Legacy Health Systems

National Labor Relations Board - Board Decisions

Jul 13, 2009

354 N.L.R.B. 337 (N.L.R.B. 2009)

354 NLRB No. 45
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections
can be included in the bound volumes.
Legacy Health System and Service Employees Inter-
national Union, Local 49. Case 36–CA–10299
July 13, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On February 11, 2009, Administrative Law Judge Ge-
rald A. Wacknov issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and Charging Party filed answering
briefs.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions, as modified below, and to adopt
the recommended Order as modified and set forth in full
below.3
We agree with the judge that the Respondent’s prohi-
bition against an employee holding dual part-time posi-
tions—one job in a unit represented by a union and the
other job not represented by a union—constituted a hir-
ing policy that discriminated on the basis of Section 7
considerations and violated Section 8(a)(3) and (1).
However, in affirming the judge’s finding of a violation,
we find it unnecessary to rely on his finding that the
dual-employment policy was “inherently destructive” of
the employees’ Section 7 rights under the theory of
NLRB v. Great Dane Trailers, 388 U.S. 26, 33–34

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3 (b) of the Act. See Snell Island SNF LLC v. NLRB, __ F.3d
__, 2009 WL 1676116 (2d Cir. June 17, 2009); New Process Steel v.
NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert. filed __
U.S.L.W. __ (U.S. May 27, 2009) (No. 08-1457); Northeastern Land
Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing denied No.
08-1878 (May 20, 2009). But see Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petitions for re-
hearing denied Nos. 08–1162, 08–1214 (July 1, 2009).
2 In the first sentence of the paragraph preceding the judge’s “Con-
clusions of Law,” the word “awarded” should be substituted for the
word “denied” in order for that sentence to read correctly.
3 We have modified the judge’s recommended Order to correct a ty-
pographical error and to more closely conform to the Board’s standard
remedial language. We have also substituted a new notice that corrects
certain editorial and spelling errors.
(1967). Even assuming that the dual-employment policy
had a “comparatively slight” impact on the employees’
Section 7 rights under Great Dane,4 the burden still rests
with the Respondent to establish a “legitimate and sub-
stantial business justification” for the policy. In accord
with this approach, taken by the Board in National Foot-
ball League, 309 NLRB 78, 81 (1992), we find that Re-
spondent failed to establish, as required by Great Dane,
the required business justification for maintaining and
enforcing the policy and we therefore affirm the 8(a)(3)
and (1) violation.
The Respondent asserts that because the terms and
conditions of employment governing bargaining unit
employees differ from those of nonunit employees, its
policy was justified by the need to avoid the “legal un-
certainties” that would arise if it permitted dual employ-
ment in a unit and nonunit position. The judge rejected
this argument, finding that these asserted legal uncertain-
ties—including such questions as whether the employee
working both the unit and nonunit position would be
covered by a particular collective-bargaining agreement’s
overtime, disciplinary, and grievance provisions—were
“more in the nature of administrative or labor relations
concerns” that could have been resolved through collec-
tive bargaining rather than unilaterally implemented.
Accordingly, the judge concluded that the Respondent’s
proffered defense failed under Great Dane as a legiti-
mate and substantial business justification for the policy.
We reject the Respondent’s proffered business justifi-
cation defense for a reason different from the judge’s and
thus find it unnecessary to rely on his rationale. We rely
on the judge’s finding that the Respondent’s policy pro-
hibiting dual employment in a unit and nonunit position
“does not prohibit employees from simultaneously hold-
ing positions within two bargaining units, whether or not
represented by the same union.” This finding, to which
the Respondent did not except, is critical because it un-
dermines the rationale of “legal uncertainties” on which
the Respondent seeks to justify its policy.
The essence of the judge’s finding is that the Respon-
dent permits employees to hold two bargaining unit posi-
tions, even in units represented by different unions, i.e.,

4 Under the policy, employees hired into union-represented positions
are ineligible to later apply for part-time, nonunion-represented posi-
tions, and employees hired into nonunion-represented positions are
similarly ineligible to later apply for part-time, union-represented posi-
tions. Thus, as the judge found, an employee’s future, part-time em-
ployment opportunities—and the supplemental pay, additional benefits,
and/or potential for job advancement that attend those opportunities—
are limited by whether or not the employee’s existing position is union-
represented. Accordingly, we find that the policy has at least a “com-
paratively slight” impact on employees’ Sec. 7 rights to seek and sup-
port union representation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
in separate bargaining units. But allowing such em-
ployment would present the Respondent with precisely
the same legal uncertainties that it assertedly sought to
avoid by maintaining its policy prohibiting employees
from holding a bargaining unit job and a nonunit job.
Indeed, Human Resources Consultant Mary Starmont
acknowledged that permitting an employee to work in
separate bargaining units under different collective-
bargaining contracts “would be a problem for the same
reasons that the holding (sic) a non-union position and a
union position.” Her testimony is confirmed by a review
of the union contracts in evidence covering various units
of the Respondent’s employees. These contracts contain
different employment terms and do not specify which
contractual provision pertaining to a particular employ-
ment term would apply to the employee when working in
one of the units.5
In light of the Respondent’s failure to establish the ex-
istence of a coextensive prohibition against dual em-
ployment under different union contracts, which the Re-
spondent concedes would create the same “legal uncer-
tainties” that assertedly justified its prohibition against
dual unit/nonunit employment, we find that the Respon-
dent has not established a legitimate and substantial justi-
fication for its policy that outweighs the adverse effect
that it has on the Section 7 rights of its employees, who
are effectively penalized with reduced employment op-
portunities for having chosen union representation. Ac-
cordingly, under Great Dane’s “comparatively slight”
standard, we affirm the judge’s finding that the Respon-
dent’s policy violated Section 8(a)(3).6

5 It is noteworthy that Starmont did not contend, in response to a
question by the judge, that the Respondent prohibits employees from
working in two units under different contracts. Rather, she stated that
she did not “know that it’s ever come up.” However, neither had the
issue of dual unit/nonunit employment “come up” before the three unit
discriminatees here applied for second part-time nonunit positions in
the early months of 2008. Yet the Respondent’s policy prohibiting
such employment had existed for many years prior to 2008, according
to Starmont, when it was applied to the three discriminatees. There is
no evidence that the Respondent had a similar pre-emptive policy pro-
hibiting employees from working two jobs in separate units.
6 Under this standard, it is unnecessary to decide, after determining
that the Respondent has failed to establish its business justification
defense, whether the policy was motivated by antiunion considerations.
See National Football League, supra at 81, fn. 15.
Although Chairman Liebman agrees that it is unnecessary to decide
this issue, she nonetheless agrees with the judge that the Respondent’s
policy was unlawful under Great Dane’s “inherently destructive” stan-
dard, and she rejects the Respondent’s argument that there can be no
violation because the judge found no proof of antiunion motivation
behind its policy. As explained in Great Dane, if employer conduct is
deemed inherently destructive of Sec. 7 rights, the conduct itself bears
its own indicia of unlawful intent and “no proof of antiunion motivation
is needed” to find a violation. 388 U.S. at 34. As the Board has ex-
plained, “if the employer’s conduct was inherently destructive of union
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that the
Respondent, Legacy Health System, Portland, Oregon,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing a discriminatory policy
that deprives employees of job opportunities on the basis
of whether their current position is or is not a union-
represented position.
(b) Refusing to hire employees into positions for
which they would have been hired but for the Respon-
dent’s discriminatory hiring policy.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind
the discriminatory hiring policy, and notify its employees
and the unions with which it has collective-bargaining
agreements that the policy has been rescinded.
(b) Within 14 days from the date of this Order, offer
employees Kathryn Milojevic, Nicole Hauge, and Wil-
liam Youngren the part-time positions for which they
applied and would have been hired but for the unlawful
enforcement of its hiring policy against them or, if those
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges they would have enjoyed absent the
discrimination against them.
(c) Make whole Kathryn Milojevic, Nicole Hauge, and
William Youngren in the manner set forth in the remedy
section of the judge’s decision.
(d) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.
(e) Within 14 days after service by the Region, post at
its various facilities copies of the attached notice marked

rights, the Board could legitimately draw the inference that the em-
ployer had the proscribed motivation.” Contractors’ Labor Pool, Inc.
v. NLRB, 323 F.3d 1051, 1058 (D.C. Cir. 2003) (emphasis in original).
That is what the judge did in finding that the Respondent’s policy was
unlawful.
LEGACY HEALTH SYSTEM 3
“Appendix.”7 Copies of this notice, on forms provided
by the Regional Director for Region 19, 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facilities involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since October 30, 2007.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. July 13, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
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

7 If this Order is enforced by a judgment of the United States court
of appeals, the wording 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.”
Choose not to engage in any of these protected
activities
WE WILL NOT maintain and enforce a policy that dis-
criminates against employees by denying you the right to
simultaneously hold both a union-represented and nonun-
ion-represented position within our organization.
WE WILL NOT refuse to hire current employees for ad-
ditional part-time positions on the basis of union consid-
erations.
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 notify the unions with which we have collec-
tive-bargaining agreements that we have rescinded the
policy.
WE WILL offer employees Kathryn Milojevic, Nicole
Hauge, and William Youngren the part-time positions for
which they applied and would have been hired, and WE
WILL make them whole, with interest, for any loss of
earnings and other benefits they may have suffered.
LEGACY HEALTH SYSTEM
Adam D. Morrison and Lisa Dunn, Esqs., for the General
Counsel.
Adam S. Collier, Esq. (Bullard, Smith, Jernstedt, and Wil-
son), of Portland, Oregon, for the Respondent.
Giles Gibson, Esq. (Carney, Buckley, Hayes, Marsh & Gib-
son), of Portland, Oregon, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice a hearing in this matter was held before me in Port-
land, Oregon, on December 9, 2008. The charge was filed by
Service Employees International Union, Local 49 (the Union)
on April 30, 2008. Amended and second amended charges
were filed by the Union on May 5 and July 21, 2008, respec-
tively. Thereafter, on September 30, 2008, the Regional Direc-
tor for Region 19 of the National Labor Relations Board (the
Board) issued a complaint and notice of hearing alleging a vio-
lation by Legacy Health System (the Respondent) of Section
8(a)(1) and (3) of the National Labor Relations Act (the Act).
The Respondent, in its answer to the complaint, duly filed,
denies that it has violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (General
Counsel), and counsel for the Respondent. Upon the entire
record, and based upon my observation of the witnesses and
consideration of the briefs submitted, I make the following
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a State of Oregon corporation with places
of business in and around Portland, Oregon, where it operates
acute care hospitals and rehabilitation centers. In the course and
conduct of its operations the Respondent annually derives gross
revenues in excess of $250,000, and annually purchases and
receives at its Portland, Oregon facilities goods valued in ex-
cess of $50,000 directly from points outside the State of Ore-
gon. It is admitted and I find that the Respondent is, 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, and
a health care institution within the meaning of Section 2(14) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is and at all times
material herein has been, a labor organization within the mean-
ing of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issue in this proceeding is whether the Re-
spondent has violated and is violating Section 8(a)(1) and (3) of
the Act by maintaining and enforcing a practice or policy of
prohibiting employees from simultaneously holding both unit
and nonunit positions.
B. Facts
The Respondent, a hospital system based in the Portland
metropolitan area, operates five hospitals, a research facility,
and a number of clinics and labs. It employs a total of over
9000 employees. It maintains seven different collective-
bargaining agreements with various labor organizations, includ-
ing two agreements with the Union herein. There are also many
positions and/or departments that are not represented by a labor
organization.
For a number of years the Respondent has maintained an
unwritten policy or practice of prohibiting employees from
simultaneously holding both bargaining unit and nonbargaining
unit positions. This policy however does not prohibit employ-
ees from simultaneously holding positions within two bargain-
ing units, whether or not represented by the same union; nor
does it prohibit employees from simultaneously holding two
nonbargaining unit positions. Such occurrences happen regu-
larly.
There is no record evidence that the Respondent has ever ad-
vised its employees or the various unions that represent its em-
ployees of the existence of such an exclusionary policy, except
as set forth below.
While the length of time this policy has been in existence is
unknown, the record shows it has been in existence for at least
approximately the last 9 years. Also unknown is the rationale
underlying the practice; however Respondent’s witnesses pre-
sumed that it was designed as a practical and expedient means
of avoiding difficulties in administering the wage and benefit
programs, and grievance/disciplinary procedures, which differ
according to whether or not such matters are governed by col-
lective-bargaining agreements. The parties agree that such
matters, including the terms and conditions of employment of
an employee who is both a unit and nonunit employee, are
mandatory subjects of bargaining.
The Union did not become aware of the policy until so noti-
fied by a unit employee who had been told by a human re-
sources representative that her application to hold a part-time
nonunit position had been denied because she currently occu-
pied a unit position.
Employee Kathryn Milojevic is a certified nursing assistant
(CNA) who has worked for the Respondent at its Emanuel
Hospital facility for 13 years. She is a unit employee. Employ-
ees have access to Respondent’s online job postings, and may
apply for jobs online. In January 2008, Milojevic applied for a
part-time position as a massage therapist at another facility
operated by the Respondent. Thereafter she was scheduled for
an interview with Manager Cheryl Doten. According to Milo-
jevic the interview ended “very positively.” However the fol-
lowing day, January 15, 2008, Milojevic received an email
from Doten, as follows:
Our recruiter said: Unfortunately because she [Milojevic] is in
a union position at Emanuel [Hospital] we cannot put her in a
non union position. Therefore, we are unable to proceed with
reference checks, etc. for the on-call position. Thank you for
coming in to meet with us today. We wish you well in your
future.
Milojevic then followed up on this rejection and was referred to
Carole Ann Rogge, Employee Relations Consultant. Rogge
sent Milojevic the following email dated January 31, 2008:
I’m sorry for your situation. I understand your disappoint-
ment. You are currently under a bargaining unit contract in
your CNA position. You could apply for any other positions
covered by the union contract, but you cannot have one posi-
tion under a union contract, and one not under a contract. I
can explain this further is you would like to give me a call.
Milojevic did phone Rogge about the matter. Rogge reiterated
the substance of the foregoing email, and also stated, according
to Milojevic, “if I were to work there in that non-represented
position, that the union could take over that department or that
job because I’m already in the union and that’s not what they
want.”1 According to Milojevic, this is the only rationale
Rogge gave, and Rogge did not mention anything about the
possible confusion or difficulties to the Respondent that could
result from an employee having both a unit and nonunit job.
Rogge testified that during her phone conversation with
Milojevic she relayed her understanding of the rationale behind
the Respondent’s policy, as follows:
We had a practice of not allowing employees to hold both un-
ion and non-union positions because we could not administer

1 The complaint does not allege that this statement by Rogge is an
independent violation of Sec. 8(a)(1) of the Act, or that the Respon-
dent’s policy when originally adopted was discriminatorily motivated.
Therefore, it appears unnecessary to determine whether or not the
statement was made.
LEGACY HEALTH SYSTEM 5
all the collective bargaining contractual agreements in a non-
bargaining position.
Further, she did not tell Milojevic that if she went to work in a
nonunion position, the Union could take over that position.
Nicole Hauge, while continuing her classes in nursing school
at a nearby community college, began working for the Respon-
dent in February 2008 as a part-time emergency room techni-
cian, a unit position. In April 2008, she applied for an extern-
ship position, a paid position within the Respondent’s “Bridge
to Practice Program,” so that when she graduated from nursing
school in 2009 she would be hired by the Respondent as a reg-
istered nurse. Shortly after submitting her application she re-
ceived a phone call from Jamie Dreyer, Respondent’s recruit-
ment consultant, who explained that the Respondent had a pol-
icy against employees holding both a union and a nonunion
position. Dreyer advised her that she had the option of choos-
ing one position or the other, but not both. Hauge, fearful of
leaving her secure job before knowing whether she would be
hired as an extern, decided to withdraw her application and
remain at her current position.
William Youngren began working for the Respondent in
1989, and is currently a secretary in Neonatal Intensive Care, a
unit position. On July 24, 2008, he applied for a part-time posi-
tion as a hearing screening tech in the audiology department, a
nonunion position. Apparently he was initially accepted for the
position as he received a phone call from Shauna Anderson,
manager of the department, and he and Anderson agreed upon a
time for Youngren’s training the following week. That same
day, however, Youngren received a call from someone in Re-
spondent’s human resources department who told him he was
ineligible for the position “because they just don’t mix a un-
ion/non-union job because . . . it was a messy thing and they
didn’t like to do it.” Youngren asked whether it was possible to
make an exception because there was an immediate need to
have someone administer infant hearing screening tests to ba-
bies before they are released from the hospital. He was told
there could be no exceptions to the policy. He was given no
other reason for being rejected.
The Union, upon learning of the policy from unit members
and confirming with the Respondent that such a policy did in
fact exist, filed the instant charge. Further, it requested bar-
gaining over the issues presented by its unit members occupy-
ing dual positions, one within and one outside the coverage of
the collective-bargaining agreement. After extended negotia-
tions the Respondent and Union resolved their differences,
agreed that unit members would not be precluded from holding
nonunit positions, and incorporated the understanding in the
2008–2011 collective-bargaining agreement between Legacy
Emanuel Hospital and the Union, as Article 20.7, entitled
“Holding a Position Inside and Outside of the Bargaining Unit
at the Same Time.” However the policy continues to apply to
employees who are not Emanuel Hospital unit employees rep-
resented by the Union.
Analysis and Conclusions
It may reasonably be concluded that the Respondent’s policy
is discriminatory and inherently destructive of important em-
ployee rights: the right to be free from union-based hiring crite-
ria for job opportunities. Under the policy, once an employee
has obtained an initial job with the Respondent, his or her fu-
ture part-time employment opportunities become limited by
whether or not that initial job happens to be a union-represented
position. Thereafter, unless the employee elects to relinquish
his current position, the employee is “locked in” to either union
or nonunion-represented jobs for the duration of his or her em-
ployment.
The substantial and adverse effects of the policy are graphi-
cally shown by the situations in which employees Milojevic,
Hauge, and Youngren found themselves: they were unable to
supplement their income, advance their careers, and/or enjoy
other benefits of part-time employment of their choosing sim-
ply because they happened to occupy unit positions. Con-
versely, the future job opportunities of employees who happen
to occupy nonunit positions are similarly affected because of
union considerations. Moreover, the policy is neither innocuous
or limited in effect: it applies to some 9000 employees and
affects the long-term livelihoods of those who could otherwise
have availed themselves of the opportunity for dual employ-
ment within the Respondent’s organization.2
Accordingly, it is clear that the adverse effects of the dis-
criminatory conduct on employees rights is substantial, rather
than “comparatively slight.” Therefore no proof of antiunion
motivation is needed to establish a violation of the Act, and the
burden shifts to the employer to produce evidence of legitimate
and substantial business justification for its conduct. Great
Dane Trailers, 388 U.S. 26 (1967).
In Honeywell, Inc., 318 NLRB 637 (1995), the Board, rely-
ing on Great Dane Trailers, supra, found a violation in a
clearly analogous “inherently destructive” situation. In that case
the employer, which was undergoing downsizing, maintained a
discriminatory policy which allowed unrepresented employees
to bid on certain available unrepresented positions at other loca-
tions of the employer (including subcontractors of the em-
ployer), while precluding union-represented employees from
bidding on the same jobs.
The Respondent in its brief distinguishes Honeywell from the
instant situation, maintaining that in Honeywell the union-
represented employees who could not bid on nonunion jobs
would no longer be employed, whereas employees of the Re-
spondent, under its policy, are not in jeopardy of losing their
jobs and are not precluded from applying for and transferring to
other jobs within the Respondent’s system. The similarity be-
tween Honeywell and the instant case, however, is the discrimi-
natory job-bidding policy itself and the fact that in both situa-
tions employees have been adversely effected. As the Board
stated, “The policy was discriminatory by virtue of limiting use
of the [job bidding] procedure to employees not represented by
the Union.” Further, in the instant case, the effect of the dis-
criminatory policy on employees, while not identical to the
situation in Honeywell, is nevertheless real, immediate, and
substantial.

2 As the General Counsel’s brief amply shows, dual function em-
ployees have historically been included in bargaining units; therefore it
follows that their employers must conform company policies to deal
with such situations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
The Respondent, citing cases that validate an employer’s hir-
ing policy of denying employment to individuals who intend to
simultaneously work for two different employers,3 maintains
that it may similarly preclude its employees from simultane-
ously holding a unit and nonunit position. Clearly the two situa-
tions are not analogous. In the former, the employers’ hiring
policies are facially valid and are not premised on union con-
siderations; in the latter the Respondent’s hiring policy is prem-
ised on union considerations and is therefore facially discrimi-
natory.
Maintaining that its policy is premised upon “legitimate con-
cerns and valid reasons,” the Respondent lists and specifies
eight distinct “legal uncertainties that could arise by allowing
employees to simultaneously hold unit and non-unit positions,”
as follows:
 Whether the daily overtime provisions of the col-
lective-bargaining agreement would apply if the
employee worked more than eight total hours per
day in the two positions;
 Whether time spent working in a non-unit position
would count as hours worked for benefits eligibility
provisions under the collective-bargaining agree-
ment;
 Whether time spent working in a non-unit position
would count toward seniority under the eligibility
provisions of the collective-bargaining agreement;
 Whether the employee would be terminated from
the bargaining unit position if he/she was termi-
nated from the non-unit position;
 Whether the discipline in the non-unit position
would count toward progressive discipline in the
bargaining unit position;
 Whether the “just cause” provisions of the collec-
tive-bargaining agreement would apply if the em-
ployee was disciplined in the non-unit position;
 Whether the grievance procedure would apply to
issues arising in the non-unit position such as disci-
pline; and
 Whether the employee would have the right to un-
ion representation in disciplinary meetings.
The Respondent then goes on to argue that these valid concerns
and legal uncertainties both legitimize its policy, and demon-
strate the difficulties inherent in simply rescinding the policy
without first having negotiated and resolved these matters with
the other unions that represent the Respondent’s employees.
Essentially, the enumerated items, which appear to be more
in the nature of administrative or labor relations concerns rather
than “legal uncertainties,” all have as their underlying basis the
question of the extent to which the provisions of the various
collective-bargaining agreements would carry over to the em-
ployees’ nonunit jobs. That these matters may be problemati-
cal, however, or, as the Respondent maintains, difficult to re-

3 Willmar Electric Service, 303 NLRB 245, 246 fn. 2 (1991), enfd.
968 F2d 1327 (DC Cir. 1992); Little Rock Electrical Contractors, Inc.,
327 NLRB 932 (1999); Exempla Lutheran Medical Center, 2007
NLRB LEXIS 272 (2007).
solve through bargaining, does not thereby justify the existence
of the Respondent’s discriminatory policy. Clearly, on balance,
the Respondent’s professed administrative or labor relations
difficulties do not outweigh the fact that, as noted above, an
indeterminate number of employees have been, and likely are
continuing to be, denied job opportunities because of a facially
discriminatory policy. Further, as noted above, the matters that
trouble the Respondent are clearly resolvable because each
concern has in fact been satisfactorily resolved with the Union
and incorporated into the parties’ collective-bargaining agree-
ment. Accordingly, I find that the Respondent has not demon-
strated a “sufficient showing of legitimate business objectives
to justify the discriminatory aspect of the policy.” Honeywell,
supra at 638; Great Dane Trailers, supra. Therefore I conclude
that by maintaining the policy the Respondent has violated and
is violating Section 8(a)(1) of the Act, as alleged in the com-
plaint.
The Respondent’s related argument goes to the remedy in
this matter. As noted, the Respondent has resolved such mat-
ters with the Union, one of several unions representing its em-
ployees, and has, in effect, rescinded its policy vis-à-vis the unit
employees covered by its collective-bargaining agreement with
the Union. With regard to the other unions, the Respondent
would retain the status quo by continuing to maintain and en-
force the policy, until such time as each other union requests
bargaining over the subject and the parties have reached agree-
ment. To be required to simply rescind the policy on an em-
ployer-wide basis, it is argued, without having resolved such
matters with the other unions, would lead to an abundance of ad
hoc grievances under the various collective-bargaining agree-
ments and would present additional costly and time-consuming
administrative difficulties. Once again, the Respondent appears
to contend that its perceived administrative or labor relations
concerns override the detrimental effects to those employees
who will continue to be eliminated from consideration for part-
time jobs because of the Respondent’s discriminatory policy. I
do not agree. Moreover, to maintain an interim status quo
would not further the Respondent’s interests; rather, it would
seem to invite further unfair labor practice charges. I find no
merit to the Respondent’s argument.
The Respondent also characterizes as “disputable,” “doubt-
ful” and “questionable” whether or not each of the three alleged
discriminatees, namely Kathryn Milojevic, Nicole Hague, and
William Youngren, would have been denied the second posi-
tion even in the absence of the policy, and maintains that there
were other legitimate reasons for the Respondent’s refusal to
offer them the specific nonunit jobs they sought. As set forth
above, the employees were explicitly told by responsible repre-
sentatives of the Respondent that they could not be hired or
considered for the positions because the Respondent’s policy
precluded them from simultaneously holding both unit and
nonunit jobs; and they were given no other reasons for their
failure to be hired. The General Counsel having demonstrated
that the Respondent’s stated reason for its conduct was unlaw-
ful, and that the Respondent was seeking to fill the posted posi-
tions for which the named employees applied, the burden is
then shifted to the Respondent to affirmatively show that the
employees would have in any event not accepted the positions
LEGACY HEALTH SYSTEM 7
or would have been denied such positions for lawful reasons.
The Respondent has not met this burden of proof. Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982); FES, 331 NLRB 9, 14 and 17
(2000).4 Therefore I conclude that by enforcing the policy and
denying jobs to these individuals the Respondent has violated
and is violating Section 8(a)(3) and (1) of the Act, as alleged in
the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act, and
a health care institution within the meaning of Section 2(14) of
the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has violated Section 8(a) (1) and (3) of
the Act as alleged.
THE REMEDY
Having found that the Respondent has violated and is violat-
ing Section 8(a) (1) of the Act by maintaining a discriminatory
hiring policy, I shall recommend that the Respondent rescind
the policy and notify its employees and the unions with which it
has collective-bargaining agreements that it has done so. Hav-
ing found that the Respondent has violated and is violating
Section 8(a) (3) and (1) of the Act by its refusal to employ em-
ployees Kathryn Milojevic, Nicole Hague, and William Youn-
gren in the part-time positions to which they would have been
hired but for the Respondent’s enforcement of its unlawful
hiring policy, I shall recommend that the said employees be
hired into those positions, replacing the current occupants of
those positions if necessary. Further, I shall recommend that
the named employees be made whole for any loss of earnings
or other benefits they may have suffered, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
I shall also recommend the posting of an appropriate notice,
attached hereto as “Appendix.”
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended. 5
ORDER
The Respondent, Legacy Health System, Portland, Oregon,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing a discriminatory policy that

4 The Board in FES, at p. 17, states, “It should have been determined
at the unfair labor practice hearing [rather than at the compliance stage
of the proceeding] whether the Respondent’s failure to hire the dis-
criminatees [applicants for employment] for those positions constituted
unlawful refusals to hire warranting backpay and instatement.”
5 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 pur-
poses.
deprives employees of job opportunities on the basis of whether
their currently position is or is not a union-represented position.
(b) Refusing to hire employees into positions they would
have been hired but for the respondent’s discriminatory hiring
policy.
(c) 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 which is necessary
to effectuate the purposes of the Act.
(a) Within 14 days from the date of this Order, rescind the
discriminatory hiring policy, and notify its employees and the
unions with which it has collective-bargaining agreements that
the policy has been rescinded.
(b) Within 14 days from the date of this Order, hire employ-
ees Kathryn Milojevic, Nicole Hague, and William Youngren
in the part-time positions to which they would have been hired
but for the Respondent’s enforcement of its unlawful hiring
policy, replacing the current occupants of those positions if
necessary, and make them whole in the manner set forth in the
remedy section of this decision.
(c) Preserve and, within 14 days of this Order, make avail-
able to the Board or its agents for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary
to analyze the amounts of backpay due under the terms of this
Order.
(d) Within 14 days after service by the Region, post at its
various facilities copies of the attached notice marked “Appen-
dix.”6 Copies of the notice, on forms provided by the Regional
Director for Region 19, after being duly signed by Respon-
dent’s representative, shall be posted immediately upon receipt
thereof, and shall remain posted by Respondent for 60 consecu-
tive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial.
(e) Within 21 days after service by the Regional Office, file
with the Regional Director for Region 19 a sworn certification
of a responsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. February 11, 2009
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.

6 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 BOARD8
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain and enforce a policy that discrimi-
nates against employees by denying them the right to simulta-
neously hold both a union-represented and nonunion-
represented position within our organization.
WE WILL NOT refuse to hire current employees for additional
part-time positions on the basis of union considerations.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the foregoing
rights guaranteed under Section 7 of the Act.
WE WILL notify the Union with which we have collective-
bargaining agreements that we have rescinded the policy.
WE WILL hire employees Kathryn Milojevic, Nicole Hague,
and William Youngren in the part-time positions to which they
would have been hired, replacing the current occupants of those
positions if necessary, and make them whole, with interest, for
any loss of earnings and other benefits they may have suffered.
LEGACY HEALTH SYSTEM