin based on the exercise of her Sec-
tion 7 rights, as is alleged in the complaint. Counsel for the
Acting General Counsel has failed to prove these allegations by
a preponderance of the evidence. Therefore, I shall recommend
to the Board that complaint paragraph 7(a) and (b) be dis-
missed.
3. The September 6, 2012 conversation between Saro Tomasian
and Bodkin
Complaint paragraph 8(a), (b), (c), and (d) alleges that on
about September 6, 2012, Saro Tomasian, in a conversation
with [Bodkin,] made coercive statements to her about engaging
in protected concerted activity; threatened to discipline her if
she continued to engage in protected concerted activity; im-
pliedly threatened to discharge her if she continued to engage in
protected concerted activity; and prohibited her from discussing
her terms and conditions of employment. Once again the par-
ties disagree as to what was said during this conversation.
However, unlike the earlier disputed one-on-one conversations,
there were three persons present for this conversation, namely
Bodkin, Tomasian, and Susanne Corlett.
Tomasian, Manager of Support Operations and an admitted
supervisor, was responsible for the EVS Department. He was
very familiar with Bodkin, as over the years she had regularly
communicated with him one on one about workplace concerns
including the EVS employees’ schedules, duties, and responsi-
bilities. Tomasian testified that he had an open door policy and
Bodkin took advantage of that policy to talk with Tomasian
about work related issues that concerned her. According to
Tomasian, he was receptive to her concerns and always indicat-
ed to her that he would follow up on the information that she
had given him. It appears from the testimony of both Bodkin
and Tomasian that they got along reasonably well, and were
respectful towards each other during these one-on-one meet-
ings.
Tomasian testified that in July and August of 2012, he heard
from other supervisors and some employees that Bodkin was
being rude and disruptive during huddles. According to To-
masian, he observed such behavior himself when he conducted
a safety meeting for the EVS employees on August 15, 2012.
The purpose for the meeting was to alert the employees to an
increased rate of injury and to ask for their help in reducing it.
At the meeting Bodkin appeared to blame the increased injury
rate on the fact that the management team in the EVS Depart-
ment had changed from Kaiser to Xanitos. Tomasian testified
that Bodkin addressed him in a “real aggressive” and “loud”
manner. Bodkin testified that in response to Tomasian’s con-
cerns about safety and request for suggestions on how things
might be improved that she commented, “Just remember, we
are not robots.” This was apparently intended as a comment
and/or suggestion that the housekeepers were being required to
work too quickly, and needed to slow down.
In Tomasian’s opinion, Bodkin’s conduct and comments
were unacceptable and were “really dragging the department
down.” However, I view Bodkin’s conduct as legitimate con-
certed activity, specifically her complaints that the employees
were being required to work too quickly, which caused acci-
dents to happen. Further, the evidence does not demonstrate
that her words or actions towards Tomasian were so obnoxious
or improper as to remove them from the protection of the Act.
According to Bodkin, in early September 2012, fellow EVS
employee Rosa Ortiz complained to Bodkin about her work
schedule, specifically excessive consecutive days worked.
Further, Ortiz complained to Bodkin that she had raised the
issue with Supervisor Corlett, who was allegedly unresponsive
to these concerns. Bodkin asked Ortiz for permission to raise
the issue during a huddle, which permission Ortiz allegedly
gave. Bodkin testified that following her conversation with
Ortiz, Bodkin raised the issue at a huddle that Corlett was di-
recting. Ortiz was not present at this huddle. According to
Bodkin, she specifically asked about Ortiz’ schedule, noting
that Ortiz was scheduled to work too many days in a row. Cor-
lett responded that the subject of Ortiz’ schedule would not be
discussed during the huddle. However, regardless of Corlett’s
refusal to discuss the matter, I believe that Bodkin was engaged
in protected concerted activity when she raised the issue of a
fellow employee allegedly being required to work too many
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
consecutive days. Clearly this was related to the working con-
ditions of the EVS department employees.
These were the events that precipitated Tomasian’s meeting
with Bodkin. According to Bodkin, she was called into To-
masian’s office on September 6, 2012. Present in the office
with Tomasian was Supervisor Corlett. Bodkin testified that
Tomasian started the meeting by saying that Bodkin was a good
worker, but questioned why she was “causing hostility” in the
department by her “comments.” He mentioned that he had
received complaints about her comments. Specifically, he
mentioned the comment that Bodkin had made at a huddle
about the housekeepers not being “robots,” and the fact that she
raised the issue of Rosa Ortiz’ schedule. Bodkin testified that
Tomasian continued, “Rosa’s schedule is not your business.
Rosa’s schedule is Rosa’s schedule. You [sic] not lead, you
[sic] not leader . . . . By doing these comments, you are digging
your own hole.”
According to Bodkin, Tomasian went on the say, “What am I
going to answer to my boss when she asks me why Maria Bod-
kin causes so [sic] much problems in my department? I don’t
know what to say to her.” Allegedly Tomasian continued,
“Next comments that you make, I don’t care if it is big or little,
positive or negative, I am going to take you to HR, Level 4,5
and it is up to HR [sic] giving you disciplinary—letting you
keep your job or not.”
Bodkin testified that Tomasian ended the meeting by
“look[ing] at Susanne Corlett,” and saying, “What we discuss
here stays confidential,” to which Corlett allegedly replied,
“Yes.” However, it is important to note that Bodkin did not
testify that a similar remark was directed to her.6
Susanne Corlett supports much of Bodkin’s testimony re-
garding the conversation in Tomasian’s office. During cross-
examination by counsel for the Union, Corlett admitted that
Tomasian told Bodkin that she was not supposed to speak about
other employees’ concerns or on behalf of other employees at
the huddles. He directed her to only talk about her own con-
cerns. Further, she acknowledged that Tomasian told Bodkin
not to “stir up the pot,” or “it would be addressed.”
Preliminarily, I will note that I did not find Tomasian to be a
credible witness. Much of his testimony regarding the meeting
of September 6, 2012, was elicited by means of leading ques-
tions from the Respondent’s counsel, which certainly makes his
responses questionable. Further, the story that he tells regard-
ing this meeting simply does not seem plausible. He testified
that he had received numerous complaints from supervisors and
employees about Bodkin being disruptive at huddles. Howev-
er, he tries to minimize any references made to concerted con-
duct or to warning her not to engage in such conduct. He at-
tempts to portray the meeting as simply a constructive counsel-
ing session designed to get Bodkin to modify her behavior and
not be disruptive, aggressive, or rude, and to be a team player.
He testified that his goal in meeting with Bodkin was to get her

5 According to Bodkin, Level 4 discipline means the employee is
ready for termination.
6 While counsel for the General Counsel’s brief (p. 14) indicates
that Tomasian issued the same directive to Bodkin and references page
73 of the transcript, there is no such reference.
to respect management, and he asked her if she had any future
concerns to “please bring them up to management directly.”
Also, he acknowledged that he told Bodkin that her remarks
“on behalf of other employees were negative and causing hos-
tility.”
Tomasian testified that the matter of Bodkin raising the sub-
ject of Rosa Ortiz’ work schedule at a huddle was mentioned
during their meeting, but he could not recall whether the subject
of housekeepers not being “robots” as raised by Bodkin at a
safety meeting was discussed on September 6. Further, he
could not recall telling Bodkin that she was “digging [her] own
grave,” and he could not recall telling her “not to stir the pot.”
He mostly testified in a general way, becoming specific only
when required to do so by the question. However, he did spe-
cifically deny threatening Bodkin with disciplinary action or
discharge because of her conduct; denied saying that the next
mistake she made, he would bring her to the Human Resource
Department; denied that he prohibited her from helping co-
workers with their employment problems; and denied asking
her to keep their meeting confidential.
Yet, significantly, on cross-examination by counsel for the
Union, Tomasian contradicted some of these denials. Clearly,
his testimony was inconsistent. On cross-examination he ad-
mitted saying to Bodkin: “It’s not the first time, I’ve had other
complaints. I’m not writing you up, but it has got to stop. I
don’t want to hear inappropriate comments. I don’t want you
talking about anything, but things about you. Don’t bring up
issues that don’t concern you. Stop the hidden messages.”
Although I have previously found Bodkin generally not to be
credible, in this instance I do find her testimony regarding the
meeting in Tomasian’s office on September 6, 2012, to be
truthful. It was inherently plausible, and considering the timing
of the meeting, being precipitated by Bodkin’s public com-
ments regarding Rosa Ortiz’ schedule and housekeepers not
being robots, Bodkin’s testimony was certainly more plausible
than that of Tomasian.
Additionally, Corlett’s testimony is more supportive of Bod-
kin than it is of Tomasian. I previously found Corlett to be
credible, and in this instance even more so. She is testifying
about matters that are contrary to Tomasian’s and the Respond-
ent’s interests. While she is technically an employee of Xani-
tos, Corlett functions as a supervisor for the Respondent, and it
is certainly in her best interest to stay on good terms with the
Respondent as the entity with which Xanitos has its contract.
Accordingly, Corlett’s testimony regarding the meeting in
question should be given significant weight.
Therefore, having credited the testimony of Bodkin and Cor-
lett, I conclude that counsel for the Acting General Counsel has
met her burden of proof and established by a preponderance of
the evidence the allegations as set forth in complaint paragraph
8(a), (b), and (c). Tomasian’s statements at the meeting of
September 6, 2012, would reasonably have been coercive to
Bodkin, as she was warned that any further protected concerted
activity in the form of public complaints on behalf of bargain-
ing unit employees regarding matters such as work schedules,
the awarding of overtime, and safety concerns would not be
tolerated. Further, I find that Tomasian’s threat to take Bodkin
before the Human Resource Department was a clear threat to
KAISER FOUNDATION 9
discipline her, and impliedly to discharge her, should she con-
tinue to engage in protected concerted activities. There is no
legitimate question that Bodkin’s comments made at huddles
and safety meetings about employee work schedules, the
awarding of overtime, and safety concerns involved wages,
hours, and working conditions, and, thus, concerted activity.
Further, while Bodkin’s comments and actions may have upset
some employees and supervisors, as I have indicated above,
nothing she did was so obnoxious or improper for Bodkin to
have forfeited the protection of the Act.
Accordingly, I find that the Respondent, through the state-
ments made by Tomasian on September 6, 2012, interfered
with, restrained, and coerced employees in the exercise of their
Section 7 rights, thereby violating Section 8(a)(1) of the Act, as
alleged in complaint paragraphs 8(a), (b), and (c), and 9.
However, regarding the allegation in complaint paragraph
8(d), I find that counsel for the Acting General Counsel has
failed to meet her burden of proof. There is insufficient evi-
dence to show that on September 6, 2012, Tomasian prohibited
Bodkin from discussing with others the statements made in his
office. As I indicated above, while Tomasian specifically in-
structed Corlett to keep the matters discussed at the meeting
“confidential,” he did not make the same or similar admonition
to Bodkin. Accordingly, I shall recommend to the Board that
complaint paragraph 8(d) be dismissed.
CONCLUSIONS OF LAW
1. The Respondent, Kaiser Foundation Hospitals, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, National Union of Healthcare Workers, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By the following acts and conduct, the Respondent has vi-
olated Section 8(a)(1) of the Act.
(a) Instructing employees not to engage in protected concert-
ed activity;
(b) Threatening to discipline employees because they en-
gaged in protected concerted activity;
(c) Threatening to discipline employees if the employees
continue to engage in protected concerted activity; and
(d) Impliedly threatening to discharge employees if the em-
ployees continue to engage in protected concerted activity.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent shall be required to post a notice that as-
sures its employees that it will respect their rights under the
Act. In addition to physically posting of paper notices, notices
shall be distributed electronically, such as by email posting on
an intranet or internet site, and/or other electric means, if the
Respondent customarily communicates with its employees by
such means. J. Picini Flooring, 356 NLRB 11 (2010).
[Recommended Order omitted from publication.]