Robert F. Kennedy Medical Center

National Labor Relations Board - Board Decisions

Dec 20, 2000

332 N.L.R.B. 1536 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1536
Robert F. Kennedy Medical Center, a subsidiary of
Catholic Healthcare West and Service Employ-
ees International Union, Local 399, AFL–CIO.
Cases 21–CA–33110 and 21–CA–33152
December 20, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On December 7, 1999, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
Respondent filed exceptions, a supporting brief, an an-
swering brief, and a reply brief. The Charging Party
filed cross-exceptions, an answering brief, and a reply
brief, and the General Counsel 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.
We agree that the General Counsel established prima
facie that the real reason for the discharge of the three
employees was the fact that, on September 5, 1997, they
made a concerted protest about a matter relating to their
employment. See Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982). In this regard, we rely, inter alia, on the fact
that the Respondent’s director, Jenkins, confronted two
of the employees on September 10 and said that she felt
“betrayed” by the protest. The discharge occurred on
September 12.
The Respondent has not shown that it would have dis-
charged them in any event for unprotected activity. In
this regard, we do not pass on the issue of whether the
employees’ use of Company stationery (to set forth their
protest) was beyond the bounds of Section 7.2 Even as-
suming arguendo that it was, the Respondent has not
shown that it would have fired them for that reason even
if the letter had not contained the protest. Indeed, when
Jenkins confronted the two employees on September 10,
she did not even mention the use of Company stationery.

1 The Respondent has 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.
2 In her decision, the judge concluded that the Respondent violated
Sec. 8(a)(1) of the Act by discharging three of its employees because
they wrote a letter on hospital stationery seeking assistance from staff
physicians in preventing their layoff. Member Liebman agrees with
this outcome, but would not analyze this case under Wright Line, supra.
See, e.g., Neff-Perkins Co., 315 NLRB 1229 fn. 2 (1994); Mast Adver-
tising & Publishing, 304 NLRB 819 (1991). The Wright Line analysis
is appropriately used in cases that turn on the employer’s motive. Here,
however, it is undisputed that the three employees were terminated
because of their writing a letter to the staff physicians. The Respondent
concedes that the appeal to the staff physicians was protected concerted
activity. Thus, the only issue is whether the use of the Respondent’s
stationery removed the activity from the Act’s protection. Member
Liebman agrees with the judge that using the Respondent’s stationery
was not so egregious as to deprive the employees of the Act’s protec-
tion. See Felix Industries, 331 NLRB No. 12 (2000).
We recognize that the Respondent’s handbook forbids
use of Company stationery for nonofficial purposes.
However, there is no showing that employees could be
discharged for such conduct. And, even if there was, that
is not the same as showing that employees would be dis-
charged for that conduct.
Finally, there is no showing that any recipients of the
letter reasonably believed that its contents reflected the
views of the Respondent.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Robert F. Kennedy Medical
Center, a subsidiary of Catholic Healthcare West, Haw-
thorne, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Julie B. Gutman, Esq., for the General Counsel.
Stephen P. Pepe, and Mary P. Donlevey, Esqs. (O’Melveny &
Myers), of Los Angeles, California, for the Respondent.
Andrew L. Strom, Esq., of Los Angeles, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge.
This case was tried in Los Angeles, California, on September
27 and 28, 1999. The charge in Case 21–CA–33110 (originally
Case 31–CA–23291) was filed by Service Employees Interna-
tional Union, Local 399, AFL–CIO (the Union), on March 27,
1998. The charge in Case 21–CA–33152 (originally Case 31–
CA–23266) was filed by the Union on March 11, 1998. The
consolidated amended complaint issued on July 15, 1998. At
issue is whether Robert F. Kennedy Medical Center, a subsidi-
ary of Catholic Healthcare West (Respondent) violated Section
8(a)(1) of the Act1 by discharging three of its employees be-
cause they wrote a letter on hospital stationery seeking assis-
tance from staff physicians in preventing their layoff. Further at
issue is whether Respondent created the impression that it was
spying on its employees’ union activities in violation of Section
8(a)(1) of the Act.
The parties were afforded full opportunity to appear, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to argue the merits of their respective positions. On
the entire record, including my observation of the demeanor of

1 As relevant to this proceeding, Sec. 8(a)(1) provides that it is an
unfair labor practice for an employer to interfere with, restrain, or co-
erce its employees in the exercise of their right guaranteed by Sec. 7 of
the Act to act together for their mutual aid and protection.
332 NLRB No. 153
ROBERT F. KENNEDY MEDICAL CENTER 1537

the witnesses,2 and after considering the briefs filed by all
counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is engaged in the operation of an
acute care hospital in Hawthorne, California. In operating the
hospital, Respondent annually purchases and receives goods
valued in excess of $50,000 directly from points outside the
State of California and annually derives gross revenues in ex-
cess of $500,000. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and a health care institution within
the meaning of Section 2(14) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Facts Relating to the Discharges
In August 19973 Respondent decided to outsource its tran-
scription department consisting of transcriptionists Laurie Neira
and Raymona Harvey and transcriptionist secretary Tonia Bab-
bitt. Neira, Harvey, and Babbitt were long-term employees with
good to excellent work records.
Transcriptionists Neira and Harvey discussed the decision to
outsource. Both believed that internal transcription offered
better patient care. Both were also concerned about being laid
off. Neira and Harvey voiced their concerns to one staff physi-
cian. Eventually, Neira and Harvey decided to appeal to the
staff physicians to prevent their layoff. Accordingly, on Friday,
September 5, Harvey typed a letter which she and Neira com-
posed. Babbitt joined them and asked to be included. When the
letter was completed, it was printed on Respondent’s stationery.
The three employees signed the letter, duplicated it, placed it in
envelopes, affixed labels, and distributed it.

The letter states,

Dear Doctor,

Are you aware that very soon the in-house Transcrip-
tion department will no longer be in-house? All transcrip-
tion will be contracted to an outside agency. The Tran-
scriptionists (Raymona [Harvey] and Laurie [Neira]) will
be laid-off and only Tonia [Babbitt], the Transcriptionist
Secretary, will remain here at Robert F. Kennedy Medical
Center for your assistance.
So, will you join us in saving our jobs so that we may
continue to provide you with the reliable and timely in-
house transcription that is so vital for patient care?
We would appreciate it if you would voice your opin-
ion to Administration on our behalf in the preservation of
your personalized dictation through the in-house Tran-

2 Credibility resolutions have been made based on a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
3 All dates hereafter are in 1997 unless otherwise referenced.
scription department here at Robert F. Kennedy
Medical Center.

Your Transcriptionist:

Laurie Neira, Transcriptionist
Raymona Harvey, Transcriptionist
Tonia Babbitt, Transcriptionist Secretary

There is no dispute that Respondent’s stationery was readily
available and routinely utilized by Neira, Harvey, and Babbitt
for official business. For instance, Neira and Harvey prepared
medical reports and letters for staff physicians. If the physician
requested it, the letters were printed on Respondent’s station-
ery. Medical reports were transmitted to physicians by the tran-
scriptionists utilizing Respondent’s stationery for the cover
letters. Occasionally the transcriptionists added personal notes
to the physicians on the cover letters. Babbitt printed the letters
transcribed by Neira and Harvey on Respondent’s stationery.
Neira, Harvey, and Babbitt knew that the stationery was for
official business.
Director of medical records, Mary Jo Jenkins, confronted
Neira and Harvey on Wednesday, September 10. Jenkins stated
that she felt personally betrayed. Jenkins did not mention use of
Respondent’s stationery as a factor in her disappointment.4
Respondent’s policies provide for immediate discharge in se-
rious cases. Lesser violations may result in a verbal or written
warning, suspension, or discharge. In assessing the appropri-
ateness of any discipline, Respondent considers the nature of
the offense and the employee’s work history. Director of Ancil-
lary Services Louis Gregario, in charge of human resources,
read the personnel files of Neira, Harvey, and Babbitt after
learning of their letter. He met with Jenkins, Director of Ad-
ministration Grant McArn, and Administrator and Chief Oper-
ating Officer Peter Aprato, to discuss the situation. Due to the
seriousness of unauthorized use of Respondent’s stationery and
the danger of lawsuits and sanctions from Medicare and Medi-
cal potentially resulting from unauthorized use of the station-
ery, they determined to discharge the authors of the letter.
On September 12, Jenkins terminated Neira, Harvey, and
Babbitt. Each was given the following termination notice:

You are being terminated due to inappropriate behav-
ior, specifically, per the employee handbook
“Official use of the hospital name, whether it be
through the use of hospital stationery or statements to the
public or press, is only allowed for official hospital
business. In all other instances, you must obtain proper
authorization from Administration.”
You used hospital stationery for personal use and did
not obtain prior approval.

Certainly, employees sometimes utilize hospital stationery as
the most readily available paper at hand, for instance, when
they need to make a note, share a recipe, or record a phone
number. However, there is no evidence that supervisors were
aware of such use and there is no evidence of any other em-
ployee utilization of Respondent’s stationery for other than
official business. The rule regarding use of Respondent’s sta-
tionery had never been enforced prior to these three discharges.
There is no evidence of any prior similar situation.
4 These facts were related by Neira and Harvey, whom I credit. Jen-
kins did not testify.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1538

B. Analytical Framework: Discharges
In Andrex Industries Corp.,5 the Board recently articulated
the following application of the General Counsel’s initial bur-
den pursuant to Wright Line:6

[T]o set forth a violation under Section 8(a)(3), the General
Counsel is required to show by a preponderance of the evi-
dence that animus against protected conduct was a motivating
factor in the employer’s conduct. Once this showing has been
made, the burden shifts to the employer to demonstrate that
the same action would have taken place even in the absence
of the protected conduct. To sustain his initial burden, the
General Counsel must show
(1) that the employee was engaged in protected activity,
(2) that the employer was aware of the activity, and (3)
that the activity was a substantial or motivating reason
for the employer’s action. Motive may be demonstrated
by circumstantial evidence as well as direct evidence
and is a factual issue which the expertise of the Board is
peculiarly suited to determine.
FPC Holdings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir.
1995), enfg. 314 NLRB 1169 (1994) (citations omitted).
Proof of the protected activity, employer knowledge of the
activity, and employer animus toward the activity supports an
inference that the employee’s protected conduct was a motivat-
ing factor in the employer’s action. The employer may then
rebut the General Counsel’s case by proving that animus played
no part in its actions or the employer may demonstrate that the
same personnel action would have taken place in any event.
C. Contentions Regarding the Discharges
Initially, counsel for the General Counsel notes that there is
no dispute that the employees engaged in concerted activity in
discussing the elimination of their transcription service and
their layoffs or transfers and determining to appeal to the staff
physicians for assistance. Counsel contends that the employees
did not lose the protection of the Act because their concerted
activity involved use of Respondent’s stationery. Counsel con-
tends that such protection is lost only when the employee’s
conduct is “so violent” or “of such character as to render [the
employee] unfit for further service.”7 Counsel asserts that sim-
ply because legitimate concerted activity is accompanied by
some “impropriety,” does not rob the activity of the Act’s pro-
tection. As to knowledge, counsel asserts that there is also no
dispute that Respondent was aware of the activity upon receipt
of the letter authored by the employees. Regarding animus,
counsel for the General Counsel relies on an inference of ani-
mus to be drawn from the timing of the discharges and, addi-
tionally, notes that Jenkins’ actions immediately after receipt of
5 328 NLRB 1279, 1281 (1999). Although the standard set forth in
Andrex Industries specifically relates to the 8(a)(3) allegation in that
case, the same standard applies in all cases turning on employer moti-
vation. Wright Line, supra, 251 NLRB at 1089. The standard has been
utilized in analyzing Sec. 8(a)(1) allegations of discharge. See, e.g.,
Taylor & Gaskin, Inc., 277 NLRB 563 fn. 2 (1985).
6 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
7 Counsel relies on Caterpillar, Inc., 321 NLRB 1178, 1180 (1996)
(vacated pursuant to settlement by order dated March 19, 1998); Wolk-
erstorfer Co., 305 NLRB 592 fn. 2 (1991); and Hawthorne Mazda, 251
NLRB 313, 316 (1980), enfd. mem. 659 F.2d 1089 (9th Cir. 1981).
the letter evidenced animus toward the employees’ actions and
not toward their use of Respondent’s stationery. Counsel also
notes that Gregorio testified that the employees would probably
have been disciplined whether they use hospital stationery or
plain paper because they failed to use Respondent’s internal
remedies before appealing to the staff physicians.
Counsel for the General Counsel asserts that Respondent has
not met its burden of establishing that the employees would
have been terminated absent their protected concerted activity.
Counsel notes that the prohibition against using Respondent’s
stationery is aimed at fraud, misrepresentation, and breach of
patient confidentiality. Because the alleged discriminatees did
not send the letter to the general public or the media, counsel
contends that there is no breach of the essence of the prohibi-
tion. Moreover, counsel notes that no other employees have
ever been disciplined for breach of the rule. Pointing to Re-
spondent’s disciplinary procedures, counsel asserts that the
penalty of termination was unduly harsh and constituted a de-
viation from the progressive discipline practices of Respondent.
Counsel further asserts that numerous cases of life threatening
offenses received verbal, first, second, and final warnings and
suspension while the alleged discriminatees were immediately
discharged with no investigation, although their personnel files
reflected long term employment with good to excellent work
records.
Like counsel for the General Counsel, counsel for the Charg-
ing Party asserts that the General Counsel has sustained the
initial burden of showing activity protected by the Act, knowl-
edge of the activity, and animus. Counsel for the Charging
Party asserts that Jenkins’ statement of betrayal by the alleged
discriminatees establishes animus. Counsel for the Charging
Party asserts that Respondent has failed to show that it would
have fired the alleged discriminatees for unauthorized use of its
stationery regardless of the content of the letter. For instance,
counsel contends that Respondent would need to show that
unauthorized use of the stationery to invite staff physicians to a
surprise birthday party for Aprato would also have resulted in
discharge. Counsel asserts that any thoughtful application of the
rule would take the content of a letter written on Respondent’s
stationery and the intended audience for the letter into account.
Counsel for the Charging Party notes that many other em-
ployees engaged in far worse offenses, some of them poten-
tially life threatening, and these employees were not immedi-
ately discharged. Moreover, counsel notes that no investigation
was made before the discharges and that Aprato uncharacteris-
tically chose to be included in the decision. These factors also
point to an unlawful motive to discharge.
Counsel for Respondent argues that the General Counsel did
not sustain the initial burden to show protected concerted activ-
ity, employer knowledge of the activity, and that the protected
activity was a motivating factor in the decision to terminate the
employees. For instance, counsel asserts, relying principally on
Washington Adventist Hospital, 291 NLRB 95, 102 (1988), that
because the employees did not have authorization to utilize
Respondent’s stationery, the protection of the Act was lost as a
result of the manner in which the employees chose to commu-
nicate their message. Moreover, even if the employees were
engaged in protected, concerted activity, Respondent contends
that the content of their letter played absolutely no part in the
decision to terminate.
Assuming the General Counsel has sustained its initial bur-
den, counsel for Respondent avers that Respondent produced
ROBERT F. KENNEDY MEDICAL CENTER 1539

substantial uncontroverted evidence that the employees would
have been terminated in any event. Counsel stresses that the
employee handbook makes clear that use of the hospital name
is only allowed for official hospital business. Counsel avers that
Respondent has no progressive disciplinary policy. Rather, the
handbook unequivocally notes that employees are at-will and
may be terminated any time with or without cause. Counsel
asserts that the handbook merely identifies potential reasons for
immediate termination. The fact that violation of the rule
against use of the hospital name is not mentioned as a cause for
immediate discharge is not fatal because the handbook lists
violations by way of example only. Counsel notes that unau-
thorized use of hospital stationery is tantamount to fraud be-
cause the communication appears to be official when in fact it
is not. Counsel further notes that use of hospital stationery in an
unauthorized manner could subject Respondent to lawsuits or
sanctions under Medicare or Medical. For these reasons, coun-
sel asserts that the employees would have been discharged in
any event.
D. Analysis Regarding the Discharges
I find the initial burden to show the employees’ activity was
concerted and protected has been sustained. There is no dispute
that the employees’ actions were concerted and that Respon-
dent knew the employees were acting together for their mutual
aid or protection. Moreover, I find that the employees’ actions
were protected by the Act. Respondent’s arguments regarding
loss of protection due to utilization of official stationery are
unavailing. It is only in extreme circumstances that concerted
activity loses the protection of the Act. Such circumstances
include public disparagement of the employer’s product, vio-
lence, or conduct that contravenes the basic policies of the Act.8
I find that use of Respondent’s stationery is not such an egre-
gious circumstance as to rob the employees of the Act’s protec-
tion.9 Finally, contrary to Respondent’s assertion that Jenkins’
statement of dismay that the employees betrayed her is too
slender a reed upon which to find animus, I find that this state-
ment alone is sufficient to support the requisite animus finding.
Accordingly, I infer that unlawful motivation was a factor in
the decision to terminate the employees.
Turning to Respondent’s contention that the employees
would have been fired in any event, I conclude that this has not
been shown. Although Respondent disputes that its disciplinary
system is “progressive,” there is no dispute that discipline other
than discharge may be imposed depending on the severity of
the infraction. Respondent has utilized various degrees of disci-
pline for seemingly serious infractions of its patient care poli-
cies. Such thoughtful, step by step application of disciplinary
procedures was not, however, utilized in the case of these em-
ployees.

8 See, e.g., YMCA of Pikes Peak Region, 291 NLRB 998 (1988),
enfd. 914 F.2d 1442 (10th Cir. 1990), cert. denied 500 U.S. 904 (1991),
relying on NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939);
NLRB v. Sands Mfg. Co., 306 U.S. 332 (1939).
9 See, e.g., Timekeeping Systems, Inc., 323 NLRB 244, 248 (1997)
(employee did not lose protection of the Act by utilizing office e-mail
system), relied upon by counsel for the General Counsel. Cf. Washing-
ton Adventist Hospital, 291 NLRB 95 fn. 1, 102 (1988) (employee who
used e-mail system to supplant messages at more than 100 computer
terminals in acute care hospital, thus, interrupting transmission regard-
ing patient care not engaged in protected activity).
There is also no dispute that the employees in question
here were long term employees who had excellent or good
employment histories. Neira was a 16-year employee whose
personnel file showed absolutely no prior discipline. Her per-
formance evaluations were outstanding. Harvey had worked for
Respondent for 7 years. She had excellent performance ap-
praisals and no prior record of discipline. Babbitt was an 11-
year employee who had received one verbal warning. She had
very good performance evaluations.
Respondent’s reliance on its absolute prohibition of utilizing
official stationery for unofficial purposes as the reason for dis-
charge is belied by the policy factors supporting the prohibi-
tion. The rule legitimately seeks to prohibit fraud, lawsuits due
to unauthorized statements, leak of confidential patient infor-
mation, or sanctions from Medicare or Medical. None of these
dangers was posed by the letter authored by Neira, Harvey, and
Babbitt. The letter was distributed only to staff physicians. It
was not sent to the press or otherwise publicized.
Accordingly, I find that the employees would not have been
discharged in any event. Respondent violated Section 8(a)(1) of
the Act by discharging Neira, Harvey, and Babbitt because of
their protected, concerted activities.
E. Facts Relating to Creating an Impression of Surveillance
In a newsletter distributed in March 1998 to all employees
with their paychecks Aprato stated:

I promised to keep you informed regarding union ac-
tivity. SEIU Local 399 continues to hold meetings and
visit with our employees at their homes. The union has
asked some of our employees to distribute an Opinion
Survey. We remind the employees that they must perform
these activities on their own time. This rules applies to
both the employee who is performing the activity, and the
employee that is being solicited. If you have questions re-
garding this rule, please refer to our Employee Handbook
section III, page 7.

At a later point, Aprato’s comments continue:

Question what [the Union] tell[s] you. Do not accept their
word as fact. The only way you can judge for yourself is to
get answers to your questions. Look at signed union contracts
and see for yourself what the union has actually been able to
secure in writing. Do they address your concerns in these con-
tracts? We encourage you to ask questions and seek answers.
Interestingly, the union does not want you to ask questions or
get answers. In fact, we were told that at one union meeting,
the employees who asked questions were quietly requested,
by the union, to leave the meeting. Is this how they plan to
represent you? We will continue to keep you informed as this
issue progresses. In the mean time, please feel free to ask
questions.
F. Authority Regarding Creating an Impression of Surveillance
When an employer creates the impression among its em-
ployees that it is watching or spying on their union activities,
employees’ future union activities, their future exercise of Sec-
tion 7 rights, tend to be inhibited.10 As the Board has noted,11

10 See, e.g., Link Mfg., 281 NLRB 294 (1986), enfd. mem. 840 F.2d
17 (6th Cir. 1988), cert. denied 488 U.S. 854 (1988).
11 Flexsteel Industries, 311 NLRB 257 (1993); see also Tres Estrel-
las de Oro, 329 NLRB 50, 51 (1999).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1540

The idea behind finding “an impression of surveillance” as a
violation of Section 8(a)(1) of the Act 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.

Accordingly, the Board routinely finds that creation of the
impression of surveillance violates Section 8(a)(1) of the Act. If
the employer’s statements would reasonably cause employees
to believe that their activities have been under surveillance, the
impression of surveillance is created.12
G. Contentions Regarding Creating an Impression
of Surveillance
Counsel for the General Counsel and the Charging Party ar-
gue that the statements by Aprato suggested to employees that
he was closely monitoring the degree and extent of their orga-
nizing efforts and activities. They note that Aprato states that he
promised to keep employees informed regarding union activity
and follows this with information obtained: the Union contin-
ues to hold meetings and continues to visit employees at their
homes. Aprato informs employees that at one union meeting,
employees who asked questions were requested to leave.
Aprato concludes that he will continue to keep employees in-
formed. Counsel argue that these statements clearly suggest to a
reasonable employee that Respondent is either spying on union
meetings or soliciting and receiving information about union
meetings.
Counsel for Respondent argues that no employee would rea-
sonably assume that their union activities were under surveil-
lance based on the statements of Aprato. Counsel notes that the
Union openly publicized their meetings. Counsel also notes that
Aprato’s statement does not convey any details of union activ-
ity or topics covered at the union meeting and does not identify
who or how many individuals attended the meeting. Given
these circumstances, counsel argues that there is not an impres-
sion of surveillance. Similarly, counsel argues that merely re-
porting what one has heard about union activities does not cre-
ate an impression of surveillance.13 Finally, counsel notes that
Respondent consistently apprises its employees of work-related
information and the promise to keep employees informed re-
garding further union activity was no more than Respondent’s
normal practice.
H. Analysis Regarding Creating an Impression of Surveillance
Aprato’s words, reasonably understood, convey a clear mes-
sage that he is monitoring union activity, has learned what the
current union activities are, and will continue to monitor these
activities and keep employees informed. Although Respondent
relies on the openness of union activity at the facility, there is
no showing that the union meetings were open meetings held in
full view or with participation of Respondent. Moreover, the
opinion surveys and meetings in employees homes are certainly
conducted away from Respondent’s facility. Accordingly, I find

12 United Charter Service, 306 NLRB 150 (1992); Yenkin-Majestic
Paint Corp., 321 NLRB 387 (1996), enfd. 124 F.3d 202 (6th Cir.
1997).
13 Counsel relies on Clark Equipment Co., 278 NLRB 498, 503
(1986); Silver State Disposal Co., 271 NLRB 486 (1984); South Shore
Hospital, 229 NLRB 363 (1977), enfd. in relevant part 571 F.2d 677
(1st Cir. 1978); and G.C. Murphy Co., 216 NLRB 785, 792 (1975).
that employees would reasonably conclude that their union
activities were being monitored.
CONCLUSIONS OF LAW
1. By discharging Laurie Neira, Tonia Babbitt, and Raymona
Harvey because they engaged in concerted activities with each
other and with other employees for the purposes of mutual aid
and protection by sending letters to staff physicians soliciting
their support regarding the planned layoff of transcriptions
department employees, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
2. By creating an impression among its employees that their
union activities were under surveillance, Respondent violated
Section 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, having discriminatorily
discharged employees, Respondent must offer them reinstate-
ment and make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of discharge
to date of proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The Respondent, Robert F. Kennedy Medical Center, a sub-
sidiary of Catholic Healthcare West, Hawthorne, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee because they engaged in concerted activities with each
other and with other employees for the purposes of mutual aid
and protection.
(b) Creating an impression among its employees that their
union activities were under surveillance.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Laurie
Neira, Tonia Babbitt, and Raymona Harvey full reinstatement
to their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(b) Make Laurie Neira, Tonia Babbitt, and Raymona Harvey
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set
forth in the remedy section of the decision.
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ROBERT F. KENNEDY MEDICAL CENTER 1541

(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges, and within 3
days thereafter notify the employees in writing that this has
been done and that the discharges will not be used against them
in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Hawthorne, California, copies of the attached notice
marked “Appendix.”15 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since September 12, 1997.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

15 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to post
and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT discharge or otherwise discriminate against
any of you for engaging in concerted activities with each other
and with other employees for the purposes of mutual aid and
protection.
WE WILL NOT create an impression among you that your
activities on behalf of Service Employees International Union,
Local 399, AFL–CIO, are under surveillance.
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 the Board’s Or-
der, offer Laurie Neira, Tonia Babbitt, and Raymona Harvey
full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL make Laurie Neira, Tonia Babbitt, and Raymona
Harvey whole for any loss or earnings and other benefits result-
ing from their discharge, less any net interim earnings, plus
interest.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful dis-
charges of Laurie Neira, Tonia Babbitt, and Raymona Harvey,
and WE WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the discharges will not
be used against them in any way.
ROBERT F. KENNEDY MEDICAL
CENTER, A SUBSIDIARY OF CATHOLIC
HEALTHCARE WEST