Montefiore Medical Center

National Labor Relations Board - Administrative Judge Opinions

May 30, 2019

02-CA-229024 (N.L.R.B. May. 30, 2019)

JD(NY)- 09-19
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MONTEFIORE MEDICAL CENTER
and Case 02-CA-229024
NEW YORK STATE NURSES ASSOCIATION
Susannah Z. Ringel, Esq.,
for the General Counsel.
Peter D. Conrad, Esq.,
for the Respondent.
Claire K. Tuck, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
KENNETH W. CHU, Administrative Law Judge. This case was tried in New York, New
York, on March 19, 2019. The New York Nurses Association filed the charge on October 9,
2018,1 and the General Counsel issued the complaint on December 21, 2018.
On the entire record, including my observation of the demeanor of the witnesses,2 and
after considering the briefs filed by the parties,3 I make the following
FINDINGS OF FACT
I. JURISDICTION AND UNION STATUS
The Respondent is a New York not-for-profit corporation with an office and place of
business at 111 E. 210th Street, Bronx, New York (Respondent’s medical facility) and, at all
material times, admits it has been engaged in operating a hospital providing inpatient and
outpatient medical care at the facility. During the past 12 months, Respondent admits that it

1 All dates are 2018 unless otherwise indicated.
2 Witnesses testifying at the hearing included Andrea Guzman, Una Davis, Marie Kiffin, and Shalom
Simmons.
3 The exhibits for the General Counsel are identified as “GC Exh.” and Respondent’s exhibits are
identified as “R. Exh.” The closing briefs are identified as “GC Br.” for the General Counsel; “R. Br.” for
the Respondent; and “CP Br.” for the Charging Party. The hearing transcript is referenced as “Tr.”
JD(NY)-09-19

2
derives gross revenues in excess of $250,000, and purchases and receives at its Bronx medical
facility goods valued in excess of $5000 directly from points outside of the State of New York
The Respondent admits, and I find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. At all material times, the Union, New York
State Nurses Association, is a labor organization within the meaning of Section 2(5) of the Act 5
(GC Exh. 1).
II. ALLEGED UNFAIR LABOR PRACTICES
Paragraph 5 of the complaint (GC Exh. 1(c)) alleges that10
On or about June 25, 2018, Respondent, by Shalom Simmons, at Respondent's facility,
threatened employees with unspecified reprisals for requesting union representation for
an investigatory interview with Respondent, which employees reasonably believed could
result in disciplinary action.15
The counsel for the General Counsel alleges that by such conduct, the Respondent has
been interfering with, restraining, and coercing employees in the exercise of rights guaranteed to
the employees by Section 7 of the Act in violation of Section 8(a)(1) of the Act. The counsel for
the Respondent argues that the General Counsel has failed to demonstrate that there were any 20
threats of reprisal made as alleged in the complaint.
The Patient Care Incident
Andrea Guzman (Guzman) has been a registered nurse with the Respondent’s Bronx 25
medical facility for the past 5 years. Guzman is currently stationed at the surgical progressive
care unit and, on occasions, she is also assigned to perform charge nurse duties. A charge nurse
makes assignments for nurses and ancillary staff for the day. The charge nurse is a rotating
position among the nursing staff because a permanent charge nurse has not been appointed.
Guzman receives her daily assignments from the administrative nurse manager, Shalom 30
Simmons (Simmons), including any charge nurse duties. Guzman testified that Simmons has
been the nurse manager since early 2017. Guzman is also a member of the Union (Tr. 13−16).
Guzman received an email from Simmons in the afternoon on June 21inquiring as to an
incident involving patient care. The email (GC Exh. 2) stated35
Hi Nurse Guzman
I was hoping to talk to you today I wanted to know what happened with 82 during the
bleeding episode the family has some clinical concerns so I was hoping to see a midas 40
report come through but I didn't see anything if you have not done so please enter a midas
and I am also hoping will get a chance to talk about what happened thanks very much.
Shalom
Guzman replied 10 minutes later by email and stated that she did not know that a 45
bleeding episode would require a midas report and to have Simmons explain the reasons to
complete a midas report. Simmons replied the following morning that she would like to have
JD(NY)-09-19

3
(Guzman’s) take on it (presumably the need to file a report) and they will discuss further when
Guzman returns from her leave (GC Exh. 2).
Guzman testified that a patient had bled while on her shift and that Simmons was hoping
to review a report over the incident. The report is identified as “midas report” and is completed 5
by the responsible nurse where there’s the possibility that harm was done to the patient or if
harm could have been prevented. Guzman did not complete a midas report (Tr. 17, 58).
Guzman also forward a copy of Simmons’ June 21 email to Marlena Fontes (Fontes) (GC
Exh. 3). Guzman testified that Fontes was her union representative and delegate (Tr. 17). 10
Guzman’s email stated
HI Marlena,
I would like to talk with Shalom about what happened to my patient but I am 15
uncomfortable going in and talking with her alone . I would like to implement my
Wiengarten (sic) Right. I will text you on when is a good time to meet.
thanks -Andrea Guzman
Upon my examination of Guzman as to why she needed to email Fontes, Guzman 20
responded that Simmons’ email stated that the patient’s family had some clinical concerns over
the bleeding episode. Guzman said that a midas report was not required because it was expected
for the patient to bleed according to the to the patient’s diagnosis, but she was nevertheless
worried over the family’s concerns4 (Tr. 34, 35).
25
Guzman said that she did not received a reply from Fontes. Guzman was on leave on
June 22 and returned to work on June 25 (Tr. 54).
Shalom Cheri Simmons (Simmons) is and was the administrative nurse manager for the
Respondent’s step-down unit at all material times of this complaint. She has held this position 30
for the past 3 years and is responsible for the unit on 7 day/24-hour basis. Simmons said
Guzman was already working at the step-down unit when Simmons was hired at the
Respondent’s facility (182−185).
Simmons said she was prompted to write the June 21 email to Guzman because a family 35
member of a patient under the care of Guzman had complained that Guzman was “rough” in a
medical procedure used by Guzman on the patient. Simmons said that she had spoken to
Guzman the morning of June 21 about the incident. According to Simmons, Guzman agreed to
meet with Simmons on June 21, but when she did not, Simmons then sent her the June 21 email
(Tr. 186−189; GC Exh. 2).40
Simmons said in her email that she was hoping to see a midas report over the incident.
Simmons said the report is completed when there is some adverse event or incident that
happened to a patient (Tr. 188, 189). Simmons testified that there was no concern over

4 "The family has some clinical concerns," and she (Simmons) wanted me to fill out a MIDAS
report” (Tr. 35).
JD(NY)-09-19

4
Guzman’s technique or clinical practice with the patient, but she wanted to just “get her side of
what happened” (Tr. 189). Simmons did not see any urgency for Guzman to respond and was
willing to wait until Guzman returned to work on June 25.
The Reassignment of the Charge Nurse5
Guzman arrived to work on June 25 at 6:45 a.m. She said there is a bulletin board at the
nurses’ station and Guzman noticed that she was assigned as the charge nurse for that morning.
Assuming that she was the charge nurse for the day, Guzman obtained the patient report from the
night charge nurse and reviewed the overnight activities. She took about 15−30 minutes to 10
review the report. As she was reviewing the report, Guzman said that she was informed by Una
Davis (Davis), another staff nurse, that Simmons had asked Davis to be charge nurse for the day.
Guzman believed her conversation with Davis occurred between 7:15−7:30 a.m. Guzman asked
Davis if she could be the “co-charge nurse.” Davis said that would be fine with her (Tr. 20−22).
15
There is staff meeting or “huddle” at approximately 8 a.m. where the nurses and staff
discuss the activities for the day. Simmons was present at the meeting. As Guzman was
explaining her charge nurse activities from the report (before Davis took over the
responsibilities) to the attendees at the huddle, Simmons allegedly interrupted Guzman and
informed the attendees that although Guzman’s name was on the bulletin, the charge nurse for 20
the day was Una Davis. Guzman was embarrassed by Simmons’ announcement and told
Simmons in the future if
…[s]he can please email the night staff or email all the staff, so that way I don't have to
go through this embarrassment again of being taken off of charge nurse. And she said 25
we'll talk about it later (Tr. 23).
Even though the charge nurse position is rotated on a daily basis, Guzman testified she
was embarrassed over this incident because Simmons had never previously taken a nurse off as a
charge nurse (Tr. 23, 24). Guzman maintained that everyone was present at the meeting when 30
Simmons made the announcement and she felt embarrassed. Guzman said on past occasions
Simmons would tell her in private when she was taken off as charge nurse (Tr. 51, 52).
Simmons’ first contact with Guzman was on June 25 at the 8 a.m. huddle. Simmons said
that she could not recall who assigned Guzman as the charge nurse and when the assignment was 35
made, but she did remember changing the charge nurse assignment from Guzman to Davis on
June 25 (Tr. 192, 199). Simmons said there is a binder with the charge nurse assignments and
denied that the name of the charge nurse for the day is placed on a bulletin board.
Simmons explained that she reassigned the charge nurse from Guzman to Davis because 40
of multiple complaints she received from the patient-care technicians about Guzman. Simmons
testified that Guzman was removed as a charge nurse in March 2018 because she was having
arguments with the patient-care technicians, nursing attendants, and some of the nurses.
Simmons specifically recalled an incident in February with a patient-care technician named
Natalie Grant and a nurse attendant when Guzman was unable to locate Grant to assist a nurse, 45
identified as “Lewis.” According to an investigation conducted by Simmons, Grant was located
in the employee lounge and another nurse reported to Simmons that Guzman had “very strong
JD(NY)-09-19

5
words” with Grant. Simmons said that Grant subsequently became very upset because when
Grant went to assist Nurse Lewis, she was told by Lewis that Grant was never needed. Simmons
said that Grant was so upset that she almost had an asthma attack and was sent to the emergency
room (Tr. 191−195).
5
Simmons felt best to take Guzman off the charge nurse rotation for the moment and told
her in March. Simmons said that she would ensure that the nightshift was aware who would be
assigned as the charge nurse if the assignments are not done by her (Tr. 195, 196). Simmons
said that Guzman’s removal as a charge nurse was grieved and a grievance meeting was held on
June 13. Simmons testified that even before the June 13 meeting, she was willing to return 10
Guzman to the rotation if Guzman agreed to take a charge nurse class and then 3 days of
orientation with a nurse. Simmons said that Guzman took the class on May 21. Simmons said
that as of June 25, Guzman had not completed her 3-day orientation (Tr. 196−198).
Simmons testified that she waited until the huddle before informing Davis to take the 15
charge nurse assignment. Simmons said that Guzman was present when she informed Davis.
Simmons denied making a general announcement about the reassignment to the attendees at the
huddle but believed that some nurses may have overheard (Tr. 199-201). Simmons could not
recall Guzman’s response
20
I don’t recall exactly what was said, but it would be something along the—it would—she
would ask me way. She would ask me why (Tr. 201).
Later in her testimony, Simmons recalled telling Guzman why she was no longer in
charge. Simmons explained to Guzman that she wanted Guzman to complete her 3-day nurse 25
orientation. Simmons said that Guzman then asked her to send out an email to inform the staff
that she was no longer the charge nurse (Tr. 203, 204).
Una Davis (Davis) has been a registered nurse at the Respondent’s Bronx facility for over
13 years and a union delegate representing member nurses in disciplinary proceedings. Davis is 30
supervised by Simmons. Davis testified that she has represented nurses as a union delegate in
past meetings with Simmons regarding performance, patient care, time and attendance issues,
and other matters (Tr. 86−88).
Davis testified that on June 25, she was approached by Simmons during the huddle and 35
asked to take over the charge nurse duties. Davis inquired why and was not given a reason.
Davis agreed to take the charge nurse rotation for that day. Davis then asked Guzman if she
would be willing to be her co-charge nurse and Guzman responded in the affirmative. Davis
noticed that although Guzman was no longer the charge nurse, her name was on the bulletin
board (Tr. 101, 102). Davis did not testify if Guzman said anything to Simmons when she was 40
taken off as charge nurse during the huddle.
Marie Kiffin (Kiffin) is a registered nurse employed by the Respondent at the Bronx
facility since 2007 and is a member of the Union. Kiffin works alongside Guzman, Davis and
the other nurses in the step-down unit (Tr. 144). 45
JD(NY)-09-19

6
Kiffin noted that Guzman was the charged nurse on the morning of June 25 because the
assignment was done during the night shift and her name was placed on a bulletin board. Kiffin
said that she was surprised that Guzman’s name was on the charge nurse rotation for June 25
because she knew “quite some time ago” (“a few months ago”) that Guzman was taken off the
rotation by Simmons.5 Kiffin attended the nurses and staff huddle that morning around 8 a.m. 5
and overheard Simmons informing Guzman that she was being taken off as the charge nurse (Tr.
149). Kiffin did not testify hearing anything else or if there was a response from Guzman over
the reassignment. Kiffin said she attended to some other activities after the meeting and came
back to the nurses’ station “a moment or two later” and observed Simmons talking to Guzman
(Tr.145148, 165).10
The Incident with Patient Care Technician Natalie Grant
Guzman testified that she was approached after the huddle by Simmons and patient-care
technician Natalie Grant (Grant). Guzman testified that her conversation with Simmons 15
regarding Grant’s complaint occurred around 8:20 a.m. near the nurses’ station. Guzman said
that Una Davis was standing approximately 5 feet away during this conversation.
Simmons told Guzman that she was informed by Grant that in a conversation between
Guzman and Grant that morning, Grant was unable to understand what Guzman was saying her. 20
Simmons allegedly instructed Guzman to talk in “layman’s terms” and not use medical terms the
next time she speaks to Grant over patient care.
Guzman responded that it was a “simple conversation” and Grant never said she was
unable to understand Guzman. Guzman asked what Simmons meant by using only “layman’s” 25
language. Simmons allegedly responded that Guzman should speak to Grant at an “8th grade”
level (Tr. 24−26).
Davis had left the huddle and attended to her nursing duties. Upon her return to the
nurses’ station, she noticed that Guzman, Grant, and Simmons were having a conversation. 30
Davis admitted that she did not hear the entire conversation and only heard Simmons explain to
Guzman how she should communicate to Grant. Davis testified that Simmons said to use “basic
terms without using medical terminology” (Tr. 102). Upon my questioning, Davis elaborated
and testified that after Guzman asked, “what do you mean by basic language?” Simmons
allegedly responded, “at eighth-grade level” (Tr. 103−105). Davis believed it was appropriate 35
for a supervisor to address a communication issue between two employees (Tr. 122).
Simmons testified that Natalie Grant is a patient-care technician and is responsible for
assist the nursing staff in the care of patients. Simmons recalled a discussion with Guzman on
June 25 at around 9 or 9:15 a.m. regarding Grant. Simmons said that Grant complained to her 40
that Guzman instructed Grant to perform a medical procedure.6 Simmons said that Guzman
asked Grant to perform a procedure that Grant was not responsible to perform (Tr. 205−208).

5 Kiffin testified that there is no permanent charge nurse and most of the nurses stationed at
the step-down unit would rotate into that position once or twice per week (Tr. 158, 178, 179).
6 The medical procedure was the insertion a Foley catheter in a patient to collect a urine
sample (Tr. 206, 207).
JD(NY)-09-19

7
Grant asked Simmons to talk to Guzman about the assignment. Simmons agreed to speak
to Guzman. Simmons told Guzman that the medical procedure is something that the nurses do
and was not part of the patient-care technician’s practice. Simmons denied telling Guzman how
she should speak to the technicians. Simmons specifically denied telling Guzman to talk to the 5
technicians at an 8th grade school level or to speak to Grant in a “simple” language. Simmons
said that Guzman did not object that it was the nurse’s responsibility to collect the urine sample
(Tr. 208, 209, 235).
Guzman’s Asserts her Weingarten Rights10
Guzman testified that she resumed her patient rounds after her conversation with
Simmons and returned to the nurses’ station and met up with Davis and another nurse named
Lydia Asamaoa. Guzman said that Simmons approached all three at around 8:30 a.m. and asked
that Davis, as the charge nurse, to meet her in the office with Guzman because Simmons was 15
going to have a meeting with Guzman. Guzman said that she was not told to attend the meeting
because Simmons had directed her conversation to Davis, but Guzman admittedly overheard the
conversation. Simmons then left Davis. Guzman said that Davis asked her if she heard what
Simmons had said. Guzman replied to Davis and Asamaoa that she was not comfortable talking
with Simmons without a union delegate. 20
Davis said that Simmons approached her and stated that as the charge nurse, Simmons
would like to see her and Guzman in her office. Davis understood her involvement in the
meeting would be in her role as the charge nurse. At this point, Simmons left the area. Davis
said she turned to Guzman and asked if it was alright that Davis went to the meeting as the 25
charge nurse. Davis said Guzman replied in the negative and stated to her that “No, I would
prefer to have a delegate” (Tr. 102−105). Davis denied asking Guzman if Guzman wanted her to
serve as a union delegate (Tr. 118).
Simmons recalled that she spoke to Guzman on June 25 near the nurses’ station regarding 30
the incident with the patient and her email about entering a midas report after the huddle.
Simmons testified
I was wondering if we can have some time today where we can talk about what happened
on Tuesday with the daughter's claim. And I know I sent you the email about the 35
MIDAS+ and entering a MIDAS+."
And she said, "I don't know why I have to do a MIDAS+. This does not rise to the
occasion of a MIDAS+."
And I said, "Okay. Well, let's -- can -- let's talk about it, and you can ask Una, who's
charge today, maybe she can join us and we can, you know, talk about this, and hopefully 40
we can, you know, finish the case, close the case (Tr. 210, 211).
Simmons was very clear that she spoke directly to Guzman and that the meeting was
about a patient’s bleeding from a tracheostomy procedure. Guzman responded and said the
incident did not rise to the level to complete a midas report but agreed to meet with Simmons 45
later. Simmons then returned to her office (Tr. 211).
JD(NY)-09-19

8
Nurse Marie Kiffin (Kiffin) said she was approximately six or seven feet away from
Simmons and Guzman. Kiffin admitted that she did not hear the entire conversation but heard
Simmons said to Guzman “I would like to talk to you with the charge nurse” (Tr. 148, 154, 155,
168). Kiffin walked away from the nurses’ station and when she returned minutes later, Guzman
told Kiffin that Simmons wanted to talk to her without a [union] delegate. Guzman again 5
express that she was uncomfortable meeting with Simmons without a union delegate to nurses
Davis, Asamaoa, and Kiffin. At this point, there was some discussion about Weingarten rights
and that Guzman should use her rights. Guzman said that Kiffin started looking at a “Union
book” ostensibly to look up the Weingarten rights. Kiffin left the nurses’ station and return a
brief time later with a copy of the Weingarten notice issued by the Union. 10
Kiffin noticed that Guzman was upset and went to her locker to obtain a copy of the
Weingarten notice and made a copy for Guzman. Kiffin testified that she did not say anything to
Guzman before going off to obtain a copy of the notice (148, 149, 169, 170; GC Exh. 4). A copy
of the Weingarten rights was found by Kiffin and she made a copy for Guzman (Tr. 26−29; GC 15
Exh. 4). The Notice of Weingarten Rights stated
Davis said Guzman took the Weingarten Notice and left the nurses’ station. Davis
testified she did not know where Guzman was heading. Guzman said she proceeded to walk 20
alone to Simmons’ office with a copy of the Weingarten Rights. Guzman did not ask that Davis
attend the meeting with her. Guzman knocked on Simmons’ office and met with Simmons.
However, before Simmons said anything, Guzman gave a copy of the Weingarten Rights to
Simmons. It is alleged that Simmons stated “no, no, you don’t have to (get a union
representative) upon reading the notice.” Guzman then left the office and walked back to the 25
nurses’ station (Tr. 29, 30, 62). Guzman told Simmons that she wanted her union delegate
present at the meeting but did not specifically mention Fontes by name (Tr. 55, 56). It is not
disputed that the meeting between Guzman and Simmons involving the patient bleeding incident
never occurred on June 25 or at any other time. (Tr. 60, 61).
" NOTICE:.
itTLV;ARTgN !RIGH
TS
.If called into a meeti
ng with management
.
you should state the
followingi.
If thiS diScussiOn could
in any way lead to
mybeing disciplined or termi
nated or affect
MY personal working condit
ions, I respectfully
request that my union represen
tative be present
at this Meeting..Until my representative ar
rives.
chopie not tó participate in ihis discussio
n.
Cal! your NYSNA delegate:
JD(NY)-09-19

9
Simmons testified that Guzman came to her office and knocked on the door. Simmons
said that the knocking continued but no one entered so she opened the door. Simmons said that
Guzman was at the door and hand Simmons a piece of paper. Simmons said ‘hello,’ but Guzman
just handed the Weingarten notice to her and walked away without saying anything to Simmons. 5
Simmons said she read the notice Guzman left. Simmons then decided to seek out Guzman and
ask why she was given a copy of the Weingarten rights (Tr. 212, 213).
The Alleged Threat of Reprisal
10
Nurses Asamaoa, Davis, and Kiffin were present at the nurses’ station when Guzman
returned from her interaction with Simmons. Guzman testified that “a few minutes later,”
Simmons approached her and the three nurses. Guzman said that Simmons had the Weingarten
notice in her hand.
15
Davis testified that Guzman returned “a minute” later to the station. Davis said Simmons
approached the nurses’ station about 5 minutes later with a copy of the Weingarten Notice in her
hand (Tr. 105-107; GC Exh. 4).

Guzman testified that Simmons stated to her, within the earshot of the other three nurses, 20
“I just want to make sure and clarify that this is what you want, that you don’t want a
representative, because I call you in, anything you say I cannot use it against you” (Tr. 30, 31,
72, 73). Guzman responded that she was sure she wanted a representative. At this point,
Simmons allegedly stated to Guzman
25
…[o]kay, I just want to make sure, because if you have a delegate with you, I'm going to
have to pull your file…it would open a can of worms (Tr. 31).
Guzman repeated that she was sure about wanting a representative and told Simmons she
was not comfortable going into the meeting without her union delegate. Guzman said that none 30
of the other nurse said anything. Guzman said that all the nurses present heard what was said
and that Kiffin walked away after Simmons made the threat. Guzman denied that Simmons said
that Davis could be present at the interview (as a union delegate) (Tr. 73−76).
Davis testified Simmons asked Guzman “Are you sure you want to do this?” and “I just 35
wanted to talk to you, you do not need a delegate.” When Guzman insisted on a delegate, Davis
said that Simmons stated to Guzman (Tr. 108, 118).
Okay. You know, if we talk to each other one-on-one, I won’t be able to do or report it
or say anything. It won’t be held against you. But if I have to, you need a delegate, then 40
I’m going to have to pull your file, and that could open a whole can of worms.
Davis said she did not say anything in response to Simmons’ comments and that no one
else said anything (Tr. 122, 123). Davis stated that Simmons then walked away. Davis did not
testify if Guzman said anything in response to Simmons’ comments. Davis believed that Kiffin 45
JD(NY)-09-19

10
and Asamaoa were present at the nurses’ station when Simmons made her remarks to Guzman
(Tr. 108).7
Kiffin testified that she walked away after giving the Weingarten notice to Guzman but
returned to the nurses’ area about a “minute later” and observed Guzman and Simmons by the
station (Tr. 151). Kiffin said she then heard Guzman telling Simmons (Tr. 150, 172, 173).5
…[s]he wanted to get a delegate for was happening; she wanted to get a delegate and Ms.
Simmons said, "Are you sure you want a delegate?" Ms. Guzman says, "Yes." After that,
Ms. Simmons said, "Well, if you get a delegate, I'll be forced to pull your files," and then
with her hand she opened up and said, "This could open up a can of worms."10
Kiffin said that nurses Davis and Asamaoa were present when the comment was made by
Simmons (Tr. 150, 173, 174).8 Kiffin said that she went on her patient rounds after hearing the
threat made by Simmons. Kiffin did not said anything to Guzman or Simmons after the
comments were made. Kiffin did not testify if Guzman said anything to Simmons in reaction to 15
the comments. Kiffin did not recall if anyone else said anything when Simmons made her
alleged threat (Tr. 150, 151, 174, 175).
On July 5, Kiffin sent an email to Guzman (R. Exh. 1). The email stated
20
Subject: GUZMAN
As I approached the nurses station in step down unit June 25th , I heard Ms. Guzman
saying to Ms. Simmons that I would feel more comfortable speaking with you with my
union delegate present. Ms Simmons asked Guzman are you sure you want your (sic) a 25
delegate? Guzman replied, "Yes”
Ms Simmons then responded with if you get a delegate them (sic)

7 The counsel for the General Counsel wanted to examine Davis over a Weingarten meeting
dealing with another nurse named Diesha Kellogg that occurred in April 2018 to show Simmons’
animus towards the nurses when they request union representation at investigative meetings.
Upon objection by the Respondent, I denied this line of questioning. This allegation was initially
raised in a charge filed by the Union and rejected as untimely by the Region. I noted that nurse
Kellogg was not involved or a witness in the June 25 with Guzman. I also noted that this
allegation was not in the complaint and to allow it in at this time would require the Respondent
to rebut the allegation. And, if the parties were permitted to fully litigated an allegation not in
the complaint, I would have to decide the merits of an untimely and unalleged charge. Irving
Ready-Mix, Inc., 357 NLRB 1272, 1285 fn. 13 (2011) (finding that certain unalleged but
admitted statements by a manager violated 8(a)(1) where the complaint alleged that other
statements by the same manager violated 8(a)(1)). For these reasons, the objection was sustained
(Tr. 88−101). I would further note that a proffer was made as to what occurred with Kellogg and
the testimony by Davis was entered into the transcript but not considered in my deliberations of
this complaint (Tr. 140−143).
8 Nurse Lydia Asamaoa did not testify at the hearing.
JD(NY)-09-19

11
I will be forced to pull your file which could open a whole can of worms. After hearing
that I walked away (open hand gesture was used by Ms. Simmons which indicates an
abundance).
Kiffin did not receive an email response from Guzman. Guzman then forwarded Kiffin’s 5
email to Fontes on that day.
Guzman testified that she did not speak to Simmons for the rest of the day on June 25.
Guzman stated that there was no interview and she was never instructed to complete a midas
report over the patient care incident. It is undisputed that Guzman was never disciplined when 10
she did not complete the midas report and for refusing to meet with Simmons over the patient
care incident (Tr. 77).
Simmons testified that she approached the nurses’ station and met with Guzman.
Simmons noticed that Davis was sitting nearby a computer desk. Simmons asked Guzman why 15
she had given her a copy of the Weingarten rights. According to Simmons, Guzman responded
“I want you to know, I want a delegate” (Tr. 214). Simmons responded that Guzman was not in
trouble and that she did not need a delegate. Simmons said that Guzman repeated that she
wanted a delegate and Simmons replied “Okay, then you can—if you want to bring your
delegate, here’s Una (Davis). Una can come in and come into the office with us” (Tr. 214).20
Simmons knew that Davis was a delegate because she was present at the June 13
grievance meeting when Guzman was taken off the charge nurse rotation after Simmons received
the harassment complaint from patient-care technician Grant over the February incident. Davis
confirmed that she was present with Fontes and another manager at the June 13 meeting to 25
discuss the February incident (Tr. 214, 215).9
Simmons said that Guzman insisted that she wanted to bring her own delegate and
Simmons responded affirmatively but told her that she would like see Guzman sooner rather than
later. Simmons explained that she was concerned about the grievance that the family may file 30
about the bleeding and wanted to prepare a complete answer with Guzman’s side of the story
because Simmons would be asked if she had spoken to the nurse responsible for the patient on
the day of the bleeding incident (Tr. 217, 239).
Simmons testified that Guzman never returned with a delegate and Simmons did not 35
pursue the matter with Guzman after June 25 because Simmons became aware that Guzman did
not cause the patient bleeding after her review of the patient’s charts and talking to other nurses.
Simmons concluded that Guzman did not make an error with the patient (Tr. 217, 218,
237−239). Simmons denied threatening Guzman or anyone else on June 25 (Tr. 219).
40

9 Davis testified that she sat in a meeting involving a harassment complaint against Guzman by
the two patient-care technicians but denied that she was Guzman’s union delegate (Tr. 115).
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12
DISCUSSION AND ANALYSIS
The complaint alleges that the Respondent violated Section 8(a)(1) of the Act when
Simmons made a threat of unspecified reprisal that interfered, restrained and coerced employees
in the exercise of the rights guaranteed in Section 7 of the Act. 5
Section 8(a)(1) of the Act provides that it is an unfair labor practice to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. Section 7
provides that, “employees shall have the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to 10
engage in other concerted activities for the purpose of collective bargaining or other mutual aid
or protection . . .” A threat of unspecified reprisal is a violation of Section 8(a)(1) of the Act.
“The Board’s well-established test for interference, restraint, and coercion under Section 8(a)(1)
is an objective one and depends on ‘whether the employer engaged in conduct which, it may
reasonably be said, tends to interfere with the free exercise of employee rights under the Act.’” 15
ITT Federal Services Corp., 335 NLRB 998, 1002 (2001) (quoting American Freightways Co.,
124 NLRB 146, 147 (1959)). Applying this test, the Board has held that an employer violates
Section 8(a)(1) by threatening employees with unspecified reprisals for engaging in discussions
protected under the Act. See, e.g., Alaska Ship & Drydock, 340 NLRB 874, 878 (2003).
Employees asserting and discussing their Weingarten rights or demanding a representative 20
before an investigatory interview is a protected activity.
To be sure, this complaint does not involve the deprivation of an employee’s Weingarten
rights.10 I have no doubt that the Guzman’s meeting with Simmons was an investigatory
interview. Simmons testified that she wanted to find out what happened with the patient’s 25
bleeding episode. Simmons needed to determine whether there was any error on the part of
Guzman’s procedure with the patient. An employee would have a reasonable belief that this
interview may result in potential disciplinary action if an error was found. However, the meeting
never occurred; Simmons did not repeatedly instruct Guzman to attend an investigatory
interview without a union representative after receiving Guzman’s Weingarten Notice; and 30
Guzman was never disciplined for any medical infractions. These facts are not in dispute.

10 The Supreme Court’s decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), held that
an employer violates Sec. 8(a) (1) of the Act when it denies an employee’s request for union
representation at an investigatory interview that he or she reasonably believes may result in his
or her discipline. See also Kohl’s Food Co., 249 NLRB 75 (1980); Lennox Industries, Inc., 244
NLRB 607 (1979); Baton Rouge Water Works Co., 246 NLRB 995 (1979). In determining
whether an employee’s belief is reasonable, the Court set forth an objective standard, considering
all of the surrounding circumstances. Weingarten at 257. Once an employee requests that a union
representative be present during an investigatory interview, the employer may grant the request,
discontinue the interview or offer the employee the choice to either continue the interview
without a representative or not having the interview at all. Weingarten at 258–259; YRC Inc., 360
NLRB 744, 745 (2014); Consolidated Freightways Corp., 264 NLRB 541, 542 (1982); General
Motors Co., 251 NLRB 850, 857 (1980), enfd. in relevant part 674 F.2d 576 (6th Cir. 1982);
USPS, 241 NLRB 141 (1979).
JD(NY)-09-19

13
Credibility Determinations
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 5
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in all kinds of judicial decisions than to
believe some, but not all, of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622. Such is the 10
case here.
In my opinion, I find that Simmons did not make a threat of reprisal to Guzman or other
employees on June 25 for invoking their Weingarten rights in violation of the Act. The counsel
for the General Counsel proffered as background information the events of June 25 leading to the 15
alleged threat to demonstrate Simmons’ proclivity to interfere and coerce the exercise of
employee rights. However, I find otherwise.
With regard to the reassignment of the charge nurse duties from Guzman to Davis, I
credit the testimony of Simmons when she stated Guzman’s name was placed in error as charge 20
nurse for June 25 by the nightshift coordinator and that everyone already knew that Guzman was
not the charge nurse on that date. This testimony was confirmed by Nurse Kiffin, who testified
that she was aware that Guzman was taken out of the rotation months ago (Tr. 146).
Even Guzman knew she was not supposed to be the charge nurse on June 25. Guzman 25
testified that nurse Davis informed her at approximately 7:15−7:30 a.m. on June 25 that
Simmons had already asked Davis to be charge nurse for the day (Tr. 20−22). So, it cannot
come as a shock to Guzman when Simmons allegedly embarrassed Guzman in front of other
employees since Guzman already knew she was removed as the charge nurse well before the 8
a.m. huddle. Additionally, Guzman knew that she should not be a charge nurse because she was 30
removed over the February incident with patient-care technician Grant. That matter was
resolved when Respondent agreed to place Guzman in the charge nurse rotation if Guzman takes
a class and a 3-day orientation with another nurse (Tr. 48−50). Guzman may have been
embarrassed and upset that Simmons announced that Davis was the charge nurse, but there was
nothing coercive or restraining on employee rights when the announcement was made or that it 35
demonstrated any animus by Simmons towards Guzman.
With regard to the incident with patient-care technician Grant that morning, I also credit
Simmons’ testimony that she did not tell Guzman to use 8th grade level language when speaking
to Grant. Davis testified that there was nothing inappropriate for a supervisor to discuss the 40
manner of communication between employees (Tr. 122). Although Davis testified that she heard
Simmons making this comment, Davis initially testify that Simmons told Grant
I did not hear the first part, but when I entered, I heard the part where Mr. -- Ms.
Simmons was explaining to Ms. Guzman how she should communicate with the PCT in 45
simple, basic terms without using medical terminology (Tr. 102).
JD(NY)-09-19

14
Davis did not testify that the 8th level language was used until I prompted her if there
was anything else to add
JUDGE CHU: What else did you hear?
THE WITNESS: I just heard, as you said, she asked her how she should speak to her. 5
She said, "Use common eighth-grade level."
JUDGE CHU: I couldn't hear you.
THE WITNESS: She used and -- speak to her at the eighth-grade level.
JUDGE CHU: But you didn't testify that earlier, you just said simple, basic terms.
THE WITNESS: Yes (Tr. 103).10
Given the seriousness of Guzman’s contention that she was instructed to use 8th grade
language with Grant, Davis did not recall that comment until later in her testimony. In my
opinion, more likely than not, Simmons told Guzman to speak in a simple language and use basic
medical terminology, exactly in the manner as in Davis’ initial testimony noted above and 15
nothing more.11
Turning to the alleged threat, it behooves me to question if the threat of reprisal was
made at all by Simmons. Allegedly, Simmons told Guzman in front of nurses Davis, Kiffin,
Asamaoa, and perhaps, other medical staff that “. . . if we talk to each other one-on-one, I won’t 20
be able to do or report it or say anything. It won’t be held against you. But if I have to, you need
a delegate, then I’m going to have to pull your file, and that could open a whole can of worms”
(Tr. 31). Nurses Davis and Kiffin allegedly heard the comment made by Simmons. Nurse
Asamaoa did not testify.12
25
Simmons testified that Guzman did not need a delegate, but if she wants one, Simmons
suggested Davis attend as the charge nurse along with a union delegate. This testimony by
Simmons is consistent with her email to Justine Huffaker, the director of nursing, on June 25
(GC Exh. 5). In that email, Simmons stated to Huffaker,
30
Today, I asked her if we can meet today to discuss and if the charge nurse is available
they can join. She gave me a sheet of paper indicating her Weingarten rights to
representation. I went back to her and said that she does not need a delegate and that the
charge nurse Una can be in the room with us. She decided that she should have a
delegate. I then said that it again it's not needed but if this is what you want to do I would 35
like to meet with your delegate sooner because of the nature of issue.

11 Without dispute, this complaint does not involve a violation of the Act when Guzman’s
charge duties were reassigned to Davis or when Simmons allegedly instructed Guzman to speak
in an 8th grade level to patient-care technician Grant. Even assuming that the events occurred as
described by Guzman and the other witnesses for the counsel for the General Counsel, I find that
mere indignities and embarrassment allegedly suffered by Guzman is not a violation of the Act.
12 The counsel for the Respondent request that I draw an adverse inference when the General
Counsel failed to call Asamaoa as a witness (R. Br. at fn. 6). Bystander employees are not
presumed to be favorably disposed toward any party and no adverse inference is drawn against a
party for not calling them. Torbitt & Castleman, Inc., 320 NLRB 907, 910 fn. 6 (1996), affd. on
point 123 F.3d 899, 907 (6th Cir. 1997). I find sanctioning the General Counsel as unnecessary.
JD(NY)-09-19

15
Obviously, the contemporaneous statement made by Simmons on the day of the incident
outweighs the memory of other witnesses made several months later. More significantly, it
behooves me to question why no one spoke up when Simmons allegedly made this threat. Davis,
without dispute, is a union delegate and has attended investigatory interviews in the past. Davis, 5
as a union official, is well aware of employees’ rights. Davis never spoke up or commented
when the alleged threat was made. Kiffin, who was responsible for giving Guzman a copy of the
Weingarten rights, is also well aware of employees’ rights, but did not speak up. Instead, she left
the area without saying a word.13 Perhaps, the nurses were afraid to confront Simmons over her
alleged threat, but no one testified to that. More significantly, while nurses Guzman, Davis and 10
Kiffin were quick to talk among themselves about the removal of Guzman as charge nurse and
their Weingarten rights, no testimony was proffered that they spoke afterwards about the threat.
In my opinion, the nurses did not speak among themselves after the threat was allegedly made
because no threat was uttered by Simmons.
15
In contrast, Simmons, as the nurse manager for 3 years and engaged in previous
investigatory interviews and discipline with collective-bargaining employees, was well aware
and knowledgeable of employees’ Weingarten rights and the need to refrain from uttering
comments and threats that may interfere, restrain, or coercive employees over the exercise of
their Section 7 rights. It is reasonable to believe that Simmons would not make a notorious and 20
open threat in front of the nurses and other medical employees. I note that Nurse Davis never
testified that Simmons made any coercive statements to other employees that she had represented
at previous investigatory interviews conducted by Simmons. Davis never testified that Guzman
was threatened by Simmons at the June 13 grievance meeting (Tr. 40−46).
25
As such, I find that Simmons never made a threat of unspecified reprisal to Guzman and
other employees on June 25 and accordingly, I recommend that the complaint be dismissed in its
entirely.
Dated: Washington, D.C. May 30, 201930
Kenneth W. Chu
Administrative Law Judge
35

13 Kiffin did write an email to Guzman on July 5, summarizing what she heard on June 25,
which was forwarded by Guzman to Fontes (R. Exh. 1). However, no action was taken by the
Union over this alleged threat until the charge was filed on October 9. Although, I indicated at
the hearing that the charge was timely filed, it is significant to question why the charge was not
filed much earlier if indeed this was a severe threat of reprisal made by Simmons to Guzman and
to other union member nurses.
d,‘