NORTH MEMORIAL HEALTH CARE, (2016)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

North Memorial Health Care and SEIU Healthcare

Minnesota

North Memorial Health Care and Minnesota Nurses Association. Cases 18–CA–132107, 18–CA– 133944, 18–CA–135228, and 18–CA–132818

August 2, 2016

DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MCFERRAN

On September 3, 2015, Administrative Law Judge Paul Bogas issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed a responsive letter.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions, brief, and responsive letter and has decided to affirm the judge’s rulings, findings,¹ and

¹ The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

No exceptions were filed to the judge’s decision not to defer the complaint allegations for resolution through the parties’ grievance and arbitration process. Further, in the absence of exceptions, we adopt the judge’s dismissal of the allegations that the Respondent violated Sec. 8(a)(1) when it threatened to file unfair labor practice charges against union representatives, violated Sec. 8(a)(1) and Sec. 8(a)(5) when it prohibited nonemployee union representatives from accessing locked employee break rooms on patient care units, and violated Sec. 8(a)(5) and (1) by implementing the following unilateral changes: prohibiting a nonemployee union representative from accessing a bulletin board in a locked employee break room and prohibiting bargaining unit employee Melvin Anderson from posting union information on a bulletin board in the department where he worked. As discussed below, however, we agree with the judge that this last prohibition violated Sec. 8(a)(1).

In finding that the Respondent violated Sec. 8(a)(1) when it prohibited Anderson from posting union information on the department bulletin board, we rely on the judge’s finding that the Respondent’s action constituted unlawful discrimination. The Respondent prohibited Anderson from posting flyers regarding the union-sponsored picketing, but permitted him to post flyers regarding a union promotion at a zoo on the same bulletin board. The Respondent’s restriction was thus based on the content of the Union’s message—which here also involved protected Sec. 7 activity—and not pursuant to a neutral policy. We do not rely on the judge’s alternative finding that the prohibition was “presumptively unlawful.”

In deciding the issues before us, we do not rely on the judge’s citation to NeilMed Products, 358 NLRB 47 (2012). See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).

conclusions and to adopt the recommended Order as modified and set forth in full below.²

AMENDED REMEDY

Because of the public nature of the Respondent’s unfair labor practices, the timing of the violations around the Unions’ planned picketing, and the involvement of upper management, we find that a further remedy is appropriate in addition to those ordered by the judge. See, e.g., Carey Salt Co., 360 NLRB No. 38, slip op. at 2 (2014); HTH Corp., 356 NLRB 1397, 1404 (2011), enfd. 693 F.3d 1051 (9th Cir. 2012); Homer D. Bronson Co., 349 NLRB 512, 515 (2007), enfd. mem. 273 Fed. Appx. 32 (2d Cir. 2008). To dissipate as much as possible any lingering effect of the Respondent’s serious and widespread unfair labor practices and enable employees to exercise their Section 7 rights free of coercion, we will require that the remedial notice be read aloud to the Respondent’s employees by a responsible management official of the Respondent, and in the presence of a Board agent and an agent of the Union if the Region or the Union so desires, or at the Respondent’s option, by a Board agent in the presence of a responsible management official and, if the Union so desires, of an agent of the Union.³ See, e.g., 1621 Route 22 West Operating Co., LLC d/b/a Somerset Valley Rehabilitation & Nursing Center, 364 NLRB No. 43, slip op. at 5 (2016); Texas Super Foods, 303 NLRB 209, 220 (1991).⁴

ORDER

The National Labor Relations Board orders that the Respondent, North Memorial Health Care, Robbinsdale, Minnesota, its officers, agents, successors, and assigns, shall

1. Cease and desist from

² We shall also modify the judge’s recommended Order to conform to the violations found, to our amended remedy, and to the Board’s standard remedial language. We shall substitute a new notice to conform to the Order as modified and in accordance with our decision in Durham School Services, 360 NLRB No. 85 (2014).

³ Although the General Counsel did not except to the judge’s denial of his request for a similar remedy, his failure to do so does not preclude our imposing such a remedy. The Board has broad discretionary authority under Sec. 10(c) to fashion appropriate remedies that will best effectuate the policies of the Act. NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 262–263 (1969). It is well established that remedial matters are traditionally within the Board’s province and may be addressed by the Board even in the absence of exceptions. See, e.g., Fieldcrest Cannon, Inc., 318 NLRB 470, 473 fn. 6 (1995), enfd. in relevant part 97 F.3d 65 (4th Cir. 1996); Schnadig Corp., 265 NLRB 147, 147 (1982).

⁴ We have also modified the judge’s recommended tax compensation and Social Security reporting remedy in accordance with our decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016).

(a) Prohibiting nonemployee representatives of the SEIU and/or the MNA from having nondisruptive unionrelated conversations at the Robbinsdale, Minnesota facility (the facility) in areas that are open to the general public.

(b) Physically interfering with the ability of nonemployee representatives of the SEIU and/or the MNA to meet with, and talk to, employees at the facility in areas that are open to the general public.

(c) Surveilling the conversations that nonemployee representatives of the SEIU and/or the MNA have with employees at the facility.

(d) Ejecting nonemployee representatives of the SEIU and/or the MNA from the facility, banning such individuals from the facility, and/or threatening to have such individuals arrested because they engage in nondisruptive union-related conversations at the facility in areas that are open to the general public.

(e) Prohibiting employees in the sterile processing department at the facility from posting union information on the bulletin board in that department.

(f) Coercively interrogating employees about their union activities and/or threatening that such activities have been placed under surveillance.

(g) Prohibiting off-duty employees and/or nonemployee union representatives from wearing shirts with union insignias while in locations at the facility that are not immediate patient care areas.

(h) Changing the terms and conditions of employment of its unit employees represented by the SEIU and/or the MNA without first notifying SEIU and/or MNA and giving SEIU and/or MNA an opportunity to bargain.

(i) Unilaterally imposing restrictions on the activities of nonemployee representatives of the SEIU and/or the MNA in areas at the facility that are open to the general public.

(j) Ejecting and/or banning nonemployee representatives of the SEIU and/or the MNA from the facility for violating unlawfully imposed restrictions on union activity.

(k) Discharging or otherwise discriminating against employees for supporting the SEIU or any other labor organization.

(l) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Rescind the restrictions unlawfully imposed on the union activities of nonemployee union representatives.

(b) Rescind the restrictions unlawfully imposed on employees’ posting of union information on the bulletin board in the sterile processing department.

(c) Rescind the restriction unlawfully placed on the wearing of shirts with union insignias in locations at the facility that are not immediate patient care areas.

(d) Rescind the trespass notices/warnings issued to SEIU representative Frederick Anthony and MNA representative Karlton Scott, and notify them that this has been done.

(e) Within 14 days from the date of this Order, offer Melvin Anderson 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.

(f) Make Melvin Anderson whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the judge’s decision as amended in this decision.

(g) Compensate Melvin Anderson for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 18, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year.

(h) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Melvin...