Marina Del Rey Hospital

National Labor Relations Board - Board Decisions

Oct 22, 2015

363 NLRB No. 22 (N.L.R.B. 2015)

363 NLRB No. 22
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Marina Del Rey Hospital and California Nurses Asso-
ciation and Service Employees International Un-
ion, United Healthcare Workers West. Cases
31–CA–029929, 31–CA–029930, 31–CA–030191,
and 31–CA–065298
October 22, 2015
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
On January 16, 2013, Administrative Law Judge Wil-
liam G. Kocol issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and California Nurses Association
(CNA) each filed an answering brief. CNA and Service
Employees International Union, United Healthcare
Workers West (SEIU) each filed cross-exceptions with
supporting argument, the Respondent filed an answering
brief, and CNA filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions to the

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
Although the judge explicitly discredited the testimony of Margaret
Morgan, the Respondent’s director of human resources, that the Re-
spondent had a longstanding practice of prohibiting the wearing of pins
and buttons in patient care areas, he did not address similar testimony
of two of the Respondent’s other witnesses, Supervisor Patricia Heasley
and Director of Rehabilitation Services Tammie Bean. For several
reasons, we find that the judge implicitly discredited that testimony.
First, he explicitly credited the detailed testimony of several of the
General Counsel’s witnesses that they had openly worn nonunion pins
and buttons in patient care areas in the presence of supervisors, contrary
to the Respondent’s asserted policy. Second, the judge explicitly dis-
credited Heasley’s denial that she had seen employees wearing nonun-
ion insignia, noting in the process that “Heasley did not strike me as a
particularly credible witness; rather she seemed eager to agree with the
Hospital’s litigation position rather than simply attempting to relate the
facts.” Third, although the judge did not evaluate Bean’s credibility,
Bean testified chiefly in general terms, identifying only one instance
prior to 2010 in which she told an employee to remove a nonunion pin.
Finally, that the judge “reject[ed], as a matter of fact, the existence of
any such past practice” necessarily implies that he rejected other wit-
nesses’ contrary testimony as well as Morgan’s.
extent consistent with this Decision and Order2 and to
adopt the recommended Order as modified and set forth
in full below.3
I.
The judge found that the Respondent violated Section
8(a)(1) of the Act by maintaining an unlawful access
policy for off-duty employees and by enforcing the poli-
cy in a manner that discriminated against union activity.
We agree with the judge that the Respondent unlawfully
applied the access policy in a discriminatory manner.
Unlike the judge, however, we find that the policy was
not unlawful on its face.
The policy, contained in the Respondent’s employee
handbook, states as follows:
Off-duty employees may access the Hospital only as
expressly authorized by this policy. An off-duty em-
ployee is any employee who has completed or not yet
commenced his/her shift.
An off-duty employee is not allowed to enter or re-
enter the interior of the Hospital or any Hospital work
area, except to visit a patient, receive medical treat-
ment, or conduct hospital-related business. “Hospital
related-business” is defined as the pursuit of an em-
ployee’s normal duties or duties as specifically directed
by management.
An off-duty employee may have access to non-
working, exterior areas of the Hospital, including exte-
rior building entry and exit areas and parking lots.
Any employee who violates this Policy will be subject
to disciplinary action up to and including termination.

2 We affirm the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by unilaterally modifying its appearance and hygiene
policy, for the reasons discussed in his decision. In finding that the
newly announced policy was consistent with the Respondent’s past
practice, our dissenting colleague relies largely on testimony that was
either expressly or, as noted above, implicitly discredited by the judge.
Our colleague also cites the fact that some of the pins formerly worn in
patient care areas were distributed by members of management. The
new policy, however, allowed only pins that had been issued by the
hospital, contrary to the Respondent’s former policy and practice, nei-
ther of which limited the wearing of pins and buttons to those issued by
the hospital.
In affirming the judge’s findings on this issue, we do not rely on Al-
bertson’s, Inc., 319 NLRB 93, 103 (1995), cited by the judge, because
in that case no exceptions were filed to the judge’s pertinent findings.
3 The Unions except to the 60-day notice-posting remedy, arguing
that the posting period should be extended. They also except to the
wording of the notice in several respects. We see no reason to depart
from the Board’s usual remedial practices. We shall, however, modify
the judge’s remedy and recommended Order to conform to the viola-
tions found, to our amended remedy, and to the Board’s standard reme-
dial language. We shall substitute a new notice to conform to the Order
as modified and in accordance with our decision in Durham School
Services, 360 NLRB No. 85 (2014).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
As the judge noted, this policy is for all relevant purposes
the same as the off-duty access policy found unlawful by the
Board in Sodexo America LLC, 358 NLRB No. 79 (2012).4
But, following NLRB v. Noel Canning, 134 S.Ct. 2550
(2014), the Board’s original decision in Sodexho was vacat-
ed on review, and on consideration de novo, the Board ap-
plied the principles set forth in Tri-County Medical Center,
222 NLRB 1089 (1976), and found that the rule in Sodexo
was not facially unlawful. Sodexo America LLC, 361
NLRB No. 97 (2014).
Under Tri-County, an employer’s rule barring off-duty
employee access to its facility is lawful only if it is lim-
ited to the interior of the facility, is clearly disseminated
to all employees, and applies to off-duty access for all
purposes, not just for union activity. 222 NLRB at 1089.
The Board found that the rule in Sodexo complied with
the last Tri-County requirement. (There was no conten-
tion that the first two requirements were not met.) The
Board held as a matter of policy that affording access to
off-duty employees, as members of the public and not as
employees, for purposes of receiving medical treatment
or visiting patients did not run afoul of the third prong of
the Tri-County standard. 361 NLRB No. 97, slip op. at
1. The Board further found that the rule’s “exception”
for conducting “hospital-related business,” defined as
“the pursuit of the employee’s normal duties or duties as
specifically directed by management,” was “not really an
exception at all, but a clarification that employees who
are not on their regular shifts, but are nevertheless per-
forming their duties as employees under the direction of
management, may access the facility.” Id. at 1–2.5 Ac-
cordingly, that provision of the rule did not violate the
Tri-County requirement that a lawful no-access rule must
apply to off-duty access for all purposes. Id. at 2.
As stated, the Respondent’s no-access policy in this
case is the same in all material respects as the policy in
Sodexo, and it, too, is therefore lawful on its face. We
therefore shall dismiss the complaint insofar as it alleges
that the policy is facially unlawful.
However, we agree with the judge that the Respond-
ent’s policy was unlawfully applied in a manner that dis-
criminated on the basis of union activity. The record
reveals that the Respondent permitted off-duty employ-

4 There, an off-duty access rule was declared unlawful because it
contained an exception permitting off-duty employees to enter the
facility to “conduct hospital-related business,” defined as “the pursuit
of the employee’s normal duties or duties as specifically directed by
management.” According to the Board, this exception impermissibly
gave management “unlimited discretion to decide when and why em-
ployees may access the facility.” 358 NLRB No. 79, slip op. at 2.
5 The clarification was needed because of the rule’s unusually nar-
row definition of “off duty.” Id. at 2.
ees to enter the Hospital for a variety of reasons unrelat-
ed to union activity (such as picking up paystubs, submit-
ting scheduling requests, applying for a transfer, and at-
tending social events such as retirement parties and wed-
ding or baby showers). But on at least two occasions, the
Respondent applied its off-duty access policy to prevent
or curtail off-duty employees from meeting with union
representatives in the hospital cafeteria.6 This evidence
supports a finding that the Respondent applied its off-
duty access rule in a disparate manner, in violation of
Section 8(a)(1).7 We shall therefore order the Respond-
ent to cease and desist from applying its off-duty access
policy in a disparate manner that restricts the exercise of
Section 7 rights. However, we shall not order the Re-
spondent to rescind the policy because it is facially law-
ful.
II.
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally discontinuing
payments to the SEIU Industry Education Fund after the
parties’ 2007–2009 collective-bargaining agreement ex-
pired. In its exceptions, the Respondent contends that
language in the contract and in the relevant trust agree-
ment and plan documents entitled it to cease making
those payments to the Education Fund upon contract ex-
piration.8 We find no merit in this contention.
A. Facts
Article 18(c) of the 2007–2009 agreement required the
Respondent to contribute each year to the Education
Fund, according to a formula based on the Respondent’s

6 This case does not involve any questions regarding disputed access
to the Respondent’s premises by union representatives.
7 The Respondent argues that the complaint allegation that Supervi-
sor Heasley enforced the off-duty employee access policy on August
20, 2010, should be dismissed because the enforcement occurred out-
side the 6-month period for filing charges under Sec. 10(b). There is no
merit in this argument. Although this allegation was added at the hear-
ing on September 28, 2012, it is closely related to the timely charge
filed on January 21, 2011, alleging that the Respondent enforced the
identical policy on September 21, 2010. See Redd-I, 290 NLRB 1115,
1118 (1999) (holding that allegations involving events occurring more
than 6 months prior to the amendment of the complaint are considered
timely if those allegations are “closely related” to the allegations made
in a timely charge). In any event, the enforcement violation is estab-
lished by the Respondent’s September 2010 conduct, for the reasons
discussed by the judge.
8 The Respondent also contends that it had a “sound arguable basis”
for its contract interpretation and, accordingly, that the Board should
not determine which party’s interpretation of the contract is correct.
That contention lacks merit. The cases cited by the Respondent in-
volved alleged changes during the term of a collective-bargaining
agreement. In this case, the contract expired before the Respondent
ceased making fund contributions. See Finley Hospital, 362 NLRB
No. 102, slip op. at 5 fn. 8 (2015).
MARINA DEL REY HOSPITAL 3
payroll for the previous year. Thus, on April 22, 2009,
the Respondent made a payment to the Education Fund
for the 2008 calendar year, and on May 5, 2010, it made
a payment to the Fund for the 2009 calendar year. The
Respondent did not make payments to the Fund for cal-
endar years following the contract’s expiration on De-
cember 31, 2009. The parties commenced bargaining
over a successor agreement, but it is undisputed that nei-
ther an impasse nor a new contract was reached.
The Respondent argues that it was not obligated to
make payments to the Fund following the contract’s ex-
piration because, it asserts, various provisions in the col-
lective-bargaining agreement, trust agreement and plan
documents collectively waived SEIU’s right to bargain
over this issue. Specifically, the Respondent contends
that the following provisions established that its obliga-
tion to make payments to the Education Fund persisted
only as long there was a collective-bargaining agreement
“presently in force”:
Article 18, section C of the contract, “Joint Training
and Education Trust Fund”:
The Employer hereby agrees to contribute .22% (twen-
ty-two hundredths of one percent) of the collective bar-
gaining unit’s annual gross payroll to the SEIU United
Healthcare Workers West and Joint Employer Educa-
tion Fund. Said contribution payments for the current
year shall be payable no later than January 31, 2009
and shall be based on the W-2’s for the prior year. In
the event of partial years, the employer shall contribute
based on a pro rata basis. The employer further agrees
to be bound by the terms of the Trust Agreement, the
Plan Document, and the rules and regulations adopted
by the Trustees of the Fund.
A related provision of the Education Fund’s rules and
regulations:
The minimum contribution by participating employers
shall be .22% (twenty-two hundredths of one percent)
of the gross payroll of the members of the relevant bar-
gaining unit(s), as provided by the parties’ collective
bargaining agreement(s) during the year prior to the
year in which the contribution is due and owing.
Definitions contained in the Education Fund’s plan
document:
“Employer” means each Employer who has presently
in force, or who hereafter executes, a Collective Bar-
gaining Agreement with the Union or participation
agreement with the Trustees providing for Contribu-
tions to the Fund (emphasis added).
“Collective Bargaining Agreement” means any collec-
tive bargaining agreement and any extension, modifica-
tion or amendment thereof between the Union and any
Employer requiring that the Employer make Contribu-
tions to the Fund; it also means written participation
agreements between the Trustees and any Employer to
make contributions to the Fund.
“Contributions” mean the payments require [sic] to be
made to the Fund by the Employers pursuant to the ap-
plicable Collective Bargaining Agreements. . .
B. Discussion
Section 8(a)(5) of the Act provides that it is an unfair
labor practice for an employer “to refuse to bargain col-
lectively with the representatives of his employees.” As
relevant here, Section 8(a)(5) prohibits an employer from
“unilateral[ly] chang[ing] . . . conditions of employment
under negotiation.” NLRB v. Katz, 369 U.S. 736, 743
(1962). Accordingly, once a collective-bargaining
agreement expires, the employer is required to maintain
contractually established terms and conditions of em-
ployment that are mandatory subjects of bargaining until
the parties negotiate a new agreement or bargain to a
lawful impasse. See Finley Hospital, 362 NLRB No.
102, slip op. at 2 (2015).9
A Union may waive its right to bargain over changes
in a particular employment term, but the waiver must be
“clear and unmistakable.” Metropolitan Edison Co. v.
NLRB, 460 U.S. 693, 708 (1983). “The clear and unmis-
takable waiver standard . . . requires bargaining partners
to unequivocally and specifically express their mutual
intention to permit unilateral employer action with re-
spect to a particular employment term.” Provena St.
Joseph Medical Center, 350 NLRB 808, 811 (2007).
As we recently explained in Finley Hospital, it is im-
portant to distinguish between an employer’s contractual
obligation to maintain a particular employment term and
condition after the contract expires, and its statutory ob-
ligation to do so. The term may not survive the expira-
tion of the contract as a contract right, but it survives as a
component of the statutory status quo, unless the union
has clearly and unmistakably waived its right to bargain

9 It is undisputed that employer contributions to employee fringe
benefit funds are a mandatory bargaining subject. See N.D. Peters &
Co., 321 NLRB 927, 928 (1996).
Sec. 302(c)(6) of the Act authorizes employer payments to industry
training funds, provided that the terms under which such payments are
made are set forth in a written agreement with the employer. The terms
of the expired contract, together with the underlying fund plan docu-
ments, satisfy that requirement. See Made 4 Film, Inc., 337 NLRB
1152, 1152 fn. 2 (2002).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
over changes to the term. 362 NLRB No. 102, slip op. at
2–3. 10
Finley Hospital presented such a waiver issue. There,
the parties’ expired contract provided that the employer
would give employees pay raises on their anniversary
dates “for the duration of this Agreement.” Contrary to
the employer’s contention, the Board found that that lan-
guage did not constitute a clear and unmistakable waiver
of the union’s right to bargain over the employer’s
postexpiration unilateral discontinuance of those wage
increases. The Board reasoned that, although the con-
tract language limited the employer’s contractual obliga-
tion, it did not “mention postexpiration employer conduct
in any way, much less expressly permit unilateral em-
ployer action.” Id. at 3. See also KBMS, Inc., 278
NLRB 826, 849–850 (1986).
Similarly here, the Respondent contends that certain
provisions in the collective-bargaining agreement, plan
documents, and trust agreement established that its obli-
gation to make payments to the Education Fund persisted
only as long there was a collective-bargaining agreement
“presently in force.” As in Finley Hospital, however,
none of those provisions clearly and unmistakably au-
thorized the Respondent unilaterally to stop contributing
to the Education Fund upon the expiration of the con-
tract. The language cited by the Respondent set forth the
Respondent’s contractual obligation to the fund but did
not mention postexpiration conduct in any way or ex-
pressly permit unilateral employer action after the con-
tract expired.11 Accordingly, there was no waiver, and
the Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally discontinuing its payments to the Ed-
ucation Fund.
AMENDED REMEDY
We agree with the judge that the Respondent should be
ordered to rescind the unlawfully implemented provision

10 This standard is demanding, but hardly impossible to meet. For
example, where the parties had agreed to contract language explicitly
stating that all company obligations under a pension agreement would
terminate when the contract expired, “unless, in a new collective bar-
gaining agreement, such obligation shall be continued,” the Board
found that the union had clearly and unmistakably waived its right to
bargain over the employer’s unilateral action with respect to its pension
fund obligations after contract expiration. Cauthorne Trucking, 256
NLRB 721, 722 (1981), enf. granted in part and denied in part 691 F.2d
1023 (D.C. Cir. 1982).
11 Our dissenting colleague’s reliance on the contract provision that
“[i]n the event of partial years, the employer shall contribute based on a
pro rata basis” is likewise misplaced. Like the contractual reference to
contracts “presently in force,” and the “for the duration of this Agree-
ment” provision in Finley Hospital, the “partial years” language ad-
dresses only the Respondent’s contractual duty to contribute to the
fund, not its statutory duty to maintain terms and conditions of em-
ployment after the contract expires.
of its appearance and hygiene policy. Pursuant to
Guardsmark, LLC, 344 NLRB 809, 812 fn. 8 (2005),
enfd. in part 475 F.3d 369 (D.C. Cir. 2007), the Re-
spondent may comply with our order of rescission by
rescinding that provision and republishing its Policy and
Procedures Manual without it. We recognize, however,
as we did in Guardsmark, that republishing the Manual
could be costly. Accordingly, the Respondent may pro-
vide new and lawfully worded provisions on adhesive
backing that will correct or cover the unlawful provision,
until it republishes the Manual without the unlawful pro-
vision.
ORDER
The National Labor Relations Board orders that the
Respondent, Marina Del Rey Hospital, Marina Del Rey,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Changing the terms and conditions of employment
of its unit employees without first notifying Service Em-
ployees International Union, United Healthcare Workers
West (the Union) and giving it an opportunity to bargain.
(b) Changing the terms and conditions of employment
of its unit employees because they engage in union or
other protected concerted activities.
(c) Enforcing the changed appearance and hygiene pol-
icy by telling employees that they cannot wear items
such as button, pins, and stickers supporting a labor or-
ganizations in patient care areas.
(d) Discriminatorily enforcing its no-access rule
against employees who seek access to engage in union or
other protected concerted activities.
(e) Failing to continue to make payments to the Ser-
vice Employees International Union, United Healthcare
Workers West and Joint Employer Education Fund with-
out first notifying the Union and giving it an opportunity
to bargain.
(f) 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) Rescind from its appearance and hygiene policy the
provision that “Unless issued by the hospital, items such
as buttons, pins, and stickers may not be worn in patient
care areas.”
(b) Provide a lawfully worded provision on adhesive
backing that will cover the unlawful appearance and hy-
giene provision in the Policy and Procedures Manual, or
publish revised Manuals that do not contain the unlaw-
fully implemented provision.
MARINA DEL REY HOSPITAL 5
(c) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
Included: All full-time, part-time and per diem service
and maintenance, technical, skilled maintenance, and
business office clerical employees employed by the
Employer.
Excluded: All other employees, managers, supervisors,
confidential employees. guards, physicians, residents,
central business office employees (whether facility
based or not) who are solely engaged in qualifying or
collection activities or are employed by another CFHS
Holdings Inc. entity, such as Syndicated Office Sys-
tems or Patient Financial Services, employees of out-
side registries and other agencies supplying labor to the
Employer and already represented employees.”
(d) Make all delinquent contributions to the Service
Employees International Union, United Healthcare
Workers West and Joint Employer Education Fund that
have not been paid since December 31, 2009, on behalf
of unit employees, in the manner described in the Reme-
dy section of the administrative law judge’s decision, and
continue to make the required contributions until the Re-
spondent bargains with the Union in good faith to an
impasse or to an agreement.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of make-whole relief
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Marina Del Rey, California facility copies of the at-
tached notice marked “Appendix.”12 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 31, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of

12 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.”
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 14, 2010.
(g) 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 complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. October 22, 2015
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
I agree with my colleagues that the Respondent main-
tains an off-duty access policy that is lawful on its face,
although my reasoning differs from my colleagues’.’1
However, unlike my colleagues, I believe the judge im-
properly found that the Respondent violated Section
8(a)(5) and (1) regarding its appearance and hygiene pol-
icy, which prohibited nonhospital-issued buttons and
pins in patient-care areas. Additionally, I believe the
judge improperly found that the Respondent violated
Section 8(a)(5) by discontinuing contributions to a union

1 I also agree that the Respondent violated Sec. 8(a)(1) by applying
its off-duty access policy in a discriminatory manner, resulting in the
exclusion of off-duty employees who sought access to engage in union
activity while permitting access to other off-duty employees. (This
case does not involve any questions regarding disputed access to the
Respondent’s premises by union representatives.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
fund after the parties’ contract expired. I address these
issues in turn.
I. RESPONDENT’S OFF-DUTY ACCESS POLICY
The Respondent runs a hospital that maintains a policy
restricting off-duty employee access. In relevant part,
the policy states:
An off-duty employee is not allowed to enter or re-
enter the interior of the Hospital or any Hospital work
area, except to visit a patient, receive medical treat-
ment, or conduct hospital-related business. “Hospital
related-business” is defined as the pursuit of an em-
ployee’s normal duties or duties as specifically directed
by management.
My colleagues reason that Respondent’s off-duty access
policy is lawful based on Sodexo America LLC, 361 NLRB
No. 97 (2014), in which the Board found that a nearly iden-
tical off-duty access policy was also lawful.
I agree that Respondent’s off-duty access policy here
was lawful, and I agree with the similar outcome in
Sodexo. However, I would not rely on the Board’s rea-
soning in Sodexo because I believe the Board there mis-
construed the principles that govern off-duty access poli-
cies. The leading case dealing with access rules for off-
duty employees is Tri-County Medical Center, 222
NLRB 1089 (1976), which holds that an off-duty access
ban is valid if it “(1) limits access solely with respect to
the interior of the plant and other working areas; (2) is
clearly disseminated to all employees; and (3) applies to
off-duty employees seeking access to the plant for any
purpose and not just to those employees engaging in un-
ion activity.” Id. at 1089.
In my view, the Board misconstrued these Tri-County
principles in two subsequent cases.
First, in Saint John’s Health Center, 357 NLRB No.
170 (2011), a Board majority (over the dissent of former
Member Hayes) held that the third prong of the Tri-
County standard invalidates all off-duty access re-
strictions if they permit access for any reason—for ex-
ample, in Saint John’s, the off-duty access policy permit-
ting off-duty employees to attend “Health center spon-
sored events, such as retirement parties and baby show-
ers.” 357 NLRB No. 170, slip op. at 5 (emphasis added).
The Board majority in Saint John’s focused selectively
on part of the Tri-County third-prong language (i.e., that
a lawful off-duty access rule must apply “to off-duty
employees seeking access to the plant for any purpose”)2
and held that an off-duty employee no-access policy
would be unlawful if it permitted access for any reason.

2 222 NLRB at 1089 (emphasis added).
Such a policy would be lawful only if it imposed a blan-
ket prohibition against access by off-duty employees.
For reasons similar to those expressed by former Mem-
ber Hayes in his Saint John’s dissent, I disagree with
such a restrictive reading of Tri-County. Under the third
prong of Tri-County, an off-duty access policy will be
lawful if it “applies to off-duty employees seeking access
to the plant for any purpose and not just to those employ-
ees engaging in union activity.”3 Obviously, an off-duty
access policy violates the Act if it applies only to off-
duty employees seeking access to conduct union activity.
Id. However, if the employer’s policy does not discrimi-
nate against union or other protected concerted activities,
I believe it is lawful to permit off-duty employee access
for some reasons or with management approval while
prohibiting off-duty access for other reasons. Employers
have a responsibility to provide a safe and secure work-
place, and restrictions on off-duty access may exist for
many reasons. Therefore, I believe the third prong of
Tri-County only reasonably requires that restrictions on
off-duty access be nondiscriminatory, and employers
may lawfully prohibit off-duty employee access subject
to exceptions based on legitimate reasons unrelated to
union or other protected concerted activity.4
Second, the Board considered similar issues in Sodexo
America LLC, 361 NLRB No. 97 (2014). That case dealt
with a hospital’s off-duty access rule that, similar to the
policy at issue in this case, contained exceptions permit-
ting off-duty employees to enter the hospital “to visit a
patient, receive medical treatment or to conduct hospital-
related business,” the latter defined as “the pursuit of the
employee’s normal duties or duties as specifically di-
rected by management.” Id., slip op. at 1. Although the
off-duty access policy in Saint John’s was rendered un-
lawful based on its exceptions (permitting off-duty em-
ployee access to attend “Health center sponsored
events”), the Board in Sodexo concluded that the above-
quoted exceptions did not invalidate the off-duty em-
ployee access policy. Here, rather than recognizing that
the “no-exceptions” requirement in Saint John’s reflected
an incorrect reading of Tri-County, the Board in Sodexo
reasoned—with no small amount of creativity—that the
first two exceptions (permitting off-duty employees to
visit patients or receive medical care) warranted two
new, Board-created exceptions to the Saint John’s “no-

3 Id. (emphasis added).
4 See also Saint John’s Health Center, 357 NLRB No. 170, slip op.
at 10–11 (Member Hayes, dissenting) (“[N]othing in Tri-County man-
dates that off-duty access rules prohibit all access at all times, regard-
less of the circumstances, in order to pass legal muster. . . . Read as a
whole, [the Tri-County] standard embodies the familiar principle that
rules are invalid if they discriminate against union activity.”).
MARINA DEL REY HOSPITAL 7
exceptions” requirement, and the Board concluded that
the third exception (permitting off-duty access “to con-
duct hospital-related business”) was “not really an excep-
tion at all.”5
As I indicated in Piedmont Gardens, 360 NLRB No.
100, slip op. at 1 fn. 4 (2014), reasonable exceptions
should not invalidate an off-duty access rule merely be-
cause it recognizes “legitimate business reasons, which
cannot be enumerated in advance, that predictably would
warrant allowing off-duty employees on the premises.”
Therefore, I agree the no-access policy at issue here is
lawful. However, unlike my colleagues, I would not
apply Sodexo and distinguish Saint John’s. Rather, I
believe Saint John’s was wrongly decided based on a
misinterpretation of Tri-County, and I would find that
reasonable exceptions to an off-duty access rule, like
those in the policy at issue here, are lawful under the Act.
II. THE APPEARANCE AND HYGIENE POLICY
An employer’s bargaining obligations under Section
8(a)(5) include the duty to refrain from implementing
any unilateral “change” in working conditions and other
mandatory subjects of bargaining. NLRB v. Katz, 369
U.S. 736, 743 (1962).6 Questions about the existence or

5 Although I agree that the policy in Sodexo was lawful, I do not
agree with the Board’s analysis of the off-duty employee access policy
at issue in that case. The Board obviously went to considerable lengths
to render Saint John’s distinguishable. Thus, although the Sodexo no-
access policy permitted off-duty access to “visit a patient” or “receive
medical treatment,” these exceptions were declared “unrelated to . . .
employment” because employees seeking access for these purposes
would “seek access not as employees, but as members of the public.”
Sodexo, 361 NLRB No. 97, slip op. at 1. The Sodexo Board created
two exceptions to the Saint John’s “no-exceptions” requirement, stat-
ing: “We decline as a matter of policy to require that health care em-
ployers limit their employeees’ access to medical care, or to friends and
family members receiving medical care, in order to comply with the
Tri-County requirements.” Id. As for the third exeption in Sodexo—
permitting off-duty access to “conduct hospital-related business,” de-
fined in part to include “duties as directed by management”—the Board
reasoned that the “most natural reading” of this policy language was
that “this provision is not really an exception at all, but a clarification
that employees who are not on their regular shifts, but are nevertheless
performing their duties as employees under the direction of manage-
ment, may access the facility.” Id., slip op. at 1-2 (emphasis added).
The Board concluded: “Although these employees would be off duty by
the policy’s definition, they are on duty under the term’s ordinary
meaning and within the meaning of Tri-County.” Id., slip op. at 2 (em-
phasis in original).
Member Johnson agreed that the policy in Sodexo was “significantly
different from the policy found unlawful in Saint John’s,” but he found
no need to address “whether the issue in that case was correctly decid-
ed.” Id., slip op. at 2 fn. 3.
6 In Katz, the Supreme Court held that “an employer’s unilateral
change in conditions of employment under negotiation is . . . a violation
of section 8(a)(5), for it is a circumvention of the duty to negotiate
which frustrates the objectives of section 8(a)(5) much as does a flat
refusal [to bargain].” Id.
nonexistence of a “change” generally turn on whether or
not the employer’s actual practices differed from those
previously in effect. Cf. Westinghouse Electric Corp.
(Mansfield Plant), 150 NLRB 1574, 1577 (1965) (refer-
ring to whether disputed actions “vary significantly in
kind or degree from what had been customary under past
established practice”).
The Board has found that hospital restrictions on the
wearing of union-related buttons and similar items in
patient-care areas are presumptively valid. Sacred Heart
Medical Center, 347 NLRB 531, 531 (2006).
Although the wording of the Respondent’s appearance
and hygiene policy was adjusted in May 2010, I believe
the evidence contradicts the allegation that this constitut-
ed a “change” from the manner in which the policy had
previously been applied. In my view, therefore, the
judge incorrectly found that the Respondent implemented
a unilateral “change” in the policy in violation of Section
8(a)(5). The absence of a “change” also means the judge
improperly found two violations of Section 8(a)(1)
(based on the Respondent’s alleged change in the policy
in response to employees’ union activity and its alleged
enforcement of the changed policy).7
The policy at issue addresses the wearing of adorn-
ments such as jewelry. Before May 2010, the Respond-
ent’s policy and procedure manual contained a provision
stating:
Small sized jewelry is acceptable. Large or ornate jew-
elry is not appropriate. Employees may not wear more
than two earrings in each ear. Facial jewelry is not ac-
ceptable.
In May 2010, the provision was revised to read:
Small to moderate sized jewelry is acceptable. Large
or ornate jewelry is not appropriate. Visible piercings
with jewelry or other objects are limited to the ear
(maximum of 2 per ear). Unless issued by the hospital,
items such as buttons, pins and stickers may not be
worn in patient care areas. (Emphasis added.)
The record supports the Respondent’s contention that
the added sentence did not constitute a change. Rather, it

7 In support of his finding that the Respondent changed its appear-
ance and hygiene policy in 2010, the judge relied on evidence that the
policy was previously enforced in an inconsistent manner. As noted
below, I believe the record does not support these findings by the judge.
It is also significant that the complaint did not allege, and the judge did
not find, that the Respondent violated Sec. 8(a)(1) by enforcing its
policy in a manner that discriminated against union activity (i.e., by
permitting the wearing of nonhospital-issued nonunion buttons and pins
in patient-care areas while prohibiting the wearing of union buttons and
pins in patient-care areas).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
was in line with the Hospital’s preexisting practice of
prohibiting non-pproved pins and buttons in patient-care
areas.
In 2004, the Respondent’s current owner, CFHS Hold-
ings, acquired Marina Del Rey Hospital from Tenet
Healthcare Systems. Three witnesses—Margaret Mor-
gan, Patricia Heasley, and Tammie Bean, each of whom
began her employment at the Hospital when it was
owned by Tenet8—testified that the Hospital prohibited
nonhospital-issued buttons and pins in patient-care areas,
and this policy dated back to the Tenet era. Morgan tes-
tified that the Respondent “inherited” this policy from
Tenet in 2004 when the Hospital changed owners.
Heasley testified that the Tenet policy was to prohibit
nonhospital-issued buttons and pins in patient-care areas,
and the policy continued unchanged until she left the
Hospital in 2012. Bean testified that the prohibition in
patient-care areas of nonhospital-issued “pins, buttons,
whatever” has been in place as long as she could remem-
ber, and at least since 1995.9

8 Morgan, the Respondent’s director of human resources, has worked
at the Hospital since 1980; Bean, its director of rehab services, has
worked there since 1995; and Heasley, formerly director of the teleme-
try, med-surg, and ortho Spine units, worked at the Hospital from 2000
to 2012.
9 The judge discounted Morgan’s testimony that the Respondent’s
consistent practice was to prohibit nonhospital-issued buttons and pins
in patient-care areas, based on testimony that some employees wore
unauthorized buttons and pins and were not told to remove them.
However, three of the pins the judge cited as tending to contradict the
Respondent’s defense were authorized by Hospital personnel. There-
fore, these examples were consistent with the prior existence of the
policy the Respondent is alleged to have “changed.” Bariatric Team
Coordinator Bridget Agee distributed a “DVT” pin (for “deep vein
thrombosis”) and a button shaped like a tape measure indicating that a
patient was losing weight following bariatric surgery. Director of Re-
hab Services Tammie Bean approved distribution of a “little red dress”
pin from the American Heart Association. Besides being Hospital-
authorized, these pins also reflected the Hospital’s mission, as did the
pink ribbon worn by some employees during breast cancer awareness
month. Other pins and buttons—a Jamaican flag pin, a service award
pin, a nursing school pin, a “Jingle for Jesus” button, sports-team but-
tons—could not reasonably be regarded as “remindful of the tensions of
the marketplace.” NLRB v. Baptist Hospital, 442 U.S. 773, 783 fn. 12
(1979). Therefore, there is no inconsistency between permitting them
while disallowing union-related buttons in patient-care areas. As noted
previously, the Board has found such restrictions to be presumptively
valid, Sacred Heart Medical Center, 347 NLRB at 531, and there is no
allegation that these restrictions were discriminatory on the basis of
union activity. See fn.7, supra.
More generally, although the judge discredited Morgan’s testimony
about Hospital practice, he did not even mention the testimony by
Heasley and Bean (as well as Morgan) regarding the longstanding
policy against non-approved pins and buttons in patient-care areas, nor
did the judge make any adverse credibility findings regarding this tes-
timony by Heasley and Bean. Thus, their testimony is unrebutted re-
garding the prior existence of such a policy.
This evidence is corroborated by events that occurred
in March 2009 (more than a year before the Respondent
allegedly changed its appearance and hygiene policy),
when the Respondent directed nurses represented by the
California Nurses Association (CNA) to stop wearing
buttons with union insignia in patient-care areas.10 A
CNA official asserted that the Hospital had committed an
unfair labor practice by implementing a “blanket” prohi-
bition against wearing union buttons. Significantly,
Morgan replied that the Hospital had not adopted a blan-
ket prohibition, but it was “asking the nurses to take
them off in patient care areas, as was our practice” (Tr.
577, emphasis added). Neither did CNA file any charge
alleging that this instruction by the Hospital constituted a
change in Respondent’s appearance and hygiene policy.11
Substantial evidence supports the Respondent’s con-
tention that the one-sentence addition in May 2010 oper-
ated to conform Respondent’s written policy and proce-
dure manual to the actual policy that was being applied.
Viewing the record as a whole, I would find that the
General Counsel failed to sustain his burden to prove by
a preponderance of the evidence that this adjustment in
the policy and procedure manual constituted a “change.”
Accordingly, I would dismiss the alleged 8(a)(5) viola-
tion and the two 8(a)(1) violations that are predicated on
the existence of such a “change.”
III. DISCONTINUATION OF FUND CONTRIBUTIONS
I also respectfully disagree with my colleagues’ find-
ing that Respondent violated Section 8(a)(5) when it dis-
continued making contributions to the SEIU’s Joint Em-
ployer Education Fund (the Fund) after its SEIU collec-
tive-bargaining agreement (CBA) expired on December
31, 2009. Relevant provisions in the expired CBA and
the Fund’s “Plan Document” establish that the parties
intended to limit the Respondent’s payment obligation to
the term of the CBA.
Article 18, section C of the expired CBA provided as
follows:
The Employer hereby agrees to contribute .22% (twen-
ty-two hundredths of one percent) of the collective bar-
gaining unit’s annual gross payroll to the SEIU United
Healthcare Workers West and Joint Employer Educa-
tion Fund. Said contribution payments for the current

10 CNA represents a unit of the Respondent’s registered nurses. Ser-
vice Employees International Union, United Healthcare Workers West
(SEIU) represents a unit of the Respondent’s nonprofessional employ-
ees.
11 The charge in the instant case was filed by the SEIU, not the CNA.
The record reveals that the SEIU representative who challenged the
Respondent’s policy began working for SEIU at the Hospital in De-
cember 2009, long after the March 2009 exchange between the Hospi-
tal and CNA.
MARINA DEL REY HOSPITAL 9
year shall be payable no later than January 31, 2009
and shall be based on the W-2’s for the prior year. In
the event of partial years, the employer shall contribute
based on a pro rata basis. The employer further agrees
to be bound by the terms of the Trust Agreement, the
Plan Document, and the rules and regulations adopted
by the Trustees of the Fund. (Emphasis added.)
The “Plan Document” referenced in article 18, section
C defines the following terms:
“Employer” means each Employer who has presently
in force, or who hereafter executes, a Collective Bar-
gaining Agreement with the Union or participation
agreement with the Trustees providing for Contribu-
tions to the Fund.
“Collective Bargaining Agreement” means any collec-
tive bargaining agreement and any extension, modifica-
tion or amendment thereof between the Union and any
Employer requiring that the Employer make Contribu-
tions to the Fund; it also means written participation
agreements between the Trustees and any Employer to
make contributions to the Fund.
“Contributions” mean the payments require [sic] to be
made to the Fund by the Employers pursuant to the ap-
plicable Collective Bargaining Agreements. (. . . Em-
phasis added.)
These provisions make clear that the Respondent and
the SEIU agreed that the Respondent would be obligated
to make contributions to the Fund during the term of the
CBA, and only during the term of the CBA:
 “Contributions” are payments required to be
made to the Fund by “Employers” pursuant to
a “Collective Bargaining Agreement.”
 The definition of “Collective Bargaining
Agreement” includes existing agreements and
extensions, modifications, and amendments of
existing agreements.
 An “Employer” is each Employer who has
presently in force or hereafter executes a Col-
lective Bargaining Agreement.
 Most important, Article 18, Section C states
that “[i]n the event of partial years, the em-
ployer shall contribute based on a pro rata ba-
sis.” The phrase “partial years” (plural) can
be given effect only if one regards the pay-
ment obligation—which is expressly limited to
a “pro rata” contribution—as being condi-
tioned on the existence of an agreement. This
is clear from the reference to two partial
years: one partial year between the agree-
ment’s effective date and the end of the then-
current calendar year, and a second partial
year between January 1 of the calendar year
in which the agreement expires and the
agreement’s expiration date.
These provisions—especially the provision for a “pro rata”
payment during the two “partial” years, one immediately
following the agreement’s effective date, and the second
immediately preceding the agreement’s expiration date—
reasonably permit no interpretation other than that the par-
ties intentionally limited the duty to make Fund payments to
the duration of the CBA. The same interpretation is rein-
forced by the other definitions quoted above.
Although my colleagues rely on a distinction between
contractual obligations that apply during the term of a
collective-bargaining agreement and the statutory duty to
maintain the status quo after an agreement expires, the
existence or absence of any postexpiration duty remains
dependent on the parties’ intent.12 Also, the Act prohib-
its the Board from imposing on parties a substantive con-
tract term contrary to what they have elected to put into
their own agreement.13 In the instant case, I believe the
collective-bargaining agreement is susceptible only to
one reasonable interpretation, which is that the obligation
to make Fund contributions is coextensive with the
agreement’s term.14
Accordingly, as noted above, I respectfully concur in
part and dissent in part.

12 See Nolde Bros., Inc. v., Bakery Worker Local 358, 430 U.S. 243,
255 (1977) (Supreme Court suggests that the potential postexpiration
duty to arbitrate grievances arising during a collective-bargaining
agreement’s term, notwithstanding the presumptions favoring
arbitrability, may be “negated expressly or by clear implication” in
contract language).
13 See Sec. 8(d) (providing that the duty to bargain “does not compel
either party to agree to a proposal or require the making of a conces-
sion”); H. K. Porter Co. v. NLRB, 397 U.S. 99, 102 (1970) (the Board
lacks the authority to impose substantive contract terms on any party).
14 I do not believe the disposition of this case is affected by Finley
Hospital, 362 NLRB No. 102 (2015), relied upon by my colleagues.
There, a 1-year collective-bargaining agreement contained a provision
requiring the employer to grant a 3-percent wage increase to each unit
employee on his or her anniversary date “[f]or the duration of this
[a]greement.” After the agreement expired, the employer stopped
giving wage increases. The Board majority held that the employer
violated Sec. 8(a)(5) because, among other things, the contract did not
“mention postexpiration employer conduct in any way.” Id., slip op. at
3. Unlike Finley Hospital, the parties’ CBA and the Plan Document
here clearly and unmistakably provide—in multiple unambiguous con-
tract terms— that contributions to the Fund were conditioned on the
existence of an effective agreement. Although former Member Johnson
dissented from Finley Hospital, and I agree with the views expressed in
his dissenting opinion, the result here would be the same whether or not
one relies on the majority or former Member Johnson’s dissent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Dated, Washington, D.C. October 22, 2015
______________________________________
Philip A. Miscimarra, Member
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT change your terms and conditions of
employment without first notifying Service Employees
International Union, United Healthcare Workers-West
(the Union) notice and giving it an opportunity to bar-
gain.
WE WILL NOT change your terms and conditions of
employment because you engaged in union or other pro-
tected concerted activities.
WE WILL NOT enforce the unlawfully changed appear-
ance and hygiene policy by telling employees that they
cannot wear items such as buttons, pins, and stickers
supporting a labor organization in patient care areas.
WE WILL NOT discriminatorily enforce our no-access
rule against employees who seek access to engage in
union or other protected concerted activities.
WE WILL NOT fail to continue to make payments to the
Service Employees International Union, United
Healthcare Workers West and Joint Employer Education
Fund without first notifying the Union and giving it an
opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the following from the appearance
and hygiene policy: “Unless issued by the hospital, items
such as buttons, pins and stickers may not be worn in
patient care areas.”
WE WILL provide a lawfully worded provision on ad-
hesive backing that will cover the unlawful appearance
and hygiene provision in the Policy and Procedure Man-
ual, or WE WILL publish revised Manuals that do not con-
tain the unlawfully implemented provision.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:
Included: All full-time, part-time and per diem service
and maintenance, technical, skilled maintenance, and
business office clerical employees employed by the
Employer.
Excluded: All other employees, managers, supervisors,
confidential employees. guards, physicians, residents,
central business office employees (whether facility
based or not) who are solely engaged in qualifying or
collection activities or are employed by another CFHS
Holdings Inc. entity, such as Syndicated Office Sys-
tems or Patient Financial Services, employees of out-
side registries and other agencies supplying labor to the
Employer and already represented employees.”
WE WILL make all delinquent contributions to the Ser-
vice Employees International Union, United Healthcare
Workers West and Joint Employer Education Fund that
have not been paid since December 31, 2009, on behalf
of unit employees, and will continue to make the re-
quired contributions until we bargain with the Union in
good faith to an impasse or to an agreement.
MARINA DEL REY HOSPITAL
The Board’s decision can be found at
www.nlrb.gov/case/31–CA–029929 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., , Washington, D.C.
20570, or by calling (202) 273–1940.
MARINA DEL REY HOSPITAL 11
Rudy Fong Sandoval, Nicole A. Buffalano, and Roufeda S.
Ebrahim, Esqs., for the General Counsel.
Richard Falcone and Mark W. Robbins, Esqs. (Littler
Mendelson, P.C.), of Los Angeles, California, for the Re-
spondent.
Monica T. Guizar, Esq. (Weinberg, Roger, & Rosenfeld), of
Los Angeles, California, for the SEIU.
Brendan White, Esq., Legal Counsel, of Oakland, California,
for the CNA.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Los Angeles, California, on September 28 and
October 17–18, 2012. The California Nurses Association
(herein CNA) filed the charge in Case 31–CA–029929 on Sep-
tember 13, 2010, the Service Employees International Union,
United Healthcare Workers-West (herein SEIU) filed the
charges in 31–CA–029930, 31–CA–030191, and 31–CA–
065298 on September 13, 2010, April 26, 2011, and September
21, 2011, respectively, and the General Counsel issued an order
consolidating cases, third amended consolidated complaint and
notice of hearing1 on May 30, 2012. The remaining portions of
the complaint, as amended at the hearing, allege that Marina del
Rey Hospital (herein the Hospital) violated Section 8(a)(1) and
(5) by issuing and enforcing a written appearance and hygiene
policy that states “Unless issued by the hospital, items such as
buttons, pins and stickers may not be worn in patient care are-
as.” The complaint also alleges that the Hospital violated Sec-
tion 8(a)(1) by maintaining and enforcing the following rule:
“An Off-duty employee is not allowed to enter or re-enter the
interior of the Hospital or any Hospital work area, except to
visit a patient, receive medical treatment, or to conduct hospital
related business.” Finally, the complaint alleges that the Hospi-
tal violated Section 8(a)(5) by unilaterally ceasing to make
payments to the SEIU and Joint Employer Education Fund.
The Hospital filed a timely answer that, as amended at the hear-
ing, admits the allegations in the complaint concerning inter-
state commerce and jurisdiction, labor organization status, su-
pervisory and agency status, appropriate units, and the 9(a)
status of the CNA and SEIU; the Hospital denied it had com-
mitted any unfair labor practices. The Hospital claimed it was
without sufficient knowledge and therefore denied the allega-

1 The complaint covered many other charges; I granted a motion to
sever those other charges and they were settled. The remaining sub-
stantive allegations in the complaint are pars. 12(a), (c), (e), and (f), 18,
19, and 22.
tions in the complaint concerning the filing and service of the
charges; that answer is clearly frivolous and, on my own mo-
tion, I strike it. In any event the formal papers clearly establish
that the charges were filed and served as alleged in the com-
plaint. The Hospital pled 16 affirmative defenses to the origi-
nal complaint, ranging from “waiver, estoppel and/or unclean
hands” to “the National Labor relations Board does not have
jurisdiction to adjudicate disputes over the interpretation of
collective-bargaining agreements and the parties’ rights and
obligations under such agreements.” The entire record,2 includ-
ing my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel, the Hospi-
tal, and the CNA, I make the following.
FINDINGS OF FACT
I. JURISDICTION
The Hospital, a California corporation, provides inpatient
and outpatient medical care at its facility in Marina del Rey,
California, where it annually derives gross revenues in excess
of $250,000 and purchases and receives products, goods, and
services valued in excess of $5000 directly from points outside
the State of California. The Hospital admits, and I find, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the CNA and SEIU
are labor organizations within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Hospital recognizes the CNA as the representative for a
unit of nurses.3 The Hospital recognizes the SEIU as the repre-
sentative of a unit of the remaining nonprofessional employ-
ees.4 The most recent contract for that unit expired on Decem-
ber 31, 2009. On February 3, 2010, a decertification petition
was filed in Case 31–RD–001601 involving the SEIU repre-
sented unit of employees. An election was held and the em-
ployees voted to retain the SEIU.
B. Buttons, Pins, and Stickers Allegations
The complaint alleges that in May 2010 the Hospital violated
Section 8(a)(5) when it unilaterally issued a written appearance

2 The General Counsel’s unopposed motion to correct transcript is
granted.
3 More specifically:
Included: All registered nurses employed by Marina del Rey Hospital
at its facility located at 4650 Lincoln Blvd., Marina del Rey, Califor-
nia.
Excluded: All other employees, guards and supervisors.
4 More specifically:
Included: All full-time, part-time and per diem service and mainte-
nance, technical, skilled maintenance, and business office clerical em-
ployees employed by the Employer.
Excluded: All other employees, managers, supervisors, confidential
employees. guards, physicians, residents, central business office em-
ployees (whether facility based or not) who are solely engaged in
qualifying or collection activities or are employed by another CFHS
Holdings Inc. entity, such as Syndicated Office Systems or Patient Fi-
nancial Services, employees of outside registries and other agencies
supplying labor to the Employer and already represented employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
and hygiene policy as follows: “Unless issued by the hospital,
items such as buttons, pins and stickers may not be worn in
patient care areas.” The complaint also alleges that the Hospi-
tal violated Section 8(a)(1) when it issued that policy in re-
sponse SEIU activity and in order to discourage such activity.
The Hospital has a handbook that it provides to employees;
that handbook has a section entitled “Appearance and Hygiene”
that instructs employees concerning the need for good hygiene
and cleanliness and tells employees “You are required to pre-
sent a clean and neat appearance and dress according to the
requirements of your position.” It does not mention anything
about the wearing of buttons or pins.
Other versions of the Hospital’s “Appearance and Hygiene”
policy have existed in the Hospital’s Policy & Procedure Man-
ual. Unlike the employee handbook that is distributed to em-
ployees, the Policy and Procedure manuals are located on
shelves in the departments of the Hospital and are used as
needed by managers and supervisors as a resource. Employees,
on the other hand, rarely have occasions to use those manuals.
For example, Paulette Navarro works for the Hospital as a li-
censed clinical social worker; she has worked there since June
2008. Navarro credibly explained that she was aware of the
fact that there were manuals kept in offices at the Hospital but
she never had occasion to examine their content. In any event,
one version of that policy in that manual indicates that it was
last reviewed in August 2009 and last revised on April 28,
2004. Like the employee handbook, it does not mention any-
thing about wearing buttons or pins. Rather, it has a section
entitled “Jewelry” that reads:
Small sized jewelry is acceptable. Large or ornate jewelry is
not appropriate. Employees may not wear more than two ear-
rings in each ear. Facial jewelry is not acceptable.
Margaret Morgan is the Hospital’s director of human re-
sources; she admitted that this was the policy that was in place
from at least 2004 until the spring of 2010. Morgan admitted
that at that time the version of the policy in the manual, but not
the handbook, was changed. The changed version read:
Adornments: Jewelry, Buttons, Pins, Stickers, or Similar
Items:
Small to moderate sized jewelry is acceptable. Large
or ornate jewelry is not appropriate. Visible piercings
with jewelry or other objects are limited to the ear (maxi-
mum of 2 per ear). Unless issued by the hospital, items
such as buttons, pins and stickers may not be worn in pa-
tient care areas. In addition, all such items must be ap-
propriate for the work place and may not be excessive in
number or size and cannot cover or interfere with hospital
issued ID badges. (Emphasis added)
However, that revised policy continued to indicate that it last
been reviewed in August 2009 and last revised on April 28,
2004.5

5 I completely discredit Morgan’s explanation as to why the Hospital
did not indicate it had revised that policy. Rather, I agree with the
General Counsel’s observation in his brief that this “suggests at best
[that the Hospital] acted misleadingly, and at worst, dishonestly.”
What caused the Hospital to revise the manual? Morgan
admitted that beginning in March 2009 employees began wear-
ing union buttons and pins and that the Hospital reacted by
asking the employees to remove them while in patient care
areas. On March 12, 2009, Patricia Heasley, then a supervisor
for the Hospital, sent Morgan a message indicating that she
“just noticed several nurses . . . are wearing stickers on uni-
form, on badges . . . stethoscopes.” Morgan replied:
If we have been consistent with not allowing them to wear
other types of stickers not related to work— ask them to take
them off as we do not allow it—if a problem with any indi-
vidual resisting let me know and I will call the union.”
That same day Heasley answered “The employees did not
argue but I was surprised by the increase in number of nurses
now sporting the stickers.” This, in turn, prompted the follow-
ing message from a CNA representative to Morgan entitled
“Union Buttons” dated March 12, 2009:
Farah [Davari] tells me you have implemented a ban on wear-
ing of union buttons/stickers. I am including a link to a 9th
circuit court decision reaffirming that hospital commits an un-
fair labor practice when it issues blanket prohibitions regard-
ing the wearing of union buttons.
Morgan admitted that these events caused the Hospital to re-
vise the manual. It did so as follows. On May 14, 2010, Mor-
gan sent a message to the Hospital’s supervisors that read:
This is a reminder that the attached HR Policy for Appearance
and Hygiene is to be uniformly enforced. Please review the
section on adornments, i.e. jewelry, buttons, pins, and stickers.
Attached to the message was the new version of the policy,
described above, that banned the wearing on buttons in patient
care areas. Hospital supervisors began enforcing that policy
and employees began complaining to the SEIU about that en-
forcement. So on May 19, 2010, the SEIU sent Morgan a mes-
sage protesting that the Hospital was prohibiting the employees
from wearing union buttons and stickers. The next day Morgan
replied that “A hospital can lawfully prohibit union buttons in
immediate patient care areas. That is what we are saying, not
that they can’t wear buttons otherwise.” On May 21 Morgan
sent a memo to the Hospital “Leadership” as follows:
SEIU is objecting to our policy regarding prohibition of non
hospital issued badges, buttons, etc. They have communicat-
ed this objection via flyers (which you will see on their bulle-
tin boards) and letters.
Our policy is legal and has been supported by case law. We
are legally able to prohibit the wearing of such items in pa-
tient care areas.
Be sure to enforce this policy uniformly. Let me know if you
have any questions.
PLEASE POST THE ATTACHED COMMUNICATION
ON YOUR BREAKROOM BULLETIN BOARD OR
OTHER APPROPRIATE AREA—we are also posting on
our bulletin boards in the cafeteria and the employee entrance.
This attachment to the message that was posted on the bulle-
tin boards at the Hospital read:
MARINA DEL REY HOSPITAL 13
SEIU is objecting to our policy regarding prohibition of non
hospital issued badges, buttons, etc. They have communicat-
ed this objection via flyers (which you will see on their bulle-
tin boards) and letters.
Our policy is legal and has been supported by case law. We
are legally able to prohibit the wearing of such items in pa-
tient care areas.
Be sure to enforce this policy uniformly. Let me know if you
have any questions.
It was at this time that Hospital’s revised policy became
widely known to employees in writing; this was done without
prior notice or an opportunity to bargain by the SEIU.
The Hospital contends that revised policy reflected the exist-
ing practice regarding the wearing of buttons notwithstanding
the fact that the policy was not included in either the handbook
or the manual prior to 2010; in doing so it relies in part on
Morgan’s testimony. In this regard the Hospital’s counsel
asked Morgan “And . . . does the addition of the sentence we’re
talking about . . . reflect the practice of the hospital since
you’ve been employed by it?” Morgan answered “Yes.” I
simply do not credit this testimony. It was obtained in a lead-
ing fashion, Morgan’s demeanor was unconvincing, and it is
contrary to the more credible testimony that I now describe.
Gloria Gilmore worked at the Hospital from November 2006
until April 29, 2011.6 Gilmore worked as a certified nursing
assistant in the med-surg department. Gilmore wore several
different buttons on her uniform at the Hospital. During the
holiday seasons in 2009 and 2010, Gilmore often wore a button
that read “Jingle for Jesus.” That button was oval shaped and
about 1½ inches wide; three tiny bells are attached to it. She
wore that button throughout the facility for her entire 12-hour
shift. Although Gilmore regularly saw her supervisor, Patricia
Heasley, during her shift, Heasley never asked her to remove
that button. Gilmore also wore, without incident, a pin shaped
as a ribbon with a small rectangle bearing the letters “DVT”,
short for deep vein thrombosis. Bridget Agee, the Hospital’s
bariatric team coordinator, gave the pin to employees and Gil-
more wore it on her uniform while at work for several weeks in
late 2010. Again, she wore the pin throughout her 12-hour
shift, including in patient care areas. Another button that Agee
gave Gilmore was shaped as a tape measure indicating that
someone was losing weight in relation to have received gastric
bypass or lap band surgeries. Another pin was the flag of Ja-
maica. Gilmore wore that pin on her uniform 3 of 4 days a
month during 2009 and 2010 for her entire shift. Gilmore was
given a service award pin when she worked at another medical
facility before working for the Hospital; she wore that pin on
her uniform also. In 2010 she and other employees wore but-
tons shaped like a little red dress. No one from the hospital
informed Gilmore that she could not wear those buttons and
pins.7 Marla Joy Liberty worked at the hospital intermittently

6 Her discipline and termination were alleged to be unlawful in the
complaint but those allegations were settled as part on the non Board
adjustment described above.
7 Heasley, Gilmore’s supervisor, denied seeing Gilmore wear these
buttons, but I do not credit that testimony. Heasley did not strike me as
a particularly credible witness; rather she seemed eager to agree with
from January 6, 1986, until her retirement on March 1, 2012;
she worked as a registered nurse. Prior to February 2010 Liber-
ty had worn a breast cancer research pin, a nursing school pin, a
heart research pin in the form of a little red dress,8 and a sport
team button on her uniform while at work, all without incident.
In February 2010, Liberty was wearing a button in the teleme-
try unit that was 2½ to 3½ inches in diameter and that read
“CNA.” Heasley told her that the button was too large and that
Liberty could not wear it. Mary Lynne Brown works at the
Hospital as a physical therapist assistant; she has worked there
since September 2000. Brown also wore buttons on her uni-
form at work. One button was pink and shaped like a ribbon;
this was meant to indicate support for Breast Cancer Aware-
ness. Brown wore this button during Breast Cancer Awareness
Month. She also occasionally wore the little red dress pin.
Indeed, in 2009, at the behest of Tambria Elizabeth Bean, the
Hospital’s director of rehab services and Brown’s supervisor,
Brown sold cookbooks to coworkers for $5 to raise funds. Per
Bean, Brown gave each purchaser a little red dress pin to wear.9
Brown saw coworkers wearing buttons for sports teams; they
wore these buttons in patient and non patient care areas. Laura
Falcon has worked for the Hospital since March 2007 as a sur-
gical technologist. Almost every day she has seen employees
wearing buttons supporting the Lakers, Dodgers, breast cancer
awareness, and other buttons. Falcon also was a steward for the
SEIU. In about March 2010, her coworkers began complaining
to her that managers were telling them to remove buttons or
that they could only wear one button. During that time period
bargaining was still ongoing and the date for the decertification
election had been set. So a meeting on May 10, 2010, was
arranged with Fred Hunter, the Hospital’s CEO, in his office.
Falcon told Hunter that the reason for the meeting was because
there were discrepancies in different departments regarding the
wearing of buttons. Hunter replied “They’re working on it
right now as we speak.” Four days later Falcon saw the policy
manual version that included the portion concerning wearing
pins; it posted in the break room in the surgery department.
That was the first time she had seen that policy. Rosanna Men-
dez works for the SEIU; she was the lead negotiator for that
union with the Hospital during a period of time in 2009 and
2010. As such she visited the Hospital during and saw employ-
ees wearing different items on their uniforms supporting the
SEIU. At some point employees began complaining to her that
they were being required to remove those items from their uni-
forms. On July 6, 2010, she sent an email to the Hospital com-
plaining about several things, including that the Hospital was
harassing employees by telling them that they could not wear
union buttons. In that message Mendez describes the May 10
meeting with Hunter, described above by Falcon. She wrote:

the Hospital’s litigation position rather than simply attempting to relate
the facts. Moreover, Gilmore produced the buttons that she wore and it
is unlikely that some of them at least (e.g. “Jingle for Jesus” with bells
attached) would have gone unnoticed.
8 The little red dress pin is a large rectangular pin measuring 3½ by 2
inches and bearing the image of a red dress and a smaller red heart next
to “American Heart Association.”
9 Bean admitted that she gave employees this pin and cookbook in
exchange for a contribution.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Mr. Hunter, as you will recall, a small group of our members
met with you on May 10, 2010 to discuss anti-Union activities
by management, including allowing harassment and discrimi-
nation against pro-Union employees. They gave you specific
examples of disparate treatment including managers telling
them they couldn’t wear Union buttons – which had not pre-
viously been brought up as an issue at the facility. As the
members noted, you said you wanted to ensure folks were
wearing only one Union button, not multiple buttons, stickers,
etc. and managers began to enforce something that had never
been in effect. We objected to this policy but it is still being
enforced.
The Hospital never gave the SEIU an opportunity to bargain
about the policy it posted concerning buttons.
ANALYSIS
An employer violates Section 8(a)(5) and (1) when it chang-
es working conditions of union-represented employees without
first giving the union notice and opportunity to bargain con-
cerning the changes. NLRB v. Katz, 369 U.S. 736 (1962). I
have concluded that the Hospital did not give the SEIU notice
and an opportunity to bargain before it revised its dress code
policy to include the following sentence “Unless issued by the
hospital, items such as buttons, pins and stickers may not be
worn in patient care areas.” Dress codes are mandatory sub-
jects of bargaining, especially where failure to comply with
them may result in discipline. Medco Health Solutions of Las
Vegas, 357 NLRB No. 25 (2011), enfd. in relevant part Medco
Health Solutions of Las Vegas v. NLRB, _ F.3d _ (D.C. Cir.
2012); Yellow Enterprise Systems, 342 NLRB 804, 827 (2004),
Albertson, Inc., 319 NLRB 93, 103 (1995). In its brief the
Hospital argues that it “has had a longstanding practice of en-
forcing a rule that prohibits the wearing of pins and buttons in
patient care areas unless the pin or button was issued by Re-
spondent.” In doing so the Hospital relies on evidence that I
have rejected as not being credible and I reject, as a matter of
fact, the existence of any such past practice. By changing its
appearance and hygiene policy without first giving the SEIU an
opportunity to bargain about the change, the Hospital violated
Section 8(a)(5) and (1).
An employer violates Section 8(a)(1) of the Act when it
changes a policy affecting working conditions as a response to
activities by employees that are protected by Section 7.
Associacion Hospital del Maestro, 283 NLRB 419, 425 (1987).
I have already concluded above that the Hospital changed it
appearance and hygiene policy and that this change impacted
the working conditions of employees. I now examine the Hos-
pital’s motivation for the change. All the credited evidence,
described in detail above, leads to the conclusion that it did so
because employees began wearing buttons and the like support-
ing the SEIU and the CNA. Indeed, Morgan admitted the addi-
tion of the sentence to the policy manual came about because
employees began wearing items supporting a union and the
SEIU protested the fact that the Hospital began to restrict that
activity. Of course, absent a lawful policy restricting that activ-
ity, wearing union buttons and the like is activity protected by
Section 7. Republic Aviation Corp. v. NLRB, 324 U.S. 793,
801–803 (1945). The Hospital argues that under NLRB v. Bap-
tist Hospital, 442 U.S. 773 (1979), and similar Board decisions,
the rule it promulgated is presumptively valid. But the Hospital
thereby confuses the promulgation of presumptively valid rules
for nondiscriminatory reasons with the promulgation of the
same rules in response in to union activity; in the latter circum-
stances, the promulgation of the rules, even if facially presump-
tively valid, is nonetheless unlawful. City Market, Inc., 340
NLRB 1260 (2003). By changing its appearance and hygiene
policy because employees engaged in union activity, the Hospi-
tal violated Section 8(a)(1).
The complaint alleges that on “various dates” in May, Sep-
tember, October, and November 2010, the Hospital, by Patricia
Heasley and/or Tammy Bean, enforced the rule described
above by enforcing it against employees who wore SEIU insig-
nia during work time.10 The General Counsel indicated on the
record that the following evidence fell under this allegation of
the complaint. On May 17, 2010, Gilmore was wearing two
union buttons on her uniform. As she was walking though a
non patient care area about to start her shift, Heasley told Gil-
more that she was not allowed to wear anything that depicts the
Union in the hospital in patient care areas.11 Gilmore replied
that she was not aware of that and that according to the dress
code she was not supposed to wear anything offensive to the
patients and that her uniform was supposed to be neat and
clean, and that was what she was doing. Heasley said that it
was a rule in the policy manual; Gilmore said she had never
seen it before. About 10 minutes later Heasley returned and
gave Gilmore two pages from the policy manual described
above concerning the wearing of buttons and pins.12 As previ-
ously mentioned, Mary Lynne Brown works at the Hospital as a
physical therapist assistant; her supervisor is Tambria Elizabeth
Bean, the Hospital’s director of rehab services. On September
16 Bean saw Brown wearing an SEIU pin on or around her
identification badge while in a patient care area. Bean told
Brown that hospital policy prohibited wearing a pin like that in
patient care areas and asked Brown to remove the pin. Then on
October 28 Heasley called Bean and complained that Brown
was wearing the Weingarten rights card and a pin on her identi-
fication badge. Bean summoned Brown to the department area;
Brown was still wearing the Weingarten card attached to her
identification badge and the pin. Bean again told Brown that it
was against hospital policy to wear those items in patient care
areas and she again asked Brown to remove them; Brown did
so. On October 28, 2010, the Hospital gave Brown a counsel-

10 Patricia Ann Martinez, an employee, testified to an event that oc-
curred in August 2010. That testimony is not covered by any allegation
in the complaint and I therefore do not decide whether it was unlawful.
11 Gilmore’s first testified that Heasley said the she could not wear
anything that depicts the Union in the hospital. Gilmore then testified
that Heasley mentioned “patient care areas.” During cross-examination
Gilmore reverted to her first version, only to be presented with her
affidavit in which she describes Heasley’s remarks as being limited to
“patient work areas.” I conclude Heasley said “patient care area.”
Gilmore’s testimony was sometimes evasive, combative, and unbeliev-
able. I credit her testimony only to the extent described in this deci-
sion.
12 Heasley testified that she did not recall this incident.
MARINA DEL REY HOSPITAL 15
ing memo that indicated that Brown had previously been ver-
bally warned on September 16 to remove a “SEIU pin on (her)
badge.” It indicated:
Previously counseled employee to remove SEIU pin which
was pinned to her badge/ [illegible]. Observe employee still
wearing SEIU pin and SEIU attachments [illegible] to request
removal of those items, employee questions reasons this is a
policy guideline.
Finally, the counseling memo instructed: “Do not wear such
items at any time.”13 Heasley admitted that in late October
2010 Gilmore came out of a patient room wearing a union pin
and that she asked Gilmore to remove the pin. Gilmore refused
and asked to speak with Morgan. Heasley then called Morgan
and allowed Gilmore to speak with her. After that conversation
Gilmore removed the pin. The next day the scene was repeated
as Heasley again saw Gilmore wearing a union pin in a patient
care area. Heasley again called Morgan but this time Gilmore
refused to remove the pin after speaking with Morgan. Morgan
instructed Heasley to send Gilmore home, staffing levels per-
mitting. When security personnel arrived to escort Gilmore
from the premises Gilmore finally removed the pin. On No-
vember 5, 2010, Heasley prepared a written warning for Gil-
more. The warning indicated:
Employee has been verbally counseled on 2 occasions re-
garding dress code, however, continues to not adhere to dress
code. .Supervisor requested that employee adhere to dress code
by removing pin from uniform while in patient care area on
October 27th. After much argument employee complied. On
October 29th and 30th employee continued to violate dress
code wearing pin on badge while in patient care area, which
was subsequently removed after being addressed by supervisor
and charge nurse
The warning was later presented to Gilmore but she refused
to sign it.14 On November 9 Heasley saw Gilmore wearing the
Weingarten rights card of her identification badge while in a

13 The foregoing facts are based on Bean’s credible testimony and
the written counseling that was offered into evidence by the General
Counsel. The General Counsel presented the testimony of Brown at
hearing and she testified to events that occurred on September 22 and
November 9. But the General Counsel never asked Brown to reconcile
the dates in the written counseling with her testimony. To the extent
that Brown’s testimony differs from that of Bean and the written coun-
seling, I do not credit Brown’s testimony.
14 Gilmore testified to an incident involving Heasley; Gilmore first
testified that she thought it occurred in September 2010, then in No-
vember 2010, and finally settled for October 26, 2010, in the medical-
surgical unit near the nurses’ station. Gilmore was again wearing two
union buttons on her uniform. Gilmore testified that Heasley told her
to remove the buttons, that she “cannot wear them in the hospital” and
that she “can’t wear anything that says Union in the hospital.” But later
Gilmore added that Heasley told her that she could not wear the buttons
in patient care areas. Gilmore refused to remove the buttons, indicating
that she knew her rights. So Heasley called Morgan and Heasley in-
formed Gilmore to remove the buttons or else she was suspended.
Gilmore testified that she removed one button, but later testified that
she took off both buttons. To the extent that Gilmore’s testimony con-
flicts with the written warning and Heasley’s testimony, I do not credit
Gilmore’s testimony.
patient care area. She then summoned Gilmore for a meeting:
also present were Cathy Onstadt, a registered nurse, and Julian
Quinones, a union representative. Heasley said that on numer-
ous occasions she had told Gilmore that she was not complying
with the dress code. Heasley said either remove the union item
or go home. Gilmore then spoke privately with Quinones and
Gilmore decided not to remove the card. She then told this to
Heasley, who then told her to go home. On November 9
Heasley provided Morgan with a written version of those
events.15
Analysis
I have already concluded above that the Hospital unlawfully
implemented a revised appearance and hygiene policy. I have
described above a number of instances when the Hospital en-
forced the unlawful policy against employees by telling them
that they could not wear buttons and the like supporting the
SEIU in patient care areas. It follows that by enforcing the
unlawful policy the Hospital again violated Section 8(a)(1).
Saint Vincent Hospital, 265 NLRB 38, 42 (1982).
C. No-Access Allegations
The complaint alleges that since September 2010 the Hospi-
tal has maintained the following rule:
An Off-duty employee is not allowed to enter or re-enter the
interior of the Hospital or any Hospital work area, except to
visit a patient, receive medical treatment, or conduct hospital-
related business.
The Hospital’s employee handbook contains the following:
No-Access Policy
Off-duty employees may access the Hospital only as express-
ly authorized by this policy. An off-duty employee is any
employee who has completed or not yet commenced his/her
shift.
An off-duty employee is not allowed to enter or re-enter the
interior of the Hospital or any Hospital work area, except to
visit a patient, receive medical treatment, or conduct hospital-
related business. “Hospital related-business” is defined as the
pursuit of an employee’s normal duties or duties as specifical-
ly directed by management.
An off-duty employee may have access to non-working, exte-
rior areas of the Hospital, including exterior building entry
and exit areas and parking lots.
Any employee who violates this Policy will be subject to dis-
ciplinary action up to and including termination.
I conclude from Morgan’s uncontested and credible testimo-
ny that any “duties as specifically directed by management”
would require the Hospital to pay the employee for the time
spent performing those duties. I further conclude that employ-
ees clearly understand that if the Hospital specifically directs
them to perform duties they will be paid for the performance of

15 The foregoing facts are based on a composite of the credible por-
tions of the testimony of Gilmore, Heasley, and Heasley’s written ac-
count of those events.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
those duties. Indeed, the patchwork of laws in this country
governing the employer-employee relationship requires no less.
Analysis
I first examine the facial validity of the rule. In Tri-County
Medical Center, 222 NLRB 1089 (1976), the Board held that
an employer’s rule barring off-duty employees access to their
employer’s facility is valid only if it limits access solely to the
interior of the facility, is clearly disseminated to the employees,
and applies to off-duty access for all purposes, not just for un-
ion activity. Sodexo America, LLC, 358 NLRB No. 78 (2012),
involved a no-access rule identical in all material respects to the
one in this case and the Board found that the rule was unlawful.
In doing so the Board concentrated on the portion of the rule
allowing access:
[T]o conduct hospital-related business . . . “Hospital related-
business” is defined as the pursuit of an employee’s normal
duties or duties as specifically directed by management.
From this the Board concluded that:
Because the rule gives the Respondents free rein to set the
terms of off-duty employees access, we find the that it vio-
lates Section 8(a)(1) of the Act.[footnote omitted]
Notwithstanding my finding that “duties as specifically di-
rected by management” would require the Hospital to pay the
employee for the time spent performing those duties and that
employees clearly understand that if the Hospital specifically
directs them to perform duties they will be paid for the perfor-
mance of those duties, I am obligated to conclude that by main-
taining a no-access rule that on its face allows the Hospital free
rein to allow off-duty access to the facility for certain activities
but forbidding such access for activities protected by Section 7
of the Act, the Hospital violated Section 8(a)(1).
I turn now to address the issue of what the actual practice has
been concerning off-duty employee access. Morgan admitted
that notwithstanding the language of the rule, employees are
allowed to enter the premises while off duty to pick up a
paycheck stub, submit a schedule request, apply for a transfer,
and to attend employee benefit meetings and retirement parties;
employees are not paid when they enter the facility for these
purposes.16 Similarly, Heasley admitted that off-duty employ-
ees were allowed to enter the facility to attend retirement par-
ties and baby showers and to collect their paystubs. Martinez
credibly testified that she had entered the facility while off duty
to attend baby showers, wedding showers, and to take a test that
was required by the Hospital. Gilmore credibly testified that
she entered the facility while off duty to attend a baby shower
in February 2011. Brown has gone inside the Hospital while

16 The Hospital’s counsel attempted to get Morgan to agree, through
leading questions, that this practice was consistent with the no-access
rule as written. I do not credit any testimony in this regard; it was
inconsistent with Morgan’s more credible testimony that the rule as
written required the Hospital to pay all employees allowed access pur-
suant to the rule. Employees were never informed of the fabricated
interpretation and it would defy common sense to think that employees
would read the rule to mean that attending a retirement party while off
duty was a duty that was “specifically directed by management.”
off duty to pick up her paycheck and attend retirement and baby
shower parties. For example, for the baby shower Brown and
others created a flyer inviting employees to attend and put it on
a bulletin board. That event was held in the Playa Room of the
Hospital; Hospital permission was given to use that room for
that event. Liberty has returned to the hospital premises while
off duty to pick up her pay stubs, talk to friends that worked in
the ICU and telemetry unit, talk to insurance representatives,
and attend retirement parties. For example, in the spring 2010,
Liberty entered the facility while off duty to attend the retire-
ment party of Evelyn Expose. Expose worked as a registered
nurse in the ICU and the party was held in the Playa Room.
Other off-duty employees also attended the retirement party
and the Hospital provided food from the cafeteria for the event.
The complaint alleges that on about August 20, 2010, the
Hospital, through Heasley, enforced the no-access rule by ap-
plying it against an off-duty employee present in the hallway
outside the Hospital’s cafeteria in violation of Section 8(a)(1).
On August 20, 2010, Liberty, while off duty, met Glynnis
Ortiz, a CNA representative, in the hospital’s cafeteria to dis-
cuss the status of negotiations that were ongoing between the
Hospital and the CNA. They then put brochures and pamphlets
on a table and met with two or three other nurses. After about
1½ hours Julio Duarte, head of security, asked to speak with
Liberty in the hallway outside the cafeteria. Once there Duarte
told Liberty that they had to pack up and leave; Liberty said
okay. She returned to the cafeteria and told Ortiz what Duarte
had said. Ortiz and Liberty did not leave immediately; rather
they spent about 20 minutes packing up and speaking to nurses.
Duarte again approached them and said that they were causing
a commotion and they had to leave. Liberty agreed to leave.
Liberty then called the house supervisor and asked whether
they could use the ICU lounge to meet with the nurses; the
house supervisor at first said that they could, but Liberty heard
Heasley’s voice in the background saying that they could not,
so the house supervisor then said that they not use that room.
After they left the cafeteria Liberty and Ortiz stood outside in
the hallway. Duarte approached them for a third time, this time
with Heasley. Heasley said that Liberty was not allowed in the
hospital grounds while she was off duty.17
Similarly, the complaint alleges that on or about September
21, 2011, the Hospital, by Larry Nance, enforced and orally
promulgated the no-access rule described above by applying it
against an employee who was in the Hospital’s cafeteria when

17 These facts are based on Liberty’s credible testimony; her de-
meanor was convincing and she gave the testimony while being em-
ployed by the Hospital. Also, Ortiz corroborated portions of Liberty’s
testimony. Heasley testified that she did not recall this incident. I have
considered Duarte’s testimony that he received a phone call that a CNA
representative was trying to meet with employees in the cafeteria, so he
went there and saw the CNA representative, Liberty and two other
employees Duarte told them that cafeteria was not a meeting place for
them and they could not have their meeting there. After some discus-
sion two of the employees left and Liberty and Ortiz started to walk
towards the ICU break room. Duarte claimed that he was not present
for any conversation with Heasley. I do not credit the testimony of
Heasley and Duarte to the extent that it is inconsistent with the facts
described above; their demeanor was both uncertain and unconvincing.
MARINA DEL REY HOSPITAL 17
off duty. Paulette Navarro works for the Hospital as a licensed
clinical social worker; she has worked there since June 2008.
On September 21, 2011, while off duty Navarro entered the
cafeteria around noon and had lunch with Christina Albin-Lax,
who was then the newly appointed negotiator for the SEIU.
Navarro then introduced Albin-Lax to other employees who
happened to be in the cafeteria. After about 30 minutes Navar-
ro noticed Larry Nance, a security officer, watching her, Albin-
Lax, and another employee at the table speaking to Albin-Lax.
This continued for about 10–15 minutes, at which time Nance
approached the table and asked Albin-Lax whether she had
notified Morgan before Albin-Lax came to the Hospital. Albin-
Lax responded that she had done so and left a message for
Morgan to that effect. Albin-Lax then called Morgan; Morgan
indicated that she had not yet listened to her messages and told
Albin-Lax to call her on her mobile phone next time. Lance
left and Navarro continued to invite employees to come to their
table and meet Albin-Lax. Lance then reappeared and told
Navarro that he understood that Navarro was not working that
day; Navarro answered that he was correct. Lance asked if
Navarro knew that she was not supposed to be there while off
duty. Navarro said that she understood that anyone can be in
the cafeteria; that it was a public place. Navarro explained that
she understood that the Labor Board ruled that any employee
can be in the cafeteria while off duty. Albin-Lax then again
called Morgan, who explained that Lance was following the
Hospital’s rules. At about 2 p.m. Navarro left the cafeteria.18
Analysis
I have concluded above that the Hospital’s no-access rule is,
on its face, unlawful. It follows that this rule may not serve as
a basis for excluding off-duty employees from entering the
Hospital to engage in activities protected by the Act. Tri-
County Medical Center, supra. I have also concluded that the
Hospital allows its off-duty employees to enter the facility for a
wide range of activities not directly related to the performance
of their normal duties. It follows that the Hospital may not then
exclude off-duty employees from entering the facility to engage
in activities protected by the Act. The Hospital violated Sec-
tion 8(a)(1) by requiring off-duty employees engaged in union
activity to leave the facility.
Next, the complaint alleges that on about September 24,
2010, the Hospital, by Julio Duarte, enforced an overly broad
off-duty access rule by orally prohibiting an off-duty employee
access to an area outside the Hospital building, thereby violat-
ing Section 8(a)(1). On September 24, 2010, at around 7 a.m.
Martinez went to the facility to vote and to be an observer for
the SEIU at the election; she was off duty that day. After being
told that her service as an observer was not needed, she voted
and then left at around 7:30 a.m. She then went to a bus that the
SEIU had station outside the Hospital’s property and visited
with other SEIU members. She then left the bus at around
10:45 a.m. and returned to the Hospital’s property and lingered
outside the facility near an employee entrance a short distance

18 The foregoing facts are based on a composite of the credible tes-
timony of Navarro and Albin-Lax. The testimony was mutually cor-
roborative and their demeanor was convincing. Lance did not testify.
from a parking lot. There is no evidence that Martinez engaged
in union activity during that time. After being in that area for
about 10–15 minutes Julio Duarte, then director of facilities,
approached her and said that Martinez needed to leave or he
was going to call the cops. Martinez then left.19
Analysis
In his brief the General Counsel states “Here on September
24 Martinez stood in an area outside of the hospital building for
about 10 minutes.” His does not describe any union activity or
other conduct that implicated Section 7 concerns that Martinez
engaged in during that time. I dismiss this allegation of the
complaint. Continental Group, 357 NLRB No. 39 (2011).
D. Education Fund Allegation
The complaint alleges that since May 2011 the Hospital has
unilaterally ceased making contributions to the SEIU United
Healthcare Workers West and Joint Employer Education Fund.
Article 18(c) of the most recent contract required the Hospital
to contribute a specified amount to the SEIU and Joint Employ-
er Education Fund. The Hospital also agreed to be bound by
the terms of the trust agreement, the plan document, and the
rules and regulations adopted by the Trustees of the Fund. On
April 22, 2009, the Hospital made a payment to the Education
Fund for the 2008 calendar year and on May 5, 2010, the Hos-
pital made a payment to the Fund for the 2009 calendar year; it
has not made any payments since then. As previously indicat-
ed, that contract expired on December 31, 2009, and has not
been renewed or extended. During bargaining the Hospital
sought to eliminate article 18(c) from a succeeding contract, but
there has no agreement or impasse.

19 The foregoing facts are based on Martinez’ credible testimony.
Duarte testified that on that day he received a phone call from a super-
intendent for a construction company performing work at the Hospital.
According to Duarte, the superintendent complained that there was a
man present in an unsafe area near the construction. So at about 9 a.m.
Duarte went to the area and saw an organizer from the SEIU in the
driveway used by ambulances as they approached the Hospital. Duarte
told the organizer to move to the public sidewalk and the organizer did
so. Yet the Hospital has its security officers use a security action assis-
tance report when they encounter trespassing and no such report was
produced by the Hospital covering the incident described by Duarte.
Duarte claimed that he remained in the area until about 11 a.m. or later
when Martinez exited the hospital and stopped and stood in the area
outside the employee entrance. Duarte then asked Martinez if she had
voted; she indicated that she had done so. Duarte then told Martinez
that she could not remain in that area for safety reasons; he denied that
he threatened to call the police or that Martinez had to leave the proper-
ty of the Hospital. But Duarte admitted the Hospital allowed employ-
ees to use that area to enter and exit the facility and was unable to recall
any message from the Hospital cautioning employees about safety
concerns while in that area. Duarte also testified that construction work
was being performed at that time, but it turns out that his testimony was
based not on his personal observation but instead was based on infor-
mation in a report that was not sufficiently tied to the time and place at
which Martinez was present. Duarte’s demeanor was entirely uncon-
vincing. I conclude Duarte’s testimony, to the extent it differed from
Martinez’ testimony, was either exaggerated or simply fabricated for
trial purposes
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
Analysis
Upon the expiration of a contract an employer is generally
not free to unilaterally cease making contributions to benefit
funds provided in the expired contract. N. D. Peters & Co., 321
NLRB 927, 928 (1996). In its brief, the Hospital argues that
under the plan documents and rules and regulation governing
the Education Fund:
Respondent’s obligation to make Contributions to the Educa-
tion Fund is coextensive with and expressly contingent upon
the existence of a Collective Bargaining Agreement or partic-
ipation agreement that is “presently in force.”
I have examined the provisions relied upon by the Hospital
and conclude that none even remotely support this contention.
KBMS, 278 NLRB 826 (1986). By unilaterally failing to con-
tinue to make payments to the Education Fund, the Hospital
violated Section 8(a)(5) and (1).
CONCLUSIONS OF LAW
1. By changing its appearance and hygiene policy without
first giving the SEIU an opportunity to bargain about the
change, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
2. By changing its appearance and hygiene policy because
employees engaged in union activity, the Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and 2(6) and (7) of the Act.
3. By enforcing the changed appearance and hygiene policy
by telling employees that they cannot wear items such as but-
tons, pins, and stickers supporting a labor organization in pa-
tient care areas, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and 2(6) and (7) of the Act.
4. By maintaining a no-access rule that on its face allows the
Hospital free rein to allow off-duty access to its facility for
certain activities but forbidding such access for activities pro-
tected by Section 7 of the Act, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and 2(6) and (7) of the Act.
5. By requiring off-duty employees engaged in union activity
to leave the facility the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and 2(6) and (7) of the Act.
6. By unilaterally failing to make payments to the Education
Fund, Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5) and (1)
and 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. I have found that Respondent unlawfully
made changes to its appearance and hygiene policy. I shall
require it therefore to rescind the following from that policy:
“Unless issued by the hospital, items such as buttons, pins and
stickers may not be worn in patient care areas.” I have found
that Respondent unlawfully maintained a no-access rule that on
its face allows it free rein to allow off-duty access to the facility
for certain activities but forbidding such access for activities
protected by Section 7 of the Act. I shall require it therefore to
rescind that rule. I have found that Respondent unlawfully
required off-duty employees engaged in union activity to leave
the facility. I shall require it therefore to allow off-duty em-
ployees to enter the facility to engage in union activity. I have
found that Respondent unlawful failed to continue to make
payments to the Education Fund. I shall require it therefore to
make whole all unit employees covered by the Education Fund
by making all delinquent contributions to the fund on behalf of
all employees, including any additional amounts due that fund
in accordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979).20
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.21
ORDER
The Respondent, Marina Del Rey Hospital, Marina Del Rey,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Changing its appearance and hygiene policy without first
giving the SEIU an opportunity to bargain about the change.
(b) Changing its appearance and hygiene policy because em-
ployees engaged in union activity.
(c) Enforcing the changed appearance and hygiene policy by
telling employees that they cannot wear items such as buttons,
pins, and stickers supporting a labor organization in patient care
areas.
(d) Maintaining a no-access rule that on its face allows the
Hospital free rein to allow off-duty access to its facility for
certain activities but forbidding such access for activities pro-
tected by Section 7 of the Act.
(e) Requiring off-duty employees engaged in union activity
to leave the facility.
(f) Unilaterally failing to continue to make payments to the
Education Fund.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the following from the appearance and hygiene
policy: “Unless issued by the hospital, items such as buttons,
pins and stickers may not be worn in patient care areas.”
(b) Rescind the no-access rule that on its face allows the
Hospital free rein to allow off-duty access to facility for certain
activities but forbidding such access for activities protected by
Section 7 of the Act.

20 There is no contention by the General Counsel that unit employees
directly suffered any loss as a result of Respondent’s unlawful conduct.
21 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
MARINA DEL REY HOSPITAL 19
(c) Allow off-duty employees to enter the facility to engage
in union activity.
(d) Make unit employees covered by the Education Fund
whole in the manner described in the remedy section of this
decision.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of contribu-
tions due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Marina del Rey, California, copies of the attached no-
tice marked “Appendix.”22 Copies of the notice, on forms pro-
vided 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 posted. In addition to physical post-
ing of paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates 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 mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since May 14, 2010.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. January 16, 2013
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE

22 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.”
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 no-
tice.
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 change our appearance and hygiene policy
without first giving the Service Employees International Union,
United Healthcare Workers-West an opportunity to bargain
about the change.
WE WILL NOT change our appearance and hygiene policy be-
cause employees engaged in union activity.
WE WILL NOT enforce the changed appearance and hygiene
policy by telling employees that they cannot wear items such as
buttons, pins, and stickers supporting a labor organization in
patient care areas.
WE WILL NOT maintain a no-access rule that on its face al-
lows the Hospital free rein to allow off-duty access to its facili-
ty for certain activities but forbidding such access for activities
protected by Section 7 of the Act.
WE WILL NOT require off-duty employees engaged in union
activity to leave the facility.
WE WILL NOT unilaterally discontinue making payments to
the Education Fund.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL rescind the following from the appearance and hy-
giene policy: “Unless issued by the hospital, items such as but-
tons, pins and stickers may not be worn in patient care areas.”
WE WILL rescind the no-access rule that on its face allows the
Hospital free rein to allow off-duty access to facility for certain
activities but forbidding such access for activities protected by
Section 7 of the Act.
WE WILL allow off-duty employees to enter the facility to en-
gage in union activity.
WE WILL make unit employees covered by the Education
Fund whole in the manner described in the remedy section of
this decision.
MARINA DEL REY HOSPITAL