The Fremont-Rideout Health Group d/b/a Fremont Medical Center and Rideout Memorial Hospital

National Labor Relations Board - Board Decisions

Dec 30, 2011

357 N.L.R.B. 1899 (N.L.R.B. 2011)

FREMONT MEDICAL CENTER
357 NLRB No. 158
1899
The Fremont-Rideout Health Group d/b/a Fremont
Medical Center and Rideout Memorial Hospital

The Fremont-Rideout Health Group d/b/a Fremont-
Rideout Home Health and California Nurses As-
sociation, AFL–CIO. Cases 20–CA–033521, 20–
CA–033649, 20–CA–033801, and 20–CA–034017
December 30, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On January 29, 2009, Administrative Law Judge John
J. McCarrick issued the attached decision. The General
Counsel, the Respondent, and the Charging Party each
filed exceptions, supporting briefs, and answering briefs,
and the Respondent and the Charging Party filed reply
briefs.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions only to the extent consistent with
this Decision and Order.3
Background
The Respondent operates two acute care facilities:
Fremont Medical Center (Fremont) and Rideout Memo-
rial Hospital (Rideout). Since September 20, 2006, the
California Nurses Association (the Union) has been the

1 The Charging Party also filed a motion to strike certain portions of
the Respondent’s answering brief, and the Respondent filed an opposi-
tion. In view of our disposition of this case, we find it unnecessary to
pass on the motion.
2 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
There is no exception to the judge’s recommended dismissal of the
cafeteria surveillance allegation. The parties also do not except to the
judge’s findings of violations pertaining to the interrogation and threat
involving RN Hau Dao, the refusal to allow Dao to work her scheduled
shifts, the surveillance of union activity by a security guard, and the
installation of surveillance cameras at the Respondent’s facilities.
3 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the violations found. In addition, in accord-
ance with our decision in Kentucky River Medical Center, 356 NLRB 6
(2010), enf. denied on other grounds sub nom. Jackson Hospital Corp.
v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011), we shall modify the judge’s
recommended remedy by requiring that backpay shall be paid with
interest compounded on a daily basis. Finally, we shall modify the
judge’s recommended Order to provide for the posting of the notice in
accordance with J. Picini Flooring, 356 NLRB 11 (2010). For the
reasons stated in his dissenting opinion in J. Picini Flooring, Member
Hayes would not require electronic distribution of the notice.
certified bargaining representative of approximately 450
registered nurses (RNs) in a single Fremont-Rideout bar-
gaining unit. In December 2006, the Respondent and the
Union began contract negotiations in the Fremont-
Rideout unit, but, as of the date of the unfair labor prac-
tice hearing, they had not reached agreement on a con-
tract.
The complaint alleged as unlawful a number of the Re-
spondent’s statements and actions between April 2007
and May 2008.4 The judge recommended dismissal of
allegations that certain statements made to RNs Kathe-
rine Zubal and Roxann Moritz violated Section 8(a)(1);
that discipline issued to RNs Heather Avalos and Tami
Clark violated Section 8(a)(3) and (1); and that the Re-
spondent’s repromulgation and enforcement of a no-
access policy directed at nonemployees violated Section
8(a)(1). We reverse the judge and find those violations.5
The judge further found that the Respondent’s re-
assignment of staff scheduling duties away from Rideout
Intensive Care Unit (ICU) RNs Paula Oakes and Susan
Osher constituted an unlawful removal of bargaining unit
work in violation of Section 8(a)(5) and (1). We agree
with the judge.6 The judge found other violations of Sec-
tion 8(a)(5) and (1) based on (1) a June 6 memo from
Sue Chambers, the director of women and children’s
services; (2) a January 8 email from Postanesthesia Care
Unit Manager Sharon Hoey; and (3) the Respondent’s
March 10 refusal to supply certain information to the
Union. As described below, we reverse each of those
findings and dismiss those complaint allegations.

4 All dates are between April 2007 and May 2008, unless noted oth-
erwise.
5 We agree, however, with the judge that the Rideout ICU charge
nurse RNs—including Oakes, Osher, Avalos, and Clark—are statutory
employees, not supervisors. Rideout ICU RNs serve as charge nurses
less than 50 percent of the time during their shifts. In that role, they
assign already-scheduled RNs to patients on their respective shifts. The
judge found the charge nurses did not exercise independent judgment in
assigning nurses to patients. He pointed out that the assignments were
based on such factors as patient ratios, acuity numbers, proximity of
patient beds, and continuity of care—none of which establish inde-
pendent judgment. Instead, these assignments were routine and clerical
in nature. We also agree with the judge that the preparation of monthly
staff schedules by Oakes and Osher does not itself constitute the exer-
cise of independent judgment as defined in Oakwood Healthcare, Inc.,
348 NLRB 686 (2006).
6 Because the judge failed to include a make-whole provision for any
loss of pay suffered by Oakes or Osher as a result of the loss of their
scheduling duties, we have modified the judge’s recommended Order
accordingly.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1900
The 8(a)(1) and (3) Allegations
1. Instruction to limit union talk to the
breakroom on breaktime
The Respondent has a solicitation/distribution (S/D)
policy that forbids employees from “solicit[ing] . . . for
any purpose, in immediate patient care areas, such as
patients’ rooms, and places where patients receive treat-
ment, such as therapy areas, or in any other area that
would cause disruption of health care operations or dis-
turbance of patients, such as corridors in patient treat-
ment areas and rooms used by patients for consultations
with physicians or meetings with families or friends.”
On its face, the policy does not restrict mere discussion
of unions, i.e., union “talk” that does not include a “solic-
itation.” The Respondent does not have a rule barring
discussion of nonwork subjects in any areas of the hospi-
tal, and employees are permitted to discuss nonwork sub-
jects anywhere on the premises.
Fremont RN Katherine Zubal testified that, in April,
her supervisor, Karen Bezuidenhout, told her that she had
heard that Zubal was talking to coworkers about the Un-
ion. Bezuidenhout added that she preferred that Zubal
talk about the Union while on her break and in the break
room. In response, Zubal said that the employees had
been discussing the Union for some time.7
The complaint alleges that, “by telling employees they
were required to go to non-work areas during non-work
times to discuss the Union,” Bezuidenhout “selectively
and disparately” enforced the S/D policy. The judge
dismissed the allegation. In doing so, he found that Zu-
bal had engaged in “discussions with fellow employees
about the union.” Significantly, the judge never found
that Zubal had actually engaged in union solicitation at
work or that Bezuidenhout had approached Zubal be-
cause she believed that Zubal had done so. Nevertheless,
the judge rejected, on the basis that it was not pled or
litigated, the General Counsel’s contention that Zubal’s
conduct was “discussion” rather than “solicitation” and
therefore was not subject to the S/D policy. The judge
then concluded that the evidence failed to show discrimi-
natory enforcement of the S/D policy, because the Gen-
eral Counsel failed to show under Register-Guard8 that
the Respondent permitted solicitations that were compa-
rable to Zubal’s union discussions. We reverse.
To begin, contrary to the judge, we find that the Gen-
eral Counsel’s contention that Zubal was engaged in

7 The judge credited Zubal’s testimony. The Respondent attempted
to attack her testimony by relying on another witness’ inconsistent and
uncorroborated testimony, which the judge implicitly discredited.
Bezuidenhout did not testify.
8 351 NLRB 1110 (2007), enfd. in part sub nom. Guard Publishing
Co. v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).
“talk” rather than “solicitation” was closely related to an
express allegation in the complaint and fully litigated at
the hearing. Paragraph 7(a) of the complaint, which al-
leged that Bezuidenhout violated the Act by “telling em-
ployees that they were required to go to non-work areas
during non-work times to discuss the Union,” was suffi-
cient notice to the Respondent that Bezuidenhout’s
comments were at issue. See Pergament United Sales,
296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir.
1990). We further find that Bezuidenhout’s directive to
Zubal to talk about the Union on her break and in the
break room unlawfully restricted protected union activi-
ty.9 In essence, the Respondent extended its no-
solicitation policy to an action (discussion of the Union)
that the policy does not cover. Bezuidenhout’s directive
therefore violated the Act without regard to whether the
Respondent permitted similar “solicitations” under Reg-
ister-Guard, supra.
2. Instruction to stop all union activities
The Respondent’s S/D policy also prohibits “dis-
tribut[ion of] literature at any time, for any purpose in
working areas. Working areas are all areas in the hospi-
tal, except employee lounges and parking areas.” On
August 29, Director Sue Chambers spoke with RN
Roxann Moritz in a hallway of Fremont’s postpartum
department. Moritz had been giving union literature to
another nurse, and Chambers told her that she could not
do so. When Moritz replied that she could, Chambers
repeated that she could not and then added that “she
[Chambers] had been told to stop all union activities.”
The judge, again applying Register-Guard and finding no
evidence that the Respondent had allowed “like solicita-
tion or distribution on behalf of other organizations,”
dismissed the allegation that Chambers’ conduct violated
Section 8(a)(1).
We reverse. Chambers’ statement—that she had been
told to stop all union activities—not only exceeded the
scope of the Respondent’s S/D policy but also, irrespec-
tive of that policy, constituted an unlawfully broad re-
striction on protected union activity in the workplace.10

9 See Powellton Coal Co., 354 NLRB 419, 423–424 (2009), incorpo-
rated by reference in 355 NLRB 407 (2010) (employer unlawfully
prohibited employees from engaging in conversations about the union);
Wal-Mart Stores, 340 NLRB 637, 639 (2003), enfd. in relevant part
400 F.3d 1093 (8th Cir. 2005) (“‘[S]olicitation’ for a union is not the
same thing as talking about a union or a union meeting or whether a
union is good or bad.”) (emphasis in original) (quoting W. W. Grainger,
Inc., 229 NLRB 161, 166 (1977), enfd. 582 F.2d 1118 (7th Cir. 1978)).
10 See Santa Maria El Mirador, 340 NLRB 715, 718 (2003) (“this
kind of activity could not take place on [the employer’s] property”);
Waste Management of Palm Beach, 329 NLRB 198, 199–200 (1999)
(“you can’t do this kind of thing out here”).
FREMONT MEDICAL CENTER

1901
Accordingly, the credited testimony establishes a viola-
tion of Section 8(a)(1) without regard to whether the Re-
spondent had allowed solicitation or distribution on be-
half of other organizations.
3. Discipline of RNs Avalos and Clark
Heather Avalos and Tami Clark worked as RNs in
Rideout’s ICU department. They were known union
supporters. On June 8, Director of Nursing Operations
Steve Frost issued discipline to Avalos and Clark based
on misconduct allegedly committed by Avalos on June 5
and Clark on June 7.11 The essentially identical warnings
stated in relevant part:

It has been reported to management that Heather Ava-
los, on June 5, 2007 [or Tami Clark, on June 7, 2007],
has been observed and documented for conducting per-
sonal business by soliciting and passing out infor-
mation and materials and speaking to staff members
during working hours in patient areas of Rideout Hos-
pital. Some employees reported your words and ac-
tions as threatening and intimidating and [this] must
never occur again.

This consultation is to provide you a warning that man-
agement will not tolerate the distribution of any solici-
tation materials or related discussion with any employ-
ee, patient or visitor during work time in work areas of
any facility of [the Respondent]. Your actions cause a
distraction from the primary purpose of Nurse support
and dissen[s]ion between staff that undermines collabo-
ration and a positive reaffirming work environment for
all employees and patients.

The warnings further asserted that Avalos and Clark had
violated, inter alia, the Respondent’s S/D policy and rules 8
and 11 (prohibiting “[d]iscourteous treatment of the public
or other employees” and “[u]se of abusive or provocative
language, fighting, agitating a fight, or attempting bodily
injury on the [Respondent’s] premises”).
The warnings gave no other factual details about the
alleged incidents. Avalos testified without contradiction
that Frost told her that he issued the warning “because

Like Bezuidenhout’s remark to Zubal, we find that Chambers’ re-
mark was closely related to a specific allegation in the complaint and
that the matter was fully litigated at the hearing. The allegation in par.
7(c) that Chambers “inform[ed] employees that they could not . . .
engage in any discussions about the Union” was sufficient notice to the
Respondent that Chambers’ remark was at issue. See Pergament, supra
at 334. The Respondent’s counsel called Chambers to testify about the
incident and questioned her thoroughly about whether she said that she
had been directed to “stop all union activity.” The judge discredited
Chambers’ denial of the remark.
11 Neither Avalos nor Clark had previously been disciplined during
their respective employment of 24 years and 11 years.
we were threatening nurses and intimidating nurses, and
threatened bodily harm . . . [and] discourteous treatment
of employees and the public.” Avalos denied engaging
in such conduct. Clark testified, also without contradic-
tion, that when she asked Frost whether he thought she
had really done this, he replied, “[I]t’s not what you do,
[it’s] how people perceive you.” In his discussions with
Avalos and Clark, Frost never identified a complainant,
and the Respondent did not call any witnesses at the
hearing to supply a factual basis for the warnings.
After the warnings were issued, Union Representative
Glen Sharp contacted Teri Smith, the Respondent’s ad-
ministrative director of human resources and labor rela-
tions. Smith temporarily withdrew the warnings while
she investigated the matter. About 2 weeks later, by
identical memos to Avalos and Clark, Smith permanently
withdrew the warnings. This rescission memo, effective
June 20, stated in pertinent part:

While the [S/D] policy represents what the Hospital be-
lieves to be common sense, and properly recognizes the
environment in which we work and the best interests of
the patients we serve, we acknowledge that in the past,
enforcement of that policy has been lax, thus the action
[i.e., the warnings] was not appropriate in these circum-
stances.

While we certainly would prefer that all of our employ-
ees would abide by the policy, this is to advise that, un-
til such time as actions may be taken to enforce the pol-
icy in a consistent manner, you have the same right to
solicit and distribute for the cause you have chosen, i.e.,
support of the union, as does any employee to solicit
and distribute literature for other causes.

The General Counsel alleged that the warnings violat-
ed Section 8(a)(1) and (3) of the Act. The judge dis-
missed both allegations. Regarding Section 8(a)(1), he
found, applying Register-Guard, supra, that the General
Counsel had failed to establish discrimination with re-
spect to “like solicitation or distribution on behalf of oth-
er organizations.” Regarding Section 8(a)(3), the judge
found that the General Counsel had not met its burden to
show that union activity was a motivating factor in the
discipline. The judge found “no evidence of antiunion
animus” because, in his opinion, the Respondent had
applied a facially lawful S/D policy in a “nondiscrimina-
tory manner.”12

12 The Respondent does not contend that the rescission letter met the
requirements of Passavant Memorial Area Hospital, 237 NLRB 138,
138–139 (1978), for repudiating an unfair labor practice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1902
The General Counsel and the Charging Party contend
that the judge erred in failing to find animus. The Charg-
ing Party also argues, inter alia, that the Respondent did
not meet its Wright Line burden,13 because it admitted to
lax enforcement of its S/D policy and because a high-
level human resources director rescinded the warnings,
asserting that the disciplinary action “was not appropriate
in these circumstances.” We find merit in these excep-
tions, and we therefore reverse the judge and find that the
warnings violated Section 8(a)(3) and (1) of the Act.
Under Wright Line, a violation of Section 8(a)(3) is es-
tablished here if the General Counsel showed that the
employees’ union activity was a motivating factor in the
discipline, unless the Respondent proved, as an affirma-
tive defense, that it would have issued the discipline even
in the absence of their union activity. See Bruce Packing
Co., 357 NLRB No. 93, slip op. at 3 (2011). To establish
its affirmative defense, the Respondent “cannot simply
present a legitimate reason for its action but must per-
suade by a preponderance of the evidence that the same
action would have taken place even in the absence of the
protected activity.” Id. (quoting W. F. Bolin Co., 311
NLRB 1118, 1119 (1993), enfd. mem. 99 F.3d 1139 (6th
Cir. 1996)).
The General Counsel’s initial burden requires a show-
ing that (1) the employee was engaged in union activity;
(2) the employer had knowledge of that activity; and (3)
the employer bore animus toward union activity. See,
e.g., Camaco Lorain Mfg. Plant, 356 NLRB 1182, 1185
(2011). We find that the General Counsel carried this
burden. It is undisputed that Avalos and Clark engaged
in union activity and were known to the Respondent to
be union supporters. The Respondent’s animus is
demonstrated by the multiple other violations found
herein.14

13 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert
denied 455 U.S. 989 (1982).
14 These violations include the coercive interrogation of an employee
regarding her intent to participate in a strike, a threat to retaliate against
the same employee if she chose to participate, surveillance of union
activity, a discriminatory schedule change, and the coercive statements
made to employees Zubal and Moritz (discussed above). Frost’s state-
ment to Clark that “it’s not what you do, [it’s] how people perceive
you,” further suggests that the alleged rule violations were not the true
motive for the discipline. When the asserted reason for discipline fails
to withstand scrutiny, the Board may infer that there is another rea-
son—an unlawful one—for the discipline. See, e.g., Amber Foods,
Inc., 338 NLRB 712, 715 (2002).
We disagree with our colleague’s contention that Frost’s statement
may indicate a reasonable belief by management that Avalos and Clark
engaged in the conduct alleged in the warnings. To the contrary, the
statement suggests that even Frost, who issued the discipline, did not
believe the alleged conduct had occurred. Moreover, we fail to see any
basis on which the judge could find a reasonable belief if we were to
remand the case to him, as our colleague proposes. No management
We further find that the Respondent failed to prove
that it would have disciplined Avalos and Clark even
absent their union activity. With regard to Avalos’ and
Clark’s alleged intimidation and harassment of other
employees, the Respondent failed to introduce any evi-
dence supporting a reasonable belief that such conduct
occurred. With regard to their distribution of literature,
although the record is not entirely clear, it appears that
Avalos and Clark may have distributed at the nurses’
station—an admitted work area—thereby violating the
S/D policy. But the Respondent cannot claim that it
would have disciplined them for doing so even absent
their union activity, because the Respondent conceded in
its letter rescinding the discipline that it had not consist-
ently enforced the S/D policy and that, until it did so,
Avalos and Clark had “the same right to solicit and dis-
tribute for . . . [the Union] as does any employee to solic-
it and distribute literature for other causes.” This conces-
sion obviates the need to consider, under Register-
Guard, whether the Respondent’s other instances of non-
enforcement of the policy were comparable to union ac-
tivity.15 Accordingly, we reverse the judge and find that
the warnings to Avalos and Clark violated Section
8(a)(3) and (1).16
4. Repromulgation and enforcement of
access policy
Since 1985, the Respondent has maintained a written
policy forbidding solicitation and the distribution of lit-
erature on company property at any time for any purpose
by persons not employed by the Respondent. In practice,
however, the Respondent has not always enforced that
policy. In fact, during the period January through Au-
gust 2007, the Respondent routinely allowed union rep-
resentatives unrestricted access to its property to conduct
union business. Union Representatives Glen Sharp and

representative testified about the warnings, nor did the unnamed em-
ployees who (according to the warning letters) complained to manage-
ment about Avalos’ and Clark’s activities.
15 In addition to the concession in the letter, we note that there is no
indication in the S/D policy or elsewhere in the record that the Re-
spondent ever attempted to draw a distinction between solicitation and
distribution for unions and the types of solicitation and distribution it
had routinely permitted. Therefore, any contention that Avalos’ and
Clark’s union activity was not comparable to the activity the Respond-
ent had permitted must fail, as it would be a “post hoc invention.” See
Guard Publishing v. NLRB, 571 F.3d 53, 60 (D.C. Cir. 2009) (the
Board erred in holding that the employer could lawfully prohibit solici-
tations on behalf of an organization while allowing personal solicita-
tions, because the solicitation rule made no such distinction and the
employer never relied on such a distinction until after the complaint
was filed).
16 We find it unnecessary to decide whether the warnings inde-
pendently violated Sec. 8(a)(1), as this additional violation would not
materially affect the remedy.
FREMONT MEDICAL CENTER

1903
Dan Lawson, who were not employees of the Respond-
ent, regularly visited nurses in the cafeteria, in break
rooms, and at nurses’ stations to talk about the Union and
distribute union literature. Sharp and Lawson testified
that, on those occasions, various nursing supervisors saw
them, but neither the supervisors nor any other agent of
the Respondent ever told them that they could not enter
or remain at those locations.17
In December 2006, the Union and the Respondent be-
gan negotiations for an initial collective-bargaining
agreement. On August 20, 2007, the parties had yet not
reached an agreement, and the Union gave the Respond-
ent notice of its intent to strike for 24 hours beginning on
August 31. The strike took place as planned, and a se-
cond strike occurred on an unspecified date in October.
Meanwhile, the Respondent’s conduct with respect to
union access changed. Sometime in August, Fremont’s
director of nursing called security and asked that Union
Representatives Sharp and Lawson be removed from the
break room in Fremont’s ICU.18 On September 28, secu-
rity guards working for the Respondent approached
Sharp and told him to leave Rideout’s ICU break room.
In early October, a supervisor told Sharp that he had to
leave a hallway outside a visitors’ waiting room at
Fremont. On October 9, the director of nursing told
Lawson that he was not allowed near a Rideout nurses’
station. Sometime in October, a security guard working
for the Respondent engaged in unlawful surveillance of
Lawson in Fremont’s public areas, and then followed
Lawson outside the building to a car parked several
blocks away. In mid-October, Stephen Booth, the Re-
spondent’s labor relations manager, sent a memo to em-
ployees stating that union representatives may not “go to
work areas or to patient care areas except for limited
purposes, and even then they must have prior authoriza-
tion.” The memo was followed by a letter from the Re-
spondent’s counsel to the Union, affirming Booth’s re-
strictions and notifying the Union that the Respondent
was imposing several additional requirements on the
Union to gain access at Fremont-Rideout, including “an
advance written request, . . . the name of the person for
whom access is requested, the specific locations to be
accessed, and the specific purpose(s) of the requested
access.”

17 The judge credited the testimony of Sharp and Lawson and implic-
itly rejected the contrary testimony of the Respondent’s witnesses, who
claimed not to have known about the union representatives’ many visits
during the first half of 2007.
18 The judge found that this incident occurred in early August, but
the timing is unclear from the testimony. Fremont’s director of nursing
testified that the incident may have occurred “possibly three to four
weeks” before the August 31 strike, but she conceded that she was “not
good at dates.”
The General Counsel and the Union contend that the
Respondent began enforcing the access policy in retalia-
tion for the Union’s increased efforts to obtain a collec-
tive-bargaining agreement, which were protected by the
Act. The judge, citing Register-Guard, found that even
if that was so, there would be no violation unless the
General Counsel could prove that “the policy was en-
forced in a disparate fashion in like circumstances.”
Finding insufficient evidence of disparate treatment, the
judge dismissed the allegation.
We find it unnecessary to reach the judge’s application
of Register-Guard, because we find that the enforcement
of the access policy was an unlawful attempt to retaliate
against employees’ stepped-up union activity leading up
to and following the August strike. The Board has long
held that an otherwise valid employer rule violates the
Act when it is promulgated to interfere with the employ-
ees’ right to self-organization.19 It is similarly unlawful,
as the Respondent concedes, for an employer to reprom-
ulgate a rule that was not previously enforced in retalia-
tion for employees’ union or other protected Section 7
activity.20
We find that the record warrants such a finding. As
shown, between August and October, the Respondent
more strictly enforced its access policy and imposed sev-
eral new requirements for the Union to obtain access.
Although the record indicates that one instance of en-
forcement of the policy may have occurred in early Au-
gust, the Respondent did not begin consistently enforcing
the policy until late September, when security guards
ordered Sharp to leave a break room at Rideout. In short,
the Respondent’s increased enforcement efforts coincid-
ed with the strike and other union-sponsored activity at
Fremont-Rideout. The Respondent has failed to provide
a legitimate explanation for the timing of the change in
enforcement, instead simply denying that any change
occurred.21 Accordingly, we reverse the judge and find
that the Respondent’s repromulgation and enforcement

19 See, e.g., Lutheran Heritage Village-Livonia, 343 NLRB 646, 647
(2004) (an employer violates Sec. 8(a)(1) by promulgating a rule in
response to union activity); Harry M. Stevens Services, 277 NLRB 276
(1985) (employer’s implementation of a rule in response to union activ-
ity unlawful).
20 See, e.g., Jordan Marsh Stores Corp., 317 NLRB 460, 462 (1995);
Montgomery Ward & Co., 198 NLRB 52, 62 (1972).
21 In its answering brief, the Respondent contends in passing that the
mid-October letter and memo were prompted by supervisors’ questions
concerning the access policy in light of increasing violations of the
policy. This contention fails to explain the earlier instances of en-
forcement that began in September, preceding the letter and memo.
With respect to those incidents, the Respondent relies on its contention
that it had always consistently enforced the policy. As explained
above, the credited evidence shows otherwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1904
of the access policy was in response to increased union
activity and therefore violated Section 8(a)(1).
The 8(a)(5) Allegations
1. Alleged change in attendance policy
On June 6, Director Chambers and two unit supervi-
sors issued a memo to nurses in the women and chil-
dren’s department at Fremont.22 The memo described a
change in the policy governing nurses who called in sick
during their on-call hours. According to the memo, such
incidents would no longer be of no consequence, but
would, from that day forward, be counted as absences
under the attendance and sick leave policy. The Union
did not receive notice or an opportunity to bargain over
the change.
After the Union learned about the change, it com-
plained to the Respondent that the change could not be
implemented without bargaining. In response, the Re-
spondent instructed Chambers not to implement the
change announced in the memo, and the prior “no-
counting” practice remained in effect. But the judge
found nevertheless that the memo was a change to a
mandatory subject of bargaining, that it thereby consti-
tuted a “per se violation” of Section 8(a)(5) under NLRB
v. Katz,23 and that there was no evidence of repudiation
of this unlawful change.
The Respondent argues that the memo was never “im-
plemented,” thus, there was no material, substantial, and
significant change affecting employees’ terms and condi-
tions of employment, no violation of the Act, and no
need for it to “repudiate” a violation that never occurred.
We agree with the Respondent.
Not every unilateral change in employee terms and
conditions of employment constitutes a breach of the
employer’s bargaining obligation. The change must be
“a material, substantial, and significant” one, and the
General Counsel has the burden to prove this. See, e.g.,
Crittenton Hospital, 342 NLRB 686, 686 (2004). Here,
the record does not show that any unit employee was
directly affected by the “announced” but never “imple-
mented” change discussed in the June 6 memo. The
General Counsel presented no evidence that, after the
issuance of the memo, the Respondent counted any nurs-
es’ absences in a different way or that it followed the

22 The June 6 memo states:
During our last Perinatal meeting it was asked by staff if calling in
sick for any scheduled on call hours counted towards attendance. [Di-
rector] Chambers agreed that since it is scheduled time, any sick self
or sick family during scheduled on-call hours should apply to the at-
tendance-record. From this date forward, [the unit supervisors] will be
applying any sick calls during on-call hours to occurrences of absenc-
es.
23 369 U.S. 736 (1962).
memo in any other respect. In these circumstances, the
General Counsel failed to establish a material, substan-
tial, and significant change. We therefore dismiss this
complaint allegation.24
2. Alleged direct dealing regarding
Saturday shifts
The Respondent’s postanesthesia care unit (PACU) is
staffed on an on-call basis on the weekends, and nurses
are called in as needed. On January 7, PACU Manager
Sharon Hoey received an email from PACU nurse Va-
lerie Smith, notifying Hoey that Smith could help out
with the Saturday, January 19 day shift. Hoey emailed
Smith on January 8 and asked if she was available to
work the night shift on that Saturday instead. Hoey also
added that she was “tossing around the idea of schedul-
ing staff for Saturday day shift” but that she was “not
quite sure of this yet.” Hoey asked if Smith and another
nurse, Trisha, “would have any interest should that deci-
sion be made.” Hoey asked Smith to “relay this to Tri-
sha,” as well. Neither nurse responded to Hoey’s in-
quiry, and Hoey did not pursue the matter further. Hoey
had no authority to change the PACU’s weekend staffing
procedure from on-call to regularly scheduled, and
PACU’s on-call weekend staffing procedures remained
in place. Nonetheless, the judge found that Hoey, by her
January 8 email to Smith, had unlawfully bypassed the
Union and therefore violated Section 8(a)(5) and (1). We
disagree.
In Renal Care of Buffalo, 347 NLRB 1284, 1292–1293
(2006), the Board adopted the judge’s recommended
dismissal of an allegation that the employer’s manager
had engaged in direct dealing. The manager had asked
employees about pay and benefits and had taken notes
concerning their meetings. Applying the Permanente

24 Because there was no material, substantial, and significant change
and therefore no violation, we need not address the judge’s finding that
the Respondent failed to repudiate the violation under Passavant Me-
morial Area Hospital, 237 NLRB 138 (1978). There is no allegation
that Chambers’ announcement itself violated Sec. 8(a)(1) of the Act.
The present case is distinguishable from Wire Products Mfg. Corp.,
326 NLRB 625, 627 (1998), enfd. mem. 210 F.3d 375 (7th Cir. 2000),
in which the Board found that the employer’s announcement of its
intent to change its profit-sharing plan to an employee stock ownership
plan was unlawful “even if the Employer never carried through on its
stated intention,” because the announcement “conveyed to employees
the message that it no longer intended to deal with the Union as their
exclusive representative. . . .” Here, unlike in Wire Products, the Re-
spondent’s ultimate decision not to implement the change was prompt-
ed by the Union’s objection, and therefore would tend to support rather
than undermine the Union’s role. Furthermore, because of the nature of
the change in Wire Products, it would not necessarily have been evi-
dent to employees that the announced change was never implemented.
Here, employees would have become aware on a day-to-day basis that
their on-call sick days were not being counted as absences.
FREMONT MEDICAL CENTER

1905
Medical Group25 standard, the judge in Renal Care found
that the General Counsel had failed to establish that the
manager’s discussion with bargaining unit employees
was for the purpose of establishing or changing wages,
hours, and terms and conditions of employment. Inter
alia, the judge noted that the manager never mentioned
the union or discussed its merits with the employees, had
no role or input in the ongoing bargaining negotiations,
did not attempt to negotiate with or make promises to the
employees, and had no authority to make any changes.
Similarly, we find no direct dealing here. Hoey never
mentioned the Union, had no role in the ongoing bargain-
ing, did not attempt to negotiate with or make promises
to the employees, and did not have the authority to make
the change about which she inquired. We thus dismiss
this allegation.
3. Alleged refusal to provide information
On February 4, the Respondent issued a written warn-
ing to nurse Glenda Hrones for making allegedly inap-
propriate statements to a patient’s wife sometime in De-
cember.26 On February 29, Union Representative Sharp
requested information about this incident. Sharp sought
a copy of the Respondent’s written report about the mat-
ter, including “any witness statements taken and notes
relating to the report.” Sharp also indicated:

This information is required in order for CNA to inves-
tigate whether Nurse Hrones, a known union supporter,
is being unfairly singled out and disciplined in retalia-
tion for her union support.

On March 10, the Respondent informed the Union that
the Respondent had no obligation to furnish the request-
ed information as the Union had filed an unfair labor
practice charge with the Board over Hrones’ discipline.
The Respondent took the position that, in light of this
charge, the Union’s request for the Hrones report was not
made for the purpose of seeking to remove her written
warning through the Company’s internal grievance pro-

25 The Board in Permanente Medical Group, 332 NLRB 1143, 1144
(2000), held that in order to prove unlawful direct dealing in violation
of Sec. 8(a)(5), the following criteria must be established:
(1) the employer was communicating directly with union-
represented employees;
(2) the discussion was for the purpose of establishing or
changing wages, hours, and terms and conditions of employment
or undercutting the union’s role in bargaining: and
(3) such communication was made without notice to, or to the
exclusion of, the union.
26 Hrones supposedly questioned a patient’s wife about the advisabil-
ity of having him treated at the Respondent’s facility instead of else-
where. According to the Respondent, Hrones’ comments were “per-
ceived as demeaning and derogatory to the facility and the staff who
work there.”
cedure but to gather information to prosecute the Union’s
pending unfair labor practice charge.
At the time of its February 29 request, the Union had
pending several unfair labor practice charges against the
Respondent, including a charge (Case 20–CA–33801)
dated February 4 alleging, inter alia, that the Respondent
had violated Section 8(a)(1), (3), and (5) by “failing and
refusing to provide information necessary and relevant to
the [Union’s] role as the exclusive representative” and
“retaliating against employees who engage in protected
activity by various means, including discipline. . . .”27
The judge found that the Union’s request for information
did not constitute the type of discovery that falls outside
employers’ duty to furnish information as an element of
their duty to bargain in good faith, and that the Respond-
ent therefore violated Section 8(a)(5) and (1) by refusing
the February 29 request. We disagree.
An employer must provide a union with requested in-
formation that is necessary for and relevant to the un-
ion’s duties as the employees’ exclusive collective-
bargaining representative.28 It is well established, how-
ever, that the Board’s procedures do not include pretrial
discovery.29 For that reason, the Board has held that
when information is sought that relates to pending
8(a)(3) charges, a refusal to provide that information
generally will not violate Section 8(a)(5).30 Any other
rule would, in effect, impose a discovery requirement
where none otherwise exists. The judge acknowledged
the precedent, but considered the instant case distin-
guishable on its facts.
We disagree. WXON-TV, 289 NLRB 615 (1988),
enfd. mem. 876 F.2d 105 (6th Cir. 1989), relied on by the
Respondent, is directly on point. In that case, the union
submitted a request seeking information pertaining to the
employer’s termination of unit employees and assign-
ment of unit work to supervisors. On the same day, the
union signed an unfair labor practice charge (which it
filed the next day) alleging as unlawful the same em-
ployer conduct. The employer refused to comply with
the union’s information request due to the pendency of

27 The judge incorrectly stated that “the charge in Case 20–CA–
033801 did not allege a violation of Sec. 8(a)(1) or (3) of the Act.” The
General Counsel makes a similar contention. Both the judge and the
General Counsel appear to have misread the plain language of the
charge.
28 Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979); NLRB v.
Acme Industrial Co., 385 U.S. 432, 435–436 (1967); accord: Shoppers
Food Warehouse Corp., 315 NLRB 258, 259 (1994).
29 See, e.g., Saginaw Control & Engineering, Inc., 339 NLRB 541,
543–544 (2003) (union is not entitled to the requested information
sought to support its 8(a)(3) charges).
30 Pepsi-Cola Bottling Co. of Fayetteville, 315 NLRB 882 (1994),
enfd. mem. in part 96 F.3d 1439 (4th Cir. 1996); Union-Tribune Pub-
lishing Co., 307 NLRB 25, 26 (1992), enfd. 1 F.3d 486 (7th Cir. 1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1906
the unfair labor practice charge. The Board dismissed
the portion of the complaint alleging that the employer
had violated Section 8(a)(5) and (1) by failing to provide
the information. The Board found that the union’s in-
formation request “was akin to a discovery device perti-
nent to its pursuit of the unfair labor practice charge ra-
ther than to its duties as collective-bargaining representa-
tive.” Id. at 617–618.
The same reasoning clearly applies here. Sharp indi-
cated his information request was to investigate whether
Hrones was “being . . . disciplined” for her union sup-
port. The Union’s charge in Case 20–CA–33801, filed
the day after Hrones’ discipline, alleged retaliation by
“discipline” for union activities. The record does not
indicate that Hrones filed a grievance over the disci-
pline.31 Furthermore, apart from the information request
itself, the record contains no indication that the Union
communicated with the Respondent in any bargaining
context regarding Hrones’ discipline. See WXON-TV,
supra at 617. Under these circumstances, the Respondent
reasonably construed the information request to refer to
the unfair labor practice charge. We therefore find that
the Respondent’s refusal to supply the information did
not violate the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified and set forth below, and orders that the Re-
spondent, The Fremont-Rideout Health Group d/b/a
Fremont Medical Center and Rideout Memorial Hospital,
and The Fremont-Rideout Health Group d/b/a Fremont-
Rideout Home Health, Marysville and Yuba City, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Restricting an employee’s “talk about the Union”
to the break room during her breaktime.
(b) Advising an employee that her supervisor was “to
stop all union activities” at the workplace.
(c) Coercively interrogating its employees about their
union and other protected concerted activities.
(d) Engaging in unlawful surveillance of its employ-
ees’ Section 7 activities.
(e) Threatening its employees that they would not be
scheduled for work if they engaged in protected concert-
ed activity.
(f) Repromulgating and enforcing its access policy in
retaliation for employees’ union activities.

31 Although Hrones apparently submitted a letter in protest of the
discipline, the letter was not offered as evidence, nor is it clear whether
it would have been timely under the grievance procedure.
(g) Disciplining employees because of their support for
and activities on behalf of the California Nurses Associa-
tion, AFL–CIO (the Union), or any other labor organiza-
tion.
(h) Refusing to schedule for work its employee Hau
Dao because she engaged in protected concerted activity.
(i) Unlawfully changing its employees’ working condi-
tions by unilaterally installing surveillance cameras.
(j) Unlawfully transferring the Rideout ICU staff
scheduling duties from its unit employees.
(k) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Hau Dao whole for any loss of earnings and
other benefits resulting from its unlawful failure to
schedule her on September 1 and 2, 2007, with interest,
in the manner set forth in the remedy section of the
judge’s decision as amended in this decision.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful failure to
schedule Hau Dao on the dates indicated above, and,
within 3 days thereafter, notify her in writing that this
has been done, and that this scheduling matter will not be
used against her in any way.
(c) Within 14 days from the date of this Order, if it has
not already done so, remove from its files any reference
to the unlawful warnings to Heather Avalos and Tami
Clark, and, within 3 days thereafter, notify them in writ-
ing that this has been done, and that the unlawful warn-
ings will not be used against them in any way.
(d) Before implementing any changes in wages, hours,
or other terms and conditions of employment, notify and,
on request, bargain in good faith with the Union as the
exclusive collective-bargaining representative of em-
ployees in the following appropriate unit:

All full-time and regular part-time and per diem Regis-
tered Nurses in positions requiring a Registered Nurse
(RN) license and who provide direct patient care and
are employed by the Respondent at and out of Fremont
Medical Center located at 970 Plumas Street, Yuba
City, CA and/or Rideout Memorial Hospital located at
726 Fourth Street, Marysville, CA; excluding all non-
professional employees, non-Registered Nurses, Trav-
eler Registered Nurses, Registry Registered Nurses,
Care Coordinators (discharge planning), Physician’s
Assistants (PAs), RN Clinical Systems Analysts, RN
Focus Review Medical Records Analysts, ICU Out-
come Coordinators, RN Education Coordinators, Clini-
cal Nurse Specialists, Infection Control Nurses, RN
FREMONT MEDICAL CENTER

1907
Midwives, managerial employees, confidential em-
ployees, guards and supervisors as defined in the Act.

(e) Remove the unlawfully installed surveillance cam-
eras at its facilities.
(f) Reassign the unlawfully transferred Rideout ICU
staff scheduling duties to its unit employees and notify
the Union, in writing, that this has been done.
(g) Make its employees Paula Oakes and Susan Osher
whole for any losses that they suffered as a result of the
Respondent’s unlawful transfer of staff scheduling du-
ties, with interest, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(i) Within 14 days after service by the Region, post at
its facilities in Marysville and Yuba City, California,
copies of the attached notice marked “Appendix.”32
Copies of the notice, on forms provided by the Regional
Director for Region 20, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or internet site, and/or other electronic means, if
the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at the Marysville and Yuba
City, California facilities at any time since April 2007.

32 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.”
(j) 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 Respondent has taken to
comply.
IT IS FURTHER ORDERED that the second amended con-
solidated complaint, as amended, is dismissed insofar as
it alleges violations of the Act not specifically found.

MEMBER HAYES, concurring in part and dissenting in part.
I agree with my colleagues’ disposition of the issues
with two exceptions. I would not find that the Respond-
ent violated Section 8(a)(3) by disciplining RNs Heather
Avalos and Tami Clark on June 8, 2007,1 nor would I
find that the Respondent violated Section 8(a)(1) by al-
legedly repromulgating and more strictly enforcing its
access policy in September and October in response to
increased union activity. Factual questions remain as to
both issues, which I would remand to the judge for fur-
ther consideration.
Regarding the alleged unlawful discipline of Avalos
and Clark, the Respondent issued essentially identical
warnings to them on June 8 that stated in relevant part:

It has been reported to management that Heather Ava-
los, on June 5, 2007 [or Tami Clark, on June 7, 2007],
has been observed and documented for conducting per-
sonal business by soliciting and passing out infor-
mation and materials and speaking to staff members
during working hours in patient areas of Rideout Hos-
pital. Some employees reported your words and ac-
tions as threatening and intimidating and [this] must
never occur again.

The warnings specified that Avalos and Clark had violated,
inter alia, the Respondent’s solicitation and distribution pol-
icy and also rules 8 and 11 against “[d]iscourteous treatment
of the public or other employees” and “[u]se of abusive or
provocative language, fighting, agitating against a fight, or
attempting bodily injury on the [Respondent’s] premises.”
I agree with my colleagues that the judge erred in dis-
missing this allegation on the ground that there was “no
evidence of union animus,” a finding that is not support-
ed by substantial evidence in the record as a whole.2

1 All dates are in 2007.
2 Though I agree there was some evidence of animus, I question
whether that evidence is not mitigated by the fact that the Respondent
almost immediately withdrew the warnings temporarily, and then per-
manently not long thereafter, conduct inconsistent with animus towards
Sec. 7 activity. In any event, even assuming arguendo that the General
Counsel satisfied his initial Wright Line burden, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), questions remain as to whether the Respondent met its rebuttal
burden of showing that it reasonably believed that Avalos and Clark
violated hospital policy and disciplined them for that reason.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1908
However, an issue remains as to whether the Respond-
ent’s warnings to Avalos and Clark were justified by a
reasonable belief that the employees engaged in the con-
duct alleged in the warnings. The judge made no factual
findings regarding what occurred on June 5 and 7. Ac-
cordingly, I would remand this issue to the judge to make
findings of fact as to what happened on the days in ques-
tion and to consider whether the Respondent acted from
a reasonable belief that Avalos and Clark violated hospi-
tal rules.3
As to the alleged repromulgation and stricter enforce-
ment of the Respondent’s access policy, the majority
asserts that the Respondent only began consistently en-
forcing the policy in late September and October in re-
sponse to the Union’s increased activities. In my view,
however, the record does not establish that the Respond-
ent’s enforcement of the policy changed so dramatically
that a finding of repromulgation and stricter enforcement
is warranted. While the increased union activity began in
late August, the Respondent’s enforcement of its access
policy plainly predated that, as evidenced by an early
August incident involving Fremont’s director of nursing
and Union Representatives Glen Sharp and Dan Lawson.
Given this evidence, I cannot conclude from the other
fairly isolated incidents (only one in September and three
in October) that the Respondent more strictly enforced its
access policy. Accordingly, I would not find a violation
on this basis.
However, an issue remains as to why the Respondent
changed its access policy in mid-October by setting spe-
cific conditions that union officials would have to satisfy
in order to gain access to hospital facilities.4 The Re-
spondent contends in its answering brief that the mid-
October letter and memo were prompted not by antiunion
animus, but rather by supervisors’ questions concerning
the access policy in light of increasing violations of the
policy by union agents. Given this,5 I would remand to

3 My colleagues hypothesize that the director of nursing operations’
statement to Clark—“it’s not what you do, [it’s] how people perceive
you”—suggests “that the alleged rule violations were not the true mo-
tive for the discipline[.]” To the contrary, if management perceptions
of Avalos and Clark’s conduct established a reasonable belief that they
violated the Respondent’s rules, that belief, if the reason for the disci-
pline, would suffice to rebut the General Counsel’s prima facie case.
This is an issue for the judge to consider in the first instance on remand.
4 The Respondent’s imposition of the requirements was not itself un-
lawful. As the Respondent explained in its October 19 letter to the
Union, under Holyoke Water Power Co., 273 NLRB 1369 (1985), enfd.
778 F.2d 49 (1st Cir. 1985), cert. denied 477 U.S. 905 (1986), “[e]ven
where access is required, the employer is entitled to impose restrictions
on the time and manner of the access.”
5 Cf. Wild Oats Markets, 344 NLRB 717, 717 fn. 4 (2005) (evidence
established that respondent violated Sec. 8(a)(1) by promulgating a no-
solicitation rule where respondent’s human resources manager in-
the judge for appropriate findings of fact and conclusions
of law on the issue of whether the Respondent’s mid-
October promulgation of new access requirements vio-
lated the Act.
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
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT restrict an employee’s “talk about the
Union” to the break room during her breaktime.
WE WILL NOT advise an employee that her supervisor
was “to stop all union activities” at the workplace.
WE WILL NOT coercively interrogate our employees
about their union and other protected concerted activities.
WE WILL NOT engage in unlawful surveillance of our
employees’ Section 7 activities.
WE WILL NOT threaten our employees that they would
not be scheduled for work if they engaged in protected
concerted activity.
WE WILL NOT repromulgate and enforce our access
policy in retaliation for employees’ union activities.
WE WILL NOT discipline employees because of their
support for and activities on behalf of the California
Nurses Association, AFL–CIO (the Union), or any other
labor organization.
WE WILL NOT refuse to schedule for work our employ-
ee Hau Dao because she engaged in protected concerted
activity.
WE WILL NOT unlawfully change our employees’
working conditions by unilaterally installing surveillance
cameras at our facilities.
WE WILL NOT unlawfully transfer the Rideout ICU
staff scheduling duties from our unit employees.

formed store managers at time of posting that respondent was “‘trying
to keep them [the Union] out[.]’”
FREMONT MEDICAL CENTER

1909
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL make Hau Dao whole for any loss of earn-
ings and other benefits resulting from our unlawful fail-
ure to schedule her on September 1 and 2, 2007, with
interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful fail-
ure to schedule Hau Dao on the dates indicated above
and, WE WILL, within 3 days thereafter, notify her in writ-
ing that this has been done, and that this scheduling mat-
ter will not be used against her in any way.
WE WILL, within 14 days from the date of this Order, if
we have not already done so, remove from our files any
reference to the unlawful warnings to Heather Avalos
and Tami Clark and, WE WILL, within 3 days thereafter,
notify them in writing that this has been done, and that
the unlawful warnings will not be used against them in
any way.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment, no-
tify and, on request, bargain in good faith with the Union
as the exclusive collective-bargaining representative of
employees in the following appropriate unit:

All full-time and regular part-time and per diem Regis-
tered Nurses in positions requiring a Registered Nurse
(RN) license and who provide direct patient care and
are employed by us at and out of Fremont Medical
Center located at 970 Plumas Street, Yuba City, CA
and/or Rideout Memorial Hospital located at 726
Fourth Street, Marysville, CA; excluding all non-
professional employees, non-Registered Nurses, Trav-
eler Registered Nurses, Registry Registered Nurses,
Care Coordinators (discharge planning), Physician’s
Assistants (PAs), RN Clinical Systems Analysts, RN
Focus Review Medical Records Analysts, ICU Out-
come Coordinators, RN Education Coordinators, Clini-
cal Nurse Specialists, Infection Control Nurses, RN
Midwives, managerial employees, confidential em-
ployees, guards and supervisors as defined in the Act.

WE WILL remove the unlawfully installed surveillance
cameras at our facilities.
WE WILL reassign the unlawfully transferred Rideout
ICU staff scheduling duties to our unit employees and
notify the Union, in writing, that this has been done.
WE WILL make our employees Paula Oakes and Susan
Osher whole for any losses that they suffered as a result
our unlawful transfer of the Rideout ICU staff scheduling
duties, with interest.

THE FREMONT-RIDEOUT HEALTH GROUP D/B/A
FREMONT MEDICAL CENTER AND RIDEOUT
MEMORIAL HOSPITAL, AND FREMONT-RIDEOUT
HEALTH GROUP D/B/A FREMONT RIDEOUT
HOME HEALTH

David Reeves, Esq., for the General Counsel.
Laurence R. Arnold, Esq. (Foley and Lardner), of San Francis-
co, California, for the Respondent.
Pamela Allen, Esq. and Linda Shipley, Esq., California Nurses
Association, of Oakland, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case
was tried in Sacramento, California, on August 18–20 and Sep-
tember 9, 2008, based upon the General Counsel’s second
amended consolidated complaint, as amended,1 that alleged The
Fremont-Rideout Health Group d/b/a Fremont Medical Center
and Rideout Memorial Hospital and The Fremont-Rideout
Health Group d/b/a Fremont-Rideout Home Health (Respond-
ent) violated Section 8(a)(1), (3), and (5) of the National Labor
Relations Act (the Act) by: enforcing a rule prohibiting non-
work-related solicitations or distributions during working hours
in working areas selectively and disparately; by interrogating
employees, by threatening employees, by reissuing, enforcing
and maintaining a rule prohibiting nonemployees from conduct-
ing meetings on Respondent’s premises, by engaging in surveil-
lance of employees’ union activities; by issuing written disci-
pline to employees Heather Avalos and Tami Clark; by refusing
to allow employee Hau Dao to work her scheduled shifts; by
changing its attendance and sick leave policies; by removing
staff scheduling from bargaining unit employees; by installing
surveillance cameras without bargaining with the California
Nurses Association (CNA or the Union); by bypassing CNA
and dealing directly with bargaining unit employees and, by
refusing to furnish information requested by CNA necessary
and relevant to CNA’s function as exclusive collective-
bargaining representative of bargaining unit employees. Re-
spondent timely denied any wrongdoing. On the entire record,
including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Parties, I make the fol-
lowing

1 At the hearing on August 19, 2008, counsel for the General Coun-
sel moved to amend par. 10 of the complaint to add an allegation alleg-
ing that Respondent engaged in surveillance of employees’ union activ-
ities in October 2007. I initially denied the motion on the ground that it
came too late in the proceedings to allow Respondent to prepare for a
defense without granting a continuance. After the hearing was contin-
ued on August 20, 2008, to take further evidence, counsel for the Gen-
eral Counsel on August 25, 2008, renewed his motion to amend second
amended complaint. At the resumed hearing on September 9, 2008, I
granted the motion since Respondent now had time to prepare a de-
fense.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1910
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California nonprofit corporation, with offices
and places of business in Marysville and Yuba City, California
(Respondent’s facilities), has been engaged in the operation of
a hospital and medical clinics providing inpatient and outpa-
tient medical care. During the past 12 months, Respondent in
conducting its business operations derived gross revenues in
excess of $250,000 and purchased and received goods valued in
excess of $5000 which originated outside the State of Califor-
nia. Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Respondent operates hospitals providing acute and outpatient
care services. Fremont Medical Center (Fremont) is located in
Yuba City, California, and Rideout Memorial Hospital
(Rideout) is located in Marysville, California. Gerrilyn Hazlett
(Hazlett) is the director of nursing at Fremont; Susan Chambers
(Chambers) is Respondent’s director of women and children’s
services; Gerry Allred (Allred) is Respondent’s director of peri-
operative services which includes the post anesthesia care unit
(PACU); Angela Martin (Martin) is director of Fremont-
Rideout Home Health; Joy Morgan (Morgan) is director of
nursing at Respondent’s Cancer Center; Liesel Buchner (Buch-
ner) is Respondent’s director of critical care services; Patricia
Curneil (Curneil) is a unit supervisor on 3 main at Rideout;
Angelina DeArte (DeArte) is a unit supervisor on the med-
surgical floor at Fremont; Rebecca Rigsby (Rigsby) is a night-
shift supervisor in ICU; Kevin Kern (Kern) is Respondent’s
director of safety and security; and Stephen Booth (Booth) is
Respondent’s labor relations manager.
Since on or about September 20, 2006, CNA has been the
certified collective-bargaining representative of Respondent’s
full-time, regular part-time, and per diem registered nurses who
provide direct patient care at Respondent’s Fremont Medical
Center and Rideout Memorial Hospital facilities in Yuba City
and Marysville, California. Glen Sharp (Sharp) is CNA’s labor
representative and Dan Lawson (Lawson) is CNA’s organizer.
The parties have been engaged in collective bargaining for an
initial contract since December 2006.
B. The 8(a)(1) and (3) Allegations
1. The April 2007 disparate enforcement of the no-
solicitation/no-distribution rule
a. The facts
Complaint paragraph 7(a) alleges that in April 2007 Re-
spondent selectively and disparately enforced a rule prohibiting
nonwork-related solicitation and distribution in working areas
during working hours by telling employees they were required
to go to nonwork areas during nonwork times to discuss the
Union.
Since 1985, Respondent has maintained the following rules
pertaining to employee solicitation and distribution:2

POLICY

Employees of FRGH:

Employees of the FGRH may not solicit during work-
ing time for any purpose. “Working Time” is defined in
paragraph 3.
Employees of the FRGH may not solicit at any time,
for any purpose, in immediate patient care areas, such as
patient’s rooms, and places where patients receive treat-
ment, such as therapy areas, or in any other area that
would cause disruption of health care operations or dis-
turbance of patients, such as corridors in patient treatment
areas and rooms used by patients for consultations with
physicians or meetings with families or friends.
Employees may not distribute literature during work-
ing time for any purpose.
Employees may not distribute literature at any time,
for any purpose in working areas. Working areas are all
areas in the hospital, except employee lounges and parking
areas.

Working Time:

Working time includes the working time of both the
employee during the soliciting or distributing and the em-
ployee whom the soliciting or distributing if directed.
Working time does not include break periods, meal peri-
ods or any other specified periods during the workday
when employees are properly not engaged in performing
their work tasks.

Katherine Zubal (Zubal) is an RN on the Three South med-
surgical floor at Fremont Medical Center. Zubal’s supervisor
in 2007 was Karen Bezuidenhout (Bezuidenhout). There is a
break room on the med-surgical floor that RNs use when giving
report at shift change. Family and friends regularly meet with
RNs in the break room. In April 2007, in a hallway in the med-
surgical floor, Zubal had a conversation with Bezuidenhout.
Bezuidenhout said that she had heard from Supervisor Angelina
DeArte that coworkers said Zubal was talking to them about the
Union. Bezuidenhout told Zubal that she preferred Zubal to talk
about the union in the break room on her break. Zubal told
Bezuidenhout that conversations about the Union had been
going on between employees for over a year. Susan Chambers
(Chambers) Respondent’s director of women and children’s
services admitted that RNs regularly discussed nonwork sub-
jects during working hours, RNs testified that employees solic-
ited other employees to purchase such items as Christmas cook-
ies, and Rebecca Rigsby (Rigsby) Respondent’s night-shift
supervisor in ICU admitted that RNs brought information3 into
the hospitals concerning fundraisers for their children’s schools

2 GC Exh. 11, p. 3.
3 Rigsby claimed that this practice was halted at an unspecified time
in 2006, however, as noted below, Respondent admitted that it did not
enforce its no-solicitation/no-distribution policy as late as June 20,
2007.
FREMONT MEDICAL CENTER

1911
or other organizations4 that the children were involved with
and, as noted below, Respondent did not enforce its no-
solicitation/no-distribution policy consistently up to June 20,
2007.
b. The analysis
Counsel for the General Counsel does not contend that Re-
spondent’s no-solicitation/no-distribution rules are invalid on
their face. Rather, counsel for the General Counsel argues that
the rule was both disparately enforced in Zubal’s case and im-
properly applied to communication that does not constitute
solicitation. Respondent takes the position that Respondent did
not disparately enforce its rule with respect to like solicitations.
Section 8(a)(1) of the Act provides that it shall be an unfair
labor practice for an employer, “(1) to interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed in
section 7[.]”
For over 60 years the Supreme Court5 and the Board6 have
recognized employee rights to solicit on behalf of a labor or-
ganization during nonworktime on an employer’s premises.
The Board has drawn a distinction between oral solicitation and
distribution and has permitted limitation on distribution of liter-
ature during working time and in working places.7 However,
for over 45 years it has been held that discriminatory imple-
mentation or enforcement of a facially valid no-distribution/no-
solicitation rule is unlawful.8 The Board has traditionally found
many types of employer permitted nonjob-related solicitations
and distribution in the face of a denial of Section 7 protected
solicitation or distribution to constitute discriminatory en-
forcement of it’s no-solicitation/no-distribution rule and thus,
evidence of an employer’s interference with Section 7 rights.9
However, in 2007 in Guard Publishing Co., 351 NLRB 1110
(2007), a sharply divided Board overturned longstanding prec-
edent and established a new test to determine if an employer
has discriminatorily enforced its no-solicitation/no-distribution
rule. The Board adopted the test utilized by the United States
Court of Appeals for the Seventh Circuit.10 Thus, in the past
where there was evidence that an employer, under its no-
solicitation rules, permitted solicitations, use of its bulletin
boards, e-mail or copy machines for nonwork-related purposes
of any sort but denied solicitation, distribution or the use of
those means of communication for Section 7 purposes, the
employer was found to have engaged in discriminatory en-
forcement of its rules, evidence that it had engaged in restraint
and coercion of employees Section 7 rights under Section

4 While Rigsby was not specific about the types of organizations
their children participated in that RNs solicited on behalf of in addition
to schools, it could be assumed that they would be organizations like
the Boy Scouts, Girl Scouts, and team sports leagues.
5 Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
6 Peyton Packing Co., 49 NLRB 828 (1943).
7 Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962).
8 Walton Mfg. Co., 126 NLRB 697 (1960).
9 Sprint/United Mgmt. Co., 326 NLRB 397 (1998); E. I Du Pont de
Nemours & Co., 311 NLRB 893 (1993); Allied Stores Corp., 308
NLRB 184 (1992); Champion International Corp., 303 NLRB 102
(1991).
10 Fleming Cos., 336 NLRB 192 (2001), enfd. denied 349 F.3d 968
(7th Cir. 2003).
8(a)(1) of the Act. Rather than applying the traditional test to
determine whether there is evidence of restraint or coercion,
under the new Board rule an employer is permitted to allow a
wide range of nonwork-related employee solicitation or use of
employee equipment for solicitation but deny employee use for
Section 7 solicitation so as long as it does not discriminate as to
like or similar solicitations or distribution of materials. In
Guard Publishing, id. at 1122, the majority explained:

For example, an employer clearly would violate the Act if it
permitted employees to use e-mail to solicit for one union but
not another, or if it permitted solicitation by antiunion em-
ployees but not by prounion employees. [Footnote omitted.]
That is, an employer may draw a line between charitable so-
licitations and non-charitable solicitations, between solicita-
tions of a personal nature (e.g., a car for sale) and solicitations
for the commercial sale of a product (e.g., Avon products),
between invitations for an organization and invitations of a
personal nature, between solicitations and mere talk, and be-
tween business-related use and non-business related use.

While counsel for the General Counsel argues that the Guard
rule regarding discriminatory application of no-solicitation/no-
distribution rules applies only to e-mail communications, I find
no such limitation in the Board’s decision. Further, counsel for
the General Counsel’s contention that Zubal’s conduct was not
proscribed solicitation but discussion about the Union and that
Respondent therefore committed an independent violation of
Section 8(a)(1) of the Act is not pled in the complaint nor was
this allegation litigated at the hearing. Rather, the allegation in
paragraph 7(a) is that in April 2007 Respondent selectively and
disparately enforced a rule prohibiting nonwork-related solici-
tation and distribution in working areas during working hours
by telling employees they were required to go to nonwork areas
during nonworktimes to discuss the Union. I will not consider
this de facto amendment. Hi-Tech Cable Corp., 318 NLRB
280 (1995).
Under the traditional Board test, evidence that an employer
permitted nonwork-related solicitation or distribution but not
union solicitation and distribution would establish discriminato-
ry enforcement of its no-solicitation policy, evidence that the
enforcement of the policy was to interfere, restrain, and coerce
her in the exercise of her Section 7 rights. Here, there is evi-
dence that nonwork-related solicitations and distributions had
been permitted by Respondent as recently as June 2007. How-
ever, under the Guard test I must now parse out if Respondent
permitted like solicitations and distributions such as Zubal’s
discussions with fellow employees about the Union. While
Respondent has permitted employee solicitations and distribu-
tions to raise funds for various organizations, including schools
and other organizations RN’s children participated in, the
Board’s test now allows Respondent to, “ . . . draw a line be-
tween charitable solicitations and non-charitable solicitations,
between solicitations of a personal nature (e.g., a car for sale)
and solicitations for the commercial sale of a product (e.g.,
Avon products), between invitations for an organization and
invitations of a personal nature, between solicitations and mere
talk, and between business-related use and non-business related
use.” Guard Publishing, id. at 1122. Since the type of solicita-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1912
tions permitted by Respondent are fund raising for schools and
other organizations employee children participate in are some-
how different than solicitations for a union, under the Guard
Publishing theory, counsel for the General Counsel has failed
to show that Respondent engaged in like discrimination with
respect to solicitation on behalf of other organizations, and I am
constrained to conclude that there has been no violation of Sec-
tion 8(a)(1) as alleged in paragraph 7(a).
2. The June 8, 2007 written discipline of
Heather Avalos and Tami Clark
a. The facts
Complaint paragraph 7(b) alleges that the discipline issued to
RNs Heather Avalos (Avalos) and Tami Clark (Clark) was an
enforcement of the no-distribution/no-solicitation rule in a se-
lective and disparate manner because it prohibited union solici-
tation and distribution while allowing nonunion solicitation and
distribution and paragraphs 11(a) and (c) allege that the written
discipline violated Section 8(a)(3) of the Act because Avalos
and Clark engaged in union activity.
Avalos and Clark both worked at Respondent’s Rideout fa-
cility in ICU. Their supervisor is Liesel Buchner. Both Avalos
and Clark had engaged in various union activities including
helping to organize the Union, acting as an observer at the
Board conducted election, being a member of the CNA bar-
gaining committee and speaking to employees about CNA.
Both Avalos and Clark had been distributing CNA materials in
the break room. On June 8, 2007, both Avalos and Clark re-
ceived written discipline11 from Director of Nursing Steve Frost
(Frost).
The warnings are identical and provide in pertinent part:

Purpose of Consultation:

It has been reported to management that Heather Avalos
(Tami Clark), on June 5, (June 7) 2007, has been observed
and documented for conducting personal business by solicit-
ing and passing out information and materials and speaking to
staff members during working hours in patient areas of
Rideout Hospital. Some employees reported your words and
actions as threatening and intimidating and must never occur
again.

The Avalos and Clark warnings were rescinded on June 20,
2007, because the no-solicitation/no-distribution policy had not
been enforced. In the letters12 rescinding the Avalos and Clark
warnings it is noted that, “. . . we acknowledge that in the past,
enforcement of that policy has been lax, thus the action was not
appropriate in these circumstances.” The rescission letters
added:

While we certainly would prefer that all of our employees
would abide by the policy, this is to advise that, until such
time as actions may be taken to enforce the policy in a con-
sistent manner, you have the same right to solicit and distrib-
ute for the cause you have chosen, i.e. support of the union, as

11 GC Exhs. 9 and 11.
12 GC Exhs. 10 and 12.
does any employee to solicit and distribute literature for other
causes.
b. The analysis
Counsel for the General Counsel contends that the discipline
of Avalos and Clark violated Section 8(a)(1) of the Act as a
disparate enforcement of its no-distribution/no-solicitation poli-
cy. Respondent argues that there was no discriminatory appli-
cation of its policy to like solicitation in the discipline of Ava-
los and Clark.
For the reasons stated above in section 1(b), under the Guard
test, counsel for the General Counsel has failed to establish,
notwithstanding the admitted lack of consistent enforcement of
its no-solicitation/no-distribution policy, which Respondent
engaged in discrimination with respect to like solicitation or
distribution on behalf of other organizations. I conclude that
there has been no violation of Section 8(a)(1) as alleged in par-
agraph 7(b).
Counsel for the General Counsel also contends that the Ava-
los and Clark discipline violated Section 8(a)(3) of the Act
since it was given because the two nurses were engaged in so-
licitation on behalf of CNA and distribution of CNA materials.
In order to find a violation of Section 8(a)(3) of the Act, the
General Counsel has the initial burden of establishing that un-
ion activity was a motivating factor in Respondent’s action
alleged to constitute discrimination in violation of Section
8(a)(3) of the Act. The elements required to support such a
prima facie violation of Section 8(a)(3) are union activity, em-
ployer knowledge of the activity, and a connection between the
employer’s antiunion animus and the discriminatory conduct.
Once the General Counsel has established its prima facie case,
the burden shifts to Respondent to show that it would have
taken the disciplinary action even in the absence of protected
activity. Wright Line, 251 NLRB 1083 (1980). In Friendly Ice
Cream Corp., 254 NLRB 1206 (1981), Respondent had a
longstanding, long dormant no-solicitation rule which it reac-
tivated in the midst of a union organizing campaign. The
Board found that the employer’s discipline of an employee
under the rule, together with the employer’s demonstrated anti-
union animus, violated Section 8(a)(3) of the Act.
Here, there is no evidence of antiunion animus. Respondent
has applied its facially lawful no-solicitation/no-distribution
rule in a nondiscriminatory manner, as noted above. Thus,
lawful application of its policy cannot form a predicate for
employment discrimination on the basis of union membership.
Counsel for the General Counsel has failed to establish a prima
facie case that Respondent discriminated against Avalos or
Clark due to their activities on behalf of CNA.
3. The August 28, 2007 prohibition of employee
distribution of CNA materials
a. The facts
Complaint paragraph 7(c) alleges that on about August 28,
2007, Sue Chambers told employees they could not distribute
CNA materials in the hospital hallway or discuss CNA while
allowing solicitation and distribution of nonunion material.
Roxann Moritz (Moritz) is an IV therapy RN at Fremont
Medical Center. On August 29, 2007, Sue Chambers, the di-
FREMONT MEDICAL CENTER

1913
rector of women’s services, spoke with Moritz in the hallway in
the postpartum department. Moritz had been giving union lit-
erature to RN Kathy Heir in the hallway. Chambers told
Moritz that she could not pass out union literature. When
Moritz said she could pass out the literature, Chambers said she
could not and that she had been told to stop all union activi-
ties.13 Moritz said that in the past employees had passed out
forms for selling Christmas cookies in the work areas and rou-
tinely discussed nonwork-related subjects during worktime.
b. The analysis
Counsel for the General Counsel argues that Respondent
disparately enforced its no-distribution/no-solicitation policy in
Moritz’ case. Respondent contends there was no discriminato-
ry application of its policy to like solicitation with Moritz.
Having failed to establish discrimination with respect to like
solicitation or distribution on behalf of other organizations, I
conclude that there has been no violation of Section 8(a)(1) as
alleged in paragraph 7(c).
4. The August 24, 2007 Angela Martin interrogation
and threat
a. The facts
Complaint paragraph 8(a) alleges that on August 24, 2007,
Respondent’s director of Fremont-Rideout Home Health, Ange-
la Martin, interrogated employees about whether they would
participate in an August 31, 2007 strike.
Complaint paragraph 8(b) alleges that Martin threatened em-
ployees that if they did not work on August 31, 2007, they
could not work their September 1 and 2, 2007 shifts. Hau Dao
(Dao) was a day-shift RN in the Fremont-Rideout Home Health
Center. Dao’s supervisor was Angela Martin. Martin admitted
that she knew Dao was the only RN in the Home Health Center
who supported the CNA. Dao’s last days in the Home Health
Center were scheduled for September 1 and 2, 2007. On Au-
gust 31, CNA had called for a strike at Respondent’s facilities
from 6 a.m. on August 31 to 6 a.m. on September 1, 2007, but
not at the Cancer Center or the Home Health Care Center
whose employees were not represented by CNA.14 According
to Martin, Respondent planned to hire strike replacements for 3
days. Dao was not scheduled to work on August 31. On Au-
gust 24, 2007, Martin asked Dao if she planned to go on strike
on August 31 because if she did Martin would have to find
someone to replace Dao for Dao’s last 2 days. Dao replied that
she was not going on strike and that she was transferring to the
Cancer Center. On her day off, August 31, 2007, Dao went in
to work and told Martin that she had changed her mind and was
going to participate in the strike that day. Martin told Dao that

13 According to Chambers, she denied saying that she had been di-
rected to stop all union activity and told Moritz that she could discuss
union activity while on lunch or break time. It appears inconsistent that
Chambers would be enforcing Respondent’s no solicitation policy at a
time when Respondent had admitted it was not enforcing this policy. I
do not credit Chamber’s testimony.
14 GC Exh. 13.
she should have let Martin know and that Dao would be re-
placed on September 1 and 2.15
b. The analysis
In his brief, counsel for the General Counsel states that Mar-
tin’s interrogation of Dao concerning her strike intentions and
threats to replace Dao violated Section 8(a)(1) of the Act. On
the other hand, Respondent maintains Martin’s questioning of
Dao was not coercive and there was no evidence that Martin
threatened Dao if she did not report to work on August 31.
Asking employees about their attendance at union meetings
has been held to constitute coercive interrogation in violation of
Section 8(a)(1) of the Act. Metropolitan Regional Council, 352
NLRB 701 (2008); Nanticoke Homes, Inc., 261 NLRB 736
(1982). However, questioning open and active union support-
ers about their union sentiments in the absence of threats or
promises does not interfere, coerce, or restrain employee exer-
cise of Section 7 rights in violation of Section 8(a)(1) of the
Act. Rossmore House, 269 NLRB 1176, 1177 (1984). Unlike
the interrogations in Rossmore House, the Board has found
interrogating employees about their intention to participate in a
strike violated Section 8(a)(1) of the Act because it failed to
give assurances against reprisals. Roosevelt Memorial Medical
Center, 348 NLRB 1016, 1043–1044 (2006).
Here, after interrogating Dao about her intentions concerning
the upcoming strike, Martin made no assurances that there
would be no reprisals against Dao if she went on strike. More-
over, Martin threatened Dao that if she engaged in Section 7
activity she would not be scheduled. Accordingly, I find both
the interrogation of Dao concerning her strike intentions and
the threat not to schedule Dao for engaging in the 1-day strike
was coercive and violated Section 8(a)(1) of the Act.
5. The refusal to allow RN Hau Dao to work her shifts
a. The facts
Paragraph 11(b) of the complaint alleges that Respondent vi-
olated Section 8(a)(3) of the Act when on September 1 and 2,
2007, Respondent refused to allow Dao to work her scheduled
shifts because she engaged in union or other concerted activity.
b. The analysis
Counsel for the General Counsel argues that Respondent vio-
lated Section 8(a)(3) of the Act by disciplining Dao for engag-
ing in a strike. Respondent contends that Dao notified Martin
that she would not be working the weekend.
In order to find a violation of Section 8(a)(3) of the Act, the
General Counsel has the initial burden of establishing that un-

15 Before the strike according to Martin, she asked Dao if she
planned to strike because she wasn’t sure what that entailed. Martin
claims that on August 31, Dao volunteered that she was going on strike
and would not be working the weekend. Martin’s version of events is
not credible. She knew the strike was not directed at the Home Health
Center as the CNA did not represent those nurses. She knew further
that the strike was for only 1 day, Friday, August 31, Dao’s day off. It
is not credible that Dao would have said she was not working her shifts
on September 1 and 2 because of the strike. Moreover, Respondent’s
reliance on Howard’s testimony is misplaced as I specifically ruled that
it could not come in for substantive purposes as it was hearsay.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1914
ion activity was a motivating factor in Respondent’s action
alleged to constitute discrimination in violation of Section
8(a)(3) of the Act. The elements required to support such a
prima facie violation of Section 8(a)(3) are union activity, em-
ployer knowledge of the activity, and a connection between the
employer’s antiunion animus and the discriminatory conduct.
Once the General Counsel has established its prima facie case,
the burden shifts to Respondent to show that it would have
taken the disciplinary action even in the absence of protected
activity. Wright Line, 251 NLRB 1083 (1980).
Here, counsel for the General Counsel has established a pri-
ma facie case that Respondent violated Section 8(a)(3) of the
Act in refusing to allow Dao to work her shifts. Respondent
knew Dao was engaged in union activity on behalf of CNA. It
is likewise clear that Respondent announced that Dao could not
work her shift if she engaged in a 1-day strike in support of
CNA on her day off. Respondent has proffered no justification
for not scheduling Dao on September 1 and 2, 2007, particular-
ly when her strike activity took place on her day off.
I find that Respondent violated Section 8(a)(3) of the Act in
replacing Dao on September 1 and 2.
6. The rule prohibiting meetings on
Respondent’s premises
a. The facts
Complaint allegations 9(a)–(c) allege that on September 24,
2007, Respondent reissued a rule at its Rideout Memorial Hos-
pital facility and has enforced the rule in a selective and dispar-
ate manner that prohibits nonemployees from conducting meet-
ings on Respondent’s premises in order to discourage its em-
ployees’ union or concerted activity.
Since 1985, Respondent has maintained the following rule16
pertaining to nonemployee solicitation and distribution:

POLICY
Outsiders:
Persons not employed by the health group may not solicit or
distribute literature on FRGH property at any time for any
purpose.

Glen Sharp, CNA labor representative, commencing in January
2007, regularly visited nurses at Respondent’s facilities to an-
swer questions about bargaining and to hand out union litera-
ture about bargaining. He often went to break rooms on the
floors, to the nurse’s station or to the cafeteria. He entered the
break rooms via public access areas but in ICU he had to be
buzzed in by an employee. Sharp often encountered nursing
supervisors on his visits, including supervisors who negotiated
with him on the Respondent’s bargaining team. Prior to Sep-
tember 2007, no supervisor told Sharp he could not be present
in break rooms or nurses’ stations.
CNA Organizer Dan Lawson (Lawson) also met with nurses
in break rooms on every floor of Respondent’s facilities and at
nurses’ stations. Lawson also entered through public access
areas and was observed by nursing supervisors. Before Sep-
tember 2007, no supervisor told Lawson he could not be pre-
sent in break rooms or nurses’ stations. In September 28, 2007,

16 GC Exh. 11, p. 3.
Sharp was in the Rideout ICU break room. Security guards
approached Sharp and told him he had to leave the break
room.17
In October 2007, at the Fremont Medical Center Lawson was
with Sharp and CNA Organizer Kevin Baker (Baker) in a hall-
way just outside the visitors’ waiting room in same day surgery
when a supervisor told them they were not allowed in patient
care areas and would have to leave.
On October 9, 2007,18 on the 2 central floor of Rideout Me-
morial Hospital, Director of Nursing Steve Frost (Frost) told
Lawson and Baker near the nurse’s station that Lawson was not
allowed in patient care areas.
On October 16, 2007, Respondent’s labor relations manager,
Stephen Booth, issued a memo19 to employees stating in part:

Union representatives do not have a right under the NLRA or
state law to enter the premises and go to work areas or to pa-
tient care areas except for limited purposes, and even then
they must have prior authorization.

On October 19, 2007, Respondent’s counsel sent a letter20 to
Sharp which affirmed Booth’s letter. The letter states in perti-
nent part:

As you know, although non-employee union organizers have
been permitted to access the main lobbies and cafeteria areas
of FRHG facilities, they are not permitted beyond those areas
absent advance authorization.

Patricia Curneil, Respondent’s supervisor on the Three Main
floor at Rideout testified concerning a conversation between a
CNA representative and RN Laurie Trent at the nurses’ station.
Curneil told the CNA representative that he was not supposed
to be in patient care areas and could not remain in the patient
care area. Curneil said the conversation occurred a few months
prior to April 2007. However, Trent testified that the conversa-
tion occurred the day before she flew to Chicago to take part in
a convention on August 7, 2006, protesting the Kentucky River
decision. Both CNA Representative Lawson and Trent recalled
this date because on August 6, 2006, Lawson had brought flight
information to concerning the Chicago trip to Trent at
Rideout.21 Further, Trent testified that she had transferred out
of Three Main in mid-January 2007 for a 3-month assignment
in CVICU before her transfer to the Two Central floor.
Curneil recalled a second incident when Curneil told a CNA
representative to leave the break room a month after the first
incident in early 2007. Trent was also present during the se-

17 Buchner stated that the incident in the breakroom occurred prior to
August 31, 2007. However, Sharp recalled that he sent Respondent an
email on the date the event occurred, September 28, 2007, protesting
his treatment. I credit Sharp’s testimony in this regard.
18 While Lawson testified this occurred in late August 2007, Baker’s
October 24, 2007 letter to Respondent protesting their exclusion from
the nurse’s station establishes the date as October 9, 2007. See R. Exh.
27.
19 GC Exh. 15.
20 GC Exh. 14.
21 Lawson’s testimony is corroborated by an article from Registered
nurse Magazine confirming the conference took place in Chicago in
August 2006. CP Exh. 1. I credit Trent’s version of events.
FREMONT MEDICAL CENTER

1915
cond incident but said that it occurred in August 2006 before
the NLRB election. In view of the greater specificity of Trent’s
recollection and its corroboration by independent sources and
events, I will credit Trent’s testimony.
Joy Morgan, Respondent’s director of nursing at the Cancer
Center, testified that on September 12, 2007, he saw CNA Rep-
resentatives Lawson and Sharp in the infusion room of the
Cancer Center, speaking with RN Daren Miles. Morgan was
advised by Booth that she should direct Lawson and Sharp to
leave the infusion room. Initially, Morgan said the event oc-
curred on September 14, 2007, because it was the only day she
and Miles worked together but when it was pointed out that
September 14 was a Friday and Miles worked only Monday
through Thursday, Morgan changed her testimony and said the
event occurred on September 12, 2007. However, both Lawson
and Sharp testified that they were in Sacramento all day on
September 12, 2007, attending a CNA House of Delegates
meeting which is conducted every 2 years.22 Clearly, this event
did not occur in September 2007.
In early August 2007, Jeri Hazlett, the Fremont director of
nursing, called security to remove Lawson and Sharp from
ICU. The record reflects that nonemployees have been permit-
ted to access areas of the Respondent’s facilities. Thus, friends
and family members of employees have regularly visited em-
ployees in break rooms on hospital patient care floors mainly
for the purpose of sharing meals. However, no evidence was
adduced to show that nonemployees from other organizations
were permitted on hospital patient care floors or in break
rooms. To the contrary, nonemployee vendors have been de-
nied access to patient care areas.
b. The analysis
Counsel for the General Counsel argues that Respondent
repromulgated an unenforced policy that prohibited nonem-
ployees’ access to its break rooms and hallways in response to
increased union activity and discriminatorily denied CNA rep-
resentatives access while permitting access to other nonem-
ployees. Respondent contends that it has uniformly maintained
a lawful nonemployee no-solicitation/no-distribution policy and
did not disparately apply its policy to CNA representatives
while permitting like activities by other nonemployees.
The Supreme Court has drawn a distinction between the
rights of employees and nonemployees to be present on an
employer’s property.23 In Babcock & Wilcox, the Court held
that an employer could prohibit nonemployee union organizers
from distributing literature in its employee parking lot if the
union can use other means of communication to contact the
employees and the employer does not discriminate against the
union by allowing distribution by other nonemployees. Ac-
cordingly, the Board up until 2007 has held that an employer
that discriminates by allowing access for solicitation or distri-
bution to other groups but not to unions violates the Act.24
However, under the rationale set forth in Guard Publishing,

22 Lawson identified the agenda for the House of Delegates Meeting
on September 12, 2007. GC Exh. 43.
23 NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956); Lechmere,
Inc. v. NLRB, 502 U.S. 527 (1992).
24 Big Y Foods, 315 NLRB 1083 (1994).
supra, the Board has changed the test for discriminatory en-
forcement of no-solicitation/no-distribution rules. By analogy,
it would appear that the same test should be applied to access
policy for nonemployee solicitation and distribution.
Counsel for the General Counsel contends that Respondent
repromulgated its unenforced access policy on September 24,
2007, and that it has since disparately enforced that policy to-
ward the CNA.
The record reflects that before at least August 2007, Re-
spondent, with the knowledge of its supervisors, permitted the
presence of CNA representatives in break rooms and nurses’
stations throughout its hospital facilities. The record reflects
that in August or September 2007 Respondent began to enforce
its nonemployee access policy toward CNA.
However, even assuming that Respondent began enforce-
ment of its facially valid nonemployee access policy in Sep-
tember 2007 in response to CNA’s increased efforts to secure a
collective-bargaining agreement, unless counsel for the General
Counsel can establish that the policy was enforced in a dispar-
ate fashion in like circumstances, there is no violation. Coun-
sel for the General Counsel contends that Respondent’s non
enforcement of the nonemployee access policy with respect to
family members and friends of nurses is the type of disparate
treatment that constitutes a violation of Section 8(a)(1) of the
Act.
Based upon the above discussion of the Guard Publishing
test, however, I conclude that the evidence of disparate treat-
ment of access permitted by Respondent of family members
and friends of employees is not sufficiently like the denial of
access to CNA representatives to constitute discrimination that
demonstrates interference, restraint or coercion of employees in
the exercise of their Section 7 rights. I will dismiss this portion
of the complaint.
7. The surveillance of employees’ union activity
a. The facts
Paragraph 10(a) of the complaint alleges that on September
24, 2007, Director of Nursing Steve Frost (Frost) and Director
of Security Kevin Kern (Kern) engaged in surveillance of em-
ployees’ union activity and paragraph 10(b) of the complaint,
as amended, alleges that in October 2007 Respondent’s security
guards engaged in surveillance of employees’ union activity.
On September 24, 2007, CNA Labor Representative Glen
Sharp and Organizer Lawson were in the Rideout Memorial
Hospital Cafeteria meeting with nurses. During the meetings,
Respondent’s director of nursing, Frost, and Director of Securi-
ty Kern were also in the cafeteria for 1-1/2 hours about 20 feet
from the table where Sharp was seated.25 During this time,
Frost came up to Sharp and asked for a flyer. According to
Kern, he was present for only about 20 minutes and his view of
Sharp and Lawson was obstructed by a pillar. While Kern

25 There was some conflict concerning how close Kern and Frost sat
to Lawson and Sharp. Sharp testified Kern and Frost sat 20 feet away
while Lawson testified they were 5 feet away. When confronted with
his affidavit that said Kern and Frost were seated 12 feet away, Lawson
said he could not recall where they were seated. Given this conflict in
Lawson’s testimony, I credit the testimony of Sharp.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1916
testified that he and Frost left the cafeteria after about 20
minutes, this does not exclude the possibility that Frost re-
turned. This is consistent with Sharp’s testimony that Frost
may have left and returned a few times but was present for
most of the time Sharp and Lawson were present. There is no
evidence that Kern or Frost did not regularly use the cafeteria.
In October 2007, CNA Organizer Lawson was in the
Fremont Medical Center cafeteria to meet with nurses. After
Lawson entered the cafeteria he noticed a security guard from
Comprehensive Security, Respondent’s security contractor,
enter and sit about 5 feet away. When Lawson went to the
bathroom, the guard followed him there and then back to the
cafeteria. When Lawson left the cafeteria the guard followed
him several blocks from the hospital to where Lawson had
parked his car and said to Lawson, “Oh, you are from the Bay
Area.”
b. The analysis
Counsel for the General Counsel takes the position that
Frost, Kern, and the Respondent’s security guard, engaged in
unlawful surveillance of employees’ union activities. To the
contrary, Respondent contends that neither Frost and Kern’s
conduct nor the security guard’s conduct constitute surveil-
lance.
An employer that observes open, employees’ union activities
in a public area of an employers’ facility does not necessarily
engage in unlawful coercive surveillance. Aladdin Gaming,
LLC, 345 NLRB 585 (2005). In Aladdin, the Board found that
supervisors who engaged in observations of employees for 2
minutes then interrupted an employee meeting in a dining room
used by employees and supervisors did not engage in unlawful
surveillance. However, surveillance of employee Section 7
activity that is out of the ordinary may be coercive. Wilshire
Plaza Hotel, 353 NLRB 304 (2008). In Wilshire Plaza, the
Board found that unlawful surveillance depends on the specific
circumstances in the case, including the nature and duration of
the employer’s observations. Factors the Board considers, “in-
clude the duration of the observation, the manager’s distance
from employees while observing them, and whether this was an
isolated incident or the employer engaged in other coercive
conduct during its observation.” Aladdin Gaming, supra at fn.
2. In Wilshire Plaza the employer’s supervisors followed union
representatives throughout the facility and photographed them
speaking with employees.
In the September 24, 2007 incident, Frost was in a cafeteria
frequented by both managers and employees for about 90
minutes and approached the CNA representatives’ table briefly
to obtain a flyer. Frost was about 20 feet from the union
agents’ table. While, the duration of Frost’s presence was
somewhat lengthy for a lunch period, there is no evidence that
his presence was in any other way coercive. He approached the
union representatives only long enough to receive a flyer and
he was seated at some distance from them behind a pillar. I
find under all the circumstances that Kern and Frost’s presence
in the cafeteria was not out of the ordinary. I will dismiss this
allegation of the complaint.
In the October incident, there is evidence that the security
guard sat at a table 5 feet from Lawson and proceeded to follow
Lawson wherever he went, including the bathroom and outside
the facility all the way to Lawson’s car. There is no dispute
that the guard was an agent hired by Respondent. Moreover,
the guard’s close proximity while Lawson was meeting with
employees together with the guard following Lawson both in
and outside the facility is conduct that is clearly out of the ordi-
nary and coercive surveillance of employees’ right to engage in
Section 7 activity in violation of Section 8(a)(1) of the Act.
C. The 8(a)(5) Allegations
1. The attendance and sick leave policy changes
a. The facts
Complaint paragraph 13(a) alleges that on June 6, 2007, Re-
spondent changed its attendance and sick leave policies at its
Fremont Medical Center facility so calling in sick for any
scheduled on-call hours would count towards attendance.
On June 6, 2007, Respondent issued a memo to nurses in the
women’s and children’s department.26 The memo provides:

During our last Perinatal meeting it was asked by staff if call-
ing in sick for any scheduled on call hours counted towards
attendance. Sue Chambers agreed that since it is scheduled
time, any sick self or sick family during scheduled on-call
hours should apply to the attendance-record. From this date
forward, Jona and I will be applying any sick calls during on-
call hours to occurrences of absences.
Respectfully,

Sheryl H. Lawrie, RNC (Unit Supervisor for Nurse-
ry/NICU)
Jona Engel-Blank, RNC (Unit Supervisor for Labor &
Delivery)
Sue Chambers, RNC (Director of Women’s and Chil-
dren’s Services)

CNA was not given notice or an opportunity to bargain about
this change. While there is no evidence that this policy was
implemented, there is likewise no evidence it was rescinded.
b. The analysis
Counsel for the General Counsel argues that the June 6
memo to nurses constitutes an unlawful unilateral change in
terms and conditions of employment. Respondent posits that
since this policy was never enforced, no change occurred.
It is undisputed that the June 6, 2007 memo dealt with a
mandatory subject of bargaining, attendance and sick leave
policy. There is likewise no dispute that CNA was neither
notified nor given an opportunity to bargain before Respondent
announced this change in policy. While Respondent contends
that there is no violation here since the changes have not been
implemented, neither is there evidence that Respondent has
notified the effected employees that the policy has been re-
scinded. A unilateral change in a mandatory subject of bargain-
ing is a per se violation of the Act. NLRB v. Katz, 369 U.S. 736
(1962). Absent evidence that Respondent immediately repudi-
ated this unilateral change in terms and conditions of bargain-

26 GC Exh. 3.
FREMONT MEDICAL CENTER

1917
ing unit employees, Respondent has violated Section 8(a)(5) of
the Act. Passavant Memorial Hospital, 237 NLRB 138 (1978).
2. Staff scheduling
a. The facts
Complaint paragraph 13(b) alleges that Respondent removed
staff scheduling duties from bargaining unit employees.
On December 17, 2007, Respondent by e-mail memo27 to
ICU RNs Paula Oakes and Susan Osher stated that effective
January 1, 2008, ICU Night-Shift Supervisor Rebecca Rigsby
and Director of Critical Care Services Liesel Buchner would be
responsible for the staffing schedules for both the day and night
shifts within ICU. Previously, both Oakes and Osher had pre-
pared the staff schedules in ICU. This change was made with-
out notice to or bargaining with CNA.
Oakes prepared the night-shift ICU RN’s work schedules for
at least 4 years. Oakes’ practice in preparing the schedules was
to post a tentative schedule 6 weeks in advance for the nurses to
sign indicating which days they wanted to work and what days
they wanted off. Oakes then took the tentative schedule home
and worked on it for 4 to 8 hours for which she was paid by
Respondent. In finalizing the schedule Oakes, in order to bal-
ance the need for nurses on a particular shift Oakes would talk
to individual nurses and negotiate with them to insure a suffi-
cient number of nurses per day. Oakes tried to accommodate
nurses’ requests for vacations and holidays off and had authori-
ty to approve vacation requests and days off by negotiating
with nurses in cases of conflicts. Only infrequently was it nec-
essary for Oakes to involve Buchner to resolve scheduling con-
flicts. Respondent contends that the RNs who work as charge
nurses in the Rideout ICU, including Heather Avalos, Tami
Clark, Paula Oakes, and Susan Osher are statutory supervisors.
Liesel Buchner is the director of critical care services and
supervises the Rideout ICU since November 2006. Prior to that
time she was supervisor of Fremont ICU for 6 months, and was
a staff nurse in CVICU for a year. She served as a charge nurse
in CVICU, in the Fremont ICU and occasionally since becom-
ing director of critical care services. Rebecca Rigsby is night
supervisor at Rideout ICU.
The evidence establishes that the ICU charge nurses have no
authority to hire, fire, discipline, or transfer employees. Charge
nurses have no authority to adjust grievances or reward em-
ployees. The focus of the testimony was upon the authority of
charge nurses to assign work to other ICU RNs.
The charge nurse on day shift is chosen by Buchner from a
pool of eight nurses while Rigsby, when she is not charge nurse
2 nights a week, chooses the night-shift charge nurse from a
pool of five nurses. There are usually seven RNs, including the
charge nurse on day shift and six RNs, including the charge
nurse on night shift. The charge nurse assigns RNs to patients.
Nurses work three 12 hours shifts per week, six shifts per pay
period. The record reflects that Avalos, Clark, Oakes, and
Osher worked less than 50 percent of their shifts as charge
nurse.
The Rideout ICU has 12 beds and California State law re-
quires that the ratio of patients to nurses be no more than 2 to 1.

27 GC Exh. 4.
Each ICU patient is assigned an acuity number based upon the
severity of the patient’s symptoms and the concomitant care the
nurse must provide. For patients whose acuity exceeds 90 the
attending nurse can have no other patients.
Avalos, who has been a charge nurse for 6 years and Clark
who has been a charge nurse for 15 years, both testified that 15
minutes prior to their shift as charge nurse they meet with the
night-shift charge nurse to get a report on the patients, includ-
ing their acuity and diagnosis. In making nursing assignments,
they first consider if the day-shift nurse had the patient the pre-
vious day and if so assigns the nurse to that patient to facilitate
continuity of care. They also consider the patient acuity num-
ber because if a patient has an acuity number over 90 there is a
mandated one-to-one relationship with the nurse assigned.
Two patients with acuity numbers under 90 are assigned to
remaining nurses. They also try to assign nurses to patients
located close to each other to facilitate ease of care. Since all
ICU RNs are qualified to perform nursing care, neither Avalos
nor Clark considers the relative skills of each RN in assigning
patients. When a new patient comes to the floor they assign the
first nurse who is available since the acuity of the new patient is
not usually known until the end of the shift.
Buchner testified that she acts as charge nurse occasionally
and contends that she considers the relative experience of the
RNs when assigning nurses to patients. In addition, she con-
siders the RN’s productivity and the acuity numbers of patients
when making assignments and midshift reassignments. Rigsby
also considered continuity of care when making assignments,
reviewing which nurse had a patient on the previous shift. Both
Buchner and Rigsby consider the acuity numbers of patients
together with nurses’ skills and expertise when making assign-
ments. However, neither Buchner nor Rigsby gave concrete
examples of nurses they considered more or less skilled or pro-
ductive. Neither did they relate examples of how they have in
the past matched patients’ needs with the skills of specific
nurses on their shifts.
I found the testimony of Avalos and Clark to be more inher-
ently believable than that of Buchner and Rigsby. Both Avalos
and Clark gave specific examples of how they assigned nurses
to patients while Buchner and Rigsby gave vague hypotheticals
of what factors they considered. In testifying concerning mak-
ing nursing assignments, Rigsby could not even remember the
name of a nurse she alleged had made an error with a patient
drip the week before she testified and Rigsby contradicted
Buchner as to whether charge nurses had authority to call in
nurses. Given the contradictions, lack of specific memory and
generality concerning charge nurse’s duties in assigning nurses
to patients, I do not credit the testimony of Buchner or Rigsby.
b. The analysis
It is counsel for the General Counsel’s position that by re-
moving the scheduling duties from employee RNs Oakes and
Osher it made an unlawful unilateral change in terms and con-
ditions of employment. Respondent counters that it was privi-
leged to remove the scheduling duties from Oakes and Osher
because they were supervisory duties and because Oakes and
Osher are statutory supervisors. Respondent argues that part-
time Charge Nurses Oakes and Osher assigned work. There is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1918
no contention that Oakes and Osher responsibly direct employ-
ees.
A supervisor is defined in Section 2(11) of the Act as:

[A]ny individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection with the
foregoing exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent judg-
ment.

In Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006),
the Board held that charge nurses may be supervisors where
they use independent judgment in assigning work to other em-
ployees that involves the exercise of authority that is more than
routine or clerical in nature. The burden is on the employer
who asserts supervisory status to prove use of independent
judgment in assigning work. In assessing whether a charge
nurse exercises independent judgment in assigning work the
Board said:

[W]e find that a judgment is not independent if it is dictated or
controlled by detailed instructions, whether set forth in com-
pany policies or rules, the verbal instructions of a higher au-
thority, or in the provisions of a collective bargaining agree-
ment. [footnote omitted.] Thus, for example, a decision to
staff a shift with a certain number of nurses would not involve
independent judgment if it is determined by a fixed nurse-to-
patient ratio. Similarly, if the registered nurse weighs the in-
dividualized condition and needs of a patient against the skills
or special training of available nursing personnel, the nurse’s
assignment involves the exercise of independent judgment . . .
if the assignment is made solely on the basis of equalizing
workloads, then the assignment is routine or clerical in nature
and does not implicate independent judgment, even if it is
made free of the control of others and involves forming an
opinion or evaluation by discerning and comparing data.28

Here, there are two overriding factors that make the ICU unique
in terms of nursing skills. First, there is no dispute that all ICU
nurses are qualified to care for any patient. Thus, all ICU nurses
are required by Respondent to be regularly certified in various
skills. According to Avalos and Clark all ICU RNs are equally
skilled. In this regard, it is particularly significant that neither
Buchner nor Rigsby identified particular ICU nurses who had
more skills than others and Avalos and Clark testified they
would assign any patient to any ICU RN. Avalos, Clark, and
even Rigsby assigned primarily based upon continuity of pa-
tients the RN had on her previous shift. Second, there is a state
mandated ratio of nurses to patients based upon severity of the
patient’s condition, assessed by acuity score. If a patient has an
acuity score over 90 that patient is the nurse’s only assignment.
All other nurses may be assigned no more than two patients.
Factors other than nurses’ skills also determine patient assign-
ment including the location of the patients in ICU. Thus, Ava-
los and Clark assign nurses to patients whose beds are close

28 Oakwood Healthcare, Inc., 348 NLRB 686, 693 (2006).
together.
Based upon the above facts, it does not appear that the ICU
charge nurses exercise independent judgment in the assignment
of patients to RNs but rather assignments are based on patient
ratios, acuity numbers, proximity of patient beds, and continui-
ty of care factors that are routine and clerical in nature. I con-
clude that the ICU charge nurses are not supervisors within the
meaning of the Act.
Having found that the ICU charge nurses are not supervisors,
it follows that the scheduling duties that Oakes and Osher per-
formed was bargaining unit work. The transfer of bargaining
unit work is a mandatory subject of bargaining and by transfer-
ring this work to nonunit employees without providing CNA an
opportunity to bargain violated Section 8(a)(5) of the Act. In re
Summa Health Systems, Inc., 330 NLRB 1379, 1388 (2000);
Pine Brook Care Center, Inc., 322 NLRB 740 (1996).
3. Surveillance cameras
a. The facts
Complaint paragraph 13(c) alleges that in April 2008 Re-
spondent installed a hidden surveillance camera in the wound
care office/break room at Rideout Memorial Hospital and com-
plaint paragraph 13(d) alleges that on May 19, 2008, Respond-
ent installed a hidden surveillance camera in the PACU/OR
break room at Rideout Memorial Hospital. By stipulation29 the
parties agreed that in April 2008 Respondent installed a hidden
surveillance camera in the wound care business office and on
May 19, 2008, Respondent installed a hidden surveillance cam-
era in the PACU/OR break room without notice to or bargain-
ing with the CNA and that both rooms are used by bargaining
unit nurses. The cameras were removed within 3 to 4 days.
b. The analysis
It is counsel for the General Counsel’s contention that the in-
stallation of the surveillance cameras was an unlawful unilat-
eral change in terms and conditions of employment. Respond-
ent avers that the camera’s installation was harmless.
The Board has held that the installation of hidden surveil-
lance camera in work and break areas is a mandatory subject of
bargaining. An employer who installs surveillance cameras
without bargaining with the union violates Section 8(a)(5) of
the Act. Anheuser Busch, Inc., 342 NLRB 560 (2004);
Trailmobile Trailer, LLC, 343 NLRB 95, 97–98 (2004). Re-
spondent’s installation of hidden surveillance cameras in the
wound care business office and in the PACU/OR break room
without notice to or bargaining with the CNA violated Section
8(a)(5) of the Act.
4. Bypassing the Union
a. The facts
Complaint paragraph 15 alleges that Respondent bypassed
CNA on January 8, 2008, and dealt directly with bargaining
unit employees by soliciting their interest in having Saturday
shifts staffed as regular shifts rather than on-call shifts. The
parties stipulated30 that on January 8, 2008, Respondent’s su-

29 GC Exh. 2.
30 Id.
FREMONT MEDICAL CENTER

1919
pervisor, Sharon Hoey, sent an email31 to bargaining unit RN
Valerie Smith soliciting her interest and the interest of RN Tri-
sha in making Saturday a scheduled shift rather than an on-call
shift. Respondent did not notify or give CNA an opportunity to
bargain about this proposed change.
b. The analysis
Counsel for the General Counsel argues that the Hoey memo
was an unlawful unilateral change in terms and conditions of
employment while Respondent replies that Hoey had no author-
ity to make the changes and no changes were made. The es-
sence of direct dealing with employees is the effect it may have
in eroding the Union’s position as the exclusive collective-
bargaining representative. SPE Utility Contractors, LLC, 352
NLRB 787 (2008); Modern Merchandizing, Inc., 284 NLRB
1377, 1379 (1987). East Tennessee Baptist Hospital, 304
NLRB 872 (1991), is clearly distinguishable from the facts of
this case since the change took place during the term of a con-
tract which gave the employer the right to make shift changes.
In this case Hoey, who Respondent admits was a supervisor,
made direct appeals to bargaining unit employees concerning a
mandatory subject of bargaining. It is precisely this type of
conduct that has the potential for eroding CNA’s position as the
exclusive collective-bargaining representative of the effected
nurses. I find that in bypassing CNA, Respondent violated
Section 8(a)(5) of the Act.
5. The information request
a. The facts
Complaint paragraph 16 alleges that since February 29,
2008, Respondent has refused to furnish CNA with information
that is necessary and relevant to its performance as the exclu-
sive collective-bargaining representative of unit employees.
On February 4, 2008, Respondent issued bargaining unit RN
Glenda Hrones (Hrones) a written warning dated December 21,
2008.32 On February 5, 2008, CNA filed an unfair labor prac-
tice charge in Case 20–CA–03380133 alleging, inter alia, that
Respondent violated Section 8(a)(5) of the Act by refusing to
furnish it with information necessary and relevant to the Un-
ion’s role as collective-bargaining representative. Respondent
has an internal grievance procedure34 that provides a grievance
may be filed within 5 working days of the day on which the
grievance arises.35 Respondent’s written warning to Hrones
indicates neither that she had a right to file an internal griev-
ance nor the time in which it must be filed. At some time prior
to February 19, 2007, Hrones filed a protest of her warning that
Booth did not consider a grievance.
On February 29, 2008, CNA Labor Representative Sharp
made an information request36 to Respondent’s labor relations
manager, Stephen Booth. The information request was made in

31 GC Exh. 5.
32 R. Exh. 22. The warning date is in error and should have read De-
cember 21, 2007.
33 GC Exh. 1(bb).
34 R. Exh. 23.
35 Booth admitted that he had authority to settle an employee’s inter-
nal grievance if it were filed outside the 5-day window.
36 GC Exh. 7.
the context of a written discipline given to bargaining unit RN
Glenda Hrones (Hrones) for unsatisfactory performance, dis-
courteous treatment of the public or other employees, indis-
criminate gossip, criticism, or spreading of rumors, unauthor-
ized discussion of patients or their conditions. Sharp requested
a copy of a report that Hrones had questioned a patient as to
why she was having her husband cared for in Respondent’s
facilities. Sharp asked if the report was not written for infor-
mation as to the source of the report, when it was received and
all documentation relating to the report, including witness’
statements and notes.
On February 29, 2008, Board Agent Max Peterson faxed a
letter to counsel for Respondent Laurence Arnold, that request-
ed the Respondent’s position concerning the allegations in un-
fair labor practice charge Case 20–CA–033801, including the
allegation that Respondent had failed to provide information
concerning the Hrones discipline.
On March 10, 2008, counsel for Respondent, Laurence Ar-
nold replied to Sharp’s information request.37 In his letter,
Arnold stated that written statements from employees did not
have to be turned over to the Union, that since Hrones had not
filed an internal grievance with Respondent, CNA had no need
for the information, and since CNA had filed an unfair labor
practice charge with the Board over Hrones discipline, Re-
spondent had no obligation to furnish the information.
b. The analysis
It is counsel for the General Counsel’s position that Re-
spondent was under an obligation to furnish CNA with infor-
mation relevant to the Hrones discipline since the information
was relevant to the Union’s duties in representing bargaining
unit employees. Respondent counters that it had no duty to
furnish the information since the CNA intended to use it in an
unfair labor practice investigation and since Hrones had not
filed an internal grievance.
It is axiomatic that a union is entitled to information that is
necessary and relevant to its duties as exclusive collective-
bargaining representative. NLRB v. Acme Industrial Co., 385
U.S. 432 (1967). The employer’s duty to furnish necessary and
relevant information extends to grievance initiation or pro-
cessing Postal Service, 337 NLRB 820 (2002).
However, the Board has also made clear that Board proce-
dures do not encompass prehearing discovery. Union-Tribune
Publishing Co., 307 NLRB 25 (1992). Thus, even if material
sought by a union would have been producible for collective
bargaining or other representational purposes, it is not produci-
ble as a substitute for discovery. Unbelievable, Inc., 318
NLRB 857 (1995).
Here, at the time CNA made its request for information in
the Hrones discipline case, it had already filed an unfair labor
practice charge alleging that Respondent had refused to furnish
information it had requested in conjunction with the Hrones
discipline. However, unlike the cases cited by Respondent, the
charge in Case 20–CA–033801 did not allege a violation of
Section 8(a)(1) or (3) of the Act. Thus, the information request
would not constitute the type of discovery prohibited by the

37 GC Exh. 8.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1920
Board in Saginaw Control & Engineering, Inc., 339 NLRB
541, 544 (2003). This is so since the information CNA re-
quested would not aid counsel for the General Counsel in estab-
lishing the elements of a violation of Section 8(a)(5) for refus-
ing to furnish the information.
Having found the information request does not constitute
prohibited discovery, it is necessary to address Respondent’s
defense that there was no grievance filed by Hrones or CNA.
This argument must fail for two reasons. Hrones rebuttal must
be considered as a timely grievance, particularly in view of the
fact that her discipline neither notified her that she had a right
to file an internal grievance nor did it warn her that she had 5
days to file the grievance, and Booth admitted that he had au-
thority to adjust grievances even after the time for filing an
internal grievance had passed. Given the fact that an internal
grievance procedure was available to Hrones, CNA was entitled
to the requested information in order to satisfy its duties as
Hrones collective-bargaining representative.
In refusing to furnish CNA the requested information, Re-
spondent violated Section 8(a)(5) of the Act.
On the basis of the above findings of fact and the record as a
whole and Section 10(c) of the Act, I make the following con-
clusions of law.
CONCLUSIONS OF LAW
1. Respondent has been at all times material an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Charging Party is, and has been at all times material,
a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent violated Section 8(a)(1) of the Act by engag-
ing in the following acts and conduct:
(a) Interrogating employees about union and other protected
concerted activities.
(b) Engaging in surveillance of employees’ Section 7 activi-
ties.
(c) Threatening employees with that they would not be
scheduled if they engaged in protected concerted activity.
4. Respondent violated Section 8(a)(1) and (3) of the Act by
refusing to schedule Hau Dao for her shifts on September 1 and
2, 2007, for engaging in protected activity.
5. Respondent violated Section 8(a)(1) and (5) of the Act
by:
(a) Refusing to bargain with the Union concerning attend-
ance and sick leave policy.
(b) Refusing to bargain with the Union concerning the instal-
lation of surveillance cameras.
(c) Refusing to bargain with the Union concerning the re-
moval of staff scheduling duties from bargaining unit employ-
ees.
(d) Refusing to provide the Union with information.
(e) By passing the Union and dealing directly with bargain-
ing unit employees concerning shift scheduling.
6. The unfair labor practices described above are unfair la-
bor practices within the meaning of Section 2(6) and (7) of the
Act.
7. The Respondents did not otherwise violate the Act as al-
leged in the second amended consolidated complaint, as
amended, and the remaining complaint allegations will be dis-
missed.
REMEDY
Having found that the Respondents violated the Act as set
forth above, I shall order that it cease and desist there from and
post remedial Board notices addressing the violations found.
The Respondents having discriminatorily failed to schedule
an employee, they must make her whole for any loss of earn-
ings and other benefits, computed on a quarterly basis from
date of the failure to schedule to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as comput-
ed in New Horizons, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]