Veritas Health Services, Inc. d/b/a Chino Valley Medical Center

National Labor Relations Board - Board Decisions

Apr 30, 2013

359 N.L.R.B. 992 (N.L.R.B. 2013)

992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 111
Veritas Health Services, Inc. d/b/a Chino Valley Med-
ical Center and United Nurses Associations of
California/Union of Healthcare Professionals,
NUHHCE, AFSCME, AFL–CIO. Cases 31–CA–
029713, 31–CA–029714, 31–CA–029715, 31–CA–
029716, 31–CA–029717, 31–CA–029738, 31–CA–
029745, 31–CA–029749, 31–CA–029768, 31–CA–
029769, 31–CA–029786, 31–CA–029936, and 31–
CA–029966
April 30, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On October 17, 2011, Administrative Law Judge Wil-
liam G. Kocol issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, a reply
brief, an answering brief to the Acting General’s excep-
tions, and an answering brief to the Charging Party’s
exceptions. The Acting General Counsel filed excep-
tions, a supporting brief, and an answering brief to the
Respondent’s exceptions. The Charging Party filed ex-
ceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs
1
and has decided to affirm the judge’s rulings,
findings,
2
and conclusions,
3
to modify his remedy,
4
and

1 In its motion to stay proceedings, the Respondent contends that the
Board lacks a quorum because the President’s recess appointments are
constitutionally invalid. The motion is denied. We recognize that the
United States Court of Appeals for the District of Columbia Circuit has
concluded that the President’s recess appointments were not valid. See
Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). However, as
the court itself acknowledged, its decision conflicts with rulings of at
least three other courts of appeals. See Evans v. Stephens, 387 F.3d
1220 (11th Cir. 2004), cert. denied 544 U.S. 942 (2005); U.S. v. Wood-
ley, 751 F.2d 1008 (9th Cir. 1985); U.S. v. Allocco, 305 F.2d 704 (2d
Cir. 1962). This question remains in litigation, and pending a definitive
resolution, the Board is charged to fulfill its responsibilities under the
Act. See Belgrove Post Acute Care Center, 359 NLRB 633, 633 1 fn. 1
(2013).
2 The Respondent has excepted to some of the judge's credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings. In adopting the judge’s credibility findings,
we find it unnecessary to rely on the adverse inferences drawn by the
judge based on the failure of the Respondent to call certain witnesses to
corroborate or rebut testimony of other witnesses at the hearing. In
addition, the Respondent asserts that the judge’s rulings, findings, and
conclusions demonstrate bias and prejudice. On careful examination of
the judge's decision and the entire record, we are satisfied that the Re-
spondent's contentions are without merit.
The judge stated that employee Ronald Magsino worked for the Re-
spondent from January 2005 until May 10, 2010. Magsino was in fact

employed by the Respondent until his discharge on May 20, 2010. The
judge also misstated that employee Rosalyn Roncesvalles’ supervisor,
Cheryl Gilliatt, was present at her March 31, 2010 meeting with Chief
Medical Officer James Lally, and that Tina “Yago,” rather than “Ar-
riaga,” was present during the May 14, 2010 meeting with Magsino and
Chief Nursing Officer Linda Ruggio. These inadvertent errors do not
affect our disposition of any issue in this case.
In exceptions to the judge’s finding that it violated Sec. 8(a)(1) by
issuing subpoenas duces tecum to employees, the Respondent argues
that the Petition Clause of the First Amendment protects its subpoena
requests. For the reasons fully set forth in Santa Barbara News-Press,
358 NLRB 1540 (2012), we find no merit in this argument.
We find it unnecessary to pass on the Acting General Counsel’s ex-
ception to the judge’s failure to find that statements made by the Re-
spondent in a May 6, 2010 meeting violated Sec. 8(a)(1) by threatening
employees with discipline, as such additional finding would be cumula-
tive and would not affect the remedy.
In its exceptions, the Union renews its request for litigation expens-
es, contending that the Respondent’s motion to reopen was frivolous.
We affirm the judge’s decision to deny the request because this case
does not present the level of truly frivolous litigation that warrants such
a remedy. Frontier Hotel & Casino, 318 NLRB 857, 864 (1995), enf.
denied Unbelievable Inc. v. NLRB, 118 F.3d 795 (D.C. Cir. 1997);
Waterbury Hotel Management LLC, 333 NLRB 482 (2001), enfd. 314
F.3d 645 (D.C. Cir. 2003).
3 In accordance with the Acting General Counsel’s exception, we
shall amend the judge’s Conclusion of Law 3 to specify the Union’s
status as a labor organization within the meaning of Sec. 2(5) of the Act
and its status as the exclusive representative of the Respondent’s unit
employees for the purpose of collective bargaining within the meaning
of Sec. 9(a) of the Act.
In adopting the judge’s conclusion that the Respondent unlawfully
discharged prounion employee Ronald Magsino, we agree in particular
with the judge’s finding that the Respondent’s asserted reason for Mag-
sino’s discharge—his alleged breach of HIPAA—was pretextual. As
the judge found, the Respondent failed to establish that Magsino’s
handling of certain medical records in defending himself against disci-
plinary action breached HIPAA. Indeed, as noted by the judge, the
Respondent conceded that HIPAA permits access to medical records
for the “resolution of internal grievances” like the one filed by Mag-
sino. Moreover, the evidence establishes that the Respondent granted
him permission to view, copy, and use the file in question for that pur-
pose, and there is no evidence that he exceeded the scope of that au-
thorization. In that respect, we agree with the judge’s rejection of the
Respondent’s contention that it had a good-faith belief that Magsino
had violated HIPAA. That the Respondent “seized upon the alleged
HIPAA violation” to discharge him is further corroborated by the fact
that, as found by the judge, the Respondent did not discipline either a
doctor or Manager Cheryl Gilliat, both of whom similarly accessed and
used the file in question in connection with Magsino’s grievance.
Finally, even had the Respondent concluded that Magsino was guilty of
misconduct, it initially advised him that he would be disciplined and
retrained, but then abruptly discharged him without any explanation for
the change. In all of those circumstances, we agree with the judge that
the Respondent’s HIPAA charge against Magsino was a “thinly veiled
attempt to disguise its unlawful motive.”
4 In accordance with our recent decision in Latino Express, Inc., 359
NLRB 518 (2012), we shall order the Respondent to compensate the
unit employees for the adverse tax consequences, if any, of receiving
lump-sum backpay awards and to file a report with the Social Security
Administration allocating the backpay awards to the appropriate calen-
dar quarters for each unit employee.
We shall also order the Respondent, in addition to our usual notice-
posting remedy, to mail copies of the notice to all per diem employees
CHINO VALLEY MEDICAL CENTER 993

to adopt the recommended Order as modified and set
forth in full below.
5

AMENDED CONCLUSIONS OF LAW
Substitute the following for the introductory paragraph
of the judge’s Conclusion of Law 3.
“3. United Nurses Associations of California/Union of
Healthcare Professionals, NUHHCE, AFSCME, AFL–
CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act and, since April 2, 2010, has been the
exclusive collective-bargaining representative of all of
the employees in the unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act.
By the following conduct Chino Valley has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and
(7) of the Act.”
ORDER
The National Labor Relations Board orders that the
Respondent, Veritas Health Services, Inc. d/b/a Chino
Valley Medical Center, Chino Valley, California, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to close the facility and terminate em-
ployees if they selected a union.
(b) Threatening employees with loss of benefits if they
selected the Union as their collective-bargaining repre-
sentative.
(c) Coercively interrogating employees about their un-
ion activities.
(d) Impliedly threatening employees with layoffs if
they supported a union.
(e) Telling employees that they might lose the family
atmosphere and flexibility of scheduling at Chino Valley
if they selected the Union.
(f) Giving employees the impression that their union
activities are under surveillance.
(g) Threatening to discipline employees because they
engaged in union activities.

and former employees employed at any time since the alleged unfair
labor practices. We find such a remedy necessary to effectuate the
policies of the Act because former employees lack access to the Re-
spondent’s facility and will not see the posted notice, and per diem
employees do not regularly report to the Respondent’s facility and thus
may not see the notice during the 60 days it remains posted.
5 We have modified the judge’s recommended Order to conform to
the violations found, specifically including the Respondent’s unlawful
unilateral change to wages, hours, and other terms and conditions of
employment, to add the notice-mailing remedy, and in accordance with
Latino Express, supra. We shall substitute a new notice to conform to
the Order as modified.
(h) Informing employees that they could no longer
take vacations longer than 2 weeks because the employ-
ees had selected the Union to represent them.
(i) Telling employees that the family atmosphere at
Chino Valley is over and that henceforth Chino Valley
would begin strictly enforcing its policies and proce-
dures, including tardiness, because the employees voted
for the Union.
(j) Broadly prohibiting employees from speaking to the
media, including about the Union or about terms and
conditions of employment.
(k) Serving subpoenas on employees and unions that
request information about employees’ union activities,
under circumstances where that information is not related
to any issue in the legal proceeding.
(l) Unilaterally changing wages, hours, and other terms
and conditions of employment of employees without first
giving the Union notice and an opportunity to bargain
about such changes.
(m) More strictly enforcing a tardiness rule and disci-
plining employees pursuant to that more strictly enforced
rule because employees supported the Union.
(n) More strictly enforcing a tardiness rule and disci-
plining employees pursuant to that more strictly enforced
rule without first giving the Union an opportunity to bar-
gain concerning the change.
(o) Disciplining employees who fail to attend manda-
tory meetings.
(p) Discharging or otherwise discriminating against
any employee for supporting the Union or any other un-
ion.
(q) Beginning to discipline employees who fail to at-
tend mandatory meetings without first giving the Union
an opportunity to bargain concerning the change.
(r) Terminating the practice of paying part-time em-
ployees for the time spent attending classes needed to
maintain the certifications necessary to perform their
work at Chino Valley without first allowing the Union an
opportunity to bargain concerning that change.
(s) Failing to provide the Union with requested infor-
mation that is presumptively relevant to the Union’s per-
formance of its representational duties.
(t) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment, notify and,
on request, bargain with the Union as the exclusive col-
lective-bargaining representative of employees in the
following bargaining unit:

994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

All full-time, regular part-time and regular per diem
registered nurses employed by the Employer at its 5451
Walnut Avenue, Chino, California facility in the fol-
lowing departments: Emergency Services, Critical Care
Services/Intensive Care Unit, Surgery, Post-Anesthesia
Care Unit, Outpatient Services, Gastrointestinal Labor-
atory, Cardiovascular Catheterization Laboratory, Ra-
diology, Telemetry/Direct Observation Unit and Medi-
cal/Surgical.

(b) Rescind the discipline imposed pursuant to stricter
enforcement of the tardiness rule and restore the practice
that existed prior thereto.
(c) Rescind the discipline imposed on employees who
failed to attend mandatory meetings.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline of
employees, and within 3 days thereafter notify the em-
ployees in writing that this has been done and that the
discipline will not be used against them in any way.
(e) Restore the practice of paying part-time employees
for the time spent attending classes needed to maintain
the certifications necessary to perform their work at Chi-
no Valley, and make whole, with interest compounded
daily, those employees for any losses resulting from the
unlawful termination of this practice.
(f) Furnish to the Union in a timely manner the follow-
ing information requested by the Union on April 9, 2010:
lists of employees including details as to full or part-time
status, hourly wage rates, wage increases, fringe benefits,
classifications, shifts, addresses and phone numbers, em-
ployee handbooks, company policies and procedures, job
descriptions, benefit plans, costs of benefits, and disci-
plinary notices.
(g) Within 14 days from the date of this Order, offer
Ronald Magsino full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(h) Make Ronald Magsino whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(i) Compensate Ronald Magsino for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file a report with the Social Security Admin-
istration allocating the backpay award to the appropriate
calendar quarters.
(j) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Ronald Magsino, and within 3 days thereafter notify him
in writing that this has been done and that the discharge
will not be used against him in any way.
(k) 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.
(l) Within 14 days after service by the Region, post at
its facility in Chino, California, copies of the attached
notice marked “Appendix.”
6
Copies of the notice, on
forms provided by the Regional Director for Region 31,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In addition, within 14
days after service by the Region, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all per diem employees and former employees
employed by the Respondent at any time since March 8,
2010. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since March 8, 2010.
(m) Within 14 days after service by the Region, hold a
meeting or meetings, scheduled to ensure the widest pos-
sible attendance, at which the attached notice is to be
read to the employees by a responsible management offi-
cial or by a Board agent in the presence of a responsible
management official.
(n) 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-

6 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.”
CHINO VALLEY MEDICAL CENTER 995

testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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 threaten to close the facility and termi-
nate employees if they selected a union.
WE WILL NOT threaten employees with loss of benefits
if they select the United Nurses Associations of Califor-
nia/Union of Healthcare Professionals, NUHHCE,
AFSCME, AFL–CIO (the Union) as their collective-
bargaining representative.
WE WILL NOT coercively interrogate employees about
their union activities.
WE WILL NOT impliedly threaten employees with
layoffs if they support a union.
WE WILL NOT tell employees they might lose the fami-
ly atmosphere and flexibility of scheduling at Chino Val-
ley if they selected the Union.
WE WILL NOT give employees the impression that their
union activities are under surveillance.
WE WILL NOT threaten to discipline employees because
they engaged in union activities.
WE WILL NOT inform employees that they can no long-
er take vacations longer than 2 weeks because the em-
ployees had selected the Union to represent them.
WE WILL NOT tell employees that the family atmos-
phere at Chino Valley is over and that from now on Chi-
no Valley would begin strictly enforcing its policies and
procedures, including tardiness, because the employees
voted for the Union.
WE WILL NOT broadly prohibit employees from speak-
ing to the media, including about the Union or about
terms and conditions of employment.
WE WILL NOT serve subpoenas on employees and un-
ions that request information about employees’ union
activities, under circumstances where that information is
not related to any issue in the legal proceeding.
WE WILL NOT unilaterally change wages, hours, and
other terms and conditions of employment of employees
without first giving the Union notice and an opportunity
to bargain about such changes.
WE WILL NOT more strictly enforce a tardiness rule and
discipline employees pursuant to that more strictly en-
forced rule because employees supported the Union.
WE WILL NOT more strictly enforce a tardiness rule and
discipline employees pursuant to that more strictly en-
forced rule without first giving the Union an opportunity
to bargain concerning the change.
WE WILL NOT discipline employees who fail to attend
mandatory meetings.
WE WILL NOT discharge or otherwise discriminate
against employees for supporting the Union or any other
union.
WE WILL NOT begin disciplining employees for failing
to attend mandatory meetings without first giving the
Union an opportunity to bargain concerning the change.
WE WILL NOT terminate the practice of paying part-
time employees for the time spent attending classes
needed to maintain the certifications necessary to per-
form their work at Chino Valley without first allowing
the Union an opportunity to bargain concerning that
change.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment, no-
tify and, on request, bargain with the Union as the exclu-
sive collective-bargaining representative of employees in
the following bargaining unit:

All full-time, regular part-time and regular per diem
registered nurses employed by the Employer at its 5451
Walnut Avenue, Chino, California facility in the fol-
lowing departments: Emergency Services, Critical Care
Services/Intensive Care Unit, Surgery, Post-Anesthesia
Care Unit, Outpatient Services, Gastrointestinal Labor-
atory, Cardiovascular Catheterization Laboratory, Ra-
diology, Telemetry/Direct Observation Unit and Medi-
cal/Surgical.
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

WE WILL rescind the discipline we imposed as a result
of our stricter enforcement of the tardiness rule and re-
store the practice that existed prior thereto.
WE WILL rescind the discipline we imposed on em-
ployees who failed to attend mandatory meetings.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discipline of employees, and WE WILL, within 3 days
thereafter, notify the employees in writing that this has
been done and that the discipline will not be used against
them in any way.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ronald Magsino full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Ronald Magsino whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest compounded
daily.
WE WILL compensate Ronald Magsino for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file a report with the Social Se-
curity Administration allocating the backpay award to
the appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Ronald Magsino, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
WE WILL restore the practice of paying part-time em-
ployees for the time spent attending classes needed to
maintain the certifications necessary to perform their
work at Chino Valley, and WE WILL make whole those
employees for any losses resulting from the unlawful
termination of that practice, with interest compounded
daily.
WE WILL furnish to the Union in a timely manner the
relevant information requested by the Union on April 9,
2010.
VERITAS HEALTH SERVICES, INC. D/B/A CHINO
VALLEY MEDICAL CENTER
Joanna F. Silverman and Simone Pang, Esqs., for the General
Counsel.
Theodore R. Scott and Brady J. Mitchell Esqs. (Littler Mendel-
son, P.C.), of San Diego, California, for the Respondent.
Lisa C. Demidovich, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Los Angeles, California, on June 6–10 and 15,
2011. The United Nurses Association of California/Union of
Healthcare Professionals, NUHHCE, AFSCME, AFL–CIO (the
Union) filed the first charge on May 7, 2010,1 and the General
Counsel issued the order consolidating cases and consolidated
complaint on February 23, 2011.
The complaint alleges that Veritas Health Services, Inc. d/b/a
Chino Valley Medical Center (Chino Valley) violated Section
8(a)(1) of the National Labor Relations Act (the Act) by threat-
ening employees with loss of employment, termination, and
adverse consequences if they supported a union, threatening
and impliedly threatening employees with a reduction in bene-
fits if employees supported a union, interrogating an employee
about union activities, telling employees that since employees
chose union representation they would lose previously-enjoyed
benefits, threatening employees that it would more rigorously
enforce its policies and enforce previously unenforced policies
since the employees chose union representation, instructed
employees not to speak to third parties and/or the media about
their protected concerted activities and/or their terms and con-
ditions of employment, threatening to discipline employees
since they chose union representation, creating the impression
among employees that their union and/or protected concerted
activities were under surveillance, and issuing subpoenas duces
tecum to employees and union representatives requiring them
to produce communications with each other and signed authori-
zation and membership cards.2
The complaint alleges that Chino Valley violated Section
8(a)(3) by discharging employee Ronald Magsino because he
supported the Union.
The complaint also alleges that Chino Valley violated Sec-
tions 8(a)(3) and (5) by beginning to enforce a rule requiring
employees to be present for mandatory meetings and disci-
plined employees who broke this rule; beginning to enforce a
rule requiring employees to clock in for their shifts at their start
times, without any grace periods, and disciplined employees
who broke this rule, all because employees engaged in union
activities and all without first giving notice to the Union and
giving it an opportunity to bargain about the changes.
Finally, the complaint alleges that Chino Valley violated
Section 8(a)(5) when it notified employees that they could not
make shift changes once schedules are posted, and ceased re-
imbursing employees who are not full-time for time spent at-
tending certification classes,3 without first giving notice to the
Union and giving it an opportunity to bargain about the changes
and by refusing to provide the Union with requested and rele-
vant information.
Chino Valley’s answer admitted the allegations in the com-
plaint concerning the filing and service of the charges, jurisdic-

1 All dates are in 2010, unless otherwise indicated.
2 At the trial, I granted the General Counsel’s motion to withdraw an
allegation in the complaint concerning a Weingarten violation.
3 At the trial, I granted the General Counsel’s motion to withdraw
the portion of this allegation concerning failure to reimburse expenses.
CHINO VALLEY MEDICAL CENTER 997

tion and interstate commerce, the Union’s labor organization
status, certain agency and supervisory status, appropriate unit,
the election, the request and refusal to provide information, and
the termination of Magsino. It denied that the Union had 9(a)
status, the relevance of the requested information, and that it
committed any unfair labor practices. Finally, it admitted that
the Board certified the Union but denies that the certification is
valid. The answer set forth a number of affirmative defenses.
On the entire record,4 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Chino Valley, and the Union, I make
the following
FINDINGS OF FACT
I. JURISDICTIION
Chino Valley, a corporation, operates an acute-care hospital
at its facility in Chino, California, where it annually derives
gross revenues in excess of $250,000 and purchases and re-
ceives goods or services valued in excess of $5000 directly
from points outside California. Chino Valley admits, and I find
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Chino Valley employs about 560–570 persons of whom
about 130–135 are nonsupervisory registered nurses. The elec-
tion was conducted on April 1 and 2. The Union won the elec-
tion 72 to 39, Chino Valley filed objections, and on January 25,
2011, the Board overruled the objections and certified the Un-
ion as the collective-bargaining representative of the unit em-
ployees. Chino Valley has refused to recognize the Union and
continues to test the validity of the certification.
During the election campaign Chino Valley distributed cam-
paign leaflets to employees urging them to vote “no.” One of
the leaflets announced:

PROTECT YOUR FLEXIBILITY!
What Might Happen If A Union Contract Locks In Working
Rules That Don’t Fit Individual Needs?
Have You Ever . . .
. . . .

had your schedule rearranged to make it to school or another
job?
changed your schedule with a co-worker after it was posted?

. . . .

made an honest mistake and your director treated it as nothing
more than a lesson learned (our practice of “Just Culture)?[”]
. . . .

4 Chino Valley’s unopposed motion to correct transcript is granted.
Contracts require complete and consistent obedience to what
is spelled out in the contract. If privileges that you value now
are not in the contract, the rules in the contract will prevail.
CAN UNAC GUARANTEE THAT ANY OF THOSE
THINGS WILL BE IN A UNION CONTRACT?
B. Alleged 8(a)(1) Violations
The complaint alleges that on about March 8 Chino Valley
threatened employees with loss of employment if employees
supported the Union. Lisa Metheny works part time as a regis-
tered nurse for Chino Valley. She has worked there for 16
years. On March 8, Roberta (Robin) Buesching, a labor con-
sultant hired by Chino Valley to speak to employees about the
Union, visited Metheny’s work area. Metheny heard
Buesching tell two other nurses that during negotiations, if
lawyers were going “head-to-head” and management wouldn’t
give anything else, there could be a strike. Buesching said that
Chino Valley could bring in nurses from other facilities to re-
place them and Chino Valley could possibly keep some of
those nurses at Chino Valley to work. One of the employees
appeared frightened and asked Buesching if Chino Valley
would let her continue to work. Buesching assured the em-
ployee that it would and then said, “You know, also the hospital
could be closed down and they could fire all the nurses and
then reopen it and keep some of the nurses if they want and
bring in others from other facilities.”
The facts in the preceding paragraph are based on Metheny’s
testimony. Metheny’s demeanor was convincing. Importantly,
she did not strike me as a person with the knowledge to simply
invent the fine-line distinctions presented by her testimony.
Moreover, Chino Valley’s cross-examination established that
Metheny’s testimony was consistent with the affidavit she had
earlier given the Board during the investigation of the charge.
Buesching denied making those statements but I did not find
her to be a convincing witness.
Analysis
While Chino Valley lawfully told employees of the possibil-
ity of a strike and consequent permanent replacement of em-
ployees, Buesching also said that Chino Valley could close
down, fire the employees, and then reopen; the latter statements
are clearly unlawful. By threatening to close the facility and
terminate employees if they selected a union, Chino Valley
violated Section 8(a)(1). NLRB v. Gissel Packing Co., 395 U.S.
575, 618 (1969).
The complaint alleges that Chino Valley impliedly threat-
ened an employee with reduction of benefits if employees sup-
ported the Union. Teer Lina has worked for Chino Valley since
2000 and works in the emergency room. Her supervisor is
Cheryl Gilliatt. But during a time before the election, Carlos
Gonzalez was emergency room supervisor. One day before the
election, Lina was summoned into Gonzalez’ office where
Gonzalez handed her the leaflet described above and said how
the relationship between management and the employee would
change when the Union was elected. Gonzalez then mentioned
how Lina took her vacation an entire month overseas. Lina did
not respond. These facts are based on Lina’s credible testimo-
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ny. Gonzales, who is no longer employed by Chino Valley, did
not testify at the hearing.
It will be recalled that the leaflet Gonzalez gave to Lina de-
scribed how current flexibility could be lost if the Union was
selected. Gonzalez then mentioned how Lina took her vaca-
tion for an entire month as she went to visit her home country.
The implication was clear: Lina might not be able to take a 1-
month vacation if the Union was selected by the employees as
their bargaining representative. The coerciveness of the state-
ment was heightened by the fact that she was summoned to
Gonzalez’ office. By threatening employees with loss of bene-
fits if they selected the Union as their collective-bargaining
representative, Chino Valley violated Section 8(a)(1). Noah’s
Bay Area Bagels, LLC, 331 NLRB 188 (2000).
Continuing, the complaint alleges that Chino Valley threat-
ened employees with a reduction of benefits if employees sup-
ported a union. Ronald Magsino worked for Chino Valley from
January 2005 until May 10, 2010. His discharge is alleged to
be a violation of the Act and is discussed below. He worked as
a registered nurse in the emergency room. A couple of weeks
before the election he attended a meeting held in the conference
room at Chino Valley. Present were Ruggio and Susanne Rich-
ards, Chino Valley’s vice president of operations; less than 10
nurses were also present. Richards displayed slides about the
Union. She explained about employees paying dues, the bene-
fits employees already enjoyed at Chino Valley without the
Union, and that after negotiations, employees could end up with
more, the same or less benefits, and if the Union is selected,
communications with Chino Valley have to go through the
Union. Richards also said that if the Union gets voted in, the
employees might lose or would lose the family atmosphere and
flexibility of scheduling.
The foregoing facts are based on Magsino’s credible testi-
mony. Richards admitted having such a meeting and showing
slides to employees. She also testified that she had been trained
concerning what she could and could not say about a union to
employees. Importantly, however, she did not deny telling
employees that they might lose the family atmosphere and flex-
ibility of scheduling.
Analysis
As indicated, Richards stated that employees might lose the
family atmosphere and flexibility of scheduling at Chino Valley
if they selected the Union. By doing so Chino Valley violated
Section 8(a)1). Flagstaff Medical Center, 357 NLRB 659, 664
(2011); Gissel Packing, supra.
Next, the complaint alleges Chino Valley interrogated an
employee about her union activities and impliedly threatened
an employee with adverse consequences if employees support-
ed the Union. Rosalyn Roncesvalles has worked at Chino Val-
ley as a nurse for about 5-1/2 years and beginning in 2009 she
became a per diem employee. As such she generally works
only 1 day per week. She works in the emergency room where
Gilliatt is her supervisor. She is paid $35 per hour, plus $4 per
hour for the night shift, plus $1.50 as a mobile intensive care
nurse. Roncesvalles pictures, along with the pictures of many
other employees, appeared in fliers distributed by the Union
before the election; the pictures showed the employees holding
signs indicating that they supported the Union. On March 31,
Roncesvalles was instructed to go to the conference room be-
cause James Lally, Chino Valley’s chief medical officer, want-
ed to talk to her. Present in the conference with Lally were
Ruggio and two other persons. After Roncesvalles said good
evening, Lally asked how her evening was going. Roncesvalles
replied that it was going okay. Lally produced the flier with
Roncesvalles’ picture and asked if she knew about the flier.
Roncesvalles did not answer. Lally then looked at the flier and
said, “[W]here are you at? Let me look at you. Oh, there you
are. You look nice in this picture.” Lally said that he knew
that the signs the employees were holding were actually blank
when they took the picture and the language on the sign was
thereafter inserted into the blank sign held by the employees.
Again Roncesvalles did not reply. Lally then jokingly belittled
the flier and the employees appearing in it by saying that it was
a good thing they didn’t fill in blank sign held by one employee
with “you’re stupid” and an arrow pointing to the picture of
another employee and filling the blank sign of that employee
with “you’re dumb” and an arrow pointing back to the first
employee. Lally then asked Roncesvalles how long she had
worked at Chino Valley; she replied she had worked there
about 5 years. He then asked whether Chino Valley had “laid-
off anyone during the five years” and she said, “No.” Lally
added that Chino Valley had “been through a lot of crises and
still did not layoff anyone,” Roncesvalles replied,“[Y]es.”
Lally ended by saying that he “knows what’s going on in Chi-
no . . .” and that he does not like the Union and he wanted Ron-
cesvalles to vote no for him because they had a good working
relationship even without the Union. Lally then mentioned that
there was food available and Roncesvalles could help herself;
Roncesvalles declined the offer. Roncesvalles had never before
personally met Lally.
As further background, the Union admitted that Lally was
correct when he asserted that some employees held blank signs
that were thereafter filled in with words of support for the Un-
ion.
The facts in this section are based on Roncesvalles’ credible
testimony which seemed to have good recall of this meeting.
Lally did not testify. I infer that his testimony would not have
been helpful to Chino Valley.
Analysis
Questioning employees about their union activities is not
necessarily a violation of the Act. Rather, all relevant circum-
stances must be considered to determine whether the interroga-
tion was coercive. Rossmore House, 269 NLRB 1176 (1984).
On the one hand, Roncesvalles was an open supporter of the
Union; her picture appeared in a flier distributed to employees.
On the other hand, the questioning was repetitive in the sense
that Lally asked about whether Roncesvalles had seen the flier,
where her picture appeared in the flier, and whether she knew
that some employees in the flier had actually been holding
blank signs. Importantly, Lally did not disclose to Ronces-
valles the sources of his information; this might have made the
questioning more rhetorical and less inquisitorial in nature.
Lally was one of Chino Valley’s highest ranking officials.
Indeed, Roncesvalles had never met him before this meeting.
CHINO VALLEY MEDICAL CENTER 999

The location of the interrogations occurred away from the work
floor in a conference room. Roncesvalles’ supervisor, Gilliatt,
was also in attendance. Roncesvalles faced Lally and Gilliatt
alone. Under all the circumstances, I conclude that the ques-
tioning was coercive. By coercively interrogating employees
about their union activities, Chino Valley violated Section
8(a)(1).
As described above, Lally then asked Roncesvalles how long
she had worked at Chino Valley and she replied she had
worked there about 5 years. He then asked whether Chino
Valley had laid off anyone during the 5 years; she said no.
Lally added that Chino Valley had been through a lot of crises
and still did not layoff anyone; Roncesvalles replied yes. Lally
ended by saying that he “knows what’s going” on in Chino, that
he does not like the Union and he wanted Roncesvalles to vote
“no” for him because they had a good working relationship
even without the Union. Lally thereby raised the matter of the
lack of layoffs, even through hard times, and then linked that
subject to how he did not like unions and said he wanted Ron-
cesvalles to vote “no” in light of their good working relation-
ship. Implicit in these comments was that with a union, Lally’s
good working relationship with Roncesvalles would end and
layoffs could occur. By impliedly threatening employees with
layoffs if they supported a union, Chino Valley violated Section
8(a)(1). National Assn. of Government Employees, 327 NLRB
676, 680–681 (1999), and cases cited therein.
The complaint also alleges that Chino Valley threatened an
employee with termination because of his union activities and
created the impression among its employees that their union
activities were under surveillance. A couple of days after the
election, Lally again spoke to Magsino, this time at an ambu-
lance bay. Lally said he was going to give Magsino a warning.
Lally said that Magsino had been really good about the whole
union thing and they were saying that Magsino violated the
solicitation policy. Lally continued, saying that they saw Mag-
sino in a camera talking to a group of nurses during work hours
and organizing something. When Magsino replied, “Dr. Lally .
. .” he was not allowed to continue as Lally said he knew it was
crap and they are making him do it. He said that the policy had
been in place for a while and that he thinks the Union would be
able to protect Magsino. Magsino asked when he could expect
the letter; Lally said anytime before the end of the day. Mag-
sino asked whether he would be written up or suspended: Lally
said no, that it was grounds for termination. Apparently the
plan of action described by Lally was changed, as nothing came
of the alleged solicitation and no warning was given.
The foregoing facts are based on Magsino’s credible testi-
mony. I again infer that had Lally testified, his testimony
would not have been helpful to Chino Valley.
Analysis
As indicated, Lally stated that Chino Valley had observed
Magsino on camera engaging in what Chino Valley thought
was union activity. This gave Magsino the impression that his
union activity was under surveillance. By doing so, Chino
Valley violated Section 8(a)(1). Flexsteel Industries, 311
NLRB 257 (1993). Lally also threatened to discipline Magsino
because of what Chino Valley perceived to be his union activi-
ties. By threatening to discipline employees because they en-
gaged in union activities, Chino Valley violated Section
8(a)(1).
The complaint also alleges that Chino Valley told employees
that since they chose union representation, they would lose
previously-enjoyed benefits. Terri Hower is a charge nurse and
an admitted supervisor for Chino Valley. After the election in
around late April, she announced to several nurses in the Te-
lemetry department that employees could no longer take vaca-
tions longer than 2 weeks. Employees, including Tyrone Cla-
vano, had previously been allowed to take vacations for periods
over 2 weeks.
These facts are based on Clavano’s credible testimony; at the
time Hower made the announcement he had recently returned
from an extended vacation in the Philippines. Hower, for her
part, did not deny making those statements but instead testified
that she could not recall making them.
Analysis
Hower’s announcement of the change in vacation policy was
not explicitly linked to the employee’s selection of the Union.
However, it came shortly after the election and was not accom-
panied by any other reason for the change. Remember that
before the election, as described above, Chino Valley explicitly
threatened employees that they would no longer be able to take
month long vacations if they selected the Union. And Hower’s
announcement occurred in the context of many other unfair
labor practices, described above and below. Under these cir-
cumstances, I conclude that the employees would reasonably
link the announcement with their selection of the Union to be
their collective-bargaining representative. In reaching this
conclusion I rely the Supreme Court’s admonition that we:

[M]ust take into account the economic dependence of the em-
ployees on their employer, and the necessary tendency of the
former, because of that relationship, to pick up implications of
the latter that might be more readily dismissed by a more dis-
interested ear.

Gissel Packing, supra at 617. By informing employees that
they could no longer take vacations longer than 2 weeks be-
cause the employees had selected the Union to represent them,
Chino Valley violated Section 8(a)(1).
Next, the complaint alleges that Chino Valley created the
impression among its employees that their union activities were
under surveillance. Dolly Casas is a charge nurse and an ad-
mitted supervisor for Chino Valley. In May, Tyrone Clavano
and other employees were having a conversation in the inten-
sive care unit. Casas approached the group and said, “[W]hat
are talking about because we’re supposed to know what you are
talking about.” These facts are based on Clavano’s credible
testimony. Casas testified that she did not recall saying those
words to Clavano and others and she did not remember much of
anything else she was questioned about. I did not find her de-
meanor convincing.
Analysis
Like the preceding complaint allegation, the comments here
were not explicitly linked to union activity. But here too, Chi-
no Valley had earlier unlawfully given an employee the impres-
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

sion that his union activity was under surveillance. For reasons
stated in the previous analysis section, I conclude that employ-
ees would reasonably make the connection to their union activi-
ties. By giving the impression to employees that their union
activities were under surveillance, Chino Valley violated Sec-
tion 8(a)(1).
Next, the complaint alleges that Chino Valley unlawfully
threatened to more vigorously enforce its policies and enforce
previously unenforced policies since employees chose union
representation and instructed employees not to speak to third
parties and/or the media about it. In early May, mandatory
meetings for unit employees were held in the first floor confer-
ence room. Present at various times for management were
Linda Ruggio, director of nursing, Arthi Dupher, director of
human resources, and Cheryl Gilliatt, manager. Lex Reddy,
Chino Valley chief executive officer, spoke at these meetings.
Reddy told the employees that the election was over and they
had to move on. He told the employees that from then on poli-
cies and procedures would be strictly enforced and that viola-
tors would be dealt with accordingly, being late and sick calls
would be monitored. He said that there would be no more fam-
ily atmosphere at Chino Valley. Reddy informed employees
that Chino Valley was contesting the results of the election
because the Union used charge nurses to intimidate the staff.
Reddy said that Chino Valley knew about the employees’
Weingarten rights but employees would be disciplined without
a union representative present. He informed employees that
someone had scratched Gilliatt’s car with a key and he dis-
played a photograph of the car and blamed this on the Union
He mentioned that someone had been negligent in the emergen-
cy room. Reddy continued, informing the employees that Chi-
no Valley would be hiring some additional nurses. He said
they should make the newly-hired employees feel welcome.
Reddy then instructed employees not to speak to the media but
rather they should through channels.
The foregoing facts are based on a composite of the credible
testimony of Teer Lina, Marlene Bacani, Vincent Hilvano,
Ronald Magsino, Yesenia De Santiago, Lisa Metheny, and
Tyrone Clavano. In this regard, I rely heavily on the testimony
of Clavano; he seemed to have a clear and accurate recollection
of what Reddy said at this meeting. Indeed, shortly after the
meeting he made notes of what was said there. I note that Red-
dy did not testify at the hearing; I infer that his testimony would
not have been favorable to Chino Valley. I have considered
Gilliatt’s and Dupher’s testimony concerning these meetings
but, I did not find their demeanor convincing; it seemed that
they were attempting to disclose only evidence helpful to Chino
Valley and withhold or gloss over testimony not so helpful.
For example, when Gilliatt was examined by the Union con-
cerning this meeting the following transpired:

Q. Okay. And do you recall who was present at that
meeting other than you and Lex Reddy?
A. No, I don’t recall.
Q. Do you recall anything that Lex Reddy said in that
meeting?
A. I don’t recall, no.
Q. Do you recall if Lex Reddy said anything about the
Union?
A. I really, it’s vague to me, the whole meeting. I
don’t recall. I’m sorry.
Q. Do you recall Lex Reddy showing a picture of your
car?
Analysis
The foregoing facts show that Reddy announced the end of
the family atmosphere at Chino Valley and that henceforth,
because the employees voted for the Union, Chino Valley
would begin strictly enforcing its policies and procedures, in-
cluding tardiness. By doing so Chino Valley violated Section
8(a)(1). Fieldcrest Cannon, Inc., 318 NLRB 470, 495 (1995),
citing United Artists Theatre, 277 NLRB 115 (1985). Reddy
also instructed employees not to talk to the media but instead
they should go through channels. In this regard Reddy did not
narrowly tailor this instruction to not speak to the media on
behalf of Chino Valley; rather it was a broad prohibition. Em-
ployees have a Section 7 right to speak to the media about the
Union and to concertedly discuss their terms and conditions of
employment. Kinder-Care Learning Centers, 299 NLRB 1171,
1172 (1990); Auto Workers Local 980, 280 NLRB 1378 (1986),
enfd. mem. 819 F.2d 1134 (3d Cir. 1987); Roure Bertrand
Dupont, Inc., 271 NLRB 443 (1984). By broadly prohibiting
employees from speaking to the media, including about the
Union or about terms and conditions of employment, Chino
Valley violated Section 8(a)(1). In its brief, the Union requests
that I find that a related rule in Chino Valley’s written confi-
dentiality policy is unlawful. I decline to do so. The rule is not
alleged to be unlawful in the complaint and the General Coun-
sel did not challenge the policy either at the hearing or in his
brief. The bare minimum of due process requires that a re-
spondent know ahead of time what it must defend against.
The complaint alleges that by serving subpoenas duces te-
cum on employees and the Union, Chino Valley violated Sec-
tion 8(a)(1) The hearing on the objections to the election began
on May 10. One of the issues in that hearing was whether the
conduct in favor of the Union by Chino Valley’s supervisory
charge nurses tainted the election results. Prior to that hearing,
Chino Valley served issued subpoenas duces tecum to current
or former employees and representatives of the Union request-
ing, inter alia, the following information:

Any and all documents relating to any communication during
the relevant time period between you and any representative
of the Union,

All authorization and/or membership cards signed by any
Charge Nurse during the relevant time period, including any
authorization and/or membership cards you signed, if you
were employed by Respondent as a Charge Nurse during said
period,

All authorization and/or membership cards signed by any RN
during the relevant period,

All documents relating to the distribution and/or solicitation
of Union authorization and/or membership cards during the
relevant time period.

CHINO VALLEY MEDICAL CENTER 1001

The subpoena advised employees that if they were never em-
ployed as a charge nurse during the relevant time period, Chino
Valley was willing to allow the documents to be produced to
the hearing officer for:

[A]n in camera inspection, whereupon only non-privileged
documents that are relevant to the Employer’s Objections are
provided to the Employer.

Tyrone Clavano has worked for Chino Valley as a registered
nurse since July 2005. He received a subpoena duces tecum to
appear at the hearing and he brought documents with him to
comply with the subpoena but he was not required to actually
give those documents to Chino Valley.
Analysis
Employers are generally not entitled to know which employ-
ees sign union cards. To do otherwise would discourage sup-
port for a union because employees might fear retaliation from
their employer if the employer was armed with information
concerning who had signed cards. National Telephone Direc-
tory Corp., 319 NLRB 420 (1995). However, under certain
circumstances employees can be required to reveal this infor-
mation. Guess?, Inc., 339 NLRB 432 (2003). Applying the
analysis set forth in that case, the information sought by Chino
Valley was not relevant to the issues at the objections hearing.
Had Chino Valley narrowly subpoenaed information concern-
ing the union activity of its supervisory charge nurses a differ-
ent conclusion might be reached. But here Chino Valley sought
information about employees’ union activities with other em-
ployees and with the Union.
In its brief, Chino Valley argues that by advising the em-
ployees of the possibility of an in camera inspection by the
hearing officer, it cured any otherwise unlawful requests. I
disagree. The harm is in the interrogation and the possibility
that the employees might feel compelled to produce evidence of
union activities by them and other employees to Chino Valley.
Also, antiunion employees might be quite willing to share with
Chino Valley the prounion activities of other employees. Chi-
no Valley also raises BE & K Construction Co., 351 NLRB 451
(2007). There, after remands from the Supreme Court concern-
ing the need for the Board to recognize the First Amendment
Rights of an employer, the Board concluded that the filing and
maintenance of a reasonably-based lawsuit does not violate the
Act. But here Chino Valley’s conduct went well beyond what
is protected by the First Amendment. It sought information
that, even under broad discovery rules, was not related to any
issue in the proceeding. In other words, Chino Valley’s con-
duct was not “reasonably based.” Certainly the Supreme Court
in BE & K did not intend to privilege a lawsuit to compel em-
ployees to disclose evidence of their union activities and the
union activities of others where that matter is not related to any
legitimate issue. I am mindful of the Supreme Court’s admoni-
tions to the Board that the Act should not be interpreted in a
manner that even chills the exercise of First Amendment rights.
But this is not such a case. Here Chino Valley sought under the
guise of subpoenas information that was not related to the legal
proceeding and which otherwise violated the Act. By serving
subpoenas on employees and unions that request information
about employees’ union activities, under circumstances where
that information is not related to any issue in the legal proceed-
ing, Chino Valley violated Section 8(a)(1). Dilling Mechanical
Contractors, 357 NLRB 544, 545 (2011).
C. The 8(a)(3) Allegation
The complaint alleges that Chino Valley fired Ronald Mag-
sino in violation of Section 8(a)(3). Magsino was a visible
supporter of the Union prior to the election; he talked to fellow
nurses about the Union, helped arrange meetings with the Un-
ion and nurses, and his picture appeared frequently in flyers
distributed by the Union. Indeed, a day or two before the elec-
tion Lally appeared at a nursing station in the emergency room
with such a flier in his hand and announced to Magsino that he
was a “movie star” because his picture appeared in the flyer
three times. Magsino smiled but said nothing.
I now turn to describing the events surrounding Magsino’s
termination. I first describe the written warning Chino Valley
gave Magsino; although this discipline is not alleged to be un-
lawful, it is intimately tied to his subsequent termination. I
alert the reader that Chino Valley contends that it fired Magsino
for violating the Health Insurance Portability and Accountabil-
ity Act of 1996 (HIPAA) in that he accessed certain medical
records and then copied a medical record that contained the
transaction number5 and a patient’s medical record; I do this so
that the reader may observe how Chino Valley itself handled
such information.
At some point the California Department of Public Health
inspected certain emergency room records. Thereafter Ruggio
advised Gilliatt that the Department had found that Magsino
and another employee, Yesenia De Santiago, did not take the
vital signs of a patient a second time before the patient was
discharged from the emergency room. Ruggio instructed Gilli-
att to give Magsino a written warning. On May 5, Gilliatt
summoned Magsino and showed him a final written warning,
dated May 4, concerning events that occurred on April 1. The
“reason for the action,” according to the written warning, was:

Unsatisfactory work performance. Per California Department
of Public Health surveyors, upon review during a complaint
survey it was found that the documentation failed to meet the
Standard of Care regarding appropriate re-assessment of a pa-
tient and failure to comply with Chino Valley Medical Cen-
ter’s Policy regarding re-assessment.

The “facts and events,” again according to the warning, were:

See attached. On 4–1–10, Ronald was the primary nurse for
patient MR# 178946. Ronald failed to obtain and document
updated vital signs to patient Discharge Summary.

Note the use and dissemination of the patient’s medical record
number. The warning warned:

Continued failure to comply with any hospital policy will re-
sult in immediate termination with cause.

5 The transaction number, otherwise described in the record a unit
number or job number, is the number Chino Valley attaches to the
transaction. This number may be used to locate and access the details
of what occurred during the transaction.
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Gilliatt said that she was giving Magsino a final written warn-
ing for unsatisfactory work performance. She explained that
the Department of Health had come in and did a random audit
of the charts and they discovered that Magsino and another
employee did not reassess the patient’s vital signs before releas-
ing the patient from the emergency room. Gilliatt showed
Magsino the nursing notes that Magsino had prepared concern-
ing his treatment of the patient. The nursing notes contained
the patient’s name, medical record number, and transaction
number. It also contained a description of the patient’s medical
condition and course of treatment. Gilliatt also showed Mag-
sino the emergency room report containing the doctor’s dicta-
tion regarding the patient visit; this document contains the pa-
tient’s name, date of birth, and medical record number and
describes how the patient was presented at the emergency
room, the patient’s signs and symptoms, and what the doctor
did in terms of treatment and decision making. Gilliatt also
showed Magsino Chino Valley’s patient reassessment policy.
Magsino looked at it and commented that the policy did not
mention any requirement that a nurse had to repeat taking a
patient’s vital signs before being discharged from the emergen-
cy room. Magsino then asked if he could leave Gilliatt’s office
to more carefully review the emergency room report. Gilliatt
allowed him to leave her office and also said that it was okay
for Magsino to view and print a copy of the emergency room
report as well; she wrote the patient’s name and medical record
number on a slip of paper and gave it to Magsino. Magsino
then left the office and went to the nursing station where he
accessed the electronic copy of his nursing notes and the emer-
gency room report. He also printed a copy of the emergency
room report. He then redacted the patient’s name from the
record using a marker, but he discovered that the name still
appeared as if engraved on the copy, so he made a copy of that
copy and then destroyed the original and first redacted copy of
the medical record. Magsino returned to Gilliatt’s office later
that day, this time accompanied by coworker Ahmed Kassim.
Magsino informed Gilliatt that he had reviewed the paperwork
and according to the doctor’s dictation the doctor was aware of
the patient’s blood pressure and the doctor was okay with the
patient being discharged. Magsino also stated that there was
nothing in the written policy concerning reassessment about
taking the patient’s vital signs. Rather, it indicates that the
nurse should review the patient’s chief complaint and that ac-
cording to his nurse’s notes he had done so. So he asked Gilli-
att why he was getting a final warning. Gilliatt answered that
Chino Valley was getting fined so that was why he was being
disciplined. Magsino asked if Gilliatt thought this was unsatis-
factory work performance and Gilliatt replied that she did not
make the warning, that management just asked her to give the
warning to him. Later that same day Gilliatt found Magsino at
the nurses’ station searching through material and writing
things on scratch paper; Gilliatt told him that he had to get back
to work and do his research at home. She admitted that she
allowed Magsino to take the policies home with him.
A day earlier, on May 4, Chino Valley also gave a similar
warning to Yesenia De Santiago. De Santiago was also a union
supporter and her photo also appeared in literature the Union
had distributed before the election. Like with Magsino warn-
ing, Gilliatt gave De Santiago the warning, explained that De
Santiago could challenge the warning, allowed her to access the
patient chart and wrote the patient’s name and medical record
number on a “sticky” for DeSantiago to use. Like Magsino, De
Santiago accessed the patient’s record and printed a copy of it.
Chino Valley invites its employees to use its internal griev-
ance procedure. On May 6, Gilliatt had given a copy of this
procedure to Magsino and urged him to use the procedure to
challenge his written warning. On May 12, Magsino vigorous-
ly challengd his discipline under the grievance procedure. As
described below, it is the content of that grievance that ulti-
mately leads to Magsino’s discharge. In his grievance Magsino
wrote how Gilliatt informed him that Ruggio had instructed
Gilliatt to give Magsino the final written warning. He went on
to describe how the medical records showed that the patient had
been presented to the emergency room complaining of flank
pain, how the emergency room doctor was aware of the pa-
tient’s high blood pressure, how the patient was in the emer-
gency room for less than a hour, and how the doctor, of course,
approved the discharge of the patient. He explained how the
policies and procedures required him to assess and reassess the
chief complaint of the patient—flank pain—and how he had
done so and documented that in his nurse’s notes. He stated
that he examined the policies and procedures provided to him
by Gilliatt and found nothing to indicate he should have reas-
sessed the patient’s blood pressure. He indicated:

If Chino Valley Medical Center would like RN’s to take re-
peat vital signs when a patient is in the ER for less than one
hour and the treating physician has ordered discharge know-
ing the initial vital signs, it must revise its policy regarding re-
assessment accordingly.
. . . .

I respectfully request that the final written warning be re-
moved from my file immediately, and that I receive written
notification of the Hospital’s decision.

Providing the highest quality of patient care is my constant
objective, and I will continue to follow all known policies,
standards of care, orders, and directives when treating patients
in the ER.

Magsino had a number of documents attached to his grievance.
One attachment was a copy of the emergency room report.
This report describes the patient’s condition upon arrival at the
emergency room and the results of the physical examination. It
sets forth the diagnostic data and how the doctor apparently
treated the patient’s complaint of flank pain with pain relief
medication. Magsino was careful to redact the patient’s name
from the emergency room report. However, the medical record
and transaction numbers remained in the attachment that Mag-
sino provided to Chino Valley personnel. Another attachment
was from the emergency room doctor that read as follows:

To whom it may concern,

In reference to unit # 178946, Ronald [Magsino] did inform
me regarding her blood pressure. There was no indication for
treating patient’s blood pressure at the time. I did not order
CHINO VALLEY MEDICAL CENTER 1003

any medications for her blood pressure. I reminded the pa-
tient to take her medications regularly.

In other words, the patient was already taking medication to
control her blood pressure (Lipitor) and the doctor reminded the
patient to take that medication regularly. The reader should
note that the emergency room doctor also disclosed the transac-
tion number involved.
Also attached to the grievance were a number of testimonials
such as:

To Whom It May Concern:

I’ve had the pleasure of working with Ronald Magsino for 4
years. He is an excellent nurse and has always worked and
conducted himself at the highest level. He takes pride in his
work and is an outstanding nurse. Any questions about his
dedication or commitment are without merit. Ronald has my
complete confidence and support.

Sincerely,

Jose J. Diaz, M.D.
Chino Valley Emergency Department
Assistant Clinical Professor of Emergency Medicine
Western University Medical School

Another testimonial read:

To Whom It May Concern:

My name is Lisa Giles and Ronald Magsino is one of my co-
workers in the Emergency Room at Chino Valley Medical
Center. In regards to his character he is always a team player
and always willing to help his co-workers when they are in
need. He has proven to be a great patient advocate by always
putting their needs first. He continues to provide excellent pa-
tient care by furthering his education to learn better and more
effective ways to help his patients. His kind and compassion-
ate nature makes him a great asset to the ER and I am honored
to work with him. Furthermore, I look forward to him men-
toring me as I transition from EMT to RN. Thank you for
your time and consideration.

Sincerely,
Lissa Giles, EMT

Others descriptions included:

Ronald is a positive, influential, and inspiring person to me
and in my work experience.
Working with Ronald has not only been a pleasure but a privi-
lege.

and

I’ve seen Ronald take a deep interest in the lives of many of
the people he comes in contact with. For example, Ronald
taught me not only the value of helping others, but the im-
portance of loyalty and commitment.

Ronald has many good qualities—he is caring, efficient, fair-
minded, helpful, hard working, diligent and organized to
name a few. Instead, I would simply like to state as a fellow
co-worker, it is a pleasure to work with Ronald.

and

I know I can always depend on Ronald as my greatest re-
source. He is highly enthusiastic and very motivated when it
comes to patient care. Ronald has excellent bed-side man-
ners, very sensitive o patient’s needs. Patient’s respond to
him with a smile and patients have told me, “He’s such a nice
nurse!”

and

I would like to take a moment to put into writing what an
OUTSTANDING nurse Ronald Magsino is. His bedside
manner is incredible, his knowledge is remarkable. He is
such an inspiration to everyone around him. He always has a
positive attitude and is always one step ahead to insure a great
patient outcome.

I am currently an LVN and I hope one day I can be as great of
an RN that Ronald is. It’s hard to express in writing what a
key attribute he is to our nursing staff. No words can really
sum him up or adequately stat how great Ronald is.

Per Chino Valley’s grievance procedure Magsino submitted the
grievance with the attachments to the human resources depart-
ment.
On May 14 Magsino was summoned to Ruggio’s office.
There with Ruggio was Tina Yago, head of information tech-
nology. Ruggio said that on April 5 Magsino had viewed and
printed a chart of a patient. After checking his schedule on his
mobile phone to see if he worked that day, Magsino said that he
had no idea why the record was printed that day and that the
only thing he could think of was that he left his computer open
and someone printed the patient record. Ruggio said that was a
HIPAA violation.6 Ruggio then said that Magsino had printed
the chart of the same patient on May 5 and that was a HIPAA
violation as well. Magsino explained that this was the time he
received the final written warning from Gilliatt and Gilliatt
gave him permission to copy the chart. Ruggio said that she
would talk to Gilliatt about that. Ruggio asked what Magsino
did with the record he printed. Magsino explained that after he
printed the record he redacted with a marker the patient’s name,
birth date, date of service and left only the patient’s medical
record number and transaction number for reference. He ex-
plained that even after the redaction the patient’s name re-
mained engraved on the copy, so he printed a copy of the re-
dacted version and shredded the original copy. Gilliatt said that
was a violation also. Magsino retorted that when Gilliatt gave
him the final written warning on May 5, she had an unredacted
copy of the patient’s record that included that patient’s name,
date of birth and date of service. Ruggio said that she would
talk to Gilliatt about that also. Finally, Ruggio asked whether
Magsino included a copy of the medical record with his griev-
ance. After Magsino replied that he did, Ruggio stated that was
another HIPAA violation. Magsino explained that he attached
the redacted version in his grievance. Magsino asked if they
wanted the copy of the medical record that he had retained;
after Ruggio said yes Magsino left the office and retrieved the

6 Chino Valley later excused Magsino from any wrongdoing con-
cerning this April 5 incident.
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

copy from his backpack in his locker and came back gave it to
her. Ruggio said that was another HIPAA violation.
On May 19 Ruggio prepared a “Potential Privacy Breach
Reporting Form” describing the events involving Magsino and
De Santiago and the potential HIPPA breaches. In that report
Chino Valley acknowledged that Gilliatt did give Magsino and
De Santiago permission to access the patient’s medical record
and had written the patient’s name on a piece of paper so that
they could do so. Importantly, the report also stated:

It is the opinion of [Chino Valley] that there was no breach
when [Magsino and De Santiago] accessed the computer to
review the electronic record as [they] did believe that [they
were] accessing as part of [their] job because it was in direct
relation to a disciplinary counseling [they] had received.

The report indicated that Chino Valley would retrain and reed-
ucate both employees regarding accessing medical records and
HIPAA and that Magsino and De Santiago would be given
written warnings.
On May 20 Arti Dhuper, Chino Valley’s human resources
director, informed Magsino:

Thank you for the written dispute you submitted on May 12,
2010. I have conducted an investigation and the discipline
will not be overturned.

Please be assured that there will be no retaliation as a result of
your written dispute submitted on May 12, 2010.

Thus, Chino Valley never did address Magsino’s contention
that its existing policies did not require him to reassess the
blood pressure of a patient complaining of treated for flank
pain. After Dhuper gave Magsino this letter, she announced
that Magsino can no longer work there because of the HIPAA
violations; Remember the day before Ruggio reported that
Magsino would receive a written warning and be retrained and
reeducated. She gave him a termination notice that listed, un-
der the heading “Has the employee been counseled and re-
ceived counseling action for the same or similar reason” the
following:

5/4/10: Per California Department of Public Health survey-
or’s documentation, employee failed to meet standard of care
regarding appropriate re-assessment and discharge summary.

5/3/10: Not complying with the attendance policy (Policy
#400.402).

I note the apparent disconnect between the similarity of attend-
ance and patient care on the one hand and HIPAA matters on
the other hand. Later in this decision, I describe how Chino
Valley itself acknowledges this lack of similarity. Ruggio, who
was also at the meeting, said that Chino Valley contacted the
patient to advise the patient that there had been a breach in the
privacy of her medical record and also advised the California
Department of Public Health of the breach. Remember above
Ruggio wrote that there was no breach and as described below
Chino Ruggio explained that there were four counts of HIPAA
violations. First was when he viewed the chart on May 5; Re-
member the day before in the written report Ruggio acknowl-
edged that this was not a HIPAA violation. Second was print-
ing the chart. Third was making copies of the chart. Fourth
was when he put a copy of the chart in his backpack. Ruggio
then added that when he attached the medical record to his
dispute letter that was another violation of HIPAA.
That same day, May 20, Chino Valley sent a letter to the pa-
tient informing her of the accessing of her medical records. In
that letter Chino Valley found it important to advise the patient:

We were able to establish that your records were not distrib-
uted to anyone else and your personal information was never
compromised

After his termination for a period of time, Magsino was paid
in excess of $7000 while employed by the Union. He was no
longer employed by the Union at the time of the hearing in this
case.
Meanwhile, Yesenia De Santiago also submitted a grievance
concerning the warning she had received. She too printed a
copy of the patient’s medical record and was thereafter sum-
moned to Ruggio’s office. Gilliatt was also there. Among
other things, Ruggio told De Santiago that she had accessed a
patient chart and that was a HIPAA violation. De Santiago
replied that Gilliatt had given her permission to do so and in
fact had written the patient’s name and medical record number
on a “sticky” so that she could do so; Gilliatt confirmed that she
had done so. De Santiago also explained that otherwise she had
no idea which patient she was being warned about and there-
fore no way to challenge the warning. Ruggio then asked why
De Santiago had printed the medical record. De Santiago ex-
plained that she wanted to get the exact times to include in her
written grievance. Ruggio answered that it would have been
okay if Gilliatt had printed the record but it was not okay for De
Santiago to print it herself. Ruggio warned that De Santiago
might be fired or her record as a nurse might be blotted. How-
ever, unlike Magsino who was fired, De Santiago received a
written warning on May 24 for:

Breach of information; HIPAA violation. Accessed patient
electronic medical record and printed record without appro-
priate authorization.

This discipline is not alleged to be unlawful in the complaint.
Even so, De Santiago received this warning despite the fact that
Gilliatt had authorized her to access the record and had admit-
ted doing so in the meeting with Ruggio. When Ruggio gave
De Santiago a copy of the written warning, De Santiago asked
whether she was being fired now that she had received two
written warnings. Ruggio replied,“no” and explained that the
written warnings were unrelated to each other; one was for
treatment of a patient and the other was for HIPAA violations.
Remember above, Magsino’s identical two warnings were con-
sidered similar.
The facts in this section of the decision are based on Mag-
sino’s credible testimony. He impressed me as someone relat-
ing the facts to the best of his ability. His testimony is con-
sistent with the written documents described above and overall
consistency was again revealed during the cross-examination of
him by Chino Valley. They are also based on De Santiago’s
testimony. Her tearfulness while testifying was certainly not
staged for my benefit. Rather, it showed how these events viv-
CHINO VALLEY MEDICAL CENTER 1005

idly remained in her memory. In certain respects the testimony
of Magsino and De Santiago corroborated each other. For ex-
ample, both testified that Gilliatt allowed them to access the
patient records and gave them the patient’s name and medical
record number. I have considered but do not credit Gilliatt’s
testimony that she did not permit Magsino to copy the medical
record. Given her admissions that she allowed Magsino to
access the medical records and encouraged him to prepare a
grievance but also admonished him that he could not research
the matter while at work, her testimony in this regard seems
unlikely, given that Magsino certainly could not access the
medical records at home and as I have described elsewhere in
this decision, I have not generally found Gilliatt to be a credible
witness.
Importantly, records of the California Department of Public
Health show that the alleged breaches of HIPAA reported to it
by Chino Valley concerning Magsino and De Santiago were
“unsubstantiated” in that:

No breach actually occurred, no information was shared. It
was for personal use in defending themselves. (Internal P & P
breach).

According to documents used by Chino Valley:

HIPAA permits use or disclosure of PHI (personal health in-
formation) for health care operations, which includes the reso-
lution of internal grievances.

The term “breach” means the unauthorized acquisition, ac-
cess, use, or disclosure of PHI that compromises the security
or privacy of the PHI, unless the recipient would not reasona-
bly have been able to retain the information.
The term “breach” does not include:

1. Unintentional acquisition, access, or use of PHI by an em-
ployer or individual acting under authority of a covered entity
or business associate if:
a. The acquisition, access, or use was made in good
faith and within the course and scope of employment (or
other professional relationship); and
b. The PHI is not further acquired, accessed, used, or
disclosed by any person

Employees have mistakenly sent medical records to the
wrong address, thereby disclosing confidential information to
third parties; those employees were counseled. An employee
left a patient chart in a bathroom; Chino Valley considered that
to be a HIPAA violation. That employee received a verbal
warning and was reeducated. On another occasion, a patient’s
test order sheet was inadvertently given to the wrong patient;
Chino Valley regarded this as a HIPAA violation. There is no
evidence that the offending employee was disciplined. Of
course, as Chino Valley points out, there is a difference be-
tween an unintentional breach of HIPAA and an unauthorized
breach of HIPAA. However, there is no credible evidence as to
why that difference should result in different penalties, espe-
cially where the unintentional breaches result in the actual
compromise of a patient’s personal medical information, some-
thing that did not occur in Magsino’s case. Moreover, there is
no credible evidence that Magsino’s alleged breach was inten-
tional in the sense that he knowingly violated HIPAA. There is
not even credible evidence that Magsino should have even rea-
sonably known he was violating HIPAA because Chino Valley
never produced a written policy that covered this situation or a
training session or class that advised employees that they could
not access and print a medical record, even with a manager’s
permission. To the contrary, the evidence shows that the in-
formation Chino Valley supplied to Magsino would objectively
lead him to believe he was allowed to access the medical rec-
ords. For example, the information security agreement that
Chino Valley required Magsino to sign includes his agreement:

Not to operate or attempt to operate computer equipment
without specific authorization from supervisors.
Not to disclose any portion of a patient’s record except to . . .
a recipient authorized by the Hospital who has a need-to-
know in order to . . . discharge one’s employment or other
service obligation to the Hospital.

Other documents supplied by Chino Valley to Magsino indi-
cate:

HIPAA & Confidentiality

(Health Insurance Portability and Accountability Act of 1996)
All hospital personnel are obligated to protect patient privacy
rights, including any form of media that is electronic, paper,
oral, CD, or diskette. We value the confidentiality of our pa-
tients and information systems. Patient Health Information
(PHI) is given only to those who have an appropriate and au-
thorized need for this information. Patients have a right to
privacy regarding PHI.

In other words, Chino Valley informed Magsino that while
generally patient information should not be accessed or dissem-
inated, it could be accessed with permission (Magsino had
permission) and disclosed to those who had a need-to-know
related to their employment at Chino Valley (Magsino needed
to know in order to assert his employment related claim and HR
needed to know in order to understand his grievance). Remem-
ber, Magsino did not gain information about a patient’s medical
condition or course of treatment that he did not already know;
He treated the patient and Gilliatt had already shown him his
nurse’s notes and the doctor’s dictation.
I have considered the testimony of Suzanne Richards. She is
chief clinical officer and corporate compliance officer for Chi-
no Valley. Her many duties include overseeing patient privacy
issues. I conclude that her testimony is not credible as it per-
tains to the Magsino matter and I now explain why I reach that
conclusion. Among other things, she testified that Ruggio in-
formed her of a potential HIPAA breach when Magsino at-
tached a copy of a medical record to something he gave to hu-
man resources. Richards had the Information Technology De-
partment run a report concerning who had accessed the pa-
tient’s medical record. The computer-generated report revealed
that Magsino had accessed the patient’s medical records on
May 5 at 4:57 p.m. and then made a copy of a medical record.
Richards testified that she then informed Ruggio that:

1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

[T]here was activity on the patient’s medical record when the
patient was not in the hospital and I asked her to investigate a
potential privacy breach.

The report, of course, also showed that Gilliatt had accessed the
same patient’s medical record and printed a copy of the same
medical record that Magsino had printed; Gilliatt had a copy of
the record and showed it to Magsino when she disciplined him.
The report showed that this activity also occurred when the
patient was not in the hospital. Richards testified that she con-
cluded Magsino’s conduct violated HIPAA and she later volun-
teered that Magsino (and De Santiago as well) be terminated
for that conduct. When asked to explain why Gilliatt’s access-
ing and copying the patient’s medical report was not a HIPAA
violation, Richards first testified that she believed that it could
have been in connection with the state’s request to view and
copy the record; the state has a right to copy any record she
explained. But then she testified that after she asked Gilliatt
why Gilliatt accessed and copied the medical record she con-
cluded that Gilliatt was performing quality assurance and there-
fore properly accessed and copied the medical records. When I
asked Richards whether there was an exception in the law that
allows employees to access medical records and patient infor-
mation for use in internal grievance procedures she replied:

I would say no. We have a risk management policy that if
you need to access a medical record once that record is closed
you actually have to sit with the Risk Manager or you have to
sit with the Manager while you review that record. . . .

But Chino Valley never produced a copy of that policy, and no
one else testified as to its existence. Indeed, Gilliatt did not
follow such a policy; she admitted that she allowed both Mag-
sino and De Santiago to access the medical records without
anyone present while they did so. Ruggio was well aware of
this fact and never chastised Gilliatt for failing to follow this
alleged policy. And never in any of its written or verbal ac-
counts of the reasons for Magsino’s discharge did Chino Valley
ever mention that Magsino should have had a manager with
him when he accessed the medical records. I conclude Rich-
ards simply fabricated this testimony. And besides, she never
directly answered my question. Richards conceded that typical-
ly the California Department of Health calls Chino Valley after
Chino Valley reports an alleged breach of HIPAA and notifies
Chino Valley of the outcome of the Department’s investigation
and then follows by sending Chino Valley a copy of its written
report. However, when shown a copy of the California De-
partment of Health report, described above, that showed that it
concluded that no breach occurred, Richards was asked if she
had seen that report. She answered, “I’ve seen hundreds of
these forms.” Richards testified that she would not know that
report from any other report. I find this testimony incredible.
In response to questions that I asked concerning how the pro-
cess was to work when employees sought to disprove claims of
poor patient care on their part, Richards ended her testimony by
saying:

You’re not supposed to just access a medical record and write
an entire letter and then attach somebody’s personal health in-
formation to that record. I don’t know if that’s been brought
[up] here, but this tells you everything about this person. I
personally wouldn’t want that in somebody’s hand.

I make two comments about this testimony. First, it appears
that at that point Richards was mixing her personal views with
the existing policy that Magsino allegedly violated. Second, it
leads me to infer me that Ruggio never bothered to tell Rich-
ards that Magsino had redacted that patient’s name from his
copy of the medical record; Richards never testified that she
was informed of this fact. This is important because, as Ruggio
conceded, someone viewing Magsino’s copy of the medical
record would have no idea of who the patient was unless they
could access Chino Valley’s computer system and thereby con-
nect the patient with the medical record, but Chino Valley has
the ability, and indeed is required by law, to monitor such ac-
cess and act accordingly. In sum, if Magsino’s copy of the
medical record pertained to Richards, no one would have been
able to connect that record to her. I am left uncertain how, if at
all, Richards’ testimony would have changed if she had been
informed of this fact.
I also reject much of the testimony given by Linda Ruggio.
Parts of her testimony were given in response to leading ques-
tions, with Ruggio appearing eager to give the response sought
by the question. I have also examined the notes she made of
interviews during the investigation she conducted that lead to
Magsino’s termination. For example, the notes of her interview
of De Santiago do not indicate that De Santiago claimed that
Gilliatt allowed her access to the medical record but rather
curiously the notes do indicate that De Santiago understood that
she could not remove the records from the facility. Remember,
there was no assertion that De Santiago had done so. To that
extent it seems Ruggio was more concerned about building a
case against Magsino than conducting an impartial interview
and making accurate notes. Ruggio also had notes of her inter-
view of Gilliatt after Ruggio directed Gilliatt to interview Mag-
sino; those notes indicate that Gilliatt said that she:

[D]oes not recall ever telling [Magsino] it was okay to print as
long as he blanked out the pts name and but to leave the ac-
count # or the MR # for future research use.

By the time of trial, Ruggio testified that Gilliatt flatly denied
she ever permitted Magsino to print the medical record. Rich-
ards testified that Ruggio informed her that the California De-
partment of Public Health:

[D]id report that they were not going to give us any kind of
fine because they were happy with the disciplinary process of
(Magsino and De Santiago); that the reason they weren’t go-
ing to write anything was that the employee that took the rec-
ord out of the building was not going to have the opportunity
to take medical records because he had been discharged.

Of course, the Department said no such thing. This testimony
shows the depth of the fabrications that Chino Valley created to
justify its termination of Magsino.
Finally, I have considered the evidence proffered by Christy
Navarro. She was offered by Chino Valley as an expert witness
with respect to privacy issues involving California acute-care
hospital standards, practices, and procedures. I conclude she is
not qualified as an expert in those areas. Rather she is an em-
CHINO VALLEY MEDICAL CENTER 1007

ployee with training and experience in those areas; that is not,
of course, sufficient to qualify as an expert. Moreover, the
proffered testimony does not qualify as the type of scientific,
technical, or other specialized knowledge that would assist me.
Instead of offering expert testimony on how hospitals must deal
with HIPAA and related policies as they pertain to employee
use of medical records to defend themselves against discipline,
the proffered testimony dealt with the Navarro’s assessment of
the reasonableness of Chino Valley’s actions against Magsino.
Certainly under HIPAA Chino Valley must have a procedure in
place that allows employee access to medical records under
those circumstances yet safeguards patient privacy, but Navarro
offered no insight into that area. And to the extent that Navar-
ro’s testimony can read that employees must first get a lawyer
to do so, that testimony, standing alone, is simply not credible.
Analysis
I apply Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), to deter-
mine whether Chino Valley unlawfully discharged Magsino. I
have already described above Magsino’s union activity and
Chino Valley’s knowledge of that activity. Chino Valley’s
animus toward that activity is shown by the numerous unfair
labor practices it committed, as described both above and be-
low. Magsino was fingered as a union “movie star” and was
himself the subject of several unfair labor practices. His dis-
charge occurred in the weeks following the election and, as
described more fully below, it was part of a general crackdown
Chino Valley initiated after the election. Moreover, prior to the
election Magsino had no disciplinary record and was widely
regarded among coworkers as a highly professional and compe-
tent employee. I conclude that the General Counsel has made a
very strong showing in meeting his initial burden under Wright
Line. Where, as here, the General Counsel makes a strong
showing of discriminatory motivation, an employer’s rebuttal
burden is substantial. See Eddyleon Chocolate Co., 301 NLRB
887, 890 (1991); see also Van Vlerah Mechanical, 320 NLRB
739, 744 (1996).
I turn now to examine whether Chino Valley has shown that
it would have fired Magsino anyway, even if he and the em-
ployees would not have supported the Union. As an initial
matter, I conclude that Chino Valley has failed to show that
Magsino’s conduct violated HIPAA. In this regard I am careful
not to conclude that Magsino did not violate HIPAA; I leave
that assessment to the appropriate governmental authorities.
Rather, I conclude only that to the extent Chino Valley relies on
breaches of HIPAA to justify its firing of Magsino, it has failed
to establish by a preponderance of the evidence that any viola-
tions occurred. In reaching this conclusion, I rely on the as-
sessment of the California Department of Public Health that no
breach occurred. Up through the trial Chino Valley provided
no credible evidence concerning how, under HIPAA, Magsino
would have been able to gain access to information necessary
to defend against wrongful discipline; certainly such a proce-
dure must exist. But finally in its brief, Chino Valley concedes
that HIPAA allows access to patient’s records for the “resolu-
tion of internal grievances” of the type filed by Magsino. But
then it argues that this does not allow Magsino access because
“Magsino was a nurse and was employed by the Hospital to
provide patient care, not to investigate or process internal
grievances.” Chino Valley provides no authority to support
such a peculiar interpretation and I reject it. And in this regard
Chino Valley ignores the fact that, as it knew, it had given per-
mission to Magsino to access the information and even supplied
him with the information to do so. Next, Chino Valley argues
that even if disclosure of patient information was allowed, such
disclosure should be “to the minimum necessary to accomplish
the intended purpose of the use, disclosure, or request.” But
here all Magsino did was view the patient’s record, print it so
he could study it carefully on his own time, and attach a copy
of the partially redacted record to his grievance, thereby allow-
ing human resources to view the patient’s full file if necessary.
He appears to have nothing beyond what was necessary to ef-
fectively present his grievance.
Citing cases such as Affiliated Foods, 328 NLRB 1107 fn. 1
(1999), and GHR Energy Corp., 294 NLRB 1011, 1012–1013
(1989), Chino Valley argues that even if Magsino’s conduct did
not “technically” violate HIPAA, Chino Valley acted under a
good-faith, if mistaken, belief that he had done so. I reject that
assertion; to the contrary, for reasons that follow I conclude
Chino Valley seized upon the alleged HIPAA violation as a
pretext in a thinly veiled attempt to disguise its unlawful mo-
tive. Chino Valley charged Magsino with a HIPAA violation
when he first viewed the patient chart even though it knew that
Gilliatt granted him permission to do so and even though it had
otherwise indicated that this was not a HIPAA violation. Per-
mitting an employee to do something and then using that a
basis to terminate the employee is a classic example of pretext.
Other facts support the pretextual nature of Magsino’s dis-
charge. When reporting the potential privacy breach, Chino
Valley indicated it would give Magsino a written warning, yet
the next day it fired him. The emergency room doctor revealed
the transaction number in an attachment to Magsino’s griev-
ance, just as Magsino had done, yet Chino Valley was entirely
indifferent to that potential HIPAA breach. Of course, that
doctor was not a direct employee of Chino Valley. Nonetheless
Chino Valley’s own HIPAA policies cover doctors and those
policies require action be taken against doctors for HIPAA
breaches. As the Union points out in its brief, the emergency
room doctor wrote his letter of support for Magsino over a
month after the patient’s emergency room visit. I infer that the
doctor too accessed the patient’s medical record to refresh his
recollection of that visit and gain the transaction number. And
in the termination notice that Chino Valley gave to Magsino it
equated the warning it gave Magsino for tardiness as “similar”
in nature to the alleged HIPAA breaches. In the absence of
some credible explanation, the similarity between the two es-
capes me. Moreover, I conclude below that the discipline for
tardiness itself was unlawful. Gilliatt herself accessed and
printed the patient’s medical record and showed the entirely
unredacted version to Magsino, and she admitted she wrote the
patient’s name and medical record number on a slip of paper,
gave it to Magsino and authorized him to view the medical
record. Indeed, as described above, in the final written warning
that Chino Valley gave Magsino prior to his termination for
alleged HIPAA violations, Gilliatt herself included the patient’s
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

medical record number thereby disseminating this information.
None of this raised any concerns by Chino Valley nor is there
any credible explanation as to why it did not. Chino Valley
contends Gilliatt had a “need to know,” but of course as Gilliatt
conceded by her conduct, so did Magsino.
I turn now to describe the evidence of disparate treatment.
As described above, other employees actually breached patient
confidentiality by, for example, leaving a patient’s medical
record in a restroom where it was viewed by another patient.
Unlike the copy Magsino attached to his grievance, that patient
record named the patient as well as the patient’s medical infor-
mation. Moreover, De Santiago also accessed and copied a
patient’s medical record, yet she was not discharged.
Even assuming that Chino Valley established that Magsino
either violated HIPAA protocol or that it reasonably believed
he had, its remains Chino Valley’s burden to show that it would
have fired him for the violations even absent his union activity.
Chino Valley has an enforcement and discipline policy that
covers HIPPA infractions; it is divided into three levels of vio-
lations.

Level and Definitions of Violations
I. Accidental and/or due to lack of proper education
II. Purposeful break in the terms of the Confidentiality
Agreement, Security Agreement, or an unacceptable level of
previous violations
III. Purposeful break in the terms of the Confidentiality
Agreement or an unacceptable level of previous violations
and accompanying verbal disclosure of patient information
regarding treatment and status

The recommended penalty for a level I violation is an oral
warning or reprimand accompanied by retraining and discus-
sion of policy and procedure. Level II is a written warning and
acknowledgement of consequences of subsequent infractions,
and for level III it is termination of employment. Applying
Chino Valley’s own standards to the facts it knew concerning
any infraction that Magsino may have committed, Level I
seems to squarely fit Magsino’s situation; at most Magsino’s
use of the patient’s partially redacted medical record stemmed
from a lack of proper education. Any assertion to the contrary
is simply not backed by credible evidence. In this regard, recall
how before the election Chino Valley bragged about how em-
ployees may have “made an honest mistake and your director
treated it as nothing more than a lesson learned (our practice of
Just Culture)?” After all, Magsino had been careful to redact
the patient’s name from all copies of the medical record, there-
by assuring that no one could connect the medical information
with the name of the patient without accessing Chino Valley’s
computer system, something that Chino Valley would have
been aware of. This is not a matter of substituting my judgment
for that of Chino Valley’s concerning the type of discipline that
should have more fairly been given to Magsino. Rather, I am
careful to use Chino Valley’s own standards and statements to
examine whether it has met its burden, in the face a strong
showing of unlawful motivation, that it would have fired Mag-
sino anyway even absent his union activities.
For all these reasons I conclude that Chino Valley has failed
to show that it would have terminated Magsino even if he and
the employees had not supported the Union. Rather, the utter
lack of justification for his discharge strengthens the conclusion
that it was unlawful.
Finally, Chino Valley asserts that Magsino was a supervisor
under Section 2(11) and therefore not entitled to engage in
union activity in that he sometimes worked as a relief charge
nurse. I note that Magsino voted without challenge in the elec-
tion. As part of the election agreement, Chino Valley and the
Union specifically named several charge nurses who they
agreed were supervisors; Magsino was not one of them. And as
described above Chino Valley was aware of Magsino’s union
activities; it even commented about his “movie star” status.
Yet it never advised Magsino that he was a supervisor and had
to stop his union activity on that basis.
Nurses work three 12-hour shifts per week. Chino Valley
assigns a charge nurse to each of the 14 weekly shifts. Chino
Valley has three fulltime charge nurses; they each also work at
least three shifts per week. There are several other nurses who
work as relief charge nurses besides Magsino. Nurses are se-
lected to serve as relief charge nurses based on their seniority
and experience and willingness to do so. Chino Valley asked
Gilliatt several leading questions concerning the duties of
charge nurses, Gilliatt answered affirmatively to those ques-
tions. But I have already explained why I have discounted
Gilliatt’s other testimony and for the same reasons I do not rely
on this testimony. It is not sufficient to present entirely conclu-
sory evidence to show supervisory status. Avante at Wilson,
348 NLRB 1056, 1057 (2006). The burden is on Chino Valley
to prove Magsino’s supervisory status; it has failed to do so.
Oakwood Health Care, 348 NLRB 686, 694 (2006). By dis-
charging Ronald Magsino because he and other employees
supported the Union, Chino Valley violated Section 8(a)(3) and
(1).
D. Alleged 8(a)(3) and (5) Violations
In this section of the decision I first describe some analysis
before getting to the specific allegations in the complaint. In
assessing whether an employer violates the Act by retaliating
against employees because they supported a union, I again
apply the shifting burden analysis in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). In determining whether the General
Counsel has met his initial burden under that case, I describe
the conclusions that I rely on that are common to the 8(a)(3)
allegations that follow. First, obviously, the employees en-
gaged in union activity and Chino Valley knew this. Indeed,
they selected the Union as their collective-bargaining repre-
sentative over the strenuous objections of Chino Valley. Next,
Chino Valley had deep hostility towards the lawful right of
employees to select the Union. This is shown by the numerous
violations of the Act, described above, that it committed.
Those violations of the law were committed by a wide range of
individuals, from front line supervisors through middle man-
agement and include some of the highest ranking officials at
Chino Valley. Next, all the alleged discriminatory acts were
committed in close proximity to the election; thus timing also
supports the General Counsel’s case. Continuing, Chino Valley
explicitly threatened employees that it would impose harsher
CHINO VALLEY MEDICAL CENTER 1009

working conditions on employees because they selected the
Union. All these factors point to a very compelling case made
by the General Counsel under Wright Line.
An employer violated Section 8(a)(5) and (1) when it unilat-
erally changes terms and conditions of employment for em-
ployees represented by a union without first notifying the union
of the proposed change and giving it an opportunity to bargain
about the change. NLRB v. Katz, 369 U.S. 736 (1962). Here, it
is undisputed that Chino Valley did not give the requisite notice
to the Union. Chino Valley has not yet recognized the Union
and is pursuing an appeal challenging the results of the election.
However, the Board has certified the Union and I am bound by
Board law at this point. Nonetheless, should a final ruling
emerge from the appeal process that overturns the results of the
election it will follow that the Section 8(a)(5) should be dis-
missed. So the only remaining issue in the 8(a)(5) allegations
is whether Chino Valley actually made changes to the working
conditions of the represented employees.
On April 12, 10 days after the election, Lally sent the follow-
ing message to his managers and supervisors:

It is very important that staff comply with our written policies
and procedures especially those related to attendance and tar-
diness. I am asking my directors to monitor and address ap-
propriately any shortcomings in these areas. This is a survey
year and that is an area of focus. The manuals are available
for your review through HR and/or soon on-line. Thank you
for your anticipated cooperation.

I make several observations concerning this message. First, the
timing of the message in the context of the prior unlawful
statements leaves little doubt that this directive was in response
to the employees’ union activities. As such, it constitutes addi-
tional evidence of unlawful motivation for conduct taken by
Chino Valley’s supervisors in compliance with this directive.
Next, implicit in the message is an admission that managers and
supervisor had been lax in enforcing policies and procedures,
especially attendance and tardiness.
Tardiness Policy
The complaint alleges that Chino Valley violated Section
8(a)(3) and (5) when it began to enforce a rule requiring em-
ployees to clock in at their start times, without any grace peri-
ods, and thereafter disciplined employees who violated the rule.
Before the election, the employees understood that there was a
7-minute grace period in reporting for work. As long as em-
ployees were no more than 7 minutes late they were not disci-
plined for tardiness. The foregoing facts are based on a compo-
site of the credible testimony of Teer Lina, Marlene Bacani,
Vincent Hilvano, Ronald Magsino, Yesenia De Santiago, and
Rosalyn Roncesvalles. In particular, I find Roncesvalles to be a
credible witness; her demeanor was impressive and her testi-
mony detailed. Chino Valley’s cross-examination of her added
the factor of consistency to her credibility. And Chino Valley’s
exhibit 6 confirms that De Santiago was late in March several
times during the 7-minute window period but was not disci-
plined.
On May 11 Ruggio sent an email message to employees as
follows:

I would like to clarify the issue of what constitutes tardy:
Tardy is defined as being late for your designated shift. If you
are to start your work shift at 0700 and you clock in at 0701,
you are considered tardy.

Regarding the 12 minute (formerly 7 minute) grace period;
This grace period is a JD Dev policy that is strictly for time-
keeping purposes and has absolutely no bearing on Tardiness.
Following is the verbiage from JB Dev

* A grace period of 12-minutes is applied to the total time
worked for the day. The paid hours will be rounded up to the
nearest hour or half hour if the total worked minutes fall with-
in the 12-minute grace period. All minutes falling outside the
12-minute grace period will be rounded to the nearest tenth of
an hour*.

For the issue of tardiness, the grace period is non-
consequential. Whatever the hour you have been instructed to
begin your work shift is the time you are expected to be at
your work station ready to begin that shift. Even 1 minute
late is considered Tardy.

On May 4, Chino Valley gave Yesenia De Santiago a written
warning for being tardy eight times during the month of April
and, on May 5, Chino Valley gave Marlene Bacani and Ronald
Magsino a copy of a verbal warning for being tardy two or
more times in 1 month. This was the first time that they had
ever been disciplined for tardiness by clocking in within the 7-
minute period described above. That same day Chino Valley
gave Vincent Hilvano a copy of a verbal warning for being
tardy two or more times in 1 month. Hilvano had earlier re-
ceived a written warning for tardiness on December 30, 2009,
but that warning indicated that Hilvano frequently came to
work late by over 30 minutes. On May 12, Chino Valley gave
Rosalyn Roncesvalles a copy of a verbal warning for being
tardy two or more times in 1 month. This was the first time she
had ever been disciplined for tardiness for clocking in within
the 7-minute period. Other employees have also been similarly
disciplined.
Analysis
First, as to the 8(a)(3) allegation, the facts show that before
the election employees were allowed a 7-minute grace period
before they were disciplined for tardiness but after the election,
per Lally’s directive, that policy changed and Chino Valley
began disciplining employees who were tardy even 7 minutes
or less. Having already described the other elements of the
General Counsel’s case, I conclude he has easily met his burden
under Wright Line. I turn now to whether Chino Valley has
established its burden to show the change and consequent dis-
cipline would have occurred even in the absence of union activ-
ity. In this regard Chino Valley points to the policies that it had
not previously strictly enforced. However, such unenforced
policies do not satisfy Chino Valley’s burden under Wright
Line. Flagstaff Medical Center, supra at 7. Chino Valley also
contends that the “verbal” warnings did not constitute disci-
pline. That argument is frivolous; verbal warnings are part of
Chino Valley’s disciplinary process. In fact, as described
above, the verbal warnings given to Magsino and De Santiago
were considered by Chino Valley in deciding whether to fire
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

them. By more strictly enforcing a tardiness rule and disciplin-
ing employees pursuant to that more strictly enforced rule be-
cause employees supported the Union, Chino Valley violated
Section 8(a)(3) and (1) of the Act.7
Tardiness and attendance policies are mandatory subjects of
bargaining; an employer may not unilaterally change them for
employees who are represented by a labor organization. Alcoa,
Inc., 352 NLRB 1222, 1223 (2008). Similarly, an employer
may not unilaterally change the enforcement of policies. San
Luis Trucking, 352 NLRB 211, 229 (2008). By more strictly
enforcing a tardiness rule and disciplining employees pursuant
to that more strictly enforced rule without first giving the Union
an opportunity to bargain concerning the change, Chino Valley
violated Section 8(a)(5) and (1) of the Act.
Mandatory Meetings
The complaint alleges that Chino Valley Section 8(a)(3) and
(5) of the Act when it began enforcing a rule requiring employ-
ees to be present for mandatory meetings. Chino Valley holds
“mandatory” meetings every few months for emergency room
staff. Teer Lina did not attend any of these meetings, save for
one, over the last several years; she had never been disciplined
for failure to attend these meetings. Tyrone Clavano’s supervi-
sor allowed employees to miss one mandatory meeting per year
without discipline. Marlene Bacani also missed several manda-
tory meetings; she was not disciplined. Similarly, Roncesvalles
did not attend a couple of the meetings in the past and was not
disciplined for failing to attend. On March 31 Gilliatt an-
nounced a mandatory meeting for April 4. On April 9, a week
after the election, Lina and Roncesvalles each received a copy
of a verbal warning for missing the mandatory staff meeting the
day before. Lina wrote on the warning that she was working at
her other job and that that had been approved by Carlos Gonza-
lez, her former supervisor; she also told this to her supervisor,
Cheryl Gilliatt. Roncesvalles wrote on her warning that she
was working at her full-time job and got off work at 8 a.m. and
that was why she was unable to attend the meeting. In fact
Gilliatt knew that per diem nurses like Roncesvalles, who work
at Chino Valley only 1 day per week, work full-time jobs else-
where and that it would be difficult if not impossible for them
to attend every mandatory meeting. Other employees were also
disciplined for failing to attend these meetings.
There are no real credibility issues to resolve thus far in this
section of my decision, because the testimony that Chino Val-
ley itself elicited from Gilliatt shows that before the election,
only about 25 percent of the nurses attended mandatory meet-
ings and at the April mandatory meeting again only about 25
percent attended. The only difference was before the election,
employees were not disciplined and after the election the em-
ployees were disciplined. I do not, however, credit Gilliatt’s
testimony that she decided to discipline employees without
regard to Lally’s instructions to start fully enforcing the rules.
Gilliatt both received his written instructions and also heard
him tell employees that Chino Valley would begin doing so.

7 I leave the full identification of these employees to the compliance
stage of this proceeding. However, that assessment should begin with
the comprehensive charts located in pp. 18–23 of the General Counsel’s
brief.
Gilliatt impressed me as someone who, at times, was doing her
best to defend the actions taken by her superiors rather than
someone simply truthfully relating factual information.
Analysis
As to the 8(a)(3) allegation, the facts show that before the
election employees were not disciplined for failing to attend
mandatory meetings but after the election, per Lally’s directive,
that policy changed and Chino Valley began disciplining em-
ployees who did not attend those meetings. Having already
described the other elements of the General Counsel’s case, I
conclude he has again easily met his burden under Wright Line.
I turn now to whether Chino Valley has established its burden
to show the change and consequent discipline would have oc-
curred even in the absence of union activity. In this regard
Chino Valley again points to the policies that it had not previ-
ously strictly enforced. However, as I have already concluded,
such unenforced policies do not satisfy Chino Valley’s burden
under Wright Line. By disciplining employees who failed to
attend mandatory meetings because employees supported the
Union, Chino Valley violated Section 8(a)(3) and (1) of the
Act.8
As to the 8(a)(5) allegation, attendance and disciplinary
measures concerning attendance are mandatory subjects of
bargaining. In its brief Chino Valley argues that this change
was not substantial, but it does so by ignoring the testimony it
elicited from its own witness Gilliatt who confirmed that 75
percent of employees were not regularly in attendance at man-
datory meetings and that after the change that 75 percent either
were disciplined or were subject to discipline for conduct that
Chino Valley had previously overlooked. Also in its brief,
Chino Valley argues that the Union waived its right to bargain
by not requesting to bargain; Chino Valley correctly points out
that the mere filing of a charge does not constitute a request to
bargain. But all this obviously misses the point because Chino
Valley has not yet recognized the Union. Chino Valley began
disciplining employees for failing to attend mandatory meet-
ings; it did so without giving the Union an opportunity to bar-
gain. By doing so, Chino Valley violated Section 8(a)(5).
E. The 8(a)(5) Allegations
1. Attending certification classes
The complaint alleges that Chino Valley violated Section
8(a)(5) by ceasing to pay employees for time spent attending
certification classes. Nurses, of course, must retain certain
certifications. In order to do so they must periodically attend
refresher courses. Chino Valley notifies its nurses when their
requisite certifications are about to expire. Prior to the election,
Chino Valley paid Rosalyn Roncesvalles, then a part-time, per
diem nurse, for the time she spent taking the classes needed to
retain her certifications. At some time prior to March 31 Chino
Valley notified Roncesvalles that her certification was about to
expire and she needed to take a course to renew it; Ronces-
valles did so and then completed a timesheet requesting pay-
ment for the 8 hours she spent on March 31 attending the

8 I leave the full identification of these employees to the compliance
stage of this proceeding. That assessment should begin with the com-
prehensive charts located in pp. 11–12 of the General Counsel’s brief.
CHINO VALLEY MEDICAL CENTER 1011

course she needed to retain the certification. However, thereaf-
ter Gilliatt disallowed the claim and indicated on the timesheet
that payment was for full-time employees only. So Ronces-
valles called Gilliatt and explained that when she checked the
timesheet she noticed that Gilliatt had indicated that payment
for class time was for full-time employees only. Roncesvalles
asked if this was a new policy because previously she and other
per diem nurses had been paid for that time. Gilliatt said she
would check with human resources and get back to her. Chino
Valley’s written policy concerning this subject is not limited to
full-time employees; rather it indicates that all employees will
be paid for time spent attending these classes. On April 14,
after not having received a response from Gilliatt, Roncesvalles
sent her a message as follows:

I checked my time adjustment sheet and saw the note regard-
ing my PALS renewal and I just want to clarify my situation
because I was not paid on the 8 hours class renewal.
I changed my status as per diem January 2009 and Carlos
[Gonzalez] paid me the hours that I attend on class credentials
that I have to renew, including my MICN. I was surprised
when you noted that only full time employees will be reim-
bursed with the class. Is this new policy? John and I checked
on our policy that we get paid on attending and renewing the
mandatory class. I never saw anything that is written that on-
ly full time employees get paid and not per diem.

On about May 12 Roncesvalles again raised the matter with
Gilliatt. This time Roncesvalles said that another required cer-
tification was going to expire in June 2011; she asked if she
would be paid for time spent renewing that certification. Gilli-
att replied that Chino Valley needed nurses with that particular
certification so they might pay for that time, she would have to
find out. Gilliatt said that there were a lot of changes happen-
ing then. In December Roncesvalles again asked about whether
she would be paid for the time spent getting her next certifica-
tion; this time Gilliatt gave her an unambiguous “no.”
As noted, Chino Valley distributed flyers to employees prior
to the election. One flyer touted the benefits the employees
received. A benefit listed there was

- Flex Ed, paid while you are learning.
There was no indication that this was limited to only full-time
employees. And as Chino Valley’s counsel highlighted during
cross-examination, this is despite the fact that third and fourth
bullet points above the quoted portion of the flyer it read:

- Education Tuition Reimbursement ($2,500 for FT
and $750 for PT, per calendar year with prior approval
—1x base annual salary company paid life insurance
(FT only)

and the two bullet points immediately following the original
quoted bullet point read:

—Paid BLS/ACLS certifications & required courses
for employment (FT)
—Certification Recognition ($500 for FT, $300 for
PT)

I conclude that a practice developed whereby Chino Valley
paid part-time employees for the time spent attending classes
needed to maintain the certification necessary to perform their
work at Chino Valley.
These facts in this section are based on the credible testimo-
ny of Roncesvalles. Her testimony was corroborated by docu-
mentary evidence. I have considered Gilliatt’s testimony; to
the extent it is inconsistent with the facts described above, I do
not credit that testimony. Again, her demeanor was not con-
vincing and her answers were, at times, evasive.
Analysis
Work-related educational assistance programs are mandatory
subjects of bargaining and cannot be changed unilaterally.
Tocco, Inc., 323 NLRB 480 (1997). Chino Valley had a prac-
tice of paying part-time employees for the time spent attending
classes needed to maintain the certification necessary to per-
form their work at Chino Valley. Chino Valley then terminated
that benefit without first allowing the Union an opportunity to
bargain concerning that change. By doing so Chino Valley
violated Section 8(a)(5).
2. Shift changes
The complaint alleges that Chino Valley violated Section
8(a)(5) when it notified employees that they could not make
changes or exchange shifts once schedules are posted. Re-
member, before the election Chino Valley distributed flyers that
asked, among other things, if the employee had “changed your
schedule with a co-worker after it was posted?” On April 13,
the day after the marching orders from Lally as described
above, Anne Marie Robertson, Chino Valley’s director of nurs-
ing, on behalf of Gilliatt sent a message that read in pertinent
part:

This is a reminder to ALL staff. . . .
Once a schedule is posted by the Nursing managers there will
be no changes or exchanges. If an emergency arises the Man-
ager needs to be informed to remove the staff member from
the Master /unit schedule. If it is off shift/the House supervi-
sor will make the immediate change and forward the the [sic]
department manager. If an employee has a request for time off
they are to utilize the “Request for time off’ form which is
found on the intranet under Human Resources/forms. The
form needs to be completed by the employee and submitted to
the Manager for approval allowing sufficient time for review-
The employee is responsible to contact the Manager to con-
firm that a change has or has not been granted. Please do not
leave requests on voicemail.

As General Counsel’s witness Teer Lina admitted. the practice
has always been that after a schedule is posted, an employee
needed a supervisor’s permission to alter the schedule. Some-
times the supervisor would make the change and other times
the supervisor would tell her to find another employee willing
to change shifts with her. And as General Counsel’s witness,
Marlene Bacani and others credibly explained, before the elec-
tion employees were able to switch shifts with other employees
so long as no overtime resulted; she simply informed her su-
pervisor of the change. Bacani also admitted that Gilliatt told
her the same thing concerning the shift change policy after the
election notwithstanding the message described above. Vincent
Hilvano worked as a registered nurse in the emergency room
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

from August 2008 until July 2010. Before the message, Hil-
vano changed his shifts about once every 3 months even after
the schedule was posted, but he admitted that even after receiv-
ing the message, he continued to trade shifts with coworkers.
Before the message, Ronald Magsino switched shifts with
coworkers every 2 weeks or so. His former supervisor said that
employees could do that so long as it did not generate overtime
costs. After the message, Magsino did not attempt to change
his shift after the schedule was posted. Robertson, Chino Val-
ley’s director of nursing in April 2010, similarly explained that
there had not been a formal written policy concerning shift
changes but that the practice had been that employees could
switch shifts after the schedule was posted with approval of the
appropriate supervisor and that if the switch involved the crea-
tion of overtime, the supervisor might not approve. I conclude
that the practice concerning shift changes after the schedule is
posted remained the same both before and after the election; if
the two employees agreed to swap shifts and no overtime was
generated then the change was approved by the supervisor.
Analysis
To the extent that the complaint alleges and the General
Counsel argues that an actual change occurred, I have conclud-
ed that the facts do not support that allegation. However, the
General Counsel also argues that the announcement of a change
alone may violate Section 8(a)(5). In ABC Automotive Prod-
ucts Corp., 307 NLRB 248, 249–250 (1992), the Board did
hold that the announcement of a change, even if not imple-
mented, may constitute a violation of Section 8(a)(5). That
case involved a situation where the employer announced that
when strikers returned to work, the employer would no longer
make contributions to the union’s health fund; the striker’s
never returned to work and thus the change was never actually
implemented. But there the announced change was signifi-
cant—an end to contributions to the union’s health fund. Here,
the announcement was roughly consistent with the existing
practice. I dismiss this allegation of the complaint.
3. Information request
On April 9, 2010, the Union requested Chino Valley to fur-
nish it with, inter alia, the following information:

lists of employees including details as to full or part-time sta-
tus, hourly wage rates, wage increases, fringe benefits, classi-
fications, shifts, addresses and phone numbers; employee
handbooks; company policies and procedures; job descrip-
tions; benefit plans; costs of benefits; and disciplinary notices.

On April 14 Chino Valley refused to provide the information,
indicating that it had filed objections to the election.
Analysis
The information sought by the Union is presumptively rele-
vant to the Union’s performance of its representational duties.
Chino Valley violated Section 8(a)(5) and (1) by failing to pro-
vide this information. The Union in its brief faults me for fail-
ing to consider additional information that it requested but was
not provided. However, the additional information was not
specifically alleged in the complaint and I reaffirm my conclu-
sion that sufficient due process has not been provided to Chino
Valley to allow it to mount a defense to the Union’s claim.
F. Procedural Issues
Prior to and during the hearing, I disposed of several peti-
tions to revoke subpoenas. Because Chino Valley will appar-
ently challenge my rulings I explain my reasoning. Prior to the
hearing, Chino Valley served six subpoenas on the California
Department of Public Health. The subpoenas sought docu-
ments from the Department concerning other health care pro-
viders who had disciplined employees who violate patient pri-
vacy rights. The Department filed a petition to revoke the sub-
poenas and on June 1, during a pretrial conference call, I grant-
ed the petition to revoke. I granted the petition to revoke be-
cause Chino Valley sought information that concerned the dis-
ciplinary practices of other employers. Of course, only Chino
Valley’s disciplinary practices are at issue in this proceeding;
what other hospitals do is not the least bit relevant. As I stated
on the record, I challenge Chino Valley to cite a single Board
case that holds that the disciplinary records of nonlitigant em-
ployers are relevant in determining the lawfulness of a termina-
tion of an employee.
On June 8, 2011, I received into evidence a document (GC
Exh. 84) from the California Department of Public Health that
indicated that it concluded that no breach had occurred when
Magsino accessed the patient’s medical record.
On June 7, 2011, Chino Valley served another subpoena on
the Department and the Department filed a petition to revoke
that same day. Chino Valley sought the testimony of Lena
Resurreccion. On June 15, moments before the hearing closed,
Chino Valley asked that I deny the petition to revoke and re-
quire the testimony of Resurreccion. Chino Valley indicated
that it wanted the testimony “to explain what is in evidence as
General Counsel’s Exhibit 84.” But after Chino Valley con-
ceded that Resurreccion did not participate at all in preparation
of that exhibit, I granted the Department’s petition to revoke. I
reaffirm that ruling. Absent first hand participation in the mat-
ter Resurreccion’s testimony would have minimal value in this
case. In this regard I also note that Chino Valley did not make
a more detailed offer of proof concerning this testimony, so it
should not be allowed hereafter to raise matters not presented to
me for my consideration.
On July 18, over a month after the trial had closed, Chino
Valley filed a motion to reopen the record. The motion again
concerns General Counsel’s Exhibit 84 that I had received into
evidence on June 8, 2011; the hearing did not close until June
15. The General Counsel and the Union filed oppositions to the
motion to reopen. In the motion Chino Valley seeks to reopen
the record to present testimony and evidence from the supervi-
sor of the Department’s employee who prepared the document
to show that the “investigator incorrectly stated in those notes
that no breach had occurred with respect to the actions reported
to her by Respondent, and that the reported actions of Ronald
Magsino constituted an intentional breach of HIPAA.” In sup-
port of the motion Chino Valley filed an affidavit from Ruggio
containing email exchanges between her and Lena Resurrec-
cion of the Department that culminate in a telephone conversa-
tion as follows:

CHINO VALLEY MEDICAL CENTER 1013

Ms. Resurreccion called me and we discussed Mr. Magsino’s
conduct in greater detail. During this phone call Ms. Resur-
reccion stated that Mr. Magsino’s conduct was indeed a
breach of HIPAA because the breach was intentional even if it
was not malicious. Ms. Resurreccion also stated that she
could not comment on what Ms. Robin Burton may have
been thinking when she wrote the comment on her worksheet
stating “no breach actually occurred” because there definitely
was a breach by Mr. Magsino.

I first note that this exchange confirms my ruling that Resurrec-
cion had nothing to contribute concerning General Counsel’s
Exhibit 84; rather she could only provide testimony concerning
other situations presented to her by Chino Valley; the fact pat-
tern that Ruggio apparently presented Resurreccion omitted
critical facts such as Magsino use of the information for inter-
nal grievance matters and the permission granted to him by
Gilliatt. Chino Valley has not shown the “extraordinary cir-
cumstances” as required under Section 102.65(e)(1) of the
Board’s Rules and Regulations. I therefore deny the motion to
reopen the record.
In its opposition to the motion to reopen, the Union asks that
I award attorneys fees to it for having to defend against the
motion to reopen. Chino Valley’s motion was indeed utterly
without merit. Although the issue is a close one, I cannot say
that Chino Valley’s motion was so frivolous so as to warrant
the extraordinary sanction of attorney’s fees. I deny the Un-
ion’s request.
Citing Peyton Packing Co., 129 NLRB 1358 (1961), and Jef-
ferson Chemical Co., 200 NLRB 992 (1972), in its brief, Chino
Valley again asserts that the complaint that issued in the test of
certification case should have been consolidated with the com-
plaint in this case. That assertion is wholly without merit. The
Board has historically allowed test of certification cases to pro-
ceed in an expedited fashion through summary judgment. That
case is already before a court of appeals for review; this case is
still at the initial stages of litigation. There is simply no reason
to delay the resolution of that case by consolidating it with this
case.
CONCLUSIONS OF LAW
1. By the following conduct Chino Valley has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
(a) Threatening to close the facility and terminate employees
if they selected a union.
(b) Threatening employees with loss of benefits if they se-
lected the Union as their collective-bargaining representative.
(c) Coercively interrogating employees about their union ac-
tivities.
(d) Impliedly threatening employees with layoffs if they
supported a union.
(e) Telling employees that they might lose the family atmos-
phere and flexibility of scheduling at Chino Valley if they se-
lected the Union.
(f) Giving employees the impression that their union activi-
ties are under surveillance.
(g) Threatening to discipline employees because they en-
gaged in union activities.
(h) Informing employees that they could no longer take vaca-
tions longer than 2 weeks because the employees had selected
the Union to represent them.
(i) Telling employees that the family atmosphere at Chino
Valley is over and that henceforth Chino Valley would begin
strictly enforcing its policies and procedures, including tardi-
ness, because the employees voted for the Union.
(j) Broadly prohibiting employees from speaking to the me-
dia, including about the Union or about terms and conditions of
employment.
(k) Serving subpoenas on employees and unions that request
information about employees’ union activities, under circum-
stances where that information is not related to any issue in the
legal proceeding.
2. By the following conduct Chino Valley has engaged in
unfair labors affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Act.
(a) More strictly enforcing a tardiness rule and disciplining
employees pursuant to that more strictly enforced rule because
employees supported the Union.
(b) Disciplining employees who failed to attend mandatory
meetings because employees supported the Union.
(c) Discharging Ronald Magsino because he and other em-
ployees supported the Union.
3. By the following conduct Chino Valley has engaged in
unfair labors affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
(a) More strictly enforcing a tardiness rule and disciplining
employees pursuant to that more strictly enforced rule without
first giving the Union an opportunity to bargain concerning the
change.
(b) Beginning to discipline employees who failed to attend
mandatory meetings; without first giving the Union an oppor-
tunity to bargain concerning the change.
(c) Terminating the practice of paying part-time employees
for the time spent attending classes needed to maintain the cer-
tifications necessary to perform their work at Chino Valley
without first allowing the Union an opportunity to bargain con-
cerning that change.
(d) Failing to provide requested information that is presump-
tively relevant to the Union’s performance of its representa-
tional duties.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. Having found that the Respondent has
unlawfully more strictly enforced a tardiness rule and unlawful-
ly disciplined employee pursuant to that more strictly enforced
rule, I shall require the Respondent to rescind the stricter en-
forcement of the rule and restore the practice that existed prior
thereto and rescind to all discipline resulting from the stricter
enforcement of the rule.9 Having found that Respondent un-
lawfully began disciplining employees who failed to attend

9 Said differently I am only requiring Respondent to go back to its
old practice concerning the 7-minute grace periods.
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

mandatory meetings because employees supported the Union, I
shall require the Respondent to rescind that discipline.10 Hav-
ing found that the Respondent unlawfully terminated the prac-
tice of paying part-time employees for the time spent attending
classes needed to maintain the certifications necessary to per-
form their work at Chino Valley I shall require it to make
whole those employees who lost money as a result of the un-
lawful termination, with interest at the rate prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), com-
pounded daily as prescribed Kentucky River Medical Center,
356 NLRB No. 8 (2010). Respondent, having discriminatorily
discharged Ronald Magsino, it must offer him reinstatement
and make him whole for any loss of earnings and other bene-
fits. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed Kentucky River Medi-
cal Center, 356 NLRB 6 (2010). Because of the serious nature
of the violations and because of Respondent’s egregious wide-
spread misconduct, demonstrating a general disregard for the
employees’ fundamental rights, I find it necessary to issue a
broad Order requiring the Respondent to cease and desist from
infringing in any other manner on rights guaranteed employees
by Section 7 of the Act. Hickmott Foods, 242 NLRB 1357

10 Although I have concluded that Chino Valley’s conduct also vio-
lated Sec. 8(a)(5), in this case the 8(a)(3) remedy subsumes that 8(a)(5)
remedy in this regard.
(1979). Finally, as requested by the General Counsel, we order
Respondent to have the attached notice publicly read by a re-
sponsible corporate management official or by a Board agent in
the presence of a responsible management official. We find that
the Respondent’s unfair labor practices are sufficiently serious
and widespread to warrant having the attached notice read
aloud to the employees so that they “will fully perceive that the
Respondent and its managers are bound by the requirements of
the Act.” Federated Logistics & Operations, 340 NLRB 255,
258 (2003), enfd. 400 F.3d 920, 929–930 (D.C. Cir. 2005). The
public reading of the notice is an “effective but moderate way
to let in a warming wind of information and, more important,
reassurance.” United States Service Industries, 319 NLRB 231,
232 (1995) (citations omitted), enfd. mem. 107 F.3d 923 (D.C.
Cir. 1997). In order to monitor the reading of the notice, repre-
sentatives of the Board and of the Union shall have the right to
be present. Texas Super Foods, 303 NLRB 209, 220 (1991).
See also Santa Barbara News-Press, 357 NLRB 452, 460–461
(2011). In its brief the Union seeks a requirement that Re-
spondent mail the Notice from this matter to all persons em-
ployed by Respondent from the time that the unfair labor prac-
tices were committed to the present. But I will issue a broad
cease and desist order, require Respondent to post, email, and
read the notice to employees. I think this will adequately rem-
edy the unfair labor practices.
[Recommended Order omitted from publication.]