MERCY HOSPITAL

National Labor Relations Board - Administrative Judge Opinions

May 6, 2016

18-CA-155443 (N.L.R.B. May. 6, 2016)

JD–39–16
Coon Rapids, MN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MERCY HOSPITAL
and Case 18–CA–155443
SERVICE EMPLOYEES INTERNATIONAL UNION
HEALTHCARE MINNESOTA
and Case 18–CA–163045
ANGEL MARIE ROBINSON, an individual
Rachael Simon-Miller and Kaitlin Kelly, Esqs.,
for the General Counsel.
John Hauge and Grant Collins, Esqs.,1
for the Respondent.
Justin Cummins, Esq.,
for Charging Party SEIU Healthcare Minnesota.
DECISION
GEOFFREY CARTER, Administrative Law Judge. This consolidated case involves two
disputes. In Case 18-CA-155443, the parties primarily lock horns over whether the collective-
bargaining agreement sets restrictions that Mercy Hospital (Respondent) must follow when
filling work assignments in its Environmental Services (EVS) department (the case also includes
three alleged unlawful statements, two of which relate to the work assignments issue).2 As part
of its defense, Respondent asserts that the dispute should be deferred to arbitration.
In Case 18–CA–163045, the parties contest the question of whether Respondent violated
the Act when employee Angel Robinson applied for, and later declined, a transfer to a certified
nursing assistant (CNA) position in the Intensive Care Unit. The General Counsel asserts that

1 Sandra Francis, Esq. also appeared as counsel for Allina Health System. Allina Health System
includes a group of seven hospitals, one of which is Respondent. (See GC Exh. 2 (p. 1).)
2 The terminology itself is part of the dispute. The General Counsel and the Union maintain that
“work assignments,” “workweek schedules,” and “positions” are all synonyms that are used
interchangeably in the workplace. Respondent, by contrast, asserts that the three terms all have separate
and distinct meanings. For ease of reference, in this decision I use the term “work assignment” to refer to
an employee’s specific job duties or work area in the EVS department, and the term “position” to refer to
the employee’s general job title (e.g., environmental services aide; certified nursing assistant). In so
doing, I do not take a position on which side is correct regarding whether or not the disputed terms (work
assignment, position, workweek schedule) are synonyms.
JD–39–16
2
Respondent made unlawful threats during Robinson’s “meet and greet” interview with ICU
department managers. The General Counsel also alleges that Respondent constructively denied
Robinson a transfer to the ICU by forcing Robinson to make a Hobson’s Choice between
accepting the transfer despite the unlawful threats, or declining the transfer despite the fact that
she was entitled to it under the collective-bargaining agreement as the most senior applicant.5
As explained below, I agree with Respondent’s deferral argument as to the Section
8(a)(5) allegations in Case 18–CA–155443 – deferral is appropriate because those allegations
turn on contract interpretation, where an arbitrator has expertise. Under the Board’s decision in
Babcock & Wilcox Construction Co., 361 NLRB No. 132, slip op. at 12–13 (2014), however, the 10
Section 8(a)(1) allegations in Case 18–CA–155443 may not be deferred to arbitration because
the Union and Respondent did not explicitly authorize an arbitrator to decide those types of
allegations in the collective-bargaining agreement, or otherwise. Accordingly, I decided those
allegations on the merits, finding that Respondent did not violate the Act when it stated its
position about how it would handle work assignments, but also finding that Respondent did 15
violate the Act when it told Robinson that she was not allowed to ask questions in front of other
employees at team huddle meetings.
As for Case 18–CA–163045, I agree with the General Counsel that Respondent violated
the Act by making unlawful statements to Robinson during her interview with ICU managers, 20
and by constructively denying Robinson a transfer to the ICU.
STATEMENT OF THE CASE
This case was tried in Minneapolis, Minnesota, on February 9–12, 2016. The Service 25
Employees International Union Healthcare Minnesota (the Union) filed the charge in Case 18–
CA–155443 on July 6, 2015,3 and filed amended charges on August 17 and October 9, 2015.
Angel Marie Robinson, an individual, filed the charge in Case 18–CA–163045 on October 15,
2015, and filed an amended charge on December 3, 2015. On October 30, 2015, the General
Counsel issued a complaint in Case 18–CA–155443. On December 4, 2015, the General 30
Counsel issued a consolidated complaint covering both of the cases listed above.
In connection with Case 18–CA–155443, the General Counsel alleged that Respondent
violated Section 8(a)(5) and (1) of the Act by taking the following actions without notifying and
bargaining with, or obtaining the consent of, the Union:35
In about May 2015 and through its agent Crothall Healthcare, unilaterally creating and
posting new positions in the mother-baby birthing center, and thereby modifying Article
14(f) of the collective-bargaining agreement;4
40

3 All dates are in 2015 unless otherwise indicated.
4 As directed in an order granting (in part) Respondent’s motion for a bill of particulars (see GC Exh.
1(o)), the General Counsel clarified that on or about May 18, 2015, Respondent posted four new positions
in the EVS department to cover additional work that resulted from the opening of the new mother-baby
birthing center. (See R. Exh. 24.)
JD–39–16
3
Since about late May 2015 and through its agent Crothall Healthcare, unilaterally failing
to post vacant positions, and thereby modifying Article 18 of the collective-bargaining
agreement;5
Since about late May 2015 and through its agent Crothall Healthcare, unilaterally 5
creating and filling positions by “best fit” rather than using “seniority as far as
practicable and consistent with proper hospital management” or whether the
employee “possesses the necessary capabilities to perform the work,” and thereby
modifying Article 14(f) of the collective-bargaining agreement;
10
Since about late May 2015 and through its agent Crothall Healthcare, unilaterally
changing the employee work weeks of employees in the EVS department, and thereby
modifying Article 14(f) of the collective-bargaining agreement;
In about late May 2015, dealing directly with employees by announcing new positions in 15
the mother-baby birthing center and directly soliciting employees to fill those positions;
In about late May 2015, dealing directly with an employee regarding an open EVS
position; and
20
On or about June 12, 2015, dealing directly with employees at a team huddle meeting by
instructing employees that they should speak with EVS department manager Charles
Stillings if the employees wanted to switch work shifts.
(GC Exhibit (Exh.) 1(g), (q).)25
The General Counsel also alleged in Case 18–CA–155443 that Respondent violated
Section 8(a)(1) of the Act by:
In about late May 2015, threatening an employee that Respondent did not have to include 30
EVS positions in a rebid;
In about early June 2015, threatening an employee that the employee was not allowed to
ask questions in the presence of other employees at team huddle meetings; and
35
On or about June 8, 2015, threatening a union steward (who was also an employee)
that Respondent was going to continue filling open positions by “best fit,” and not
seniority.
(GC Exhibit (Exh.) 1(g), (q).)40

5 As directed in an order granting (in part) Respondent’s motion for a bill of particulars (see GC Exh.
1(o)), the General Counsel clarified that this allegation relates to the following positions/assignments in
the EVS department that Respondent allegedly failed to post: “2 Heart”; evening project worker; float
position; PM turndown position (evening shift, awarded in or around May 2015); mother-baby birthing
center position (day/evening shift, awarded in or around August 2015); and an operating room position
(evening shift, awarded in or around October 2015). (See R. Exh. 24 (referencing GC Exhs. 18–19); R.
Exh. 25.)
JD–39–16
4
In connection with Case 18–CA–163045, the General Counsel alleged that Respondent
violated Section 8(a)(3) and (1) of the Act by, in retaliation for employee Angel Robinson’s
union or other protected activities, engaging in the following misconduct during a job interview
on or about October 13, 2015:5
Threatening that EVS department manager Charles Stillings advised Intensive Care Unit
(ICU) department manager Karen Schulz that Robinson was inappropriate, disrespectful
and not a team player;
10
Threatening that if Robinson obtained a job in the ICU department, Robinson would face
close surveillance by Schulz;
Threatening that if Robinson obtained a job in the ICU department, Robinson would be
disciplined for engaging in Union or other protected concerted activities; and15
Through its misconduct during the interview, constructively denying Robinson a transfer
to a job in the ICU department.
(GC Exh. 1(q).)20
Respondent filed a timely answer (and a timely amended answer) denying the alleged
violations in the consolidated complaint, and asserting (among other affirmative defenses) that
the allegations in Case 18–CA–155443 should have been deferred to the grievance and
arbitration procedure in the collective-bargaining agreement.25
On the entire record,6 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
FINDINGS OF FACT730
I. JURISDICTION
Respondent, a Minnesota corporation with an office and place of business in Coon
Rapids, Minnesota, operates a medical center providing acute-care and clinical health services. 35
During the past fiscal year, Respondent purchased and received goods and services at its Coon
Rapids, Minnesota facility that are valued in excess of $50,000 and came directly from points
outside the State of Minnesota. Respondent admits, and I find, that Respondent is an employer

6 The transcripts and exhibits in this case generally are accurate, but I hereby make the following
corrections to the record: page 12, l. 24: “interest” should be “inference”; page 86, l. 14: “plaintiffs”
should be “parties”; page 129, l. 11: “for” should be “four”; page 138, l. 11: “for” should be “four”; page
258, l. 17: “Paul” should be “Paula”; page 343, l. 19: “member” should be “memory” and page 669, l. 24:
“you” should be “you don’t.”
7 Although I have included several citations in this decision to highlight particular testimony or
exhibits in the evidentiary record, I emphasize that my findings and conclusions are not based solely on
those specific citations, but rather are based on my review and consideration of the entire record for this
case.
JD–39–16
5
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and is a
healthcare institution within the meaning of Section 2(14) of the Act. Respondent also admits,
and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES5
A. The Collective-Bargaining Relationship
Since about 1968, Respondent has recognized the Union as exclusive collective-
bargaining representative of employees in the following appropriate bargaining unit:10
[A]ll full-time and regular part-time nonprofessional employees listed in Appendix C of
the parties most recent collective-bargaining agreement, employed by Respondent at its
Coon Rapids, Minnesota facility, excluding all other employees, office clerical
employees, and guards and supervisors as defined by the Act.15
The Union and Respondent have negotiated and executed successive collective-bargaining
agreements, including a collective-bargaining agreement that is effective from April 16, 2015 to
February 28, 2018. (GC Exhs. 1(q) (pars. 7–8), 1(bb) (pars. 9–10), 2 (Articles 1, 31 and
Appendix C); see also Tr. 33–34, 486, 903.)20
Apart from the dispute in this case, the Union and Respondent have enjoyed a good
working relationship that generally has allowed them, either informally or in connection with the
grievance process, to discuss and often resolve issues of concern as they arise. (Tr. 51, 109–111,
257, 621–623, 632.) 25
To the extent that the need to use the grievance and arbitration procedure arises, Article 7
of the collective-bargaining agreement states as follows:
Any claim of an employee arising out of the interpretation, application, or adherence to 30
the terms or provisions of this Agreement or arising out of disciplinary and discharge
actions taken by [Respondent] shall be subject to the Grievance and Arbitration
Procedure.
(GC Exh. 2 (Article 7).) More generally, Article I of the collective-bargaining agreement 35
recognizes that the Union is the sole representative of all employees in the bargaining unit, and
states:
There shall be no discrimination by the Union or [Respondent] against any employee
because of membership or non-membership in the Union or because of the assertion of 40
rights afforded by [the collective-bargaining agreement]; and
. . .
[Respondent] agrees not to enter into any agreement or contract with its employees who 45
are in classifications covered by [the collective-bargaining agreement], either individually
JD–39–16
6
or collectively, which conflicts with any of the provisions of [the collective-bargaining
agreement].
(GC Exh. 2 (Article I, Sections C–D).)
5
B. September 2013 – Respondent Decides to Reorganize the EVS Department and Establish
New Workweek Schedules
Although the bargaining unit includes a number of different employee classifications, for
the most part, the allegations in this case relate to the EVS department, which provides custodial 10
services throughout the hospital. EVS department employees do not report to the manager of the
hospital unit in which they work (e.g., the mother-baby birthing center, the ICU, etc.), but rather,
report to the manager of the EVS department.
In July 2013, Respondent arranged for Crothall Healthcare (Crothall) to manage the EVS 15
department (before that point, Respondent managed the EVS department directly). Shortly
thereafter, Crothall evaluated the EVS department to identify more efficient and effective ways
to deliver EVS services. Based on its evaluation, Crothall proposed to: reorganize the EVS
department; change the workweek schedules of some EVS employees; and change some EVS
employee duties to better fit the Crothall model. (GC Exh. 4, p. 13–14.) 20
On September 11, 2013, representatives of the Union and Respondent met to discuss the
implementation of Crothall’s plan to reorganize the EVS department. In that meeting, the Union
asserted that based on Article 14(f) of the collective-bargaining agreement, Respondent could
only implement the proposed new workweek schedules if Respondent conducted a “rebid” under 25
which EVS employees would select their schedules by seniority. (GC Exh. 4, p. 15; see also GC
Exh. 2 (stating, in Article 14(f) of the collective-bargaining agreement, that “[i]n the
establishment of workweek schedules, the Hospital shall give preference to employees in
accordance with seniority as far as practicable and consistent with proper hospital
management”).) Initially, Respondent disagreed with the Union, but by the end of the meeting, 30
the Union left with the impression that Respondent agreed to conduct a rebid of EVS workweek
schedules by seniority. (GC Exh. 4, pp. 15–17.)
In a meeting on September 17, 2013, Respondent advised the Union that it would not
conduct a rebid of EVS workweek schedules. Notwithstanding the Union’s objections, 35
Respondent subsequently proceeded to establish new workweek schedules in the EVS
department without following seniority order. (GC Exh. 4, p. 19.)
C. Fall 2013 – the Union Files a Grievance about Respondent’s Decision to Establish
Workweek Schedules in the EVS Department without Regard to Seniority40
On September 24, 2013, the Union filed a grievance to assert that Respondent violated
Articles 14, 16 and 18 of the collective-bargaining agreement when Respondent decided to
assign new job duties and start times to EVS employees without regard to seniority. As a
remedy for the alleged violation, the Union requested that “EVS Members should be allowed to 45
bid on their start times and job duties in seniority order” and should be made whole for any and
all losses. (GC Exh. 3.)
JD–39–16
7
Respondent and the Union agreed to move directly to step 2 of the grievance procedure,
and conducted the step 2 grievance meeting via teleconference on October 14, 2013. On
December 4, 2013, Respondent denied the Union’s grievance, finding that “the union has failed
to establish an agreement was reached [on September 11, 2013] or that [Respondent] was 5
otherwise required to conduct a rebid allowing employees to select assignments by seniority.”
(R. Exh. 3 (p. 2).)
D. March 16, 2015 – Arbitrator Sustains Union’s Fall 2013 Grievance about Workweek
Schedules in the EVS Department10
On March 16, 2015, an arbitrator sustained the Union’s fall 2013 grievance and ordered
Respondent to “establish workweek schedules for [the EVS department] in seniority order and
to make all affected employees whole [for] all lost pay or other contractual benefits.”8 (GC Exh.
4, p. 22.) In reaching that decision, the arbitrator did not rule on whether Respondent violated 15
Article 14(f) of the collective-bargaining agreement when Respondent established new
workweek schedules without regard to seniority as part of the September 2013 reorganization of
the EVS department. Instead, the arbitrator determined that the Union and Respondent reached
an agreement in September 2013 to bid the new workweek schedules in the EVS department by
seniority, and decided that Respondent could not be allowed to renege on or rescind that 20
agreement. The arbitrator declined the Union’s request to apply his decision to any future
disputes. (Id. at 20–22.)
E. The May 15, 2015 Rebid
25
In April 2015, representatives of Respondent and the Union met to discuss how
Respondent would conduct the rebid in the EVS department as directed by the arbitrator. The
Union and Respondent agreed that as part of the rebid process, employees would be able to
select their shift start times and work assignments in seniority order. Respondent asserted,
however, that the rebid would be a one-time-only event based on the arbitrator’s decision, and 30
thus for any future openings Respondent would only post information about the shift and
whether the employee on that shift would be working on a full-time or part- time basis (i.e., the
FTE of the shift), and would not post information about work areas or duties.9 (Tr. 41–42, 87–
89, 133, 627–632; R. Exhs. 5, 37–38.) The Union and Respondent also agreed that although
Respondent planned to add positions in the EVS department for the new mother-baby birthing 35
center, those positions would not be included in the rebid because the new mother-baby birthing
center was not yet open. (Tr. 105–106, 133.)
On May 4, Respondent announced the upcoming rebid by explaining as follows in a
memorandum that was distributed to all EVS department employees:40

8 The arbitration hearing occurred on January 16, 2015. (GC Exh. 4, p. 2.) The record does not
establish why there was a thirteen month delay between the December 4, 2013 step 2 grievance decision
and the arbitration hearing.
9 Although one of the Union’s representatives denied that there was any discussion about the rebid
being a one-time event (see Tr. 42), I have credited the testimony of Respondent’s witness on that point
because her testimony is corroborated by both the Union’s and Respondent’s notes from the April 2015
meetings. (See R. Exhs. 5, 37–38; Tr. 87–89, 627–632.)
JD–39–16
8
As a result of an arbitrator’s decision we will be conducting a re-bid in Environmental
Services in which you will bid on positions with an expected job assignment attached.
This means you will be able to review all the Duty Lists for the department. Then in
order of seniority you will be able to choose the Duty List (assignment) that is of interest 5
to you. This will become your primary assignment, where you would be regularly
scheduled. There may be an occasion where you could be pulled to another area based
on ill calls, vacations, LOAs or open positions, similar to our current process.
. . .10
You may not increase or decrease your FTE during this bid process. You may take any
position, on any shift, that is available when you bid – it just has to be the same FTE as
you currently are.
15
. . .
All changes will be effective on the schedule that begins June 13, 2015, unless otherwise
agreed between the employee and the manager.
20
(GC Exh. 12 (emphasis in original); Tr. 133–134.)
As scheduled, EVS department employees participated in the rebid on May 15, with each
employee appearing at a predetermined time and selecting a shift and work assignment in
seniority order. Through the rebid process, several employees received different shifts or work 25
assignments because more senior employees in the department bumped them from their previous
shifts or assignments. (Tr. 42–43, 132, 135–140, 178, 221–222, 291–292, 395–396, 407, 418–
419, 633, 784; GC Exhs. 5, 13.)
F. Respondent’s Handling of Job Vacancies, Job Postings and Work Assignments after the May 30
15, 2015 Rebid
In the days and months after the May 2015 rebid, the Union became concerned that
Respondent was handling job vacancies, job postings and changes to work assignments in a
manner that violated the collective-bargaining agreement. Article 14(f) of the collective-35
bargaining agreement states, in pertinent part:
Seniority Preference: In the establishment of workweek schedules, the Hospital shall
give preference to employees in accordance with seniority as far as practicable and
consistent with proper hospital management. The Union will be notified and given an 40
opportunity to discuss new or changing workweek schedules with the Employer prior to
implementation.
(GC Exh. 2 (Article 14(f) (emphasis in original).) Article 18 of the collective-bargaining
agreement, meanwhile, states as follows, in pertinent part:45
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9
Job Vacancies: Vacancies or new positions shall be awarded to the senior employee
applicant where the employee currently possesses the necessary capabilities to perform
the work. Qualifications for the job shall be posted by the Employer, and the posting
shall include the shift and number of hours for the position. . . .
5
(1) Posting of Vacancies: All job vacancies within the bargaining unit shall be
posted by the Employer for seven (7) calendar days in a manner and/or in
locations accessible and visible to all Employees. Job vacancies shall be posted in
the department where the vacancy exists. Postings shall include the following
information:10
a. Minimum qualifications based on the job requirements.
b. Classification, facility, FTE status, shift, department, and starting
wage.
c. The date of the posting15
(GC Exh. 2 (Article 18) (emphasis in original).)
Respondent took the following actions (among others) in the EVS department in 2015,
after the May 15 rebid: 20
1. On or about May 18, Respondent created four new positions in the EVS department:
one part-time position on the day shift (FTE 0.5 – posting 10488BR); two full-time
positions on the day shift (FTE 1.0 – posting 9736BR);10 and one full-time position on
the evening shift (FTE 1.0 – posting 9755BR). In or about late May 2015, 25
Respondent, through Stillings, advised employees in a team huddle meeting11 that the
work assignments for those positions would be in the mother-baby birthing center.
When Robinson asked why the positions were not included in the May 15 rebid,
Stillings replied that the new positions did not have to be included in the rebid
because the new building for the mother-baby birthing center was not open yet. (Tr. 30
178–181, 293–294, 434–435, 785; GC Exh. 28(z); see also Tr. 294 (explaining that
while the new mother-baby birthing center was not yet open for business, EVS
employees were doing some work there to clean up sheetrock dust); GC Exh. 37, p.
23 (table of information, including a description of expected job duties, that Stillings
sent to the recruiters before the new positions were approved and formally posted); 35
Tr. 459–464 (discussing GC Exh. 37); Findings of Fact (FOF), Section II(E) (noting

10 Although there were two full-time positions on the day shift, the positions shared a single posting
number (9736BR). Recruiters who handle these postings for Respondent describe this posting practice as
“funneling,” where a single posting number covers more than one position. One advantage of funneling
is that employees only need to apply for one posting number to be considered for multiple positions. On
the other hand, one disadvantage of funneling is that employees may not know when a single posting
covers multiple positions. (Tr. 534–536, 559–560, 586–587.)
11 Team huddle meetings are staff meetings in the EVS department, at which an EVS department
manager and/or EVS department supervisor notifies employees about the work to expect in the hospital
for the day, and makes other work-related announcements. Team huddle meetings generally last for 5–15
minutes, and are held in the break room. Employees may ask questions in team huddle meetings. (Tr.
135, 142–143, 227, 423–424, 442–444, 801.)
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10
that the Union and Respondent agreed that the new positions in the mother-baby
birthing center would not be included in the May 15 rebid).)12
2. In or about late May 2015, Robinson asked supervisor Chandica “Rudy” Hanuman
during a team huddle meeting about what kind of work employees would do in the 5
new positions that Respondent posted on May 18 for the EVS department. Hanuman
responded that he thought Stillings already told Robinson that information. Later in
the shift, Stillings “beeped” Robinson, who responded by calling Stillings on the
telephone. The following discussion occurred:
10
Stillings: I heard that you were inquiring about the mother-baby jobs again
in the huddle. I thought I already told you that those are mother-
baby jobs.
Robinson: Yes. Not just me, but other people wanted to know what exactly 15
the job was going to be before they apply for it.
Stillings: Well, if you have questions, you can only ask for yourself and you
need to come to my office and ask me.
20
(Tr. 295–296.)13
3. On or about May 18, employee Elona Decker applied for a full-time evening position
in the EVS department (posting 9755BR). Through Stillings, Respondent advised
employees that the position came with a work assignment that would be in the new 25
mother-baby birthing center. In late May 2015, Stillings notified Decker that she was
the senior applicant for the evening position, and offered Decker the opportunity to
take a “PM Turndown” and “public areas” work assignment in the EVS department
(instead of a work assignment doing discharges). The PM Turndown/public areas
work assignment was not posted or offered to other employees (based on seniority or30
otherwise). (Tr. 222–226, 293, 430–432, 800–801, 827–828; GC Exhs. 26, 28(z).)
Robinson also applied for position 9755BR and had more seniority than Decker, but
Respondent did not consider Robinson for position 9755BR because Robinson

12 Stillings did not rebut Robinson’s testimony on this point. (See Tr. 800 (Stillings testimony
limited to saying that he did not “threaten” any employees during a late-May meeting or recall any
employee at the meeting asking about rebidding EVS positions).)
13 I did not credit Stillings’ testimony about this team huddle meeting or his remarks to Robinson
after the meeting. Regarding the meeting itself, Stillings admitted that he was not present until the “tail
end” of the meeting. Based on that admission, I find that Stillings was not in a position to hear the
complete exchange between Hanuman and Robinson. (Tr. 801–802.)
As for what Stillings said to Robinson after the team huddle meeting, Stillings testified that he merely
repeated Hanuman’s suggestion that Robinson speak with Stillings if she had any questions about the
mother-baby center work assignments. (Tr. 803.) That testimony does not ring true because if Stillings
heard Hanuman tell Robinson she should present her questions to Stillings (as Stillings asserted at Tr.
802), there was no need for Stillings to repeat that basic suggestion to Robinson after the meeting. By
contrast, it is more believable that Stillings contacted Robinson after the meeting to tell her to stop asking
questions in team huddle meetings about the new positions in the mother-baby birthing center.
JD–39–16
11
already held a full-time evening shift position in the EVS department.14 To the extent
that Robinson (or any other employee) desired a different work assignment on their
same shift, Respondent advised the employees to speak to Stillings, who could place
employees in different work assignments based on “best fit.” (Tr. 292, 296–299,
301–302, 791–794; GC Exh. 21.)5
4. In late May 2015, Respondent allowed employee Marichu Harris to take a work
assignment as an evening project worker (after employee Karen Cullen left that work
assignment), without posting the evening project worker assignment or filling the
work assignment in seniority order. (Tr. 178–179, 182, 304–305, 787, 789–791, 822–10
823; see also Tr. 619–620, 667–669 (noting that later, Respondent decided to post the
project worker assignment because it realized that there is language in the collective-
bargaining agreement that requires Respondent to fill that assignment by seniority);
GC Exh. 2, p. 111 (Appendix C of the collective-bargaining agreement, regarding
filling permanent project worker assignments by seniority).)15
5. On or about June 8, Stillings told union stewards Karen Cullen and Rita Matthews
that Respondent could place employees in work assignments, or switch employee
work assignments, based on best fit (for the position and/or for the hospital). (Tr.
152–154; see also Tr. 112–114 (noting that Cullen is both an employee and a union 20
steward); 483–484 (Stillings testimony that Respondent uses “best fit” when making
work assignment decisions); 634 (director of human resources Nancy Watson
reiterated to Matthews that Respondent would not post work assignments).)
6. On or about June 12, Stillings advised employees in a team huddle meeting that if 25
they were not happy with their positions/work assignments, they should speak to him
because he would try to move people to make them more content with their area. (Tr.
303; see also Tr. 395, 421, 424–425, 466–467, 470–472, 815–816, 819–820, 839–
840.)
30
7. In or about mid June 2015, Robinson advised Stillings that she was interested in the
“2 Heart” work assignment, which Robinson believed would become available if
Marichu Harris took the evening project worker assignment. Stillings responded that
employee Patricia Wagner had the 2 Heart assignment.15 When Robinson objected
that Respondent did not post the 2 Heart assignment, and that she (Robinson) had 35
more seniority than Wagner, Stillings advised Robinson to talk to Wagner about the
issue. Robinson followed Stillings’ suggestion, and Wagner reluctantly agreed to
switch work assignments with Robinson after Robinson stated that she would file a
grievance if she did not receive the 2 Heart assignment.16 Stillings approved the

14 Robinson and Stillings disagree about what was said when they spoke about position 9755BR, but
that disagreement is not material to my analysis. (Compare Tr. 300 with Tr. 792–794.)
15 Stillings called Wagner to his office and offered her the 2 Heart assignment because Marichu
Harris was on vacation. Wagner had not applied for or requested the 2 Heart work assignment. Stillings
told Wagner that when Harris returned, they all could discuss who would be doing which work
assignment. Wagner accepted Stillings’ offer. (Tr. 421–422, 436–438.)
16 I note that contrary to Robinson and Wagner, Stillings testified that he gave Robinson the 2 Heart
work assignment directly (i.e., without first giving it to Wagner), and then a couple of days later gave the
JD–39–16
12
changes to Robinson’s and Wagner’s work assignments, and thus Robinson began
working on 2 Heart, and Wagner began working in the basement (both of which were
during the evening shift). (Tr. 304–308, 422–423, 438, 442, 448–449, 794–795; see
also GC Exhs. 18–19, 30; Tr. 154.)
5
8. In fall 2015, Stillings and Hanuman approached EVS department employee Lizzie
Johnson and asked her if she would be interested in switching to a day shift
assignment in the mother-baby birthing center (Cullen was vacating that
position/assignment). Johnson, who was in a daytime floater/relief assignment that
she selected in the May 2015 rebid, said she would think about it. A few days later, 10
Hanuman again asked Johnson if she wanted to switch to the mother-baby birthing
center assignment, and Johnson agreed. Respondent did not post the work
assignment that it offered to Johnson. (Tr. 396–398, 407–410; GC Exh. 5.) Later in
fall 2015, Johnson requested two different work assignments on the day shift.
Respondent, however, gave the work assignments to employees who had less 15
seniority than Johnson. (Tr. 399–402, 410–411.)
9. In October 2015, Stillings contacted employee Patricia Wagner and asked if she
would be interested in taking an operating room work assignment if one became
available. When Wagner asked if she was the most senior person and would have to 20
apply for the work assignment, Stillings responded that it shouldn’t be a problem to
put Wagner in the assignment, and that he would contact Wagner if and when the
assignment opened up. Two weeks later, Stillings contacted Wagner again and
offered her the operating room work assignment. Wagner accepted the assignment
after Stillings assured her that he could put her in the assignment regardless of 25
seniority. (Tr. 419–421, 439, 449–450, 807.)
The Union maintains that Respondent violated Articles 14(f) and 18 of the collective-bargaining
agreement and/or past practice when Respondent took the actions listed above. Respondent, on
the other hand, maintains that the collective-bargaining agreement and past practice do not 30
require Respondent to follow seniority order when changing employee work assignments in the
EVS department (as opposed to when changing employee workweek schedules or filling vacant
shifts/positions, when seniority preference applies). To resolve this dispute, on June 9, 2015, the
Union filed a grievance and asserted that Respondent was making job assignments in violation of
the collective-bargaining agreement and the March 2015 arbitration award. Respondent denied 35
the Union’s grievance at both step 1 and step 2 of the grievance and arbitration procedure. (Tr.
44-45, 47–48; GC Exhs. 6–8 (June 9, 2015 grievance; June 30, 2015 step 1 grievance denial;

basement assignment to Wagner. (See Tr. 794, 797–799.) I have credited Wagner’s and Robinson’s
accounts because they corroborated each other by testifying that Wagner received the 2 Heart assignment
from Stillings, and then relinquished it after Robinson told Wagner that she (Robinson) had more
seniority and would file a grievance if she did not get the 2 Heart assignment. It stands to reason that
such a confrontation was memorable for both Robinson and Wagner – indeed, Wagner remained cautious
about seniority issues in October 2015, when Stillings contacted her about taking an operating room work
assignment. Ultimately, however, this conflict in testimony may not be material – under either Stillings’
or Robinson’s/Wagner’s scenario, the fact remains that Respondent did not post either the 2 Heart or the
basement work assignment (or take any other steps) to ensure that it made the assignments based on
seniority order.
JD–39–16
13
September 1, 2015 step 2 grievance denial).) While the grievance was pending, the Union also
filed an unfair labor practice charge concerning Respondent’s handling of job assignments. (GC
Exh. 1(a) (unfair labor practice charge filed on July 6, 2015).)
G. Angel Robinson – Employment and Disciplinary Background5
Angel Robinson began working for Respondent in the EVS department in September
2006, and became a member of the Union at that time. Although Robinson did not have an
official role with the Union (e.g., as a steward), Robinson took a somewhat active role in
expressing concerns (in team huddle meetings and by email) to Crothall Healthcare management 10
about various changes that Crothall made after it began managing the EVS department in 2013.
(Tr. 277, 279–280, 286.)
In or about late 2013, EVS department manager Chase Giboney17 requested a meeting
with Robinson. Two union stewards accompanied Robinson to the meeting, and Stillings also 15
attended for Respondent. At the meeting, Giboney advised Robinson that he believed Robinson
was being disrespectful at huddles by asking too many questions, rolling her eyes, not giving eye
contact, sitting with her arms crossed, and breathing heavily. Robinson was not disciplined for
her alleged misconduct. (Tr. 289–291.)
20
On September 15, 2014, Robinson received a “Level 1 conversation” for taking too much
time to complete certain cleaning duties on September 1, and for not completing some of her job
duties on September 4 (and neglecting to tell the patient flow coordinator about the job duties
that she did not complete). (R. Exh. 17.)
25
In a performance review that Robinson received on October 14, 2014, Respondent noted
that Robinson was one of the better cleaners in the EVS department. Respondent stated,
however, that Robinson needed to improve her attendance, as well as “her communication with
supervisors, and her acceptance of direction and constructive criticism.” (R. Exh. 16.)
30
On June 30, 2015, Robinson received a “Level 1 conversation” for having eight
unscheduled absences in the preceding five months. The level 1 conversation remained active in
until December 29, 2015. (R. Exh. 20; see also Tr. 681 (noting that a Level 1 corrective action
for attendance is pretty common for employees); Union Exh. 8 (explaining that a Level 1
conversation will not be included in an employee’s personnel file, cannot be used in later 35
corrective actions, and does not lead to a formal corrective action plan).)
H. August 2015 – Robinson Transfers to a Certified Nursing Assistant (CNA) Position
in the Family Care Unit
40
In August 2015, Robinson transferred to a 0.6 FTE day/evening position as a CNA in the
Family Care Unit.18 To obtain that position, Robinson applied on the Allina Knowledge

17 Giboney served as the EVS department manager from approximately July 2013 to January 2015.
Stillings was an EVS department supervisor in that timeframe. In or about January 2015, Stillings took
over as the EVS department manager. (Tr. 456, 460, 766, 810.)
18 Although she was leaving the EVS department, Robinson asked Stillings if she could remain a
JD–39–16
14
Network (AKN), Respondent’s internet-based system for posting vacancies. When a recruiter
determined that Robinson was the most senior internal applicant for the position, the recruiter
scheduled a “meet and greet” interview with Michelle Haaland, the patient care manager of the
Family Care Unit. Although Robinson essentially was guaranteed the CNA position based on
seniority, the meet and greet interview served the purpose of enabling Haaland and Robinson to 5
get acquainted and discuss the specific job duties that Robinson would perform if Robinson
accepted the position.19 (Tr. 308–310, 670–674.) Before the interview, Haaland (consistent with
her usual practice) spoke briefly with Robinson’s manager (Stillings) to advise him that
Robinson had applied for the CNA position, and to ask if there was anything she should know
about Robinson. Stillings advised Haaland that Robinson had some performance and attendance 10
issues.20 (Tr. 673–675, 679–681.)
Haaland and Robinson conducted the meet and greet interview as scheduled. During
their 10–minute conversation, Haaland did not speak with Robinson about her specific
attendance issues, but did discuss the attendance process and advise Robinson that she (Haaland) 15
follows and enforces Respondent’s attendance policies. Robinson and Haaland also discussed
scheduling, and Robinson left the interview with the impression that she would generally work
more evenings during the week, and work day shifts on the weekends. (Tr. 310–311, 675–676.)
Later, Robinson accepted the CNA position in the Family Care Unit. (Tr. 676.)
20
For the most part, Robinson worked in the Family Care Unit without incident. However,
Robinson did receive a “Level 2 verbal warning” on October 19 due to additional unscheduled
absences in September.21 (R. Exh. 21; Tr. 355, 677.) In addition, Robinson was disappointed to
learn that she was assigned to work more day shifts each week than she expected. (Tr. 311, 676.)
25
I. October 2015 – Robinson Interviews for a CNA Position in the Intensive Care Unit (ICU)
In light of her unhappiness with working day shifts more often than expected, Robinson
became interested in considering other CNA positions at the hospital. Accordingly, when a
recruiter notified Robinson that she was the most senior applicant for a 0.5 FTE evening position 30
in the ICU that she had applied for, Robinson responded that she was still interested in the
position and asked the recruiter to set up a meet and greet interview with ICU manager Karen
Schulz. (Tr. 311, 356, 713.)

“casual” EVS employee, which would enable her to work an occasional shift in the EVS department if the
EVS department needed someone. Stillings agreed. (Tr. 354; R. Exh. 23.) There is no evidence that
Stillings subsequently called Robinson in to work a shift in the EVS department as a casual employee.
19 Meet and greet interviews are customarily used when the most senior applicant does not work in
the department where the position is located. If the most senior applicant for a position already works in
the department, the manager will initiate a more informal discussion to simply confirm whether the
applicant desires the position. (Tr. 673, 711–712.)
20 Although Stillings testified as a witness during trial, none of the parties asked him what he told
Haaland when Haaland asked if there was anything she should know about Robinson.
21 There is no evidence that Respondent prepared a corrective action plan in connection with the
October 19 verbal warning. (See R. Exh. 21; compare Union Exh. 8 (stating that a level 2 verbal warning
“will be used for purposes of establishing a corrective action plan”).)
JD–39–16
15
Before the meet and greet with Robinson, Schulz (consistent with her usual practice)
notified Robinson’s current manager (Haaland) that Robinson had applied for a CNA position in
the ICU. Haaland advised Schulz that since Robinson was new to the Family Care Unit, Haaland
did not know much about Robinson but had not had any specific performance problems with her.
Haaland also noted that she understood Robinson had some performance issues and a corrective 5
action for attendance when Robinson was in the EVS department. Haaland suggested that
Schulz contact Stillings for more information about those issues.22 (Tr. 677–679, 686–687, 712;
see also Tr. 712–713 (explaining that Schulz normally contacts the job applicant’s current
manager because she wants to find out if the manager has any concerns and find out if the
employee is on current corrective action, and then discuss those with the applicant so “they know 10
what the position in the ICU is and they know what my expectations are”).
When Schulz contacted Stillings about Robinson and asked if he had any concerns,
Stillings responded that Robinson had received a Level 1 conversation for attendance as well as
some disciplinary action, and that there had also been issues with Robinson’s performance and 15
behavior. Based on what Schulz learned from Stillings, Schulz had concerns about Robinson as
an applicant to join the ICU because Schulz believed that “[t]hose are serious issues when
somebody . . . is in corrective action and [has] received discipline in the past.” (Tr. 714–715,
722–724; see also GC Exh. 42 (October 26, 2015 email that Stillings sent about EVS staffing, in
which he stated: “Within the last 2 months, we lost 8 individuals through terms, resignations, and 20
transfer to other departments and plan on losing 2 more to transfers. These individuals have had
several conversations with EVS leadership about their negative behaviors and rumor spread[ing]
that essentially poisoned the department”).)23 Schulz advised ICU patient care supervisor Pamela

22 I have not credited Schulz’ testimony that Haaland also advised her that Robinson: (a) had a more
recent attendance occurrence and would be receiving a Level 2 verbal warning; and (b) had some issues
with attitude (while in the Family Care Unit) that led to a conversation; and (c) had some disciplinary
issues while she worked in the EVS department. (See Tr. 713–714.) Haaland did not corroborate any of
these statements when she testified.
I found Haaland to be credible regarding her account of what she told Schulz about Robinson.
Haaland essentially testified that she only gave a brief and narrow description of Robinson and her track
record at the hospital. The circumspect description that Haaland provided to Schulz about Robinson is
fully consistent with the fact that Haaland acknowledged that she did not know Robinson very well
because Robinson was new to the Family Care Unit, and with the fact that Haaland suggested that Schulz
contact Stillings for more information.
23 No one asked Stillings what he said to Schulz in this conversation about Robinson, even though
Stillings testified as a witness at trial. However, I do find that the October 26 email (GC Exh. 42) sheds
light on Stillings’ frame of mind about Robinson (one of the employees who transferred from the EVS
department) when he spoke to Schulz approximately two weeks earlier.
I note here that I have considered Respondent’s argument that Stillings did not harbor animus towards
Robinson, as shown by the fact that he agreed to Robinson’s request to be a “casual” employee in the
EVS department, and the fact that he did not undercut Robinson’s transfers to CNA positions in the
Family Care Unit and (later) the Operating Room. (See R. Posttrial Br. at 35–36, 47–48, 63–64.)
Respondent’s argument, however, presumes that I must find that Stillings took every opportunity to act on
whatever animus he held towards Robinson. To the contrary, it is plausible that Stillings was willing to
have Robinson work in the EVS department once in awhile as a casual employee if that need arose. It is
also plausible that Stillings had different conversations about Robinson with the managers of the Family
Care Unit (Haaland), the ICU (Schulz) and the OR (Dooher), depending on what those managers asked
and how much detail they requested about Robinson’s time in the EVS department.
JD–39–16
16
Sandberg that Robinson’s former managers indicated that Robinson had some performance and
attendance issues. (Tr. 685, 688, 700.)
On October 13, Robinson met with Schulz and Sandberg for the meet and greet
interview. Initially, Schulz used an interview sheet to ask Robinson a series of questions about 5
topics such as Robinson’s work history and experience, why Robinson wanted to come to the
ICU, and how Robinson manages a busy work load. Sandberg then described the job duties that
Robinson would be expected to perform as a CNA in the ICU, which included being in charge of
several patient rooms, assisting patients with self care, and stocking supplies. When Robinson
remarked that the job duties seemed liked a lot, or even too much, for one CNA, Sandberg 10
confirmed that the work load was significant and that CNAs have to hustle through the whole
shift to get their work done. (Tr. 311–315, 689–690, 693, 715–717; see also R. Exhs. 39, 41.)
A few moments later in the interview, Schulz described the ICU and her expectations for
its staff. As part of that discussion, Schulz emphasized the importance of attitude, 15
professionalism, teamwork and fulfilling the commitment to care, particularly in light of the
complex level of care that ICU patients require. Schulz then asserted that she was aware of
Robinson’s attendance, discipline and behavior issues, and stated that she (Schulz) had some
major concerns because Stillings told her that Robinson was inappropriate, rude and
disrespectful, and was not a team player. After Robinson responded that she was not like Schulz 20
described and asserted that her absences should have been covered by the Family Medical Leave
Act (FMLA), Schulz advised that she was relying on what she had been told, and would continue
to monitor the issues closely and go right to corrective action if she found Robinson to be rude,
disrespectful, inappropriate, tardy or absent in the ICU.24 (Tr. 315–318, 357–358, 368, 691–692,

24 I did not credit certain portions of Schulz’ and Sandberg’s testimony about the meet and greet
interview with Robinson and about what Stillings told Schulz about Robinson. First, both Schulz and
Sandberg maintained that Schulz did not tell Robinson that Stillings described her as inappropriate, rude,
disrespectful and not a team player. (Tr. 694, 719.) I do not find that testimony to be credible. Schulz
admitted that Stillings told her Robinson had behavior issues in the EVS department (see Tr. 722–723).
Given Schulz’ expectations for ICU staff, I do not believe that Schulz would have accepted Stillings’
report without asking for information about the nature of Robinson’s alleged behavior issues. Instead, it
stands to reason that Schulz requested more detail about Robinson’s behavior, and then (per her usual
practice) confronted Robinson with that information in the interview. (See R. Exh. 41 (Schulz’ notes
from Robinson’s interview, indicating that Schulz raised the issue of Robinson having received “previous
discussions regarding performance and behavior”). To the extent that Sandberg attempted to support
Schulz in her denial, I did not credit that testimony because it was not consistent with the evidence, and
because Sandberg was at the interview (her first for a CNA position) in a supporting role, and thus
deferred to Schulz on these issues. (See Tr. 693. 703; see also R. Exh. 39 (Sandberg’s interview notes,
which omit the fact that Schulz spoke to Robinson about prior behavior issues).)
Second, I did not credit Schulz’ and Sandberg’s testimony that when they spoke to Robinson about
monitoring her attendance, they were simply telling her that they monitor the attendance of all ICU staff
closely. (Tr. 694, 702, 723.) Sandberg’s interview notes contradict that testimony by indicating that
Schulz told Robinson “[w]e are aware of your attendance issues and disciplinary path. We will continue
to monitor closely.” (R. Exh. 39.) Based on those notes, the message was clear that Robinson’s
attendance was a point of concern, as opposed to a more general message that Respondent tracks all staff
attendance. Indeed, when Schulz and Sandberg later interviewed employee H.H. for the CNA position,
they did not bother to discuss attendance at all because H.H.’s manager did not report any concerns about
H.H.’s attendance. (See fn. 25, infra.)
JD–39–16
17
694, 699–700, 717–719; R. Exhs. 39, 41; see also Tr. 709 (Schulz testimony that teamwork in
the ICU is very important to her because the ICU cares for critically ill patients).) After the
interview ended, Robinson notified the Union about her experience in the interview. When the
recruiter called a few days later to offer Robinson the position in the ICU (based on seniority),
Robinson declined the position because of her experience in the interview and her conclusion 5
that she could never work for someone like Schulz.25 (Tr. 249, 318–321, 368–369, 696–697,
720, 731; R. Exh. 43(a), (c).)
J. October 2015 – Robinson Interviews for a CNA Position in the Operating Room
10
After Robinson declined the CNA position in the ICU, the recruiter advised Robinson
that she was the most senior applicant for a 1.0 FTE day/evening CNA position in the operating
room. Accordingly, Robinson scheduled a meet and greet interview with operating room
manager David Dooher. (Tr. 321, 358–359, 734, 738–739; R. Exhs. 43(a), 43(c).)
15
Before the meet and greet interview, Dooher (consistent with his usual practice)
contacted Haaland to find out if Robinson had any outstanding corrective actions in her file.
Haaland generally provided Dooher with the same information that she provided to Schulz,
stating that Robinson was a good employee but had received a corrective action for attendance.
(Tr. 677–679, 738.)20
On or about October 20, Robinson met with Dooher for their meet and greet interview.
Dooher explained that although Robinson was applying for a CNA position, CNAs in the
operating room primarily cleaned and stocked the operating room, and transported patients and
items to and from the operating room. Since Robinson (like other operating room CNAs) would 25
not be doing much direct patient practice if she accepted the operating room position, Dooher
explained that Robinson likely would not be able to maintain her certification after one year
unless she worked overtime in another unit that offered direct patient practice. Finally, Dooher
noted that to the extent that Robinson had a Level 2 verbal warning for attendance on her record,
that disciplinary process would continue, but would not have an effect on his hiring Robinson. 30
Robinson told Dooher that she wanted to think things over before deciding whether to take the
CNA position in the operating room. (Tr. 322, 363, 369–371, 739–741; R. Exh. 14.)

And third, I did not give any weight to Schulz’ and Sandberg’s testimony that Schulz did not tell
Robinson she would be watching her closely and would impose discipline if Robinson engaged in any
union or protected activities. (Tr. 694, 719.) I do not doubt that Schulz did not explicitly use the terms
“union or protected activities” when she spoke to Robinson. That narrow denial, however, is beside the
point. The question remains as to whether Respondent violated the Act when Schulz confronted
Robinson with Stillings’ assessment that Robinson was disrespectful, rude, inappropriate and not a team
player, and stated that she (Schulz) would continue to monitor that issue (and others) closely and would
take corrective action if Robinson engaged in similar behavior in the ICU.
25 A few days later, Schulz and Sandberg interviewed employee H.H., who was the next most senior
applicant for the CNA position in the ICU. H.H.’s current manager did not report any concerns about
H.H.’s behavior, performance or attendance, and thus Schulz and Sandberg did not discuss those issues in
H.H.’s interview. H.H. subsequently was offered and accepted the CNA position in the ICU. (Tr. 697–
698, 702–703, 720–721; R. Exhs. 40, 42.)
JD–39–16
18
After the meet and greet with Dooher, Robinson was concerned about the prospect of not
being able to maintain her certification, which she had only recently obtained. Robinson voiced
her concerns about that issue to the Union and to the recruiter, but ultimately decided to accept
the CNA position in the operating room when the recruiter contacted Robinson a couple of days
after the interview. (Tr. 277, 367, 740–741; R. Exhs. 14, 43(a)–(b).)5
DISCUSSION AND ANALYSIS
A. Witness Credibility
10
A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole. Farm Fresh Co., Target One, LLC, 361 NLRB No. 83, slip op. at 13–14
(2014); see also Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022 (2006) (noting that 15
an administrative law judge may draw an adverse inference from a party’s failure to call a
witness who may reasonably be assumed to be favorably disposed to a party, and who could
reasonably be expected to corroborate its version of events, particularly when the witness is the
party’s agent). Credibility findings need not be all-or-nothing propositions — indeed, nothing is
more common in all kinds of judicial decisions than to believe some, but not all, of a witness’ 20
testimony. Farm Fresh Co., Target One, LLC, 361 NLRB No. 83, slip op. at 14. To the extent
that I have made them, my credibility findings are set forth above in the findings of fact for this
decision.
B. Respondent’s Request that the Dispute in Case 18–CA–15544325
be Deferred to Arbitration
1. Background
On December 23, 2015, Respondent filed a motion to sever Case 18–CA–155443 from 30
the consolidated complaint and defer those allegations to arbitration under the grievance and
arbitration procedure set forth in the collective-bargaining agreement. (GC Exh. 1(t)–(u) (motion
and memorandum of law).) The General Counsel opposed Respondent’s motion. (GC Exh.
1(v).) After conducting a conference call regarding the parties’ positions on Respondent’s
motion, on January 7, 2016, Deputy Chief Administrative Law Judge Arthur Amchan denied 35
Respondent’s motion to sever and defer Case 18–CA–155443. (GC Exh. 1(x).)
On January 12, 2016, Respondent filed a request for special permission to appeal Judge
Amchan’s January 7, 2016 order. (GC Exh. 1(z).) The General Counsel opposed Respondent’s
request. (GC Exh. 1(aa).) On February 9, 2016, the Board issued an order denying 40
Respondent’s request for special permission to appeal Judge Amchan’s order, finding that
Respondent failed to establish that Judge Amchan abused his discretion in denying Respondent’s
motion.26

26 In a footnote to the Board’s February 9, 2016 order, Board Member Miscimarra noted that the
Board’s ruling was “without prejudice to the parties’ right to continue litigating the appropriateness of
deferral to arbitration regarding claims addressed in the hearing.”
JD–39–16
19
During trial and in its posttrial brief, Respondent renewed its request that Case 18–CA–
155443 be severed and deferred to arbitration. (Tr. 24–27, 30–31, 514–517; R. Posttrial Br. at
42–60.) The General Counsel (and the Union) oppose Respondent’s request.
5
2. Applicable legal standard for pre-arbitration deferral
It is well established that before considering the merits of the allegations in the
complaint, I first must resolve the threshold issue of whether the Board should defer the dispute
to the grievance-arbitration procedure set forth in the collective-bargaining agreement. St. 10
Francis Regional Medical Center, 363 NLRB No. 69, slip op. at 17 (2015); United Hoisting &
Scaffolding, Inc., 360 NLRB No. 137, slip op. at 4 (2014); see also Collyer Insulated Wire, 192
NLRB 837 (1971) (articulating the Board’s rationale for pre-arbitration deferral).
On December 15, 2014, the Board determined that it will not defer Section 8(a)(3) or 15
8(a)(1) allegations to the arbitral process “unless the parties have explicitly authorized the
arbitrator to decide the unfair labor practice issue, either in the collective-bargaining agreement
or by agreement of the parties in a particular case.” Babcock & Wilcox Construction Co., 361
NLRB No. 132, slip op. at 12–13 (2014). The Board held that this new standard would only
apply prospectively, and thus would not apply to contracts existing at the time of its decision. Id. 20
at 13–14; see also Babcock & Wilcox Nuclear Operations Group, Inc., 363 NLRB No. 50, slip
op. at 2 fn. 1 (2015).
If that initial question is satisfied, and/or if the allegations in the dispute are Section
8(a)(5) allegations, the Board considers six factors in deciding whether to defer a dispute to 25
arbitration:
(1) whether the dispute arose within the confines of a long and productive collective-
bargaining relationship;
(2) whether there is a claim of employer animosity to the employees’ exercise of 30
protected rights;
(3) whether the agreement provides for arbitration in a very broad range of disputes;
(4) whether the arbitration clause clearly encompasses the dispute at issue;
(5) whether the employer asserts its willingness to resort to arbitration for the dispute;
and35
(6) whether the dispute is eminently well-suited to resolution by arbitration.
St. Francis Regional Medical Center, 363 NLRB No. 69, slip op. at 17 (citing San Juan Bautista
Medical Center, 356 NLRB 736, 737 (2011); see also Babcock & Wilcox Construction Co., 361
NLRB No. 132, slip op. at 1 fn. 2 (noting that the Board did not address the standard for deferral 40
in Section 8(a)(5) cases).
3. Overview of the dispute in Case 18–CA–155443
Under Article 14(f) of the collective-bargaining agreement, Respondent “shall give 45
preference to employees in accordance with seniority as far as practicable and consistent with
proper hospital management” when establishing workweek schedules. (FOF, Section F.) Most
JD–39–16
20
of the dispute underlying Case 18–CA–155443 arises from the interpretation of Article 14(f), and
whether it (or past practice) requires Respondent to follow seniority order when making work
assignments to employees in the EVS department. Specifically, for several allegations, the
General Counsel asserts that Respondent violated the Act by unilaterally creating, posting and/or
filling “positions” in the EVS department without following seniority. (See GC Exh. 1(g) (pars. 5
10(a), 10(c)–(d)).) Respondent, however, maintains that the “positions” in question were merely
work assignments, and thus were not subject to the seniority requirements of Article 14(f).
The complaint also includes allegations that implicate Article 18 of the collective-
bargaining agreement. Under Article 18 of the collective-bargaining agreement, Respondent 10
(among other requirements) must post job vacancies for seven days, and must award vacancies
or new positions to the senior employee applicant if that employee has the necessary capabilities
to perform the work. (FOF, Section F.) The General Counsel alleges that Respondent did not
comply with Article 18 because Respondent did not post vacant work assignments in the EVS
department, and also filled those work assignments by “best fit,” instead of awarding them to the 15
most senior employee applicant capable of performing the work. (GC Exh. 1(g) (par. 10(b)–(c))
(alleging that Respondent violated both Article 14(f) and Article 18 by handling vacant work
assignments in this manner).) The merits of the General Counsel’s allegation turn on whether
vacant work assignments in the EVS department qualify as vacant “positions” that are subject to
the requirements of Article 18 (as well as Article 14(f), as discussed above).20
The General Counsel also alleges (as a separate, but related theory of liability) that
Respondent failed to comply with the terms of Article 18 of the collective-bargaining agreement
when it combined, or “funneled,” multiple job vacancies in the EVS department into a single job
posting. (GC Exh. 1(g) (par. 10(b)).) That allegation requires an interpretation of the extent of 25
Respondent’s obligation to post vacancies under Article 18 – specifically, if Respondent has
multiple vacancies for the same job title (e.g., environmental services aide), is it sufficient to post
one announcement that covers multiple vacancies, or must Respondent post an announcement for
each vacancy?
30
The direct dealing allegations in the complaint arise from the parties’ dispute about the
meaning of Articles 14(f) and 18. (See GC Exh. 1(g) (par. 10(h)–(j)).) Indeed, the direct dealing
allegations are predicated on the General Counsel and the Union being correct that Article 14(f),
Article 18 and/or past practice establish job posting, seniority and other requirements that
Respondent must satisfy when making work assignments. Respondent, on the other hand, 35
maintains that it is allowed to use its discretion when making work assignments, including
speaking directly with employees about work assignments in the EVS department.
Finally, Case 18–CA–155443 includes three allegations that Respondent violated Section
8(a)(1) of the Act. Specifically, the General Counsel alleges that Respondent violated Section 40
8(a)(1) by: threatening an employee during a team huddle meeting that Respondent did not have
to include EVS positions in a rebid; threatening an employee (Robinson) that she was not
allowed to ask questions in the presence of other employees at team huddle meetings; and
threatening union stewards (at least one of whom was also an employee) that Respondent was
going to continue filling open positions by “best fit” and not seniority. (See GC Exh. 1(g) (par. 45
5).)
JD–39–16
21
4. Analysis of request for deferral – Section 8(a)(1) allegations in Case 18–CA–155443
The collective-bargaining agreement underlying the dispute in this case took effect on
April 16, 2015. (FOF, Section II(A).) Since the agreement arose after the Board’s decision in
Babcock & Wilcox Construction, the Board’s new standard for pre-arbitration deferral of Section 5
8(a)(3) and 8(a)(1) allegations applies, and any Section 8(a)(3) or 8(a)(1) allegations in Case 18–
CA–155443 cannot be deferred to the arbitral process unless the Union and Respondent
explicitly authorized the arbitrator to decide the unfair labor practice issue, either in the
collective-bargaining agreement or by agreement in this case.
10
Under the Board’s new standard, the 8(a)(1) allegations in Case 18–CA–155443 may not
be deferred to arbitration. In the collective-bargaining agreement, the Union and Respondent did
not explicitly authorize the arbitrator to decide Section 8(a)(3) or Section 8(a)(1) allegations.
Instead, the collective-bargaining agreement has general language that prohibits discrimination
against employees because of union membership or nonmembership or because of the assertion 15
of any rights under the agreement, and permits arbitration of “[a]ny claim of an employee arising
out of the interpretation, application, or adherence to the terms or provisions of [the collective-
bargaining agreement] or arising out of disciplinary and discharge actions taken by the
Employer.” (FOF, Section II(A).) That general language falls well short of explicitly
authorizing an arbitrator to decide allegations that Respondent violated Section 8(a)(3) or Section 20
8(a)(1) of the Act. Since the Union and Respondent have not otherwise agreed to authorize an
arbitrator to decide the Section 8(a)(1) allegations in Case 18–CA–155443 (indeed, the Union
has opposed arbitration in Case 18–CA–155443 altogether), the 8(a)(1) allegations in that case
are not deferrable and accordingly I shall decide those allegations on the merits.
25
5. Analysis of request for deferral – Section 8(a)(5) allegations in Case 18–CA–155443
a. Long and productive bargaining relationship?
The Union and Respondent have shared a long and productive bargaining relationship 30
that has existed since 1968, and has included several successive collective-bargaining
agreements, the most recent of which remains in effect until February 2018. The evidentiary
record also shows that although the Union and Respondent do not always agree, apart from the
dispute in this case (concerning work assignments and job postings) the Union and Respondent
generally have a good working relationship that often allows them to resolve disputes amicably. 35
(FOF, Section II(A).) Compare San Juan Batista Medical Center, 356 NLRB at 737 (finding
that the parties’ dispute did not arise within the context of a long and productive bargaining
relationship because the Union had represented the bargaining unit for only one year, the initial
collective-bargaining agreement had only been in place for six months, and the parties settled
four other charges before or during the hearing).40
b. Claim of employer animosity to employees’ exercise of protected rights?
The General Counsel’s evidence that Respondent has animosity to employees’ exercise
of protected rights is based on its allegations in the consolidated complaint. In Case 18–CA–45
155443, the General Counsel alleged that Respondent: threatened an employee that Respondent
did not have to include EVS positions in a rebid; threatened Angel Robinson that she was not
JD–39–16
22
allowed to ask questions in the presence of other employees at team huddle meetings; and
threatened a union steward (who was also an employee) that Respondent was going to continue
filling open positions by “best fit,” and not seniority. In Case 18–CA–163045 (which
Respondent has not requested be deferred), the General Counsel alleged that Respondent:
threatened that EVS department manager Charles Stillings advised Intensive Care Unit (ICU) 5
department manager Karen Schulz that Robinson was inappropriate, disrespectful and not a team
player; threatened that if Robinson obtained a job in the ICU, Robinson would face close
surveillance by Schulz; threatened that if Robinson obtained a job in the ICU, Robinson would
be disciplined for engaging in Union or other protected concerted activities; and constructively
denied Robinson a transfer to a job in the ICU.10
These allegations, while serious, do not rise to the level of being so egregious that it
would be futile for the parties to use the arbitration procedure in the collective-bargaining
agreement. The Union and Respondent have a long history of using the grievance process (as
well as informal meetings) to discuss and resolve issues of concern as they arise. (FOF, Section 15
II(A).) In addition, shortly before the dispute in Case 18–CA–155443 arose, the parties used the
arbitration procedure to resolve a dispute about changes that Respondent made to workweek
schedules. When the arbitrator ruled in the Union’s favor, Respondent duly conducted a rebid of
positions and work assignments pursuant to the arbitrator’s award. (FOF, Section II(B)–(E).)
Given the parties’ established history of using the grievance and arbitration procedure to resolve 20
disagreements, I cannot find that it would be futile now for the parties resolve the dispute in Case
18–CA–155443 via arbitration. See Babcock & Wilcox Nuclear Operations Group, Inc., 363
NLRB No. 50, slip op. at 2 (indicating that even when there are allegations of discrimination, the
Board nonetheless has deferred cases where it is satisfied that the parties’ grievance procedure
could reasonably be relied upon to function properly and to resolve the current disputes fairly);25
Clarkson Industries, 312 NLRB 349, 352 & fn. 16 (1993) (finding that allegations of an unlawful
threat and an unlawful disciplinary warning were “not so egregious as to render the use of the
arbitration machinery uncompromising or futile”); compare St. Francis Regional Medical
Center, 363 NLRB No. 69, slip op. at 2–3 (declining to defer a dispute to arbitration because the
dispute involved the alleged discipline and discharge of a union steward and her unit member for 30
activity related to processing the unit member’s grievance, and thus demonstrated a sufficient
degree of hostility to make deferral inappropriate).
c. Does the agreement provide for arbitration in a very broad range of disputes?
35
The grievance and arbitration procedure that Respondent and the Union agreed to is set
forth in Article 7 of the collective-bargaining agreement. By its terms, the grievance and
arbitration procedure covers the following types of disputes:
Any claim of an employee arising out of the interpretation, application, or adherence to 40
the terms or provisions of this Agreement or arising out of disciplinary and discharge
actions taken by [Respondent] shall be subject to the Grievance and Arbitration
Procedure.
(FOF, Section II(A).)45
JD–39–16
23
d. Does the arbitration clause clearly encompass the dispute at issue?
The arbitration clause clearly encompasses the Section 8(a)(5) allegations in Case 18–
CA–155443, which turn on the interpretation of Articles 14(f) and 18 of the collective-
bargaining agreement (as well as alleged past practices). Those issues of contract interpretation 5
are at the heart of determining the nature and scope of any rules that Respondent must follow
when creating, filling and posting work assignments and job vacancies in the EVS department.
Indeed, in a December 1, 2015 letter to Respondent, the General Counsel provided a similar
summary of the dispute in Case 18–CA–155443, stating: “It is also the General Counsel’s
understanding . . . that Respondent is not disputing that [work] assignments have been changed 10
and filled by best fit and without consulting the Union. The issue in this case is whether those
actions are privileged by the contract and a past practice of the parties.” (R. Exh. 24.)
e. Does the employer assert its willingness to resort to arbitration for the dispute?
15
Since filing its answer to the complaint on November 13, 2015, Respondent has
repeatedly asserted its willingness to resort to arbitration for the dispute in Case 18–CA–155443.
(See R. Posttrial Br. at 55; GC Exh. 1(n) (Affirmative Defenses, par. 2); GC Exh. 1(u) at 45
(Respondent’s assertion, in its memorandum of law in support of its motion to sever and defer
Case 18–CA–155443 to arbitration, that Respondent “[h]as been and continues to be willing to 20
promptly arbitrate this dispute”); see also Analysis Section B(1) (outlining Respondent’s
additional requests to sever Case 18–CA–155443 and defer those complaint allegations to
arbitration).)27
f. Suitability of the dispute to resolution by arbitration?25
A dispute is well suited to arbitration when the meaning of a contract provision is at the
heart of the dispute. Deferral is not appropriate when no construction of the contract is relevant
for evaluating the reasons that the party seeking deferral advanced for failing to comply with the
applicable contract provisions. Moreover, deferral is also not appropriate if the contract 30
provision at issue is unambiguous. San Juan Batista Medical Center, 356 NLRB at 737
(collecting cases); see also Doctors’ Hospital of Michigan, 362 NLRB No. 149, slip op. at 3
(2015).
As noted above, the meaning of Articles 14(f) and18 of the collective-bargaining 35
agreement is at the heart of the dispute between Respondent and the Union about work
assignments and job vacancies, and specifically about what guidelines Respondent must follow
when work assignments open up. In the Union’s view, “work assignments,” “workweek
schedules,” “jobs” and “positions” are all synonyms that the Union and Respondent use

27 In light of Respondent’s assurances that it is ready and willing to submit the dispute in Case 18–
CA–155443 to arbitration, I find that Respondent is willing to waive any timeliness objections or other
procedural defenses to the Union’s grievance underlying the dispute (or to taking that grievance to
arbitration). Cf. Babcock & Wilcox Nuclear Operations Group, Inc., 363 NLRB No. 50, slip op. at 2
fn. 2. Consistent with my finding, I note that Respondent expressed its willingness to waive certain
procedural objections if that would facilitate deferral to arbitration. See R. Posttrial Br. at 28 fn. 27
(noting that, if necessary to facilitate deferral, Respondent would be willing to waive any procedural
objections related to an unfiled June 23, 2015 grievance that is part of the record as GC Exh. 9).
JD–39–16
24
interchangeably. Thus, according to the Union, Respondent must comply with the requirements
of Articles 14(f) and 18 when making work assignments. In Respondent’s view, however,
Articles 14(f) and 18 of the collective-bargaining agreement only apply to “workweek
schedules,” “jobs” and “positions,” which are distinct from work assignments. Thus, according
to Respondent, the collective-bargaining agreement implicitly allows Respondent to use its 5
discretion when making work assignments in the EVS department (with the exception of the
project worker assignment, which is addressed explicitly in the collective-bargaining agreement).
The parties presented some of these questions of contract interpretation to an arbitrator in
early 2015 in connection with the Union’s grievance about Respondent’s fall 2013 decision to 10
establish new workweek schedules, but the arbitrator declined to rule on the meaning of Article
14(f) because the dispute could be resolved on other grounds. (See FOF, Sections II(C)–(D).) In
my view, Case 18–CA–155443 affords a new opportunity for the Union and Respondent to use
the arbitration procedure to resolve their dispute concerning how Articles 14(f) and 18 of the
collective-bargaining agreement apply to work assignments and job postings in the EVS 15
department.
In connection with my assessment that the Section 8(a)(5) allegations in Case 18–CA–
155443 are suitable for resolution by arbitration, I note that the contract provisions at issue are
not unambiguous. To the contrary, neither Article 14(f) nor Article 18 explicitly speaks to “work 20
assignments” and how those should be handled when openings arise or employees wish to
change assignments. Further, to the extent that the parties asserted during trial that past practice
could clarify how work assignments should be handled, the competing evidence about past
practice was far from clear because both the Union and Respondent presented viable evidence
(e.g., previous job postings that do not specify specific work assignments vs. witness testimony 25
that managers often told employees the work assignment that was associated with a new job
posting) in support of their positions. It is appropriate for an arbitrator to use his or her expertise
in contract interpretation to resolve these questions. See San Juan Batista Medical Center, 356
NLRB at 737 (indicating that a dispute is suitable for resolution by arbitration when “resolution
of the dispute primarily requires interpretation of the collective-bargaining agreement”); see also 30
Babcock & Wilcox Nuclear Operations Group, Inc., 363 NLRB No. 50, slip op. at 3 fn. 4 (noting
that arbitrators have the authority to find that customs and/or past practice may become part of
the “law of the shop” and thus enforceable through arbitration).
g. Analysis of all factors35
Considering all of the factors, I agree with Respondent that the Section 8(a)(5) allegations
in Case 18–CA–155443 should be severed from the consolidated complaint and deferred to
arbitration. Most of the factors clearly weigh in favor of deferral, insofar as: the Union and
Respondent have a long and productive collective-bargaining relationship; the collective-40
bargaining agreement provides for arbitration in a broad range of disputes; the arbitration clause
clearly encompasses the Section 8(a)(5) dispute; and Respondent has asserted its willingness to
resort to arbitration to resolve the dispute.
I also find that all of the allegations in Case 18–CA–155443 are well suited for resolution 45
by arbitration. As noted above, the meaning of Articles 14(f) and 18 of the collective-bargaining
agreement is at the heart of the dispute between Respondent and the Union about Respondent’s
JD–39–16
25
obligations when making work assignments. It is appropriate for an arbitrator to resolve those
issues of contract interpretation.
That leaves only one remaining factor – the fact that there is a claim of animosity towards
employees’ exercise of protected rights. While that issue is not insignificant, I do not find that it 5
tips the scales against deferral. The parties’ have used the grievance and arbitration procedure
successfully in the past, and I do not have a reason to believe that arbitration would be futile
now.
I am mindful of the fact that the Board generally does not favor piecemeal litigation. See 10
St. Francis Regional Medical Center, 363 NLRB No. 69, slip op. at 17. The Board’s new
requirements for when Section 8(a)(3) and 8(a)(1) allegations may be deferred to arbitration,
however, make it more likely that cases will be divided into deferrable and nondeferrable pieces.
That prospect, however, is not a new one – to the contrary, the Board already has recognized that
in particular cases, it may make sense to defer some allegations to the arbitration process, and 15
resolve others on the merits (i.e., without deferral). See, e.g., Clarkson Industries, 312 NLRB at
351–353 & fn. 19–20 (finding that deferral was appropriate for unilateral change and
subcontracting disputes, but not for an information request dispute or for an alleged unlawful
threat and disciplinary warning). Such is the case here, where it makes sense to defer the 8(a)(5)
allegations to arbitration (to interpret the meaning of Articles 14(f) and 18 of the collective-20
bargaining agreement),28 while deciding three 8(a)(1) allegations in Case 18–CA–155443 on the
merits, along with the 8(a)(3) and 8(a)(1) allegations in Case 18–CA–163045.
Accordingly, after considering all factors, I hereby order that the Section 8(a)(5)
allegations in Case 18–CA–155443 be severed and deferred to arbitration. (See GC Exh. 1(q) 25
(pars. 11, 14) (consolidated complaint); see also GC Exh. 1(g) (pars. 10, 12) (the original
complaint in Case 18–CA–155443 that sets forth the same 8(a)(5) allegations).)
C. Case 18–CA–155443: Did Respondent Make any Statements in the EVS Department that
Violated Section 8(a)(1) of the Act?30
1. Complaint allegations
The General Counsel alleges that Respondent violated Section 8(a)(1) of the Act by
making the following statements: 35
(a) in about late May 2015, threatening an employee that Respondent did not have to
include EVS positions in a rebid;
(b) in about early June 2015, threatening an employee (Robinson) that she was not 40
allowed to ask questions in the presence of other employees at team huddle meetings; and

28 This includes the direct dealing allegations in Case 18–CA–155443, which, if the Union were to
prevail, the arbitrator might remedy by ordering Respondent to stop dealing directly with employees and
honor its contractual obligation to deal exclusively with the Union when filling work assignments. See
Public Service Co. of Oklahoma, 319 NLRB 984, 984 (1995) (finding that an arbitrator has the ability to
remedy allegations of direct dealing); E.I. Du Pont Co, 275 NLRB 693, 695 (1985) (same).
JD–39–16
26
(c) on or about June 8, 2015, threatening a union steward (Cullen, who was also an
employee) that Respondent was going to continue filling open positions by “best fit,” and
not seniority.
5
(GC Exh. 1(q) (par. 5(a)–(c)).)
2. Applicable legal standard
Under Section 7 of the Act, employees have the right to engage in concerted activities for 10
their mutual aid or protection. Section 8(a)(1) of the Act makes it unlawful for an employer (via
statements or conduct) to interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7. The test for evaluating whether an employer’s statements or
conduct violate Section 8(a)(1) of the Act is whether the statements or conduct have a reasonable
tendency to interfere with, restrain or coerce union or protected activities. Farm Fresh Co., 15
Target One, LLC, 361 NLRB No. 83, slip op. at 14 (noting that the employer’s subjective motive
for its action is irrelevant); Yoshi’s Japanese Restaurant & Jazz House, 330 NLRB 1339, 1339
fn. 3 (2000).
3. Analysis20
The evidentiary record shows that Respondent after the May 15 rebid, Respondent had
several conversations with the Union and with employees about how it would fill work
assignments going forward. I have found that Respondent made the following statements in
those various conversations:25
(1) In or about late May 2015, Stillings advised employees in a team huddle meeting that
new positions in the EVS department would be in the mother-baby birthing center.
When Robinson asked why the positions were not included in the May 15 rebid,
Stillings replied that the new positions did not have to be included in the rebid 30
because the new building for the mother-baby birthing center was not open yet.
(2) In or about late May 2015, Stillings contacted Robinson after a team huddle meeting
in which Robinson had asked supervisor Chandica “Rudy” Hanuman questions about
what kind of work employees would do in the new positions that Respondent posted 35
for the EVS department. Stillings told Robinson that if she had questions, she could
only ask for herself (i.e., not on behalf of other people) and needed to come to
Stillings’ office to pose her questions.
(3) On or about June 8, Stillings told employee/union steward Karen Cullen and union 40
steward Rita Matthews that Respondent could place employees in work assignments,
or switch employee work assignments, based on best fit (for the position and/or for
the hospital).
(FOF, Section II(F).) 45
JD–39–16
27
Respondent did not violate Section 8(a)(1) of the Act when Stillings stated that the new
positions in the mother-baby birthing center did not need to be included in the May 2015 rebid.
Nor did Respondent violate Section 8(a)(1) when Stillings asserted that Respondent could make
or switch employee work assignments based on best fit (and not seniority). In each of those
instances, Respondent was simply stating how it viewed its obligations under the collective-5
bargaining agreement and the March 2015 arbitration award (which ordered the May 2015
rebid).29 In addition, concerning the new positions in the mother-baby birthing center, Stillings’
statement reflected the Union’s and Respondent’s agreement that those positions would not be
included in the May 2015 rebid because the new facility was not yet open. (See FOF, Section
II(E).) And, perhaps most important, the employees who heard Stillings’ statements on those 10
issues remained free to disagree with Respondent’s position, and also remained free to seek the
Union’s support in addressing any concerns. Under those circumstances, I cannot find that
Stillings’ statements on these points had a reasonable tendency to interfere with, restrain or
coerce union or protected activities. Accordingly, I recommend that the allegations in
paragraphs 5(a) and (c) of the complaint be dismissed.15
I do find, however, that as alleged in paragraph 5(b) of the complaint, Respondent
violated Section 8(a)(1) of the Act when Stillings told Robinson that she could only ask
questions for herself and only after coming to Stillings’ office to do so. Through that instruction,
Stillings attempted to set limits on Robinson’s ability to ask questions about the terms and 20
conditions of employment not only for herself, but also for other employees. In so doing,
Stillings sent a message that Respondent did not welcome Robinson’s attempts to discuss
employee concerns at team huddle meetings, and unlawfully made a statement that had a
reasonable tendency to interfere with, restrain or coerce Robinson’s union or protected activities.

29 I take no position on whether or not Stillings was correct in his statements about Respondent’s
obligations under the collective-bargaining agreement and March 2015 arbitration award. Instead, I
simply find that Respondent was within its rights to advise employees of its position concerning the May
2015 rebid and the guidelines that apply when Respondent makes work assignments in the EVS
department.
In connection with that point, I note that I am not persuaded by the General Counsel’s arguments that
Stillings’ remarks were unlawful threats that undermined the Union because: Respondent would continue
violating the collective-bargaining agreement; Respondent would disregard the March 2015 arbitration
award; and Respondent indicated to employees that it was futile for employees to be represented by the
Union. (GC Posttrial Br. at 30–31, 37–39.) This is not a case where Respondent elected to disregard a
clear contract provision or arbitration award. See, e.g., Paris Mode Handbags Corp., 266 NLRB No. 163,
slip op. at 7 (1983) (not reported in Board volumes) (employer violated Section 8(a)(1) of the Act by
telling employees it would no longer abide by the collective bargaining agreement). Nor is this a case
where Respondent made an explicit statement that could reasonably be construed as asserting that it was
futile for employees to be represented by a union. See Goya Foods, 347 NLRB 1118, 1128–1129 (2006),
enfd. 525 F.3d 1117 (11th Cir. 2008) (employer violated Section 8(a)(1) of the Act by telling employees,
inter alia, that the employer would not negotiate with or recognize the union). To the contrary, union
members and Respondent had a good-faith disagreement about the proper scope of the May 2015 rebid
and Respondent’s ongoing obligations when filling work assignments. Respondent did not violate
Section 8(a)(1) of the Act when it merely stated its views on its obligations. See Section 8(c) of the Act
(stating that the “expressing of any views, argument, or opinion, or the dissemination thereof, whether in
written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice
under any of the provisions of this Act . . . , if such expression contains no threat of reprisal or force or
promise of benefit”).
JD–39–16
28
Cf. Meyers Industries, 281 NLRB 882, 887 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988) (explaining that protected concerted
activities include “circumstances where individual employees seek to initiate or to induce or to
prepare for group action, as well as individual employees bringing truly group complaints to the
attention of management”).5
D. Case 18–CA–163045: Did Respondent Engage in Unlawful Misconduct when Robinson
Applied for a Transfer to the ICU?
1. Complaint allegations10
The General Counsel alleges that Respondent violated Section 8(a)(3) and (1) of the Act
by, in retaliation for employee Angel Robinson’s union or other protected activities, engaging in
the following misconduct during a “meet and greet” job interview on or about October 13, 2015:
15
(a) threatening that EVS department manager Charles Stillings advised ICU department
manager Karen Schulz that Robinson was inappropriate, disrespectful and not a team
player;
(b) threatening that if Robinson obtained a job in the ICU, Robinson would face close 20
surveillance by Schulz;
(c) threatening that if Robinson obtained a job in the ICU, Robinson would be disciplined
for engaging in Union or other protected concerted activities; and
25
(d) through its misconduct during the interview, constructively denying Robinson a
transfer to a job in the ICU.
(GC Exh. 1(q) (pars. 5(d)–(f), 6).)
30
2. Applicable legal standard
The test for evaluating whether an employer’s statements or conduct violate Section
8(a)(1) of the Act is whether the statements or conduct have a reasonable tendency to interfere
with, restrain or coerce union or protected activities. Farm Fresh Co., Target One, LLC, 361 35
NLRB No. 83, slip op. at 14.
The Board has recognized two constructive discharge theories: the “traditional”
constructive discharge theory; and the “Hobson’s Choice” theory. Under the traditional theory, a
constructive discharge occurs when an employee quits because his or her employer has 40
deliberately made working conditions unbearable and it is proven that (1) the burden imposed on
the employee caused, and was intended to cause, a change in the employee’s working conditions
so difficult or unpleasant that the employee is forced to resign, and (2) the burden was imposed
because of the employee’s union activities. Yellow Ambulance Service, 342 NLRB 804, 807
(2004); Intercon I (Zercom), 333 NLRB 223, 223 fn. 3 (2001). The Board has explained that 45
regarding the first part of the legal standard, “the test for intent is not limited to whether the
employer specifically intended to cause the employee to quit, but includes whether, under the
JD–39–16
29
circumstances, the employer reasonably should have foreseen that its actions would have that
result.” Yellow Ambulance Service, 342 NLRB at 807.
Under the Hobson’s Choice theory of constructive discharge, an employee’s voluntary
quit will be considered a constructive discharge when an employer conditions an employee’s 5
continued employment on the employee’s abandonment of his or her Section 7 rights and the
employee quits rather than comply with the condition. Titus Electric Contracting, Inc., 355
NLRB 1357, 1357 (2010); Intercon I (Zercom), 333 NLRB 223, 223 & fn. 4. The Hobson’s
Choice at issue must be clear and unequivocal and the employee’s predicament not one which is
left to inference or guesswork. Intercon I (Zercom), 333 NLRB at 224 & fn. 9.10
3. Analysis
Before addressing the specific complaint allegations, it is helpful to note some important
background facts related to Robinson’s application to transfer to the ICU. Robinson was the 15
most senior qualified applicant for the CNA position in the ICU. As a result, under the seniority
rules set forth in the collective-bargaining agreement, Robinson was entitled to the CNA position
in the ICU if she desired it. The meet and greet interview was just that – an opportunity for
Robinson and ICU managers to get acquainted. There is no evidence that ICU managers had any
discretion to decline Robinson’s transfer request, regardless of how things went in the interview. 20
(FOF, Section I.)
That background, however, raises the following question: what does a manager do if he
or she does not want the most senior applicant to join the department? Certainly one option is
for the manager to put his or her concerns aside, welcome the applicant to the department, and do 25
his or her best to make things work. Some managers, however, might be tempted to try to induce
the applicant to decline the position by making the position appear undesirable, with the hope
that the next applicant in line is more to the manager’s liking. As explained in more detail
below, I find that Schulz followed the second path and used the meet and greet interview to
induce Robinson to decline the opportunity to transfer to the ICU. In her efforts, Schulz engaged 30
in conduct that violated Section 8(a)(3) and (1) of the Act.
As established in the evidentiary record, Robinson met with ICU department
management on or about October 13 for a meet and greet interview. During that interview, ICU
department manager Karen Schulz and ICU patient care supervisor Pamela Sandberg told 35
Robinson the following:
(1) That CNAs in the ICU have a significant work load that requires them to hustle
through the whole shift to get their work done;
40
(2) That attitude, professionalism, teamwork and the commitment to care are very
important in the ICU because of the complex level of care that ICU patients require;
(3) That she (Schulz) was aware of Robinson’s attendance, discipline and behavior
issues, and had some major concerns because Stillings (on whom Schulz relied) told 45
her that Robinson was inappropriate, rude and disrespectful, and was not a team
player;
JD–39–16
30
(4) That if Robinson came to the ICU, Schulz would monitor those issues (i.e.,
Robinson’s attendance, discipline and behavior) closely and go right to corrective
action if Robinson was rude, disrespectful, inappropriate, absent or tardy.
5
(FOF, Section II(I).) The evidentiary record also shows that when a recruiter later notified
Robinson that the ICU department was offering Robinson the CNA position she applied for,
Robinson declined because of her experience in the interview and her conclusion that she could
never work for someone like Schulz. (Id.)
10
I find that Respondent violated Section 8(a)(1) of the Act when Schulz told Robinson that
Stillings described Robinson as being inappropriate, rude and disrespectful, and as not a team
player. I also find that Respondent violated Section 8(a)(1) when Schulz told Robinson that if
she came to the ICU, Schulz would monitor Robinson’s attendance, discipline and behavior
closely, and would immediately proceed to corrective action if Robinson was rude, disrespectful, 15
inappropriate, absent or tardy. Each of those statements put Robinson on notice that Robinson
essentially would come to the ICU with a negative mark on her record based on Stillings’ report
to Schulz, and as a result would face close monitoring and swift discipline by Schulz. Since
Stillings’ negative assessment of Robinson was based (at least in part) on Robinson’s protected
concerted and union activities during EVS department team huddle meetings, and Schulz 20
emphasized that she was relying on what she had been told by Stillings, Schulz’ remarks to
Robinson (as alleged in paragraphs 5(d), 5(e) and 5(f) of the complaint) were unlawful because
they had a reasonable tendency to interfere with, restrain or coerce Robinson’s willingness to
engage in union or protected activities. See FOF, Section II(F) (point 2), (G) (describing
instances where EVS department management confronted Robinson about her conduct in team 25
huddle meetings); Analysis, Section C(3); see also Farm Fresh Co., Target One, LLC, 361
NLRB No. 83, slip op. at 18 (explaining that it is unlawful for an employer to threaten
employees with adverse consequences for supporting a union); Brookdale University Hospital,
335 NLRB 1094, 1095 (2001) (finding that the employer violated Section 8(a)(1) of the Act by
threatening to closely monitor an employee’s work because of his union activities).30
Finally, I find that Respondent, through Schulz, constructively denied Robinson’s request
to transfer to the ICU. The Hobson’s Choice theory is applicable here, because Schulz’ remarks
to Robinson clearly and unequivocally gave Robinson two unpalatable choices: (a) accept the
transfer to the ICU, but with the understanding that Schulz would be monitoring her closely and 35
would impose discipline if Robinson engaged in any of the “behaviors” that Stillings deemed a
problem when Robinson was in the EVS department (i.e., protected concerted activities such as
raising employee concerns in meetings with management); or (b) decline the transfer to the ICU,
even though she was entitled to the position as the most senior qualified applicant.30 It was
unlawful for Respondent to put such a choice to Robinson, particularly where Schulz was 40

30 Although this case does not involve a constructive discharge, and instead involves an alleged
constructive denial of a transfer, the same legal principles apply. I do not agree with Respondent that
Robinson was never forced to make a Hobson’s Choice because Robinson never worked in the ICU. See
R. Posttrial Br. at 96–97. To the contrary, Schulz forced Robinson to make a Hobson’s Choice between
accepting a transfer to the ICU (and thereby also accepting the adverse working conditions that Schulz
threatened to impose), or declining the transfer and working elsewhere in the hospital (but in so doing,
foregoing her right to the transfer as the most senior applicant).
JD–39–16
31
motivated to do so at least in part by what she heard from Stillings’ about Robinson’s protected
activities in the EVS department.31 See Intercon I (Zercom), 333 NLRB at 224 & fn. 9 (finding
that the employer violated the Act by presenting the employee with Hobson’s Choice of
improving her “negative attitude” or being terminated, and noting that the term “negative
attitude” was the employer’s code word for union support). Since the Hobson’s Choice induced 5
Robinson to decline the transfer to the ICU (to which she was entitled based on seniority),32 I
find that Respondent violated Section 8(a)(3) and (1) of the Act by constructively denying
Robinson’s request to transfer to the ICU. 33
CONCLUSIONS OF LAW10
1. By, in or about late May 2015, threatening employee Angel Robinson that she was not
allowed to ask questions of supervisors in the presence of other employees at team huddle
meetings, Respondent violated Section 8(a)(1) of the Act.
15
2. By, on or about October 13, 2015, threatening Robinson that EVS department
manager Charles Stillings told ICU manager Karen Schulz that Robinson was inappropriate, rude
and disrespectful, and was not a team player (at least in part because of Robinson’s union or
protected concerted activities), Respondent violated Section 8(a)(1) of the Act.
20
3. By, on or about October 13, 2015, threatening Robinson that if she accepted a position
in the ICU, Respondent would take corrective action if ICU manager Schulz determined that
Robinson was inappropriate, rude or disrespectful (as Robinson allegedly had been in the EVS
department while engaging in union or protected concerted activities), Respondent violated
Section 8(a)(1) of the Act.25

31 It is entirely possible that Schulz was not aware that Robinson’s conduct in the EVS department
management was union or protected concerted activity (as opposed to some other kind of conduct that is
not protected by the Act). That possibility does not matter, however, because Stillings was certainly
aware that Robinson’s conduct in team huddle meetings was protected by the Act, and Schulz relied on
Stillings when she decided to confront Robinson about her “behavior.” In short, Schulz’ handling of
Robinson’s interview was tainted by her reliance on Stillings to identify concerns about Robinson
transferring to the ICU.
32 I am not persuaded by Respondent’s argument that Robinson declined the CNA position in the
ICU because Robinson preferred the CNA position in the OR. See R. Posttrial Br. at 97–99; see also
Easter Seals Connecticut, Inc., 345 NLRB 836, 838–839 (2005) (declining to find a constructive
discharge because the evidence showed that the employee did not resign because of an unlawful Hobson’s
Choice, but rather because of another factor altogether). The evidentiary record shows that Robinson
declined the ICU position before she learned from the recruiter that she was the most senior applicant for
the OR position. (See FOF, Sections II(I)–(J) (discussing, inter alia, R. Exh. 43(a), 43(c), an audio
recording and transcript of Robinson’s conversation with the recruiter).) Thus, it was only the unlawful
Hobson’s Choice that caused Robinson to decline the transfer to the ICU.
33 I note that the General Counsel would also prevail under the traditional constructive discharge
theory. For the reasons that I have stated concerning the Hobson’s Choice theory, I would find that
Respondent deliberately informed Robinson that she would face unbearable working conditions
(including close monitoring and swift discipline by Schulz) because of her history of engaging in
protected concerted activities while in the EVS department. Respondent knew, or should have known,
that the prospect of working under such adverse conditions would induce Robinson to decline the
opportunity to transfer to the ICU.
JD–39–16
32
4. By, on or about October 13, 2015, threatening Robinson that if she accepted a position
in the ICU she would face close monitoring by Schulz, at least in part because of Robinson’s
union or protected concerted activities, Respondent violated Section 8(a)(1) of the Act.
5
5. By, on or about October 13, 2015, constructively denying Robinson’s request to
transfer to a CNA position in the ICU, at least in part because of Robinson’s union or protected
concerted activities and to discourage employees from engaging in those activities, Respondent
violated Section 8(a)(3) and (1) of the Act.
10
6. By committing the unfair labor practices stated in conclusions of law 1–5 above,
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
7. The allegations in paragraphs 11(a)–(j) and 14 of the consolidated complaint are 15
hereby severed and dismissed to allow the Union and Respondent to resolve those issues through
arbitration as set forth in the collective-bargaining agreement. I recommend that the Board retain
jurisdiction over those complaint allegations for the limited purpose described in the order
accompanying this decision.
20
8. I recommend dismissing the allegations in paragraphs 5(a) and (c) of the consolidated
complaint.
REMEDY
25
Having found that Respondent has engaged in certain unfair 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.
Respondent, having discriminatorily denied Angel Robinson a transfer to a CNA position 30
in the ICU, must offer Robinson the opportunity to transfer to such a position or to a
substantially equivalent position in the ICU, and make her whole for any loss of earnings and
other benefits. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).35
Respondent shall also compensate Robinson for the adverse tax consequences, if any, of
receiving a lump-sum backpay award. Within 21 days of the date that the amount of backpay is
fixed, either by agreement or Board order, Respondent shall file with the Regional Director for
Region 18 a report allocating the backpay award to the appropriate calendar year(s). Advoserv of 40
New Jersey, Inc., 363 NLRB No. 143 (2016).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended34

34 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
JD–39–16
33
ORDER
Respondent, Mercy Hospital, Coon Rapids, Minnesota, its officers, agents, successors,
and assigns, shall5
1. Cease and desist from
(a) Threatening employees that they are not allowed to ask questions of supervisors in
the presence of other employees at team huddle meetings.10
(b) Threatening Robinson that EVS department manager Charles Stillings told ICU
manager Karen Schulz that Robinson was inappropriate, rude and disrespectful, and was not a
team player, at least in part because of Robinson’s union or protected concerted activities.
15
(c) Threatening Robinson that if she accepted a position in the ICU, Respondent would
take corrective action if ICU manager Schulz determined that Robinson was inappropriate, rude
or disrespectful (as Robinson allegedly had been in the EVS department while engaging in union
or protected concerted activities).
20
(d) Threatening Robinson that if she accepted a position in the ICU she would face close
monitoring by Schulz, at least in part because of Robinson’s union or protected concerted
activities.
(e) Constructively denying Robinson’s request to transfer to a CNA position in the ICU, 25
at least in part because of Robinson’s union or protected concerted activities and to discourage
employees from engaging in those activities.
(f) 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.30
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Angel Robinson the
opportunity to transfer to a CNA position in the ICU or to a substantially equivalent position, 35
without prejudice to her seniority or any other rights or privileges previously enjoyed.
(b) Make Angel Robinson whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her, in the manner set forth in the remedy section of the
decision.40
(c) Compensate Angel Robinson for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file with the Regional Director for Region 18, within 21 days of
the date the amount of backpay is fixed, either by agreement or Board order, a report allocating
the backpay award to the appropriate calendar year(s).45

by the Board and all objections to them shall be deemed waived for all purposes.
JD–39–16
34
(d) Within 14 days after service by the Region, post at its facility in Coon Rapids,
Minnesota, copies of the attached notice marked “Appendix.”35 Copies of the notice, on forms
provided by the Regional Director for Region 18, after being signed by Respondent’s authorized
representative, shall be posted by Respondent and maintained for 60 consecutive days in 5
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by 10
any other material. In the event that, during the pendency of these proceedings, Respondent has
gone out of business or closed the facility involved in these proceedings, Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by Respondent at any time since May 16, 2015.
15
(e) 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
Respondent has taken to comply.
IT IS FURTHER ORDERED that the allegations in paragraphs 11(a)–(j) and 14 of the 20
consolidated complaint are severed and dismissed. The Board shall retain jurisdiction over this
proceeding for the limited purpose of entertaining an appropriate and timely motion for further
consideration upon a proper showing that either (a) the dispute underlying the allegations in
paragraphs 11(a)–(j) and 14 of the consolidated complaint has not, with reasonable promptness
after the issuance of this Order, either been resolved by amicable settlement in the grievance 25
procedure or submitted promptly to arbitration, or (b) the grievance or arbitration procedures
have not been fair or regular or have reached a result that is repugnant to the Act.
Dated, Washington, D.C. May 6, 2016
30
____________________________
35
Geoffrey Carter
Administrative Law Judge

35 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT threaten employees that they are not allowed to ask questions of
supervisors in the presence of other employees at team huddle meetings.
WE WILL NOT threaten employees who engage in union or protected concerted
activities by telling them that they are inappropriate, rude and disrespectful, and by telling them
that they are not team players.
WE WILL NOT threaten employees that we will take corrective action if we believe that
they are inappropriate, rude or disrespectful while engaging in union or protected concerted
activities.
WE WILL NOT threaten employees that they will face close monitoring because of their
union or protected concerted activities.
WE WILL NOT constructively deny Angel Robinson’s request to transfer to a CNA
position in the ICU, at least in part because of Robinson’s union or protected concerted activities
and to discourage employees from engaging in those activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL offer Angel Robinson the opportunity to transfer to a CNA position in the
ICU or to a substantially equivalent position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
WE WILL make Angel Robinson whole for any loss of earnings and other benefits
suffered as a result of the discrimination against her.
WE WILL compensate Angel Robinson for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region
18, within 21 days of the date the amount of backpay is fixed, either by agreement or Board
order, a report allocating the backpay award to the appropriate calendar year(s).
MERCY HOSPITAL
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Federal Office Building, Suite 200, 212 Third Avenue South, Minneapolis, MN 55401
(612) 348-1757, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/18-CA-155443 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (612) 348-1770.