Promedica Health Systems

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1351 (N.L.R.B. 2004)

PROMEDICA HEALTH SYSTEMS
343 NLRB No. 131
1351
Promedica Health Systems, Inc. and International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW
The Toledo Hospital and Toledo Children’s Hospital,
a Subsidiary of Promedica Health Systems, Inc.
and International Union, United Automobile,
Aerospace and Agricultural Implement Work-
ers of America, UAW. Case 8–CA–31818, 8–
CA–32345, 8–RC–16175, and 8–RC–16176
December 16, 2004
DECISION, ORDER, CERTIFICATION OF RESULTS,
AND DIRECTION OF SECOND ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On May 6, 2003, Administrative Law Judge Earl E.
Shamwell Jr. issued the attached decision. The Respon-
dents filed exceptions and a supporting brief, and the
General Counsel and the Union each filed an answering
brief. In addition, the General Counsel filed cross-
exceptions and a supporting brief, and the Respondents
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,
and to adopt the recommended Order as modified and set
forth in full below.2

1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There are no exceptions to the judge’s finding that the Respondents
did not engage in unfair labor practices and/or objectionable conduct by
implementing a 401(k) pension plan, by telling an employee that they
maintained a list of employees active in the Union; by promising wage
increases to dissuade certain employees from supporting the Union
(which was part of the catchall objection); or by threatening employees
with more restrictive leave policies and discharge for striking. There
are also no exceptions to the judge’s recommendation to overrule Ob-
jection 23, which alleges that the Respondents, through their Patient
Care Supervisor Kerry Loe, made coercive statements to employee
Marjorie Smith.
In adopting the judge’s finding that the Respondents violated Sec.
8(a)(3) of the Act by enforcing their no-solicitation rule against em-
ployees Dea Lynn Keckler and by issuing Keckler a verbal coaching on
June 4, 2000, we note in particular that these findings of violations are
warranted even absent evidence that the Respondents permitted nonun-
ion solicitation after the commencement of the union campaign.
2 We shall modify the judge’s recommended Order to sever the rep-
resentation case in Case 8–RC–16176 from the unfair labor practice
proceeding, and to specify that the Respondents are not required to post
Background
The Respondents operate not-for-profit acute health
care and related facilities. Its central region includes the
Toledo Hospital, Flower Hospital, the Goerlich Center,
North Campus Laboratory, and the Toledo Children’s
Hospital. It employs 7300 employees in the central re-
gion, 200 of whom are managers or supervisors.
In early 2000, the Union began to organize several of
the Respondents’ facilities, including the Toledo and
Flower Hospitals and the Goerlich Center. On February
14, 2001, the Union filed four separate representation
petitions for the following units: skilled maintenance,
nursing, technical, and support services. All four units
are at the main Toledo campus. No petitions were filed
for the employees working at Flower Hospital or the Go-
erlich Center. A stipulated agreement was entered into
and the elections were held on April 4, 5, and 6, 2001.
The tally of ballots shows that a majority of ballots were
cast against the Union in all of the units. The objections
considered in this case pertain to the elections held in the
technical and support services units.
1. The Respondents’ coachings
The Respondents maintain a progressive disciplinary
policy (policy 600), which provides for employee recog-
nitions and performance counseling (also referred to as
coaching). It also provides for formal levels of disci-
pline, and for a timeframe for presenting discipline.
The judge found, and we agree, that the Respondents
violated Section 8(a)(3) of the Act by issuing coachings
to employees Dea Lyn Keckler, Robert Hasenfratz,
Christine Gallagher, Billie Smith, and Cynthia Miller,
directed at their union activity. In their exceptions, the
Respondents contend that these coachings did not violate
Section 8(a)(3) because they were not disciplinary ac-
tions. We find no merit to this contention. As explained
by the judge, the record demonstrates that coachings play
a significant role in the Respondents’ progressive disci-
plinary process. Thus, if an employee has received a
coaching or counseling for a particular infraction, that
coaching or counseling is taken into consideration in
determining whether further discipline is warranted, and
the nature of that discipline, for future infractions. The
Board has found that warnings and reprimands of this
nature are part of a disciplinary process in that they lay
“a foundation for future disciplinary action against [the
employee].” Trover Clinic, 280 NLRB 6, 16 (1986).

a notice at its Goerlich Center, where no violations were committed.
See Consolidated Edison Co. of New York, 323 NLRB 910, 911–912
(1997) (Board’s usual practice is to post notice at locations at which the
violations were committed). See also Rose-Terminix Exterminator Co.,
315 NLRB 1283, 1289 (1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1352
Lancaster Fairfield Community Hospital, 311 NLRB
401 (1993), cited in support by the Respondents, is
clearly distinguishable. In that case, the Board found
that an employer did not violate Section 8(a)(3) by issu-
ing a “conference report” to an employee for wearing a
union pin, because there was no evidence that the confer-
ence report was “even a preliminary step in the progres-
sive disciplinary system.” Id. at 403. Here, however, the
Respondents’ coaching of employees is duly considered
when future discipline is contemplated. Thus, the coach-
ings are clearly part of the disciplinary system, unlike the
conference reports at issue in Lancaster, supra. Accord-
ingly, we adopt the judge’s finding that the Respondents’
coaching of employees for engaging in protected activity
violated Section 8(a)(3).
2. Creation of impression of surveillance
We adopt the judge’s finding that the Respondents vio-
lated Section 8(a)(1) of the Act by creating the impres-
sion of surveillance of employee Robert Hasenfratz’ un-
ion activities.3 The credited testimony shows that Hasen-
fratz became active in the union campaign in April 2000.
His activity included soliciting signatures on authoriza-
tion cards. In an interview in The Toledo Blade, pub-
lished May 12, 2000, Hasenfratz was quoted as making
favorable comments about the Union. On May 17 or 18,
2000, Hasenfratz met with his supervisor, Barbara Stac-
cone. Staccone told Hasenfratz that someone had com-
plained about his soliciting “something” about the Union.
Hasenfratz asked Staccone who had made the complaint,
but Staccone replied that she was not comfortable nam-
ing the person. Staccone said that the soliciting had
caused a decrease in productivity and patient care, in-
cluding a decline in patient satisfaction.
The judge found that Staccone’s comments created the
impression that Hasenfratz’ union activities were under
surveillance. In support, the judge explained that Stac-
cone’s comments were made shortly after the Hasenfratz
interview appeared in the local newspaper, that Staccone
refused to disclose the name of the person who had made
the complaint, and that the Respondents undertook little
or no investigation of the report of Hasenfratz’ conduct.
We agree with the judge’s finding. In Avondale Indus-
tries, 329 NLRB 1064, 1265 (1999), the Board found
that an employer created the unlawful impression of sur-
veillance when a supervisor told an employee that the
employee’s prounion sympathies were known, and that
he would not disclose to him how he received this infor-

3 In view of this finding, we find it unnecessary to pass on the other
allegations of creating the impression of surveillance, because any
findings of such additional violations would be cumulative and would
not affect the remedy.
mation. The Board adopted the judge’s finding that the
refusal to tell the employee how the information was
gained was “an action designed to convey to that em-
ployee that the information was gained by stealth and
unlawful means.” Id. Similarly, Staccone made it clear
to Hasenfratz that she knew about Hasenfratz’ union ac-
tivity, but refused to disclose the source of her knowl-
edge. As in Avondale, supra, these comments reasonably
conveyed to Hasenfratz the impression that his union
activity was under surveillance.
In arguing that Staccone’s comments did not create the
impression of surveillance, our dissenting colleague con-
tends that Avondale, supra, is distinguishable because,
here, Staccone told Hasenfratz that a complaint had been
made about his union activity, whereas in Avondale, the
supervisor did not even divulge whether a complaint had
been made. This is a distinction without significance. In
Avondale, as here, the supervisor refused to reveal his
source of the knowledge of the union activity. In both
circumstances, the refusal to reveal the source could rea-
sonably create the impression that the information was
obtained by management surveilling the employee’s pro-
tected activity. Accordingly, we adopt the judge’s find-
ing that the Respondents violated Section 8(a)(1) by cre-
ating the impression of surveillance of Hasenfratz’ union
activity.
3. Statements about a wage increase
The judge found, and we agree, that the Respondents
violated Section 8(a)(1) by telling employees that a pre-
viously promised wage increase was placed on hold be-
cause the Union had filed an election petition.
As set forth in detail in the judge’s decision, the cred-
ited testimony shows that in June 2000, the Respondents’
compensation council determined that there were signifi-
cant recruitment and retention issues in several classifica-
tions which, if not addressed, could lead to a lack of
competitiveness and a loss of patients. To that end, the
acting director of the Respondents’ clinical laboratory,
Sean McClure, initiated a study that, among other things,
identified a problem with the wages of the preanalytical
technicians (PTs) in the clinical laboratory.
In January 2001,4 McClure reported to the council that
a market equity issue existed with respect to the PTs’
wages. The council agreed in principle with McClure,
but asked him to refine his report and present it to the
council in 2 weeks. McClure met again with the council
around February 14. At that meeting, there was a general
agreement on the need for some adjustments in the
wages of the PT classification. However, the council
remained concerned about McClure’s approach to resolv-

4 All dates hereafter are in 2001, unless stated otherwise.
PROMEDICA HEALTH SYSTEMS 1353
ing the wage discrepancy inasmuch as it differed from an
approach the council previously had used when address-
ing wage issues associated with the Respondents’ regis-
tered nurses. The council expressed its belief that the
wage adjustment for PTs needed to be consistent with
that precedent in order to win approval from the Respon-
dents’ executive council (the Respondents’ ultimate cor-
porate approving body). McClure was instructed to re-
vise the proposal consistent with that precedent.
After this meeting, McClure asked for, and received,
permission to tell the PTs that the wage increase was
being approved. McClure then instructed Technical Co-
ordinator Gloria Florence and Supervisor Wendy Purcell
to tell the PTs that the wage increase had been approved.
Pursuant to these instructions, Florence told some of the
PTs that the wage increase was going to happen, but that
the details were still being worked on. In addition, Flor-
ence told PT Sherrie Schreiner and a coworker that they
were going to get a 15-percent pay increase, effective
their second paycheck in March.
Meanwhile, on February 18, the compensation council
learned that the Union had filed the election petitions
(the PTs are included in the petitioned-for support ser-
vices unit). The council decided that, while it agreed on
the need for McClure’s proposed wage increase, the im-
plementation of it would not be appropriate at this time.
Around the end of February or early March, the Respon-
dents’ executive council approved the funding of the
proposed wage increase, but decided not to implement it
in light of the election petitions.
In late February, McClure told Supervisor Barbara
Newman that the wage increase for the PTs was being
put on hold until after the election. After that, Newman
convened employees and told them that the wage in-
crease was put on hold. After this announcement by
Newman, when employees asked Supervisor Wendy
Purcell about the wage raise, she told them that the raise
was approved but could not be implemented.
In early March, at a laboratory staff meeting of about
30 employees, McClure announced in the main work
area of the north campus lab that, on advice of the Re-
spondents’ lawyers, the pay increase was not being
granted at this time. From time to time thereafter, em-
ployees asked McClure about the raise, and he responded
that the matter was with the lawyers and he was not sure
what would happen.
On March 19, the Respondents’ medical director,
Francis Walsh, met with approximately 50 employees
from both the petitioned-for support service and techni-
cal units. Walsh told the gathered employees that, upon
advice from the Respondents’ lawyers, employees would
not be getting their anticipated raise, because the peti-
tions had been filed. Walsh explained that a market ad-
justment of PT wages had been approved in principle by
the hospital, but because of the Board’s Rules, no raise
could be implemented at this time. He added that, upon
completion of the organizing campaign, irrespective of
whether the Union was accepted or rejected, the raise
could be brought up again either to be implemented or to
be part of the collective-bargaining process.
The judge found that the Respondents violated Section
8(a)(1) of the Act by announcing the withholding of the
PT wage increase after the filing of the petition and the
commencement of the Union’s campaign. The judge
found that the Respondents created great anticipation in
the minds of the PTs that a raise for the PTs was “in the
bag.” The judge specifically relied on the fact that Flor-
ence told employee Schreiner that the PTs were getting a
15-percent raise effective the second paycheck in March.
The judge further found that employees thereafter could
reasonably interpret Walsh’s statements as meaning that
the PTs were not getting the anticipated wage increase
because of the Union’s election petitions, and that im-
plementation of the wage increase “would be vouchsafed
by a union loss.”
We agree with the judge’s finding. It is well settled
that conditions of employment include not only what an
employer has already granted, but also what the em-
ployer has proposed to grant. Liberty Telephone &
Communications, 204 NLRB 317 (1973). Thus, an em-
ployer violates Section 8(a)(1) by telling employees that
the implementation of an anticipated wage increase may
be in doubt due to the obligation to engage in collective
bargaining with a union after an election. E.g., Earth-
grains Co., 336 NLRB 1119 (2001), enfd. sub nom.
mem. Sara Lee Bakery Group, Inc. v. NLRB, 61
Fed.Appx. 1 (4th Cir. 2003). Such statements reasonably
convey a threat of loss of existing benefits if they rea-
sonably “leave employees with the impression that what
they may ultimately receive depends upon what the un-
ion can induce the employer to restore.” Earthgrains,
supra at 1119–1120; Taylor-Dunn Mfg. Co., 252 NLRB
799, 800 (1980), enfd. 679 F.2d 900 (9th Cir. 1982).
Here, the facts show that the Respondents, through the
actions of McClure, informed employees that the PTs
would soon receive a wage increase. Thereafter, follow-
ing the filing of the election petitions, the Respondents’
medical director, Francis Walsh, informed employees
that the wage increase would be implemented if the Un-
ion lost the election, but the wage increase would be
made part of the collective-bargaining process if the Un-
ion won the election. We agree with the judge that these
comments reasonably conveyed to employees that the PT
wage increase could be in jeopardy if the employees se-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1354
lected union representation, but would be secure if the
Union lost the election.
Our dissenting colleague finds that the Respondents’
statements were not unlawful. He contends, in essence,
that the Respondents, through Walsh, cleared up any
misinformation and accurately told employees that the
wage increase was in the planning stage, and that the
Respondents would continue its planning after the elec-
tion. We disagree. The Respondents did far more than
inform employees that there were plans to address a
wage increase. The Respondents’ statements left em-
ployees with the clear impression that a wage increase
for the PTs was going to occur, but that a union victory
might jeopardize that occurrence by virtue of it being
subject to the collective-bargaining process. The Re-
spondents accordingly violated Section 8(a)(1) as al-
leged.
4. The objectionable conduct
The judge further found that the Respondents’ an-
nounced withholding of the PT wage increase constituted
objectionable conduct. In so finding, he set aside the
election in both the support services unit, in which the
PTs were included, and the technical unit. The judge
reasoned that although the Respondents’ announcement
concerning the wages in the PT job classification directly
affected employees only in the support services unit, the
announcement was “potentially poisonous to other job
classifications” in the technical unit as well.
We agree with the judge that the Respondents’ an-
nouncement constituted objectionable conduct. See
Deaconess Medical Center, 341 NLRB 589 (2004) (em-
ployer engaged in objectionable conduct when, after tell-
ing employees that a previously implemented wage re-
duction would be restored when the employer regained
financial stability, further told employees that it could
not easily restore the wages if employees were repre-
sented by the union). As explained above, the PTs in the
support services unit could reasonably believe from
Walsh’s statements that their raise could be secured only
if they voted not to be represented by the Union. Fur-
ther, the record shows that the issue of the PTs’ wage
increase was a topic of much discussion among many of
the employees in the support services unit. Accordingly,
we adopt the judge’s recommendation to set aside the
election in that unit.
Contrary to the judge, however, we find that there is
no basis on this record to find that the Respondents’ con-
duct warrants setting aside the election in the technical
unit. While the record shows that some employees from
the petitioned-for technical unit were present at employee
meetings when statements about the PTs’ wage increase
were made, the record is not clear as to the number of
employees in attendance. Further, there is no evidence
suggesting that the employees in the technical unit
viewed this matter (including the reasons for addressing
the PTs’ wages, the proposal to address the market equity
concerns, and the subsequent decision to hold off imple-
mentation) as one that could have an impact on their own
wages. In view of this lack of evidence, we are unable to
conclude that the Respondents’ statements about putting
on hold the PTs’ wage increase destroyed the laboratory
conditions of the election in the technical unit. Accord-
ingly, we shall overrule the objection as it relates to the
technical unit and certify the results of the election in
Case 8–RC–16176.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondents, Promedica Health Systems, Inc., The
Toledo Hospital and Toledo Children’s Hospital, a Sub-
sidiary of Promedica Health Systems, Inc., Toledo, Ohio,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals
because of their union activities, sympathies, or support.
(b) Enforcing their solicitation, distribution, and loiter-
ing policy selectively and disparately; that is, by restrict-
ing union-related solicitations and distributions while not
likewise restricting nonunion-related solicitations and
distributions.
(c) Creating the impression among their employees
that their union activities were under surveillance.
(d) Coercively informing their employees that they
should terminate their employment with the Respondents
if they supported the International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers
of America, UAW, or any other labor organization.
(e) Informing employees that a wage increase previ-
ously promised them was being placed on hold because
the Union filed a petition seeking to represent them.
(f) Discriminatorily issuing disciplinary coachings to
employees because of their support or activities on behalf
of the Union.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order,
remove from their files any reference to the unlawful
disciplinary counselings/coachings issued to Billie
Smith, Robert Hasenfratz, Dea Lynn Keckler, Cynthia
Miller, and Christine Gallagher and, within 3 days there-
PROMEDICA HEALTH SYSTEMS 1355
after, notify each of them in writing that this has been
done, and that the disciplinary actions will not be used
against them in any way.
(b) Within 14 days from the date of this Order, make
Billie Smith, Robert Hasenfratz, Dea Lynn Keckler, Cyn-
thia Miller, and Christine Gallagher whole for any loss of
earnings and benefits suffered by them a result of the
discrimination against them in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days after service by the Region, post at
their facilities in Toledo, Ohio, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 8,
after being signed by the Respondents’ authorized repre-
sentative, shall be posted by the Respondents and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondents have gone out of business or closed the facili-
ties involved in these proceedings, the Respondents shall
duplicate and mail, at their own expense, a copy of the
notice to all current employees and former employees
employed by the Respondents at any time since May 1,
2000.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondents have taken to
comply with this Order.
CERTIFICATION OF RESULTS OF ELECTION IN
CASE 8–RC–17175
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of
America, UAW, and that it is not the exclusive represen-
tative of the employees in the bargaining unit in the
above-designated case.
[Direction of Second Election in Case 8–RC–17176
omitted from publication.]

5 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
CHAIRMAN BATTISTA, dissenting in part.
Contrary to the judge and my colleagues, I do not find
that the Respondents violated Section 8(a)(1) of the Act
by creating the impression of surveillance, or by making
statements regarding the withholding of wage increase
for the Respondents’ preanalytical technicians (PTs). I
also find that the statements about the wage increase did
not constitute objectionable conduct.
Creation of Impression of Surveillance Allegations
1. My colleagues adopt the judge’s finding that the Re-
spondents created the impression of surveillance of em-
ployee Robert Hasenfratz’ union activities. They base
this on the fact that Supervisor Barbara Staccone ap-
proached Hasenfratz, told him that someone had com-
plained about his solicitation for the Union, but refused
to disclose the identity of the person who had made the
complaint. I disagree.
As an initial matter, I note that Hasenfratz had made
prounion statements in a general circulation newspaper.
Thus, his prounion activity was hardly secret. There was
no reason for the Respondents to spy on him, or for him
to fear that he was being spied upon.
Even more importantly, the Respondents made it clear
to Hasenfratz that the reports of his union activity came
from a complaint made to the Respondents. Thus, any
reasonable employee would understand that the bases for
the Respondents’ remarks were complaints from others
rather than spying.
Further, the fact that the Respondents would not reveal
the name of the complainer does not undercut the Re-
spondents’ statement that it had received a complaint. In
any event, that refusal to disclose does not automatically
lead to a conclusion that there has been spying. To the
contrary, any reasonable employee would understand
that the Respondents were simply protecting the confi-
dentiality interests of the complainer.
My colleagues’ reliance on Avondale Industries, 329
NLRB 1064, 1265 (1999), is unavailing. In that case, a
supervisor told an employee that he knew that the em-
ployee was a union supporter, but refused to tell the em-
ployee how he received the information. The supervisor
refused to disclose anything about how the information
was obtained. Thus, the employee could reasonably pre-
sume that “the information was gained by stealth and
unlawful means.” Id. Here, Staccone did reveal how the
Respondents received this information. She told him that
the information had been received via a complaint that
had been brought to management. Although she did not
reveal the source of the complaint, her comments do not
reasonably suggest that the Respondents obtained the
information by “stealth and unlawful means.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1356
In sum, because Staccone made no comment reasona-
bly creating the impression that the Respondents were
surveilling Hasenfratz’ union activity, I would dismiss
this allegation.
2. My colleagues do not pass on the judge’s finding
that the Respondents created the impression of surveil-
lance of employee Billie Smith’s union activity. For
reasons similar to those discussed above, I would reverse
the judge’s finding.
The record shows that the Respondents’ director of
environmental resources, Gerald Fletcher, called Smith
into a meeting and told her that an unnamed source in the
dietary department said that Smith had been soliciting
while on the job. Smith denied soliciting, but admitted to
talking about the Union while working. Fletcher told her
he did not wish to see her hurt, and that she should only
converse with employees during nonworking times such
as while on break.
I disagree with the judge that Fletcher’s remarks rea-
sonably conveyed that the Respondents or their agents
surveilled Smith’s union activity. Rather, like Stac-
cone’s remarks discussed above, Fletcher’s comments
reasonably suggested nothing more than the fact that
someone had brought this information to Fletcher’s atten-
tion. Without more, Fletcher’s statements are devoid of
any suggestion that information was gathered through
surveillance of Smith’s union activity.1
Statements About the Wage Increase
My colleagues find that the Respondents violated Sec-
tion 8(a)(1) and engaged in objectionable conduct by
informing employees that a wage increase was being put
on hold because of an election petition. I disagree.
The facts are undisputed. In June 2000, the Respon-
dents’ compensation council began addressing certain
issues concerning recruitment and retention in several
classifications. The Respondents’ acting director, Sean
McClure, performed a study of wages in the clinical
laboratory and identified wage problems with the preana-
lytical technicians (PTs). On January 25, 2001,2
McClure presented to the council a market equity report
regarding the preanalytical technicians. The council
asked McClure to refine his report and return in 2 weeks.
At a meeting on February 14, the council directed
McClure to resolve the wage discrepancy by using the
market-based approach the council previously had used
in dealing with wage issues concerning the registered
nurses. Thereafter, McClure worked with Compensation

1 For the reasons set forth in the judge’s decision, and consistent
with my findings herein, I adopt the judge’s dismissal of the other
allegations of creation of impression of surveillance.
2 All dates hereafter are in 2001, unless stated otherwise.
Council Chairman Jeff Keller to revise the proposal into
a form that the Respondents’ executive council would
approve.
On February 14, the RC petitions were filed. About
February 18, the compensation council became aware of
the filing of these petitions. Ultimately, the wage ad-
justment was not approved. The Respondents explained
to theirs employees that because of the petitions and
upon advice of counsel, the wage adjustments would not
be made at that time. The Respondents also explained
that if the Union lost, the wage adjustment would be
made. If the Union won, the matter would be addressed
in bargaining.
I disagree with my colleagues and the judge that the
Respondents’ statements were unlawful. Concededly, at
the time that the Respondents learned that a petition had
been filed, plans for a wage increase for the PTs were
well underway. However, final approval of the plan and
its implementation had not occurred.3 Thus, the Respon-
dents acted appropriately in not taking further action on a
wage plan that had not been fully finalized at the time the
petition had been filed. That is, if the wage adjustment
had been given, the Respondents would face the allega-
tion that the adjustment was an unlawful and objection-
able benefit granted during the critical period.
Further, the statements themselves reflected current
law. Once the election matter was resolved, the Respon-
dents would be free to unilaterally grant the increase if
the Union lost, and the Respondents would be obligated
to bargain about the matter if the Union won. The Re-
spondents told employees the truth. That is neither
unlawful nor objectionable.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf

3 The erroneous comments of Technical Coordinator Gloria Florence
(that the wage increase was going to happen) were corrected by the
Respondent’s explanation that implementation of the wage increase had
not been approved, and the matter would not come up again until after
the election.
PROMEDICA HEALTH SYSTEMS 1357
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten you with unspecified reprisals
because of your union activities, sympathies, or support.
WE WILL NOT enforce our solicitation, distribution, and
loitering policy selectively and disparately; that is, by
restricting union-related solicitations and distributions
while not likewise restricting nonunion-related solicita-
tions and distributions.
WE WILL NOT create the impression among you that
your union activities are under surveillance.
WE WILL NOT coercively inform you that you should
terminate your employment with us if you support the
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, or
any other labor organization.
WE WILL NOT inform you that a wage increase previ-
ously promised you is being placed on hold because the
Union filed a petition seeking to represent you.
WE WILL NOT discriminatorily issue disciplinary coach-
ings to you because of your support of and activities on
behalf of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
ciplinary counseling/coachings issued to Billie Smith,
Robert Hasenfratz, Dea Lynn Keckler, Cynthia Miller,
and Christine Gallagher and, within 3 days thereafter,
notify them, in writing, that this has been done and that
the disciplinary actions will not be used against them in
any way.
WE WILL, within 14 days from the date of this Order,
make Billie Smith, Robert Hasenfratz, Dea Lynn Keck-
ler, Cynthia Miller, and Christine Gallagher whole for
any loss of earnings and benefits suffered by them as a
result of the discrimination against them.
PROMEDICA HEALTH SYSTEMS, INC.
Allen Binstock, Esq. and Iva Choe, Esq., for the General Coun-
sel.
G. Roger King, Esq., Coleen A. Deep, Esq., E. Michael
Rossman, Esq., and Andraea D. Carlson, Esq. (Jones, Day,
Reavis, and Pogue), of Columbus, Ohio, for the Respon-
dent.
Joan Torzewski, Esq. (Lackey, Nusbaum, Harris, Reny, and
Torzewski), of Toledo, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. This
case was heard before me on October 16, 17, and 18 and De-
cember 4, 5, 6, and 7, 2001, and January 22, 23, and 24, 2002,
in Toledo, Ohio, pursuant to an original charge filed in Case 8–
CA–31818 on August 10, 2000, by the International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America, UAW (the Union) against Promedica
Health Systems, Inc. (Promedica); this charge was amended by
the Union on October 17, 2000. On April 13, 2001, the Union
filed an original charge against the Toledo Hospital and Toledo
Children’s Hospital, a subsidiary of Promedica Health Systems,
Inc. in Case 8–CA–32345; this charge was amended by the
Union on July 27, 2001.
On November 15, 2000, the Acting Regional Director
(ARD) for Region 8 of the National Labor Relations Board (the
Board) issued a complaint against Promedica in Case 8–CA–
31818. On August 30, 2001, the Acting Regional Director
issued his order consolidating cases, amended consolidated
complaint joining Cases 8–CA–31818 and 8–CA–32345, and
setting a hearing date of October 1, 2001.
The consolidated complaint alleges that Promedica and
Toledo (the Respondent or sometimes individually as
Promedica and Toledo) violated in numerous instances Section
8(a)(1) and (3) of the National Labor Relations Act (the Act).1
On or about September 13, 2002, the Respondent timely filed a
responsive answer essentially denying the commission of any
unfair labor practices and asserting affirmative defenses to the
charges in question.2
Pursuant to a Stipulated Election Agreement approved by the
ARD on March 13, 2001, an election was conducted on April
4–6, 2001, among Toledo employees in employee groupings
described as the technical unit and the support services unit.
The Union lost the election in both races and on April 13, 2001,
the Union filed numerous objections to conduct affecting the
results of the election. The ARD determined that the gravamen

1 On or about January 24, 2002, the General Counsel and counsel for
the Respondent reached a settlement agreement with respect to par. 33
of the complaint which alleged an unlawful termination of alleged
discriminatee, Heather Joseph. I approved the settlement conditioned
upon Joseph’s assent to the proposed settlement. The terms of the
settlement are incorporated in a January 25, 2000 letter from the Gen-
eral Counsel to Joseph, who, on February 3, 2002, by letter assented to
the terms of the proposal. Accordingly, based on the proposed settle-
ment agreement and the alleged discriminatee’s assent thereto, I have
permitted the withdrawal of the charge. I have included the aforemen-
tioned letters from the General Counsel and Joseph in the record herein
designating them as Ct. Exh. 1.
Also, the General Counsel withdrew par. 20 of the complaint. I have
approved the withdrawal.
2 The Respondent asserted 16 separate defenses. However, at the
hearing, the Respondent withdrew its “fifth defense,” that the persons
named in pars. 31(a), 32(a), 37(a), and 38(a) of the complaint were not
statutory supervisors and therefore not subject to the protections of the
Act. With respect to the remaining defenses, they will be dealt with as
appropriate in this decision. Any defenses not asserted in the Respon-
dent’s brief will be considered abandoned by them.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1358
of certain of the Union’s objections were coextensive with
and/or identical to certain of the allegations contained in the
unfair labor practice complaints in Cases 8–CA–31818 and 8–
CA–32345. Accordingly on September 5, 2001, he ordered
that these objections—Objections 5, 10, and 23—be scheduled
for a hearing consolidated with the aforementioned unfair labor
practice cases; the ARD also ordered that the Union’s catchall
objection, a part which asserted incidents that occurred outside
the critical period of the election petition, be consolidated with
the unfair labor practice proceedings.3
At the hearing, the parties were represented by counsel and
were afforded full opportunity to be heard, examine and cross-
examine witnesses, and introduce evidence. On the entire re-
cord, including my observation of the demeanor of the wit-
nesses, and after considering the briefs4 filed by the General
Counsel, the Charging Party, and the Respondent, I make the
following

3 During the course of the administrative investigation of the claimed
objectionable conduct, the Union requested that 20 of the 26 objections
be withdrawn. The ARD approved this request.
4 On April 8, 2002, the counsel for the Respondent filed his motion
to strike parts of the General Counsel’s brief. The Respondent’s coun-
sel contends that the General Counsel’s stated version of the issues
presented in pars. 27 and 28 of the complaint represents a fundamental
posthearing modification of the allegations in question resulting in
unfair prejudice to the Respondent’s defense. The General Counsel
opposes the motion, asserting that any variances between the complaint
allegations and the adduced proof did not deprive the Respondent of
any opportunity to fully and fairly litigate the issues presented by pars.
27 and 28. Further, he contends that the Respondent’s failure to object
at the trial or move for dismissal raises an implied consent to the litiga-
tion of the issues. I would deny the motion to strike. As noted by the
Respondent’s counsel, this trial was quite protracted, and the Respon-
dent took full advantage of the time allowed by me to present its de-
fense to these and other charges in the complaint. My decision herein
reflects a full consideration of the Respondent’s witness testimony and
argument on the issues presented by pars. 27 and 28.
On April 16, 2002, the General Counsel filed his motion to strike a
part of the Respondent’s brief. The General Counsel specifically seeks
to strike fn. 31 (p. 33) of the brief, which deals with alleged discrimina-
tee Cynthia Miller who was discharged by the Respondent for wearing
a sticker containing objectionable language. He asserts this footnote,
about a matter not in issue in the instant litigation, was improperly
included by the Respondent to attack Miller’s credibility and character.
The Respondent counters that the General Counsel several times raised
the issue of Miller’s termination to serve his point that his witnesses
were anxious or fearful about testifying at the hearing because of the
Respondent’s actions against a union supporter; that this footnote in
question was simply the Respondent’s legitimate response to the Gen-
eral Counsel’s tactic.
I will deny this motion in basic agreement with the Respondent. As
I noted at the hearing, Miller’s termination was not at issue in the trial.
However, because the General Counsel raised the point in the context
of the testimony offered by its other witnesses, the Respondent could
probe the matter out of fairness. However, Miller’s discharge was not a
factor in my resolution of the complaint allegations that pertain to her.
FINDINGS OF FACT
I. JURISDICTIONTHE BUSINESS OF RESPONDENTS PROMEDICA
HEALTH SYSTEMS, THE TOLEDO HOSPITAL, AND TOLEDO
CHILDREN’S HOSPITAL
The Respondents, Ohio corporations, with offices and places
of business in the Toledo, Ohio area, have been engaged in the
operation of not-for-profit acute health care facilities, including
the Toledo Hospital, Flower Hospital, the Goerlich Center, and
the Toledo Hospital and Toledo Children’s Hospital. The Re-
spondents annually, in conducting their business operations,
derive gross revenues in excess of $250,000 and purchase
goods and services valued in excess of $50,000 directly from
points located outside the State of Ohio. The Respondents
admit, and I find and conclude, that they are employers en-
gaged in commerce within the meaning of Section (2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION
It is admitted, and I find and conclude, that the Union, Inter-
national Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW, has been a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The complaint, as amended, sets out numerous alleged viola-
tions of Section 8(a)(1) and (3) of the Act by the Respondent
occurring over a period covering roughly May 2000 through
about April 6, 2001, when the elections were concluded. As
will be evident, the allegations in a number of instances are tied
to the Respondent’s conduct with respect to one employee.
Accordingly, for clarity and brevity, I have organized my dis-
cussion of these charges by grouping all appropriate allegations
under a heading specific to the employee in question. In the
main, the allegations involving individual employees took place
in 2000 before the Union filed its election petitions, essentially
in the summer of 2000.
Other charges alleged in the amended complaint can be fairly
stated to have occurred in the context of the Union’s preelec-
tion campaign and the Respondent’s countercampaign, which
covered the approximate timeframe of February through March
2001. The objections to the election as voted are coextensive
generally with these charges.
Therefore, the discussion and resolution of the charges here
will follow a chronology that includes the summer 2000 unfair
labor practice allegations and the preelection unfair labor prac-
tice allegations.
However, before launching into the discussion of the actual
unfair labor practice charges, I will first set out in preliminary
fashion a background and overview of the litigation, the appli-
cable legal principles, the contentions of the parties, and an
observation or two on credibility issues which will figure heav-
ily in the resolution of the many charges here.
PROMEDICA HEALTH SYSTEMS 1359
B. Background and Overview of the Litigation5
The Respondent operates several hospitals and related facili-
ties in northwest Ohio and southeast Michigan, which offer a
range of patient care services, including acute care, in-patient,
long-term rehabilitative care, as well as prevention, wellness,
and diagnostic treatment. The Respondent conducts its multi-
patient care service operation on a tripartite regional basis, with
the central region being the largest geographically, covering
three counties in northwest Ohio. The central region is com-
prised of 70 separate entities, including the Toledo Hospital
(Toledo) and Toledo Children’s Hospital (TCH), the North
Campus Laboratory (NCL), Flower Hospital (Flower), and the
Goerlich Center (Goerlich), a 48-bed Alzheimer’s nursing facil-
ity.6 The central region is the region out of which the litigation
emanates.
The Respondent employs about 7300 employees in the cen-
tral region, 200 of which serve in managerial/supervisory ca-
pacities.
The central region is headed by Barbara Steele, whose re-
sponsibilities include day-to-day oversight of the Toledo Hospi-
tal/Toledo Children’s Hospital as well as the development,
execution, and implementation of hospital policies and proce-
dure, including the determination of employee benefits. Em-
ployee benefits have to be ultimately approved by its board of
trustees who receives recommendations from a 16-member
group designated the executive council, which is chaired by
Steele.
The Respondent has at least, since 1997, regularly used out-
side consultants in a number of areas, including hospital or-
ganization, finance, architecture, urban planning, nursing edu-
cation, and human resources. In the area of human resources,
the Respondent has employed consultants to conduct employee
and management surveys, benefits and wage assessments, and
training in and understanding of various laws and statutes ap-
plicable to health care facilities.
In January 2000, the Respondent undertook a number of re-
visions in its management policies, including its solicitation and

5 As will be evident, this case contains many allegations and charges.
In this background and overview section, I will discuss certain matters
which hopefully will elucidate issues pertinent to this litigation and
eliminate needless repetition and explication of terms, places, and other
matters pertinent to the case.
Obviously, matters stated herein will have direct reference to the of-
ficial record and/or reasonable inferences drawn therefrom. In the
main, these references relate to undisputed or uncontroverted facts.
The parties’ briefs submitted in this case have been very helpful in this
regard, and their efforts are much appreciated by me. However, it
should be noted that in arriving at the facts undergirding the back-
ground analysis, I have credited testimony of the actual witnesses testi-
fying on the subject in question.
6 Children’s Hospital is in a way of speaking a hospital within a hos-
pital; it is nonetheless a distinct entity within the Respondent’s opera-
tions. These facilities are geographically and administratively separate.
For instance, Flower is located about 10 miles from Toledo, and each
facility has its own management structure and human resources de-
partment. For another, NCL is located about one-half mile from
Toledo, and Goerlich is located on the campus of Flower.
disciplinary policies, effective January 18, 2000.7 The revi-
sions were not in all cases major or substantial but were, as a
general matter, to be applied throughout the central region.
The Respondent’s solicitation/distribution policy as revised
on January 18, 2000, was contained in policy 606 and applied
to solicitation/distribution by nonemployees, as well as em-
ployees on hospital grounds and facilities. Regarding solicita-
tion and distribution by employees, the policy provides in per-
tinent part as follows:
Purpose
The policy listed below applies to solicitation, distribution and
loitering in all facilities of the organization and on its prem-
ises. The policy is designed to prevent disruption in facility
operation, interference with patient care and inconvenience to
patients and visitors.
Policy
SOLICITATION, DISTRIBUTION AND LOITERING BY
EMPLOYEES:
1. Solicitation by employees for funds, membership or
individual enlistment in outside organization or causes is
prohibited at all times on work time and in immediate pa-
tient care areas. Solicitation is also prohibited if either the
soliciting employee or the employee being solicited is on
working time. Solicitation by employees shall be permit-
ted during non-working time in all non-working areas of
the facility that are not immediate patient care areas.
2. Distribution of literature and other materials by
employees for any purpose is prohibited during working
time and is also prohibited at all times in immediate pa-
tient care areas and other working areas of the facility.
Distribution is if the employee distributing material or the
employees receiving such material is on working time.
Distribution by employees shall be permitted during non-
working time in non-working areas and non-immediate pa-
tient care areas of the facility.
3. All employees are expected to enter the facility
building in an appropriate amount of time to prepare to
begin their shift and to leave the facility building as soon
as practical upon completion of their shift. Except as oth-
erwise provided in this paragraph, off-duty employees are
not permitted to enter immediate patient care areas prior to
the start of their shift and are to leave all immediate patient
care areas of the facility upon completion of their shift.
Off duty non-supervisory personnel are authorized to be in
ProMedica facilities to visit patients, receive medical
treatment, attended authorized Employer meetings, to visit
the Human Resources office, to visit public areas of
ProMedica facilities, or engage in otherwise approved ac-
tivities by their supervisors.

7 See R. Exh. 53, a power point presentation prepared by the Re-
spondent’s human resources manager, Patricia Appley, setting out
various hospital policies which were not changed in any way. The
Respondent used this document to educate management and super-
visors on the revised policies over a period of time at various hospital
policies.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1360
. . . .
5. For purposes of this policy, the following terms are
defined:
a. Working time is that time when employees are
required to perform their assigned job duties.
b. Non-working time is that time established for
meal periods, scheduled breaks, personal clean
up time and time immediately before or after
the assigned shift.
c. Non-working areas are those areas of the facil-
ity where employees are not regularly assigned
work duties, including the employee break ar-
eas, cafeteria, main lobby, gift shop, restrooms,
locker rooms, and corridors not in immediate
patient care areas.
d. Immediate patient care areas are areas where
patient care occurs including patient rooms, pa-
tient treatment areas, patient sitting rooms and
elevators, stairways and corridors used to
transport patients.
e. Working areas are all other areas of the facility.
All violations of this policy will be reported to the fa-
cility Director of Human Resources, or designee, and the
Security department immediately.
It should be noted that the revision and contents of the Re-
spondent’s solicitation policy are not alleged or argued by the
General Counsel to be violative of the Act.8
The Respondent employs a progressive disciplinary process
that is incorporated in what it describes as its performance im-
provement management policy under policy 600, also revised
in part on January 18, 2000. The specifics of the Respondent’s
performance improvement management system include em-
ployee recognitions, performance counseling (coaching), for-
mal levels of discipline, and a time frame for presenting disci-
pline and habitual offenders.9 Policy 600 also contains a listing
of inappropriate behavior that may be utilized by management
as a guide to administering discipline in its facilities; the listing
is described as not “all inclusive.” Again, policy 600 is not
alleged to be violative of the Act, either by dint of its having
been revised or its contents, by the General Counsel.
In early January 2000, the Union commenced its organizing
efforts at several of the Respondent’s facilities, including
Toledo and Flower Hospitals and the Goerlich Center. The
union organizing campaigns continued through 2000.
On February 14, 2001, the Union filed four separate repre-
sentation petitions for employees working in a proposed skilled
maintenance unit (Case 8–RC–16173); a proposed nursing unit
(Case 8–RC–16174); a proposed technical unit (Case 8–RC–
16175), and a proposed support services unit (Case 8–RC–

8 The General Counsel in his brief, however, suggests that solicita-
tion was not a matter of concern for the Respondent until the advent of
the Union in January 2000.
9 See. R. Exh. 8. Policy 600 is set out completely in the document.
The Respondent uses the terms, “coaching” and “counseling” inter-
changeably. Coaching is not included in the literal language of the
policy.
16176) on the main Toledo campus; no petitions were filed for
employees working at Flower or Goerlich.
On about March 15, 2001, the Respondent and the Union en-
tered into Stipulated Election Agreements which, inter alia,
identified the four units appropriate for collective bargaining,
established a challenge procedure for certain job classifications,
and set election dates (April 4, 5, and 6, 2000), times, and loca-
tions.10
At some point, the Respondent decided to oppose the Un-
ion’s organizing efforts. Toward that end, the Respondent re-
tained and utilized human resource consultants to provide labor
relations training to its managers and supervisors to oppose the
Union during the preelection period. The Respondent, once in
receipt of the election petitions, through its consultants and
human resources department, undertook election-related train-
ing of its managers and supervisors, including the preparation
of instructional materials for presentations in meetings to be
arranged between management and the employees.11
During the campaign and preelection period, the Respondent
established two employee teams and conducted at least 10 or
more meetings with various employees at which these materials
were presented by management and supervisors at various hos-
pital locations.
On April 4, 5, and 6, 2001, the Board-conducted secret-ballot
elections; and the votes were tallied on April 7, 2001. The
results of the election were as follows:
Against
Representa-
tion
For Rep-
resenta-
tion
Chal-
lenged
Void
Skilled
Maintenance
Unit12 (8–
RC–16173)
44 20 9 2
Nursing
Unit11
(8–RC–
16174)
790 318 52 0
Technical
Unit (8–RC–
16175
286 136 117 3
Support
Services Unit
(8–RC–
16176)13
651 553 112 1

10 See R. Exh. 54.
11 See. R. Exh. 5, an issues and answers overhead projection (slide)
presentation; R. Exh. 52, an issues and answers script for the slide
presentation; and R. Exh. 45, a handout dealing with a collective-
bargaining agreement between the Union and St. Vincent Hospital.
12 As noted herein, these units are not the subject of the objections in
issue. The results of these elections have been certified. GC Exh. 2.
13 With respect to the support services unit, subsequent to the elec-
tion, the Union and the Respondent reached agreement with respect to
17 of the challenged ballots. The amended tally showed that of 1324
eligible voters, 1316 cast ballots; 553 were for and 651 were against the
Union. There are 97 challenged ballots, a number deemed insufficient
to affect the outcome of the election. See GC Exh. 2.
PROMEDICA HEALTH SYSTEMS 1361
The objections to election results pertain only to the techni-
cal and support services unit.
C. Applicable Legal Principles
1. Legal analysis of the 8(a)(3) violations
Section 8(a)(3) of the Act makes it an unfair labor practice
for an employer to discriminate in regard to hire or tenure of
employment or any term or condition of employment, to en-
courage or discourage membership in any labor organization.
29 U.S.C. § 158(a)(3).
Preliminary to determining whether an employer has dis-
criminated against an employee in violation of Section 8(a)(3)
of the Act, the Board has held that the General Counsel must
first make a prima facie showing sufficient to support the infer-
ence that the protected activity or activities of the employee
was a motivating factor in the employer’s decision to discipline
or discharge the employee. If this is established, the burden
then shifts to the employer to demonstrate that discipline or
discharge would have occurred irrespective of whether the
employee was engaged in protected activity. Wright Line, 251
NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981);
Briar Crest Nursing Home, 333 NLRB 935 (2001). It is also
well settled, however, that when an employer’s stated motives
for its actions are found to be false, the circumstances may
warrant an inference that the true motive is one that the em-
ployer desires to conceal. The motive may be inferred from the
total circumstances provided. Moreover, under certain circum-
stances, the Board will infer animus in the absence of direct
evidence. That finding may be inferred from the record as a
whole. Fluor Daniel, Inc., 304 NLRB 970 (1991).
A prima facie case is made out where the General Counsel
establishes union activity, employer knowledge of that activity,
animus, and adverse action against those involved, which has
the effect of encouraging or discouraging union activity.
Farmer Bros. Co., 303 NLRB 638, 349 (1991). Inferences of
animus and discriminatory motivation may be warranted under
all the circumstances of a case, even without direct evidence.
Evidence of suspicious timing, false reasons given in defense,
failure to adequately investigate alleged misconduct, departures
from past practices, tolerance of behavior for which the em-
ployee was fired, and disparate treatment of the discharged
employees all support inferences of animus and discriminatory
motivation. Adco Electric, 307 NLRB 1113, 1123 (1992),
enfg. 6 F.3d 1110 (5th Cir. 1993); Electronic Data Systems
Corp., 305 NLRB 219 (1991); Bryant & Cooper Steakhouse,
304 NLRB 750 (1991); Bourne Manor Extended Health Care
Facility, 332 NLRB 72 (2000); Visador Co., 303 NLRB 1039,
1044 (1991); and In-Terminal Service Corp., 309 NLRB 23
(1992).14
Once the General Counsel has made a prima facie case, the
burden shifts back to the employer to prove its affirmative de-
fense that the alleged discriminatory conduct would have taken
place even in the absence of protected activity. That burden

14 It is well established that in likewise, knowledge of an employee’s
union activities may be proven by circumstantial evidence from which
a reasonable inference may be drawn. Kajima Engineering & Con-
struction, 331 NLRB 1604 (2000), and cases cited therein.
requires a respondent “to establish its Wright Line defense only
by a preponderance of evidence.” The respondent’s defense
does not fail simply because not all of the evidence supports it,
or even because some evidence tends to negate it. Merrilat
Industries, 307 NLRB 1301, 1303 (1992).
Notably, the test applies regardless of whether the case in-
volves pretextual reasons or dual motivation. Frank Black
Mechanical Services, 271 NLRB 1302 fn. 2 (1984). The Board
has held that “[A] finding of pretext necessarily means that the
reasons advance by the employer either did not exist or were
not, in fact relied upon, thereby leaving intact the inference of
wrongful motive.” Limestone Apparel Corp., 255 NLRB 722
(1981), enfd. 705 F.2d 799 (6th Cir. 1982).
For purposes of the instant litigation, it should be noted that
the Board has held that an employer violates Section 8(a) and
(3) of the Act by issuing disciplinary warnings for the first time
to employees for violations of its no-solicitation rule in the
context of a union organizing campaign and in a manner dispa-
rate from past practices. Clinton Electronics Corp., 332 NLRB
479 (2000); 6 West Limited Corp., 330 NLRB 527, 546 (2000).
Additionally, where the employer has been lax in the en-
forcement of its no-solicitation/no-distribution rule, the Board
has held that the employer cannot validly enforce those rules
against employees engaged in union solicitations or distribu-
tions, and violates the Act in so doing. Meijer, Inc., 318 NLRB
50, 57 (1995).
2. Legal analysis of the 8(a)(1) violations
Section 7 of the Act (in pertinent part) provides that
“[e]mployees 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 engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and shall also have the
right to refrain from any or all such activities.” Thus, employ-
ees have the right to, inter alia, support or oppose union repre-
sentation and to participate or refrain from participating in an
NLRB election campaign.
Section 8(a)(1) of the Act provides: “It shall be an unfair la-
bor practice for an employer (1) to interfere with, restrain, or
coerce employees in the exercise of rights guaranteed in section
7.” The test under Section 8(a)(1) does not turn on the em-
ployer’s motive or whether the coercion succeeded or failed.
The test is whether the employer engaged in conduct that may
be reasonably said, tends to interfere with the free exercise of
employee rights under the Act. Gissel Packing Co., 395 U.S.
575 (1969); Almet, Inc., 305 NLRB 626 (1991); American
Freightways Co., 124 NLRB 146, 147 (1959). Thus, it is viola-
tive of the Act for the employer or its supervisors to engage in
conduct, including speech, which is specifically intended to
impede or discourage union involvement. F. W. Woolworth
Co., 310 NLRB 1197 (1993); Williamhouse of California, Inc.,
317 NLRB 699 (1995). The test of whether a statement or
conduct would reasonably tend to coerce is an objective one,
requiring an assessment of all the surrounding circumstances in
which the statement is made as the conduct occurs. Electrical
Workers Local 6 (San Francisco Electrical Contractors), 318
NLRB 109 (1995). Rossmore House, 269 NLRB 117 (1984),
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1362
enfd. sub nom. Hotel & Restaurant Employees Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). The Board has noted in
this regard that the context of statements can supply meaning to
the otherwise ambiguous or misleading expressions if consid-
ered in isolation. Debbie Reynolds Hotel, 332 NLRB 466
(2000).
In the interest of maintaining production and workplace dis-
cipline, employers can lawfully impose restrictions on work-
place communications among employees and, in fact, when
justified by such factors or considerations, employers can pro-
hibit all talking while employees are working. Stone & Web-
ster Engineering Corp., 220 NLRB 905 (1975); Pilot Freight
Carriers, Inc., 265 NLRB 129, 133 (1982).
However, a no-solicitation rule is unlawful if it unduly re-
stricts the organizational activities of employees during periods
and in places where these activities do not interfere with the
employer’s operations. Our Way, Inc., 268 NLRB 394 (1983);
Laidlaw Transit, Inc., 315 NLRB 79, 82 (1994), cited in Ad-
tranz, ABB Daimler-Benz, 331 NLRB 291 (2000).
Therefore, a prohibition on communication among employ-
ees cannot be overly broad, so broad that it prohibits communi-
cation among employees during paid nonwork periods such as
breaks and lunchbreaks or during the unpaid nonwork periods
such as before or after work, so long as the employees are law-
fully on the employer’s premises. Such broad prohibitions are
presumptively invalid. St. John’s Hospital, 222 NLRB 1150
(1976). Said another way, employers may lawfully ban work-
time solicitations when defined as not to include before or after
regular working hours, lunch breaks, and rest periods. Sunland
Construction Co., 309 NLRB 1224, 1238 (1992), and they may
remind employees of existing rules or established policies re-
garding solicitation. Bryant & Stratton Business Institute v.
NLRB, 140 F.3d 169 (2d Cir. 1998).
Significantly, the Board has found employers liable for
8(a)(1) violations where employees are forbidden to discuss
unionization but are free to discuss other subjects unrelated to
work, particularly when the prohibition is announced or en-
forced only in response to specific union activities in an organ-
izational campaign. Orval Kent Foods, 278 NLRB 402, 407
(1986), cited in Williamette Industries, 306 NLRB 1010, 1011
(1992).
Employers who maintain and enforce a policy prohibiting
off-duty employees from distributing union literature in non-
working areas of the employer’s property without legitimate
business justification may violate Section 8(a)(1). St. Luke’s
Hospital, 300 NLRB 836 (1990); Orange Memorial Hospital,
285 NLRB 1099 (1987).
In Our Way, Inc., supra, the Board returned to the principal
that in cases involving the legality of rules involving solicita-
tions at work, the term “working time” is presumptively valid
because it indicates with sufficient clarity that employees may
solicit on their own time, while the term “working hours” is
presumptively invalid because it connotes periods from the
beginning to the end of work shifts, which includes the em-
ployees’ own time.
The Board has long held that an employer may lawfully pro-
hibit employees from distributing literature in work areas in
order to prevent hazards to production that would be created by
littering the premises. Stoddard-Quirk Mfg, 138 NLRB 615
(1962); but this rule does not apply to a mixed use area. Trans-
con Lines, 235 NLRB 1163, 1165 (1978), affd. in pertinent part
599 F.2d 719 (5th Cir. 1979), cited in United Parcel Service,
331 NLRB 338 (2000) (Board upholds judge’s finding that an
employer unlawfully prohibited distribution of union-related
materials in a nonwork (or mixed use) area of premises be-
tween 7:30 a.m. and drivers’ official start time of 8:40 a.m.).
Regarding employer interrogations of employees, it is well
established that interrogation of employees is not per se illegal.
The Board has held that the test of the illegality of interrogation
is whether, under all the circumstances, it reasonably tends to
interfere with, restrain, or coerce employees in the exercise of
their rights. Rossmore House, 269 NLRB 1176 (1984). Under
the totality of circumstances approach, the Board examines
factors such as whether the interrogated employees is an open
and active union supporter, the background of the interrogation,
nature of information sought, and the identity of the questioner.
Demco New York Co., 337 NLRB 850 (2002).
Other factors to be considered about questioning of an em-
ployee include time, place, and personnel involved. Blue Flash
Express, Inc., 109 NLRB 591 (1954); American Freightways
Co., 124 NLRB 146, 147 (1959); and NLRB v. Illinois Tools
Works, 153 F.2d 811 (7th Cir. 1946).
Thus, the employer must inform the employee of the purpose
of the questioning, assure him that no reprisals will take place,
and obtain his participation on a voluntary basis; the question-
ing must occur in a context free of employer hostility to union
organization and must not be itself coercive in nature; questions
must not exceed the necessity of the legitimate purpose by pry-
ing into other union matters, eliciting information concerning
an employee’s subjective state of mind, or otherwise interfering
with the statutory rights of employees. When an employer
transgresses the boundaries of these safeguards, he loses the
benefits of the privilege. Johnnie’s Poultry Co., 146 NLRB
770, 775 (1964), enf. denied on other grounds 334 F.2d 617
(8th Cir. 1965), cited in A.S.I., Inc., 333 NLRB 70 (2001).
Notably, also, the Board has considered even arguably brief,
casual, and not followed up questioning violative of the Act if
the words and context contain elements of coercion and inter-
ference. Sea Breeze Health Care Center, 331 NLRB 1131
(2000). In Sea Breeze Health Care Center, the Board under-
scored its decision by citing the observation of the Fifth Circuit
in NLRB v. Laredo Coca Cola Bottling Co., 613 F.2d 1338,
1342 fn. 7 (1980):
[A]n employee is entitled to keep from his employer his
views so that the employee may exercise a full and free
choice on whether to select the Union or not, uninfluenced by
the employer’s knowledge or suspicions about those views
and the possible reaction toward the employee that his views
may stimulate in the employer. That the interrogation might
be courteous and low keyed instead of boisterous, rude, and
profane does not alter the case. [Quoting from the underlying
decision in Laredo Coca Cola Bottling Co., 241 NLRB 167,
172 (1979.]
The Board has long held that employer threats of (and pre-
sumably actual) close supervision because of union activity
PROMEDICA HEALTH SYSTEMS 1363
violates Section 8(a)(1). Wellstream Corp., 313 NLRB 698,
704 (1994); Paul Mueller Co., 332 NLRB 312 (2000); Jennie-
O Foods, 301 NLRB 305, 310 (1991); and Olympic Limousine
Service, 278 NLRB 932, 936 (1986).
Employers who unreasonably observe or take note of em-
ployees’ union organizing or other activities may violate Sec-
tion 8(a)(1) of the Act by creating an impression of surveil-
lance. The Board test for determining whether an employer has
created an impression of surveillance is whether the employer
would reasonably assume from an employer statement (or con-
duct) in question that her union activities had been placed under
surveillance. Tres Estrellas de Oro, 329 NLRB 50, 51 (1999).
As the Board stated in Flexsteel Industries, 311 NLRB 257
(1993), the idea behind finding “an impression of surveillance”
as a violation of Section 8(a)(1) is that employees should be
free to participate in union organizing campaigns without the
fear that members of management are “peering over their
shoulders, taking note of who is involved in union activities,
and in what particular ways.” Said another way, the issue is
whether the employer’s behavior would reasonably suggest to
the employee that there was close monitoring of the degree and
extent of his organizational efforts and activities.15
Finally, Section 8(c) provides that:
The expressing of any views, argument, or opinion, or
the dissemination thereof, whether in written, printed,
graphic, or visual form, shall not constitute or be evidence
of an unfair labor practice under any of the provisions of
this Act, if such expression contains no threat of reprisal or
force or promise of benefit. [29 U.S.C. § 158(c).]
The Board has noted that Congress added Section 8(c) to the
Act in 1947 as part of the Taft-Hartley Act, because it believed
that the Board has made it “excessively difficult for employers
to engage in any form or noncoercive communications with
employees regarding the merits of unionization.”16
The Board has long held that an employer’s promise granting
withholding or rescission of benefits to employees in the con-
text of union organizing or other protected activities may be
violative of the Act. Charles S. Wilson Memorial Hospital, 331
1529 (2000). The Board recently in Star, Inc., 337 NLRB 962
(2002), stated that “it will infer that an announcement or grant
of benefits during the critical period [of the election] is coer-
cive, but the employer may rebut the inference by establishing

15 See, for example, Desert Pines Golf Club, 334 NLRB 265 (2001),
where the employer told a worker that it had received word that he was
involved in union activity and that employees complained of being
harassed about the union, held to be a violation; and Avondale Indus-
tries, 329 NLRB 1064, 1265 (1999), where employer pulled an em-
ployee aside and told him his prounion activities were known but re-
fused to tell the inquiring employee the source of the information, held
to be a violation of the Act. But see Kathleen’s Bakeshop, LLC, 337
NLRB 1081 (2002), where employee’s union involvement and activi-
ties were so open and well known that employer’s statement deemed
not sufficient to create impression of surveillance.
16 Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1361 (D.C. Cir.
1997). The Board has held that while Sec. 8(c) is not by its terms ap-
plicable to representation cases, the “strictures of the [F]irst
[A]mendment, to be sure, must be considered in all cases.” Dal-Tex
Optical Co., 137 NLRB 1782, 1787 fn. 11 (1962).
an explanation other than the pending election for the timing of
the announcement or bestowal of the benefit [citation omit-
ted].”
It is equally and generally well established that in deciding
whether to grant benefits while a representation election is
pending, an employer should act as if no union were in the
picture. Kauai Coconut Beach Resort, 317 NLRB 996 (1995).
To be sure, an employer may not inform employees that it is
withholding wage increases or accrued benefits because of
union activities. Conversely, however, an employer may tell
employees that expected benefits are to be deferred pending the
outcome of an election in order to avoid the appearance of elec-
tion interference. Id. at 997.
Thus, an employer who decides to postpone or put on hold
the granting of wage increases (or other benefits) that it would
have otherwise granted to its workers in a unit for which an
election petition has been filed, must, to avoid a violation of the
Act, advise the employees that the postponement was taken
only to avoid interference with the election. Earthgrains Co.,
336 NLRB 1119 (2001). In Atlantic Forest Products, 282
NLRB 855, 858 (1987), the Board held that in such circum-
stances, the employer must assure affected employees that the
benefits will be granted regardless of the election results; the
sole purpose of the postponement is to avoid the appearance of
influencing the election outcome; and the onus for the post-
ponement is not placed upon the union.
D. Contentions of the Parties Regarding the Summer 2000
Unfair Labor Practices Charges
The General Counsel contends that when the Union began its
organizing efforts in early 2000 and later intensified the cam-
paign, the Respondent’s reaction was essentially negative. Part
of the Respondent’s initial resistance to the Union included the
disparate and selective enforcement of the hospital’s solicita-
tion/distribution policy against employees known to be union
supporters. The General Counsel also submits that the solicita-
tion/distribution policy 606, before the advent of the organizing
campaign, had not generally been enforced, that various forms
of solicitation activity was not only widespread but also took
place at all hours of the day and in locations the hospital con-
sidered patient care areas. However, when the union organiz-
ing began in earnest, the hospital thereupon began a serious
enforcement of its no-solicitation policy with a view, he sub-
mits, to interfering with the protected activities of the union
supporters and discriminatorily disciplining them for engaging
in such activities.
The Respondent counters, arguing that its solicitation/ distri-
bution policy, from its inception and through its updating in
January 2000, has always been enforced consistently and uni-
formly by hospital managers and supervisors. The Respondent
points to the testimony of various supervisors at the hearing,
but most pointedly to that of Patricia Appley, the Respondent’s
current director of human resources at Toledo, and Sandra
Fiock, manager of human resources at Flower. The Respondent
submits that Appley and Fiock credibly testified about the his-
tory of policy 606 updating and the hospital’s approach to its
enforcement, citing various examples thereof. The Respondent
argues that the General Counsel’s five witnesses called to refute
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1364
the hospital’s picture of consistent enforcement were not able to
name a single supervisor who observed the supposed various
and numerous nonunion-related solicitations that they said took
place on an ongoing or commonplace basis.
The Respondent argues, in sum, that the General Counsel
failed to demonstrate sufficiently that it violated the Act by
disparately and/or selectively enforcing its solicitation and dis-
tribution policy.
Regarding the complaint allegations charging the Respon-
dent with discriminatory discipline of the alleged discrimina-
tees, the Respondent argues preliminarily that these charges
should be dismissed because the counselings or “coachings”
received by the affected employees were not formal disciplines
and did not affect any employees’ terms and conditions of em-
ployment. The Respondent, at some length, in essence, submits
that its performance improvement management structure—
policy 600—includes counseling as the preferred method of
assisting employees in areas of job expectations or attendance
because it provides the employee with an opportunity to meet
the Respondent’s performance standards before an issue esca-
lates to the point that true discipline may be required. The Re-
spondent concedes that coachings, which may be formal or
informal, are documented with the Respondent’s encourage-
ment by managers and supervisors, but that this serves merely
as a tool for them to keep track of often many employees under
their supervision. The Respondent also notes that coachings
that may include positive remarks—recognitions—are docu-
mented on the same communication log or in a memorandum
kept in the employee’s departmental file. The Respondent
concedes that “formal” coachings often cover conversations
between management and employees to reinforce particular
topics previously brought to the employee’s attention, and these
are documented on a performance improvement corrective
action filed in the employee’s departmental file. The Respon-
dent, nonetheless, argues that this, too, is merely a sound hu-
man resources practice, a memory tool, carrying no negative
connotation or implication for the employee’s job or status with
the hospital.
The Respondent contrasts its formal discipline under policy
600 by arguing that its formal discipline—verbal reminders,
written reminders, decision-making leave (suspension), and
termination—have job related consequences for the affected
employees, such as not being considered for transfers or being
subject to reductions in force or scheduled reorganization
(downsizing), which matters are factored in the employee’s
rating or score; also, points are deducted from her score if the
employee is currently on active discipline. The Respondent
submits and insists that coachings do not affect an employee’s
score.
The Respondent also points out that formal discipline is pro-
gressive, meaning that any subsequent infraction of company
policy will move the employee along to the next more serious
level of discipline. Coachings, the Respondent asserts, does not
have this feature.
The Respondent asserts that formal discipline includes an
appeal or grievance component that allows the affected em-
ployee to challenge the recommended discipline. However,
coachings are not subject to the grievance process. Finally, the
Respondent contends that formal disciplinary actions are active
for a defined period, while coaching conversations are not con-
sidered for any period of time.17
E. Contentions of the Parties Regarding the Unfair
Labor Practices Charges Prior to the Election
The General Counsel contends that the Respondent’s (basi-
cally undisputed) announcement of a pay increase, and its later
announcement (also undisputed) withholding of the pay in-
crease for the PTs after the filing of the election petitions and
during the critical period, constitute a violation of the Act. The
General Counsel further contends that the Respondent also
interfered with employees’ Section 7 rights by making a num-
ber of threats to the employees, including threats to withhold or
delay or a loss of an announced 401(k) pension plan; to imple-
ment more restrictive leave policies; to fire striking employees,
and to eliminate flexible time off benefits and cross-training
opportunities. Finally, the General Counsel asserts various
other violations of the Act by the Respondent mainly by creat-
ing an impression that it was surveilling employees’ union ac-
tivities, suggesting (threatening) to them that different rules and
regulations will be established and poor workers would be pro-
tected if the Union were elected; interrogating employees about
their union activities; and coercively suggesting to an employee
to quit his job because of her union sympathies. The General
Counsel submits that these actions all took place after the filing
of the election petitions and during the critical period of the
election.
The Charging Party Union joins the General Counsel, argu-
ing further that these actions of the Respondent were simply a
continuation of its “campaign of coercion” that began before
the filing of the election petitions, and submits that this pattern
of behavior was emblematic of the Respondent’s disregard for
the Act and the entire election process. The Charging Party
argues that the Respondent should be found liable for the en-
tirety of its misconduct and that the pertinent elections be set
aside.
In general, the Respondent denied violating the Act during
the preelection period, asserting that its behavior and that of its
managers was above reproach and consistent with Board law.
The Respondent submits that the General Counsel and the
Charging Party Union have failed in their respective burdens of
proof to establish either the commission of unfair labor prac-
tices or to set aside the elections results and order a new elec-
tion. The Respondent’s arguments will be discussed in greater
detail over the subsequent discussion of the specific allegations.
F. Credibility Issues
As is surely obvious, the various witnesses called by the par-
ties to this litigation related different and often highly contrast-
ing versions of events and encounters between themselves.

17 The Respondent’s witness, Sandra Fiock, stated that verbal re-
minders are active for 6 months, written reminders for 1 year, and
decision-making leave is active for 18 months. Fiock also stated that
employee communication logs, which contain recognition and coaching
conversations, are purged once per year. This, in my view, implies that
at least for a year, an employee’s coaching is “of record” in the Re-
spondent’s system.
PROMEDICA HEALTH SYSTEMS 1365
Thus, witness credibility, rather my determination of their
credibility, will certainly be instrumental in resolving the
charges herein. On the score, the General Counsel emphasizes
this point, noting that the vast majority of his witnesses are
current employees, all of whom were subpoenaed and in one or
two cases, out of fear of retaliation, had to be ordered to testify
by a Federal District Court Judge. He asserts, correctly, that
Board law confers a mantle of credibility on current employees
testifying about their employers because they are testifying
adversely to their pecuniary interests.18 The Board’s concerns
of pecuniary risks are, in my view, not merely conjectural or
theoretical.19 However, it is important to note that I will not
employ a mechanical approach to determining the credibility of
the witnesses, all of whom were under an oath to tell the truth.
Therefore, I have considered the testimony of all witnesses in
terms of their demeanor, plausibility, corroboration, and, of
course, employment status—to name but a few of the “ele-
ments” of credibility.
With the foregoing serving as a factual backdrop and a legal
framework, we turn to a discussion of the individual unfair
labor practices. My conclusions will follow each discussion.
G. The Complaint Allegations Involving Dea Lynn Keckler
In six paragraphs of the complaint, the Respondent is
charged with violating Section 8(a)(1) and (3) with respect to
employee and alleged discriminatee Dea Lynn Keckler.20
Keckler testified at the hearing.21 Keckler stated that she be-
came involved in the Union’s organizing campaign around
March 2000 in response to an ad placed by the Union. Keckler
said that she attended union meetings, passed out literature,
handed out union authorization cards, and participated in ob-
taining card signatures. According to Keckler, she usually
engaged in these activities in the hospital’s garage22 and occa-
sionally in the cafeteria.

18 See Flexsteel Industries, 316 NLRB 745 (1995); also Gold Stan-
dard Enterprises, 236 NLRB 618, 619 (1978); Georgia Rug Mill, 131
NLRB 1304, 1305 fn. 2 (1961), enfd. in relevant part 308 F.2d 89 (5th
Cir. 1962).
19 See Medic One, Inc. (JD–143–99), October 26, 1999, where an
employee supportive of the union testified credibly that his employer
allowed him time to attend certification classes before the election but,
after the successful union election, he was required to find a replace-
ment to cover his assignment to attend these classes.
20 Pars. 10, 11, 14, 32, 34, and 35. At the hearing, with respect to
pars. 10, 11, and 32, the General Counsel moved to amend the allega-
tions to correct typographical errors. He requested that June 4, 2000,
be substituted for June 14, 2000, to conform with the proof. This was
allowed by me.
21 Keckler stated that she was employed as a registered nurse in the
labor and delivery area of Toledo Hospital. Keckler has been working
for Toledo since around March 1995 and once served as a supervisor in
the labor and delivery area. Keckler stated that she is testifying under
subpoena. Because of employee Cindy Miller’s discharge by the Re-
spondent during the pendency of this hearing, Keckler stated that she
was concerned, nonetheless, about what she described as her job stabil-
ity. In fact, Keckler resigned her position with the Respondent as of
November 1, 2001.
22 Keckler recalled that on May 24, 2000, she and alleged discrimi-
natee Cindy Miller engaged in literature distribution in the garage.
Miller’s allegations are discussed elsewhere herein.
On about June 4, 2000, Keckler stated that her supervisor,
Susan Somer, called her to her office for a meeting. According
to Keckler, Somer said that she had received a complaint that
Keckler was passing out union literature in the nurses’ station
on (Thursday) June 1. Keckler told Somer that she had not
worked that day and when Somer suggested perhaps the day
was Wednesday of the same week, Keckler also advised that
she also had not worked that day. Somer then said perhaps it
was Tuesday.
Keckler stated that she told Somer that, in fact, she had been
very careful (about her solicitation activities) and that she did
not usually pass out literature at the nurses’ station.23 Accord-
ing to Keckler, Somer then told her that union activities could
only be conducted in the cafeteria and garage.
Keckler stated that nonunion solicitations generally occurred
in the hospital and in the nurses’ station; that items such as
candy bars were sold; and various catalogs for Tupperware,
Mary Kay, and Avon cosmetics, and party books are available
in the nurses’ station. According to Keckler, these items are
openly sold in these areas24 and the books and catalogs are
simply lying about. Keckler related that the issue of solicitation
was not raised until the union organizing commenced and em-
ployees, for the first time, were told then not to put any books
(Tupperware and Avon) at the nurses’ station desk. Keckler
stated that after the June 4 meeting with Somer, she still con-
tinued her union activities, mainly obtaining card signatures
and distributing literature but only in the garage area.
At the hearing, Keckler was shown a copy of a document,
described as a positive performance employee communication
log (communication log) concerning her conversation with
Somer, but which she stated she had only seen when the Gen-
eral Counsel showed it to her.25 Keckler stated that the “coach-
ing document” is inaccurate in two aspects, the date of the
coachingJune 6, 2000is incorrect; and to the extent the
language employed by Somer implies she agreed with Somer,
the document is also inaccurate.
Keckler stated that she is familiar with “coachings” because
of her past service with the Respondent as a nursing supervisor.
She stated that coachings are a part of the Respondent’s disci-
pline system wherein employees may be disciplined verbally or
in writing. If the offending behavior continues, the employee
may be subject to a decision-making leave (a suspension) or

23 Keckler said that she told Somer that she did not consider the
nurses’ station a direct patient care area since patients were not pro-
vided care or treatment there. However, Keckler stated that she did not
and would not solicit at the nurses’ station because it did not “look
good.”
24 Keckler stated that she had been a former nursing supervisor and
was aware of the hospital’s formal (606) solicitation policy and that
copies were in a manual kept in the department. According to Keckler,
during her tenure as a supervisor, neither she nor other supervisors
made any effort to apprise the employees of what the policy was. She
conceded that new employees were given a handbook when hired but
did not know whether employees received the policy. Keckler agreed
that the nurses’ station, according to the policy, is a work area where
solicitation was prohibited.
25 See GC Exh. 19. The document purports to memorialize a
“coaching” that took place on June 6, 2000, of Keckler by Somer re-
garding the solicitation in question here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1366
even discharge. Thus, according to Keckler, a coaching can be
cumulative in effect for purposes of the Respondent’s discipli-
nary process. Keckler stated that in her view, all coaching is
disciplinary in nature because coachings derive from an em-
ployee’s doing something wrong or inappropriate and is being
instructed to fix the problem.
Keckler stated that on about June 26, 2000, Somer called her
at home and inquired about a patient incident report that Keck-
ler, serving as an alternative charge nurse, had prepared on June
25, 2000.26 Somer asked Keckler why she had prepared the
report. Keckler explained her reasons and, in the end, she and
Somer agreed that no followup on the incident was necessary
and that the report would be simply filed for later reference if a
problem or question arose.
According to Keckler, Somer then turned to a report she
claimed to have received from an unidentified source who said
that Keckler was making threatening comments at the job. The
so-called threatening comments stemmed from a complaint
letter written by Elizabeth “Liz” Jackowski, clinical director of
obstetrics, about Keckler’s performance as a charge nurse.27
According to Keckler, Somer said that she received a complaint
that Keckler said when she (Keckler) found out who had writ-
ten the letter, she (Keckler) was going to get her (them). Keck-
ler admitted that she had had a conversation with another nurse
who, upon finding out about the letter, said to her, “does this
just piss you off, don’t you want to know who wrote the letter?”
Keckler said she responded to this person that she really did not
want to know, it’s not a real fun way to work. According to
Keckler, Somer said she would not stand for retaliation in the
department. Keckler said that she denied retaliating against
anyone.
At the hearing, the General Counsel showed Keckler a com-
munication log dated June 26, 2000, from Somer28 in which
their conversation about the incident was memorialized in a
“coaching.” Keckler stated that there were some inaccuracies;
e.g., Keckler denied saying she would have strong feelings
about the person who wrote the letter or would hold the letter
against her.
Keckler stated that as of the mid-June 2000, she was being
scheduled to serve as a fill-in charge nurse. Around June 21,
2000, she noticed that she evidently had been penciled in for

26 Charge nurses, as compared to regular staff nurses, have additional
duties such as serving as a technical resource for the staff nurses, ensur-
ing that staffing levels are met, and assisting staff nurses in caring for
patients. Charge nurses do not receive compensation for these addi-
tional duties.
Charge nurses have authority to call in nurses or permit them to go
home early and can bring in other nurses from other units or release
nurses to other units. However, charge nurses may not coach. The
incident report she prepared on June 25 was prepared in her capacity as
charge nurse. See GC Exh. 20.
27 Keckler stated that on June 1, 2000, she had requested a meeting
with the newly installed Somer to discuss department issues. Somer
then informed her of a letter received by Somer’s supervisor, Jack-
owski, among other things, accusing Keckler of taking excessive
breaks, not helping other nurses, calling for nurses unnecessarily, and
putting her work off on to others.
28 See GC Exh. 21. Keckler here, too, stated she had not seen the log
before the General Counsel showed it to her.
charge nurse duties, but her name had been erased and another
nurse was substituted. Keckler stated that the last time she
served as a charge nurse was around June 24 when she was the
only nurse available that daythe regular charge nurse wanted
to go home early and charge duty fell to Keckler.
Keckler stated that during the second week of July, she asked
to meet with Jackowski about the complaints, which she did not
feel were correct or justified, especially since she, just 3 weeks
before, had received an “exceeds” (the highest) evaluation as
she had for the past 2–3 years. According to Keckler, Jack-
owski told her that with respect to employee use of the Internet
on the hospital computer, we should be flexible since there
were a lot of single mothers (nurses) who need to buy items
online and as long as they were not exceeding their breaktimes,
this was okay.
Somer testified at the hearing and stated that she assumed the
patient care supervisor position in the labor and delivery units
on about May 1, 2000; this position had remained unfilled for
the previous 2–3 months.29
Somer acknowledged meeting with Keckler on about June 1,
2000. According to Somer, Keckler had requested a meeting
with her to discuss various and sundry issues related to the
labor and delivery unit. Somer said that she met with Keckler
and, after discussing certain unit matters with her, decided to
bring up an April 4, 2000 complaint against Keckler by a regis-
tered nurse, on behalf of herself and several other night-shift
registered nurses,30 when Keckler served as an alternate charge
nurse in the unit. Somer stated that she and Keckler discussed
the complaint point by point. According to Somer, Keckler
asked for no further clarification of the complaints. Somer
stated that she memorialized this meeting, which she consid-
ered a counseling, in a communications log,31 but there was no
discipline imposed on Keckler. According to Somer, it was her
hope that after this discussion, Keckler would be aware of what
her peers thought of her, take corrective action, and the matter
be concluded.
Somer also acknowledged that she counseled Keckler about
distributing union materials. According to Somer, she received
a complaint from a night-shift midwife, Donna Augustine,32

29 Somer had worked at Toledo since August 1978 and is an admit-
ted supervisor within the meaning of the Act.
30 Somer identified R. Exh. 43 as a copy of the complaint sent by
nurse Zori Gillen to Somer’s boss, Jackowski. According to Somer,
this complaint was among the stack of correspondence she inherited
upon assuming her position. Somer stated that she discussed the matter
with Gillen prior to meeting with Keckler. Essentially, the complaints
centered on Keckler’s allegedly not being a team player when serving
as charge nurse and taking excessive smoking breaks.
31 This communication log is contained R. Exh. 6.
32 Augustine testified at the hearing. Augustine stated she was em-
ployed by the Respondent as a supervisor, director of midwives, during
2000; she ceased her employment with Promedica on January 15, 2001.
According to Augustine, she observed Keckler in the early summer of
2000 at about 11 p.m. at the nurses’ station soliciting or distributing
union material. Specifically, Augustine saw Keckler arrive at work
with a bag of union buttons and offer a union card to an employee who
signed the card and returned it to Keckler. Other nurses were present,
one of whom told Keckler she should not be soliciting in the nurses’
PROMEDICA HEALTH SYSTEMS 1367
that Keckler had distributed union material at the nurse station
during her shift. Somer said that she verified the occurrence of
the incident with several other employees33 on duty at the time
and on the evening of June 6 (in Somer’s office) discussed the
matter with Keckler. According to Somer, she told Keckler
that she had the right to distribute union materials but it was
inappropriate to do so on duty time in patient care areas and
that she was in violation of the policy if the report was accurate.
Somer stated that Keckler agreed that the report was accurate
and did not deny that she was soliciting at the nurses’ station
but Keckler said she did not view the nurses’ station as a pa-
tient care area. Somer said she thereupon went over the hospi-
tal’s solicitation and distribution policy with Keckler, advising
her that the nurses’ station was indeed a patient care area where
no solicitation could take place on an employee’s duty time,
and that Keckler was in violation of the policy.
According to Somer, she did not tell Keckler where an em-
ployee could solicit and distribute, only where she could not.
Accordingly, Somer stated that she did not mention the cafete-
ria on the parking lot as appropriate or permissible solicitation
sites.34
Somer stated that on June 26, 2000, she was approached by
two nurses, one visiting her office and one telephoning, but
both beseeching her not to tell Keckler who had made the April
complaints against her. According to Somer, the two nurses,
Kathy Shannon and Carrie Lawrence,35 both 15-year employees
and each independent of the other, reported that Keckler had
openly stated in the nurses’ station that she hoped she never
found out who made the complaints because she would make
their lives miserable.
Somer stated she took the threat seriously36 and called Keck-
ler in to get her side. According to Somer, Keckler did not
deny, rather, she actually acknowledged that which she was
accused of but explained what she meant. Essentially, Keckler
said that she knew herself well enough; she could not forget
anyone who had written a complaint about her, that she really
hoped she never found out who it was. Somer stated that she
told Keckler the complaining employees were fearful of and

station. Augustine confirmed that she reported the incident to her supe-
riors, Jackowski and Kleia Luckner, as Keckler was on duty at the time.
33 Somer said she consulted with the charge nurse on duty that night,
Sherry Moore, and also with several other unnamed employees.
34 Somer claimed to be aware of the hospital’s most recent formal
solicitation policy by dint of her having previously served as coordina-
tor of an outpatient clinic at Toledo, in which assignment she advised
an employee not to sell Avon products at the nurses’ station there.
Somer admitted that she, nonetheless, has seen Tupperware and Lon-
gaberger (candles) brochures in patient care areas. Somer said that she
will either throw them away or return them to the employee whose
name appears on the brochure and tell her she cannot solicit in the
nurses’ station.
35 Kathy Shannon testified at the hearing; Carrie Lawrence did not.
According to Somer, neither Shannon nor Lawrence had a role in the
original complaint against Keckler. They both reported overhearing
Keckler’s comments at the nurses’ station.
36 Somer noted that a charge nurse could, for example, change a staff
nurse’s assignment to a less desirable one or intentionally not assist a
fellow nurse, which could indeed make a unit nurse’s life (on the job)
“miserable.”
concerned about her comments; that her behavior was abso-
lutely unprofessional; and that the hospital did not countenance
behavior threatening to other employees.
In addition to writing the incident up, Somer stated she dis-
cussed the matter with her superiors, Jackowski and Kleia
Luckner, clinical administrator, by way of followup and to
determine an appropriate response. According to Somer, Jack-
owski, Luckner, and she decided that based on her attitude,
Keckler did not possess the requisite professionalism for a
charge nurse, was not a good role model for the position, and
would not be assigned as charge nurse in the future.37 Somer
maintains that the June 26 entry on the communication log was
not a discipline of Keckler but merely reflected a discussion
with her and Somer’s plans to follow up with Jackowski; that
Keckler received no formal discipline as a result of the two
nurses’ complaints. Somer insisted that the counseling had
nothing to do with any of Keckler’s union activities; and, fur-
thermore, Keckler’s removal as charge nurse was also not re-
lated to her union support or activities.
Somer specifically denied telling Keckler that she was
watching her or otherwise keeping track of her union activities,
noting that Keckler worked nights and she worked the day shift.
Somer felt that she in no way created an impression of sur-
veilling Keckler’s union activities.
Jackowski testified that as the clinical director for obstetrics
services, she knows Keckler as a staff nurse in the labor and
delivery unit and that Keckler off and on has visited with her in
her office where they discussed any number of work and vari-
ous nonwork-related topics. Jackowski stated that Keckler
could have spoken with her in July 2000 because, in that year,
Keckler visited frequently to discuss casually her job aspira-
tions, including applying for another position at the hospital.
Jackowski stated that she did not work directly with Keckler
but knew she was regarded as a “safe” and good clinical nurse
who gave appropriate care to her patients.
Jackowski stated that she could not recall any meeting with
Keckler about Keckler’s standing as a nurse or any complaints
filed against her; nor could she recall a conversation with her
about the hospital’s policy on the use of its computers. Jack-
owski specifically denied having a conversation with Keckler
regarding nurses’ using the hospital’s computers to purchase
merchandise. Jackowski also denied Keckler’s hearing testi-
mony regarding a purported conversation between herself and
Keckler regarding differences between employees taking smok-
ing breaks and playing cards.
Jackowski maintained that the hospital’s policy on distribu-
tion and solicitation requires that such activities not occur in
clinical areas, and that computers are to be used for business

37 Somer noted that management ultimately changed its policies and
procedures for the charge nurses after the June 26 incident. Essentially,
around September 2000, the hospital decided that a charge nurse should
be a full-time nurse who would be available more days per week and
could be more knowledgeable about policies and changes, and should
have at least 2 years’ experience in labor and delivery. Charge nurses
would be selected based on their nursing skills and leadership qualities.
Somer noted that under the new system, around 20 nurses were re-
moved as charges nurse and that, in any case, Keckler would not have
been eligible to serve as a charge nurse.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1368
only. According to Jackowski, she is responsible for 250 em-
ployees in her department and she attempts to enforce these
policies and expects her managers to do likewise.
Kathy Shannon, a registered nurse employed at Toledo as a
staff nurse in the labor and delivery for about 16 years,38 testi-
fied that she worked with Keckler on the night shift during the
summer of 2000. According to Shannon, Keckler complained
to her on one night about a letter that had been written about
her and that Somer had called her in to discuss it. Keckler
stated that she did not know who had written the letter but that
if she ever found out who wrote it, she would make her/their
life miserable. Shannon stated that Keckler was very upset
over the letter and that Keckler’s facial expression at the time
was frightening to her, so much so she was even afraid to tes-
tify at the hearing.39 Shannon, however, noted that Keckler
never threatened anyone specifically and never acted vindic-
tively or retaliatory toward other employees as a result of the
letter or otherwise. According to Shannon, she had made com-
plaints against Keckler to the supervisor for not doing the small
things to assist the unit several years before this summer con-
versation but her complaints were not frequent. Shannon ac-
knowledged that Keckler possessed good clinical skills. How-
ever, in her view, Keckler was not a good charge nurse because
she did not have good interpersonal skills, was unprofessional,
and therefore ineffective in that capacity.
Discussion and Conclusions of the Keckler Allegations
The Respondent, through Somer, is charged with creating an
impression among its employees, here Keckler, that it was sur-
veilling her union activities on June 4 and 26, 2000; unlawfully
restricting Keckler’s union solicitation and distribution activi-
ties by prohibiting her from engaging in such activities in non-
working areas on June 4, 2000; discriminatorily issuing a ver-
bal disciplinary warning to Keckler on June 4, 2000; discrimi-
natorily issuing and disciplinary coaching on June 26, 2000;
and discriminatorily removing Keckler from her position as a
fill-in charge nurse on June 26, 2000.
Regarding the surveillance charges, the Respondent asserts
that, principally, Somer did not engage in anything that rea-
sonably could be called surveillance of Keckler; that all Somer
did was inform Keckler on the two dates in question that she
had received complaints that Keckler had been observed dis-
tributing union materials at the nurses’ station—a working
area—where such activity was not allowed under the hospital’s
solicitation policy. The Respondent contends that an employer
may lawfully require its employees to follow work rules and
inform them of their noncompliance without falling within the
ambit of prohibited surveillance.
I would find and conclude that under the totality of circum-
stances, the Respondent did not lawfully surveil or create the
impression that it was surveilling Keckler for and because of

38 Shannon also held the position of alternate or relief charge nurse
for about 2 years.
39 Shannon testified that she actually did not know what specific let-
ter Keckler was upset about and could not recall if its contents were
discussed in the summer conversation. Shannon said that she gathered
from Keckler’s angry reaction that it most likely related to her job
performance.
her union activities. While the General Counsel argues that
Somer was not credible, I do not share that view. In my view,
both Keckler and Somer on the surveillance point were fairly
consistent with each other. Irrespective of whether Keckler did
or did not admit to distributing union literature at the nurses’
station, which Keckler denied, and whether Somer failed to
identify to Keckler the source of a possibly threatening state-
ment made by Keckler, which she did, the point in my view is
that Somer was clearly and reasonably acting on specific work-
related issues as opposed to Keckler’s union activities. I
would, consistent with the authorities cited herein, find that
Somer’s remarks to Keckler on the dates in question could not
be reasonably interpreted or considered as creating an impres-
sion of surveillance. I would recommend dismissal of these
allegations.
Turning to the alleged unlawful restriction on Keckler’s so-
licitation and distribution activities, the Respondent essentially
contends that based on the complaint of another hospital em-
ployee to hospital managers that Keckler was distributing union
materials and soliciting signatures at the nurses’ station during
the employees’ shift, Somer confronted Keckler about the issue
and, in the end, merely “coached” Keckler on policy 606’s
prohibitions against soliciting and distributing on worktime and
in-patient care area.
Moreover, the Respondent submits that Somer was careful to
advise Keckler that she had a right to solicit but not in the
nurses’ station on worktime. On balance, the Respondent con-
tends that Somer consistently and evenly enforced the solicita-
tion policy against Keckler after her investigation determined
that Keckler had violated the policy.
Here, there seems to be no real issue in my view as to
whether Keckler distributed on hospital property union materi-
als on the day in question. Notably, there is no reason, in my
view, to doubt Augustine’s testimony on this point. I believe
that she gave an accurate account of what she saw. The ques-
tion is where Keckler solicited. Keckler stated that she did not
believe the nurses’ station was a work area but that soliciting
there would not look good. This implies that she was not being
altogether honest about where she solicited on June 4. I believe
and would conclude that she was soliciting in the nurses’ sta-
tion as Augustine testified and, furthermore, I would concur
with the Respondent that based on the record herein (and cited
authorities), the nurses’ station is a work area (patient care area)
in which soliciting and distribution could be prohibited under
policy 606, the legitimacy of which is not at issue.
Therefore, Somer had a legitimate reason to prohibit Keck-
ler’s solicitation and distribution of the union materials in a
working area. However, this does not meet the charge in ques-
tion that goes to the disparate and selective enforcement of the
policy against Keckler. I note that Keckler credibly, in my
view, testified about the numerous open and varied nonunion
solicitations and distribution of products at the nurses’ station.
As will be later clear, other employees testified (and provided
proof) to this same general ongoing state of affairs in so-called
working areas. While the Respondent in its brief denies and no
workers, including Keckler, could identify supervisors or man-
agers with direct knowledge of the breach, it seems clear that
such nonwork solicitations and distributions were “common-
PROMEDICA HEALTH SYSTEMS 1369
place” and, according to some of the witnesses, continues today
in the working areas, and that managers seemingly turned a
blind eye to the solicitations and distributions. Therefore,
Keckler’s observation that policy 606 was seemingly not en-
forced until the union organizing commenced is, in my view,
not far off the mark and consistent with the observations of
other employee witnesses in this case. I would conclude that
prior to the advent of the Union, the Respondent’s enforcement
of the solicitation policy, if not nonexistent, was extremely lax
and that its subsequent enforcement against union supporters
like Keckler, who distributed in working areas, was discrimina-
tory and in violation of the Act.40
Directing myself to the issue of Keckler’s alleged disci-
plines, the Respondent strenuously throughout contends that its
counseling’s and coachings are not the discipline that triggers a
violation of 8(a)(3)’s proscriptions.
I will be brief on this point. The Respondent attempted to
draw a clear distinction between its coachings, whether formal
or informal, and the formal discipline process. In that regard, I
certainly agree that there are such distinctions that I have
pointed out and acknowledged. However, as the General
Counsel submits in his brief, the testimony of Fiock and Ap-
pley, the Respondent’s human resources managers, clearly
indicates that counselings/coachings can be and are used by the
hospital for further and increased discipline up to and including
termination. As will be seen in subsequent discussions of other
“coached” alleged discriminatees, coachings, contrary to the
assertion of the Respondent, can and do have an immediate
effect on an employee’s terms and conditions of employment. I
would find and conclude that coachings or counseling in the
Respondent’s disciplinary scheme are of much consequence to
an employee’s terms and conditions of employment as to trig-
ger the protections of Section 8(a)(3) of the Act.
Thus, we turn to the Keckler’s verbal disciplinary coaching
on June 4 for allegedly violating the distribution policy. The
Respondent’s main contention beyond the nondisciplinary na-
ture of counseling is that Keckler violated the policy in ques-
tion and that Somer never prohibited Keckler from soliciting in
nonworking areas for the union cause. Essentially, the Respon-
dent asserts that Keckler was rightfully disciplined for the in-
fraction of the rule and not because of her union activities.41

40 I note that as pointed out by the General Counsel, even the Re-
spondent’s witnesses could only point to limited instances of their
policy 606 enforcement efforts. It seems clear to me that based on the
regularity of the nonunion solicitations—e.g., the opening of school
year, Christmas sales, and Girl Scout cookies—in late winter, much
more in the way of enforcement of the policy was possible, but was not
evidently undertaken.
41 I have carefully considered the Respondent’s rather lengthy expli-
cation of the distinctions and nuances of counseling as compared with
its so-called formal disciplinary process. I believe that counseling is
simply not as benign and inconsequential as the Respondent urges. The
record on the whole justifies my conclusion. I have also considered
with equal attention the principal case relied on by the Respondent.
Lancaster Fairfield Community Hospital, 311 NLRB 401 (1993), and
consider the case distinguishable from more appropriate authority;
namely Trover Clinic, 280 NLRB 6 (1986); and Whirlpool Corp., JD–
99–00 (2000).
As previously stated, the Wright Line analysis is invoked in
cases where discriminatory action is alleged. Here, there is no
dispute regarding the Respondent’s knowledge of Keckler’s
support of and activities on behalf of the Union and, in fact,
that her union activities and support were manifest and central
to her being disciplined. I have previously concluded that the
restrictions the Respondent placed on Keckler’s distributing at
the nurses’ station were discriminatory in context and, as such,
supplies the requisite animus under the tests. I would find and
conclude that the Respondent’s coaching disciplining of Keck-
ler on June 4, 2000, was based on its discriminatory enforce-
ment of its solicitation policy and that the Respondent has not
met its burden under Wright Line to establish its defense by the
preponderance standard.42
Turning to Keckler’s June 26, 2000 coaching and her subse-
quent removal from the position of charge nurse at about the
same time. I would find and conclude on the strength of my
previous findings that the General Counsel has met his initial
burden per Wright Line. The remaining issue is whether the
Respondent’s defense to these charges is sufficient. I believe
that it is. In this regard, I have credited Somer’s testimony
regarding her handling of these matters. Essentially, the Re-
spondent argues that irrespective of Keckler’s good evaluations
and reputation as a “safe” nurse, Somer undoubtedly received
complaints from unit nurses about Keckler as early as June 1
and counseled her heads-up fashion about the problem. In spite
of this, Somer, around June 26, received complaints from two
nurses indicating that Keckler had not reacted very well to the
criticism and made comments threatening to other nurses.
Thus, Somer, on June 26, called Keckler to discuss the matter
and ultimately counseled her on inappropriate and unprofes-
sional behavior. Later, Somer and her superiors consulted,
decided that Keckler was not suitable to serve as a charge
nurse, and she was removed from that assignment.
Based on the record herein, it is clear to me that the com-
plaints Somer received about Keckler were substantial and
serious and could affect the operation of the unit; and she took
reasonable action to deal with them. I note that none of the
complaints involved Keckler’s union activities—all were based
on other nurses’ views of Keckler’s personal on-the-job behav-
ior and attitude when she served as charge nurse. Contrary to
the General Counsel, I do not find it significant that Shannon,
one of the complainants, may have not liked Keckler—a view I
do not share, I might add. The question is whether Somer’s
actions were bona fide and not taken for unlawful purpose. I do
not deem it appropriate to second guess a manager’s decision
unless that decision is suspect. Here, I believe that irrespective

42 I would note that while the Respondent took action against Keck-
ler on June 4 for distributing union materials, it undertook no investiga-
tion of the other employees mentioned by Augustine who received
Keckler’s materials or who signed authorization cards. Presumably,
these employees were on duty and also participating in a prohibited
solicitation. Yet, the only worker counseled was Keckler. Clearly,
counseling, if the Respondent’s argument holds true, should have been
given to all involved with Keckler. This failure to investigate is also
emblematic of the discrimination against Keckler and strongly influ-
ences my conclusion that Keckler was discriminated against because of
her union support and activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1370
of Keckler’s union support and activities, and my prior finding
of discrimination against her, that the Respondent would have,
under the circumstances, counseled her about the threats she
reportedly made and removed her from the charge nurse posi-
tion. I would recommend dismissal of these charges.
H. The Allegations Involving Robert Hasenfratz
The complaint alleges that the Respondent violated Section
8(a)(1) and (3) of the Act with regard to an employee and al-
leged discriminatee, Robert Hasenfratz.43
Hasenfratz, a registered nurse employed at Flower Hospital
since 1997, works in the psychiatric services unit in the acute
care unit; his immediate supervisor is Barbara Staccone.
Hasenfratz testified that he became aware of the Union’s or-
ganizing campaign in April 2000 and subsequently engaged in
various organizing efforts on the Union’s behalf, i.e., passing
out union authorization cards, obtaining signatures, and attend-
ing union meetings. Hasenfratz stated he spoke to employees at
both Flower and Toledo Hospitals about the benefits of a union
contract and, in general, union representation; Hasenfratz stated
that he also handed out union literature on hospital premises,
but only in nonpatient areas.
Hasenfratz was interviewed by a reporter from The Toledo
Blade on about May 11, 2000, and, in a May 12 newspaper
article,44 he was (paraphrased) quoted as having made com-
ments favorable to and supportive of the Union. Five days
later, around May 17 or 18, Hasenfratz was called to a meeting
with Staccone at the end of his shift.
According to Hasenfratz, Staccone and he were alone and
she stated that someone had complained about his soliciting
“something” about the Union. Hasenfratz stated he asked Stac-
cone who made the complaint. Staccone could or would not
disclose the person, explaining that she was not comfortable in
disclosing the identity of the person.
According to Hasenfratz, Staccone also told him that he had
been involved in soliciting “something” about the Union that
had caused a decrease in productivity and patient care, which,
in turn, had brought about decreased patient satisfaction. Ha-
senfratz said he told Staccone that he indeed was active in so-
liciting for the Union but had confined his activities to the hos-
pital cafeteria and employee breakroom; in any case, he did not
solicit in any immediate patient areas. Staccone thereupon
gave him a copy of the official hospital solicitation pol-
icypolicy 606and instructed him to conduct his union ac-
tivities in the hospital cafeteria.45 Hasenfratz stated that he
broached The Toledo Blade article and he told Staccone he felt
she was retaliating against him because of his comments to the
reporter. According to Hasenfratz, Staccone said the meeting

43 See pars. 9, 31, and 39 of the complaint.
44 This is the same article in which employee and alleged discrimina-
tee Billie Smith was quoted. (See. GC Exh. 10.) Hasenfratz is quoted
as follows: “[H]e hopes a union would bring more consistent benefits
and reduce favoritism. He questioned whether raises for many Flower
RNs this year were an effort to thwart unionization.”
45 Hasenfratz claimed that he had never seen the written policy be-
fore this meeting.
had nothing to do with the article and issued him a formal
coaching, which he signed under protest.46
Hasenfratz stated that he understood a formal coaching to be
the first step in the disciplinary process and could be cumula-
tive in terms of additional discipline. Regarding employee
solicitations at the hospital, Hasenfratz stated he has observed
employees engaged in a number of sales, solicitations, and
fundraising efforts for Avon cosmetic products and candles.
He also claimed to have seen books and order forms for Boy
Scout popcorn and Girl Scout cookies, as well as church solici-
tations at the psychiatric nurses’ station and in the day areas
where patients and visitors spend their times.47 According to
Hasenfratz, as late as October 2001, an employee tried to sell
him candy for her son’s school during worktime. Hasenfratz
also said that even supervisors participated in the solicitations
and purchase of items. However, Hasenfratz was not aware of
any supervisors being in the areas when he saw the solicitations
he described. Hasenfratz stated he only became aware of the
hospital’s official solicitation policy on the day he was
coached.
Hasenfratz related a meeting he had with Staccone, which
again resulted in his being given another formal coaching.
Hasenfratz stated that on August 24, 2000, he met with Stac-
cone, Cathy Middleton, the clinical director, and a fellow
worker he asked to sit in on the meeting, Ray Havens. Accord-
ing to Hasenfratz, Staccone, reading from a prepared document,
claimed an employee had lodged a complaint charging him
with intimidating and harassing behavior. Staccone’s reading
of the complaint informed him that he had a right to organize,
but that other employees have a right not to participate and not
be harassed and bothered.48
Hasenfratz stated that he denied the charge and told Staccone
that when he approaches a person unwilling to sign an authori-
zation card, he leaves them alone; he felt there was no legiti-
mate reason for anyone to complain about his behavior. Hasen-
fratz stated he also was never given the name of the person who
complained against him or the particulars of his complaint other
than the general description in the coaching document.

46 See GC Exh. 11 (identical to R. Exh. 9), dated May 17, 2000. Ha-
senfratz’ formal coaching is set out on a performance improvement
management corrective action form and describes the consequences of
his failure to improve his behavior, soliciting others during worktime,
as “up to and include, termination.” The coaching does not identify the
person complaining against him, stating, “It was brought to manage-
ment’s attention [that he was in violation of Policy #606].”
47 Hasenfratz identified a Party Light candle postcard he said he
found at the nurses’ station during August 2000 addressed to a social
worker employed at Flower from former unit director Jean Smith who
left the hospital 3 to 5 months before the union campaign began. See
GC Exh. 12. He also stated that his supervisor, Staccone, had pur-
chased photographs being sold by a named employee in August 1999.
Hasenfratz stated that the solicitations of the Boy and Girl Scouts,
Avon, and other activities and causes he identified took place prior to,
during, and after the union campaign.
48 Hasenfratz’ formal coaching is contained in GC Exh. 13 (identical
to R. Exh. 10) and includes the charge by an unidentified employee.
The coaching document advised Hasenfratz that continued behavior of
the type charged would result in his being placed in corrective disci-
pline. Hasenfratz signed the form under protest.
PROMEDICA HEALTH SYSTEMS 1371
Hasenfratz said that Middleton told him she respected the
right of her employees in the intensive care unit to organize and
suggested that solicitation should take place in the hospital
cafeteria and public areas. Hasenfratz stated he told Middleton
that he had solicited in the cafeteria in July 2000, but was told
by a security guard that Sandy Fiock, human resources director,
said that he could not solicit in the cafeteria and should use the
employee entrance to the hospital. Hasenfratz said that he fol-
lowed this directive and when he solicited at the employee
entrance, another security guard told him to go back to the cafe-
teria, which he dutifully did. Hasenfratz said he told Middleton
this type of thing happened to him routinely when he passed out
leaflets and talked to employees about the union drive and
asked them to sign cards. Hasenfratz said he told Middleton and
Staccone that he believed that he was again being retaliated
against because of the newspaper article and, in fact, they were
fabricating incidents and writing false (disciplinary) documents.
According to Hasenfratz, Middleton suggested that he file a
grievance. Hasenfratz told her that he was going to file a
charge with the Board. Hasenfratz stated that aside from the
formal coachings themselves, he has not suffered any adverse
consequences on the job since August 24, 2000; for instance, he
has received all raises due him. However, Hasenfratz says that
he felt threatened (in his job) because the coachings are cumu-
lative and can be used against him in the future.
The Respondent called Staccone, Robert Czyzewski, Don
Griffin, and Sandra Fiock to rebut Hasenfratz.
Barbara Staccone49 testified at the hearing and acknowledged
that she coached Hasenfratz but that the coachings occurred on
May 17 and August 23, 2000.50
According to Staccone, Hasenfratz was coached on May 17
because Sandra Fiock, the human resources manager at Flower,
told her that an employee, Lynette Maze,51 had told Fiock that
Hasenfratz was soliciting employees to organize in the patient
care area of the psychiatric unit during worktime. Staccone
admitted that she did not witness Hasenfratz’ purported activi-
ties on the unit and that Hasenfratz not only denied soliciting on
worktime but stated his belief that he was being retaliated
against. Staccone stated that while Fiock suggested that Hasen-
fratz receive a formal coaching, Staccone ultimately decided to
issue the formal coaching, which Hasenfratz signed under pro-
test. Staccone acknowledged that she had only one meeting
with Hasenfratz regarding the May 17 incident and had actually
prepared the formal coaching document prior to this meeting.

49 Staccone has served as the clinical director for psychiatric services
located on the third and seventh floors at Flower since November 1999.
Approximately 110 employees (including registered nurses, mental
health professionals, social workers, activity therapists, and unit clerks)
report to her. Staccone is an admitted supervisor within the meaning of
the Act.
50 Staccone identified a communication log indicating her having
coached Hasenfratz on May 17 and August 23, 2000. Notably, by
mistake, this exhibit appears as the Charging Party’s exhibit and is
unnumbered. The transcript reflects this document as having been
marked, identified, and admitted as R. Exh. 13.
51 Maze did not testify at the hearing. Hasenfratz claimed he did not
know her. Staccone admitted that she did not consult with Maze (or
Mays) about what she claimed to have observed.
Staccone said that Fiock’s report of Hasenfratz’ activities in-
dicated that he was obtaining a signature on a union card—she
did not know from whom—when he should have been dealing
with patient care issues and the patients themselves. Staccone
admitted that she did not ask Hasenfratz during this meeting
whether any patients were at the station at the time nor did she
determine from him whether he was on break or on downtime.
Staccone admitted that she never told him the source of the
report.
Staccone stated that with respect to Hasenfratz’ August
coaching, Fiock informed her that an employee had come to
human resources and filed a report of his having been harassed
in the hospital parking lot. Although she received this informa-
tion from no other source than Fiock, Staccone believed the
report was valid and set up a meeting to which Middleton,52 as
her witness, and another mental health employee, Havers, as
Hasenfratz’ witness were invited. Staccone said that she told
Hasenfratz that he was free to organize on his own time (con-
sistent with her coaching statement) but that the complaining
employee felt he was being intimidated and harassed to organ-
ize. Staccone admitted that she did not know what Hasenfratz
actually said to the employee to intimidate or arass him,53 and
she also recognized at the time that the incident occurred in the
parking lot, where solicitation is allowed. Staccone again stated
that Fiock suggested imposing a formal coaching treatment to
Hasenfratz, but she ultimately decided on her own to impose a
formal coaching as opposed to simply memorializing the discus-
sion in the communication log.54
Staccone acknowledged that only very serious offenses jus-
tify a formal coaching. She cited the example of neglect of a
patient and the employees’ failure to correct the problem. In
her view, informal coachings are employed when certain job
expectations are not met; for example, messy or incomplete
paperwork. Generally, in such cases, Staccone stated that she
discusses the matter with the employee. According to Stac-
cone, the circumstances dictated that Hasenfratz be formally
coached, but not formally disciplined for the incident in ques-
tion.
Staccone stated that she has coached other employees re-
garding the hospital’s solicitation/distribution policy and had
instructed them not to sell candy and cookies on the unit. Stac-
cone claimed that she always enforced the policy when she is
aware of infractions, even in case of employees engaging in
conversations about their private lives at the nursing station
when patients were present or nearby. Staccone also admitted
having purchased, about 2 years ago, photographs from an em-

52 Staccone did not address any statements Middleton may have
made.
53 Notably, Staccone’s August 23, 2000 entry indicates that Hasen-
fratz believed that the complaint was manufactured by management and
that the charge merely reflected an intimidation and interrogation tactic.
The report further corroborates Hasenfratz’ statement that he would not
pursue the hospital’s grievance policy but would pursue other (undis-
closed) channels.
54 Staccone indicated that she uses the communication log as a refer-
ence tool to determine an appropriate course of action and, in the past,
has always followed Fiock’s recommendation to coach an employee
formally.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1372
ployee but the transaction occurred off the worksite at a mu-
seum; however, the employee did drop the pictures off at her
office as he was leaving work that day.
Staccone also stated that she formally coached that same
employee for harassment of another employee in 1999. Ac-
cording to Staccone, she has never received a harassment com-
plaint and not followed up on it.55
Staccone acknowledged that she was aware that Hasenfratz
wore union buttons prior to the May 17 coaching and was wear-
ing the buttons when he was coached in August.56
Sandy Fiock testified that she was familiar with Hasenfratz
and that he had received two formal coachings by Staccone and
that copies of these were placed in his personnel file as well as
in the department file. As human resources manager, she also
has access to these documents.
Fiock stated that regarding the May 17 coaching incident,
Lynette Maze, a part-time unit clerk in the psychiatric unit,
advised her one morning that Hasenfratz was at the front of the
nurses’ station with another employee, and both on working
time, discussing union-solicitation issues, including the benefits
of a union. Fiock regarded the nurses’ station as a patient care
area since patients walk by the areas in front of the nursing
station. Fiock reported the matter to Staccone, reminding her
of the solicitation policy and requesting that Hasenfratz be
given a formal coaching.57 Fiock admitted she acted strictly on
the word of the unit clerk and did not herself speak to Hasen-
fratz about the matter.
Fiock related that in July 2000, Robert Czyzewski, the hospi-
tal’s security supervisor, advised her that Hasenfratz was dis-
tributing literature in the MRI hallway on the hospital’s ground
level and requested instructions. According to Fiock, she in-
structed Czyzewski to ask Hasenfratz to move to the cafeteria.
Czyzewski reported to her that Hasenfratz refused to leave the
hallway, whereupon Fiock said she went to that area but Hasen-
fratz had gone to the cafeteria. Fiock stated that although she
regarded the MRI hallway as a patient care area because pa-
tients (along with family members) are transported back and
forth to the area where diagnostic imaging and CAT scans are
performed, she took no disciplinary action against Hasenfratz.
Moreover, she did not even speak to him about the incident.
Regarding Hasenfratz’ August 23 coaching, Fiock said that a
supervisor from housekeeping was told that an employee, Don
Griffin, was involved in an incident in the parking lot with

55 Staccone said harassment includes racial or sexual remarks and
other behavior covered by the management handbook. She did not
know if union organizing was considered harassment. The other em-
ployee she coached for harassment was not engaged in union organiz-
ing.
56 I questioned Staccone regarding her knowledge of Hasenfratz’ un-
ion activities. Staccone was somewhat hesitant in her response, saying,
“so I would assume, but I can’t assume that he was . . . doing the orga-
nizing or anything. (Tr. 930–931.)
57 Fiock identified the other employee with whom Hasenfratz was
reportedly soliciting as Ed Kucher with whom she never spoke about
the matter. Fiock admitted that she did not ask Staccone to set up a
meeting with Kucher about the incident. Fiock said that she was not
aware of Kucher’s having received a formal coaching. I would note at
this juncture that Staccone did not discuss Kucher at all in her testi-
mony. I assume she did not coach him at all regarding the incident.
another employee and that Griffin felt intimidated and harassed
as a result. According to Fiock, the housekeeping supervisor
asked Griffin to make a statement. Griffin filed a secu-
rity/incident report and submitted it to Fiock’s department.
Fiock stated that the security report was kept in Hasenfratz’
personnel file, but he was not given a copy. Fiock said that she
asked Staccone to speak to Hasenfratz about the matter and,
ultimately, a formal coaching was administered.58 Fiock con-
ceded that Hasenfratz’ reported conduct was more directly
related to the hospital’s harassment and intimidation policies, as
opposed to the solicitation and distribution policy. Fiock also
acknowledged that the parking lot was a permissible place for
employees to solicit or distribute materials.
Don Griffin, a 29-year porter in housekeeping at Flower, tes-
tified that he was arriving at work at about 4:10 p.m., where-
upon an employee approached him to sign a union authoriza-
tion card. Griffin told the man that he was not interested.
However, the man persisted and asked him why he was not
interested. Griffin said he told the man it was none of his busi-
ness. However, the man continued to press the matter, saying
that the Union could get him more money, better benefits, and
no-cost insurance. Griffin said he understood that but still was
not interested. Ultimately, Griffin said he told the man to get
out of his face. According to Griffin, he was still in his car and
the man was 2–4 inches from the vehicle. Griffin said he felt
uncomfortable, a little irritated, and angry. Griffin said that the
man went away eventually and Griffin reported for work. Grif-
fin said that he reported the incident to his supervisor,
Wilkerson, telling her that he felt he had been harassed and
later filed a written complaint about the incident.59
Griffin said he did not know Hasenfratz by name, but by
face, and that Wilkerson told him that the person in question
was the male nurse who worked on the seventh floor. With this
information, Griffin said he was somewhat clued to Hasenfratz
as the person who harassed him. Griffin could not recall from
whom he had gotten Hasenfratz’ name but never actually made
a physical identification of him to management.
Griffin admitted that Hasenfratz, at no time in their encoun-
ter, made any physically threatening movements or remarks and
that Hasenfratz, after making his last pitch for the Union, left
the area.
Robert Czyzewski testified that he is the security supervisor
at Flower and supervises about 14 security officers.

58 Fiock stated that she directed Staccone to give Hasenfratz a formal
coaching based on the report of the supervisor of environmental ser-
vices, June Wilkerson, who relayed to her the complaint of Griffin.
Fiock stated that she did not speak with Wilkerson and only read Grif-
fin’s incident report before directing Staccone to coach Hasenfratz.
Fiock admitted Griffin’s incident report statement does not suggest that
he was being threatened by the employee; rather, it seemed to convey
that he was uncomfortable.
59 Griffin identified R. Exh. 10 as a copy of the complaint he filed.
Griffin stated he spoke to no one else in management, was never con-
tacted about the incident by management, and, specifically, was never
counseled for telling Hasenfratz to get out of his face.
PROMEDICA HEALTH SYSTEMS 1373
Czyzewski stated that the supervisor of housekeeping,
Wilkerson,60 reported to him that one of her housekeeping em-
ployees, Don Griffin, reported to her that he had been harassed
in the hospital’s south parking lot. Czyzewski stated that as
part of his usual procedure in such cases, he asked Wilkerson to
have the employee submit an incident report so that he could
commence his investigation. Griffin prepared a statement re-
garding the incident. Czyzewski said that he personally did not
interview Griffin as part of his investigation.
Czyzewski stated he went to the south parking lot where he
observed Hasenfratz at the time approaching an employee.
Czyzewski said he asked Hasenfratz what had happened. Ac-
cording to Czyzewski, Hasenfratz said as far as he was con-
cerned, nothing, that the incident never took place. Czyzewski
said that in response to Hasenfratz’ question about permissible
solicitation areas, he told Hasenfratz that solicitation was only
permitted in nonpatient areasparking lots, cafeteria, and any
other place where patients were not being treated. Czyzewski
admitted that Hasenfratz was off duty at the time and was not
violating the policy he had outlined to him.61 Czyzewski stated
that he had told Hasenfratz that he could solicit but not harass
employees.
Czyzewski reported his handling of the matter to human re-
sources but conducted no further investigation of the matter.
Czyzewski stated he did not show Hasenfratz a copy of Grif-
fin’s statement.
Discussion and Conclusions of the Hasenfratz Allegations
The Respondent is charged with creating an impression of
surveillance of its employees, here Hasenfratz, and imposing on
him two disciplinary coachings because of his support for and
activities on behalf of the Union on May 17 and August 24,
2000.
Regarding the surveillance charge, the General Counsel es-
sentially asserts that Staccone’s statements to Hasenfratz at the
May 17 counseling session that a person whose identity she
admitted she did not disclose to him had complained about his
soliciting for the Union at the unit’s nursing station, constitutes
a surveillance or the creation of the impression of surveillance
of Hasenfratz’ union activities. The Respondent essentially
contends, however, that Fiock, in her capacity as human re-
sources director, received a report from Maze62 regarding Ha-
senfratz’ activities and in the normal course contacted Hasen-
fratz’ supervisor, Staccone, who then counseled him because
his activities were violative of the solicitation policy. The Re-
spondent submits that there was no surveillance or the creation
of surveillance.

60 Wilkerson testified at the hearing and confirmed that Griffin re-
ported the parking lot incident to her and that he, at the time, appeared
very upset and was actually shaking. She advised him to report the
incident. According to Wilkerson, Griffin knew the person, having
seen him quite frequently around the hospital but did not know his
name. She said that Hasenfratz was later identified by Czyzewski who
evidently knew him.
61 Czyzewski believed that Hasenfratz asked him where he could so-
licit, but, in the early stages of the organizing effort, it was not clear at
the time (even to Czyzewski) the permissible solicitation areas.
62 Maze is no longer employed by the Respondent and did not testify
at the hearing.
First, I note that, in my view, Hasenfratz testified credibly al-
though he was clearly prounion and, on the witness stand, was
somewhat combative in his demeanor and delivery. I attribute
this to “heat of battle” reaction and not to any attempt to evade
or show hostility so that his veracity was compromised.
In agreement with the General Counsel, I would note that the
Respondent’s counseling of Hasenfratz took place suspiciously,
only a short time after his name and statements supportive of
the Union appeared in the local newspaper; that the Respondent
failed (refused) to disclose the name of the person accusing him
of soliciting in violation of the policy; and that the Respondent
undertook little or no investigation of the underlying report of
violation of policy, that Hasenfratz could, under such circum-
stance, conclude reasonably that his union activities were under
surveillance. I would find a violation of Section 8(a)(1).
We now turn to the two counseling sessions, which I view as
disciplinary in nature. First, it is clear that Hasenfratz, like
Keckler, was counseled because he was thought to be soliciting
on behalf of the Union at the psychiatric unit’s nursing station.
Second, like Keckler, Hasenfratz also testified to fairly open
and commonplace solicitations for and distributions of products
by employees at the nurses’ station prior to, during, and after
(as late as October 2001) the election campaign, and he pro-
duced a candle light postcard as evidence of this. As I have
previously determined, I cannot conceive of the Respondent’s
management not knowing about these solicitations; the evi-
dence was ubiquitous. Therefore, I cannot credit the Respon-
dent’s denials of knowledge or its claims that it assiduously and
diligently enforced the policy uniformly. This claim does not
ring true considering the entire record, which in my view sup-
ports a finding that the Respondent was very lax in enforcing
the policy and may have turned a blind eye to violations except
in the case of union solicitations and distributions.
I would find and conclude, consistent with my analysis of the
Keckler allegations, that the Respondent violated Section
8(a)(3) and (1) of the Act in counseling Hasenfratz on May
17.63
Hasenfratz’ August 24, 2000 counseling. The Respondent
submits essentially that it had a reasonable basis for believing
that Hasenfratz had harassed and intimidated another employee
and that under the circumstances, it was obliged, ethically and
legally, to investigate and act upon the harassment claim.

63 For purposes of Wright Line, I would note that it is clear that the
Respondent knew of Hasenfratz’ union activities and support. In my
view, the Respondent’s counseling was focused on his union activities
and, consistent with its discriminatory enforcement of the 606 policy,
animus against the Union is clearly demonstrated. I have rejected the
Respondent’s primary defense of the nondisciplinary nature of counsel-
ing as well as its defense that the managers consistently and uniformly
enforced policy 606. Therefore, in my view, the charge is established
in my view.
I note once more that it seems that only Hasenfratz was counseled
for violating the policy although another employee was involved.
Clearly, it takes two (or more) to tango in a distribution transaction—he
was soliciting and she was taking the distributed item or other partici-
pation. Good-faith enforcement of a policy must include all of the
actors. This buttresses my view that Hasenfratz was a victim of dis-
criminatory treatment by the Respondent on May 17.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1374
In point of fact, I would agree with the Respondent’s view of
its legal and ethical objection to investigate such behavior. The
key word here is “investigate.” Here, clearly, there was a com-
plaint lodged against Hasenfratz by employee Griffin.
Czyzewski elected not to interview Griffin. However,
Czyzewski decided to go to the scene where he confronted
Hasenfratz and interviewed him. Czyzewski there determined
that Hasenfratz was indeed soliciting in a permissible area and
denied harassing and intimidating everyone. Nonetheless, Grif-
fin’s report was accepted at face value—Staccone did not know
what Hasenfratz actually had said or done to harass or intimi-
date Griffin. As a consequence, Staccone and Fiock decided
that Hasenfratz deserved a discipline equal to that of patient
neglect for his conduct in the parking lot while he was off duty.
This discipline seems highly reactionary. It is significant to me
that Griffin testified that Hasenfratz, at no time ever, made
physical or verbal threats to him but merely was pitching the
Union in the parking lot; he was more annoyed than threatened.
If the Respondent had bothered to interview him personally as
opposed to relying on hearsay hysterics, perhaps Hasenfratz
would not have been counseled at all.
It seems to me that the Respondent’s managers were primed
to believe the worst about Hasenfratz and decided to give him a
serious discipline for what amounts to his having engaged in
protected activity in a permissible area under the Respondent’s
own policy. I would conclude and find that the Respondent’s
counseling of Hasenfratz on August 24, 2000, violated Section
8(a)(3) and (1) of the Act.64
I. The Complaint Allegations Involving Billie Smith
The complaint alleges (in pars. 6, 7, 8, 15, 16, 30, and 36)
that with respect to current employee and alleged discriminatee
Billie Smith, the Respondent violated Section 8(a)(1) and (3) of
the Act on various occasions during a period covering about
May 16 through July 13, 2000.65
Smith66 testified at the hearing and stated that she became
aware of the Union’s organizing campaign sometime in the
beginning of May 2000. Smith attended an organizing meeting
around May 5 and by chance was interviewed by a reporter for
the local newspaper. She stated to him that we (the employees)

64 In so finding, I note that the Respondent, beyond all doubt, knew
that Hasenfratz was a union supporter and, in fact, that he was soliciting
on its behalf in the parking lot. I believe that the August counseling
was simply a carryover in terms of animus of Hasenfratz’ May counsel-
ing, which I have found to be discriminatory. I also again note that
only Hasenfratz, a union supporter, was counseled in August. How-
ever, clearly, Griffin would seem a likely candidate for coaching about
the rights of his fellow workers, like Hasenfratz, to engage in protected
activity. The Respondent, in my view, simply took advantage of Grif-
fin’s claim to interfere with Hasenfratz’ activities on behalf of the Un-
ion.
65 At the hearing, the General Counsel requested that par. 8 be
amended to substitute admitted Supervisor Gerald Fletcher for the
admitted Supervisor Joyce Wilkerson named in this paragraph. The
General Counsel also requested that Wilkerson’s name be redacted
from pars. 15 and 16 of the complaint. There being no objections by
the Respondent’s counsel, I granted these requests.
66 Smith has been employed by Flower Hospital for about 13 years
as a housekeeper.
needed a union, needed to be organized. Smith’s comments
were later printed in the newspaper about a week later (around
May 12).67 Smith stated that she was engaged in other activi-
ties supportive of the Union, including wearing union buttons,
badges and insignia, and handing out union literature at the
Flower employee entrance and in the hospital’s cafeteria.
Smith stated that after the article appeared in the newspaper,
she was called into the office of the Director of Environmental
Services Gerald Fletcher; Smith’s immediate supervisor, Joyce
Wilkerson, was also present but said nothing.68 According to
Smith, Fletcher said that her name had come up through an
unnamed source in the dietary department who said she had
been soliciting for the Union while on the job. Smith said that
she denied any soliciting but admitted that she (and some other
employees) was talking about the Union while working.
Fletcher’s response, according to Smith, was that he did not
wish to see her hurt, that she should only converse with em-
ployees during nonworking (off times) and on break.
Smith said nonwork-related conversations and solicitations
for products between employees routinely take place on work-
ing time and that, in her view, her supervisors are aware of this.
However, she conceded the supervisors try to curtail these con-
versations and solicitations.69 Smith also stated that nonwork-
related conversations and solicitations went on during the union
campaign and have actually continued to the present.
Smith further testified that she believed she was being
watched, especially after the recent appearance of the news
article. She related that about a week after the article’s publica-
tion, Kevin Web, the chief executive officer at Flower, made a
rare and unusual visit to the housekeeping department.70 Ac-
cording to Smith, Christine Wiltshire, the lead housekeeper,
introduced Web to the staff by their first names only. Wilt-
shire, however, introduced Smith by her full name, which she
thought was strange. Smith stated that this meeting covered
essentially small talk but that she felt that Web was there look-
ing especially for her and during the meeting simply stared at
her.
Smith also related a conversation she had with Wiltshire
around July 13, 2000, while she was cleaning a restroom on the
ground floor at Flower. According to Smith, Wiltshire asked
her what was she doing and Smith, surprised, asked what Wilt-
shire was talking about. Wiltshire then told Smith that Cathy

67 See GC Exh. 1, an article for The Toledo Blade wherein Smith is
quoted as being in favor of a union at Flower.
68 Smith did not actually give a precise date for this meeting; how-
ever, the record supports a finding that it occurred on or about May 16,
2000. (Tr. 767.)
69 Smith stated that she had observed over the years solicitations by
employees for the United Way (charity campaign) and Avon cosmetics.
Also, Girl Scout cookies and toys were sold by parents and grandpar-
ents for their children’s schools. According to Smith, participating
employees did these things out in the open and she, before the Union,
sold Avon products at work to coworkers and even to her supervisors,
Wilkerson and lead housekeeper Christine Wiltshire. Smith stated that
she has never seen a supervisor specifically watching employee solici-
tations.
70 Smith stated that Web’s visit took place around the same time as
the meeting with Fletcher and Wilkerson.
PROMEDICA HEALTH SYSTEMS 1375
Middleton71 had called Wiltshire and said that Smith was (seen)
outside soliciting on Flower’s time. Smith stated that she told
Wiltshire simply, “I’m cleaning, I’m working.”72 Smith stated
that her cleaning assignments, particularly in July 2000, did not
include any areas where Middleton had supervisory authority,
and she was never in Middleton’s area soliciting for any reason.
On the day in question, Smith stated she was at the employee
entrance soliciting for the Union before she clocked in and
never approached workers who were themselves working.
According to Smith, she was not disciplined by anyone in man-
agement for any union-related activities on her part and, in fact,
continued to wear union buttons and hand out union literature.
However, Smith believed that Wiltshire continued watching her
because of her union activities. Smith noted that while Wilt-
shire was, as part of her job, required to observe her work ac-
tivities, Wiltshire’s observations increased during the union
campaign.
Gerald Fletcher testified and acknowledged that he and one
of his second-shift supervisors in the environmental services
department, Joyce Wilkerson, met with Billie Smith in May
2000 to discuss the Flower Hospital’s solicitation and distribu-
tion policy 606. According to Fletcher, he had received a call
from a person whose name he could not remember, who said
that Smith may have violated the solicitation policy.73 He de-
cided to call Smith in to determine whether she had actually
violated the policy and to make sure she understood the policy
to avoid her getting into trouble.
Fletcher stated that at the meeting he told Smith of the com-
plaint alleging her possible violation of the policyhe admitted
he provided no details to herand went over the actual solici-
tation policy. Fletcher admitted that he told her he did not want
to see her get in trouble. According to Fletcher, his first con-
cern as a supervisor is protecting his employees.74 He denied
spying on her or following her around the hospital or threaten-
ing her in any way. He also denied being under any instruc-
tions from management to single out Smith or otherwise pay
special attention to her. Fletcher stated he told Smith that she

71 Middleton is the Respondent’s clinical director at Flower. Mid-
dleton is an admitted supervisor.
72 Smith insisted that she was aware of the Respondent’s solicitation
policy, that she went through employee orientation and received a
handbook when she was hired by the Respondent 13 years ago. She
stated she and everyone knew employees could not distribute on hospi-
tal time, but only on nonworktime and nonwork areas, and no solicita-
tion at all in patient areas. She knew that copies of hospital policies are
kept in the housekeeping department and that they were available to
her. However, Smith stated she was not aware of the specific policy
606.
73 Fletcher also stated he could not remember much about the sub-
stance of the information he received about Smith.
74 Fletcher acknowledged that he did not know Smith very well and
had not met her before the meeting. Fletcher stated he worked the first
shift and his shift overlaps with her second shift somewhat so that he
has had occasion to meet her upon his arrival. He had never coached
her before, however, nor any other employee with respect to a possible
violation of the solicitation policy.
was well within her rights to solicit for the Union but his con-
cern was that she know the policy and protect herself.75
Fletcher stated that while Smith’s immediate supervisor,
Wilkerson, was present at the meeting, she did not speak. Ac-
cording to Fletcher, he, as a matter of practice, likes to have the
employees’ immediate supervisor in on all employee confer-
ences. Fletcher stated that meeting lasted about 15 minutes and
he did not make a written record of the meeting, and Smith
received no discipline of any type as a consequence of the
complaint.
Wilkerson, who has been employed at Flower for 3-1/2
years, testified and stated that the meeting with Smith was
called because some of the dietary personnel reported that
Smith had solicited them on company time; they were upset
and reported the matter to management. According to
Wilkerson, Fletcher and she were asked (presumably by man-
agement) to review the solicitation policy with Smith.
According to Wilkerson, Fletcher merely asked Smith if she
were aware of the solicitation policy; reviewed it with her; told
her she was fully within her rights to solicit but only in a man-
ner consistent with the policy. Fletcher encouraged her to so-
licit but only according to the policy. Wilkerson said that the
meeting was very short and Smith said she was aware of the
policy but little else.
Wilkerson stated that she did not speak at the meeting and
was present only because she normally does this when Fletcher
talks to the workers. Wilkerson stated that she, in July 2000,
enforced the solicitation policy against an employee who was
interested in purchasing Avon products, telling the employee to
buy the products on her lunchbreak or when not on the clock.
Wilkerson denied buying any Avon products from Smith.
Wiltshire testified that she has been employed at Flower for
about 14 years and has served as the second-shift environ-
mental services leader for the past 6 years; her immediate su-
pervisor during the past 3-1/2 years is Wilkerson.
Wiltshire stated that in July 2000, Wilkerson was on vaca-
tion and she stood in for her on the second shift.76 According
to Wiltshire, she received a call from Cathy Middleton, the
clinical director at Flower, advising that Smith was in Middle-
ton’s area and that Middleton thought Smith should be working
(on the clock) in Smith’s own work area. Wiltshire stated that
she told Middleton she would check on the matter. Wiltshire
said she went to Smith’s assigned work area and Smith was

75 Fletcher’s actual quote is as follows: “I told her she was well
within her rights to, you know, she was for the Union. What my con-
cern was that, you know, she know the policy and protect herself.” (Tr.
1940.)
76 According to Wiltshire, her duties include filling in for unavail-
able housekeepers and porters; making sure all employees are present
and properly doing their assigned tasks; performing housekeeping and
porter assignments (e.g., cleaning rooms, mopping floors, and helping
with patient discharges); preparing paperwork for the shift, such as
employee transfer sheets; discussing new hires with her supervisor and
generally substituting for Wilkerson when she is not available. I would
find and conclude, in agreement with the General Counsel, that Wilt-
shire is not a statutory supervisor but clearly based on her duties, re-
sponsibilities, and role, she serves in the capacity of an agent of the
Respondent within the meaning of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1376
there cleaning a restroom. Wiltshire stated that she could not
recall what precisely Middleton had said Smith was doing in
her area but thought Middleton had said that Smith should at
the timearound 3:30 p.m.have been working in her own
area. Wiltshire said that she did not ask Middleton what Smith
was doing. According to Wiltshire, she could not remember
exactly what she said to Smith when she saw Smith cleaning
the bathroom and could not recall even whether she told Smith
of Middleton’s complaint.77 She could only be sure that she
said something to her.
Wiltshire admitted that she has purchased Avon products
from Smith but these items were purchased either in the locker
room where Smith conducted most of her sales or at lunch,
breaktime, or after work. According to Wiltshire, she was
aware that employees could only solicit in the cafeteria and
breakroom, but certainly not in the patient areas.
Wiltshire admitted that she received literature from employ-
ees concerning the Union but never requested a union authori-
zation card from Smith. However, she accepted a proffered
card from Smith, but did not sign it.
Discussion and Conclusions of the Smith Allegations
The Respondent is essentially charged with threatening
Smith with unspecified reprisals because of her union activities;
on two occasions, selectively and disparately enforcing its so-
licitation policy by restricting Smith’s union solicitation; on
two occasions, creating an impression that Smith’s union activi-
ties were under surveillance; and, on two occasions, giving
Smith a disciplinary coaching because of her union activities.
Preliminarily, it should be noted that the unspecified repri-
sals charge, one of the selective and disparate enforcement of
the solicitation policy, one of the surveillance charges, and one
of the disciplinary coachings took place on about the same day,
May 16. Accordingly, these charges will be discussed and
resolved together, but not necessarily in this order.
The Respondent argues that the May 16 meeting was called
by Fletcher as part of his normal investigating practice when he
receives reports of his employees violating Flower’s rules and
policies. Accordingly, the meeting with her was merely to
determine from her whether she had actually violated the solici-
tation policy, understood it, and help her avoid getting into
trouble in the future. The Respondent submits that the meeting
and all that transpired was calm (and nonthreatening) and not
documented, with the result of no discipline being placed on
her.
First, Smith, to me, was a very credible witness; she was
plain spoken, straightforward, and testified without embellish-
ment about the events in question. I would therefore credit her
version of the events that make up the allegations pertaining to
her.
As to the surveillance allegations, again, I note that Smith
was called in to a meeting only a few days after remarks attrib-
uted to her in favor of the Union appeared in the newspaper
(recall Hasenfratz). At the meeting, a high level manager, with
whom Smith has little contact and who actually does not know
her very well, reports to her that an anonymous employee has

77 Middleton did not testify at the hearing.
reported that she is soliciting for the Union while on the job.
This manager provides no details and Smith’s immediate su-
pervisor, while present, says nothing. Smith denied soliciting
for the Union, but admitted to talking about it in the same fash-
ion and practice other employees often discussed other non-
work-related topics with the supervision’s knowledge. Never-
theless, Fletcher evidently believed the anonymous report and
went on to warn her so she would not get in trouble in the fu-
ture.
I believe that the General Counsel has established the
charges relating to Smith’s May 16 meeting. Regarding the
surveillance allegations, it seems reasonable for Smith to be-
lieve that she was indeed being surveilled. Certainly, the meet-
ing with a high level supervisor, and her immediate supervisor
based on an anonymous and vague charge of soliciting, coupled
with a warning that she could get in trouble, was not only coer-
cive but created a clear impression she was being watched be-
cause of her union activities.
I would also conclude, under the circumstances presented,
that the Respondent disparately and selectively enforced is
solicitation policy by restricting Smith’s purported solicitation
on behalf of the Union. I note that Smith said she was not so-
liciting but talking about the Union. However, the Respon-
dent’s managers thought otherwise. So, consistent with my
previous findings that other nonunion solicitations, through
laxity and possibly conscious avoidance of enforcement, were
not prohibited by the Respondent, I would find and conclude
that the Respondent unlawfully attempted to restrict her union
activities—in this case, conversations with her fellow work-
ers—through a selective and disparate enforcement of the so-
licitation policy.
Regarding the reprisal charge, I would find and conclude that
under the totality of the circumstances, Fletcher’s statement that
he did not want to see Smith get in trouble constituted a threat
of unspecified reprisal for her continued union activities. I do
not credit Fletcher’s testimony that he was in so many words
looking out for her as one of his employees. Fletcher had little
or no contact with Smith prior to this meeting and, in my view,
his remarks to her did not seem genuine. In my view, these
remarks were more coercive than protective and interfered with
Smith’s Section 7 rights.
Consistent with the foregoing, I would also find and con-
clude that Smith was given a verbal coaching because of her
union activities and support. There, of course, was no real
dispute that the Respondent knew of her union support and,
clearly, Smith credibly stated she was active and open in her
activities—hence, the meeting on May 17. Based on my find-
ings of violations of the Act by the Respondent in creating an
impression of surveillance, threatening her with unspecified
reprisals, and disparately enforcing the solicitation policy, I
would find the requisite Wright Line animus. I would also find
and conclude that the Respondent’s defenses, that the coaching
was nondisciplinary and/or that the meeting was merely de-
signed to inform her of its solicitation policy, something it
would do in any case irrespective of Smith’s union activities,
are not persuasive. In sum, I would find a violation of Section
8(a)(3) of the Act.
PROMEDICA HEALTH SYSTEMS 1377
Turning to the alleged July 13, 2000 events, the Respondent
contends that as part of her lead housekeeping duties, Wiltshire
essentially merely checked on Smith’s whereabouts to deter-
mine if she were attending to her duties, based on a report from
a manager that Smith was on the clock but not in her assigned
area; that, upon investigating the report, Wiltshire determined
that Smith was working where she should be and conveyed
these results to the manager. The Respondent also submits
there was no discipline imposed on Smith.78 The Respondent
submits that Wiltshire did not create an impression that she was
surveilling Smith on July 13, 2000.
While I have found Smith credible in regard to the May 17
incidents heretofore discussed, I am not similarly confident
about her testimony regarding her encounter with Wiltshire,
with whom Smith seemed to have a not altogether good rela-
tionship and actually seemed somewhat antagonistic to, if not
paranoid, about Wiltshire. In the same vein, Wiltshire did not
necessarily impress me as a witness, her recall seeming faulty.
However, I did not feel she was untruthful. All in all, it is clear
that while Wiltshire, in my view, was imbued with agency
powers, she could not discipline Smith. Accordingly, I would
conclude that Smith was not disciplined in June 13 and that the
General Counsel did not establish a violation of Section 8(a)(3).
I would recommend dismissal of this aspect of the complaint.
In likewise, I am not convinced that Wiltshire or any of the
Respondent’s managers could be reasonably seen to have cre-
ated an impression of surveillance of Smith’s union activities
on July 13. The evidence on this latter point being in equi-
poise, I would find and conclude that the evidence is insuffi-
cient to find a violation, I would recommend dismissal of this
charge.
J. The Allegations Involving Christine Gallagher
The Respondent is again charged in the complaint in para-
graphs 12 and 1379 with selectively and disparately on June 22,
2000, enforcing its solicitation and distribution rule by restrict-
ing solicitations and distributions made on behalf of the Union;
creating an impression among employees that their union ac-
tivities were under surveillance; and disparately restricting
union solicitation by issuing a disciplinary warning to an em-
ployee in violation of Section 8(a)(1) of the Act. These allega-
tions focus on the activities of Christine Gallagher, an active
and known union supporter.
Gallagher80 stated she became aware of the Union’s organiz-
ing campaign around February 2000 and became actively in-
volved in the effort from late February through the election.

78 The Respondent argues at length that since Wiltshire was not a su-
pervisor, she could not impose any discipline on Smith.
79 Note: At the hearing, the General Counsel requested that par. 13
be amended to add the following in a new allegation numbered 13(b):
About June 28, 2000, Respondent, by its agent and supervisor, Cheryl
Homan, disparately restricted union solicitations by issuing a discipli-
nary warning to Christine Gallagher in violation of Sec. 8(a)(1) of the
Act. The General Counsel also moved to amend par. 5(b) to allege
Homan as a supervisor and/or agent under the Act. I allowed these
amendments.
80 Gallagher is currently employed at the Toledo Hospital in the in-
formation management department as a coder two, a data entry posi-
tion, and has been employed by Toledo since June 1998.
Gallagher said that she distributed union literature, made tele-
phone calls on its behalf, spoke to the news media, attended
public events sponsored by the Union, and manned union tables
set up at both Flower (once) and Toledo hospitals (many times).
She also wore openly union paraphernalia—buttons and stick-
ers and, on casual dress days, T-shirts—and acted as a union
observer on the 3 days of the election.
Gallagher stated that on June 22, 2000, her team leader,
Cathy Schwartz, called her to the office of Toledo’s informa-
tion management supervisor, Joclyn Dalton. Gallagher said she
was told that they had received complaints that she had been
pressuring employees about the Union. Gallagher said she
asked Schwartz and Dalton who was making the complaints
and when and where had her offending conduct taken place.
According to Gallagher, neither woman would tell her. Both
supervisors stated that they understood the matter to be a he-
said/she-said situation and, for that reason, no formal action
was going to be taken against her, that the information was
more in the way of a friendly reminder. The supervisors there-
upon provided her with a copy of the solicitation/distribution
policy (606).81
Gallagher also related another incident in which she was ac-
cused of violating the Respondent’s solicitation policy on June
23, 2000. On the morning of June 23, Gallagher said that she
had taken personal leave (until noon) to attend a closing on the
sale of her home but the closing was called off. Gallagher then
decided around 10 a.m. to go to the hospital’s Executive Park-
way office building to talk to employees about the Union.
While there, she met Union Organizer Carla Logan and they
rode the elevator together to the fourth floor transcription of-
fice, and stopped at a small employee breakroom. Gallagher
said that Logan and she noted that employee work cubicles near
the breakroom were unoccupied, so they decided to leave the
area after a few minutes. The two then proceeded to the sev-
enth floor financial services breakroom. Gallagher stated that
she and Logan sat down at a table and spread out union au-
thorization cards, pens, and literature. After a time, employees
filed in the breakroom and initiated conversations with them
about the Union; and Gallagher and Logan responded to their
inquiries.
Gallagher said that around 30–45 minutes later, two manag-
ers, Paula Sohacki and another, who Gallagher later learned
was named Diane Hovey, came in the room and asked if Logan
and she were Promedica employees. Gallagher told them that
Logan was not an employee. Gallagher said she was permitted
to stay, but Logan was ordered to leave the premises. Accord-
ing to Gallagher, she and Logan were taken aback by the order
because they believed they could solicit in the breakroom and
did not immediately leave. A short time later, the same two
managers returned and told them that they both must leave, that
only financial services employees could use the breakroom.
With the two managers watching and waiting to see that they
left, Gallagher and Logan left the premises.

81 Gallagher said she was already familiar with the policy, having
been given a copy or read it in a departmental meeting shortly after its
issuance in January 2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1378
Gallagher stated that on June 28, Schwartz once again called
her to another meeting with Dalton in her office. This time,
however, Cheryl Homan from human resources was present.
At this meeting, Gallagher said she was told that the hospital
was putting her on verbal reminder (discipline) for what they
said was a proven violation of the official solicitation policy 1
day after she had been coached for the same offense. Gallagher
said that she was told that a worker in the transcription depart-
ment had provided a statement that she had been approached in
her work area by Gallagher and solicited on behalf of the union.
Gallagher responded that this accusation was an absolute lie, as
she had only solicited in the financial services breakroom
where she had set up a table.
Gallagher said that Schwartz then gave her a copy of an em-
ployee communication log82 with an entry noting the June 22
meeting and a copy of a verbal reminder, setting out her viola-
tions of policy 606 and threat of further discipline for repeated
violations.83 Gallagher viewed Homan’s comments to her of
progressive discipline for future policy-related missteps as a
threat.
Gallagher said that after this meeting, she reviewed policy
606 and realized (contrary to her verbal reminder) that she had
not approached any employees, they had come to her. More-
over, she only spoke to employees in the financial services
breakroom on the day in question. Later that day, Gallagher
stated that she then decided to go back to Dalton’s of-
ficeSchwartz, Homan, and Dalton were still thereand told
them, explaining her reasoning, that she had not violated the
policy. According to Gallagher, Homan said she could file a
grievance over the matter.84

82 The communication log is contained in GC Exh. 22. Gallagher
disputed this coaching, stating that contrary to the written entry, she
was approached by a fellow worker who asked her questions and that
she Gallagher was not on duty but had stayed after work to answer the
questions. The entry stated that Gallagher had asked the on-duty
worker questions about the Union and the worker had taken time from
his/her duties to answer Gallagher. Gallagher said this was simply not
true. I note that the entry concludes with the statement, “We will pro-
ceed with appropriate discipline if action reoccurs.”
83 The entire text of the reminder is contained in GC Exh. 23. The
document is signed by Schwartz and Homan. Gallagher said she signed
the document only to get a copy. I note that this document identifies an
employee, Mary Nissan, as having been approached by Gallagher and
Logan about the Union.
84 Gallagher ultimately filed a grievance and specifically denied
speaking to the employee mentioned in the verbal reminder discipline
and, in fact, did not know her. See GC Exh. 26. Management denied
the grievance, but Gallagher ultimately prevailed and the reminder was
rescinded in late August or September 2000. I would note at this junc-
ture that neither Dalton nor Homan testified at the hearing. The Re-
spondent indicated in its brief that Dalton resigned her position in Sep-
tember 2000 and moved to Pennsylvania. The Respondent took the
position that Homan’s testimony was not required at the hearing be-
cause the discipline for which she was responsible was later rescinded
and is, in its view, therefore moot. Based on the credible testimony of
Gallagher and the job title and Homan’s part in the issuing of Galla-
gher’s discipline, and there being no opposition by the Respondent, I
would find and conclude that Homan is a statutory supervisor and, in
the alternative, a statutory agent of the Respondent.
On June 29, Gallagher received a followup letter from
Homan which purported to set out the hospital’s position on the
incident and her response thereto and warned Gallagher that
any subsequent violation of policy 606 will result in further
progression of discipline.85
Regarding solicitation at the hospital, Gallagher stated that
prior to June 2000, she observed employee solicitations of vari-
ous products and for different causes all over the work area
and, in the aisles and cubicles of the office. According to Gal-
lagher, employees sold Girl Scout cookies and Boy Scout pop-
corn,86 Tupperware, Avon, candy bars, and solicited for church
raffles and school fund raisers; additionally, necklaces and
other trinkets were sold routinely at Halloween, Christmas, and
as recently as 3 weeks before her testimony at the hearing.
According to Gallagher, supervisors clearly have the opportu-
nity to observe these solicitations because the aisles and cubi-
cles in her area are open and such activities are openly con-
ducted by employees.
Gallagher also stated that prior to June 2000, Promedica em-
ployees regularly visited other employees’ work areas. This
was very commonplace in her view, and she pointed out that, in
her own experience, employees from other departments visit
her as they are performing their jobs. According to Gallagher,
no one has been disciplined for intraoffice visits by other em-
ployees. Gallagher also stated that she has seen quite fre-
quently nonemployees visiting the worksite, citing as examples,
employees on maternity leave bringing their babies in; employ-
ees bringing their children to work for doctor’s visits; and
spouses and parents of employees coming to meet employees
and then going out to lunch. Gallagher stated that she person-
ally observed a supervisor bring her son back to work after his
dental appointment; that employee’s supervisor observed this,
but nothing was said to her.87
Gallagher stated that when the union organizing drive was at
its peak, the hospital’s solicitation policy suddenly became a
“big deal,” especially as compared to the time before the Un-
ion’s advent when solicitations took place very openly. Galla-
gher pointed out that irrespective of management’s changed
attitude regarding solicitations, employees continued to solicit
but with a little more circumspection.

85 This followup letter is contained in GC Exh. 25. Gallagher stated
that the letter accurately reflects the meeting of June 28 and the relative
positions of management and herself on the issue.
86 To buttress her point, Gallagher identified an order form (see GC
Exh. 24) for Boy Scout popcorn containing her name and other em-
ployees, which circulated in October 2000. Gallagher stated an em-
ployee, Billie Thomas, circulated the order form but was not disciplined
as far as she knew.
87 Gallagher pointed out, however, that for the first time, 2 weeks be-
fore she testified, the woman’s supervisor told her that her son had to
leave.
PROMEDICA HEALTH SYSTEMS 1379
Catherine Schwartz88 testified that she counseled or coached
Gallagher on June 22, 2000, and made an entry in an employee
communication log memorializing the event.89 Schwartz testi-
fied that where the counseling entry indicates that an employee
(associate) was writing off worktime to answer Gallagher’s
questions about the Union, that employee was Joyce Tremko, a
coder and one of Gallagher’s coworkers.
Schwartz stated that all coders submit to her weekly produc-
tivity reports wherein their time is accounted for each day of
the workweek. Schwartz said that she examined a weekly pro-
ductivity report submitted by Tremko for the week covering
June 16, 2000, and noted that Tremko made an entry indicating
that Gallagher had approached her regarding the Union and
indicated the encounter lasted about a half-hour.90 Schwartz
regarded Tremko as a very accurate and detail-oriented em-
ployee.
Accordingly, while Schwartz could not recall the entire dis-
cussion with Joclyn Dalton, a decision was made to counsel
Gallagher to make her aware of the solicitation policy.91
According to Schwartz, Gallagher was never told she was
being disciplined but was told that nothing was formally written
up and that the meeting was merely an informal discussion
designed to help Gallagher understand the solicitation policy.92
Regarding employee Tremko, Schwarz could not recall men-
tioning her name in the meeting with Gallagher. Schwartz said
that she did not believe she ever spoke to Tremko about the
entries in her productivity report because the entries were
documented clearly; therefore, in her view, there was nothing
really to discuss with Tremko. Schwartz admitted that Tremko,
at the time she made the entry, was on worktime because she
recalled seeing Gallagher and Tremko together at Tremko’s

88 Schwartz has worked for Toledo Hospital for 17 years; she is a
coder team leader, holding this position for the past 1-1/2 years and
during this time has supervised anywhere from 8 to 23 employees. In
June 2000, she supervised six to eight employees, including coders and
support coordinators. Based on her self-described duties and her testi-
mony in general, I would find and conclude that she is an agent and/or
supervisor within the meaning of the Act.
89 Schwarz identified the communication log that was contained in
R. Exh. 41, (which is identical to GC Exh. 22).
90 Schwartz identified the productivity report (R. Exh. 42), which
covered the week of June 12–15. I note at this juncture that Gallagher
admitted both knowing Tremko and speaking with her about the Union
on June 16. However, Gallagher said that on that Friday, Tremko
asked her about 15 minutes of questions about the Union, that she was
herself not on worktime but had stayed after to answer Tremko’s ques-
tions. Gallagher admitted that she thought Tremko was probably on
duty, but she was not soliciting in her view but merely answering ques-
tions.
91 Schwartz stated that at the time she reported to Dalton, who was
the operations manager for the hospital. According to Schwartz, Dalton
left the employ of the hospital in the fall of 2000. Dalton did not testify
at the hearing.
92 It is worth noting that the June 22 counseling appears to have been
forwarded to human resources on September 20, 2000. Schwartz said
that she could not recall sending the counseling to human resources.
Schwartz admitted that she was asked to recopy the document and
redact an entry following June 22 by her supervisor. Schwartz stated
the additional entry related to the June 28 verbal discipline or coaching
of Gallagher that she expunged at a later date.
work station. Schwartz stated that although she did not know
whether Gallagher was off duty—admitting to a possible over-
lap in schedules—she concluded that there was a loss of pro-
ductivity for Tremko, caused by Gallagher in her view.
Schwartz admitted that Tremko was never coached for talking
about the Union with Gallagher in spite of the 34 minutes of
lost worktime; nor was Tremko coached for the time spent
speaking with Gallagher about the Union on June 20. Accord-
ing to Schwartz, she had no reason to believe Tremko was so-
liciting, so no coaching was warranted in her view.
With regard to the June 22 counseling entry’s reference to
“complaints” received by management against Gallagher,
Schwartz stated that prior to June 22, she had received a com-
plaint from another associate, Shirley Pollack, who had com-
plained about Gallagher’s reportedly aggressive attempts to
solicit on behalf of the Union.
Regarding Gallagher’s second discipline, the Respondent
called Patricia Appley, the current director of human resources
for the Toledo Hospital and Toledo Children’s Hospital.93
According to Appley, she received a report from the then-
director of financial servicesDiane Hobiethat two persons
were in the breakroom with union brochures and materials and
were speaking to employees. Appley said she instructed Hobie
to tell the nonunion organizer to leave because the breakroom
was restricted for the sole use of financial services employees
and staff meetings. Appley said she then contacted hospital
security and drove from her office to the Executive Parkway
Building.
Appley stated she met with Hobie and two other managers,
Paula Sahankey and Marshall Holmes, and a security officer;
Sahankey and Holmes had been contacted by Kathy Meyer,
director of the transcription department, and told of the indi-
viduals who had been observed in the area. According to Ap-
pley, Meyer said that an employeeMary Neeson, a medical
transcriberreported that she had been startled by the presence
of the two individuals, one of whom was Gallagher. Neeson
did not report the matter immediately to Meyer but later had
second thoughts and, concerned about security in a nonpublic
area, reported the incident to Meyer.94
Appley stated that since Gallagher was not assigned to work
at the Executive Parkway Building, there was no reason for her
to be there that day. Moreover, Gallagher had escorted a non-
employee into the breakroom in a work area of the financial
services department and, a day or so earlier, had been coached

93 Appley has been serving as director since July 2001 but has been
employed by the Respondent for 21 years. She served as acting direc-
tor of human resources from September 2000 to July 2001. Appley
stated that she personally supervised 20 employees and one of her
primary functions was to see that hospital policies and procedures, for
example, the solicitation policy and the performance improvement
management policy, are uniformly enforced throughout the hospital.
Accordingly, I would find and conclude that Appley is a supervisor
and/or agent of the Respondent within the meaning of the Act.
94 The General Counsel objected to the hearsay nature of Appley’s
testimony, a point which I acknowledged. But this testimony was
allowed by me to understand better the circumstances leading to Galla-
gher’s second discipline, and not necessarily for the truth of the matters
asserted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1380
on the solicitation policy. For these reasons, Gallagher was
issued a verbal reminder.95
Appley stated that Gallagher filed a grievance against the
Respondent and, ultimately, the discipline regarding the Execu-
tive Parkway Building was heard by a panel of peers composed
of three employees and two management representatives under
the Respondent’s grievance process.96 According to Appley,
the record of Gallagher’s discipline was removed from her file.
As a result, Gallagher is not amenable to any adverse action by
the hospital because of the rescission of the verbal reminder.
Regarding the Respondent’s solicitation policy, Appley
stated that she worked closely with management in the admini-
stration of the policy known as 606 as well as its revision in
January 2000, effective January 18, 2000. Appley said that she
prepared a power point presentation97 on the solicitation policy
(among others) to educate management on the revision so that
they, in turn, could inform their staffs of the changes and the
proper and consistent application of the revised solicitation
policy. According to Appley, the Respondent has attempted to
enforce the policy consistently and uniformly and routinely
advises managers on the policy. Appley cited several examples
of enforcement of the policy against employees, but noted that
between January 2000 and April 2001, no employee had been
terminated or even given a written warning for violation of the
policy.
Discussion of the Gallagher Allegations
As amended, the complaint essentially charges the Respon-
dent with giving Gallagher two disciplinary actions, one on
June 22 and the other on June 28, stemming from the allegedly
disparate and selective enforcement of its solicitation policy
and creating an impression that Gallagher’s union activities
were under surveillance.
The Respondent principally argues that the hospital’s actions
with respect to Gallagher were not discriminatory or otherwise
unlawful and that the actions taken were based on employee
complaints about her solicitation activities, which the Respon-
dent was within its rights to deal with per the established solici-
tation policy. The Respondent submits that the employee com-
plaints and the time reports serve as a legitimate nondiscrimina-
tory basis for the hospital’s actions against Gallagher. The
Respondent reasserts that the June 22 coaching was not disci-
pline and submits that the June 28 verbal reminder was re-
moved, but that in neither case was animus against the Union a

95 Appley stated that a verbal reminder is part of the Respondent’s
progressive disciplinary process and remains active for 6 months.
Employees who receive a verbal reminder are not allowed to transfer to
other positions and may lose their seniority status when a more desir-
able shift becomes available. Verbal reminders also count as negative
points for purpose of the employee evaluations.
96 Gallagher also sought disciplinary action against management for
inducing an employee to make a false report and harassment. The
panel of peers recommended that no action be taken against manage-
ment. It was also disclosed in the review that Neeson later revealed
that she was actually in a small break area when she saw Gallagher
(consistent with Gallagher’s version) and that she was leaving for lunch
at the time. Also, the financial services breakroom, it turns out, was
used by management for functions where nonemployees attended.
97 See R. Exh. 53, the power point presentation Appley prepared.
factor. Regarding the surveillance issue, the Respondent stands
firm by arguing that its actions were based on other employees’
reports to management and not because of any of manage-
ment’s observations of Gallagher’s activities.
First, I found Gallagher to be a highly credible witness. She
testified forthrightly and honestly with corroboration and, with
respect to the June 28 discipline, was vindicated. Gallagher
candidly admitted she was aware of the solicitation policy and
the limits of lawful union activities. I believed she honored
those rules and was truthful in testimony regarding her activi-
ties on June 22 and 28.
The central issue for me is, in spite of the complaints from
employees about the solicitation and Tremko’s productivity
report entries, was Gallagher treated fairly and on a nondis-
criminatory basis? First, it is clear Gallagher was known by the
Respondent to be a union supporter—the Respondent readily
concedes this.
Second, I have already determined the Respondent, during
this period, was lax in the enforcement of the solicitation policy
regarding nonunion activities. Gallagher, like other testifying
employees, credibly reaffirms this point. However, it seems
that at least during the period the Union was active, violations
of the policy were found only where union activities were in-
volved. These union-related activities triggered management’s
response, usually in the form of coachings of the union solicita-
tion. Yet, it seems other solicitations were taking place but no
other employees were officially coached or otherwise disci-
plined. This, as I have found, evinces a clear pattern of selec-
tive and disparate enforcement of the solicitation policy.98
Thus, the animus element is clearly established. Third, as is
obvious, the June 22 and 28 disciplinary actions taken against
Gallagher stemmed from her activities on behalf of the Union.
It cannot be gainsaid, therefore, that her activities on behalf of
the Union were not the motivating factor in her discipline99 on
the two occasions.
I note, as does the General Counsel, with regard to Tremko
and Gallagher’s encounter, and crediting Gallagher, that
Tremko—not Gallagher—was on duty and she discussed the
Union with Gallagher. Perhaps, the Respondent could not have
known this but with some investigation, for example, inter-
viewing Tremko on this point as opposed to accepting her entry
at face value, this point would have been revealed. On the
contrary, Tremko was not interviewed, her entry was fully cred-
ited, and Gallagher was counseled about what the Respondent
perceived as her (and hers alone) violations of the policy. As I
have noted heretofore, fairness dictates that when two or more
employees are engaged in a transaction or event carrying some
consequence vis a vis company policy, an employer exercising
good faith will interview all parties and then determine if a

98 I have credited Gallagher’s testimony regarding her observations
about employees visiting each other, nonemployees visiting the work-
site, employees soliciting for various nonwork-related causes and mer-
chandise, and that these activities were commonplace and accepted
behavior at her jobsite during the period she received her discipline.
99 Again, I view the June 22 coaching disciplinary in nature. I note
that the Respondent is not charged with violating Sec. 8(a)(3) with
regard to Gallagher.
PROMEDICA HEALTH SYSTEMS 1381
violation has taken place and by whom. Here, Gallagher was
not accorded basic fairness of process.
The Respondent’s June 22 counseling, in my view, was
clearly discriminatory and motivated by her union support. I
would so find and conclude. Regarding the June 28 verbal
discipline, little need be said. Based on what is not much dis-
puted, Gallagher was wrongfully disciplined on that date by
virtue of the Respondent’s poorly executed and biased investi-
gation of employee complaints about Gallagher’s perfectly
lawful solicitations for the Union. Thankfully, this latter very
serious discipline, which emanated from the supposedly benign
June 22 counseling, was rescinded. Nonetheless, I would find
and conclude that the June 28 verbal discipline was discrimina-
torily imposed on Gallagher100 because of her union activities.
Regarding the creation of surveillance allegations, I agree
with the Respondent that it neither surveilled nor created an
impression of surveillance in Gallagher’s mind. In spite of its
unlawful handling of the two disciplines, the underlying com-
plaints either were made by fellow employees or because
Schwartz routinely examined the productivity reports of the
codes and saw Tremko’s entry. I cannot find and conclude
under these circumstances that the Respondent could reasona-
bly be said to have created an impression that Gallagher’s un-
ion activities were under surveillance. I would recommend that
the aspect of the complaint be discussed.
K. The Allegations Involving Stacie Hertzch
The complaint alleges that the Respondent violated Section
8(a)(3) and (1) of the Act by discriminatorily giving an em-
ployee, Stacie Hertzch, a disciplinary coaching because of un-
ion activities on about July 28, 2000.101
Hertzch102 testified that around February 2000, she became
aware of the Union’s organizing campaign at Promedica and
after a time met with union leaders and became actively in-
volved in the campaign. Hertzch stated that in the spring of
2000, she assisted the union cause by posting fliers on bulletin
boards, and distributing and collecting union authorization
cards in the hospital’s parking lot.
Hertzch recalled that on about July 21, 2000, she discussed
the Union with one of the licensed practical nurses (also known
as a clinical nurse manager or resident nurse coordinator),
Paula Ellinger, in the context of Hertzch’s concerns about being
short staffed on the night shift, a frequent problem on that shift.
Hertzch stated their conversation took place in the hallway by
Ellinger’s office around 7:30 a.m. and she told Ellinger that if
we had a union here, things would have to change, citing as an

100 The Respondent submits that this discipline was removed, mak-
ing the matter moot. The General Counsel submits that the removal
constitutes an admission of disparate treatment and that a posting of a
notice is appropriate irrespective of whether Gallagher’s personnel
record has been expunged. I agree.
101 See pars. 38(a) and (b) of the complaint.
102 Hertzch’s name is misspelled in the complaint as Stacey Hartzsh.
Hertzch is currently a registered nurse employed at the Respondent’s
Goerlich Center for Alzheimer Care on the Flower Hospital campus;
she has been employed there for 3 years. Hertzch started on the second
shift (6:30 p.m. to 7:30 a.m.), part time, from February 2000 through
March 2001.
example, the requirement of proper staffing ratios. According
to Hertzch, Ellinger said that a hospital is not an appropriate
venue for a union, and she did not think it (a union) would
change much; Ellinger also said that she did not agree with the
Union and did not want to see one at Promedica.103
Hertzch stated that on July 28, 2000, her immediate supervi-
sor, Sandy Gang, called her into her office for a meeting.
Hertzch noted that Gang was passing out checks (stubs) to the
employees at the time, along with a company flier that was
antiunion. Gang gave Hertzch her stub and a flier and made
certain antiunion comments to her.104
According to Hertzch, Gang then proceeded to tell her that
Jennifer Wagner, then Goerlich’s administrator, had a problem
with Hertzch’s wearing the wind pants she then was wearing.
Hertzch stated that she replied the complaint was petty because
she had worn this type of pants for months105 without incident
and others had worn them as well, along with sweat pants
which were not allowed. According to Hertzch, Gang merely
said that Wagner was the boss and her decision must be fol-
lowed. Hertzch stated that after this conversation, she decided
no longer to participate in Friday “dress down” days, and there-
after wore standard nurses’ garb.
Hertzch noted that she requested from Gang a clarification of
the policy shortly after this meeting and, in response, Gang sent
her a note purporting to clarify the dress down guidelines106 and
also later posted a note on the unit bulletin board announcing
that the designated dress down day was Friday at 12 p.m.107
Hertzch also said that she informed other unit employees
about the wind pants prohibition to give them a “heads up” on
the matter but noted that some continued to wear them without
intervention by management as far as she knew.
Hertzch admitted that other than Ellinger she spoke with no
other persons associated with management about her union
activities or sentiments and, to her knowledge, no one from
management observed her handing out union written materials.

103 According to Hertzch, she approached Ellinger about the staffing
problem because she was next in charge when the director was on
vacation. Ellinger is alleged in the complaint to be a supervisor or
agent within the meaning of the Act. She did not testify at the hearing.
104 According to Hertzch, Gang at the time went over the contents of
the flier, saying that basically the union had done nothing for the em-
ployees at St. Vincent’s Hospital and commented that Promedica was
being ambushed by the Union and that a hospital is not an appropriate
venue for a union. Hertzch said she said nothing about the Union in
response. These alleged statements are not the subject of the com-
plaint.
105 Hertzch explained the history of dress down or casual Friday on
her unit. According to Hertzch, around February 2000, the hospital
instituted a casual dress day policy with certain guidelines (see GC
Exh. 14) governing the type of clothes one could wear in place of the
standard nurse dress code itemsprofessional uniforms, scrubs, nurs-
ing jackets, shoes, etc. Friday was designated dress down day. Be-
cause wind pants were not listed in the guidelines, Hertzch said she
obtained permission to wear them from Gang and wore them from
February until around July 29, 2000.
106 See GC Exh. 16, a memo from Gang to Hertzch dated July 31, in
reference to the dress code and wind pants.
107 See GC Exh. 18.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1382
Hertzch stated that in her mind she received no discipline of
any kind after the July 27 meeting with Gang and that she con-
tinued with her normal work schedule, received her pay raises
and benefits when due, as well as her vacation or time off, and
generally saw no dramatic changes in her work life.108
However, upon being shown a copy of a communication
written by Gang referring to, among other matters, her July 27
coaching, Hertzch stated that she had only seen this when it
was presented to her by the General Counsel prior to the
trial.109 Hertzch stated that she disagreed with an entry imply-
ing that she dressed inappropriately on days other than dress
down day; that she had never heard of any complaint along
those lines at any time, and certainly not at the meeting with
Gang. Hertzch also could not recall any conversation in the
meeting about wearing a nursing jacket over shirts when not on
dress down day; and she did not recall reaching an agreement
with Gang about her pants.
Gang110 testified that she coached Hertzch in her office on
July 27, 2000, based on a complaint she received from then
Goerlich Nursing Home Administrator Jennifer Wagner
(Gang’s supervisor), who said she had observed Hertzch inap-
propriately dressed on days other than casual or dress down
days.111 Gang stated that on July 27, Hertzch was wearing
wind pants, a tucked-in T-shirt with no laboratory jacket, and
her hair was pulled up and “hanging all over”sloppy in a
word. According to Gang, the July 27 coaching had nothing to
do with Hertzch’s wearing wind pants because Hertzch had
previously obtained her permission to wear them as long as
they were neat and clean, not only on casual Fridays but also on
Monday through Thursday. Gang noted, however, that Wagner
did not agree with her regarding wind pants as acceptable attire.
According to Gang, Hertzch’s overall appearance was the is-
sue on that day and the coaching lasted only a short timenot
long enough even for the two to sit down. Gang denied begin-
ning the session with giving Hertzch any fliers about the Union.

108 Hertzch has been recognized as an excellent employee and was
nominated for nurse of the year by the hospital. Counsel for the Re-
spondent acknowledged that her evaluations have been good and, in
fact, stipulated that she was an excellent employee.
109 This communication log is contained in GC Exh. 18 and also in-
cludes Gang’s entries for July 12 and 26, 2000. It is notable that the
July 26 entry relates to Hertzch’s stated concern about staffing and
other “written concerns” she made in a voice mail to Gang. The July
27 dress code coaching is recorded thereafter (R. Exh. 36 is identical to
GC Exh. 18).
110 Gang, an admitted supervisor, during July 2000 served as the di-
rector of nursing at Goerlich and in that job supervised around 45–55
employees, including registered nurses, licensed practical nurses, nurs-
ing assistants, housekeepers, recreation therapists, and maintenance
workers. Gang currently works at Lake Park, a 230-bed, skilled nurs-
ing home facility located on the campus of Flower Hospital.
111 Wagner is no longer employed with the Respondent and did not
testify at the hearing. According to Gang, Wagner disagreed with her
on the propriety of wearing wind pants and overrode her decision to
allow wind pants. Gang, however, said she issued no notices on the
topic of wind pants.
Gang stated that Hertzch received no formal discipline but the
coaching was recorded in a communication log.112
Gang stated that at the coaching session, she told Hertzch
that tight knit shirts were prohibited and a tucked-in top should
be covered with a lab jacket, because the discussion was more
related to her general appearance on days other than dress down
days. According to Gang, she discussed everything covered in
the communication log, stating that Hertzch essentially was not
coached for noncompliance with the dress down guideline, but
mainly for dressing on other days (Monday-Friday) in apparel
that did not meet nurses’ uniform protocol.
Gang stated that a few days after the July 27 meeting,
Hertzch asked for formal guidance regarding the dress code at
Goerlich and in response she addressed a memorandum to her
covering dress down guidelines and the personal appearance
and hygiene policy of the center.113
Gang stated that she has coached other employees regarding
Goerlich’s dress code and that Hertzch’s union activity did not
enter into the counseling and, in fact, the Union was not men-
tioned at all.114 Gang admitted she was aware of the Union’s
organizing efforts at the time, as they were ongoing throughout
Promedica. Gang stated that she discussed the Union with her
employees, especially when upper management passed on in-
formation about the Union to her. Gang admitted that notices
about the Union were handed out personally by her and other
supervisors but could not recall handing out such materials with
the paychecks. Gang also acknowledged having conversed
with Hertzch and other unit employees about the Union but said
nothing more than was contained in the general employer-
supplied materials; she denied expressing her opinion on the
hospital’s position about the Union with Hertzch. Gang said
that she spoke to her employees about the Union in unit meet-
ings but she read only “facts”115 provided by management de-
signed to encourage employees to make an openminded deci-
sion about the Union.
Gang denied making any statements to employees to encour-
age a vote against the Union or that a vote for the Union would
not be in their best interests. Gang could not recall talking
about the Union’s representation of St. Vincent’s employees or
that the materials she distributed mentioned that hospital.
Mainly, according to Gang, she read all the materials passed
out to her employees and answered any questions based on the
materials.

112 Gang acknowledged that the communication log, while an infor-
mal record, helps managers track trends over the year so that when their
(evaluation) year comes due, managers have adequate information.
Gang stated that she uses the communication log to coach, guide, or
educate employees on different policies or guidelines, and to see that
employees follow through and adhere to them; the log entries are also
used to provide adequate documentation to refer to if needed; and to
justify having talked to the employee. (Tr. 233–234.)
113 Gang identified R. Exh. 38 as the memo and the enclosures cov-
ering dress down, and the appearance and hygiene policy 609. This
exhibit duplicates GC Exhs. 15, 16, and 17.
114 As I noted on the record, R. Exhs. 39 and 40 reflected coachings
by Gang of other employees for dress code issues after July 2000; that
is, on various dates in January and February 2001.
115 Gang could not recall what the specific “facts” were.
PROMEDICA HEALTH SYSTEMS 1383
Gang stated that (in spite of the coaching) she viewed her
working relationship with Hertzch to be positive and even of-
fered Hertzch a staff development position when Gang moved
to a new position at another of the Respondent’s nursing
homes; Hertzch declined to accept this position for personal
reasons.
Discussion and Conclusions of the Hertzch Allegations
The Respondent contends that, basically, Hertzch was
coached because her superior felt that her overall appearance
was not appropriate and although her immediate superior,
Gang, had approved wearing wind pants. The Respondent
submits that Gang credibly testified about the nature and reason
for the July 28 coaching of Hertzch and, specifically, Hertzch’s
union activities were not implicated in the meeting. The Re-
spondent submits that neither Gang nor any other manager or
supervisor knew of Hertzch’s leanings toward or activities in
support of the Union. The Respondent asserts that Gang had no
personal and, certainly no union-related antagonism, against
Hertzch, as evidenced by Gang’s taking special effort to clear
up any confusion Hertzch may have had about the dress code
and even later offering Hertzch a staff development job with
her at another Promedica facility. The Respondent contends
that the General Counsel has failed to meet its Wright Line
burden and the charge should be dismissed.
I would agree with the Respondent. The principal defect in
the General Counsel’s proof regarding the Hertzch allegations
relates to the knowledge element—the Respondent’s knowl-
edge of Hertzch’s claimed union activities. The General Coun-
sel argues that Ellinger, the acting nurses’ director who, accord-
ing to Hertzch, frequently stood in Gang, was an acting super-
visor or at least an agent of the Respondent. Ellinger’s anti-
union comments as well as Hertzch’s discussions about the
Union, the General Counsel submits, are sufficient to impute
knowledge of Hertzch’s prounion sympathies to the Respon-
dent. The General Counsel also argues that Hertzch’s union
activities were sufficiently open to impute knowledge thereof to
the Respondent.
I believe, on this record, there is insufficient evidence of El-
linger’s supervisory or even agency status within the meaning
of the Act. This burden is borne by the General Counsel and, in
my view, Hertzch’s testimony is not sufficient to establish these
statutory roles. Also, while Hertzch may have openly engaged
in the activities she claimed, this is not, in my view, a legally
sufficient basis to impute knowledge thereof to the Respondent.
Second, even if I were, arguendo, to find that the General
Counsel had met his prima facie Wright Line burden, I, none-
theless, would not find a violation of Section 8(a)(1). Signifi-
cantly, in agreement with the Respondent, I believe that an
employer has the right to maintain workplace decorum and the
“dress code” established for the hospital nurses here seems
reasonable and appropriate. Wagner and/or Gang felt that
Hertzch’s appearance was not appropriate for a unit nurse.
They counseled her about that matter and not about her union
activity, I might add.116 The counseling in this context was

116 In this regard, I have credited Gang’s testimony regarding her
part in the counseling session with Hertzch. Notably, Gang’s subse-
quent memo to Hertzch as well as the July 27 coaching record in the
lawful and, in my view, would have taken place even if the
Respondent knew of Hertzch’s union activities and support. I
would recommend dismissal of this aspect of the complaint.
L. The Complaint Allegations Involving Cynthia Miller
In paragraphs 17, 18, and 37 of the complaint, the Respon-
dent is charged with violating Section 8(a)(1) and (3) of the Act
with respect to the activities of employee and alleged discrimi-
natee Cynthia Miller.
Miller testified that she was employed at Toledo Hospital as
a registered nurse from about October 1986 through October
2001, working on a per diem basis in the labor and delivery
unit; her immediate supervisor during 2000 was Somer. 117
Miller stated that on July 25, 2000, Somer called her at her
home and informed her that Post-Partum Unit Supervisor Bar-
bara Hammons had told Somer that Miller had been observed
in that unit passing out union materials. Miller said she admit-
ted to Somer that she was indeed in the post-partum unit area
but merely attempting to deliver candles she had sold to unit
clerk Lana Bell, but not any union materials.118 According to
Miller, Somer seemed relieved with her explanation. Somer
went on to advise her of another complaint. Miller said Somer
told her that an employee had complained about Miller’s hav-
ing called the employee at home to talk about the Union. Ac-
cording to Miller, Somer conceded that anything Miller did on
her own time was her business, to which Miller merely said this
was correct. Miller recalled that Somer also told her that the
hospital did not want “us” (presumably other union supporters)
distributing union materials in the nurses’ station.119 Miller
stated that she also recalled Somer saying at the end of the con-
versation that “public areas” were permissible areas for solicita-
tion. However, Somer did not mention any specific areas such
as the parking garage or the cafeteria being places where solici-
tation could be undertaken.
According to Miller, she was not delivering or attempting to
deliver anything but the candles on the day in question, but she
did give Bell her personal telephone number and address and
asked her to call her to arrange for the pickup of the candles
because she was not allowed to give the candles to Bell.120

communication log are consistent with her testimony and serves as
adequate corroboration of her testimony.
117 Miller was terminated by the Respondent about 2 weeks before
her court appearance. This discharge is not the subject of any of the
complaint allegations in this case. Miller said that as a per diem nurse,
she had no set schedule and received no benefits or sick leave. She was
required to work at least 24 hours per month, 16 of which had to be
worked on weekends, but was called in only if the unit needed her.
Miller said she, in practice, usually worked full time 3 days per week.
118 Miller admitted on this occasion that Hammons advised her that
Bell was just starting her shift and it appeared to her that Hammons did
not want Miller there. Miller simply left the unit on that note. Accord-
ing to Miller, Bell worked an odd shift which did not overlap with
Miller’s so she came to the unit on a day Miller was not scheduled to
work until about 15 minutes before the clerk’s shift began.
119 Miller said that at the time she was trying to deliver the candles,
she was near the nurses’ station at the intersection of two hallways but
not in the hallways by the patient area.
120 Miller could not accurately recall whether on the date in question
she was approached by any employee regarding the union campaign. If
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1384
Miller stated that before this litigation, she had never seen (in
writing) the hospital’s official solicitation and distribution pol-
icy. In fact, she saw policy 606 in written form only when the
union representatives showed it to her much later.121 Miller
admitted that she had a general understanding of the rules or
policy; that is, she could not solicit except on her breaktime and
not on the hospital’s time or on hospital premises.
Miller said that she has quite often observed employees so-
liciting for various products for a number of purposes during
her time with the Respondent. Miller related that often in the
fall, when school terms begin, employees engage in fundraising
activities and “Discovery” toys are sold at Christmas. She also
noted that Tupperware, Longaberger baskets, Mary Kay cos-
metics, and Party Light candles are solicited and the products
sold out in the open. Miller stated she has seen brochures and
literature for these items in the nurses’ station, the special care
unit, the labor and delivery area, and the triage room.122 Ac-
cording to Miller, these products were openly discussed by
employees and the books examined in the nurses’ station, and
occasionally products were delivered there to purchasers.123
However, Miller could not say she ever observed Somer either
permitting solicitation activity on worktime or removing books
and brochures; nor had she ever observed Somer watching oth-
ers engaging in solicitations of this type of activity.124
Miller also admitted that Somer never said that she was
watching her because she was helping the Union. Miller said
she, nonetheless, felt this was implied. Miller stated that be-
cause of the ongoing nature of the solicitation (and selling) of
various products at the nurses’ stations, she believed she was
permitted to deliver candles there. In fact, she thought that the
solicitation policy only referred to union materials.
Miller admitted that she called employees during July and
August 2000 at their homes to answer questions and solicit
support of the Union, that she obtained their numbers from the
UAW. However, Miller stated she knew of no policy in labor
and delivery regarding the disclosure and use of employees’
private telephone numbers. According to Miller, employees
customarily respected any employees’ not-to-be called nota-
tions by their names on the rosters. Miller denied giving any
employee numbers to the Union.
Miller stated that as far as she knew, she was not disciplined;
that is, reprimanded or suspended by Somer as result of their

she had, she would have answered the employee’s question. However,
she insisted that she was not on the unit to solicit for the Union and was
there for only a few minutes.
121 Miller was shown a copy of policy 606 (as contained in GC Exh.
5) by the General Counsel, and she stated she had not ever seen it be-
fore this instant litigation.
122 Miller identified GC Exh. 3, the front and back cover of a Candle
Light order book that she found in August 2000 in the first aid room.
She knows the person who owned the book, Melissa Lankey, who was
not associated with Miller, and who also sold Candle Light products.
Miller said she placed the date “8/11/00” on the brochure.
123 Miller said that she saw nurse Marsha Reinzer drop off Mary Kay
products to a nurse at the nurses’ station; and another employee deliver
basket products to another employee, also at the nurses’ station.
124 I would note that Miller was very hesitant and somewhat evasive
when asked questions about Somer’s knowledge of solicitations by the
Respondent’s counsel.
conversation. She could recall nothing of an adverse nature
taken against her by the hospital.125 However, when the Gen-
eral Counsel showed her a July 27, 2000 communication log126
written by Somer regarding their conversation, Miller stated
that Somer never showed this to her. According to Miller, she
was not sure of what purpose or purposes the communication
logs served but thought they were placed in an employee’s file
and used as part of the evaluation process. Miller said that she
could not recall having been previously “coached.”
Regarding her union activities, Miller stated she attended un-
ion meetings, distributed literature at the hospital entrances, the
parking garage, and public areas, and made telephone calls on
behalf of the Union before and after the July 25 coaching.
Somer explained her handling of the complaints against
Miller, which resulted in Miller’s coaching. According to
Somer, Hammons, a postpartum unit supervisor, told her that
Miller was at the nurses’ station there soliciting and distributing
union materials; and that three of Hammons’ employees were
angry about Miller’s having called them at home and believed
the hospital had given their numbers to her. Somer stated that
her understanding was that Miller was off duty at the time of
the solicitation, but the employees to whom she was speaking
were on duty in patient care areas.
Somer said that on July 27, 2000, she discussed the matter
with Miller. Miller said that she was in Hammons’ unit to dis-
tribute candles she had sold at a party. According to Somer,
she reviewed the hospital’s solicitation/distribution policy with
Miller because she viewed Miller’s conduct as violative of the
policy. Somer said that she told Miller she could solicit on
nonwork-time in public areas. Somer admitted that she proba-
bly told Miller that what she did on her own time was her busi-
ness.
Somer stated that she had enforced the solicitation policy
against other employees since her takeover of the labor and
delivery unit in May 2000, and has not ever permitted viola-
tions that come to her attention.127 Somer stated that the prob-
lem with nurses’ soliciting and selling at the nurses’ station is
that patients and family may take the view that the nurses are so
busy selling and buying products that the nursing care is sub-
standard. So this activity is viewed as inappropriate by the

125 Miller was of the opinion her later subsequent discharge was re-
lated to her union activities.
126 See GC Exh. 4, an employee communication log indicating
Somer’s coaching of Miller. R. Exh. 44 is a duplication of this exhibit.
127 Somer cited several examples of her enforcement efforts. It is not
clear whether these occurred before, contemporaneous with, or after the
Miller incident. I note, however, that the Respondent called one
Luanne Andrews, a support coordinator who reports to Somer, to cor-
roborate Somer. Andrews stated that she is aware of the hospital’s
solicitation and distribution policy. According to Andrews, she has
observed Somer, since May 2000, enforce the policy by confiscating
books and writing up employees caught soliciting, and has filed these in
their files. Furthermore, she knew that Somer has coached or disci-
plined employees for nonunion-related solicitation because she filed the
communications logs, but had not seen Somer enforce the solicitation
policy against union solicitations. In passing, I note that Andrews
stated she did not engage in any union activities, and there was no
cross-examination of this witness by the General Counsel or Charging
Party counsel.
PROMEDICA HEALTH SYSTEMS 1385
hospital. Somer, nonetheless, admitted that she has seen vari-
ous brochures (for Avon, Tupperware, and candles) in and
around the patient care areas of the hospital. When she sees
them, she either throws them away or, if a name is on the bro-
chure, she returns it to the person and tells her that this activity
violates the policy.
According to Somer, her coaching of Miller was based solely
on what Hammons told her in a conversation between them.
Somer conceded that Miller works the night shift and was off
duty at the time, so Somer (by implication) admitted she had no
firsthand knowledge of what had actually transpired on
Hammons’ unit. Somer admitted that she did not investigate
the matter beyond her conversation with Miller. According to
Somer, her coaching of Miller was not disciplinary in nature.128
Moreover, Somer stated that “we all” knew Miller was very
active with the union cause and that there were also many peo-
ple active in the union campaign. However, Somer denied
telling Miller that she was watching her or that she created an
impression of watching or keeping track of her union activities.
Somer denied that the coaching she undertook was based on
Miller’s union activities; rather, compliance with the solicita-
tion policy was the issue.
Regarding the employee complaints about being telephoned
at home, Somer stated that complaints of this nature were com-
ing in to her every day but that, in point of fact, Somer, follow-
ing hospital policy, did not give out employee numbers. Somer
stated that Miller did not denying making the phone calls but
would not tell her how she obtained the numbers, except to say
she got them from a friend. Somer stated that employee tele-
phone numbers are available in each nursing unit but policy
dictates that these numbers be used only for work-related pur-
poses.
Barbara Hammons129 testified that she knew Miller as a
nurse working in the labor and delivery unit. Hammons stated
that she had received complaints from two of her unit employ-
eesnursing assistant Judy Barkley and nursing assistant/unit
clerk Lana Bellregarding Miller’s having called them at their
homes about the Union. The employees questioned her on how
Miller had obtained their numbers. Both stated that they did
not want calls for or against the Union at home.130
Hammons said that on a prior date she was not sure of, she
had counseled Bell for carrying on personal business on work-
time. On the day in question, Bell was scheduled to report to
work at 2:30 p.m. and the unit was particularly busy receiving

128 On cross-examination by the General Counsel, Somer stated that
her practice is to document noteworthy matters that may require fol-
lowup and to make notes on violations of rules, such as the solicitation
policy.
129 An admitted Supervisor Hammons has worked for the Toledo
Hospital for 23 years; she supervises in the obstetrics and nursing unit
about 123 employees, approximately 70 percent of whom are registered
nurses; the balance are licensed practical nurses, unit clerks, and nurs-
ing assistants.
130 Hammons said that the telephone issue for Bell predated that of
Barkley whose complaint was made, she thought, in December 2000 or
January 2001. Hammons said at least with respect to Barkley, she told
her there was not much she could do about this but assured her that
Hammons did not give out employee numbers.
admissions. Hammons happened upon Bell and Miller in con-
versation in the middle of the third-floor north nursing station
(3N) around 2:30 p.m. Hammons stated that because she had
previously allowed Bell the early morning and afternoon off,
and the unit was without a clerk at the station most of that day,
she wanted Bell immediately to be on duty. According to
Hammons, Miller was in street clothes, obviously not on duty,
and considering that two patients were awaiting admission, she
told Bell and Miller, “not now.” Then a few minutes later, she
observed Miller and Bell still conversing. Hammons said she
again said, “[N]ot now.” According to Hammons, Miller
looked at her and asked whether Bell was on worktime, to
which Hammons responded, yes. Miller then left a few min-
utes later.
Hammons stated that on this occasion she was particularly ir-
ritated with Bell and Miller because the unit was busy and she
had to ask them repeatedly to cease their conversation, she
decided to counsel Bell immediately and later reported Miller
to Somer.131
Hammons stated that in her counseling of Bell, she found out
from Bell that she had asked Miller to come in before Bell was
due for work to talk about Miller’s calling her at home on her
unlisted number. Bell said she had wanted to clear the matter
up there and then, before work, but she was running late, so the
meeting spilled over unintentionally into worktime. Bell apolo-
gized for the incident.
Hammons stated that she reported the matter to Somer, tell-
ing her that Miller was in street clothes on her unit interfering
with Bell’s performance of her duties and that Miller was re-
peatedly (four times) asked to leave the unit. According to
Hammons, before speaking to Bell, she did not know what
Miller and Bell were talking about. Hammons admitted that
she did not tell Somer that Miller was engaged in union solici-
tation at the nurses’ station.132
According to Hammons, Bell was annoyed at having re-
ceived a call from Miller at home on her unlisted number.
However, the issue for Hammons was both Miller and Bell’s
conversing while Bell was on duty at a time when the unit was
busy.133 Accordingly, both were counseled.
Discussion and Conclusions of the Miller Allegations
The Respondent is essentially charged with selectively and
disparately enforcing its solicitation policy against Miller, cre-
ating an impression that it was surveilling her, and giving her a
disciplinary coaching because of her union activities and sup-

131 Hammons said that in spite of the urgency of the admission situa-
tion, she, nonetheless, decided to coach Bell immediately because
management policy favors such action. She thought the coaching
would be of short duration and there were no actual emergencies at the
time.
132 I would note that this admission on cross-examination by the
General Counsel was made after much of what I would call “hemming
and hawing” by Hammons.
133 Bell did not testify at the hearing. According to Hammons, Bell
did not mention anything about a candle order. Hammons said that she
did not observe any products or money exchanged and did not see an
order book. The Respondent did not produce a coaching document for
Bell.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1386
port; these charges all emanate from the July 25 counseling
session.
The Respondent principally contends that Somer, consistent
with her practice and duties, questioned and counseled Miller
on the policy and its coverage after having received a report
from another unit supervisor that two different employees had
complained of Miller’s having called them at home on their
unlisted telephone numbers and had questioned the hospital’s
involvement; and that Miller had solicited an on-duty employee
at the nurses’ station and refused to leave the area after reputed
requests to do so. The Respondent argues that the counseling
and Somer’s enforcement of the solicitation policy was not
discriminatory, nor disparately and selectively applied to Miller
because of her union activities. The Respondent again con-
tends that the coaching is not disciplinary and that even Miller
admitted she was never formally disciplined.
As to the surveillance allegation, the Respondent contends
that Somer was simply enforcing work rules when she acted on
the report of complaints from employees and a unit supervisor
about Miller’s behavior. The Respondent submits that, in the
context, there was no watching or surveilling of Miller because
of her union activities. Therefore, under the circumstances, no
reasonable employee could interpret the Respondent’s response
to actual complaints as indicative of surveillance of her union
activities.
While it is not crystal clear what Hammons actually reported
to Somer, it seems that the report did include a reference to
Miller’s engaging in some union-related activities with another
employee who was working.
Somer’s communication log indicates as much as she wrote
that Miller was “discussing union activity and soliciting em-
ployees.” The latter point on solicitation Hammons denied. I
agree with the General Counsel that Somer and Hammons con-
tradicted one another somewhat in terms of what was reported
about Miller’s “solicitation” activities. In any case, Somer’s
counseling centered on permissible solicitations at the nurses’
station and only peripherally on calling employees at home. I
will focus on this solicitation issue since this is the gravamen of
the charge against the Respondent.
I have previously determined that the Respondent’s en-
forcement of the solicitation policy was at best lax. Again,
Miller testified credibly, consistent with other employees, that
she, too, observed all manner of nonwork-related solicitation
and distributions openly going on at the nurses’ stations, so
much so that she felt that delivering candles was permissible;
that only union solicitation was forbidden. I recognize that
Somer said that she, as of May 2000 when she assumed her
position in the unit, consistently tried to enforce the policy, and
her testimony was corroborated by Andrews. However, it is
clear to me that she only acted on improper solicitations that
came to her attention and she saw evidence that nonwork-
related solicitations were occurring in patient areas.
Therefore, because Miller’s counseling at its core was based
on what Somer thought was her soliciting for the Union, I
would find and conclude that the General Counsel has clearly
established that the Respondent disparately and selectively
enforced the policy against Miller because of her union activi-
ties. I note that Bell, the other and equal participant in the
Miller conversation, only received a verbal counseling. Miller,
on the other hand, the person generally known by Somer and
other supervisors to be a union supporter, received a verbal
counseling, which was documented. This buttresses my view
that not only was the solicitation policy disparately and selec-
tively applied to Miller, but that her coaching was also dis-
criminatory. I would find and conclude that the Respondent
violated Section 8(a)(3) and (1) on July 25, 2000.
As to the surveillance charge, I would acknowledge the Gen-
eral Counsel’s point that Miller was not told of the identify of
the employee who complained of her calling them at their
homes, although I suspect she knew that Bell was one of
them.134 Further, Miller admitted to calling employees at their
homes to garner their support for the Union and probably knew
or should have known some employees would take umbrage at
this and complain to the hospital. On balance, under the cir-
cumstances, I cannot find and conclude that Miller could rea-
sonably conclude that she was being surveilled or that the Re-
spondent created such an impression. I would recommend dis-
missal of this aspect of the complaint.
M. The Unfair Labor Practices Allegations Occurring
Prior to the Four Union Elections in April 2001
In paragraphs 19 through 29 (inclusive) of the complaint, the
Respondent is charged with violations of Section 8(a)(1) of the
Act for conduct occurring after the Union filed election peti-
tions for the four bargaining units in question.135
As noted earlier herein, the Union’s objections to the elec-
tion were determined by the Region to be identical to and/or
coextensive with certain of the unfair labor practice allegations.
Accordingly, Objection 5 is associated with complaint para-
graphs 19, 20, and 21.136 Objection 10 relates to complaint
paragraphs 19, 20, 21, 22, 28, and 29, with paragraph 22 deal-
ing with the proposed support services unit and the others tied
to the proposed technical unit. Objection 23 relates to com-
plaint paragraphs 23, 24, and 25; paragraph 23 involves the
support services unit; and paragraphs 24 and 25 pertain to the
technical unit. The catchall objection relates to and encom-
passes paragraph 27 of the complaint137 and applies to both the
technical and support services units. These objections form the
basis of the Union’s request to set aside the election results and
order a new election in the support services and technical units.

134 I would note that I had some doubt about the testimony of all of
the witnesses to this account, including Miller, who at times was eva-
sive and exhibited a somewhat hostile or edgy demeanor.
135 See GC Exh. 2, order directing hearing on objections, order con-
solidating cases and notice of hearing.
136 It should be noted that the complaint allegations in par. 20 were
withdrawn by the General Counsel at the hearing.
137 The Acting Regional Director indicated that certain evidence pre-
sented by the Union in support of the catchall objection pertained to
events that occurred outside the critical period of the petitions. How-
ever, the Acting Regional Director ordered the issues raised by the
catchall objection be consolidated with the unfair labor practice allega-
tions in par. 27 because of their relationship to the alleged rescission of
previously promised raise increases as charged in par. 27.
PROMEDICA HEALTH SYSTEMS 1387
1. The allegations involving the Respondent’s
implementation of a 401(k) pension plan
(Objections 5 and 10)
In paragraphs 19 and 21 of the complaint, the Respondent
essentially is charged with threatening their employees with
either probable loss and/or not having a 401(k) employee pen-
sion benefit plan if the Union were elected during the critical
election periodFebruary 14 through April 6, 2001.
By way of background, it is clear on this record that the Re-
spondent, at least as of June 2000, had commenced plans to
change to its then-existing employee pension plans, and these
proposed changes were communicated to employees periodi-
cally through the hospital newsletter, Newslink. In February
2001, the Respondent, after a rather lengthy process involving
the highest levels of management, announced that the new pen-
sion plan was scheduled to be implemented by July 2001. By
March 15, 2001, the Respondent had announced to employees
that the selection of a 401(k) vendor was imminent; and by
March 29, 2001, employees were informed that one had been
selected.138
The General Counsel concedes that the announcement of the
approval of the plan and its anticipated implementation in July
2001 was communicated to the employees before the election
petitions were filed. However, the General Counsel (and the
Union) contends that during the election campaign, on at least
two occasions, the Respondent’s supervisors made statements
to employees that they would not get the new plan or its im-
plementation would be delayed if they selected the Union.139
The General Counsel called Lora Hyde and Cathy Harris to
establish these charges.
Lora Hyde140 testified that during February and or March
2001, she attended several employer-sponsored meetings at
which certain management representatives gave presentations
about and regarding the ongoing union organizing campaign.
Hyde recalled one such meeting in late February or early March
at the North Campus Lab at which about 20–30 workers were
present where Barbara Newman, the technical director of the
North Campus Lab, and Pam Costello, a coordinator for the
hematology unit, gave a presentation that included the election
date, bargaining unit membership, voter eligibility, and bene-
fits. Hyde stated that a coworker, Emily Witty, asked the pre-

138 See R. Exhs. 18–22, copies of the Newslink, which outline the
progress of the implementation of the 401(k) plan. Regarding the Re-
spondent’s longstanding plans to change its then-existing pension plan
to a 401(k) plan, I have also credited the testimony of Barbara Steele,
president of Promedica Health System central region. Steele testified
credibly and at some length about the Respondent’s decisional process
to implement a new employee retirement plan and, in summary, indi-
cated the decision was a “done deal” by the end of 2000.
139 It should be noted that the complaint allegations do not charge
that the plan would be delayed if the Union were selected. The General
Counsel did not move to amend the complaint to add this charge at
hearing or in his brief.
140 Hyde is currently employed at the Toledo Hospital as a first-shift
laboratory technologist (lab tech I) at the North Campus Lab in the
microbiology department. She has been employed by the hospital for
about 12 years. Hyde stated that she was an eligible voter in the tech-
nical unit.
senters whether the 401(k) plan would still be implemented in
July 2001. According to Hyde, Newman said that if the Union
came in the 401(k) would probably not start in July.
Hyde stated that she later discussed Newman’s remarks
about the 401(k) with Witty and another employee, Sherrie
Schreiner,141 and that Witty repeated Newman’s remarks about
the 401(k).
Hyde stated that Newman also said, in the context of her re-
marks about the 401(k) plan, that everything would be subject
to negotiation (if the Union were voted in). However, Hyde
acknowledged that Newman did not at any time say the 401(k)
was going to be rescinded or withdrawn or canceled because of
the Union.
Cathy Harris142 testified that within a month or perhaps even
2 months of the April election, she and Paul Toth, the manager
of the hospital’s computer operations and her immediate super-
visor, were discussing a work-related issue outside of his office
door and Toth turned the discussion to the Union.
According to Harris, Toth first asked her how she felt about
being ineligible to vote in the election. Harris responded that
she was not aware of her ineligibility and told Toth, who con-
tinued to ask her about her feelings, that she did not want to
discuss the matter.143 Harris stated that Toth then asked her
what she thought about the hospital’s getting the 401(k) plan
for the employees, and then asked rhetorically did she realize
that if the Union gets in here, employees who are in the Union
will not get the 401(k) and those employees who are not in the
Union will. Union employees will have to bargain for it.144
Harris stated she told Toth that that was fine with her and made
a joke that the hospital presently gives away free popcorn and
maybe we will have to bargain for that also. According to Har-
ris, Toth merely laughed and said “yes.”
Harris stated that to her, Toth, in effect, was saying that
itthe 401(k)—was going to be an issue, that it had to be bar-
gained over; that Toth made no threat and did not ask her if she
were going to vote for the Union or whether she was going to
vote at all. According to Harris, this entire conversation lasted
about 20 minutes.
The Respondent called Newman, Costello, Emily Witty, and
Paul Toth to refute the allegations regarding the 401(k) matter.

141 I note that Schreiner testified at the hearing but did not corrobo-
rate Hyde regarding the occurrence of this discussion. In point of fact,
neither the General Counsel, who called her, nor the Respondent, asked
Schreiner about this matter.
142 Harris is presently employed as a computer operations specialist
in the data processing department working on the 9 p.m. to 7:30 a.m.
(third) shift at Toledo Hospital. She has been employed with the hospi-
tal for over 18 years.
143 Harris stated that later she learned from a union representative
that the computer operators like herself were not eligible and, later, still
that computer operators were going to be allowed to cast ballots but
subject to challenge. Harris did cast a vote in the election.
144 Harris gave this version of Toth’s statement on cross-examination
by the counsel for the Respondent. On direct examination by the Gen-
eral Counsel, Harris said that Toth said, “What do you think about the
hospital getting the 401(k) for the employees? And you realize that if
you’re voted into the Union you will not get the 401(k), and those
employees who are not in the union will get that.” (Tr. 650.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1388
Newman testified that she has been employed at the Toledo
Hospital for about 30 years and currently serves as the technical
manager of the North Campus Laboratory. Newman stated that
she participated in all three of the presentation typesissues
and answers, power point, and videothat the Respondent
conducted throughout the election campaign.
Newman stated that the Respondent’s consultants provided
presenters such as herself with advance training in the use of
the presentation materials. According to Newman, she was
instructed not to spy on employees or coerce, threaten, interro-
gate, restrain them, or promise employees anything. The con-
sultants, according to Newman, said presenters could give facts,
their opinions, and share experiences. However, the consult-
ants said not to go beyond the scripted language in the presenta-
tions. Newman acknowledged that she and Pam Costello co-
presented the power point and video presentations.145
Newman acknowledged that at the end of one of her issues
and answers presentations, a lab tech employee, Emily Witty,
was very interested in the pension plan and was concerned
about delays and changes in the plan and asked several ques-
tions along those lines. According to Newman, she told Witty
that she did not know the answers to her questions, but that the
pension plan could be a part of bargaining.146 Newman denied
telling Witty or any employees in her presentations that they
would, in all likelihood, lose the 401(k) plan if the Union were
voted in or that it would not be implemented in July; or that the
401(k) plan was going to be rescinded, withdrawn, curtailed, or
modified if the Union won the election. Newman stated that
she did not, nor did her co-presenter, Costello,147 say anything
about the 401(k) plan in the context of the Union’s winning the
election and, in fact, Witty was the only employee to inquire
about a matter not included in the presentation materials.148
When the Respondent’s counsel presented Newman with
Hyde’s testimony (at Tr. 145, 11. 15–19), Newman stated that
she did not make the statement that, with respect to the 401(k)
plan, it probably would not start in July. Newman stated she
was certain she made no such remarks because this statement
would be considered threatening and, also, she had no idea
what was going to happen to the 401(k) plan should the Union
be voted in.149

145 Newman also gave presentations with other management and su-
pervisory personnel; Dennis Burkholder and Wendy Purcellissues
and answers; and Margo Dooner, the power point presentation.
146 Newman stated that she referred to and read to the employees the
issues and answers presentation pp. 24-27 dealing with benefits which,
in pertinent part, states “in bargaining there are no guarantees, you may
gain, lose or retain the same pay or benefits [p. 25] and if the UAW
wins . . . the hospital and union must bargain over wages, benefits and
other conditions of employment [p. 27].”
147 Costello testified at the hearing and corroborated Newman and
specifically denied that either she or Newman told Witty that if the
Union were selected, the 401(k) plan probably would not be imple-
mented at all. Like Newman, Costello said she followed to the script in
their presentations.
148 Newman said that Witty also came to her office four or five times
to ask questions of one sort or the other about the Union. For example,
Witty inquired about what bargaining unit she would be in.
149 Newman also denied Hyde’s testimony (at Tr. 163, LL. 18–22),
wherein Hyde said that Newman did not tell Witty that the 401(k) plan
Witty testified that although she was ineligible to vote in the
April 2001 election, she nonetheless attended three hospital
presentations, including ones where Newman and Costello
made a power point and issues and answers presentations.
Witty stated that she knew the 401(k) plan was supposed to be
implemented in July 2001 and asked Newman what would
happen to the 401(k) if the Union were voted in at the issues
and answers presentation. According to Witty, Newman did
not say the 401(k) probably would not be implemented in July
if the Union came in. Witty stated she was sure Newman did
not make this statement because Witty was fanatical about “fi-
nancing.” The 401(k) plan was important to her, and she was
very concerned about it. Witty also stated that neither Newman
nor any other manager at any other time said the 401(k) would
probably not be implemented in July if the Union were voted
in.150
Witty recalled that Newman told her, “[I]t [the 401(k) plan]
would go through in July. However, once a union vote oc-
curred, if the Union is voted in the Union would negotiate what
the 401 would be. Because the Union would be bringing in a
bargaining unit.”151 Witty stated once she was given this ad-
vice from Newman, she had no additional questions about the
401(k) and did not approach Newman with other concerns
about the plan.
Paul Toth testified that he has been employed at the Toledo
Hospital as a manager of operations, including the hospital’s
computer operations, for the past 3-1/2 years. Toth stated that
he was aware of the Union’s filing of petitions for elections at
Promedica but that employees in his department were deemed
ineligible to vote. Toth said he received training on what to say
and not say about unions from the hospital’s human resources
department and labor relations consultants hired by the hospital.
Toth also related that prior to working at the hospital, he was
employed at Eastern Michigan University which was union-
ized; he also had worked with Blue Cross of Toledo for a num-
ber of years and received intensive training there regarding the
“dos and don’ts” in labor organizing drives.152
Toth stated that he did not recall any conversation with Har-
ris in the hallway after her shift. Toth noted that Harris’ hours
are 9:30 p.m. to 7 a.m., while his hours are 8 a.m. to 4:30 p.m.
and, therefore, his contact with her generally is minimal. Toth
also noted that Harris was a strong union supportershe dis-
played union buttons on her computer console and he observed

was a subject of bargaining and that Newman did not talk about bar-
gaining at all.
150 Witty is currently employed as a medical technologist and micro-
biologist at the Toledo Hospital’s North Campus Laboratory where she
has been assigned for the past 4 years; Witty has worked for Promedica
for a total of 25 years. Witty said she was informed of her ineligibility
to vote after the union authorization cards were signed. Medical tech-
nologists were determined to be professional workers.
151 On cross-examination, Witty claimed that these were Newman’s
“exact words.”
152 I note that Harris confirmed that in her version of Toth’s conver-
sation about the 401(k), he mentioned his employment background at
East Michigan, his employment as a UAW worker, his interactions with
the UAW and, specifically, his references to contacts, grievances, and
bargaining over rules and regulations. (Tr. 673.)
PROMEDICA HEALTH SYSTEMS 1389
her passing out literatureand he did not want to discuss union
activities or matters with her.
Toth recalled, however, one incidental conversation he had
with Harris before the election that touched on the 401(k) plan.
According to Toth, he and other employees had attended a hos-
pital-sponsored issues and answers slide presentation and as he
was leaving for the day, one of his employees, Jerry Lieze-
kowski, said that if the Union were voted in, things would be
tougher for the employees and by way of example the time-
clocks and new rules would be established. Toth said he told
Liezekowski that he could not answer that because those issues
go to the bargaining table. However, based on his experience at
Eastern, Michigan, timeclocks were never instituted.
Toth stated that at the time a number of other department
employees, including Cathy Harris, were nearby and standing
around talking. Toth said that he heard Harris say that the only
reason the 401(k) was being implemented was because of the
Union’s efforts to have an election. Toth said that he re-
sponded, saying he did not think that was true because the
401(k) was being developed and that the hospital was simply
looking for a provider and working on certain rules governing
the operation of the plan. According to Toth, Harris simply
walked away with no response.
Toth specifically denied saying that the employee would not
have a 401(k) plan if they selected the Union. He noted that, in
his mind, the 401(k) plan was going to be implemented irre-
spective of whether the Union was in or out, although the bar-
gaining unit might change some rules or regulations associated
with the plan. Toth also denied ever asking Harris how it felt
not to be able to vote in the election.
Discussion and Conclusions of the 401(k) Allegations
The Respondent, stressing that the presenters were all given
advance training about what was permissible in the conduct of
the presentations, and adhering to the scripts, argues that New-
man did not violate the Act or commit objectionable conduct.
The Respondent contends that Section 8(c) allows employer
representatives to express their views and opinions as long as
the expressions contain no threats of reprisal, force, or promise
of benefit. The Respondent submits that Newman credibly
denied making any threatening remarks about the 401(k) and,
lawfully, only informed the employees that the 401(k) may be a
subject of collective bargaining. The Respondent notes that
principal 401(k) questioner Witty corroborated Newman’s de-
nial of threats of loss of the 401(k) if the Union were voted in
and, in fact, contradicted Hyde who, the Respondent contends,
was inconsistent, had poor memory, and generally was not a
reliable witness.
The Respondent also argues the General Counsel has failed
to carry its burden with respect to the allegations involving
Toth. The Respondent, again stressing it manager’s training
and Toth’s even more extensive experience with and training in
union election matters, asserts that Toth was a highly credible
witness and his denials of Harris’ allegations should be cred-
ited. The Respondent submits that Toth’s contact with Harris
was not only minimal because of their respective schedules but
because he chose to avoid her because he knew she was a
strong union supporter. To the extent Toth spoke on the issue
of the 401(k), the Respondent asserts he only responded to
Harris’ offhand remark by saying that he disagreed with her
because the 401(k) was being developed before the Union’s
arrival. The Respondent submits that Harris was simply not a
credible witness in her own right and presented an implausible
story given Toth’s background, knowledge, and experience in
labor election matters.
I would find and conclude that the General Counsel has not
established the charges in question and, correspondingly, I
would find and conclude that the Respondent did not engage in
objectionable election conduct with regard to the 401(k) allega-
tions.
I note first and foremost that these charges present credibility
issues. I am not convinced that either Newman or Toth made
the comments attributed to them by Hyde and Harris, respec-
tively. In point of fact, it seems highly unlikely and even im-
plausible given their training and experience, and the known
fact that the 401(k) was going to be implemented in July 2001,
that Newman and Toth would make any statements even sug-
gesting that the 401(k) was in jeopardy because of the Union or
the election. I also note that in the case of Newman, she credi-
bly testified that she gave many presentations to gathered em-
ployees and, yet, the General Counsel produced only one wit-
ness to say she violated the Act. Notably, Witty, the employee
whose questions about the 401(k) sits at the base of the charge
against Newman and who was not called by the General Coun-
sel as a witness, essentially refuted153 Hyde’s version of New-
man’s response to Witty’s questions. I note also that even
Hyde acknowledged that Newman never said the 401(k) would
be canceled or withdrawn because of the Union. With respect
to alleged remarks by Newman about the 401(k), the evidence
is not insufficient in my view to warrant a finding of a violation
of the Act. I would recommend dismissal of the charges.
In likewise, I am not persuaded that Toth, who appeared to
me to be an intelligent and straightforward witness, would
make such inflammatory statements to a person he knew to be a
strong union supporter in the middle of a union election cam-
paign. This was simply not credible and considering, as will be
later seen, that Harris will be contradicted by a fellow worker
with respect to other remarks she attributes to Toth, I do not
believe Harris was completely truthful here.154 Accordingly, I
would find and conclude that the Respondent did not violate
Section 8(a)(1) nor did it engage in objectionable election con-

153 I note that Witty gave something of a confused response at one
point in her testimony about Newman’s response to her question or
questions about the 401(k) but, in essence, she claimed she was “fanati-
cal” about the issue and at the end was satisfied that the 401(k) was not
in jeopardy after hearing Newman’s remarks.
154 I note that Harris’ testimony was essentially uncorroborated,
amounting to basically her word against Toth’s. The General Counsel
argues that because of her reluctance to testify in three unfair labor
practices against her current supervisor, Harris’ testimony should be
seen as having a high degree of reliability. In my view, Harris is enti-
tled to no more credibility than anyone else who testifies under oath.
Furthermore, the Act protects her from retaliation because of her testi-
mony in Board proceedings. Harris simply was not credible in my
view.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1390
duct. I would recommend also dismissal of this charge and
overruling of Objections 5 and 10.
2. The allegations involving the creation of surveillance
and threats of increased rules and regulations
(Objection 23)
The complaint alleges that the Respondent, through Toth,
created the impression of surveillance of its employees by tell-
ing an employee that the Respondent maintained a list of em-
ployees active in the Union.155 Toth is also essentially accused
of threatening employees with the imposition of more rules and
regulations at the Toledo Hospital if they selected the Union as
their collective-bargaining representative.156
Cathy Harris was again called by the General Counsel to es-
tablish these charges.
Harris stated that on one evening prior to the election, man-
agement convened a meeting at which the employees in her
department were present. Harris stated that, afterwards, most
(five to six) of the department employees were gathered in the
computer room discussing the meeting when Toth casually
mentioned before the group that if the Union gets in, he will
have to have a different set of rules and regulations and those
people who are not good workers would be protected by the
Union.
Harris stated that in her conversation with Toth wherein he
made remarks to her about the employees not getting a 401(k)
plan if the Union were elected, she said, “Well, I heard there’s a
list going around kept by the hospital on which employees
names are listed (including Harris’ name). According to Harris,
Toth responded, “yes” (there was such a list), but she should
not worry about it, this was no big deal, that her job was fine,
and there was nothing to worry about. According to Harris,
Toth said the list contained names of employees active in the
Union.
As with the 401(k) discussion, Harris said she and Toth were
alone. According to Harris, Toth said that the list he referred to
was not one of his making but the hospital’s. Harris said she
has never seen the list nor does she know where it is or was
kept. However, she became aware of the list’s existence from
a coworker, Ray Goins.157
Toth acknowledged that he participated in a discussion with
an employee, but not Harris, after an employer presentation in
which rules and regulations and the Union were mentioned. He
explained that, sometime in February or March 2001, six or
seven of his employees and other employees attended a night-
time hospital issues and answers presentation in the education
center’s room. Toth stated that he did not participate in the
actual presentation but recalled one of his employees, Jeff
Barker, asking questions about a retirement concern in the

155 See par. 24 of the complaint.
156 See par. 28 of the complaint.
157 Goins testified at the hearing. Goins stated that he is a coworker
of Harris in the computer center of Toledo Hospital. Goins denied
telling Harris that the hospital kept a list of employees active with the
Union; he was not aware of any such list and never heard his supervi-
sor, Toth, speak of any such list. Goins said he spoke to Toth about the
Union and, according to Goins, Toth was very neutral, gave him pros
and cons of the Union, and was never threatening.
questions and answer session part of the meeting. Toth stated
he could not answer the question and told Barker he would get
back to him about the availability of retirement orientation
classes for employees at the hospital so that he could educate
himself on the issue.
Toth said the employees also asked him about the Union’s
being in place at other hospital and health care facilities. Toth
said that he volunteered to research this at a later time with the
hospital’s consultants.
After the meeting, Toth said as he was about to leave, one of
his employees, Jerry Liezekowski, asked him—rhetorically in
Toth’s view—if the Union were voted in, things would be
tougher (for employees) at the hospital, that timeclocks and
different sets of rules would be imposed. Toth said he told
Liezekowski that he could not answer this because those mat-
ters are the subjects of bargaining. Toth said he told Lieze-
kowski that during his 7 years at Eastern Michigan, timeclocks
were never installed. Toth noted that at the time, five or six of
the computer department employees, including Harris, were
standing around talking.158
Toth specifically denied telling any employees that if the Un-
ion gets in, he will have to have a different set of rules and bad
workers would be protected by the Union. Toth felt that this
statement was silly because, in his view, no union or rules
could protect unproductive workers. Also, he viewed the
statement as something he simply would not say to employees
or anyone else.
Regarding an employee list, Toth stated he knew of no such
list, except that there was a voter eligibility list and his employ-
ees were not eligible to vote. Accordingly, Toth said he had no
reason to keep any lists regarding the Union and the election.
Toth specifically and strongly denied Harris’ record testimony
about the list of employees active in the Union allegedly kept
by the hospital and his complicity in the matter, saying that, in
his view, her testimony was fabricated.
Toth said that he had a good working relationship with Har-
ris and his other employees and has never disciplined her or had
cross words with her. In his mind, any conversations he had in
her presence were friendly, nonheated, and informal.
Discussion of the Impression of Surveillance Charges
I would recommend dismissal of these charges. As I have
indicated, I did not find Harris credible regarding her testimony
about statements she attributed to Toth. As I earlier noted,
Harris was contradicted by another employee regarding Toth’s
involvement with the Respondent’s creation and maintenance
of a list that could be used for surveillance purposes or would
create the impression of surveillance of Harris’ union activities.
Toth, on these charges again, impressed me as a serious and
honest person who would not make the statements attributed to
him. I would find and conclude that Toth neither violated the
Act nor engaged in objectionable conduct.
3. The allegations involving the Respondent’s promise
of wage increases, and statements rescinding promised

158 Toth identified the employees. The employees were the same
ones Harris identified as being on the scene at the time.
PROMEDICA HEALTH SYSTEMS 1391
wage increases during the election campaign (the
catchall objection)
In paragraph 26 of the complaint, the Respondent is charged
with promising employees wage increases by its admitted su-
pervisor/agent, Gloria Florence, to dissuade them from support-
ing the Union. In paragraph 27, the Respondent, through two
of its admitted supervisors and/or agents, Sean McClure and
Francis Michael Walsh, are charged with telling employees that
previously promised wage increases were being rescinded be-
cause the Union filed election petitions. The allegedly offend-
ing statements of Florence were made sometime in February
2001; the statements of McClure and Walsh were allegedly
made sometime in March 2001.
a. Background of the wage increase allegations
I believe it would be helpful to recite by way of background
a brief history of the Respondent’s actions with respect to the
wage increase issue.159
The Respondent’s corporate mechanism for examining and
authorizing compensation for hospital employees in all or most
job classifications is the compensation committee, or counsel,
which was established by Promedica’s central region executive
council in March 2000.
The compensation council addresses wage and other com-
pensation issues brought to its attention by the various hospital
department heads. In June 2000, there were about five or six
compensation issues pending before the compensation council,
including salary survey data dealing with the registered nurses
(RNs), certain laboratory (lab) positions, mental health techni-
cians, unit secretaries, and radiology and respiratory classifica-
tions. It was determined by the council at about that time that
there were significant recruitment and retention issues in these
job classifications, which, if not addressed, could lead to a lack
of competitiveness and loss of patients.
The Respondent’s management considered one of the lab po-
sitions, the preanalytical technicians (PTs), to have significant
wage issues which resulted in unacceptably high turnover
among these employees.160 However, the PT wage issue was
complicated and somewhat exacerbated by their being no per-
manent administrator in place in this department to deal with
the issue. Therefore, there was a dearth of data to support a
specific wage adjustment for these workers. However, the
compensation council anticipated that an adjustment would
ultimately be made and set aside a certain amount to be allo-
cated to the PT classification. The PTs’ wage issues, however,
were not addressed in earnest by the council until around De-

159 The background of the wage increase matter is based largely on
undisputed evidence and testimony credited by me on the relevant
points. In this regard, I have specifically credited certain “background”
testimony provided by the Respondent’s management representatives
Barbara Steele, president of Promedica’s central region, Jeffrey Keller,
corporate director of compensation, and Sean McClure, acting director
for the Toledo Hospital Laboratory. The evidence adduced for substan-
tive purposes will be discussed in a different section.
160 Preanalytical techs are not technically trained employees and re-
ceive pay on the lower end of the hospitals’ pay scale. These employ-
ees serve primarily a customer service function.
cember 2000, some 5 to 6 months after the installation of an
acting director for the clinical laboratory.161
Sean McClure became acting director of the Promedica
clinical laboratory in May 2000. As acting director, McClure
was responsible for the overall administration of the lab and
supervised around 189–200 full-time and 50 part-time employ-
ees, including PTs who were located at the Toledo and Flower
Hospitals and the North Campus Lab. One of McClure’s first
assignments was to deal with the wage and compensation issues
associated with the various employee classifications at the lab
with a view to assuring that Promedica lab employees received
wages comparable to those being paid by other hospitals in the
region and to maintain Promedica’s competitiveness. McClure
initiated the study of wages in the lab by identifying positions
that were problematic. Over the course of several months,
McClure identified two positions with wage problems, the PTs
and support coordinators.162
Regarding the preanalytical techs, McClure, sometime in Oc-
tober 2000, communicated with Dr. Francis Walsh, the Medical
Director of the Laboratory, and expressed a certain urgency
about current PT wages and their high turnover rate and the
difficulty the hospital was experiencing in filling PT vacancies
at hospital facilities.163
Sometime in December 2000, McClure also prepared for the
compensation council a formal request for market equity re-
view in support of his recommendation that the PTs required a
wage adjustment; this document was submitted to the council
on December 18.164 McClure also sent a memo to Jeff Keller,
the chairman of the council, in which he supplemented the
market equity review request with his request for specific ac-
tions to address hiring and retention of the PTs.165 This latter
document was prepared by McClure to gain an audience with
the council to discuss the matter.
McClure presented his case to the council sometime in Janu-
ary (around January 25) 2001, and the council agreed in princi-
ple with him that there was a market equity issue presented
with the wages received by the PTs. However, McClure was
asked to refine his report and return to the council in 2 weeks.
In the interim, McClure corresponded with the council chair-
man, Keller, to iron out some differences in philosophy be-

161 The PTs were not given first tier priority for an adjustment be-
cause of the lack of developed data to support any adjustment. Because
of the shortage of direct health care workers, the Respondent required
250 RNs, so this matter was given immediate attention by the Respon-
dent in September 2000.
162 See R. Exh. 50, a document prepared by McClure in May or June
2000 to show comparatively the wages received by various lab em-
ployee classifications and identify problem areas with regard thereto.
163 See R. Exh. 47, a memorandum to Dr. Walsh from McClure.
This memorandum is dated May 30, 2001. However, the document
was prepared in August but given to Walsh on October 24, 2000. The
2001 date was applied automatically by McClure’s computer when he
retrieved the document from his files. Dr. Walsh had requested a status
report on the preanalytical tech situation to present to the hospital’s
president.
164 See R. Exh. 48.
165 See R. Exh. 49. This document also reflects a May 30, 2001 date
that is automatically supplied by McClure’s computer when he re-
trieves it from his computer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1392
tween McClure and the council, vis a vis, the PT raises.166
Around February 14, 2001, McClure again met with the com-
pensation council.
At this meeting, there was general agreement among the
council members that the PT classification demanded some
adjustments because of the recruitment and retention issues
presented by McClure. However, there remained a concern
about McClure’s approach to resolving the wage discrepancy as
compared to the market-based approach the council had em-
ployed in dealing with wage issues associated with the RNs.
The council wanted McClure to follow that precedent and ap-
pointed Keller to work with him so that the needed adjustments
could pass muster with Promedica’s executive council (the
ultimate corporate approving body) headed by President Bar-
bara Steele.
McClure and Keller engaged in a number of conversations
about the matter from about February 20–23, 2001, with Keller
eventually telling McClure that his approach could not be sanc-
tioned by the council and that if he insisted, the matter would
have to go back to council because Keller could not take the
proposal under McClure’s approach to the executive council.167
As of around February 20–23, 2001, the PT wage adjustment
had not been received by the executive council for final ap-
proval for funding. Moreover, because McClure’s existing
budget was insufficient to fund the adjustment, it could not be
implemented without the final approval.
In the meantime, however, the compensation council became
aware of the filing of the election petition by the Union on
about February 18, 2001. The council considered the election
with the timing of the proposed wage increase and, while in
agreement with the need therefor, decided that implementation
would not be appropriate. The compensation council met with
Steele’s executive council sometime near the end of February
or early March to discuss the wage issue; corporate legal staff
participated in this meeting through a conference telephone
arrangement. At this meeting, the executive council decided to
approve the funding of the PT wage increase but not implement
it in light of the election petitions. The PTs wage increase was
not implemented until after the election and was in effect as of
the hearing date.168
b. The substantive charges; the announcement of wage
increases and the withholding of the increase
The General Counsel called preanalytical technicians Sherrie
Schreiner and Terri Lynn Dawson, and Lora Hyde to establish
these charges.

166 McClure was wedded to the hospital’s old merit performance-
based pay system; the compensation council, however, had moved to a
market equity approach to the wage issue.
167 See R. Exh. 51, a series of e-mail correspondence between
McClure and Keller regarding their respective approaches to the PTs’
wage adjustment during the period covering February 20–23, 2001.
168 The Respondent granted a general wage increase to all employees
in 2001 and market wage adjustments had been given to coders, RNs,
and pharmacists at the time the Respondent was considering the PTs’
wage adjustments. The general wage increase and the wage adjust-
ments are not in issue in the instant litigation.
Schreiner testified that she has worked at the Toledo Hospi-
tal for about 23 years and currently works the first shift, 6:30
a.m. to 3 p.m. in the central processingmicroplatingsection
of the lab as a PT; her supervisors are Gloria Florence and
Wendy Purcell.
Schreiner stated that sometime in February 2001, Florence
came to the microplating area of the lab and informed her and a
coworker that they were going to get a 15-percent pay increase
effective on their second paycheck in March. Schreiner noted
that Florence also went out to the main processing area and
shared this news with employees there. According to
Schreiner, Florence’s statements generated much discussion
among the employees. However, Schreiner conceded that Flor-
ence did not promise employees pay raises in order to dissuade
them from supporting the Union and that, in fact, Florence
made no mention of the Union at all.
Schreiner related that sometime in early March 2001, in a
laboratory staff meeting, McClure announced in the main work
area of the North Campus lab that on advice of he hospital’s
attorneys, the pay increase was not being granted at this time.169
According to Schreiner, about 30 employees were in attendance
at this meeting and the announcement was a hot topic of discus-
sion among the workers.
Schreiner did not recall McClure’s using the term “re-
scinded.” According to Schreiner, McClure was the only man-
agement representative who spoke about the wage increase.
Hyde testified that she attended a lab update meeting some-
time in March 2001 in the chemistry area of the North Campus
Lab, where Dr. Walsh told the 50 or so assembled workers that
a petition had been filed by the Union with the Board. Hyde
said that an employee asked whether the central processing unit
was going to get a raise. Walsh responded, according to Hyde,
that the hospital’s lawyers had advised that because the petition
was filed, central processing workers would not be getting the
anticipated summer or fall raise, nor an upgrade in classifica-
tion. Hyde testified that the employees at the meeting were
from both the technical and support bargaining units and in-
cluded some professional employees. According to Hyde,
Walsh’s comments about the raises were a topic of “constant”
conversation among the employees. Hyde, for her part, re-
called discussing this issue with Schreiner.
Dawson testified that she discussed the wage raises with
McClure about 2-1/2 years ago, and McClure told her that she
and her coworkers were going to get raises, that the supporting
paperwork was complete but the raise amount had not been
determined.170
Dawson said that she attended a quarterly lab date update in
March 2001 called by Dr. Walsh. According to Dawson,
around 40 to 50 persons attended the meeting where, among

169 On cross-examination, Schreiner said that McClure said the cen-
tral processing employees like herself would not be receiving their pay
increase on the advice of the hospital’s attorneys because of the upcom-
ing union election, “because we had filed the petition and the upcoming
union election.” (Tr. 75.)
170 Dawson has been employed by the Toledo Hospital for around 10
years as a preanalytical technician. She works the first shift and is
supervised by Gloria Florence. Dawson was an eligible voter in the
support services unit.
PROMEDICA HEALTH SYSTEMS 1393
other lab business addressed, the subject of raises was raised by
one of her coworkers who asked Walsh if he had any additional
information as to when the raises would be implemented.
Dawson stated that she could not recall Walsh’s answer171 be-
cause she had to leave the meeting. Dawson later asked Flor-
ence what Walsh had said about the raises. According to Daw-
son, Florence said that she was not sure but she thought the
problem was that the hospital’s lawyers were holding up the
raises because of the union organizing effort, that the hospital
attorneys were putting the raises on hold and no decisions had
been made.172 According to Dawson, Florence said she would
have to check with Newman for a specific answer. Dawson
later contacted Newman who told her that the matter was with
the human resources department and that department would
have to be consulted.
Dawson stated that the raise for the PTs was a hot and fre-
quent topic of conversation among the lab employees and was
brought up in several lab meetings between February and April
2001. According to Dawson, Florence, Purcell, and Newman
would be routinely asked, “When are we going to get our wage
[increase],” and the answer was always, “I don’t know, [the
matter is] still on hold” or that management was still checking
on the matter.173 Dawson also stated that no one from man-
agement ever said that the wage increase had been re-
scindedonly on hold.
McClure testified about his contacts with the employees dur-
ing the period in which he was working with the compensation
council to achieve the wage adjustments for the PTs.
McClure stated that after the second (February 15) meeting
with the council he had a conversation with his immediate su-
pervisor at the time, Gary Gordon, who gave him permission to
tell the PTs that the wage increase was being approved.174
After speaking with Gordon, on about February 21, he met with
Gloria Florence and Wendy Purcell, technical coordinator for
lab processing and supervisor of the central processing at the

171 Dawson said because she was working and coming in and out of
this meeting, she cannot recall whether Walsh or any management
representative said anything about the wage issue, only that the issue
was raised by a coworker whom she could not identify.
172 The General Counsel requested that the complaint in par. 27 be
amended to include Florence as an additional participant in the alleged
unlawful rescission of the wage increases. I granted the amendment
over the Respondent’s objections.
173 See Tr. 289. Dawson also said that she and other employees
would even stop Newman in the halls or meet with her privately and
ask about the status of the raises. Newman would say she had not
heard anything. Dawson also intimated that she and her coworkers
discussed the wage issue among themselves outside of the meetings and
that in her discussions with McClure over a period of time, his main
concern was excessive turnover in the lab and that higher pay was
needed to retain workers.
174 McClure stated that the market equity data used by him to support
the wage increases were prepared by the Respondent’s human re-
sources department and provided to him by his then-bosses, Jim Jekaki
and Sarah Polling, who suggested that he share the market equity mate-
rials with the workers, which he did. According to McClure, it was
obvious to all that there was a problem with wages for the PTs and
employees frequently would ask him what he was doing about it, to
which he would reply that he was working on the matter.
North Campus Laboratory, respectively, and instructed them to
tell the PTs that the wage increases had been approved.
Florence175 testified that beginning around January 2001,
there were discussions in her department about a potential wage
increase for the PTs because of high turnover. Sometime in
January 2001, Florence stated that she, along with her supervi-
sor, Barbara Newman, and second shift coordinator, Wendy
Purcell, attended a departmental meeting with the lab employ-
ees. Florence stated that either she or Purcell told the gathered
employees, including the PTs, that the hospital was still work-
ing on the wage increases. According to Florence, some em-
ployees asked additional questions about the raise, but were
simply told that the matter was being worked on.
Florence said that after this meeting, sometime in late Janu-
ary or early February, McClure informed her and Purcell that
he had just come from a meeting and that the raises were defi-
nitely going to take place. Florence then asked McClure
whether the staff could be told about the increases. According
to Florence, McClure said that while he did not have additional
information other than the increases were still being worked on,
she could report to the staff that the raises were definitely hap-
pening.
Florence stated that, armed with this good news, she and
Purcell called a brief meeting with about 10 to 15 workers in
the central area of the lab and told them that wage increase was
definitely happening. Florence said that she and Purcell also
went to other areas of the lab and informed other workers who
could not attend the impromptu meeting. Florence recalled
telling a PT in the microplating area of the lab, Schreiner, about
the proposed increases. According to Florence, she told
Schreiner and the others she happened upon that the raises were
definitely happening but she did not know any specific details
such as a time frame for the increases, that these points were
still being worked out.
Florence said that the matter of PT wage increases was also
raised in the Wednesday, February 21, departmental meeting
with about 10 to 15 employees by one of the employees. Flor-
ence stated that either she or Purcell told the employees that the
details of the increases were still being worked on but she had
no additional information to impart. According to Florence, the
employees became very angry so much so that she and Purcell
called Newman in to reassure them that they were going to
receive the increases. Newman addressed the employees essen-
tially repeating what Florence and Purcell had told them ear-
lier.176 The employees appeared mollified by the remarks com-
ing from an upper management person.
Florence stated that a couple of days after this meeting (on
Friday), Newman gave her and Purcell the bad news. Newman

175 Florence has worked at the Toledo Hospital laboratory for almost
20 years. She supervises about 38 workers who process lab specimens
sent to the North Campus Lab. Florence reports to Barbara Newman
and is assigned to the first shift but is responsible for all shifts. I would
find and conclude that Florence is a supervisor within the meaning of
the Act.
176 Florence, consistent with her stated practice, prepared notes of the
meeting (see R. Exh. 46) in which she mentions that the “Raises are
coming . . . unable to give you all the details. Sean [McClure] is work-
ing on this right now.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1394
told them that because of a pending petition for an election by
the Union, the raises were to be put on hold because of some
legal issues with the Union. Newman asked them to give this
news to the employees. Florence said that she and Purcell told
Newman they could not do that; they did not want to face the
employees. Accordingly, Florence, Purcell, and Newman gath-
ered some employees from the first and second shift for an
impromptu meeting in the central processing area of the lab.
Florence stated that Newman told the employees that pending
the election petition filed by the Union, the wage increases
were being put on hold, that some legal issues had to be worked
out.
Florence stated that because of the employees’ (negative) re-
action at the Wednesday meeting, she was very upset over the
latest news. According to Florence, she and Purcell said noth-
ing. Florence stated that she “zoned out” and could not recall
everything Newman said, except that the increases were on
hold. Florence specifically denied that she ever said that the
wage increase for the PTs was being rescinded, withdrawn,
canceled, or killed; she also denied hearing Purcell, Newman,
McClure, or anyone in management say that the wage increases
were being rescinded or not going forward because the Union
had filed election petitions. Florence stated that in her mind
that the increases were going to go through eventually as
planned, and, indeed, they were implemented in September
2001.
Florence also denied at any time making any statements to
the effect that the employees would get the PTs pay increases if
they decided not to vote for the Union. Florence stated she
never tied the employees’ support or lack of support for the
Union with the pay adjustment issue.
Newman testified that she was told of the proposed wage in-
crease for the PTs by McClure in January 2001. Newman con-
firmed that the affected employees were told that an increase
was in the works and had been approved in a departmental
meeting convened by Florence and Purcell. Newman con-
firmed that she was called into this meeting by Florence and
Purcell because the employees were anxious to receive the
increase and asked questions about the status of the raise.
Newman said she told the employees that the wage increase
entailed a lengthy process and that they needed to be patient.
Newman confirmed that she directly or through McClure re-
ceived word from either human resources or the compensation
council that the wage increase was on hold. McClure, accord-
ing to Newman, told her in late February that the increase was
on hold until the election was completed; that management did
not want the increase to be a factor in the election, or to be
perceived as an attempt to sway the vote. Newman stated that
she then convened the employees and told them that the wage
increase was on hold; Purcell and Florence were present at the
meeting.177

177 Purcell testified at the hearing about the wage increase issue and
essentially corroborated Florence and Newman’s account of the meet-
ings with the PTs in which the issue was raised and discussed. Purcell
also confirmed that at the meeting after the February 21 meeting, she
and Florence did not speak at all; Newman did all of the talking and
told the employees that the raise would be put on hold to prevent a
perception that the hospital was committing an unfair labor practice.
Newman denied ever saying that the pay increase was being
rescinded, canceled, modified, or totally put off subject to any
negotiations with the Union; the Union was not blamed in any
way. Newman stated that she never heard anyone in manage-
ment say that the pay adjustment would be rescinded, with-
drawn, or canceled because of the Union’s presence.
McClure also testified to his actions after receiving notice
that the PTs’ raise was on hold.
McClure stated that about 2 days after permitting, Florence
had Purcell to announce the approval of the wage increase to
the PTs, the Union filed an election petition, which event “sent
him scrambling” to seek advice from the hospital’s legal de-
partment. McClure stated that he was told that the election
would take place within a couple of months and that to imple-
ment the increase would make it appear that the hospital was
trying to buy votes; therefore, the increase could not go forward
under these circumstances.
McClure said he was asked by employees about the raise and
he told them the matter was with the attorneys and that he was
not sure what would happen. McClure denied ever telling em-
ployees in the lab or the hospital that the proposed wage ad-
justment was dead or “rescinded.” McClure said that he was
determined to push for the wage increase irrespective of the
Union because he felt that the financial well being of the lab
depended on a wage increase. McClure said the raise was sim-
ply put on hold and was in no way dependent on the outcome of
the election or on negotiations with the Union. McClure
averred that he never received any instructions from manage-
ment that the wage adjustment was contingent upon the Un-
ion’s success or failure in the election.
McClure acknowledged that he attended a “state of the lab”
meeting convened by Walsh in March 2001, but that he did not
speak to the gathered employees. McClure recalled that Walsh
was asked about the wage increase by some of the employees
and he addressed their concerns.
Walsh178 testified that he convened the first of his regularly
quarterly meetings for 2001 with the North Campus lab em-
ployees on March 19 at around 10:30 a.m. Walsh stated that,
among other matters, the PT wage increase was discussed at
this meeting. According to Walsh, he told the employees that
he was aware that a market adjustment of PT wages was neces-
sary and had actually been approved in principle by the hospi-
tal. Walsh went on to say that because of Board rules, no raises

According to Purcell, Newman did not use terms such as rescinded,
withdrawn, killed, curtailed, and did not blame the Union for the wages
being put on hold. Purcell said that after Newman’s announcement, she
was routinely asked by employees about the status of the raise and
simply told them the raise was approved but could not be implemented.
178 Walsh, a medical doctor, stated that he has been technically le-
gally employed by the Toledo Hospital as an independent contractor for
the past 13 years. According to Walsh, as the hospital’s medical direc-
tor, he is charged with setting the strategic direction of the clinical
laboratories of the Toledo Health System. Walsh states he possesses no
hiring or firing authority regarding the hospital’s laboratory employees
and no general management control over them. However, he does
have oversight authority in terms of these employees’ performance of
the laboratory tests for quality control purposes. Walsh is an admitted
agent of the Respondent within the meaning of the Act.
PROMEDICA HEALTH SYSTEMS 1395
could be implemented at that time;179 that upon completion of
the organizing campaign, irrespective of whether the Union is
accepted or rejected, the raise could be brought up again either
to be implemented or to be a part of the collective-bargaining
process.
Walsh adamantly denied saying that the pay adjustment
would be rescinded, killed, modified, not pursued, or anything
to that effect; but that the adjustment had to be placed on hold
based on the “rules of the game.” Walsh said he never placed
any blame on the Union for the placing of the raise on hold and,
in fact, told the employees that whatever happened in the elec-
tion, the lab needed to go forward, to function as a clinical lab
with a responsibility to patients.180 He urged these employees
to make their own decision in the election.
Walsh specifically denied the complaint allegations accusing
him of saying that the wage increase would be rescinded, say-
ing that, first, he would not say something he personally viewed
as inflammatory; and, second, his familiarity with Board rules
and regulations would preclude his making remarks which
could be construed as antiunion or disruptive to what he knows
are the rules associated with an organizing campaign.181
The Respondent also called Bonnie Veronica Rashleigh and
Mary Ann Achter to rebut the charges against Walsh and
McClure.
Rashleigh,182 a medical technologist employed by Promedica
for about 20 years, testified that she attended the March 2001
state of the lab meeting convened by Walsh. According to
Rashleigh, the wage increase for the PTs was raised by an em-
ployee; that Walsh did not broach the subject in his opening
remarks.
According to Rashleigh, Walsh said that the raise had been
“put into progress” but it was currently on hold because under
labor law, the raise could have been viewed as an incentive,
bribery, or impropriety if implemented after the “Union busi-
ness” began.
Rashleigh said the meeting lasted about 45 minutes but she
could not recall McClure’s speaking about the wage increase.
She could not recall anything being said about the raises being
canceled or withdrawn, just put on hold.
Achter identified herself as a 5-year laboratory marketing
coordinator with no supervisory authority.183 Achter stated that

179 By March 19, Walsh said that he was aware that an election peti-
tion had been filed by the Union.
180 McClure essentially corroborated Walsh on these points.
181 Walsh stated that through his prior experience with a unionized
medical laboratory in New York City, his master’s degree in business
administration, and other experience in the commercial laboratory and
venture capital business, he was very familiar with Board rules and
regulations dealing with unions. Walsh also said he believed he was
counseled by corporate counsel about dos’ and don’ts’ conduct in an
election context prior to the March 19 meeting, and the counseling
specifically included avoidance of language that suggested an induce-
ment to the employees to vote against the Union. Walsh conceded that
he was not familiar with all Board decisions regarding the granting or
withholding of wage increases in an election context.
182 Rashleigh was not eligible to vote in the election.
183 Achter stated she is a salaried employee and was not eligible to
vote in the election.
she attended the March 19, 2001 quarterly lab meeting con-
ducted by Walsh at the North Campus Lab.
According to Achter, Walsh opened the meeting and spoke
about the PT raise, saying that the raises were going to have to
be put on hold until the vote was completed because if the raise
were implemented, this could be viewed as an enticement.184
According to Achter, Walsh said that he did not care which
way the lab workers voted, as long as they voted. Achter said
that Walsh did not say the raise was being rescinded or can-
celed, merely that it was being put on hold.
Achter said the meeting lasted about 30 to 45 minutes, but
she could not recall McClure, who was in attendance, speaking
about the pay issue at all.
Discussion and Conclusions of the Pay Increase Allegations
The General Counsel (and Charging Party) argues princi-
pally that the Respondent departed from its own procedure
governing pay matters, i.e., getting final approval from the
executive committee before announcing the pay increases for
the PTs and then withholding the raise and blaming the Union
and the election process. That in handling the pay increases in
its own chosen fashion, the Respondent interfered with its em-
ployees’ rights under the Act and, because of the timing of its
announcement and withdrawal of the pay increase after the
petitions were filed and during the election period, engaged in
objectionable election conduct.
The General Counsel further submits that the only reason
that the PT wage increases, which for all practical purposes
were approved for funding by the Respondent’s executive
council in late February or early March, were not implemented
was because of the Union’s having filed petitions and the cam-
paign that followed. The General Counsel contends that Board
law is clear that an employer must proceed with wage increases
as it would have had the Union not been conducting its cam-
paign. That it is no defense that the employer informs employ-
ees that it wanted to avoid the appearance of attempting to in-
fluence the election and is putting the increase on hold as a
consequence.
The Respondent acknowledged that under most circum-
stances, an employer has the duty to act as though a petition has
not been filed and may (should) proceed to grant wages or other
benefit adjustments to its employees; that it is to act as it would
if the Union were not on the scene. The Respondent, however,
contends that its actions here fall within the Board-recognized
exception to the general rule, which permits an employer to
withhold expected wage increases provided that the employees
are truthfully told that the increase has been merely postponed
or deferred only to avoid the appearance of interfering with the
election. The Respondent submits that, consistent with Board
authority, it did not place the onus of the postponement on the
Union and made it clear to the employees that the adjustment
would occur whether they selected the Union or not. The Re-
spondent contends that its actions and statements to its employ-

184 Achter believes the raise issue came up in the beginning or mid-
dle of the meeting but did not think any employee asked a question
broaching the subject. However, she said that Walsh usually does
answer questions from employees at these meetings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1396
ees about the postponement of the PT wage increase complied
with these recognized Board principles.
The Respondent also contends that the General Counsel
failed to move the charge that Florence promised employees
they would receive wages in order to dissuade them from sup-
porting the Union. The Respondent concedes that Florence
notified the PTs in late January or early February and on Febru-
ary 21 that the pay raises were forthcoming but her announce-
ment was premature because of miscommunication and misun-
derstanding by the laboratory management. Moreover, the Re-
spondent submits that, irrespective of these miscues, Florence’s
announcement never mentioned the Union and, in fact, had
nothing to do with the Union. The Respondent submits this
charge should be dismissed.
It should be noted that the General Counsel, in his brief, de-
voted considerable space to the discussion of McClure’s,
Walsh’s, and, pursuant to an in-hearing amendment of para-
graph 27, Florence’s action vis-a-vis the pay increase issue.
However, neither the General Counsel nor the Charging Party
in her brief discusses Florence’s alleged promise of the wage
increases to the PTs to dissuade them from supporting the Un-
ion.
If there is one certainty regarding the PT wage increases, the
Respondent fully intended to implement them, and these plans
were in place long before the advent of the union campaign.
The credible testimony of the Respondent’s manager, particu-
larly that of McClure, leads me inescapably to that conclusion.
The primary issue is whether the Respondent’s actions, which
ultimately lead to the announcements that the wage increases
were being put on hold pending the completion of the election
to avoid an appearance of interference, constitutes, nonetheless,
an unreasonable interference with the employees’ Section 7
rights. Secondly, if so, the issue becomes whether the an-
nouncement of the increases and then their withholding consti-
tute objectionable election conduct.
The Respondent argues that once the petitions’ filing was
known, its response was clear and consistent—that is, the wage
increases had to be put on hold to avoid the appearance of try-
ing to influence the employees’ election choices. This position
misses by a wide margin a salient point, mainly that the Re-
spondent, by its own actions, had created in the minds of em-
ployees that the raise—a fairly substantial one at that—was in
the bag. I note that PT Schreiner credibly testified that Flor-
ence told her that the PTs were going to get a 15-percent raise
that they would see on their second paycheck in March, news
Schreiner shared with other workers. Thus, it seems clear that
the Respondent created great anticipation in the minds of the
PTs of a raise. Moreover, clearly under extant Board law, the
Respondent could have lawfully implemented the raise, a point
conceded by the General Counsel.
However, the Respondent took the course now in contro-
versy and the upshot was predictable—the employees, once
notified that they were not getting the raise by Florence, Pur-
cell, and Newman, were disappointed and angry. Certainly,
after all of the buildup about the raise by the Respondent, this
result was not unexpected. Florence and Purcell were aware of
this and did not even want to confront the employees with this
backpedaling on the raises.
I would agree with the Respondent that it, through Walsh,
tried to explain the hospital’s reasoning and I do not doubt that
its efforts were undertaken in good faith and after careful con-
sideration of the applicable law. However, in the minds of the
employees, the damage was done, and I believe that they could
reasonably conclude they now were not getting their promised
wages because of the Union’s filing of the election petitions.
Furthermore, based on Walsh’s statements that the wage in-
creases would be subject to collective-bargaining negotiations
should the Union win, there was no guarantee that the wage
increase would be implemented. In fact, in my view, Walsh’s
statements could be interpreted by employees to mean that
implementation of the increases would be vouchsafed by a
union loss. In any event, contrary to the arguments of the Re-
spondent and in spite of its attempts to not interfere with the
employees’ free choice, I would find and conclude that by an-
nouncing the withholding of PT pay increases after the filing of
the petition and the commencement of the Union’s campaign, it
violated the Act.185
Turning to the issue of the election objection issue, the Re-
spondent argues that even if an unfair labor practice charge is
determined and its election conduct deemed objectionable,
overturning the election results of the support services unit is
not warranted. I disagree. Contrary to the Respondent, I can-
not conclude that its conduct produced only a de minimis effect
on the support services unit employees, either in the terms of
numbers of workers affected or possibly influenced by the Re-
spondent’s postponing of the PT wage increase.
Matters affecting pay are of high importance to all employ-
ees and any attempt on my part to determine the reach of and
effect on any and all employees who may have received word
that the PT pay increases were being put on hold because of the
Union would involve extreme speculation. Surely, it is reason-
able for employees other than the PTs in the proposed units to
conclude that their prospects for pay increases could be ad-
versely affected by the Union’s filing petitions. Therefore, I
would conclude that, although the postponement of wage in-
creases directly affected only the PT job classification within
the support services unit, the objectionable conduct as deter-
mined by me was potentially poisonous to the other job classi-
fications and warrants setting aside the election results in that
unit, as well as the technical unit; and that new elections should
be ordered.
Regarding the issue of Florence’s alleged promise of wage
increases to employees to dissuade them from supporting the
Union, I would find and conclude that Florence on this record
made no such promises to the employees as I would construe
the term. Any representations she made to the employees were
more in the way of announcements of wage increases she was
cleared to make. She was essentially for a time the bearer of
good news and, of course, later, bad news. Florence was

185 My finding here is based not on the Respondent’s having re-
scinded the wage increase as charged in the complaint, but on its put-
ting the wage increase on hold because of the Union’s filing of the
election petitions. I also note that I have carefully considered the Re-
spondent’s cited authorities and found them factually distinguishable
from facts found herein.
PROMEDICA HEALTH SYSTEMS 1397
clearly a credible witness and her demeanor on the witness
stand evinced her concern was for the employees who were
being whipsawed on the wage issue. Florence’s denied, and I
credit her denial, that she ever mentioned the Union when she
announced to the workers that they were going to receive an
increase. I would recommend dismissal of these charges.
N. The Alleged Interrogation of Employees by
Nancy Konopka
In paragraph 23, the Respondent is charged with violating
the Act through the alleged interrogation of its employees by
Hospital Food Supervisor Nancy Konopka.186
The General Counsel called employee Diane Flanagan, a die-
tary worker at the Toledo Hospital, to establish this charge.
Flanagan testified that she began working at the hospital
around January 24, 2001, and has worked both the day and
night shift during her tenure. Flanagan stated that her day shift
immediate supervisor was Nancy Konopka.
Flanagan related a conversation she had with Konopka a few
weeks before the union election at around 9:30 a.m., while she
was working the day shift. According to Flanagan, as she was
going on break on the day in question, Konopka asked her
about her reaction to the Union. Flanagan said she told Ko-
nopka that she was “idle” on the Union. Konopka then volun-
teered that she could not understand why the employees would
want a union, what with all the benefits including the 401(k)
the hospital provided. Flanagan said that she told Konopka that
she was unsure (about the Union) because she had been em-
ployed at that point only about 2 months. Flanagan said she
had no other conversation with Konopka and, since October
2001, has been working solely on the night shift supervised by
another manager. Accordingly, Flanagan said she has not seen
Konopka very often but when she sees her, she still speaks to
her and, in fact, has a good working relationship with her.
Flanagan stated that she did not feel threatened by Konopka
and viewed the conversation as friendly and nonthreatening.
Flanagan said that she informed one employee of the conversa-
tion with Konopka.
Flanagan acknowledged that she was not a voluntary witness
at the hearing187 but denied that there were any improper influ-
ences by management regarding her testimony.
Flanagan stated that she also wore a union button during the
campaign but no one from management interfered with her or
told her not to wear the button; other employees in her depart-
ment also regularly and openly wore union buttons.188
Flanagan said that Konopka never asked her how she was
going to vote or told her she had to vote for the hospital. Ac-
cording to Flanagan, her conversation with Konopka was

186 Konopka did not testify at the hearing; no reason was offered for
her nonappearance by the Respondent. However, in their brief, the
Respondent contends that the Union and the General Counsel failed in
their burden of proof. Hence, the Respondent was not required to call
Konopka as a witness.
187 Flanagan was subpoenaed by the General Counsel to testify at the
hearing. However, her appearance was compelled by order of the Fed-
eral District Court in Toledo.
188 Flanagan did not indicate if she was wearing the button when
Konopka approached her.
friendly and nonthreatening and that after the conversation with
Konopka, she remained undecided about the Union. Flanagan
said she did not feel that she was being spied on or surveiled
and, in fact, the dietary employees, including herself, were very
open about how they felt about the Union.189
Discussion of the Konopka Allegation
As noted, the Respondent did not produce Konopka, so
Flanagan’s testimony serves as the only testimony of the en-
counter. I found Flanagan’s testimony to be generally sincere
and forthright, and free of acrimony toward Konopka. I would
credit her testimony.
The Respondent admits that Konopka was a daytime super-
visor in the dietary department and concedes that she did ask
Flanagan one question about her “reaction on the Union” and,
as the conversation continued, Konopka mentioned positive
aspects of working for the hospital, questioning any employee’s
support of the Union under such circumstances.
The Respondent submits that under the total circumstances,
Konopka did not unlawfully interrogate Flanagan because, as
admitted by Flanagan, the conversation was free of restraint,
coercion, or interference with Flanagan’s “idle” feelings for the
Union or any other rights she enjoys as an employee. The Re-
spondent notes that the conversation, as attested by Flanagan,
was friendly and relaxed, that Konopka did not press Flanagan
after she said she was idle on the Union. Moreover, the con-
versation took place in an open area of the cafeteria where other
employees were openly and without interference expressing
their support for the Union and engaging in union activities.
I would agree with the Respondent. Contrary to the General
Counsel who submits that the questioning of Flanagan was
highly coercive, I believe Flanagan’s conversation was more in
the nature of an amicable chat between a supervisor and an
employee about the Union. Konopka felt that the hospital al-
ready provided good benefits and the Union was unnecessary.
Flanagan on board only 2 months was unsure about the Union
at that time although she at some time during the campaign
wore a union button. Konopka certainly is free to express her
opinion under the Act.
I cannot find and conclude that Konopka unlawfully interro-
gated Flanagan under the totality of circumstances test. I also
do not believe that this singular innocuous conversation consti-
tutes objectionable conduct. I would recommend dismissal of
this aspect of the complaint and that the objection is not sus-
tained.

189 In the course of her testimony, Flanagan related a conversation
she had with her night-shift supervisor, Jim Kasperzack, who, she said,
thanked her for voting no to the Union and should not to listen to other
persons who talked about the Union. Flanagan said she did not feel that
Kasperzack was attempting to interrogate or influence her. Flanagan
acknowledged that she initiated some of the discussions with him about
employees talking to her about the Union. This conversation is not
charged in the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1398
O. The Allegations Involving Kerry Loe
(Objection 23)
The complaint (as amended)190 in paragraph 25(a) and (b)
essentially charges the Respondent, through its patient care
supervisor at Toledo Hospital, Kerry Loe, with violating the
Act on two separate occasions—one sometime in March 2001
and another in September of that year. The March incident, as
noted above, is cited as objectionable election conduct.
The General Counsel called Marjorie Smith, a licensed prac-
tical nurse working in the Toledo maternity department. Smith
has worked for the hospital for 15 years and usually works the
day shift but picks up extra hours working part time on other
shifts.
Smith testified that she was an active supporter of the Union
from January through April 2001. During this time, Smith
wore buttons and badges on its behalf and distributed union
literature to her coworkers in the maternity unit. Smith related
a conversation191 she had with her immediate supervisor, Loe,
about a week before the election. Smith stated that on the day
in question she was charting her patients at the nurses’ desk
when Loe asked to speak to her. According to Smith, Loe mis-
takenly thought she was upset over her current assignment or
was simply having a bad day. Smith stated she told Loe that
she was upset because of the recurring problems of staff short-
ages. At some point in this conversation, Loe presented Smith
with a green card,192 telling her she needed the card to vote and
to have her identification with her at the polls. According to
Smith, Loe said we encourage you to vote no for the Union.
Smith responded that she was not interested in voting nothere
was no way she would vote no. According to Smith, Loe then
said if you really and truly feel that way, you should look for
another job. According to Smith, the conversation basically
ended after a time and without any apparent animosity.

190 The General Counsel requested early on at the hearing that par.
25 of the complaint be amended to designate par. 25 as 25(a). He pro-
posed that new language be inserted in the complaint as par. 25(b) as
follows:
Some time during the first half of September 2001, the exact date be-
ing unknown, the Respondent, by its supervisor and agent, Kerry Loe,
Patient Care Supervisor of Respondent’s Toledo Hospital facility,
made coercive statements to an employee concerning that employee’s
cooperation with the investigation of an unfair labor practice charge in
violation of Sec. 8(a)(1) of the Act.
Respondent objected to the proposed amendment. I allowed the
amendment, as the amendment was made early in what proved to be
protracted litigation. Accordingly, I took the view that the Respondent
would have ample opportunity to prepare its defense.
191 Smith could not give a precise date but thought that the conversa-
tion took place on Thursday or Friday of the week before the election in
April at around 2 p.m., near the end of her shift in an empty nursery,
where she and Loe sat in the baby rockers and talked. The conversation
lasted about 15–20 minutes and covered not only staffing issues but
also patient medical conditions and the staff expected for the next shift.
192 Smith held the green card while she was testifying, but it was not
adduced as evidence by the General Counsel. However, Smith read
from the card which, among other things, said “Get out the vote, vote
no,” and referred to the Board’s conducting a secret-ballot election.
(Tr. 313–314.)
Smith described the entire conversation as professional and
casual, and that she had had no problems with Loe, who Smith
conceded had previously disciplined her for absenteeism.193
Smith said that she told her husband and several prounion co-
workers (five to six) about this conversation because she was
astonished that Loe would make such a statement to her.
Smith also stated that she had a second conversation with
Loe around Labor Day 2001, between 10 a.m. and 12 noon.
Smith stated that on that day (she could not be precise), she
went to Loe’s office to check the sign-up book for extra hours
and encountered Loe there. According to Smith, Loe said that
she was upset with Smith regarding a conversation between the
two; Loe said that she was upset that Smith had repeated a con-
versation they had had. Smith stated that at the time she
brushed off Loe’s comments, not knowing how to respond, and
left the office. However, Smith said that she felt very uncom-
fortable and nervous in the aftermath because she previously
had given “sworn testimony” to the Board after the election and
she did not know whether Loe had knowledge of the written
statement she had provided.194 Smith stated she was concerned
because she was alone with Loe when Loe made the comment,
but Loe never explained to her what she was upset about. Ac-
cording to Smith, she assumed that Loe was upset about the
conversation they had when Loe presented her with the green
card and made the comments about looking for another job.
Kerry Loe195 was called by the Respondent and testified that
she recalled a conversation with Smith around March 3, 2001.
Loe explained that she had heard that Smith was upset and
assumed that the problem stemmed from Smith’s being pulled
from her regular assignment in the postpartum unit to the ante-
partum unit in the north end of the hospital. Loe stated that
Smith and she met in the nursery in the north end. According
to Loe, Smith appearing very agitated and angry, said that she
was tired of being overworked and understaffed, and felt she
could not provide the proper level of care needed by her pa-
tients. Loe said that the two were sitting in the nursery rockers
at the time and she allowed Smith to ventilate for a couple of
minutes.
According to Loe, Smith said if they had a union, things like
this would not happen. Loe said she responded by saying that
there were nursing shortages everywhere and that she could not
understand how a union could increase staff. Loe stated that
she believed that other matters were discussed, but nothing
more about the Union. Moreover, Loe felt that Smith seemed
mollified by having her complaints heard because the conversa-

193 Smith said that in spite of the discipline proposed by Loe, she had
a positive relationship with Loe and did not take the discipline person-
ally. Loe said that she has had no other disciplinary issues at the hospi-
tal and also currently works with Loe on the unit newsletter.
194 Smith stated that she was subpoenaed to testify at the hearing and
was “not very excited” about appearing because Cindy Miller, an active
unionist who also recruited her to the union cause, had recently been
discharged. Smith said she did not tell anyone at the hospital about her
appearance at the hearing; she reported sick on the day of her appear-
ance. Smith conceded that no one from management had spoken to her
about her testimony.
195 Loe has been employed by the Respondent for about 10 years and
is an admitted supervisor.
PROMEDICA HEALTH SYSTEMS 1399
tion ended with Smith’s returning to her job seemingly more
relaxed. Loe stated that no other union-related issues came up
between Smith and her that day. Loe denied telling Smith that
if she did not like working at the hospital, she ought to work
elsewhere, or any words to that effect. Smith said she would
never say that to her employees.196 Loe described her nursery
conversation with Smith as nice and free of animosity.
Loe stated that Smith was a good nurse and one whom she
would not want to lose, especially with the current shortage of
nurses. Loe also denied ever giving Smith any literature or
materials related to the union election. Loe acknowledged that
she knew that Smith was prounion, having seen her wearing
badges and seated at the union tables during the election. How-
ever, Loe denied having knowledge of Smith’s having spoken
to Board attorneys and agents or given any sworn statements to
the Board; Loe said that she did not know Smith was to be a
witness in the current proceedings.
Loe admitted that she passed out green cards, usually at the
nursing station at the beginning or ending of the shift and not in
the middle of the shift when patients are receiving care. Loe
stated that union cards may have said, “We encourage you to
vote no,” but could not recall whether this statement appeared
on the card.197
Loe could not recall having any conversation with Smith in
the fall of 2001 regarding Loe’s being upset over Smith’s hav-
ing repeated a conversation between them or the conversation’s
connection to any written statement Smith may have given to
the Board.
Loe further explained that actually she and Smith do not
regularly see each other unless Smith is working extra hours,
although there are times Smith may have occasionally come to
her office. However, Loe denied having any conversations
with Smith about this case.198
Loe acknowledged that she participated in three or four em-
ployer presentations during the election period, mostly at night
between 2 and 3 a.m., but did not discuss the Union with any
employees. According to Loe, the presentations were given by
the hospital to answer questions employees may have about the
Union and, in her view, were to show two sides of the issue.
Loe said that she did not know if the purpose of the presenta-
tions was to induce employees to vote no.
Here again, the resolution of these allegations redounds to
resolving the credibility issues between the two employees

196 Loe was presented with Smith’s record testimony (Tr. 313) re-
garding the nursery exchange and denied the statements attributed to
her by Smith.
197 Loe stated she was instructed (by management) to give the green
cards to employees and gave them to about 60 people. She could not
specifically recall giving a card to Smith but may have. She could not
recall the names of all of these employees. Loe confirmed that the
cards included the person’s name, the bargaining unit, and times and
places to vote. Smith said she was not sure whether employees would
need the green card and personal identification to vote but she did not
want employees to be denied a voting opportunity. So she told them to
bring the card to the election sites. Loe identified R. Exh. 44 as a copy
of the card she distributed.
198 Loe stated that she only became aware of the Board complaint
against the hospital through the local newspapers.
here. In that regard, I found Smith’s testimony to be highly
credible. Her demeanor was serious and earnest, and she
clearly harbored no animosity toward Loe. Moreover, her tes-
timony was corroborated by her possession of the green card
Loe gave her and which Loe could not remember giving Smith.
Smith also was consistent in her responses on cross-
examination.
On the other hand, Loe did not have similar recall and, in
fact, struck me as a witness hiding behind memory loss or
lapse. Loe also did not seem forthright in areas where she
should have. For instance, Loe admitted she said that the Un-
ion could not help with staff shortages but then said she said
nothing adverse to the Union. Loe admitted that she partici-
pated in the hospital presentations but did not know if the pres-
entations were designed to encourage employees to vote no.
Then, too, Loe admitted she gave out 60 green cards which
clearly exhort employees to vote no. I viewed Loe’s testimony
as somewhat disingenuous. Considering that Smith is a current
employee testifying against a person who acts as her immediate
supervisor and expressed fear of retaliation, I would on this
score also credit her testimony that Loe invited her to quit and
find work elsewhere in response to Smith’s expression of sup-
port for the Union.199 I would therefore find and conclude that
Loe’s remarks were in context coercive and interfered with
Smith’s Section 7 employee rights in violation of the Act.
The question next becomes whether the election results for
the technical unit should be set aside because of Loe’s remarks,
which Smith credibly said she communicated out of astonish-
ment to around five to six close prounion workers.
The Respondent argues that the technical unit is comprised
of 550 or more employees and Smith did not identify the job
positions these people held or their proposed bargaining unit, or
even if they were eligible voters.
I would agree with the Respondent and conclude that this
singular violation, by a supervisor in a one-on-one conversation
with an employee, does not warrant setting aside the election
where the remarks were disseminated to only a relative few
employees whose bargaining unit affiliation and voter eligibil-
ity are unknown. I would recommend overruling Objection 23
as it applies to the technical unit. Bonanza Aluminum Corp.,
300 NLRB 584 (1990).
P. The Allegations Involving the Respondent’s Threat
of More Restrictive Leave Policies and Discharge
for Striking (Objection 10)
In paragraph 22, the complaint alleges that the Respondent,
through admitted Supervisors Pamela Costello and Barbara
Newman, during a period covering February 14 through April
2001, threatened employees with more restrictive employee
leave policies if they voted for the Union; paragraph 29 charges

199 The Respondent urges a contrary finding, contending that it is
implausible that Loe, who had received the labor consultant training,
would discard everything she learned and threaten Smith. This is a
very valid point. However, I believe that Loe made the remarks, per-
haps in spite of her training. I note that Smith was very concerned about
Miller’s discharge, considering that Miller recruited her to the union
cause. I believe Smith’s credibility here was enhanced under these
circumstances.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1400
Costello with threatening employees sometime in March 2001
with discharge if they should go on strike.
Terri Lynn Dawson testified regarding the charges relating to
the imposition of more restrictive leave policies.
Dawson stated that she attended approximately three of the
employer-sponsored campaign meetings at which Newman and
Hematology Supervisor Costello made presentations on behalf
of the Respondent. According to Dawson, at the meetings, both
Costello and Newman made oral presentations that covered a
number of topics, including the current leave policy and a pos-
sible leave policy should the Union be voted in.200
Dawson stated that one or the other of the two presenters
said that laboratory employees currently did not have to give 6
weeks’ notice to take time off; but that would change should
the Union be selected; that the Union would create havoc
within the department and tear it apart.201
Dawson said that prior to the election, the employees had a
very flexible leave policy. For instance, an employee could get
her own coverage and take leave as needed for a doctor’s ap-
pointment, school meetings, and the like. According to Daw-
son, Costello and Newman said this would change and that
employees would need to obtain permission to take time off or
be reprimanded. Dawson noted that both Costello and/or
Newman appeared to be reading from a script.
Dawson stated she viewed the hospital’s current leave policy
as an important benefit and that her coworkers shared this view.
Dawson said she spoke to her fellow workers outside of the
meeting about what she had heard regarding the possible
change in the leave policy and recalled that this was a “hot”
topic of discussion among the workers. According to Dawson,
these comments about what she viewed as a more restrictive
leave policy were raised in all of the meetings.202
Dawson also stated that neither Costello nor Newman indi-
cated in the meetings that the leave policy was (or would be) a
subject of collective bargaining if the Union were voted in.203
According to Dawson, this was confusing to the employees
because many thought it would be a collective-bargaining issue
and something they had to deal with if the Union came in.
Regarding the 6 weeks’ notice issue, Dawson said that
Costello and Newman mentioned an existing collective-
bargaining agreement between the Union and St. Vincent’s
Hospital which evidently required 6 weeks’ advance notice.
Dawson recalled a paper being passed around by the attendees

200 Dawson said that the other topics included dues, voting eligibil-
ity, and cross-training.
201 Dawson said that one or both Newman and Costello made these
statements during question and answer sessions and backed each other
up (taking turns) when talking about leave policies. However, Dawson
says she clearly remembers Costello saying in the second meeting she
attended that the employees would not be able to take time off as flexi-
bly as under the current system. Dawson could not recall what New-
man may have specifically said.
202 Dawson noted that at the interdepartmental meetings, there were
20–30 people from the support unit; and at the last update meetings,
there were technical and support services and some professional work-
ers.
203 Dawson recalled Costello’s saying that the leave policy could not
be bargained over; it was something employees had to deal with be-
cause it was a policy of the Union. (Tr. 296.)
but she did not know whether the paper related to St. Vincent’s
or what the paper included because she had to leave that meet-
ing for work.204
Lora Hyde was called to testify regarding Costello’s alleged
statements about strike discharge allegations by the General
Counsel.
Hyde said that she attended an employer-sponsored meeting
sometime in March 2001 at which Costello conducted a presen-
tation covering issues pertinent to the union campaign at the
North Campus Lab. Newman and lab employees John Glenn-
denning, Georgette Fenton, and Emily O’Neal were also pre-
sent.205
Hyde related that Costello used a video screen for her pres-
entation which included a listing of all of the current benefits
employees received at the hospital. According to Hyde,
Costello said that if the Union were voted in, employees would
have to bargain from scratch and, that if the Union came in, we
could lose these benefits.
Hyde added that Costello’s presentation showed pictures of
striking workers. According to Hyde, Costello said that it was
a strong possibility that the Union could call a strike and if a
strike were called, employees could be fired and new employ-
ees would be hired because the hospital has to maintain a suffi-
cient work force to provide patient care.
Newman acknowledged giving a number of video presenta-
tions at the North Campus Lab with Costello. Newman stated
that regarding the issue of benefits, she only spoke from the
script of her presentation materials and, in fact, did not recall
any specific questions about leave or vacation. Newman spe-
cifically denied saying anything about time-off policy being
negotiable or that laboratory flex time would be automatically
taken away if the Union were successful. Newman said that
she understood these could be bargaining points. Newman also
denied saying that employees would have to give 6 weeks’
advance notice for the taking of leave if the Union were voted
in.
Regarding the topic of strikes, Newman recalled a strike re-
lated question during a presentation but she said nothing be-
yond the script. Newman acknowledged having entertained a
question from an employee as to whether the hospital would
protect employees who crossed the picket line at a presentation.
Newman responded that she did not know and told the em-
ployee she would have to get the answer to the question later.
Newman, confronted with Hyde’s record testimony, denied
saying that employees would be fired if they went on strike.
Newman said she read from the slide presentations script on the
topic of strikes.206
Newman also denied saying anything about the Union’s tear-
ing the department apart, and that neither she nor Costello told

204 As previously noted, Dawson said that she was in and out of the
three meetings she attended.
205 Hyde advised that O’Neal and Fenton stayed at this meeting for
only a few minutes. Glenndenning also did not stay for the entire meet-
ing. These employees did not testify at the hearing.
206 Shown R. Exh. 2, the power point presentation by the Respon-
dent’s counsel, Newman read from the slide, quoting “that they retain
their status of employees and cannot be discharged but they could be
replaced by the employer. See also R. Exh. 2.
PROMEDICA HEALTH SYSTEMS 1401
any employee that leave policies would change or that they
could not take time off without being reprimanded. Newman
stated this would be a threatening statement of the type she was
instructed by the consultants not to make. Newman also denied
attributing a nonflexible time-off policy to the Union.
Newman acknowledged knowing Dawson but could recall
no questions from her in the presentation meetings. Newman
said that she was never approached by her with a question or
concern about the Union.
Costello essentially echoed and corroborated Newman’s tes-
timony regarding her role in the presentations and denied going
“off script” in the meetings where either the video or power
point materials were shown.207 Costello said she gave the video
presentation about a dozen times, usually with Newman as her
co-presenter. According to Costello, the video presentation
utilized a video played on a video cassette recorder and a
binder, including a copy of the St. Vincent’s/UAW contract that
employees were at liberty to peruse. Costello said the proce-
dure she (and Newman) employed was to assemble employees
in resource rooms at the North Campus Lab, the central proc-
essing work area and at the main hospital in the phlebotomy
breakroom, play the video and have a question and answer
session. The video presentations were all made at the North
Campus Lab before groups of employees numbering between 2
and 20 for each session.
Costello denied making any threats during her video presen-
tations to the employees that they would be fired or discharged
if they participated in a strike. Shown the transcript testimony
of Hyde, Costello specifically denied making the statements
attributed to her regarding striking workers being fired.
Costello also denied that either she or Newman said that em-
ployees would have to give 6 weeks’ notice to take time off if
the Union were voted in. However, Costello admitted that
Newman did say at one of the video presentations that the St.
Vincent’s Hospital contract appeared to require employees to
give 6 weeks’ notice for vacation leave. Costello could not
recall at which particular presentation Newman made the ob-
servation but it was one of only possibly two times they possi-
bly varied from the script.208 Costello also denied that neither
Newman nor she told employees that there would be more re-
strictive time-off or leave policies if the Union were voted in or
that employees in such an event would not be eligible for “flex
time” off. Costello also denied saying that if the Union were

207 Costello admitted that she did depart from the script on an occa-
sion when she commented about a picture of an individual shaking
hands with the designer of the UAW’s golf course in the power point
materials, asking flippantly whether anyone would ever be invited to
play at the course.
208 Costello said that either she or Newman also told the employees
that a 6-week requirement would not necessarily be required of the
Respondent’s employees. Notably, Newman said that neither she nor
Costello ever said anything about having to give 6 weeks’ notice for
leave if the Union came in. See R. Exh. 45, entitled “A Look at the St.
Vincent’s-UAW Labor Agreement,” which Newman said was a hand-
out made available with the actual draft of the St. Vincent’s contract
with the Union. The handout, quoting draft language of the St. Vin-
cent’s contract requiring 8 weeks’ written notice for days-off requests,
asks “Do you always know 8 weeks in advance if you’ll need a day
off?”
selected, the Union could unilaterally set time-off policy;
Costello said that she understood this was a subject of collec-
tive bargaining.
Regarding the strikers, Costello again reaffirmed her staying
with the script, specifically that of the power point presenta-
tion’s section, “Basic Guide to the NLRA,” which dealt with
the topic. Costello denied varying from the text on the issue of
strikers, and that she never said if there was an economic strike
and employees participated, they would lose their jobs.209
Costello could only recall one question from an employee re-
garding security of employees who cross the picket line, and
Newman told the employee she thought security would be pro-
vided, but she would check on the matter with management.
Employees Sharon Serres, Marja Solkkeli-Dooner, Dennis
Dean Burkholder, and Nancy Seigneur were called by the Re-
spondent to corroborate Newman and Costello.
Serres210 testified that she was a presenter during the union
organizing campaign and worked with the overhead slide,
power point, and video presentations. Serres stated that when
she worked with a coworker, one or the other would operate the
demonstration machinery, e.g., the overhead projector, or
power point computer, and the other would read from the text
of scripted materials. According to Serres, she and other pre-
senters were instructed by the consultants to answer all ques-
tions by reference to a slide, and any questions not covered by
the material or concerning something she did not know were to
be answered at a later time after consultation with the consult-
ants.
Serres noted that she presented the power point materials
about four times, once with Costello and with a group of
around 70–75 employees on March 17, 2001. Serres noted that
in her presentation with Costello, she read from the slides and
someone asked Costello whether the hospital would provide
security to employees who crossed the picket line.
According to Serres, Costello told the employee that she
thought the hospital had a right to get the caregivers to the pa-
tients but that she would get back to her with a definitive an-
swer. Serres said that neither she nor Costello said anything
about striking employees getting fired.211
Serres could recall no questions from employees regarding
what would happen to leave and vacation time off if the Union
were voted in. However, neither she nor Costello said that if
the Union were successful, there would be more restrictive
leave or time-off policies. Serres also denied that either said
that if the Union were voted in, it would unilaterally set leave
and vacation policy or that such issues would not be negotiable.
Serres conceded that employees may have asked about bene-
fits—she could not be sure—but she, nonetheless, insisted that

209 The “Basic Guide to the NLRA” is published by the Board and
was excerpted in the video presentation (R. Exh. 2) given by Costello
and Newman. The video asks the question, “If there is a strike will you
still have a job,” and then, quoting from the basic guide, gives a de-
tailed answer of striking workers’ rights.
210 Serres is employed as an operations director at the Toledo Hospi-
tal’s vascular rehabilitation and research program, a position she has
held for about 3 years.
211 Serres said nothing was said about strikes other than the reference
to strikers in R. Exh. 2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1402
her stock reply was invariably, everything is negotiable with a
third party (union), that any benefits the employees currently
had, e.g., flexible time off, would not automatically go away if
the Union were voted in.212
Dooner,213 after having been given training by the Respon-
dent’s consultants, co-presented the power point materials with
Newman. According to Dooner, Newman usually read the
materials, except for long passages that were summarized by
Newman. Dooner recalled a March 17, 2001 (St. Patrick’s
Day) presentation at which she operated the computer and
Newman read the scripted materials before about 10–15 em-
ployees. Dooner stated that no 401(k) questions were asked
that she could remember, but she was absolutely certain New-
man did not tell employees that the 401(k) could not be imple-
mented in July (2001) if the Union were voted in. Dooner said
that Newman did not tell employees that there would be a more
restrictive leave policy if the Union were selected or that em-
ployees would have to give a maximum of 6 weeks’ notice to
take time off. In fact, Dooner could not recall these matters or
the possible loss of the employees’ current flexible time-off
policy even being discussed.
Burkholder214 testified that, like other supervisors and man-
agers selected to be a presenter during the union campaign, he
was given training on the presentation materials by representa-
tives of the human resources and the consultants hired by the
hospital. According to Burkholder, the consultants guided him
through the materials slide by slide, familiarized him with the
accompanying scripts, and showed a mock presentation.
Burkholder stated that he was instructed that although present-
ers might be uncomfortable delivering a scripted presentation,
all employees were to receive the same information from man-
agement.
Burkholder stated he was involved in issues and answers
presentation that utilized overhead slides and a script with his
supervisor, Newman, with whom he co-presented on March 5
and 7, 2001, at the Toledo Hospital and the North Campus Lab,
respectively.
At the March 5 session, Burkholder said he was the script
reader and Newman operated the projector. According to
Burkholder, there were questions from employees about bene-
fits, whether these would change or be diminished as a conse-
quence of the election. Burkholder said he responded verbatim
according to the issues and answers materials.215
According to Burkholder, he never heard Newman say that
the hospital’s leave and vacation policy would automatically

212 Serres said that actually she could not recall the issue coming up
in her department or making any statement in the presentation regard-
ing leave or time-off policies.
213 Dooner has served as the Respondent’s director of emergency and
trauma services for the past 2 years; she supervises about 120 full-time
employees.
214 Burkholder has been engaged at Toledo Hospital as a microbi-
ological technologist coordinator since 1996. He had been employed in
another capacity with Flower Hospital since 1983. In his current posi-
tion, Burkholder supervises 24 employees.
215 Burkholder, by way of example, said he read the portion of R.
Exh. 5 on pp. 24–25, which says, “In bargaining . . . there are no guar-
antees you may gain, lose or retain the same pay or benefits.”
change if the Union were successful or that the Union could
unilaterally set the leave and vacation policy.216 Burkholder
denied that either he or Newman told the employees they would
have to give a minimum of 6 weeks’ notice to take time off.217
According to Burkholder, because Newman was the manager in
charge, she was the primary responder to questions posed by
the employees. He could not recall with specificity whether he
answered any questions but if he did, his responses tracked the
script or the language contained on the overheads.
Burkholder conceded that because everyone could read the
overhead transparencies for him or herself, he and Newman did
not simply always reread the text in answering questions but
paraphrased an answer utilizing the script language. However,
in the presentations, Burkholder insisted that Newman did not
depart from the script or the transparencies.
Seigneur218 attended two employer-sponsored presentations,
the overhead and power point, conducted by Newman–
Burkholder and Newman–Costello, respectively, prior to the
election.
Regarding the Newman-Burkholder presentation, Seigneur
said neither presenter said to the approximately 30 employees
that if the Union were voted in, the laboratory would not con-
tinue its current flexible time-off policy; that the hospital would
adopt a more restrictive time-off policy or that time-off policy
would be unilaterally decided by the Union.219
Seigneur noted that Costello and Newman presented the
power point presentation in the laboratory breakroom during
the morning with approximately 30 employees in attendance;
she could not recall the exact day or month of the presentation.
Seigneur could recall no questions regarding the time-off policy
but that neither of the presenters said the flexible timeoff policy
would change if the Union were voted in and neither said if the
Union were successful, there would automatically be more
restrictive time-off policies. Seigneur also stated that Newman
and Costello did not say that if the Union were voted in, there
would be a minimum of 6 weeks’ advance notice required to
take time off or that the Union would be able unilaterally to
establish time-off and vacation policy.220

216 Burkholder also denied that Newman ever said the 401(k) plan
would be lost if the Union were voted in, or that the 401(k) would go
into effect dependent on the outcome of the election. He said there was
no connection between the two events. Burkholder said he never heard
Costello say that current leave and vacation policies would auto-
matically change or be lost.
217 Burkholder emphasized that he utilized the script to answer ques-
tions and that the approach he and Newman used in the case of ques-
tions they could not answer was to consult with management and then
get back to the employees. He pointed out the issues and answers script
set out that procedure in the text.
218 Seigneur is currently employed at Toledo as a laboratory medical
technologist for the past 18 years; she was ineligible to vote in the
election.
219 Seigneur also denied that Newman or Burkholder said anything
about the loss of cross-training in the lab.
220 Seigneur also said that she heard no management representative
say the 401(k) plan would not be implemented in July if the Union
were successful.
PROMEDICA HEALTH SYSTEMS 1403
According to Seigneur, she did not hear Costello (or New-
man) say that if employees went out on strike they would be
fired; she heard no one from management say this.
Discussion and Conclusions of the Restrictive Leave
Policies and Striker Discharge Allegations
Once more, the resolution of the allegations boils down to
credibility. To a veritable certainty, under established Board
law, if the Respondent’s supervisors made the statements at-
tributed to them at the employee meetings, then finding of a
violation of the Act would be warranted.
At the outset, it should be noted that the Respondent’s pres-
entation materials are not alleged or argued to be unlawful by
content or presentation methodology. Additionally, it is not
disputed that the Respondent retained labor consultants to guide
and instruct its managers in presenting its side or response to
the Union’s organizing efforts. The Respondent’s witnesses to
a man and woman all testified similarly to their own conduct
and that of the person they were teamed with in making the
presentations, claiming basically they gave scripted presenta-
tions with little or no variance from the text of the materials.
Newman and Costello, the targets of the instant charges, in-
sisted and persisted in their position of following and staying
on script in the many presentations they gave.
The General Counsel produced two witnesses (out of possi-
bly hundreds) who claimed to have heard Newman and/or
Costello making statements which were clearly off script and,
all things considered, highly threatening (if not inflammatory)
of employees’ rights guaranteed under the Act. This does not
seem plausible to me.
I would agree with the Respondent that, with respect to these
charges, the General Counsel has not met his burden.
I must make clear that Hyde and Dawson were not incredi-
ble. However, the Respondent’s witnesses were not only credi-
ble testimonially, but also produced corroborative evidence of
the presentations they participated in or witnessed firsthand.
Newman and Costello, in particular, seemed honest and forth-
right, and savvy employees. It does not seem plausible that
given their backgrounds, experience, and responsibilities, they
would make the statements in question. At best, the evidence
as to these charges is in equipoise; and, in agreement with the
Respondent, I would recommend dismissal of the charges and
an overruling of the election objections associated therewith.
CONCLUSIONS OF LAW
1. The Respondents are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening its (their) employees with unspecified re-
prisals because of their union activities, sympathies, or support,
the Respondents violated Section 8(a)(1) of the Act.
4. By enforcing its (their) solicitation, distribution, and loi-
tering policy selectively and disparately; that is, by restricting
union related solicitations and distributions while not in like-
wise restricting nonunion related solicitations and distributions,
the Respondents violated the Act.
5. By creating an impression among its (their) employees
that their union activities were under surveillance, the Respon-
dents violated Section 8(a)(1) of the Act.
6. By coercively informing its (their) employees that they
should terminate their employment with the Respondents if
they supported the Union, the Respondents violated Section
8(a)(1) of the Act.
7. By informing employees that wage increases previously
promised them were being placed on hold because the Union
filed a petition seeking to represent them, the Respondents
violated Section 8(a)(1) of the Act.
8. By discriminatorily issuing disciplinary coachings to the
following employees on or about the dates below because of
their support of and activities on behalf of the Union, the Re-
spondents violated Section 8(a)(3) and (1) of the Act:
Billie Smith May 16 and July 13, 2000
Robert Hasenfratz May 17 and August 24, 2000
Dea Lynn Keckler June 14, 2000
Cynthia A. Miller July 25, 2000
Christine Gallagher June 26, 2000
9. By the aforesaid conduct, the Respondents have engaged
in unfair labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
10. The Respondents have not violated the Act in any other
way, manner, or respect.
THE REMEDY
Having found that the Respondents have engaged in unfair
labor practices warranting a remedial order, I shall recommend
that they cease and desist from engaging in such conduct and
that they take certain affirmative action designed to effectuate
the policies of the Act and post an appropriate notice to their
employees.
It is recommended that the Respondents rescind the discipli-
nary coachings to employees Billie Smith, Robert Hasenfratz,
Dea Lynn Keckler, Cynthia Miller, and Christine Gallagher;
remove any reference to the disciplines of these aforestated
employees from all of the Respondents’ records; and make
them whole for any loss of earnings and benefits they may have
suffered as a result of the Respondent’s discrimination against
them, computed on a quarterly basis as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950); less interim earnings,
plus interest as computed in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]