Norton Audubon Hospital

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 320 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 320
Norton Healthcare, Inc., d/b/a Norton Audubon Hospi-
tal and Nurses Professional Organization, affili-
ated with the United Nurses of America, Ameri-
can Federation of State, County, and Municipal
Employees, AFL–CIO. Cases 9–CA–37404 and 9–
CA–37933
September 30, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On October 31, 2001, Administrative Law Judge Irwin
H. Socoloff issued the attached decision. The Respondent
filed exceptions, a supporting brief, and a reply brief. The
General Counsel filed an answering brief.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions and to adopt
the recommended Order2 as modified below.

1 The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing the
findings.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and prejudice.
On careful examination of the judge’s decision and the entire record, we
are satisfied that the Respondent’s contentions are without merit.
In adopting the judge’s finding that, between August 11, 1999, and
mid-September 2000, the Respondent unlawfully refused to employ
Wilma McCombs in a certified nursing assistant type position, Member
Bartlett does not rely on the Respondent’s general statements expressing
its opposition to the Union as evidence of animus. He recognizes that
Board precedent, which by practice remains controlling absent a three-
Member Board majority to overrule it, permits reliance on such state-
ments as evidence of animus. However, in agreement with several circuit
courts of appeals, he would find that Sec. 8(c) of the Act prohibits the
Board from relying on such lawful statements as evidence of either an
unfair labor practice or animus. See, e.g., NLRB v. Lampi, 240 F.3d 931,
936 (11th Cir. 2001); Carry Cos. of Illinois v. NLRB, 30 F.3d 922, 927
(7th Cir. 1994). See also Ross Stores, Inc. v. NLRB, 235 F.3d 669, 676
(D.C. Cir. 2001) (Henderson, J., writing separately) (listing additional
cases). Nor does Member Bartlett rely on the unfair labor practices of the
Respondent’s predecessor as evidence of the Respondent’s union animus.
Member Cowen agrees with Member Bartlett in both respects. See his
partial dissent and partial concurrence at fn. 3.
In finding antiunion animus, Member Liebman finds it unnecessary to
rely on the unfair labor practices of the Respondent’s predecessor. Fur-
ther, Member Liebman finds it unnecessary to rely on the Respondent’s
statements opposing the Union in finding antiunion animus, but she ob-
serves that, as a general matter, such statements may properly be consid-
ered as background evidence of animus. See, e.g., Tim Foley Plumbing,
337 NLRB 328, 329 fn. 5 (2002), and cases cited therein.
2 We have modified the judge’s recommended Order to omit a re-
quirement that the Respondent offer McCombs a 1.0 (full-time) patient
support associate position (also referred to as patient care associate (PCA)
position) or, if one does not exist, a substantially equivalent position. It is
undisputed that the Respondent offered McCombs a 1.0 PCA position on
Contrary to our dissenting colleague, we agree with the
judge that the Respondent violated Section 8(a)(1) by co-
ercively interrogating employee Maryann King about her
union sentiments and those of other employees.
The facts, in brief, are as follows. Since 1999, King had
been employed by Respondent as a registered nurse (RN),
under the supervision of Nurse Manager Kim Blair. As an
open union supporter, King regularly wore union insignia
at work.
In August 2000, King was in Blair’s office for her per-
formance evaluation. Following the evaluation, Blair
stated that she had noticed that King was wearing a union
button and she guessed that meant Blair supported the
Union. King responded affirmatively. Blair next asked if
King was unhappy with her job. When King replied that
she loved her job, Blair then probed King for the reason
for the button. King answered that the nurses had several
issues. Not letting the matter drop, Blair pressed King to
specify the issues with which the Union could help. King
mentioned both the mandating of work3 and a pension
plan. In response, Blair queried whether King believed the
Union would be able to help with the mandating of work
“if there’s nobody to put in the job.” Blair also asked
King what she knew about the level of union support
among the other employees. Blair indicated that she had
observed several employees wearing union buttons, and
she asked King if the Union had enough votes, at that
time, to win an election. Although King testified that she
did not feel threatened or intimidated by Blair’s questions,
she subsequently stopped wearing her union button, as a
result of the controversy it caused.
Under Board law, it is well established that interroga-
tions of employees are not per se unlawful, but must be
evaluated under the standard of “whether under all the
circumstances the interrogation reasonably tended to re-
strain, coerce, or interfere with rights guaranteed by the
Act.”4 In making that determination, the Board considers

September 15, 2000, an issue that was fully litigated at the hearing in this
case. Cf. Transportes Hispanos, Inc., 332 NLRB 1266, 1266 fn. 2 (2000)
(adopting the judge’s recommendation that Respondent offer instatement
to discriminatees only to extend it had not already done so). Member
Cowen agrees with this aspect of the decision. See his partial dissent and
partial concurrence at fn. 1. Member Liebman concurs. She observes
that the General Counsel, in asserting that the effect of the reinstatement
offer should be decided in the compliance proceeding, has not argued that
the offer was invalid in any respect. Cf. Krist Oil Co., 328 NLRB 825,
827–830 (1999) (discussing circumstances, such as Respondent’s bad
faith, in which facially valid reinstatement offer will not toll backpay).
We shall substitute a new notice in accordance with our recent deci-
sion in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
3 Although the phrase “mandating of work” is not defined in the re-
cord, the Charging Party’s posthearing brief indicates that it is mandated
overtime.
4 Rossmore House, 269 NLRB 1176, 1177 (1984), affd. sub nom. Ho-
tel Employees Union, Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
338 NLRB No. 34
NORTON AUDUBON HOSPITAL 321
such factors as the background, the nature of the informa-
tion sought, the identity of the questioner, the place and
method of interrogation, and whether or not the employee
being questioned is an open and active union supporter.5
We agree with the judge that, under the totality of the
circumstances test set forth in Rossmore House, supra,
Blair’s questioning of King was coercive. Although King
was an open union supporter, as the judge observed Blair’s
questioning of King took place in Blair’s office after dis-
cussion of King’s performance evaluation; King was not
advised of any legitimate reason for the questioning; and
she was given no assurances that she need not answer the
questions or that she would not be subject to retaliation as
a result of her answers.6 That the interrogation occurred
immediately following King’s performance evaluation
added to its potential coercive effect, because the circum-
stances reasonably suggested that King’s future evalua-
tions might be adversely affected by continuing support
for the Union.7 Further, the interrogation occurred against
a background of other unfair labor practices committed by
the Respondent in its effort to avoid unionization. In addi-
tion to the other unfair labor practices in this case, in the
1998–1999 period preceding the events at issue, the Re-
spondent, among other things, prohibited employees from
engaging in solicitation activities without its prior consent,
implemented a no-solicitation rule for the purpose of inter-
fering with employees’ organizational rights, and prohib-
ited employees from engaging in solicitation in nonpatient
care areas. Further, the fact that Blair’s questions were not
simply confined to King’s attitude toward the Union—but
addressed other employees’ support for the Union as
well—adds to the coercive nature of this interrogation.8

5 Rossmore House, supra at 1178 fn. 20 (applying factors to open and
active union supporters); see also Sunnyvale Medical Clinic, 277 NLRB
1217 (1985) (applying Rossmore House standards to questioning of em-
ployees who are not open union supporters ); Kellwood Co., 299 NLRB
1026 (1990), enfd. mem. 948 F.2d 1297 (11th Cir. 1991).
6 Contrary to the dissent, we agree with Board precedent that the ab-
sence of assurances that the questions did not have to be answered or that
reprisals would not take place is a factor tending to establish the existence
of coercive circumstances. See, e.g., Multi-Ad Services, 331 NLRB 1226,
1228 (2000), enfd. 255 F.3d 363, 372 (7th Cir. 2001); Stoody Co., 320
NLRB 18, 19 (1995) (questioning of an open union supporter about the
employee’s union sympathies by a supervisor in the supervisor’s office
with no proper reason or assurances given concerning the questioning
against a background of unfair labor practices was coercive); C.S. Tele-
com, Inc., 336 NLRB 1193, 1193 (2001).
7 See Electrical South, Inc., 327 NLRB 270, 276 (1998) (in context of
performance evaluation meeting, interrogation of employee whose union
sentiments were unknown was coercive).
8 See Cumberland Farms, 307 NLRB 1479 (1992), enfd. 984 F.2d 556
(1st Cir. 1993) (“the fact that the interrogators sought information about
other employees and the organizing effort in general” supports a finding
that the interrogation was unlawful).
Contrary to our colleague, we find Blair’s questions
were neither casual nor nonthreatening. Blair’s questions
about King’s reason for wearing the union button if she
was happy with her job and whether King thought the Un-
ion could help with mandating of work if there was no-
body to put in the job conveyed Blair’s disapproval of
King’s union activities. Further, contrary to our colleague,
the fact that King was an open union supporter and that
Blair was not a high-level supervisor does not, under all
the circumstances discussed above, negate the coercive
nature of Blair’s interrogation.9 Finally, we reject our dis-
senting colleague’s contention that King’s truthful re-
sponse negates a finding of coercion. Although an em-
ployee’s honest reply may support the inference that the
interrogation did not inspire fear, the fact that King ceased
wearing her union button following Blair’s questioning
shows otherwise. In sum, contrary to our colleague, we
find that the Respondent violated Section 8(a)(1) by coer-
cively interrogating King.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge and orders
that the Respondent, Norton Healthcare, Inc., d/b/a Norton
Audubon Hospital, Louisville, Kentucky, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Delete paragraph 2 (a) and reletter the respective
subsequent paragraphs accordingly.
2. Substitute the attached notice for that of the adminis-
trative law judge.

MEMBER COWEN, concurring in part and dissenting in part.
Contrary to the majority, I would reverse the judge and
dismiss the allegation that the Respondent violated Sec-
tion 8(a)(1) of the Act by coercively interrogating em-
ployee Maryann King about her union sympathies and
those of other employees. In the remaining respects, I
agree with my colleagues’ decision, except that my ra-
tionale for finding that the Respondent unlawfully failed
to employ McCombs in a certified nursing assistant type
position is set forth below.
1. I agree with my colleagues that the judge properly
found that, between August 11, 1999 and mid-September
2000, the Respondent unlawfully failed to employ Wilma
McCombs in a certified nursing assistant type position,
such as a patient support associate (PSA) or patient care
associate (PCA).1 In adopting the judge’s finding, how-
9 See, e.g., Stoody Co., supra at 19.
1 In agreement with the majority, I would modify the judge’s recom-
mended Order to omit the recommendation that the Respondent offer
McCombs a 1.0 PSA position or, if one does not exist, a substantially
equivalent position.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 322
ever, I rely only on the reasons stated below as establish-
ing sufficient animus.
Wilma McCombs worked as an environmental service
aide at Respondent’s facility since 1980. Following the
outsourcing of the environmental service department in
March of 1999, McCombs sought to secure a full-time
(1.0) position within the Norton system in order to retain
her seniority. Unable to obtain a 1.0 position during the
first couple of months of the displacement, McCombs
took advantage of the Respondent’s offer to pay for certi-
fied nursing assistant training for displaced environ-
mental service employees, and she received a certifica-
tion from the state in June of 1999. Thereafter, she sub-
mitted several applications for open PCA positions. It
was not until September 2000, following the reinstate-
ment of the environmental service department employees
as Respondent’s employees, that McCombs was offered
a 1.0 PCA position.
Evidence of the Respondent’s discriminatory motiva-
tion is found in the facts that (1) there was a consistent
need for PCAs during the relevant time period, (2) the
Respondent was having a severe problem retaining
PCAs, (3) the Respondent had a stated policy giving
preference to the outsourced environmental service de-
partment employees for open PCA positions, and (4)
McCombs was undisputedly qualified for a PCA posi-
tion. Further, the judge found, and the Respondent does
not dispute, that the Respondent informed McCombs that
her application for PCA positions would remain on file
for 2 years and that it was unnecessary for her to submit
further applications for any PCA position. However,
McCombs only got two interviews during the relevant
time period, neither of which led to an offer.
Moreover, in excepting to the judge’s finding that at
least eight of the individuals hired for PCA positions
were less qualified than McCombs, the Respondent con-
tends that there was no evidence that McCombs applied
for the PCA vacancies for which these eight hirees ap-
plied. The Respondent’s assertion is clearly inconsistent
with the fact that it told McCombs that she no longer
needed to apply for PCA positions. In this regard, the
Respondent’s demonstrably false reason for not offering
McCombs a PCA position is further evidence of the Re-
spondent’s discriminatory motivation.2 I therefore affirm
the judge’s finding that the Respondent’s refusal to em-

2 The Board has held that where a respondent’s asserted reason for an
action is found to be false, the inference is that the respondent was at-
tempting to conceal an unlawful motive. Shattuck Denn Mining Corp.,
151 NLRB 1328 (1965), enfd. 362 F.2d 466 (7th Cir. 1966).
ploy McCombs in a PCA position violated Section
8(a)(3) and (1) of the Act.3
2. Contrary to my colleagues, I would dismiss the
8(a)(1) allegation involving the alleged interrogation of
Maryann King in August 2000.
The relevant facts are these. Maryann King had
worked at Respondent’s facility since 1999 as a regis-
tered nurse (RN). King was an open union advocate,
who regularly wore union buttons at work. King was in
her supervisor Kim Blair’s office in August 2000, for her
employee rating. After King received the evaluation,
Blair said that she observed that King was wearing a un-
ion button, and commented that “I guess that means
you’re for the Union.” King replied, “yes.” Blair then
asked King if she was unhappy with her job. King an-
swered that she loved her job. Blair subsequently ques-
tioned King why she was wearing the button and King
responded that there were a lot of issues for nurses. Blair
next inquired about the issues King felt the Union could
address. King responded, listing two issues, mandating
of work and a pension plan. Blair also stated that she
had noticed other employees wearing buttons and que-
ried King whether she thought the Union could win an
election at that time. According to King, she did not feel
threatened or intimidated by the questions.
I agree with my colleagues that the applicable test for
determining whether the questioning of an employee
constitutes an unlawful interrogation is the totality of the
circumstances test adopted by the Board in Rossmore
House, 269 NLRB 1176, 1177 (1984), affd. sub nom.
Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985). Contrary to my colleagues, I find that Blair’s
inquiry was not coercive under this test.
3 With respect to the Respondent’s statements opposing the Union, I
would not, in any circumstance, rely on such statements as evidence of
animus. The statements are protected by Sec. 8(c) of the Act, which
provides that if a statement is not a threat or a promise, the statement is
not an unfair labor practice and it cannot “be evidence of an unfair labor
practice under any provision of this Act.” In Medeco Security Locks, Inc.
v. NLRB, 142 F.3d 733 (4th Cir. 1998), the Fourth Circuit stated that
“Speech protected by [Sec. 8(c)] cannot be used by the General Counsel
to establish an employer’s anti-union animus.” Id. at 744. The Court
reasoned that otherwise an employer’s lawful antiunion speech would be
chilled by the fear the Board could use it to show antiunion motivation.
Id., quoting Alpo Pet Foods v. NLRB, 126 F.3d 246, 252 (4th Cir. 1997).
I agree with the Circuit’s conclusion that “This impermissible result
would completely undermine § 8(c) by rendering its protection an empty
promise.” Id. See also B E & K Construction v. NLRB, 133 F.3d 1372,
1375–1377 (11th Cir. 1997); Holo-Krome Co. v. NLRB, 907 F.2d 1343,
1345–1347 (2d Cir. 1990). Because, as a general matter, I do not consider
the unfair labor practices of a respondent’s predecessor as evidence of
animus, I would not rely on the same here.
Finally, I find it unnecessary to pass on the judge’s finding discrediting
the testimony of Kim Blair and Tammy McClanahan concerning their
respective reasons for not offering McCombs a PCA position.
NORTON AUDUBON HOSPITAL 323
First, King, was an active union adherent, who openly
declared her support by wearing a union button to work.4
Second, the evidence shows that Blair’s inquiries were
brief and casual. Although the setting was formal, the
conversation itself contained no expression of displeas-
ure or antagonism toward the Union. There is no evi-
dence that Blair’s manner or tone of voice was threaten-
ing or hostile. Nor could her questions reasonably be
understood as an attempt to obtain information on which
to base disciplinary action.5 Instead, Blair’s general
questions were nonthreatening in nature and were de-
signed to encourage a dialogue regarding King’s con-
cerns.6 Third, King truthfully responded to Blair’s ques-
tions, thus indicating that she was not intimidated or
threatened by them. Fourth, Blair did not follow up on
her questioning.

4 In Rossmore House, supra, the Board overruled prior precedent estab-
lishing a per se rule concerning the interrogation of open union support-
ers. Id. at 1177. In doing so, the Board noted that to find that mere casual
questioning about union-related matters violated the Act “ignore[d] the
realities of the workplace.” Id. The Board found that the front-line super-
visors’ casual and spontaneous questions about an employee’s union
activities, in direct response to the employee’s voluntary self-
identification with the union were noncoercive under the totality of the
circumstances, including the fact that the employee was an open union
supporter. See also Keystone Lamp Mfg. Corp., 284 NLRB 626 (1987),
enfd. mem. 849 F.2d 601 (3d Cir. 1988), cert. denied 488 U.S. 1041
(1989) (no violation where managers questioned active union supporters,
who openly wore union buttons at work, why they were wearing buttons).
5 Stoody Co., 320 NLRB 18, 19 (1995), cited by the majority, is clearly
distinguishable. In that case, an employee was questioned by a high-level
supervisor immediately following an argument, which led to the em-
ployee being disciplined. In contrast, King was questioned by a low-level
supervisor following a satisfactory performance evaluation. Additionally,
the prior unfair labor practices cited by the majority do not support a
finding of coercion, as they are unrelated and for the most part, occurred
at a substantially earlier time.
Further, I reject my colleagues’ and the judge’s reliance on the facts
that King was not informed of any legitimate reason for the questioning,
and she was not assured that she did not have to answer the questions or
that there would be no reprisals against her for her responses, to support a
finding of coercive interrogation. While such assurances may diminish
the effect of an otherwise coercive interrogation, the absence of assur-
ances does not create a coercive environment that otherwise is absent.
Thus, I would not consider lack of assurances as affirmative evidence of a
coercive interrogation.
6 See Santa Rosa Blueprint Service, 288 NLRB 762 (1988) (em-
ployer’s general inquiry to open union supporters regarding what they
hoped to gain from the union that was not accompanied by threats or
promises found non-coercive).
The majority speculates that Blair’s question as to whether “ the Union
could assist with mandating of work if there was nobody to put in the job”
would reasonably lead an employee to believe that Blair disapproved of
union activity. To the contrary, I view Blair’s comment as a reasonable
attempt to highlight the scheduling problems faced by the Respondent. In
addition, I disagree with the majority’s reliance on Blair’s inquiry con-
cerning other employees to further support a finding of coercion. In my
view, merely questioning an open union supporter generally about the
extent of union support, without probing the views of specific individuals,
is not coercive.
Fifth, regarding the identity of the questioner here,
Blair was a relatively low-level supervisor.7 Finally,
although the questioning occurred in a formal atmos-
phere, this factor, standing alone does not transform oth-
erwise innocuous questions into an unlawful interroga-
tion.
For all these reasons, I disagree with my colleagues’
and the judge’s findings that Respondent’s questioning
of King was coercive.

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 advise you that discussions regarding the
Union are prohibited during worktime, while other non-
work related discussions are permitted.
WE WILL NOT interrogate you regarding your union
sympathies and those of other employees.
WE WILL NOT refuse to employ individuals in patient
support associate positions because of their union or
other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
guaranteed you in Section 7 of the Act.
WE WILL make Wilma McCombs whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her, plus interest.
NORTON HEALTHCARE, INC., D/B/A NORTON
AUDUBON HOSPITAL

Donald A. Becher, Esq., for the General Counsel.
Kay Tillow, of Louisville, Kentucky, for the Charging Party.
7 See, e.g., Chairman Hurtgen’s dissent in Clinton Electronics Corp.,
332 NLRB 479, 483 (2000) (relying in part on the fact that the questioner
was a low-level supervisor in finding that the interrogation was lawful);
cf. C.S. Telecom, Inc., 336 NLRB 1193, 1193 (2001) (finding coercive
interrogation where employee was questioned by high-ranking company
official).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 324
Grover C. Potts Jr., Esq., of Louisville, Kentucky, for the Re-
spondent.

DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. Upon
charges filed on February 11, 2000, and September 19, 2000,
by Nurses Professional Organization, affiliated with the United
Nurses of America, American Federation of State, County and
Municipal Employees, AFL–CIO, herein referred to as the
Union, against Norton Healthcare, Inc. d/b/a Norton Audubon
Hospital, herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Regional Director
for Region 9, issued a Consolidated Complaint dated January
10, 2001, alleging violations by the Respondent of Section
8(a)(3) and (1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended, herein called the Act. The Respon-
dent, by its Answer, denied the commission of any unfair labor
practices.
Pursuant to notice, trial was held before me in Louisville,
Kentucky, on April 4 and 5, 2001, at which the General Coun-
sel and the Respondent were represented by counsel and all
parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses and to introduce evidence. There-
fore, the parties filed briefs which have been daily considered.
Upon the entire record in this case, and from my observa-
tions of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in the operation
of a hospital in the Louisville, Kentucky area, which provides
acute medical care. During the year preceding issuance of the
Consolidated Complaint, a representative period, the hospital,
in conducting its operations, derived gross revenues in excess
of $250,000, and purchased and received, at its Louisville, Ken-
tucky locale, goods valued in excess of $50,000, directly from
suppliers located outside the Commonwealth of Kentucky. I
find that the Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act and a
health care institution within the meaning of Section 2(14) of
the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Nurses Professional Organization (NPO) actively has
sought to organize the registered nurses and other employees
working at Audubon Hospital since 1989, when the hospital
was owned by Humana, Inc., and was known as Humana
Audubon. By 1994, following a series of corporate mergers
and divestitures, control of Audubon had passed to Colum-
bia/HCA Healthcare Corporation. The hospital was thereafter
purchased by the Respondent, under the name Alliant Health
System, Inc., on September 1, 1998, and, now, is operated by
the Respondent as Norton Audubon Hospital.
In Audubon Regional Medical Center,1 the Board found that,
while owned and controlled by Columbia/HCA, during the
1994 to 1996 period, the hospital engaged in numerous and
very serious violations of Section 8(a)(1), (3) and (4) of the
Act, including discharging and otherwise discriminating against
employees because of their union and other protected concerted
activities and because of their assistance in Board proceedings;
attempting to discourage employees’ union support by an-
nouncing a wage increase and new and increased benefits; stat-
ing that it would not negotiate if the employees selected a union
to represent them; threatening employees with plant closure or
sale, job and benefit loss and other adverse consequences if the
employees selected a union; soliciting employee grievances and
promising to adjust them in order to dissuade employees from
supporting the Union; discriminatorily enforcing posting rules
affecting union campaign literature. The Board, contrary to the
administrative law judge, declined to issue a bargaining order
in that case solely due to the subsequent change in ownership
and management, employee turnover and the passage of time.
On June 6, 2000, the Board adopted the decision of Judge Leo-
nard Wagman,2 finding that, in the 1998 and 1999 period, fol-
lowing the transfer of Audubon to the Respondent, the hospital,
and Norton’s nearby facility, Norton Hospital, engaged in vio-
lations of Section 8(a)(1) of the Act by issuing a written warn-
ing to Registered Nurse (RN) Susan Yost for having engaged,
on February 23, 1999, in protected concerted activity, namely,
searching for an employee to be interviewed by the local news-
paper regarding Norton’s planned outsourcing of the house-
keeping services at its facilities; prohibiting employees from
engaging in solicitation activities without its prior approval;
promulgating a no-solicitation rule for the purpose of interfer-
ing with employees’ organizational rights; prohibiting employ-
ees from engaging in solicitation in non-patient care areas;
prohibiting off-duty employees from engaging in solicitation,
or distribution of literature, anywhere on its property.
In the instant case, the General Counsel contends that, be-
tween August 11, 1999, and mid-September, 2000, the Respon-
dent violated Section 8(a)(3) and (1) of the Act by refusing to
employ an individual, Wilma McCombs, in a certified nursing
assistant type position, such as a patient support associate
(PSA) or patient care attendant (PCA), because of her known
union activism, and because she engaged in other protected
concerted activities. The Respondent argues that it filled open
positions of this type utilizing lawful criteria, and that it acted,
in that regard, without consideration of McCombs’ union sym-
pathies or protected conduct. Also at issue is whether the hos-
pital violated Section 8(a)(1) of the Act by advising an em-
ployee that discussions regarding the Union were prohibited
during worktime, while other non-work related discussions
were permitted, and by interrogating an employee regarding her
union sympathies and those of other employees.

1 331 NLRB 374 (2000).
2 Norton Healthcare, Inc., JD–56–00 (2000).
NORTON AUDUBON HOSPITAL 325
B. Facts3 and Conclusions
1. Worktime discussions regarding the Union
Martha Ann Hurst, an RN, has been employed at Audubon
Hospital since 1981, and works as a staff nurse in the Respon-
dent’s cardiovascular unit under the supervision of clinical
manager Kim Blair, a statutory supervisor. Hurst, now an NPO
vice-president, was, in the summer of 2000, a member of its
executive board. She testified that, early in July, 2000, Blair
called her into the office and told Hurst that she, Blair, had
gotten word that Hurst was “talking about the Union" at the
nurses station. Hurst responded, stating that she had not done
so and that she knew better than to do that. Hurst said that if
someone asked her a brief question, she would give a brief
reply and, then, ask the other person to leave. According to
Hurst, Blair then stated that it had been called to her attention
that Hurst was talking about the Union in the lounge, also, an
area not related to patient care. Hurst answered, saying that she
had a right to talk about any subject in the lounge. Blair stated
that Hurst “could not talk about the Union” during report time.
Report time is a one-half hour period, on the clock, during
which the care of patients is divided among the nurses and, in
the cardiovascular unit, the incoming shift of nurses reviews the
patient cardexes, as updated by the outgoing shift, to learn of
patient histories and new situations and needs. The incoming
nurses may also ask questions of those who worked the previ-
ous shift. Report time, in the cardiovascular unit, generally
takes place either at the nurses station, a public area where
patients and others may appear, or in the lounge or break room,
a private space not accessible to patients and others. There is
substantial record evidence establishing that, during this period,
and during worktime, generally, employees discuss all sorts of
non-work related subjects. Prior to Blair’s admonition to Hurst,
the hospital had not sought to limit the topics open for discus-
sion.
Blair, in her testimony, stated that she told Hurst that she,
Blair, had received complaints from two nurses that they had
been approached by Hurst concerning the NPO, during work-
time, one at the nurses station and one in the lounge during
report time. Those nurses felt that they were being harassed.
Blair instructed Hurst that “you can discuss NPO during break,
lunch, off hours, parking lot, whatever, but during working
hours which is 6:45 in the morning, that is work hours because
you’re getting report, or in the middle of the nurses station
when someone’s trying to work, she cannot do it.”
As the undisputed record evidence establishes that the Re-
spondent permits its employees to discuss non-work related
matters, without limitation, during working time, Blair’s in-
struction to Hurst, to refrain from talking about the Union, and
only the Union, during worktime, was discriminatory and
unlawful. An employer may not prohibit the discussion of

3 The fact-findings contained herein are based upon a composite of
the documentary and testimonial evidence introduced at trial. Where
necessary to do so, in order to resolve significant testimonial conflict,
credibility resolutions have been set forth, infra. In general, I found
Wilma McCombs, the alleged discriminatee, a forthright and believable
witness in possession of a clear recollection of events, and I have relied
upon her testimony.
unionization, on worktime, while, without concern, it permits
discussion of all other subjects.4 I find that, by the foregoing
conduct, the Respondent, by its supervisor, Blair, violated Sec-
tion 8(a)(1) of the Act.
2. Interrogation
Maryann King has worked at Norton Audubon since 1999,
as an RN, under the supervision of Blair. King openly has
supported the Union and has regularly worn NPO insignia at
work. She testified that in August, 2000, she was in Blair’s
office to receive her employee rating, or evaluation. Blair’s
evaluation of King was satisfactory to the employee and, once
completed, the supervisor turned to a different subject. She
told King that she, Blair, noticed that King was wearing a union
button and that “I guess that that means you’re for the Union.”
When King said, yes, Blair asked if King was unhappy at
Audubon. King replied, stating that, in fact, she loved her job.
Blair then asked, “[W]ell, what would be the purpose of wear-
ing the union button?” King said that there were a lot of issues
for nurses. Blair pressed on, asking King what, in particular,
she thought that the Union could help with. King listed man-
dating of work, as well as a pension plan. Blair then asked
King if she thought the Union would be able to help with man-
dating “if there’s nobody to put in the job.” King answered that
there wasn’t anyone trying to remedy the matter and, possibly,
the Union could do that. Blair next stated that she noticed that
a lot of the employees were wearing buttons and she asked
King if the employee thought “that the Union would pass if it
were voted on right now.” King said that she was not sure.
King further testified that, while she did not feel threatened or
intimidated by the questioning, she no longer wears union in-
signia to work, due to the controversy it created. Blair testified
about her August, 2000, meeting with King in much less de-
tailed fashion but, nonetheless, essentially confirmed King’s
version of events.
An employer’s questioning of open and active union sup-
porters about their union sentiments, in the absence of threats or
promises of benefit, does not necessarily violate Section 8(a)(1)
of the Act. The test is whether, under all the circumstances, the
interrogation reasonably tends to restrain, coerce or interfere
with statutory rights. To support a finding of illegality, the
words themselves, or the context in which they are used, must
suggest an element of coercion or interference.5
Here, King, an open union supporter, was questioned in her
supervisor’s office immediately after receiving her employee
evaluation. She was not informed of any legitimate purpose for
being asked whether, and why, she favored the Union, and
about the degree of union support among the employees, gener-
ally. Likewise, Blair did not assure King that she need not
answer the questions or that reprisals would not be taken
against her regardless of her answers. The interrogation oc-
curred following other serious employer unfair labor practice
conduct. In these circumstances, I find and conclude that
Blair’s questioning of King, concerning her union sympathies
4 Teksid Aluminum Foundry, 311 NLRB 711, 713 (1993).
5 Rossmore House, 269 NLRB 1176 (1984).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 326
and those of other employees, was coercive, and violative of
Section 8(a)(1) of the Act.6
3. Wilma McCombs
Wilma McCombs has worked at Audubon Hospital since
1980, through the various changes in ownership. She is em-
ployed as an environmental service aide, responsible for clean-
ing and sanitizing patient rooms, preparing beds for incoming
patients and cleaning work areas. McCombs is a member of
the NPO executive board, the only union officer who is not a
nurse. Through the years, including 1999 and 2000, she has
leafleted in support of the Union in the hospital parking lots,
distributed union authorization cards and pins to fellow em-
ployees and has, on a daily basis, worn union pins and, or, but-
tons to work. McCombs was, and is, the only environmental
service employee to engage in such open support for the Union.
As part of a heightened campaign to obtain recognition as
bargaining agent of the Audubon registered nurses from the
new owner, Norton, the NPO asked the local government, Jef-
ferson County, in the fall of 1998, to withhold requested finan-
cial assistance to Norton until recognition was granted. Thus,
the NPO appeared at an October 13, 1998 meeting of the Jef-
ferson County Fiscal Court and argued that the $225 million in
low interest, tax-exempt bonds that Norton Health care sought
to have the Fiscal Court issue, should not be authorized.
Among these who spoke for the NPO at the meeting, which
was attended by the Respondent’s highest officials, was Wilma
McCombs, who argued forcefully against the issuance of the
bonds, absent recognition. NPO’s activities in this regard, in-
cluding its statements before the Fiscal Court, and its picketing
and other actions, received substantial local television and
newspaper coverage. Nonetheless, ultimately, the bond issue
was approved.
The Respondent expressed Audubon’s continued hostility
toward the NPO in its written statements to employees and in
its internal communications. Thus, by letter to employees dated
January 26, 1999, signed by its president and chief executive
officer, and its other top management people, Norton stated:

The NPO is also the same union that attempted to keep Nor-
ton Healthcare from being eligible for tax-exempt financing
for the hospitals’ acquisition bond issue. If the NPO had been
successful, it could have increased costs up to $2,000 a day
for years. The clear result would have been less money for
employee wages and benefits, supplies and equipment as well
as higher costs to patients. How could NPO’s actions in this
regard have been in the best interests of nurses or patients?

By newsletter of April 28, 1999, again signed by Norton’s
president, the employees were told:

[T]he NPO will not add value to our organization. We be-
lieve a union will cause higher operational costs, less flexibil-
ity, rigid work rules and even the risk of job actions or strikes.
We believe a union’s presence here will have a very serious
impact on you and Norton Healthcare.

In its internal documents, following acquisition, Norton noted:

6 Multi-Ad Services, 331 NLRB 1226 (2000).
In spite of the turnover among RNs since the 1994
election, there remains a solid core of union supporters
throughout nursing services with concentrated support in
the critical care units, open heart unit, surgical services
and 3 East.
There is a significant number of RNs whose senti-
ments are unknown either because they are new to the fa-
cility, new to the unit, or have a new manager.
There are a few LPNs who are identified as union sup-
porters, however, their scope of influence is limited. At
this time, there is no evidence activity has spread to any
other technical classifications.
The managers perceive the PSAs and unit clerks to be
vulnerable to the union message because of salaries and
workload. Active supporters were identified in mater-
nal/child services and 3 East. However, there is no evi-
dence at this time of an organized effort among non-
professional employees. [Emphasis supplied.]

On February 23, 1999, at meetings with employees and by
internal hospital newsletter, the Respondent announced the
outsourcing of its environmental services or housekeeping de-
partments with the functions thereafter to be performed by
Crothall Healthcare, Inc. It was further announced that Nor-
ton’s environmental service department employees would be-
come Crothall employees, as of March 21 of that year. Those
housekeeping employees, including McCombs, were assured,
however, that, if they wished to remain Norton employees, they
would be given preference for open positions for which they
qualified, at Audubon Hospital and in the Norton hospital sys-
tem, and would thereby be able to retain their Norton seniority.
When Kay Tillow, the Union’s director of organization,
learned of the outsourcing, she asked Susan Yost, a registered
nurse at the nearby downtown facility, Norton Hospital, to find
out more details and to locate someone to be interviewed by the
local Louisville, Kentucky, newspaper, the Courier-Journal,
about the matter. Two days later, on February 25, Yost re-
ceived a written warning for her activities in this regard, a dis-
cipline, as noted, found unlawful by Judge Wagman whose
decision was, thereafter, adopted by the Board. A day before,
on February 24, the Courier-Journal published an article about
Norton’s decision to outsource the housekeeping operations
which included an interview with Wilma McCombs and de-
scribed her predicament as a longtime employee who stood to
lose her seniority and suffer a reduction in pay and benefits.
McCombs and the other displaced Audubon environmental
service department people were instructed by the Respondent to
deal with human resource department employee Delores White
in seeking to fill open positions at Norton. McCombs repeat-
edly told White that she, McCombs, wanted any position that
she was qualified for, so long as it was a full-time position (in
Norton parlance, a 1.0 position). Thereafter, McCombs, who
would learn of job openings through the job postings in human
resources, began submitting applications and requests for trans-
fer within the Norton system. When she did so, White would
advise her that her application would remain on file for 2 years,
and that the employee need not submit further applications.
NORTON AUDUBON HOSPITAL 327
After becoming a Crothall employee, and, unable to secure a
position which would return her to the Norton system,
McCombs took advantage of Norton’s offer to pay for certified
nursing assistant training for displaced environmental service
employees. She received a certification from the State of Ken-
tucky in June, 1999. In McCombs’ personnel file at Norton
appears the evaluation of her instructor, noting that she was a
“conscientious student, worked hard & mastered course mate-
rial easily.” Following certification, beginning July 19, 1999,
McCombs, working from the Norton job postings, submitted
numerous applications for open certified nursing assistant posi-
tions (as noted, dubbed patient care attendant and, or, patient
support associate positions). Again, she was told that the ap-
plications stayed on file for 2 years. Through electronic mail to
White and others at Audubon, McCombs continually asserted
her desire for a Norton job, nursing or non-nursing, as long as it
was full-time. She received no offers. On January 31, 2000,
McCombs, by electronic mail, asked White to explain why her
e-mail communications concerning job opportunities go unan-
swered while full-time nursing assistant positions in the hospi-
tal are filled by individuals having no experience, no certifica-
tion, no seniority and who are not students. In this regard,
McCombs specified individuals by name. She received no
response.
McCombs enjoyed a spotless work performance record while
employed by Norton. Yet, she was not offered an aide position
despite the Respondent’s continued, often heavy, need for full-
time aides during the August 1999, to September, 2000, period
as reflected in the job postings, numerous newspaper adver-
tisements run by Norton, internal correspondence and the run-
ning of a job fair in February, 2000. It is undisputed that,
throughout the relevant time-frame, Audubon experienced a
very severe retention problem with the certified nursing assis-
tants it hired.
On two occasions, McCombs was able to secure an interview
relating to an open aide position. Thus, on September 23, 1999,
clinical manager Kim Blair chose to interview McCombs for a
32-hour per week aide position (a .8 position) despite
McCombs’ repeated expressions of her need for a full time
(1.0) job, only, and the availability of such positions. Blair did
not offer the aide position to McCombs because, Blair testified,
McCombs “did not interview well,” seemed disinterested,
evaded answering questions and was seeking to protect her
salary, established by Norton, against diminution by Crothall.
Later, on October 6, 1999, McCombs was interviewed for an
aide position by statutory supervisor Tammy McClanahan.
According to McClanahan’s testimony, McCombs stated at the
interview that she wanted to become a nursing assistant in order
to avoid losing her Norton benefits and Norton seniority.
McClanahan decided, she testified, not to offer a job to
McCombs because she, McClanahan, wanted someone who had
a love of patient care and not someone who just wanted to
maintain benefits and seniority.
It is curious that, despite its critical problem with respect to
the retention of aides, both Blair and McClanahan claimed to
hold against McCombs her desire to protect her seniority, sal-
ary and benefits by returning to the Norton system, where she
clearly intended to stay. In any event, neither of those supervi-
sors impressed me as entirely truthful witnesses and their re-
spective testimony in this regard is not credited.
In June, 2000, Norton terminated its relationship with
Crothall and the environmental service department, with its 60
employees, including McCombs, was reinstated as a Norton
department. By this process, McCombs returned as a Norton
employee. Only after her return, in September, 2000, was she,
for the first time, offered a 1.0 aide position, indeed, after an
interview conducted by Blair. McCombs accepted the offer
but, later, changed her mind and declined it.
In addition to those transferred within the Norton system to
fill open full-time aide jobs during the period August 11, 1999,
to June 19, 2000, some 23 individuals were newly hired in that
time-frame into 1.0 patient support associate jobs at Audubon
Hospital. This, at a time when the Respondent had committed
itself to giving preference to qualified displaced environmental
service people. At the least, eight of the new hires, demonstra-
bly, had lesser qualifications than McCombs. Thus, Kelly
Bohannon, hired on August 15, 1999, lacked nursing assistant
certification or experience, hospital experience generally, and
Norton seniority, albeit, she had worked at Audubon for a pe-
riod of 1 month, in orientation, some years before; Shelia
Buehner, hired on June 18, 2000, lacked nursing assistant certi-
fication or experience, hospital experience generally, and Nor-
ton seniority; Mary Jo Crosley, hired on February 27, 2000,
lacked nursing assistant certification or experience, hospital
experience generally, and Norton seniority; Sabrina Green,
hired October 24, 1999, lacked nursing assistant certification
and Norton seniority; John Harper, hired February 13, 2000, a
heating, ventilating and air-conditioning mechanic, lacked nurs-
ing assistant certification or experience, hospital experience
generally, and Norton seniority; Rebecca Heschke, hired Feb-
ruary 1, 2000, whose experience was as a salesclerk and cash-
ier, lacked nursing assistant certification or experience, hospital
experience generally, and Norton seniority (in 1998, Heschke
very briefly attended nursing school, but dropped out); Jennifer
Pugh, hired April 16, 2000, lacked nursing assistant certifica-
tion or experience, hospital experience generally, and Norton
seniority; Temeka Wilkerson, hired April 9, 2000, lacked nurs-
ing assistant certification or experience, hospital experience
generally, and Norton seniority (indeed, Wilkerson was a
Crothall employee, a housekeeper, not previously employed at
Norton).
As shown, during the relevant period, the Respondent was
hiring 1.0 patient support associates and the applicant, Wilma
McCombs, very successfully had completed training covering
the requirements of the position. McCombs was a highly moti-
vated union activist in the forefront of NPO’s campaign for
recognition, and the Respondent knew it. As rendered clear in
this and earlier cases, the hospital harbored a high degree of
antiunion animus and has demonstrated a willingness to oppose
the NPO by unlawful means. In these circumstances, the infer-
ence amply is warranted that Norton denied employment as a
patient support associate to McCombs for discriminatory rea-
sons.
In the face of the General Counsel’s very strong prima facie
case of unlawful refusal to employ McCombs in the position in
question, the Respondent has not shown, by credible record
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 328
evidence, that it would have denied employment as a nursing
aide to McCombs, even absent her protected conduct. Thus,
Norton has not demonstrated that McCombs lacked the qualifi-
cations required to fill the open positions, or that those who
were hired had superior qualifications. Rather, the record evi-
dence shows that, at a time when Audubon Hospital was com-
mitted to granting preference to qualified displaced environ-
mental service aides, it chose to hire from outside the Norton
system, into 1.0 nursing aide jobs, at least 8 individuals with
clearly lesser qualifications, in some cases, without any dis-
cernable qualifications. In this regard, I note the portions of the
Respondent’s internal communications, set forth, above, show-
ing its concern that those in nursing aide jobs were “vulnerable
to the union message.” Indeed, once the outsourcing relation-
ship with Crothall had ended, and the environmental service
employees, including McCombs, had been returned to the Nor-
ton payroll, so that McCombs was, in any event, back as a Nor-
ton employee and able to spread the NPO message, then, and
not before then, the Respondent offered to McCombs one of its
many open full-time patient support associate jobs.
Under the test to be utilized in discriminatory refusal to hire
cases, as enunciated by the Board,7 the record evidence in this
case compels the conclusion that, between mid-August, 1999,
and mid-September, 2000, the Respondent refused to hire
McCombs into a full-time patient support associate position
because of her union and other protected concerted activities.
The Respondent thereby violated Section 8(a)(3) and (1) of the
Act.8
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations described in
Section I, above, have a close, intimate and substantial relation
to trade, traffic and commerce among the several states and
tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practice conduct in violation of Section 8(a)(3) and
(1) of the Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Norton Healthcare, Inc. d/b/a Norton Audubon Hospital is
an employer engaged in commerce, and in operations affecting
commerce, within the meaning of Section 2(2), (6) and (7) of
the Act, and a health care institution within the meaning of
Section 2(14) of the Act.
2. Nurses Professional Organization, affiliated with the
United Nurses of America, American Federation of State,
County and Municipal Employees, AFL–CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.

7 See FES, 331 NLRB 9 (2000).
8 See also Glenn’s Trucking Co., 332 NLRB 880 (2000).
3. By advising an employee that discussions regarding the
Union were prohibited during worktime, while other non-work
related discussions were permitted, and by interrogating an
employee regarding her union sympathies and those of other
employees, the Respondent has engaged in unfair labor practice
conduct within the meaning of Section 8(a)(1) of the Act.
4. By failing and refusing, between August 11, 1999 and
mid-September, 2000, to employ Wilma McCombs as a patient
support associate, because of her activities on behalf of the
Union and because of her other protected concerted activities,
the Respondent has engaged in unfair labor practice conduct
within the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, and conclusions of law,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:9
ORDER
The Respondent, Norton Healthcare, Inc. d/b/a Norton
Audubon Hospital, Louisville, Kentucky, its officers, agents,
successors and assigns, shall:
1. Cease and desist from:
(a) Advising employees that discussions regarding the Union
are prohibited during worktime, while other non-work related
discussions are permitted, and interrogating employees regard-
ing their union sympathies and those of other employees.
(b) Refusing to employ individuals in patient support associ-
ate positions because of their union activities or other protected
concerted activities.
(c) In any like or related manner, interfering with, restraining
or coercing employees in the exercise of their rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Offer to Wilma McCombs a full-time (1.0) patient sup-
port associate position or, if that position no longer exists, a
substantially equivalent position, without prejudice to her sen-
iority or any other rights or privileges.
(b) Make Wilma McCombs whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her. Backpay shall be computed as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
NORTON AUDUBON HOSPITAL 329
(d) Within 14 days after service by the Region, post at its fa-
cilities in Louisville, Kentucky, copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days, in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by

10 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.”
the Respondent to ensure that the notices are not altered, de-
faced or covered by any other material. In the event that during
the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since Au-
gust 11, 1999.
(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 the
Respondent has taken to comply.