MERCY HOSPITAL

National Labor Relations Board - Board Decisions

Aug 20, 2018

366 NLRB No. 165 (N.L.R.B. 2018)

366 NLRB No. 165
NOTICE: This opinion is subject to formal revision before publication in the
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Mercy Hospital and Service Employees International
Union Healthcare Minnesota and Angel Marie
Robinson. Cases 18–CA–155443 and 18–CA–
163045
August 20, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
On May 6, 2016, Administrative Law Judge Geoffrey
Carter issued the attached decision. The General Coun-
sel filed exceptions and a supporting brief,1 the Respond-
ent filed an answering brief, and the General Counsel
filed a reply brief. The Respondent filed cross-
exceptions and a supporting brief, the General Counsel
filed an answering brief, and the Respondent filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,
and conclusions only to the extent consistent with this
Decision and Order.2
For the reasons stated by the judge, we adopt the
judge’s decision to defer the Section 8(a)(5) allegations
in Case 18–CA–155443 to arbitration, and we also adopt
his decision not to defer the three independent Section
8(a)(1) allegations in that case. The judge dismissed two
of those three allegations, and there are no exceptions to
those dismissals. See supra footnote 1. Regarding the
third allegation, we adopt the judge’s finding, for the
reasons he states, that the Respondent violated Section
8(a)(1) when Manager Charles Stillings told employee
Angel Robinson that she should not ask questions during
team huddle meetings but only in private in Stillings’
office and only on behalf of herself.3

1 The General Counsel did not except to the judge’s dismissal of al-
legations that the Respondent violated Sec. 8(a)(1) of the Act by telling
an employee that the Respondent did not have to include Environmen-
tal Services Department positions in a rebid or by telling a union stew-
ard that the Respondent was going to continue filling open positions by
“best fit” rather than seniority.
2 We shall modify the judge’s recommended Order to conform to
our decision, and we shall substitute a new notice to conform to the
Order as modified.
3 Member Kaplan notes that the judge relied on Babcock & Wilcox
Construction Co., 361 NLRB 1127 (2014), in deciding not to defer the
independent Sec. 8(a)(1) allegations to arbitration. He expresses no
opinion whether that case was correctly decided and notes that pre-
For the reasons discussed below, we reverse the
judge’s findings that the Respondent violated Section
8(a)(3) and (1) of the Act when Intensive Care Unit
(ICU) Manager Karen Schulz told employee Robinson
that, should Robinson transfer to the ICU, she would be
monitored for behavior and attendance. We also reverse
the judge’s finding that this same conduct independently
violated Section 8(a)(1) of the Act. Accordingly, we
dismiss these allegations.
A. Facts
The Respondent operates a medical center providing
acute care and clinical health services. Robinson began
working for the Respondent in its Environmental Ser-
vices Department (EVS department) in September 2006.
Although she was not a union steward, Robinson often
expressed work-related concerns to her supervisors in
team huddle meetings and by email. In late 2013, Robin-
son was called into a meeting with EVS Department
Manager Chase Giboney, who preceded the current EVS
department manager, Charles Stillings. Giboney told
Robinson that she was behaving disrespectfully at hud-
dles by asking too many questions, rolling her eyes, sit-
ting with arms crossed, and breathing heavily.4 Robin-
son was not disciplined for this conduct, however.
On October 16, 2014, Robinson received a perfor-
mance review that generally praised her work but also
stated that she needed to improve her “communication
with supervisors, her acceptance of direction and con-
structive criticism.” In late May or early June 2015, dur-
ing a team huddle meeting, Robinson asked about new
work assignments for the EVS department in the Re-
spondent’s forthcoming mother-baby birthing center.
Stillings later approached Robinson and told her that she
should ask Stillings directly about the new assignments
and not ask about them during team huddle meetings.
On June 29, 2015, Robinson received a “Level 1 con-
versation” regarding her attendance. Level 1 conversa-
tions are the first step in the Respondent’s disciplinary

arbitral deferral of the only allegation now before the Board on excep-
tions would be inappropriate under pre-existing precedent.
4 Our dissenting colleague suggests that this admonishment by
Manager Giboney was related to a 2013 complaint made at a team
meeting by Robinson on behalf of her colleagues, concerning their
work starting times, or else to other protected conduct. However, it is
impossible to draw any firm conclusions from the record here. Robin-
son gave some very general, and at times speculative, testimony that
the Giboney meeting was because of a litany of conduct, including her
asking too many questions, eye rolling, sitting with her arms crossed,
and not making eye contact. She offered no additional detail on the
conduct or its context, or of what exactly occurred during the meeting.
While the judge broadly concluded that Robinson played a “somewhat
active role” in raising workplace concerns, he conspicuously made no
specific connection between this “somewhat active role” and Giboney’s
admonishment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
process. Although they do not constitute official disci-
pline, are not included in the employee’s personnel file,
and cannot be used as the basis for further corrective
action, Level 1 conversations remain in effect for 6
months. In August 2015, Robinson transferred to a certi-
fied nursing assistant (CNA) position in the Family Care
Unit. On October 19, 2015, Family Care Unit Manager
Michelle Haaland upgraded Robinson’s Level 1 conver-
sation to a Level 2 conversation because Robinson con-
tinued to accrue unexcused absences.
In late October 2015, Robinson sought a transfer to a
CNA position in the Intensive Care Unit. In accordance
with the parties’ collective-bargaining agreement, Robin-
son was entitled to the position because she was the most
senior qualified applicant. Robinson then had a “meet-
and-greet” with ICU Manager Karen Schulz. Even
though the most senior qualified applicant cannot be de-
nied a transfer, the meet-and-greet meeting—a regular
practice at the Hospital—allows the department manager
and the transferee to get to know one another. Before the
meeting, Schulz contacted Haaland and Stillings, Robin-
son’s former managers. According to Schulz, both Haa-
land and Stillings mentioned that Robinson had some
attendance and behavior issues.
The meet-and-greet was conducted by Schulz and ICU
Supervisor Pamela Sandberg. Schulz began by asking
questions about Robinson’s work experience and why
Robinson wanted to join the ICU. The meet-and-greet
continued with an overview of CNA duties in the ICU,
with Sandberg stating that the workload was significant
and that CNAs often had to “hustle” to get the work
done. Schulz then brought up Robinson’s past attend-
ance and behavior problems and stated that teamwork
was of critical importance in the ICU. According to
Robinson, Schulz further stated that she had some con-
cerns because Stillings had told her that Robinson was
“inappropriate, rude and disrespectful” and was “not a
team player.” Robinson became upset and defensive,
stating that her past absences should have been covered
by her FMLA5 leave. Schulz responded that she would
continue to monitor Robinson and utilize corrective ac-
tion should any attendance or behavior problems persist.
Robinson declined the position in the ICU, stating that
she “could never work for someone like [Schulz].” Rob-
inson subsequently transferred to a position in the operat-
ing room.

5 Family and Medical Leave Act of 1993.
B. Discussion
1. The Section 8(a)(1) allegation
The judge found that Robinson engaged in “protected
concerted and union activities during EVS department
team huddle meetings.” The judge did not specify the
activities he found protected. However, in his findings
of fact, the judge found that (i) Robinson “took a some-
what active role in expressing [work-related] concerns
(in team huddle meetings and by email),” and (ii) in a
team huddle meeting in late May or early June 2015,
Robinson asked about new work assignments for the
EVS department in the forthcoming mother-baby birth-
ing center, and Robinson subsequently told Manager
Stillings that she had asked about the new work assign-
ments “[n]ot just [for] me, but other people wanted to
know what exactly the job was going to be before they
apply for it.”
The judge then found that the Respondent violated
Section 8(a)(1) of the Act in October 2015 when Schulz
told Robinson that Stillings described Robinson as being
inappropriate and disrespectful and when Schulz in-
formed Robinson that her performance in the ICU would
be monitored. In the judge’s opinion, these remarks rea-
sonably tended to interfere with, restrain or coerce Rob-
inson in the exercise of her Section 7 rights by chilling
her willingness to engage in union or other protected
concerted activities. For the following reasons, we disa-
gree.
The relevant inquiry under Section 8(a)(1) is an objec-
tive one: whether the employer's statements or actions
would tend to coerce a reasonable employee and chill the
exercise of that employee’s Section 7 rights. See Wy-
man-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st Cir.
1981); Idaho Pacific Steel Warehouse Co., 227 NLRB
326, 331 (1976). Here, the evidence is insufficient to
support a finding that Schulz’s statements during the
meet-and-greet reasonably tended to chill Robinson in
exercising her Section 7 rights.
First, Robinson had no reason to believe Schulz had
any first-hand knowledge of her protected conduct. The
meet-and-greet interview took place 4 or 5 months after
Robinson engaged in protected concerted activity by
inquiring about work assignments in the mother-baby
birthing center during a team huddle and doing so on
behalf of others as well as herself. There is no evidence
that ICU Manager Schulz was present at that team hud-
dle, which took place in the EVS department, nor is there
evidence Schulz was aware that Robinson had previously
MERCY HOSPITAL 3
played a “somewhat active role” in raising work-related
concerns.6
Nor would Robinson have reasonably believed that
Stillings had told Schulz about Robinson’s protected
conduct.7 Robinson did know that Schulz had spoken
with Stillings, but Schulz told Robinson what Stillings
had said about her, i.e., that she could be inappropriate,
rude, and disrespectful. Schulz did not refer to Robin-
son’s protected activities, and there is no evidence
Stillings disclosed Robinson’s protected activities to
Schulz. Further, Stillings’ negative characterization of
Robinson’s work was open-ended enough that one would
not reasonably assume it encompassed her protected in-
quiry regarding the mother-baby birthing center assign-
ments, which occurred at least 4 months earlier, particu-
larly given that there were other concerns about her con-
duct. And, although the judge found that Robinson took
“a somewhat active role” in raising work-related con-
cerns, the nature of this role is scarcely elaborated in the
record, and there is no indication of recent workplace
advocacy by Robinson. It is therefore difficult to infer
that Stillings’ broadly negative characterization of Rob-
inson’s work referred to this “somewhat active role.”
Second, and importantly, a reasonable employee in
Robinson’s position would have recognized that there
was ample reason unrelated to protected conduct for a
prospective manager to be concerned about Robinson’s
conduct and to voice that concern at a “meet-and-greet”
interview. Over the course of the past 2 years, Robinson
had been warned about indulging in nonverbal expres-
sions of impatience and displeasure at team huddle meet-
ings, such as rolling her eyes, sitting with arms crossed

6 Member Kaplan agrees that Robinson engaged in protected con-
certed activity during a team huddle in May or June 2015, when she
inquired about work assignments in the mother-baby birthing center on
behalf of other employees as well as herself. He finds no need to de-
cide whether Robinson otherwise engaged in protected concerted ac-
tivity when she raised unspecified work-related concerns during previ-
ous team huddles and in emails.
7 Our dissenting colleague asserts that Stillings’ knowledge can be
imputed to Schulz. However, he makes this argument in connection
with whether the record establishes that the alleged constructive denial
of Robinson’s transfer to ICU was motivated by unlawful animus. As
we discuss below, we find that the General Counsel has not proved the
first element of a constructive denial-of-transfer theory—that the bur-
dens imposed on Robinson caused or were intended to cause a change
in her working conditions so unpleasant as force her to decline the
transfer—and therefore we do not reach the question of unlawful mo-
tive. We therefore need not decide whether knowledge can be imputed
in connection with an unlawful-motive analysis. But with respect to the
analysis of the alleged coercive statement, which turns on reasonable
perception and not on motive, the lack of evidence that Schulz had
knowledge of Robinson’s protected activity makes it less likely that a
reasonable employee would have believed that Schulz’s statements
were aimed at discouraging such activity.

and breathing heavily; she had received a performance
review that noted her need to improve “communication
with supervisors, . . . acceptance of direction and con-
structive criticism”; and she had been disciplined twice
for poor attendance. A reasonable employee in Robin-
son’s position would assume that Schulz, as the manager
of the department into which Robinson was seeking to
transfer, would have informed herself of these matters.
And she also would have realized that there was a basis
other than her protected activities—the last concrete ex-
ample of which was at least 4 months earlier—for
Stillings to inform Schulz that her behavior could be in-
appropriate, rude and disrespectful.
We recognize that Schulz mentioned Stillings to Rob-
inson as a source of information and that Stillings violat-
ed Section 8(a)(1) when he told Robinson she could not
ask questions in team huddles and could only ask ques-
tions for herself. However, given that Schulz said noth-
ing to Robinson about Robinson’s protected activities,
and in light of the reasons set forth above why any pro-
spective manager would reasonably express concern
about Robinson’s conduct and attendance—reasons unre-
lated to Robinson’s protected activity—we find that a
reasonable employee in Robinson’s position would have
understood Schulz’s statements to be prompted by those
concerns rather than by her protected activity. Accord-
ingly, we find that Schulz’s statements would not rea-
sonably have tended to chill Robinson in the exercise of
her Section 7 rights, and therefore they did not violate
Section 8(a)(1) of the Act.8
2. The Section 8(a)(3) and (1) allegation
The judge also found that the Respondent violated
Section 8(a)(3) and (1) of the Act by presenting Robin-
son with a “Hobson’s Choice” between either accepting
the ICU position and facing discipline for future protect-
ed concerted activity, or declining the position even
though she was entitled to it as the most senior qualified
applicant.9 According to the judge, by presenting Robin-

8 Robinson’s own testimony regarding her interview with Schulz
focused primarily on Schulz’s remarks concerning Robinson’s attend-
ance record, and Robinson made no mention of her protected activity as
a potential cause of Schulz’s comments. Although Robinson’s under-
standing of Schulz’s motivation is not dispositive under the applicable
objective standard, the fact that Robinson did not perceive Schulz’s
remarks as a response to her protected activity bolsters our finding that
a reasonable employee would not have perceived Schulz’s remarks in
that light.
9 The judge did not find that had Robinson accepted the position, she
would have faced discipline for future union activity. Thus, even ac-
cepting the judge’s analysis, we have difficulty understanding how he
found a violation of Sec. 8(a)(3). In any event, for the reasons stated in
the text, we disagree that Robinson’s transfer was conditioned on her
ceasing either union or protected concerted activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
son with this Hobson’s Choice, the Respondent construc-
tively denied Robinson the transfer to ICU by condition-
ing the transfer on the cessation of Robinson’s protected
concerted activity.
We assume, without deciding, that the General Coun-
sel’s theory of the violation—a “constructive denial of
transfer” under a Hobson’s Choice rationale or other-
wise– is viable. But we disagree that Robinson was pre-
sented with a Hobson’s Choice. Under the Hobson’s
Choice theory of constructive discharge, “an employee's
voluntary quit will be considered a constructive dis-
charge when an employer conditions an employee's con-
tinued employment on the employee's abandonment of
his or her Section 7 rights and the employee quits rather
than comply with the condition.” Intercon I (Zercom),
333 NLRB 223, 223 fn. 4 (2001) (citing Hoerner Wal-
dorf Corp., 227 NLRB 612 (1976)). Thus, there are two
elements to a Hobson’s Choice constructive discharge:
conditioning continued employment on the abandonment
of Section 7 rights, and a quit that results from the impo-
sition of that condition. Here, without passing on wheth-
er the second element of a Hobson’s Choice is present,
we find that the record does not support a finding that the
Respondent conditioned Robinson’s transfer to the ICU
on her abandonment of Section 7 rights.
Neither Manager Schulz nor Supervisor Sandberg said
anything about Robinson’s protected concerted activity
at the meet-and-greet interview. Sandberg told Robinson
that the workload in ICU was significant and that CNAs
often had to “hustle” to get the work done. Schulz
brought up Robinson’s past attendance and behavior
problems and said that teamwork was critically important
in the ICU. And Schulz also said she had been informed
that Robinson was “inappropriate, rude and disrespect-
ful” and was “not a team player.” We have found that a
reasonable employee in Robinson’s shoes would have
attributed Schulz’s statements to legitimate concerns
about Robinson’s attendance and conduct unrelated to
her protected activity. Further, any potential inference
that Schulz was conditioning the transfer on Robinson’s
abandonment of protected conduct would be speculative
at best, and a Hobson’s Choice theory requires that the
employee be faced with a “clear and unequivocal”
choice. Chartwells, Compass Group, 342 NLRB 1155,
1157 fn. 15 (2004); ComGeneral Corp., 251 NLRB 653,
657–658 (1980).
Accordingly, we find that the evidence fails to show
that the Respondent conditioned Robinson’s transfer to
the ICU on her willingness to abandon her Section 7
rights. We therefore reverse the judge’s “Hobson’s
Choice” unfair labor practice finding.
The judge also found that, even absent a Hobson’s
Choice, the General Counsel would have prevailed under
a traditional constructive discharge theory because the
“Respondent knew, or should have known, that the pro-
spect of working under such adverse conditions would
induce Robinson to decline the opportunity to transfer to
the ICU.” Again, we disagree.
Here, too, we assume the viability of the General
Counsel’s “constructive denial of transfer” theory and
consider Board law addressing constructive discharges.10
To prove a constructive discharge, the General Counsel
must establish two elements. “First, the burdens imposed
upon the employee must cause, and be intended to cause,
a change in his [or her] working conditions so difficult or
unpleasant as to force him [or her] to resign. Second, it
must be shown that those burdens were imposed because
of the employee’s union [or other protected concerted]
activities.” Crystal Princeton Refining Co., 222 NLRB
1068, 1069 (1976). In determining whether the second
element of the Crystal Princeton Refining test has been
met, the Board applies the standard set forth in Wright
Line.11 Davis Electric Wallingford Corp., 318 NLRB
375, 376 (1995).
Adapting this standard to the situation presented here,
the first issue is whether the Respondent imposed work-
ing conditions on Robinson so difficult or unpleasant as
to force her to decide not to transfer to the ICU. We find
it did not. The Respondent imposed nothing on Robin-
son. Rather, Robinson was generally given a realistic
preview of the challenges of working in the ICU. Robin-
son was told that the workload in the ICU is significant,
that CNAs often have to “hustle” to get their work done,
and that she would be expected to maintain a certain
standard of behavior and attendance. This did not consti-
tute the imposition of inordinately difficult or unpleasant
working conditions.
More broadly, the issue is not whether Schulz failed to
embrace the idea of Robinson working for her, or even
whether Schulz would have preferred that Robinson not
work for her. Rather, the question is whether the General
Counsel has established that the conditions imposed by
Schulz were, and were intended to be, difficult or un-
pleasant enough to force Robinson to decline the job.
The General Counsel has not made that showing. Ra-
ther, the record establishes only that Robinson was alert-
ed to conditions that would tend to be characteristic of a

10 Member Kaplan would not recognize “constructive denial of
transfer” as a basis for finding that the Act has been violated, but he
agrees that even if such a theory were cognizable, Robinson was not
constructively denied a transfer in violation of the Act.
11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
MERCY HOSPITAL 5
demanding workplace: that work in the Intensive Care
Unit is challenging, and that her attendance and conduct
would be monitored. See Intercon I (Zercom), supra,
333 NLRB at 223 fn. 3 (“unbearable” working condi-
tions must be present for constructive discharge). Be-
cause the first part of the constructive discharge standard
has not been met, we find it unnecessary to reach the
second part of the standard.
For these reasons, we reverse the judge and dismiss
this allegation.
ORDER
The National Labor Relations Board orders that the
Respondent, Mercy Hospital, Coon Rapids, Minnesota,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Informing employees that they cannot ask ques-
tions in group huddle meetings and can only ask ques-
tions for themselves individually and not on behalf of
other employees.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Coon Rapids, Minnesota, copies of the at-
tached notice marked “Appendix.”12 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 18, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. If the Respond-
ent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed
by the Respondent at any time since June 12, 2015.

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(b) Within 21 days after service by the Region, file
with the Regional Director for Region 18 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the allegations in para-
graphs 11(a)–(j) and 14 of the consolidated complaint are
severed and dismissed. The Board shall retain jurisdic-
tion over this proceeding for the limited purpose of enter-
taining an appropriate and timely motion for further con-
sideration upon a proper showing that either (a) the dis-
pute underlying the allegations in paragraphs 11(a)–(j)
and 14 of the consolidated complaint has not, with rea-
sonable promptness after the issuance of this Order, ei-
ther been resolved by amicable settlement in the griev-
ance procedure or submitted promptly to arbitration, or
(b) the grievance or arbitration procedures have not been
fair or regular or Board law does not reasonably permit
the award.
Dated, Washington, D.C. August 20, 2018

______________________________________
Lauren McFerran, Member

______________________________________
Marvin E. Kaplan, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

MEMBER PEARCE, dissenting in part.
Contrary to my colleagues, I agree with the judge that
the Respondent violated Section 8(a)(1) by making coer-
cive statements to employee Angel Robinson regarding a
transfer to the Intensive Care Unit (ICU), and Section
8(a)(3) and (1) by constructively denying Robinson that
transfer. In all other respects, I agree with the majority.
A. Background
Angel Robinson—to the displeasure of management—
was a vocal advocate concerning employees’ terms and
conditions of employment. For example, in 2013, after
the Union filed a grievance concerning the Respondent’s
reorganization of the Environmental Services (EVS) de-
partment, Robinson voiced concerns in employee hud-
dles (staff meetings) that the Respondent’s failure to post
certain EVS assignments, and its changes to working
start times potentially violated the collective-bargaining
agreement. Soon after, EVS Department Manager Chase
Giboney called Robinson into a sit-down meeting, along
with supervisor Charles Stillings and two union repre-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6
sentatives. At the meeting, Giboney discussed Robin-
son’s “disrespectful” demeanor at team huddles meetings
as evidenced by her “asking too many questions,” rolling
her eyes, not making eye contact, sitting with her arms
crossed and breathing heavily.1
In May 2015, after an arbitrator had sustained the Un-
ion’s 2013 grievance, the Respondent gave EVS employ-
ees an opportunity to rebid new positions in the depart-
ment. On May 18, the Respondent created four new po-
sitions in the EVS department in the mother-baby birth-
ing center, which were not included in the rebid process.
At a team huddle meeting in late May 2015, Robinson
asked supervisor Chadica “Rudy” Hanumun why the
new positions were not included in the May 15 rebid and
inquired what work the new positions would entail. Sub-
sequently, EVS Department Manager Charles Stillings
reprimanded Robinson for her conduct at the team hud-
dle, stating that “if you have questions, you can only ask
for yourself and you need to come to my office and ask
me.” As found by the judge, and agreed to by my col-
leagues, Stillings’ reprimand sent the clear “message that
[the] Respondent did not welcome Robinson’s attempts
to discuss employee concerns at team huddle meetings,”
and reasonably tended to interfere with, restrain, or co-
erce her union or protected activities in violation of Sec-
tion 8(a)(1).
It is against this backdrop that, in early October 2015,
Robinson sought a transfer to a CNA position in the ICU.
In accordance with the parties’ collective-bargaining
agreement, Robinson was entitled to the position as the
most senior qualified applicant. Before meeting with
Robinson to discuss the new position in the standard
“meet and greet” session, ICU manager Karen Schulz
contacted Michelle Haaland and Stillings, Robinson’s
former managers, for feedback on Robinson’s work.
Haaland reported that because Robinson had only
worked in the Family Care Unit for a short time (since
August 2015), she did not know much about Robinson;
however, she saw no specific performance problems.
Stillings, who had made the unlawful statement to Rob-

1 The majority asserts that it is “impossible to draw any firm conclu-
sions from the record” as to what precise events precipitated the meet-
ing with Giboney and Stillings, and whether Giboney’s admonishment
of Robinson concerned her protected conduct. I disagree. The record
supports the judge’s implicit finding that Robinson’s “somewhat active
role in expressing concerns (in team huddle meetings and by email)”
led to that admonishment. Robinson testified that her questions at team
huddles concerned working conditions, including the Respondent’s
desire to change starting times for employees and failure to follow
contractual procedures with regard to job postings. And the Respond-
ent has not demonstrated that Robinson’s assertedly “disrespectful”
conduct (i.e. her physical reactions to the Respondent’s positions) re-
ferred to anything other than her protected conduct.
inson, advised Schulz that Robinson had received a Lev-
el 1 conversation for attendance “as well as some disci-
plinary action,” and that there had been issues with Rob-
inson’s performance and behavior. 2
On October 13, Schulz and ICU supervisor Pamela
Sandberg conducted a meet and greet session with Rob-
inson. After inquiring about Robinson’s work experi-
ence and interest in the ICU, Schulz and Sandberg ex-
plained the CNA duties. They noted that the ICU work-
load was heavy and stated that CNAs often had to “hus-
tle” to get work done. Schulz then referenced Robin-
son’s past attendance and behavior problems and stated
that teamwork was of critical importance in the ICU.
Schulz further stated that Stillings had told her that Rob-
inson was “inappropriate, rude and disrespectful” and
“not a team player.” When Robinson disagreed with
these characterizations, Schulz responded that she was
relying on what Stillings had told her and that if Robin-
son came to the ICU Schulz would continue to monitor
her and “go right to corrective action” if Robinson was
rude, disrespectful, inappropriate, absent, or tardy. In
light of Schulz’s assertions about her performance, and
her threats of disciplinary action, Robinson declined the
ICU position, concluding that she “could never work for
someone like [Schulz].”
B. Analysis
1. Section 8(a)(1) violations: Schulz’s statements to
Robinson
The test for evaluating whether an employer’s state-
ment or conduct violates Section 8(a)(1) is whether it has
a reasonable tendency to interfere with, restrain or coerce
employees in their union or protected activities. MEI-
GSR Holdings, LLC, 365 NLRB No. 76, slip op. at 2
(2017). The test is an objective one; neither the employ-
er’s intent nor the employee’s subjective reaction is rele-
vant. Id. (citing Helena Laboratories Corp, 228 NLRB
294, 295 (1977)).

2 In her October 2014 performance review, Robinson was acknowl-
edged as “one of the better cleaners in the EVS department.” The
review noted that she needed to improve her attendance, “communica-
tion with supervisors,” and “acceptance of direction and constructive
criticism.” At the time of her review, Robinson had received only one
“Level 1 conversation” (on September 15, 2014) for failing to complete
her shift in a timely manner. A Level1 conversation is an informal
verbal warning that is placed in the manager’s file for documentation
purposes, and remains active for 6 months. Thus, this Level 1 conver-
sation would have expired by March of 2015, well before Robinson
sought the transfer to the ICU.
On June 30, 2015, Robinson received a “Level 1 conversation” for
having eight unscheduled absences in the preceding 5 months. While
this conversation was “active” at the time of the October 2015 “meet
and greet,” it was not part of Robinson’s personnel file and could not be
used for disciplinary purposes.
MERCY HOSPITAL 7
A straightforward application of this standard compels
a finding that Schulz’s statements to Robinson at the
meet and greet would reasonably tend to chill Robinson
in the exercise of her protected rights, especially when
considered in context. Rather than simply describe the
CNA job already awarded Robinson, Schulz: invoked
Stillings (who had coercively prohibited Robinson from
engaging in protected concerted activity) and repeated
his comments that Robinson was inappropriate, rude,
disrespectful and not a team player; informed Robinson
that she would rely on Stilling’s representations; and
threatened to closely monitor and swiftly discipline Rob-
inson for any perceived infractions. Schulz thereby
made clear that Robinson would constantly work under a
cloud created by a supervisor clearly hostile to Robin-
son’s protected activity. As the judge found, “[s]ince
Stillings’ negative assessment of Robinson was based (at
least in part) on Robinson’s protected concerted and un-
ion activities during EVS department team huddle meet-
ings, and Schulz emphasized that she was relying on
what she had been told by Stillings, Schulz’[s] remarks
to Robinson … had a reasonable tendency to interfere
with, restrain or coerce Robinson’s willingness to engage
in union or protected activities.”3 See Brookdale Univer-
sity Hospital, 335 NLRB 1094, 1095 (2001) (supervisor
violated Section 8(a)(1) by telling shop steward that he
would be monitoring him closely because the steward
filed a grievance on behalf of another employee).
Accordingly, I agree with the judge that the Respond-
ent violated Section 8(a)(1) when Schulz informed Rob-
inson that Stillings had reported that she was “inappro-
priate, rude and disrespectful “ and not a “team player.”
Likewise, I would find that Schulz’s threat to monitor
Robinson’s conduct closely and go right to discipline if
Robinson engaged in additional infractions, was unlaw-
ful.
2. The Section 8(a)(3) violation: Constructive Refusal
to Transfer Robinson
Similarly, and contrary to my colleagues, I agree with
the judge that the Respondent violated Section 8(a)(3)

3 Contrary to the majority, I find that a reasonable employee in Rob-
inson’s position would have ample reason to infer that Schulz had
knowledge of her protected activities based on Schulz’s conduct. First,
Robinson knew that Schulz had consulted with Stillings, as discussed
above. Second, Schulz repeated Stillings’ description of Robinson’s
reputation as “inappropriate, rude, and disrespectful,” and “not a team
player,” despite a lack of evidence in Robinson’s employment record to
support this description. Thus, Robinson would have reasonably con-
cluded that, by repeating Schulz’s description of Robinson, she was
referencing Robinson’s protected conduct. See Kentucky Electric Steel
Acquisitions, 346 NLRB 185, 189–190 (2005) (employer’s references
to employee’s “bad attitude” and failure to be a “team player” are evi-
dence of its animus towards employees’ protected conduct).
and (1) by constructively denying Robinson a transfer to
which she was entitled, although I reach that conclusion
under the Board’s traditional test rather than the “Hob-
son’s choice” theory on which the judge primarily re-
lied.4
In a traditional constructive discharge case, the Board
applies a two-prong test:
First, the burdens imposed upon the employee must
cause, and be intended to cause, a change in his work-
ing conditions so difficult or unpleasant as to force him
to resign. Second, it must be shown that those burdens
were imposed because of the employee's union activi-
ties.
Yellow Ambulance Service, 342 NLRB 804, 807 (2004)
(quoting Crystal Princeton Refining, 222 NLRB 1068, 1069
(1976)). Under the first prong, the “test for intent is not
limited to whether the employer specifically intended to
cause the employee to quit, but includes whether, under the
circumstances, the employer reasonably should have fore-
seen that its actions would have that result.” American Lic-
orice Co., 299 NLRB 145, 148 (1990). The second prong
recognizes that a constructive discharge is unlawful only if
it is implemented because of an employee's union or pro-
tected concerted activity.
Applying the first prong of the traditional test, the rec-
ord establishes that the conditions Schulz imposed on
Robinson’s acceptance of the new position were so oner-
ous or distasteful that Robinson was forced to refuse the
transfer. Moreover, the Respondent either knew or
should have known that Schulz’s conditioning the ac-
ceptance on the onerous conditions would result in Rob-
inson’s declining to accept the transfer.5 It is undisputed
that Robinson, as the most senior, qualified applicant for
the position, was entitled to the ICU position. Yet,
Schulz aggressively sought to dissuade Robinson from
accepting the transfer by: (1) invoking Stillings in her
assessment that Schulz had “major concerns” about Rob-
inson’s work ethic and attitude and repeating Stillings’

4 I find it unnecessary to pass on the applicability of the “Hobson’s
choice” theory here.
5 While the first prong of the test refers to “a change in [the employ-
ee’s] working conditions,” the Board has held that constructive dis-
charge should not be read “so narrowly as to apply only when an em-
ployer has changed an employee’s working conditions.” See, e.g.
American Licorice Co., 299 NLRB 145, 148–149 (1990) (finding a
constructive discharge where an employee resigned due to the employ-
er’s refusal to allow her to transfer shifts because she could not afford
childcare on her current shift.); St. Joseph’s Hospital, 247 NLRB 869,
873, 880 (1980) (finding a constructive discharge where the employer
refused an employee’s request for reduction in work hours to accom-
modate her student schedule). Although the Respondent did not change
Robinson’s working conditions (as she never accepted the ICU posi-
tion), its implicit conditioning of her transfer on her acceptance of
monitoring and swift disciplinary action was tantamount to doing so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8
characterization of Robinson as “inappropriate, rude and
disrespectful,” and “not a team player”; (2) threatening to
closely monitor her conduct; and (3) stating that she
would go right to corrective action if she found Robinson
to be rude, disrespectful, inappropriate, tardy or absent.
In short, despite Robinson’s entitlement to the job,
Schulz made the terms of that transfer so unattractive
that Robinson was essentially forced to reject it.6 See
Yellow Ambulance Service, 342 NLRB 804, 807 (2004)
(quoting Crystal Princeton Refining, 222 NLRB 1068,
1069 (1976)).
Turning to the second prong of the test, the record
demonstrates that the Respondent’s efforts to dissuade
Robinson from accepting the ICU position were connect-
ed to her prior protected conduct during team meetings
and in emails to supervisors. More specifically, it was
Stillings’ comments that led Schulz to tell Robinson that
she was “inappropriate, rude and disrespectful,” and “not
a team player.” This description, in and of itself, evinces
antiunion animus, given that Stillings had previously
singled Robinson out for her protected conduct at group
huddle meetings. Further, there was no evidence support-
ing such a description in Robinson’s disciplinary record.7
See Intercom I (Zercom), 333 NLRB 223, 223–224
(2001) (judge found “reference to [employee’s] ‘negative
attitude’ was a euphemism for her prounion activity, and
that [employee] could infer that the Respondent's unlaw-
ful conduct was a form of retaliation for her union activi-
ties”). Finally, Schulz’s threat at the meet and greet to
closely monitor and swiftly discipline Robinson provides
additional evidence that Schulz herself was motivated by
animus.8

6 I disagree with the majority’s assertion that Schulz described, at
most, an “unpleasant” workplace, rather than creating a sufficiently
compelling reason for Robinson to refuse the transfer. Schulz’s pre-
conditions constituted thinly veiled threats of unlawful surveillance and
retaliation in the event that Robinson decided to accept the position and
engage in any future “misconduct” (i.e., protected concerted conduct).
When viewed in context—at a “meet and greet,” intended simply to
familiarize Robinson with the new job to which she was entitled—
Schulz’s negative predisposition towards Robinson compelled her to
refuse the position.
7 As noted above, at the time of the October 13 meet and greet, Rob-
inson had only one “Level 1” conversation in effect for unexcused
absences.
8 While the majority asserts that there is no direct evidence that
Schulz knew of Robinson’s protected conduct at team huddles, direct
evidence is not required. As the Board noted in Bruce Packing Co.,
357 NLRB 1084, 1086–1087 (2011), enfd. in pertinent part 795 F.3d 18
(D.C. Cir. 2015), “[t]he Board ordinarily imputes a supervisor's
knowledge of an employee's union activities to the employer unless it is
affirmatively established that the supervisor who obtained such
knowledge did not pass the information on to others.” See also Ready
Mixed Concrete Co., 317 NLRB 1140, 1146 at fn. 18 (1995), enfd. 81
F.3d 1546 (10th Cir. 1996); C & L Systems Corp., 299 NLRB 366, 378
(1990), enfd. 935 F.2d 270 (6th Cir. 1991). Here, there is no credited
In sum, I would agree with the judge’s common sense
conclusion that any reasonable employee would decline a
position where her new boss was predisposed to find
fault with her performance from the outset (based on her
prior protected conduct), and had promised to swiftly
discipline her for any such future “misconduct.” Accord-
ingly, I would find that the Respondent violated Section
8(a)(3) by constructively denying Robinson a transfer to
which she was entitled.
Dated, Washington, D.C. August 20, 2018

______________________________________
Mark Gaston Pearce, Member

NATIONAL LABOR RELATIONS BOARD

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT inform employees that they cannot ask
questions in group huddle meetings and can only ask

evidence that Stillings (who undisputedly knew of Robinson’s protect-
ed conduct) did not pass on the information to Schulz. To the contrary,
the judge found: “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.”
Moreover, it is undisputed that Stillings’ assessment of Robinson
(i.e. that she was “inappropriate, rude and disrespectful” and “not a
team player”) was influenced by his antiunion animus, and figured
substantially in Schulz’s ultimate decision to dissuade Robinson from
taking the job. Thus, even absent direct evidence of knowledge of
Robinson’s protected conduct, such knowledge can be imputed to
Schulz because Stillings had “direct input” into the decision making
process. See Bruce Packing Co, 357 NLRB at 1086 (“case law is clear
that the antiunion motivation of a supervisor will be imputed to the
decision-making official, where the supervisor has direct input into the
decision”).
MERCY HOSPITAL 9
questions for themselves individually and not on be-
half of other employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights listed above.
MERCY HOSPITAL

The Board’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.

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 consol-
idated 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 (Re-
spondent) must follow when filling work assignments in its
Environmental Services (EVS) department (the case also in-
cludes three alleged unlawful statements, two of which relate to
the work assignments issue).2 As part of its defense, Respond-
ent 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

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 sched-
ules,” 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., environmen-
tal services aide; certified nursing assistant). In so doing, I do not take
a position on which side is correct regarding whether or not the disput-
ed terms (work assignment, position, workweek schedule) are syno-
nyms.
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 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.
As explained below, I agree with Respondent’s deferral ar-
gument 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 1127, 1138–1139 (2014), however, the 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. According-
ly, I decided those allegations on the merits, finding that Re-
spondent did not violate the Act when it stated its position
about how it would handle work assignments, but also finding
that Respondent did violate the Act when it told Robinson that
she was not allowed to ask questions in front of other employ-
ees at team huddle meetings.
As for Case 18–CA–163045, I agree with the General Coun-
sel that Respondent violated the Act by making unlawful state-
ments to Robinson during her interview with ICU managers,
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 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
Counsel issued a consolidated complaint covering both of the
cases listed above.
In connection with Case 18–CA–155443, the General Coun-
sel 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:

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 Since about late May

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.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10
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 creating and filling positions by “best
fit” rather than using “seniority as far as practicable and con-
sistent with proper hospital management” or whether the em-
ployee “possesses the necessary capabilities to perform the
work,” and thereby modifying Article 14(f) of the collective-
bargaining agreement;

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 the mother-baby birthing center
and directly soliciting employees to fill those positions;

In about late May 2015, dealing directly with an employee re-
garding an open EVS position; and

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).)
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 Re-
spondent did not have to include 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

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).)

In connection with Case 18–CA–163045, the General Coun-
sel 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 miscon-
duct during a job interview on or about October 13, 2015:

Threatening that EVS department manager Charles Stillings
advised Intensive Care Unit (ICU) department manager Karen
Schulz that Robinson was inappropriate, disrespectful and not

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.)
a team player;

Threatening that if Robinson obtained a job in the ICU de-
partment, Robinson would face close surveillance by Schulz;

Threatening that if Robinson obtained a job in the ICU de-
partment, Robinson would be disciplined for engaging in Un-
ion or other protected concerted activities; and

Through its misconduct during the interview, constructively
denying Robinson a transfer to a job in the ICU department.

(GC Exh. 1(q).)

Respondent filed a timely answer (and a timely amended an-
swer) denying the alleged violations in the consolidated com-
plaint, 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.
On the entire record,6 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT7
I. JURISDICTION
Respondent, a Minnesota corporation with an office and
place of business in Coon Rapids, Minnesota, operates a medi-
cal center providing acute-care and clinical health services.
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 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 PRACTICES
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:

[A]ll full-time and regular part-time nonprofessional employ-
ees listed in Appendix C of the parties most recent collective-
bargaining agreement, employed by Respondent at its Coon

6 The transcripts and exhibits in this case generally are accurate, but
I hereby make the following corrections to the record: p. 12, l. 24:
“interest” should be “inference”; p. 86, l. 14: “plaintiffs” should be
“parties”; p. 129, l. 11: “for” should be “four”; p. 138, l. 11: “for”
should be “four”; p. 258, l. 17: “Paul” should be “Paula”; p. 343, l. 19:
“member” should be “memory” and p. 669, l. 24: “you” should be “you
don’t.”
7 Although I have included several citations in this decision to high-
light particular testimony or exhibits in the evidentiary record, I empha-
size 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.
MERCY HOSPITAL 11
Rapids, Minnesota facility, excluding all other employees, of-
fice clerical employees, and guards and supervisors as defined
by the Act.

The Union and Respondent have negotiated and executed suc-
cessive collective-bargaining agreements, including a collec-
tive-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.)
Apart from the dispute in this case, the Union and Respond-
ent 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 con-
cern as they arise. (Tr. 51, 109–111, 257, 621–623, 632.)
To the extent that the need to use the grievance and arbitra-
tion 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 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 (Art. 7).) More generally, Article I of the collec-
tive-bargaining agreement 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 [Respond-
ent] against any employee because of membership or non-
membership in the Union or because of the assertion of rights
afforded by [the collective-bargaining agreement]; and
. . .
[Respondent] agrees not to enter into any agreement or con-
tract with its employees who are in classifications covered by
[the collective-bargaining agreement], either individually or
collectively, which conflicts with any of the provisions of [the
collective-bargaining agreement].

(GC Exh. 2 (Art. I, Secs. C–D).)

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 custodi-
al 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 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.)
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 which EVS employees would select their sched-
ules by seniority. (GC Exh. 4, p. 15; see also GC Exh. 2 (stat-
ing, in Art. 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 man-
agement”).) Initially, Respondent disagreed with the Union,
but by the end of the meeting, the Union left with the impres-
sion that Respondent agreed to conduct a rebid of EVS work-
week 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, Respond-
ent subsequently proceeded to establish new workweek sched-
ules in the EVS department without following seniority order.
(GC Exh. 4, p. 19.)
C. Fall 2013—the Union Files a Grievance about Respond-
ent’s Decision to Establish Workweek Schedules in the EVS
Department without Regard to Seniority
On September 24, 2013, the Union filed a grievance to assert
that Respondent violated Articles 14, 16, and 18 of the collec-
tive-bargaining agreement when Respondent decided to assign
new job duties and start times to EVS employees without re-
gard to seniority. As a remedy for the alleged violation, the
Union requested that “EVS Members should be allowed to bid
on their start times and job duties in seniority order” and should
be made whole for any and all losses. (GC Exh. 3.)
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 otherwise re-
quired to conduct a rebid allowing employees to select assign-
ments by seniority.” (R. Exh. 3 (p. 2).)
D. March 16, 2015—Arbitrator Sustains Union’s Fall 2013
Grievance about Workweek Schedules in the EVS Department
On March 16, 2015, an arbitrator sustained the Union’s fall
2013 grievance and ordered Respondent to “establish work-
week 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 Article 14(f) of the collective-bargaining agreement

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12
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 depart-
ment by seniority, and decided that Respondent could not be
allowed to renege on or rescind that 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
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 assign-
ments in seniority order. Respondent asserted, however, that
the rebid would be a one-time-only event based on the arbitra-
tor’s decision, and 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 infor-
mation 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 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:

As a result of an arbitrator’s decision we will be conducting a
re-bid in Environmental Services in which you will bid on po-
sitions with an expected job assignment attached. This means
you will be able to review all the Duty Lists for the depart-
ment. Then in order of seniority you will be able to choose
the Duty List (assignment) that is of interest to you. This will
become your primary assignment, where you would be regu-
larly 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.
. . .
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.
. . .
All changes will be effective on the schedule that begins June
13, 2015, unless otherwise agreed between the employee and
the manager.

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 Re-
spondent’s notes from the April 2015 meetings. (See R. Exhs. 5, 37–
38; Tr. 87–89, 627–632.)
(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 predeter-
mined time and selecting a shift and work assignment in senior-
ity order. Through the rebid process, several employees re-
ceived different shifts or work assignments because more sen-
ior employees in the department bumped them from their pre-
vious 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 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-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 opportunity to discuss new or changing work-
week 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 fol-
lows, in pertinent part:

Job Vacancies: Vacancies or new positions shall be awarded
to the senior employee applicant where the employee current-
ly 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. . . .

(1) Posting of Vacancies: All job vacancies within the bar-
gaining 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:

a. Minimum qualifications based on the job requirements.
b. Classification, facility, FTE status, shift, department, and
starting wage.
c. The date of the posting

(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:

1. On or about May 18, Respondent created four new posi-
tions in the EVS department: one part-time position on the
day shift (FTE 0.5 – posting 10488BR); two full-time posi-
tions on the day shift (FTE 1.0 – posting 9736BR);10 and one

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
MERCY HOSPITAL 13
full-time position on the evening shift (FTE 1.0 – posting
9755BR). In or about late May 2015, 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 re-
plied 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. 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 infor-
mation, including a description of expected job duties, that
Stillings sent to the recruiters before the new positions were
approved and formally posted); Tr. 459–464 (discussing GC
Exh. 37); Findings of Fact (FOF), Section II(E) (noting 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 new po-
sitions that Respondent posted on May 18 for the EVS de-
partment. Hanuman responded that he thought Stillings al-
ready told Robinson that information. Later in the shift,
Stillings “beeped” Robinson, who responded by calling
Stillings on the telephone. The following discussion oc-
curred:

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 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.

(Tr. 295–296.)13

“funneling,” where a single posting number covers more than one posi-
tion. 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 supervi-
sor 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.)
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 meet-
ing or his remarks to Robinson after the meeting. Regarding the meet-
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 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 assign-
ment was not posted or offered to other employees (based on
seniority or 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 already held a full-time evening shift posi-
tion 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 as-
signments based on “best fit.” (Tr. 292, 296–299, 301–302,
791–794; GC Exh. 21.)

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 fill-
ing the work assignment in seniority order. (Tr. 178–179,
182, 304–305, 787, 789–791, 822–823; 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, re-
garding filling permanent project worker assignments by sen-
iority).)

5. On or about June 8, Stillings told union stewards Karen
Cullen and Rita Matthews that Respondent could place em-
ployees in work assignments, or switch employee work as-
signments, based on best fit (for the position and/or for the
hospital). (Tr. 152–154; see also Tr. 112–114 (noting that

ing 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 Robin-
son. (Tr. 801–802.)
As for what Stillings said to Robinson after the team huddle meet-
ing, 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 moth-
er-baby birthing center.
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.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14
Cullen is both an employee and a union 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 Re-
spondent would not post work assignments).)

6. On or about June 12, Stillings advised employees in a team
huddle meeting that if they were not happy with their posi-
tions/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.)

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 re-
sponded that employee Patricia Wagner had the 2 Heart as-
signment.15 When Robinson objected that Respondent did
not post the 2 Heart assignment, and that she (Robinson) had
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 as-
signments with Robinson after Robinson stated that she
would file a grievance if she did not receive the 2 Heart as-
signment.16 Stillings approved the changes to Robinson’s and
Wagner’s work assignments, and thus Robinson began work-
ing 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.)

8. In fall 2015, Stillings and Hanuman approached EVS de-
partment 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 posi-
tion/assignment). Johnson, who was in a daytime float-
er/relief assignment that she selected in the May 2015 rebid,

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., with-
out first giving it to Wagner), and then a couple of days later gave the
basement assignment to Wagner. (See Tr. 794, 797–799.) I have cred-
ited 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 re-
mained cautious about seniority issues in October 2015, when Stillings
contacted her about taking an operating room work assignment. Ulti-
mately, 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 as-
signment (or take any other steps) to ensure that it made the assign-
ments based on seniority order.
said she would think about it. A few days later, Hanuman
again asked Johnson if she wanted to switch to the mother-
baby birthing center assignment, and Johnson agreed. Re-
spondent 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 assign-
ments to employees who had less 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 op-
erating room work assignment if one became available.
When Wagner asked if she was the most senior person and
would have to apply for the work assignment, Stillings re-
sponded 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 con-
tacted 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 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 prac-
tice when Respondent took the actions listed above. Respond-
ent, on the other hand, maintains that the collective-bargaining
agreement and past practice do not require Respondent to fol-
low 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 Respond-
ent was making job assignments in violation of the collective-
bargaining agreement and the March 2015 arbitration award.
Respondent denied 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; September 1, 2015 step 2 grievance
denial).) While the grievance was pending, the Union also filed
an unfair labor practice charge concerning Respondent’s han-
dling of job assignments. (GC Exh. 1(a) (unfair labor practice
charge filed on July 6, 2015).)
G. Angel Robinson—Employment and Disciplinary
Background
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
about various changes that Crothall made after it began manag-
ing 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

17 Giboney served as the EVS department manager from approxi-
mately July 2013 to January 2015. Stillings was an EVS department
MERCY HOSPITAL 15
stewards accompanied Robinson to the meeting, and Stillings
also 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 miscon-
duct. (Tr. 289–291.)
On September 15, 2014, Robinson received a “Level 1 con-
versation” for taking too much time to complete certain clean-
ing 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 com-
plete). (R. Exh. 17.)
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.)
On June 30, 2015, Robinson received a “Level 1 conversa-
tion” for having eight unscheduled absences in the preceding 5
months. The level 1 conversation remained active in until De-
cember 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 conversa-
tion will not be included in an employee’s personnel file, can-
not be used in later 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
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
Network (AKN), Respondent’s internet-based system for post-
ing 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 get acquainted and discuss
the specific job duties that Robinson would perform if Robin-
son accepted the position.19 (Tr. 308–310, 670–674.) Before

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 “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.)
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 issues.20 (Tr. 673–675, 679–681.)
Haaland and Robinson conducted the meet and greet inter-
view as scheduled. During their 10–minute conversation, Haa-
land did not speak with Robinson about her specific attendance
issues, but did discuss the attendance process and advise Rob-
inson that she (Haaland) 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.)
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 addi-
tion, Robinson was disappointed to learn that she was assigned
to work more day shifts each week than she expected. (Tr. 311,
676.)
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 of-
ten than expected, Robinson became interested in considering
other CNA positions at the hospital. Accordingly, when a re-
cruiter notified Robinson that she was the most senior applicant
for a 0.5 FTE evening position in the ICU that she had applied
for, Robinson responded that she was still interested in the posi-
tion and asked the recruiter to set up a meet and greet interview
with ICU manager Karen Schulz. (Tr. 311, 356, 713.)
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 Rob-
inson but had not had any specific performance problems with
her. Haaland also noted that she understood Robinson had
some performance issues and a corrective action for attendance
when Robinson was in the EVS department. Haaland suggest-
ed that Schulz contact Stillings for more information about
those issues.22 (Tr. 677–679, 686–687, 712; see also Tr. 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 U. Exh. 8 (stating that a level 2 verbal warning “will be
used for purposes of establishing a corrective action plan”).)
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16
713 (explaining that Schulz normally contacts the job appli-
cant’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 appli-
cant so “they know 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 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, resigna-
tions, and transfer to other departments and plan on losing 2
more to transfers. These individuals have had several conver-
sations with EVS leadership about their negative behaviors and
rumor spread[ing] that essentially poisoned the department”).)23
Schulz advised ICU patient care supervisor Pamela 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 inter-
view sheet to ask Robinson a series of questions about topics
such as Robinson’s work history and experience, why Robinson

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 Rob-
inson 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 approx-
imately 2 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 Op-
erating Room. (See R. Posttrial Br. at 35–36, 47–48, 63–64.) Re-
spondent’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 dif-
ferent conversations about Robinson with the managers of the Family
Care Unit (Haaland), the ICU (Schulz) and the OR (Dooher), depend-
ing on what those managers asked and how much detail they requested
about Robinson’s time in the EVS department.
wanted to come to the ICU, and how Robinson manages a busy
work load. Sandberg then described the job duties that Robin-
son 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 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 discus-
sion, Schulz emphasized the importance of attitude, profession-
alism, teamwork and fulfilling the commitment to care, particu-
larly 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 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, disrespect-
ful, inappropriate, tardy or absent in the ICU.24 (Tr. 315–318,

24 I did not credit certain portions of Schulz’ and Sandberg’s testi-
mony 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 play-
er. (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 re-
quested 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 sup-
porting 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 mon-
itor 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 be-
MERCY HOSPITAL 17
357–358, 368, 691–692, 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 critical-
ly 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
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
After Robinson declined the CNA position in the ICU, the
recruiter advised Robinson that she was the most senior appli-
cant for a 1.0 FTE day/evening CNA position in the operating
room. Accordingly, Robinson scheduled a meet and greet in-
terview with operating room manager David Dooher. (Tr. 321,
358–359, 734, 738–739; R. Exhs. 43(a), 43(c).)
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.)
On or about October 20, Robinson met with Dooher for their
meet and greet interview. Dooher explained that although Rob-
inson 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 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

cause H.H.’s manager did not report any concerns about H.H.’s attend-
ance. (See fn. 25, infra.)
And third, I did not give any weight to Schulz’ and Sandberg’s tes-
timony 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. subse-
quently was offered and accepted the CNA position in the ICU. (Tr.
697–698, 702–703, 720–721; R. Exhs. 40, 42.)
disciplinary process would continue, but would not have an
effect on his hiring Robinson. 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.)
After the meet and greet with Dooher, Robinson was con-
cerned 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).)
DISCUSSION AND ANALYSIS
A. Witness Credibility
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 848, 860–861 (2014); see
also Roosevelt Memorial Medical Center, 348 NLRB 1016,
1022 (2006) (noting that 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 ver-
sion of events, particularly when the witness is the party’s
agent). Credibility findings need not be all-or-nothing proposi-
tions—indeed, nothing is more common in all kinds of judicial
decisions than to believe some, but not all, of a witness’ testi-
mony. Farm Fresh Co., Target One, LLC, 361 NLRB 848,
861. To the extent that I have made them, my credibility find-
ings are set forth above in the findings of fact for this decision.
B. Respondent’s Request that the Dispute in Case 18–CA–
155443 be Deferred to Arbitration
1. Background
On December 23, 2015, Respondent filed a motion to sever
Case 18–CA–155443 from 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 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 Respondent’s request for special per-
mission to appeal Judge Amchan’s order, finding that Respond-
ent failed to establish that Judge Amchan abused his discretion
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18
in denying Respondent’s motion.26
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 Respond-
ent’s request.
2. Applicable legal standard for prearbitration 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. Francis Regional Medical Center,
363 NLRB No. 69, slip op. at 17 (2015); United Hoisting &
Scaffolding, Inc., 360 NLRB 1258, 1261 (2014); see also Col-
lyer 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 8(a)(3) or 8(a)(1) allegations to the arbitral process “un-
less the parties have explicitly authorized the arbitrator to de-
cide the unfair labor practice issue, either in the collective-
bargaining agreement or by agreement of the parties in a par-
ticular case.” Babcock & Wilcox Construction Co., 361 NLRB
1127, 1138–1139 (2014). The Board held that this new stand-
ard would only apply prospectively, and thus would not apply
to contracts existing at the time of its decision. Id. 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 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 em-
ployees’ exercise of protected rights;
whether the agreement provides for arbitration in a very broad
range of disputes;
(3) whether the arbitration clause clearly encompasses the
dispute at issue;
(4) whether the employer asserts its willingness to resort to
arbitration for the dispute; and
(5) 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 1127, 1127 fn. 2 (noting that the Board did not ad-
dress the standard for deferral 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 preference to employees in accordance
with seniority as far as practicable and consistent with proper

26 In a footnote to the Board’s February 9, 2016 order, Board Mem-
ber 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.”
hospital management” when establishing workweek schedules.
(FOF, Section F.) Most 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 sen-
iority 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. 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 Arti-
cle 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 (among other
requirements) must post job vacancies for seven days, and must
award vacancies or new positions to the senior employee appli-
cant 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 Respond-
ent did not post vacant work assignments in the EVS depart-
ment, and also filled those work assignments by “best fit,” in-
stead of awarding them to the 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 Arti-
cle 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 Arti-
cle 18 (as well as Article 14(f), as discussed above).
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 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?
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 Un-
ion being correct that Article 14(f), Article 18 and/or past prac-
tice establish job posting, seniority and other requirements that
Respondent must satisfy when making work assignments. Re-
spondent, on the other hand, maintains that it is allowed to use
its discretion when making work assignments, including speak-
ing 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
8(a)(1) by: threatening an employee during a team huddle meet-
ing that Respondent did not have to include EVS positions in a
MERCY HOSPITAL 19
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 go-
ing to continue filling open positions by “best fit” and not sen-
iority. (See GC Exh. 1(g) (par. 5).)
4. Analysis of request for deferral—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 8(a)(3) and 8(a)(1) allega-
tions 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 arbi-
trator to decide the unfair labor practice issue, either in the
collective-bargaining agreement or by agreement in this case.
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 dis-
crimination against employees because of union membership or
nonmembership or because of the assertion of any rights under
the agreement, and permits arbitration of “[a]ny claim of an
employee arising out of the interpretation, application, or ad-
herence 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 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 deferra-
ble and accordingly I shall decide those allegations on the mer-
its.
5. Analysis of request for deferral—8(a)(5) allegations in Case
18–CA–155443
a. Long and productive bargaining relationship?
The Union and Respondent have shared a long and produc-
tive bargaining relationship 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. (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 relation-
ship 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).
b. Claim of employer animosity to employees’ exercise of
protected rights?
The General Counsel’s evidence that Respondent has ani-
mosity to employees’ exercise of protected rights is based on its
allegations in the consolidated complaint. In Case 18–CA–
155443, the General Counsel alleged that Respondent: threat-
ened an employee that Respondent did not have to include EVS
positions in a rebid; threatened Angel Robinson that she was
not 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 de-
ferred), the General Counsel alleged that Respondent: threat-
ened 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; 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.
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 agree-
ment. 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
II(A).) In addition, shortly before the dispute in Case 18–CA–
155443 arose, the parties used the arbitration procedure to re-
solve a dispute about changes that Respondent made to work-
week schedules. When the arbitrator ruled in the Union’s fa-
vor, 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 disagreements, I
cannot find that it would be futile now for the parties resolve
the dispute in Case 18–CA–155443 via arbitration. See Bab-
cock & 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); Clarkson Industries, 312 NLRB
349, 352 & fn. 16 (1993) (finding that allegations of an unlaw-
ful threat and an unlawful disciplinary warning were “not so
egregious as to render the use of the arbitration machinery un-
compromising or futile”); compare St. Francis Regional Medi-
cal 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 activity related to processing the unit member’s
grievance, and thus demonstrated a sufficient degree of hostility
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20
to make deferral inappropriate).
c. Does the agreement provide for arbitration in a very broad
range of disputes?
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 arbitra-
tion procedure covers the following types of disputes:

Any claim of an employee arising out of the interpretation,
application, or adherence to 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).)
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 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, stat-
ing: “It is also the General Counsel’s understanding . . . that
Respondent is not disputing that [work] assignments have been
changed 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?
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 Defens-
es, 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 promptly arbitrate this dis-
pute”); 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

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 pro-
cedural 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. Con-
sistent with my finding, I note that Respondent expressed its willing-
ness 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).
f. Suitability of the dispute to resolution by arbitration?
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 provi-
sion at issue is unambiguous. San Juan Batista Medical Cen-
ter, 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 agreement is at the heart of the dispute
between Respondent and the Union about work assignments
and job vacancies, and specifically about what guidelines Re-
spondent 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 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 assign-
ments. Thus, according to Respondent, the collective-
bargaining agreement implicitly allows Respondent to use its
discretion when making work assignments in the EVS depart-
ment (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 in-
terpretation to an arbitrator in early 2015 in connection with the
Union’s grievance about Respondent’s fall 2013 decision to
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 oppor-
tunity for the Union and Respondent to use the arbitration pro-
cedure 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 department.
In connection with my assessment that the Section 8(a)(5) al-
legations 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 assignments” and how those
should be handled when openings arise or employees wish to
change assignments. Further, to the extent that the parties as-
serted 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 post-
ings that do not specify specific work assignments vs. witness
testimony that managers often told employees the work as-
signment 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 ques-
tions. See San Juan Batista Medical Center, 356 NLRB at 737
(indicating that a dispute is suitable for resolution by arbitration
MERCY HOSPITAL 21
when “resolution of the dispute primarily requires interpretation
of the collective-bargaining agreement”); see also 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 factors
Considering all of the factors, I agree with Respondent that
the 8(a)(5) allegations in Case 18–CA–155443 should be sev-
ered from the consolidated complaint and deferred to arbitra-
tion. Most of the factors clearly weigh in favor of deferral,
insofar as: the Union and Respondent have a long and produc-
tive collective-bargaining relationship; the collective-
bargaining agreement provides for arbitration in a broad range
of disputes; the arbitration clause clearly encompasses the
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 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 obligations
when making work assignments. It is appropriate for an arbi-
trator 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
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 fa-
vor piecemeal litigation. See St. Francis Regional Medical
Center, 363 NLRB No. 69, slip op. at 17. The Board’s new
requirements for when 8(a)(3) and (1) allegations may be de-
ferred 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
resolve others on the merits (i.e., without deferral). See, e.g.,
Clarkson Industries, 312 NLRB at 351–353 & fn. 19–20 (find-
ing that deferral was appropriate for unilateral change and sub-
contracting 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-bargaining agreement),28 while
deciding three 8(a)(1) allegations in Case 18–CA–155443 on

28 This includes the direct dealing allegations in Case 18–CA–
155443, which, if the Union were to prevail, the arbitrator might reme-
dy 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).
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 sev-
ered and deferred to arbitration. (See GC Exh. 1(q) (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 State-
ments in the EVS Department that Violated Section
8(a)(1) of the Act?
1. Complaint allegations
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by making the following statements:

(a) in about late May 2015, threatening an employee that Re-
spondent did not have to include EVS positions in a rebid;

(b) in about early June 2015, threatening an employee (Robin-
son) that she was not allowed to ask questions in the presence
of other employees at team huddle meetings; and

(c) on or about June 8, 2015, threatening a union steward
(Cullen, who was also an employee) that Respondent was go-
ing to continue filling open positions by “best fit,” and not
seniority.

(GC Exh. 1(q) (par. 5(a)–(c)).)
2. Applicable legal standard
Under Section 7 of the Act, employees have the right to en-
gage in concerted activities for 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 state-
ments or conduct have a reasonable tendency to interfere with,
restrain or coerce union or protected activities. Farm Fresh
Co., Target One, LLC, 361 NLRB 848, 861 (noting that the
employer’s subjective motive for its action is irrelevant); Yo-
shi’s Japanese Restaurant & Jazz House, 330 NLRB 1339,
1339 fn. 3 (2000).
3. Analysis
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 follow-
ing statements in those various conversations:

(1) In or about late May 2015, Stillings advised employees in
a team huddle meeting that new positions in the EVS depart-
ment 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.

(2) In or about late May 2015, Stillings contacted Robinson
after a team huddle meeting in which Robinson had asked su-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22
pervisor Chandica “Rudy” Hanuman questions about what
kind of work employees would do in the new positions that
Respondent posted for the EVS department. Stillings told
Robinson that if she had questions, she could only ask for her-
self (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 steward Rita Matthews that Re-
spondent 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).)

Respondent did not violate Section 8(a)(1) of the Act when
Stillings stated that the new positions in the mother-baby birth-
ing center did not need to be included in the May 2015 rebid.
Nor did Respondent violate Section 8(a)(1) when Stillings as-
serted 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-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

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 depart-
ment.
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 dis-
regard 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
Sec. 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 Re-
spondent made an explicit statement that could reasonably be construed
as asserting that it was futile for employees to be represented by a un-
ion. 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 nego-
tiate 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 Sec. 8(c) of
the Act (stating that the “expressing of any views, argument, or opin-
ion, 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”).
facility was not yet open. (See FOF, Section II(E).) And, per-
haps most important, the employees who heard Stillings’ state-
ments on those issues remained free to disagree with Respond-
ent’s position, and also remained free to seek the Union’s sup-
port in addressing any concerns. Under those circumstances, I
cannot find that Stillings’ statements on these points had a rea-
sonable tendency to interfere with, restrain or coerce union or
protected activities. Accordingly, I recommend that the allega-
tions in paragraphs 5(a) and (c) of the complaint be dismissed.
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 condi-
tions of employment not only for herself, but also for other
employees. In so doing, Stillings sent a message that Respond-
ent 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, re-
strain or coerce Robinson’s union or protected activities. 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 activi-
ties 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”).
D. Case 18–CA–163045: Did Respondent Engage in Unlawful
Misconduct when Robinson Applied for a Transfer to the ICU?
1. Complaint allegations
The General Counsel alleges that Respondent violated Sec-
tion 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 in-
terview on or about October 13, 2015:

(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 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

(d) through its misconduct during the interview, constructive-
ly denying Robinson a transfer to a job in the ICU.

(GC Exh. 1(q) (pars. 5(d)–(f), 6).)
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 state-
ments or conduct have a reasonable tendency to interfere with,
restrain or coerce union or protected activities. Farm Fresh
Co., Target One, LLC, 361 NLRB 848, 847.
MERCY HOSPITAL 23
The Board has recognized two constructive discharge theo-
ries: 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 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 im-
posed because of the employee’s union activities. Yellow Am-
bulance Service, 342 NLRB 804, 807 (2004); Intercon I
(Zercom), 333 NLRB 223, 223 fn. 3 (2001). The Board has
explained that regarding the first part of the legal standard, “the
test for intent is not limited to whether the employer specifical-
ly intended to cause the employee to quit, but includes whether,
under the circumstances, the employer reasonably should have
foreseen that its actions would have that result.” Yellow Ambu-
lance 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 contin-
ued 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 une-
quivocal and the employee’s predicament not one which is left
to inference or guesswork. Intercon I (Zercom), 333 NLRB at
224 & fn. 9.
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 most senior qualified applicant for the CNA position in the
ICU. As a result, under the seniority rules set forth in the col-
lective-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. (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 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 appli-
cant 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 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 depart-
ment manager Karen Schulz and ICU patient care supervisor
Pamela Sandberg told 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;

(2) That attitude, professionalism, teamwork and the com-
mitment 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 her that Rob-
inson was inappropriate, rude and disrespectful, and was not a
team player;

(4) That if Robinson came to the ICU, Schulz would monitor
those issues (i.e., Robinson’s attendance, discipline and be-
havior) closely and go right to corrective action if Robinson
was rude, disrespectful, inappropriate, absent or tardy.

(FOF, Section II(I).) The evidentiary record also shows that
when a recruiter later notified Robinson that the ICU depart-
ment 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.)
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, inappropriate, absent or tar-
dy. Each of those statements put Robinson on notice that Rob-
inson essentially would come to the ICU with a negative mark
on her record based on Stillings’ report to Schulz, and as a re-
sult 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 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 unlaw-
ful 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) (de-
scribing instances where EVS department management con-
fronted Robinson about her conduct in team huddle meetings);
Analysis, Section C(3); see also Farm Fresh Co., Target One,
LLC, 361 NLRB 848, 865 (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 employ-
ee’s work because of his union activities).
Finally, I find that Respondent, through Schulz, constructive-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24
ly denied Robinson’s request to transfer to the ICU. The Hob-
son’s Choice theory is applicable here, because Schulz’ re-
marks 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 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 quali-
fied applicant.30 It was unlawful for Respondent to put such a
choice to Robinson, particularly where Schulz was 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 Robinson to decline the transfer to the ICU (to
which she was entitled based on seniority),32 I find that Re-
spondent violated Section 8(a)(3) and (1) of the Act by con-
structively denying Robinson’s request to transfer to the ICU. 33

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).
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, be-
cause 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 de-
clined 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 conversa-
tion 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 tradi-
tional 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 work-
CONCLUSIONS OF LAW
1. By, in or about late May 2015, threatening employee An-
gel Robinson that she was not allowed to ask questions of su-
pervisors in the presence of other employees at team huddle
meetings, Respondent violated Section 8(a)(1) of the Act.
2. By, on or about October 13, 2015, threatening Robinson
that EVS department manager Charles Stillings told ICU man-
ager Karen Schulz that Robinson was inappropriate, rude and
disrespectful, and was not a team player (at least in part be-
cause of Robinson’s union or protected concerted activities),
Respondent violated Section 8(a)(1) of the Act.
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.
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. 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 concert-
ed activities and to discourage employees from engaging in
those activities, Respondent violated Section 8(a)(3) and (1) of
the Act.
6. By committing the unfair labor practices stated in conclu-
sions 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 con-
solidated complaint are hereby severed and dismissed to allow
the Union and Respondent to resolve those issues through arbi-
tration as set forth in the collective-bargaining agreement. I
recommend that the Board retain jurisdiction over those com-
plaint allegations for the limited purpose described in the order
accompanying this decision.
8. I recommend dismissing the allegations in paragraphs
5(a) and (c) of the consolidated complaint.
REMEDY
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 in the ICU, must offer Robinson
the opportunity to transfer to such a position or to a substantial-

ing conditions (including close monitoring and swift discipline by
Schulz) because of her history of engaging in protected concerted activ-
ities 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.
MERCY HOSPITAL 25
ly 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).
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). Ad-
voserv of 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
ORDER
Respondent, Mercy Hospital, Coon Rapids, Minnesota, its
officers, agents, successors, and assigns, shall
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.
(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.
(c) Threatening Robinson that if she accepted a position in
the ICU, Respondent would take corrective action if ICU man-
ager 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).
(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 activi-
ties.
(e) Constructively denying Robinson’s request to transfer to
a CNA position in the ICU, at least in part because of Robin-
son’s union or protected concerted activities and to discourage
employees from engaging in those activities.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate 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, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.

34 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(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.
(c) Compensate Angel Robinson for the adverse tax conse-
quences, 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 ap-
propriate calendar year(s).
(d) Within 14 days after service by the Region, post at its
facility in Coon Rapids, Minnesota, copies of the attached no-
tice marked “Appendix.”35 Copies of the notice, on forms pro-
vided 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 conspicuous places including all places where notices to
employees are customarily posted. In addition to physical post-
ing of paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if 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 any other material. In the
event that, during the pendency of these proceedings, Respond-
ent 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.
(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 consolidated complaint are severed and
dismissed. The Board shall retain jurisdiction over this pro-
ceeding 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 Or-
der, either been resolved by amicable settlement in the griev-
ance 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
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 26
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT 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 in-
appropriate, 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 disre-
spectful while engaging in union or protected concerted activi-
ties.
WE WILL NOT threaten employees that they will face close
monitoring because of their union or protected concerted activi-
ties.
WE WILL NOT constructively deny Angel Robinson’s request
to transfer to a CNA position in the ICU, at least in part be-
cause 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, re-
strain, or coerce employees in the exercise of the rights guaran-
teed 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 posi-
tion, without prejudice to her seniority or any other rights or
privileges previously enjoyed.
WE WILL make Angel Robinson whole for any loss of earn-
ings 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, ei-
ther by agreement or Board order, a report allocating the back-
pay award to the appropriate calendar year(s).
MERCY HOSPITAL
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/18-CA-155443 or by using the QR code be-
low. 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.