Carney Hospital

CARNEY HOSPITAL 350 NLRB No. 56 627 The Carney Hospital and Service Employees Interna- tional Union, Local 285.1 Case 1–CA–38280 August 13, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH Under Redd-I, Inc., 290 NLRB 1115 (1988), unfair la- bor practice allegations that are otherwise time-barred by the 6-month limitations period in Section 10(b) of the Act may be litigated if they are legally and factually “closely related” to allegations of a prior timely filed charge. This case presents the issue of whether a timely charge alleging an 8(a)(3) violation and otherwise un- timely amendments to that charge alleging 8(a)(1) viola- tions are factually “closely related” under Redd-I because all of the alleged conduct occurred during the same or- ganizational campaign.2 For the reasons set forth herein, we hold that the mere occurrence of the alleged violations during or in response to the same organizing campaign is insufficient to estab- lish the close factual relationship required by Section 10(b). Accordingly, with the exception of the handbook rules violations, discussed below, we find that the 8(a)(1) violations alleged in the amended charge and complaint, and found by the judge, must be dismissed. Further, be- cause the Board’s decision in Ross Stores, Inc., 329 NLRB 573 (1999), enf. denied in relevant part 235 F.3d 669 (D.C. Cir. 2001), is inconsistent with our decision here, we overrule it. I. FACTS The Respondent operates an acute care hospital. Early in 2000,3 the Union commenced an organizing campaign among a unit comprising the Respondent’s service and maintenance employees. An election was held on April 27, which the Union lost. The Union filed timely objec- tions to the election, and a hearing was scheduled for June 14. 1 We have amended the caption to reflect the disaffiliation of the Service Employees International Union from the AFL–CIO effective July 25, 2005. 2 On January 21, 2004, Administrative Law Judge Paul Bogas issued the attached decision. The Respondent filed exceptions and a support- ing brief, and the General Counsel refiled the brief that she submitted to the judge. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 3 All dates are in 2000, unless otherwise indicated. Willie Foxworth was a unit employee who openly supported the Union during the organizing campaign. He was scheduled to testify on behalf of the Union at the June 14 hearing. On June 9, however, the Respondent suspended Foxworth for 3 days, purportedly because of a report that Foxworth had threatened another employee with physical harm 1 week earlier. The Union filed a timely charge on June 29, alleging that Foxworth’s sus- pension violated Section 8(a)(3). Ten months later, on April 29, 2001, the Union amended the charge to further allege that, prior to the April 2000 election, the Respondent violated Section 8(a)(1) and (3) by, among other things, interrogating em- ployees, threatening them with job loss and loss of em- ployment benefits, surveilling their union activities, and implying that collective bargaining would be a futile process. The Union again amended the charge on May 8 to add allegations that, during the previous 12 months, the Respondent maintained rules in its employee hand- book pertaining to solicitation of patients, distribution of literature, and disclosure of confidential information, all in violation of Section 8(a)(1) and (3). The General Counsel issued a complaint alleging that the conduct set forth in the initial charge and both of the amended charges violated the Act.4 In its answer to the complaint, and at the hearing, the Respondent asserted that the 8(a)(1) complaint allegations were time-barred by Section 10(b) because the amended charges contain- ing those allegations were filed in April and May 2001, more than 6 months after April 2000, when the Section 8(a)(1) conduct allegedly occurred. II. JUDGE’S FINDINGS The judge rejected the Respondent’s 10(b) defense. As to the alleged handbook rule violations, he found that the allegations were timely under a “continuous viola- tion” theory. That is, although the rules were adopted more than 6 months prior to the filing of the second amended charge, the rules were maintained during the 6- month period prior to the filing of that charge. See, e.g., Teamsters Local 293 (Lipton Distributing), 311 NLRB 538, 539 (1993). As for the remaining 8(a)(1) allegations, the judge ap- plied Redd-I, supra, as interpreted in Ross Stores, supra. He found that although, standing alone, the allegations were untimely, they were “closely related” to the timely filed 8(a)(3) charge because all of the conduct arose out of the Respondent’s antiunion campaign. After rejecting 4 Consistent with the initial charge, the complaint alleged that Fox- worth’s suspension violated Sec. 8(a)(3) and (1). However, the com- plaint alleged only 8(a)(1) violations with respect to the conduct as- serted in the amended charges. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 628 the Respondent’s 10(b) defense, the judge addressed the merits and found the violations as alleged in the com- plaint. For the reasons stated by the judge, we agree that the Respondent violated Section 8(a)(3) and (1) by suspend- ing Foxworth and violated Section 8(a)(1) by maintain- ing facially invalid rules in its employee handbook per- taining to the disclosure of confidential information, the solicitation of patients, and the distribution of material to patients. We reverse the judge, however, and find that the remaining 8(a)(1) allegations are time-barred by Sec- tion 10(b).5 III. ANALYSIS Section 10(b) provides that “no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board.” This statutory provision serves “‘two separate functions.’” Precision Concrete v. NLRB, 334 F.3d 88, 90 (D.C. Cir. 2003) (quoting Ross Stores, Inc. v. NLRB, 235 F.3d 669, 677 (D.C. Cir. 2001) (Randolph, J., con- curring)). First, it underscores that the General Counsel and Board lack independent authority to initiate unfair labor practice proceedings in the absence of a charge filed by an outside party. In this respect, Section 10(b) operates as a jurisdictional limitation, under which the Board (through the General Counsel) “may investigate and prosecute conduct only in response to the filing of a ‘charge.’” 334 F.3d at 90. Second, Section 10(b) func- tions in part as a statute of limitations by prohibiting the issuance of a complaint based on conduct occurring more than 6 months prior to the filing of a charge.6 Notwithstanding the literal language of Section 10(b), the Supreme Court has long since made clear that Sec- tion 10(b) permits litigation of certain unfair labor prac- tice allegations that were not raised in a timely charge: Once its jurisdiction is invoked the Board must be left free to make full inquiry under its broad investigatory power in order properly to discharge the duty of pro- tecting public rights which Congress has imposed upon it. There can be no justification for confining such an inquiry to the precise particularizations of a charge. . . . What has been said is not to imply that the Board is . . . to be left carte blanche to expand the charge as they might please, or to ignore it altogether. . . . [But] the Board is not precluded from dealing ade- quately with unfair labor practices which are related 5 In the discussion that follows, all references to the 8(a)(1) allega- tions and violations exclude the 8(a)(1) handbook violations. 6 See Machinists Local 1424 v. NLRB (Bryan Mfg. Co.), 362 U.S. 411 (1960). to those alleged in the charge and which grow out of them while the proceeding is pending before the Board. NLRB v. Fant Milling Co., 360 U.S. 301, 308–309 (1959) (footnotes, citations, and internal quotations omitted).7 Traditionally, both courts and the Board have permit- ted litigation of otherwise untimely allegations that are “closely related” to a timely filed charge and involve conduct occurring within 6 months of that timely charge. E.g., NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d Cir. 1952). The Board set forth its test for determining whether allegations are “closely related” in Redd-I. See Peerless Pump Co., 345 NLRB 371, 374 (2005). Under the Redd-I test, the Board (1) considers whether the oth- erwise untimely allegations involve the same legal theory as the allegations in the timely charge; (2) considers whether the otherwise untimely allegations arise from the same factual situation or sequence of events as the alle- gations in the timely charge; and (3) “may look” at whether a respondent would raise the same or similar defenses to both the untimely and timely charge allega- tions. Redd-I, supra, 290 NLRB at 1118.8 The Redd-I “closely related” test strikes a reasonable balance between the statutory limitations on litigation expressed in Section 10(b) and the need to assure broad leeway for the exercise of Board authority, once properly invoked by the filing of a charge, to advance the public interest. Adherence to the requirement that an untimely allegation be closely related to a timely filed charge in- sures both that the Board is operating within the scope of matters raised by that charge and that, on any given day, a party generally is assured that its liability is extin- guished for any activities occurring more than 6 months earlier that are not the subject of—or closely related to— a pending timely charge. Redd-I, 290 NLRB at 1118.9 7 The Court further explained: A charge filed with the Labor Board is not to be measured by the standards applicable to a pleading in a private lawsuit. Its pur- pose is merely to set in motion the machinery of an inquiry. The responsibility of making that inquiry, and of framing the issues in the case is one that Congress has imposed upon the Board, not the charging party. To confine the Board in its inquiry and in framing the complaint to the specific matters alleged in the charge would reduce the statutory machinery to a vehicle for the vindication of private rights. This would be alien to the basic purpose of the Act. The Board was created not to adjudicate private controversies but to advance the public interest in eliminating obstructions to inter- state commerce, as this Court has recognized from the beginning. Fant Milling, supra, 360 U.S. at 307–308 (citations omitted). 8 Prong three, as indicated by its language (“may”, not “must”), is not a mandatory aspect of the Redd-I test. 9 The Redd-I “closely related” test did not initially apply to com- plaint allegations of 8(a)(1) violations, which were deemed covered by any timely charge by virtue of the inclusion of general “catch-all” lan- guage in the Board’s preprinted charge form. In Nickles Bakery, 296 CARNEY HOSPITAL 629 As noted above, the second prong of the Redd-I test requires the Board to determine whether otherwise un- timely allegations arise from the same factual situation or sequence of events as the allegations in a timely charge. In Nippondenso Mfg. U.S.A., 299 NLRB 545 (1990), the required factual nexus was found lacking. There, the charge alleged that the respondent violated Section 8(a)(3) by discharging an employee-member of an orga- nizing committee. The complaint omitted this allegation and, instead, alleged various 8(a)(1) violations regarding the posting of union literature and the wearing of union insignia. The Board found that “apart from their rela- tionship to the same organizing campaign,” the allega- tions in the charge and those set forth in the complaint arose from different circumstances. Id. at 546. In so finding, the Board noted the absence of any contention that the discharge stemmed from the posting of union literature or wearing of union insignia by the employee whose discharge was alleged in the charge to be unlaw- ful. Id. Accordingly, the Board concluded that the com- plaint allegations must be dismissed as insufficiently related factually to the allegation in the charge. In Drug Plastics & Glass Co., 309 NLRB 1306 (1992), the Board found that the Redd-I test was satisfied where the timely charge alleged an 8(a)(3) discharge of a union supporter during a union campaign, and the subse- quent complaint added numerous uncharged 8(a)(1) vio- lations that allegedly occurred during the campaign. The Board found that the uncharged allegations nevertheless were factually related because they “arose out of the Re- spondent’s overall plan to resist the Union,” they “oc- curred after the Respondent’s acknowledged awareness of the organizing effort,” several of the allegations in- volved statements to the employee who was the subject of the timely 8(a)(3) allegation, and “the 8(a)(1) allega- tions generally occurred during the same time period as the 8(a)(3) allegation.” Id. at 1306 fn. 2. The D.C. Circuit denied enforcement. Drug Plastics & Glass Co. v. NLRB, 44 F.3d 1017 (D.C. Cir. 1995). The court discerned no record support for the Board’s finding that the allegations arose out of an overall plan to resist the union. The court found that no such plan was alleged, and the only relationship disclosed by the allega- tions was that the alleged incidents occurred during the same time period. The court made clear that a mere chronological relationship is insufficient to establish fac- tual relatedness under both the court’s precedent and the Board’s. NLRB 927 (1989), the Board overruled this practice and held that the Redd-I test should also apply to 8(a)(1) allegations. The court rejected the Board’s reliance on the alleged conduct having arisen out of the same antiunion cam- paign as a basis for finding factual relatedness. As the court observed, such reliance would be inconsistent with the Board’s own precedent in Nippondenso. 44 F.3d at 1021. Because the Board had neither explained “its de- parture from Nippondenso” nor “overruled that opinion,” the second prong of Redd-I’s test was not satisfied and the complaint allegations were 10(b) barred. 44 F.3d at 1022. In Wal-Mart Stores, 325 NLRB 124 (1997), the Board found the Redd-I test satisfied where the allegations in a timely charge and in a complaint both addressed threats of plant closure. The Board found the allegations to be “factually similar” because they both alleged “that an official of the Respondent threatened that the Respon- dent’s facility would close if the Union were chosen as the employees’ bargaining representative.” Id. at 125. The Board further noted that both statements were “al- leged to have occurred during the same period, i.e., dur- ing the Union’s organizing campaign.” Id. The Fourth Circuit denied enforcement. Sam’s Club v. NLRB, 173 F.3d 233 (4th Cir. 1999). Like the D.C. Cir- cuit, it held that “[a] mere chronological relationship between the two events is not enough, nor is it enough that the events simply occurred during the same union organizing campaign or reflected anti-union animus.” Id. at 246 (citing Drug Plastics, supra, 44 F.3d at 1021). The court further found that the alleged threats were not shown to be related as parts of an overall “effort or cru- sade against the Union through illegal means.” Id. at 247. Instead, the threats “were two discrete and insular occurrences over the course of the Union’s organizing campaign.” Id. at 248. They were allegedly made by different managers with different levels of responsibility. The managers acted independently, and their alleged threats were not part of a chain or “progression of events.” Id. at 247. In an effort to reconcile the conflict in precedent dis- cussed by the D.C. Circuit in Drug Plastics, a Board ma- jority in Ross Stores, supra, 329 NLRB 573, overruled Nippondenso. It did so stating that Nippondenso was an “aberrant” decision, 329 NLRB at 575, at odds with “other precedent” which consistently held that the factual relationship requirement under the second prong of Redd-I could be met “based on acts that arise out of the same antiunion campaign.” Id. at 574. The Board went on to find, however, that each of the allegations also “was part of the Respondent’s overall efforts to resist that [union organizing] campaign.” Id. On those grounds, the Board majority held that an untimely charged 8(a)(1) warning to an employee against union DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 630 solicitation, having satisfied Redd-I’s test in all other respects, was cognizable because it was closely related to a timely charged 8(a)(3) discharge allegation involving the same employee. The D.C. Circuit denied enforcement, stating that the “Board’s contention that the factual relationship prong can be satisfied solely on the basis that the separate acts arise out of the same anti-union campaign here is a de- viation from the very precedent it cites.” Ross Stores, Inc. v. NLRB, supra, 235 F.3d at 673 (emphasis in origi- nal). That precedent, the court stated, had always “re- quired both that the separate incidents” in a timely charge and a complaint “be part of the same union organizing campaign and that they be part of an overall employer plan to undermine the union activity.” Id. (Emphasis in original.) The court acknowledged that the Board had also spe- cifically found that the alleged incidents were part of the employer’s overall efforts to resist the union’s campaign, but held that the finding was unsupported by the record. Thus, there was no indication that the warning against solicitation and the discharge were related, “except by the happenstance that the unrelated two violations oc- curred during a single campaign and involved the same pro-union employee.” Id. The court concluded that this showing was insufficient and that “some additional fac- tual similarity is necessary before an allegation not timely charged can be exempted from the literal applica- tion of Section 10(b)’s limitation period under the closely related test. And there is none here.” Id. at 674–675. We agree with the D.C. and Fourth Circuits that fac- tual relatedness under Redd-I is not shown simply be- cause two events occurred close in time, during the same union organizing campaign, or in response to a cam- paign. Mere chronological coincidence during a union’s campaign does not warrant the implication that all chal- lenged employer actions are related to one another as part of a planned response to that campaign. We agree that a sufficient factual relationship can be established by showing that the timely and untimely al- leged employer actions are “part of an overall employer plan to undermine the union activity.” Ross Stores, su- pra, 235 F.3d at 673; accord Sam’s Club, supra, 173 F.3d at 246 (“If . . . allegations are demonstrably part of an employer’s organized plan to resist union organization, they are closely related.”). This is not a new concept. For example, in Well-Bred Loaf, Inc., 303 NLRB 1016 fn. 1 (1991), complaint allegations were found factually related to a timely filed charge “because they all occurred within the same general time period and concern[ed] conduct which constitute[d] an overall plan to resist the Union” (emphasis added). Similarly, in Recycle Amer- ica, 308 NLRB 50 (1992), the Board found the requisite factual relatedness where the charge and complaint both asserted conduct that “occurred within the same general time period” during the union’s organizing campaign and was part of an overall plan by the respondent to “resist union organization.” Id. at 50. We do not suggest, however, that the second prong of Redd-I can be satisfied only by a showing that alleged violations during a union campaign were part of an over- all employer plan to undermine union activity. There was, for instance, no question of an “overall plan” in Nippondenso. Instead, the Board looked to whether the timely and untimely allegations arose from the same fac- tual situation or sequence of events and found they did not, noting there was no contention that the alleged dis- criminatee was disciplined for having engaged in the conduct that was the subject of the untimely allegations. 299 NLRB at 546. In sum, consistent with Nippondenso and other pre- Ross Stores precedent that represent the appropriate ap- plication of the factual relatedness prong of Redd-I’s closely related test, we will not find that the second prong is satisfied merely because timely and untimely allegations pertain to events that occurred during or in response to the same union campaign. But where the two sets of allegations “demonstrate similar conduct, usually during the same time period with a similar ob- ject,”10 or there is a causal nexus between the allegations and they are part of a chain or progression of events, or they are part of an overall plan to undermine union activ- ity, we will find that the second prong of the Redd-I test has been satisfied.11 To the extent that Ross Stores and any of our other prior decisions are inconsistent with our decision today, they are overruled. 10 Sam’s Club, supra, 173 F.3d at 246 (internal quotations omitted). 11 We agree with the D.C. Circuit’s holding in Drug Plastics that an otherwise untimely allegation may be found timely under Redd-I even if the timely allegation to which it is closely related is ultimately held to be without merit. See 44 F.3d at 1020. It is unclear from the court’s opinion whether the court would require that the reason for finding the allegations closely related be shown on the face of the pleadings in the charge or the complaint, rather than by evidence subsequently compiled at a hearing. The D.C. Circuit’s subsequent decisions indicate, how- ever, that there is no such requirement. E.g., Ross Stores, supra, 235 F.3d at 673–674 (finding no evidence of required factual relationship). We agree. As the Board stated in Recycle America, supra, 308 NLRB at 50 fn. 2, there is no requirement that the charge “specifically allege[] the existence of an overall plan on the part of the employer.” Nor has the Board required that the complaint contain such allegations. See, e.g., Pincus Elevator & Electric Co., 308 NLRB 684, 690 (1992), enfd. mem. 998 F.2d 1004 (3d Cir. 1993) (required relationship was dis- closed by “the General Counsel’s theory of the case”); accord: NLRB v. Overnite Transportation Co., 938 F.2d 815, 821 (7th Cir. 1991) (finding it “clear from the record” that untimely alleged conduct was part of the same antiunion crusade as conduct alleged in timely charge). CARNEY HOSPITAL 631 IV. APPLICATION OF REDD-I TO THIS CASE Applying the principles stated above, we find that the 8(a)(1) allegations are barred by Section 10(b). Contrary to the judge’s finding, they are not factually closely re- lated on any basis to the allegations in the timely charge alleging that Willie Foxworth was suspended in violation of Section 8(a)(3) and (1).12 First, the untimely 8(a)(1) allegations and Foxworth’s timely charged suspension do not involve similar con- duct. Second, there is no indication that the incidents were part of a chain or progression of events. Foxworth was not alleged to have been subjected to any of the in- terrogations, threats of job loss, surveillance, or threats that collective bargaining would be futile alleged in the untimely charge. See WGE Federal Credit Union, 346 NLRB 982, 983 (2006) (factual relatedness not found where individuals implicated in timely charge were not involved in untimely amended charge). Although Fox- worth was subjected to an untimely alleged threat of loss of benefits, this threat was made in April by his immedi- ate supervisor, Kathleen O’Brien, who was not involved in his suspension, 6 weeks later, purportedly for threaten- ing another employee.13 Thus, the alleged threat of loss of benefits is not factually related to the timely charged suspension either. Ross Stores, Inc. v. NLRB, supra, 235 F.3d at 673–674; cf. Kentucky Tennessee Clay Co., 343 NLRB 931, 932 (2004) (factual relatedness found where same supervisor “followed through” with untimely al- leged reduction of employee’s hours by subsequently terminating him as alleged in timely charge). Finally, although the events occurred during the same organizational campaign and the same general time pe- riod, we have held above that a chronological relation- ship without more is insufficient to support a finding of factual relatedness. Further, there is no showing here that the two sets of allegations involve events that are “part of an organized plan to resist union organization.” Sam’s Club v. NLRB, supra, 173 F.3d at 246. The record does not disclose that the alleged 8(a)(1) violations and Foxworth’s suspension were any more than separate actions carried out inde- pendently by several different Respondent officials. See id. at 247–248; see also Ross Stores v. NLRB, supra, 235 F.3d at 672. 12 Relying on Ross Stores, the judge found that the untimely 8(a)(1) allegations were factually related to the timely charged allegation under the second prong of Redd-I solely on the basis that all of the alleged violations occurred during the same antiunion campaign. Having over- ruled Ross Stores on that point, we conclude that the judge’s finding cannot be sustained. 13 Human Resources Manager Mary Orlandi made the decision to suspend Foxworth. Having determined that the second prong of the Redd-I test has not been established, the final inquiry is whether the untimely 8(a)(1) allegations can nonetheless survive a 10(b) time-bar defense if the first prong, i.e., the com- mon legal theory prong, of Redd-I has been met. We find that they cannot. As the court noted in Drug Plas- tics, 44 F.3d at 1021–1022, “Nippondenso makes clear . . . that allegations which are related by mere legal the- ory are not ‘closely related’ for purposes of §10(b). . . .” Accord Precision Concrete v. NLRB, supra, 334 F.3d at 93; Sam’s Club v. NLRB, supra, 173 F.3d at 245 and 248.14 In sum, we find that the amended charge alleging the 8(a)(1) violations is not closely related to the timely charge alleging the 8(a)(3) suspension of Foxworth. Ac- cordingly, because those allegations were time-barred under Section 10(b) and should not have been considered by the judge, we reverse his findings that the Respondent violated Section 8(a)(1). AMENDED REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and take certain affirmative action necessary to effectuate the policies of the Act.15 Specifically, we shall order the Respondent to reimburse Willie Foxworth for the wages he lost as a result of his unlawful suspension in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), 14 In light of the absence of a factual nexus between the timely and untimely allegations, we cannot find here that prong three of the Redd-I test was satisfied, i.e., that the Respondent would have raised similar defenses to the allegations. We do not pass on whether prong one was met here or whether it must be met in order to show that allegations are closely related under the Redd-I test. Member Schaumber notes that the Redd-I formulation implies that equal weight is to be given to the first prong (common legal theory) and the second prong (allegations arise from the same factual situation or sequence of events). As today’s decision makes clear, however, allega- tions cannot be closely related under Redd-I unless there is a factual relationship between them. Member Schaumber believes that the Board should take this opportunity to explicitly rearticulate the Redd-I standard in keeping with the principles stated above. 15 As to the handbook rule violations, we will modify the judge’s recommended Order to conform with Guardsmark, LLC, 344 NLRB 809, 811–812 (2005). Pursuant to that decision, the Respondent may comply with the Order by rescinding the unlawful provisions and re- publishing its employee handbook without them. We recognize, how- ever, that republishing the handbook could entail significant costs. Accordingly, the Respondent may supply the employees either with handbook inserts stating that the unlawful rules have been rescinded, or with new and lawfully worded rules on adhesive backing which will cover the old and unlawfully broad rules, until it republishes the hand- book without the unlawful provisions. Thereafter, any copies of the handbook that are printed with the unlawful rules must include the new inserts before being distributed to employees. Id. at fn. 8. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 632 with interest as prescribed in New Horizons for the Re- tarded, 283 NLRB 1172 (1987).16 ORDER The National Labor Relations Board orders that the Respondent, The Carney Hospital, Dorchester, Massa- chusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining any overly broad rule prohibiting so- licitation and distribution. (b) Maintaining any overly broad confidentiality rule. (c) Suspending or otherwise discriminating against any employee for supporting a union or engaging in other protected activity. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Notify all employees that the version of the solici- tation and distribution rule that was contained in the em- ployee handbook prior to June 30, 2003, is rescinded, void, of no effect and will not be enforced. Further no- tify all employees that the Respondent will not prohibit employees from soliciting and distributing material to patients in a manner protected by the Act. (b) Notify all employees that the version of the confi- dentiality rule that was contained in the Respondent's employee handbook prior to June 30, 2003, is rescinded, void, of no effect and will not be enforced. Further no- tify all employees that the Respondent will not prohibit employees from discussing the terms and conditions of their employment in a manner protected by the Act. (c) Furnish all current employees with inserts for the current edition of the employee handbook that (1) advise that the unlawful provisions in 2(a) and 2(b), above, have been rescinded, or (2) provide the language of lawful provisions; or publish and distribute to all current em- ployees a revised reference guide that (1) does not con- tain the unlawful provisions, or (2) provides the language of lawful provisions. (d) Make Willie Foxworth whole for any loss of earn- ings and other benefits suffered as a result of the dis- 16 In the remedy section of his decision, the judge provided for dis- criminatee Willie Foxworth to be made whole as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950). However, because the Respon- dent’s discriminatory conduct toward Foxworth did not result in the cessation of his employment, his make-whole award is properly calcu- lated as prescribed in Ogle Protection Service, supra. See, e.g., CAB Associates, 340 NLRB 1391, 1393 (2003). We shall modify the judge’s recommended Order in keeping with this remedial amendment. Stevens Construction Corp., 350 NLRB 132 at fn. 4 (2007). crimination against him in the manner set forth in the amended remedy section of this decision. (e) Within 14 days from the date of this Order, re- move from its files any reference to Foxworth’s unlawful suspension and, within 3 days thereafter, notify him in writing that this has been done and that the suspension will not be used against him in any way. (f) 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 re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its facility in Dorchester, Massachusetts, copies of the attached notice marked “Appendix.”17 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since June 9, 2000. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. 17 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.” CARNEY HOSPITAL 633 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 maintain any overly broad rule prohibit- ing solicitation and distribution. WE WILL NOT maintain any overly broad confidentiality rule. WE WILL NOT interfere with your right to discuss the terms and conditions of your employment in a manner protected by the National Labor Relations Act. WE WILL NOT suspend or otherwise discriminate against any employee for supporting a union or engaging in other protected activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL notify you that the version of the solicitation and distribution rule that was contained in our employee handbook prior to June 30, 2003, is rescinded, void, of no effect and will not be enforced, and that we will not prohibit employees from soliciting and distributing mate- rial to patients in a manner protected by the Act. WE WILL notify you that the version of the confidential- ity rule that was contained in the Respondent’s employee handbook prior to June 30, 2003, is rescinded, void, of no effect and will not be enforced, and that we will not prohibit employees from discussing the terms and condi- tions of their employment in a manner protected by the Act. WE WILL furnish all of you with inserts for the current edition of the employee handbook that (1) advise that the unlawful provisions, above, have been rescinded, or (2) provide the language of lawful provisions; or publish and distribute to all current employees a revised reference guide that (1) does not contain the unlawful provisions, or (2) provides the language of lawful provisions. WE WILL make Willie Foxworth whole for any loss of earnings and other benefits suffered as a result of our discrimination against him. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to Foxworth's unlawful suspension, and WE WILL, within 3 days thereaf- ter, notify him that this has been done and that the sus- pension will not be used against him in any way. THE CARNEY HOSPITAL, INC. Kathleen McCarthy, Esq., for the General Counsel. Geoffrey P. Wermuth, Esq. (Murphy, Hesse, Toomey & Lehane, LLP), of Boston, Massachusetts, for the Respondent. DECISION STATEMENT OF THE CASE PAUL BOGAS, Administrative Law Judge. This case was tried in Boston, Massachusetts, on September 22 and 23, 2003, upon a complaint issued on May 17, 2001. The Service Employees International Union, Local 285, AFL–CIO (the Union) filed the underlying charges. The complaint alleges that The Carney Hospital (the Respondent or the hospital) violated the National Labor Relations Act (the Act) by suspending an employee be- cause of his union and protected concerted activities and by making threats, engaging in surveillance, interrogating employ- ees about their union sympathies, implying that selection of a collective-bargaining representative would be futile, and main- taining certain policies in its employee handbook regarding solicitation/distribution, and confidentiality.1 On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the parties, I make the following findings of fact and conclu- sions of law. FINDINGS OF FACT2 I. JURISDICTION The Respondent, a corporation, operates a hospital in Dorches- ter, Massachusetts, where it annually derives gross revenues in excess of $250,000, and purchases and receives goods valued in excess of $5000 from points outside the Commonwealth of Mas- sachusetts. The Respondent admits, and I find, that it is an em- ployer 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. 1 At the start of trial, I granted the General Counsel’s unopposed mo- tion to amend the complaint to delete the allegation in paragraph 7(d) and alter paragraph 7(a) to address a change in one of the challenged policies. Tr. 6–7, 10–11; GC Exh. 1Y. 2 The General Counsel’s unopposed motion to correct the transcript, dated November 10, 2003, is granted and received in evidence as GC Exh. 13. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 634 II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent operates a full-service community hospital that has approximately 1350 employees. The Respondent’s service and maintenance employees are not represented by a union for collective bargaining purposes and, in 2000, the Un- ion began a campaign to represent those employees. Union supporters distributed prounion leaflets and other materials to employees and wore buttons with prounion slogans. The Hos- pital responded with an antiunion campaign that included dis- tributing written materials and having officials talk directly to employees about unionization. The representation election was held on April 27, 2000. A majority of eligible voters who cast ballots, voted against des- ignating the Union as their collective-bargaining representative. On May 4, 2000, the Union filed objections to the conduct of the election and to conduct affecting the results of the election. A hearing regarding the objections was held on 5 days begin- ning June 14. On August 14, the hearing officer issued a report stating that the evidence showed the Respondent had engaged in improper interrogations, surveillance, threats and promises, and had made statements implying that it would be futile for the employees to unionize. On May 3, 2003, the Board issued a decision in which it adopted the hearing officer’s findings and recommendations, set aside the election, and ordered a new election.3 3 At trial, the General Counsel moved to restrict the presentation of evidence regarding the 8(a)(1) allegations in par. 7(c), (e), (f), and (g) of the complaint on the basis of collateral estoppel. The General Coun- sel argued that since the Board had determined during the objections proceeding that the conduct alleged in those paragraphs had occurred, the Respondent was not at liberty to relitigate the issue. The Respon- dent opposed the motion. I declined to limit the presentation of evi- dence and took the question of the applicability of collateral estoppel under advisement. I now conclude that application of collateral estop- pel is not appropriate here. As the Respondent points out in its brief, the decisions in McEwen Mfg. Co., 172 NLRB 990, 991 fn. 6 (1968), enfd. 419 F.2d 1207 (D.C. Cir. 1969), cert. denied 397 U.S. 988 (1970) and Viking of Minneapolis, 171 NLRB 1155 fn. 1 (1968), hold that the Board’s findings and conclusions with respect to conduct alleged as objectionable in a representation proceeding are not binding in a subse- quent proceeding where such conduct is alleged to violate Sec. 8(a)(1) or (3). McEwen and Viking also preclude me from granting “persuasive relevance” to findings made in the prior decision regarding the election objections. That is what the trial examiner did in Viking, and the Board held that such reliance was in error. 171 NLRB at 1155 fn.1 and 1172– 1173. See also Allen-Stone Boxes, Inc., 252 NLRB 1228 (1980) and Eidal International Corp., 224 NLRB 911, 913 (1976). In its brief, the General Counsel alludes to the general requirements for collateral es- toppel, see Fayette Electrical Cooperative, 316 NLRB 1118, 1119 (1995) (“‘[w]hen an issue of fact or law is actually litigated and deter- mined by a valid and final judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a dif- ferent claim’”), but does not cite any authority that reverses or ques- tions the holdings of McEwen and Viking. There is, I believe, a serious question as to whether permitting relitigation under the circumstances presented here is consistent with either the general standards for appli- cation of collateral estoppel or the policy of invoking that doctrine to prevent “the expense and vexation attending multiple lawsuits, con- serve[ ] judicial resources, and foster[ ] reliance on judicial action by B. Respondent’s Campaign Against Union Officials of the Respondent met with employees in an effort to persuade them not to support the Union. In one instance, Geraldine Geary, the Respondent’s director of medical records, walked out of the hospital building and approached Kathleen Heffel, a clerk in the medical records department, while Heffel was distributing prounion leaflets outside the building prior to the start of her shift. Geary is not Heffel’s direct supervisor, but Heffel’s supervisor, Noreen Cahill, reports to Geary. Geary asked Heffel to give her one of the leaflets, and Heffel did so. After receiving the leaflet, Geary asked Heffel if she thought what she was doing was “a good thing.” Heffel replied that she thought it was “a very good thing.” Geary repeated her ques- tion, and Heffel affirmed that she thought she was doing a “good thing.” Geary asked why Heffel believed this, and Hef- fel answered. Geary and Heffel continued to talk about issues relating to the organizational campaign. The exchange lasted about 20 minutes and during that time Heffel had to maneuver around Geary in order to hand the leaflets to passing employ- ees, and generally found it more difficult to distribute the leaf- lets. After the conversation, Geary walked back into the hospi- tal building. In another instance, this one on Sunday, April 16, 2000, Carol Krzywda, clinical manager, went to the Hospital for the purpose of discussing the Respondent’s position regarding the Union with employees. One employee who Krzywda met with that day was Morna Mashrick, a certified nurse’s aide/student nurse4 who Krzywda supervised. Krzywda asked Mashrick to come to her office. When the two were alone in Krzywda’s office, Krzywda asked Mashrick “What do you think about [the Union campaign]?” Mashrick responded, that she thought “it’s great,” and that “a union is great” based on what she heard “about it at school and what I know.” Krzywda asked, “[I]s that how you’re going to vote?” and Mashrick answered, “I’m going to vote yes.”5 Krzywda adopted an angry demeanor, and minimizing the possibility of inconsistent decisions.” Montana v. U.S., 440 U.S. 147, 153–154 (1979). However, in light of the existing Board precedent on the precise issue presented here, those concerns are for the Board to evaluate, not me. See Los Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979), enfd. 640 F.2d 1017 (9th Cir. 1981) (administra- tive law judge bound to apply established Board precedent that neither the Board nor the United States Supreme Court has reversed). 4 The next month Mashrick completed her nursing studies. She be- came a registered nurse in August 2000. 5 A the trial in this matter, Mashrick initially testified that Krzywda posed two questions regarding her vote—first asking if Mashrick knew how she was going to vote, and then asking Mashrick what her vote was going to be. In the prior hearing on the objections, Mashrick gave a slightly different account. There Mashrick testified that Krzywda asked her if “that” was how she going to vote—meaning consistent with the favorable view of unions that Mashrick had just expressed— and that she responded “I’m going to vote yes.” During cross- examination in the instant matter, Mashrick stated that she believed the account she gave during the objections proceeding was the more accu- rate one. In light of Mashrick’s adoption of the prior testimony, I credit that account over the slightly different one she initially gave during the trial before me. Based on Mashrick’s demeanor and testimony I be- lieve that the subtle differences in her accounts regarding Krzywda’s questioning are innocent and do not detract from her overall credibility. CARNEY HOSPITAL 635 asked Mashrick “why would you want to do that?” Mashrick responded that she had heard “that workers usually had better circumstances after a union came in.” At this point Krzywda began to convey unfavorable opinions about unions to Mashrick, and did not allow Mashrick an opportunity to re- spond. Regarding bargaining with the Union, Krzywda told Mashrick that “just because a union comes in . . . doesn’t mean . . . that we would go to the table at all.” She stated that the Respondent “might not even go to the table.” On the subject of the benefits received by employees, Krzywda stated that if the Respondent did bargain, she could “guarantee you’re going to lose something.” She asked if Mashrick thought she “would get what [she] got now,” have the schedule she wanted, and as much vacation as employees currently received. Krzywda told Mashrick that she had bent “over backwards” to meet Mashrick’s scheduling and professional development needs, and asked Mashrick whether she thought “anybody who gets off a plane from Washington, D.C.,” was going to “care about” her the way Krzywda herself did. Krzywda discussed strikes at one or more other hospitals, and warned Mashrick that the Respondent would not be able to survive a strike. Krzywda had a number of documents that related to the Respondent’s position with respect to the Union. Mashrick did not want to take these documents, but felt that Krzywda would not permit her to leave without doing so. The meeting lasted 10 to 20 minutes. This was the first and only time that Krzywda met with Mashrick one-on-one during Mashrick’s 10 months working for the Respondent, and also the only time that Mashrick saw Krzywda at the Hospital on a Sunday. Prior to the meeting, Krzywda had never seen Mashrick openly proclaiming support for the Union, and did not know what Mashrick’s position was regarding the organiza- tional campaign. Mashrick testified that she was concerned that her prounion responses to Krzywda’s questions had nega- tively affected the chances that the Respondent would hire her as a licensed nurse after she completed her degree. Mashrick never applied for such employment with the Respondent.6 Willie Foxworth is a buyer for the Respondent’s pharmacy, and has been an employee of the Respondent’s since 1997. He was one of the Union’s most active and open supporters during the campaign. Kathleen O’Brien, Foxworth’s supervisor, was aware of his prounion views. During the organizational cam- paign, O’Brien would talk to Foxworth about the materials that 6 Mashrick and Krzywda both testified regarding this meeting. Re- garding disputed elements of the meeting, I, like the hearing officer in the objections proceeding, found Mashrick the more credible witness. Mashrick testified in a forthright and certain manner and her account of the meeting was quite specific. Krzywda, on the other hand, stated that she had no specific memory about a number of key points. See, e.g., Tr. 129 (does not “recall specifically” what she told Mashrick would happen regarding bargaining if the Union came in); Tr. 131 (does not “recall specifically” any discussions about employees’ job security). Moreover, I believe that Krzywda was somewhat evasive. She claimed that when she talked to employees she was not trying to discourage them from voting for the Union and that she was not concerned how they would vote, Tr.136, but it is clear from the record that discourag- ing employees from voting for the Union was exactly the reason that she came to the Hospital on a Sunday to talk to employees. the Respondent distributed as part of its campaign to oppose unionization. On one occasion, O’Brien showed Foxworth a booklet and told him that the highlighting in it indicated how many times the listed unions had gone on strike. Foxworth asked, “How do you know we’re going to go on strike just be- cause we get the Union in?” O’Brien responded, “[W]hat hap- pens . . . is you go to a bargaining table, and in order for you to get some of the things you want you’re going to have to give up something.” She listed a number of benefits that employees might lose and said, “[the Respondent’s president] is not going to give you what you want without taking something away.” O’Brien stated that employees “might gain something,” but were “definitely going to lose something.” She told Foxworth that if employees went to the bargaining table and did not get what they wanted, “that’s how the strike occurs.” Among the written materials that the Respondent distributed to employees was a booklet called “The Decision is Yours.” The following language appeared in that booklet: What Happens If The Union Wins? After objections (if any) regarding the election are filed with the National Labor Relations Board and resolved, bargaining for a first contract begins and it can be a long, complicated and technical process which can go on for weeks, months, a year . . . or longer. While bargaining goes on, wages and benefit programs typi- cally remain frozen until they are changed, if at all, by a con- tract. If the union wins, you take the risks . . . you will have to “wait and see” if anything happens with wages and benefits. The union, however, may begin collecting dues from you right away. (Emphasis in original.) In the booklet, the Respondent told employees that it believed “the union’s interest in you is prompted by its need for union dues rather than by any union commitment to ensure the job security of individuals.” The booklet was dated April 27, 2000, and distributed to employees on, or about, that date. C. Rules in Employee Handbook The Respondent maintains an employee handbook. From at least April 1, 2000, until June 30, 2003, the handbook included a rule on solicitation and distribution, which stated: Persons not employed by the Hospital may not solicit or dis- tribute literature on Hospital property for any purpose at any time. Employees may not solicit for any purpose during working time in treatment, surgery, examination, admitting rooms, or other patient care areas. Employees may not dis- tribute literature during working time, or at any time in work- ing or patient care areas. Solicitation or distribution to patients and visitors is prohibited at all times. Employees who participate in unauthorized so- licitations or distributions are subject for [sic] disciplinary ac- tion. On June 30, 2003, the Respondent amended its employee hand- book to delete the second paragraph quoted above. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 636 Since at least April 1, 2000, the handbook has contained a confidentiality provision that states: Disclosure of confidential information gained through your employment by the Hospital is considered an act of prohibited conduct subject to formal disciplinary action. Any informa- tion concerning a patient’s illness, family, financial condition or personal characteristics is strictly confidential. When a pa- tient’s history or condition is reviewed, it must be done in pri- vacy with only those persons involved with the care of the pa- tient. Any other information coming to you in the course of your work concerning another person or employee is also considered confidential and may not become the topic of con- versation with others. On about June 30, 2003, the Respondent amended the confiden- tiality provision by adding the following language: This Confidentiality Information Policy should not be inter- preted to prohibit employees from discussing the terms and conditions of their employment in an appropriate manner. According to the uncontradicted testimony of Mary Orlandi, the Respondent’s human resources manager, no employee has ever been disciplined under the confidentiality policy for discussing issues relating to wages, benefits, and other terms and condi- tions of employment. Copies of the Respondent’s employee handbook are main- tained in supervisors’ offices and issued to new employees. Amendments to the handbook are maintained in department managers’ offices and posted on department bulletin boards. The record does not show how long the amendments remain posted, or whether the department bulletin boards are the places where notices to employees are customarily posted. The record also does not show whether the handbooks that were distributed to new employees after June 30, 2003, incorporated, or gave notice of, the two amendments discussed above. D. Suspension of Willie Foxworth 1. Foxworth and Olivier As noted above, Foxworth was one of the Union’s most ac- tive and open supporters during the organizing campaign in 2000. He wore buttons with prounion messages and permitted the Union to use his picture on some of its campaign material. He served as an informal liaison between employees and union officials regarding questions about union representation. The Union designated him as one of its official observers at the April 27 election. After the election, Foxworth signed an open letter urging his coworkers to come forward with objections to the Respondent’s campaign against the Union. He testified for the Union on June 14 and 15 at the objections hearing. The Respondent’s human resources manager, Mary Orlandi, stated that she was aware of Foxworth’s prounion sympathies and activity. Orlandi testified that prior to June she had no cause to believe that Foxworth was a problem in the workplace and that she found him a cordial and respectful employee. Indeed, Foxworth had never been disciplined by the Respondent prior to June 2000. On June 9, 2000, Orlandi informed Foxworth that he was suspended without pay for a period of 3 days—from June 12 through June 14. The suspension was imposed only 5 days before Foxworth was to testify in the objections hearing regard- ing the representation election. Orlandi was the official who made the decision to suspend Foxworth. According to Orlandi, the reason she decided to suspend Foxworth was that he had threatened another employee, Lionel Olivier. Olivier was an employee who had worked to defeat the organizational effort, but he was not part of the proposed bargaining unit, or, at the time of the election, of management.7 The Respondent some- times summoned employees away from their work assignments so that Olivier could talk to them about the Union. During the April 27 election, Olivier was one of the Respondent’s official observers. The first indication that the record provides of friction be- tween Olivier and Foxworth involves an incident that took place while votes were being cast in the representation election. Olivier complained to a Board agent that Foxworth was outside the door to the voting area pressuring employees to vote in favor of the Union. The Board agent talked to Foxworth, and Foxworth denied Olivier’s accusation. Foxworth testified that what the Board agent discovered was that Foxworth was wait- ing for an elevator and talking to his brother-in-law. The Board agent apparently took no further action regarding the accusation against Foxworth, despite Olivier’s continued protestations. The verbal exchange that Orlandi offers as the primary rea- son for suspending Foxworth is supposed to have occurred on June 1. According to what Olivier told Orlandi, Foxworth passed him on the way into the cafeteria and told him “You’re going to get it.”8 Foxworth gave a significantly different ac- count. He told Orlandi that what he had said was “it’s about that time,” meaning time for breakfast, and that he directed this comment to others, not Olivier. He denied threatening Olivier. At trial, Foxworth testified that he continued into the cafeteria and that Olivier then came to the door and asked him “What do you mean it’s about that time.” According to Foxworth, he 7 Later, in April 2001, the Respondent promoted Olivier to a man- agement position. 8 At trial, Orlandi offered three versions of what Olivier accused Foxworth of saying. First she testified that Olivier told her Foxworth pointed at his watch and said, “It’s about that time.” Next, Orlandi testified that Olivier reported the following, clearly more threatening, statement: “It’s about time. It’s your time; you’re going to get it.” Then, after reviewing the notes she made of her interview with Olivier, Orlandi testified that what Olivier accused Foxworth of saying was simply, “You’re going to get it.” I did not find Orlandi a very credible witness. Based on her de- meanor and testimony I believe that she tried to shade her testimony on key matters to place the Respondent’s action in a favorable light. As noted above, she provided three different versions of the language that Olivier complained of—the result of her effort, I believe, to make that language sound as threatening as possible, without bringing Olivier’s account into irreconcilable conflict with the accounts of the two disin- terested witnesses to the verbal exchange. There were other inconsis- tencies. First Orlandi testified that Olivier told her he had reported an earlier incident involving Foxworth to security, Tr. 156, but then she testified that she did not recall Olivier telling her that. (Tr. 188–189.) I also found implausible Orlandi’s claim that she believed Olivier would have heard, from outside an elevator, the content of threats Foxworth supposedly made inside an elevator after the doors closed and the ele- vator pulled away. CARNEY HOSPITAL 637 repeated, “It’s about that time,” and did not elaborate. Fox- worth testified that “it’s about that time” is phrase he routinely uses when inviting coworkers to join him in the cafeteria for a meal. Aside from Olivier and Foxworth, there were two witnesses to the incident—Lynnette Samuel and Dale Jeffries. Orlandi interviewed both of these witnesses, but even according to Or- landi neither Samuel nor Jeffries corroborated Olivier’s ac- count. Samuel, who Olivier counted as a “good friend,” re- ported that what Foxworth had said was, “I think it’s about that time” and that she initially thought Foxworth was speaking to her. Jeffries stated that Foxworth had said “[I]t’s time,” and that Olivier asked, “What did he say to me?” Jeffries told Or- landi that he considered the matter “petty.” The Respondent does not claim that either Samuel or Jeffries reported that Fox- worth had said anything like “You’re going to get it,” or had otherwise threatened Olivier. Orlandi also received a copy of a police report regarding a complaint that Olivier filed with the Boston Police. According to that report, Olivier told the police that Foxworth said “it was that time” in a threatening manner. There is no mention in the police report of Olivier claiming that Foxworth had said that Olivier was “going to get it.” The po- lice never contacted Foxworth about Olivier’s allegation. Despite the fact that two witnesses, and the police report, es- sentially corroborated Foxworth’s version of what he said to Olivier, Orlandi testified that she decided Foxworth had “abso- lutely no credibility.” Instead she credited Olivier’s account, which was corroborated by no one. At trial, Orlandi claimed that the reason she did not find Foxworth credible was that he did not appear to be taking the matter seriously. As to why she did not give much weight to Samuel’s and Jeffries’ statements corroborating elements of Foxworth’s account, Orlandi stated that she believed they were reluctant witnesses and were not telling all that they knew about the incident. Even if one ac- cepts Orlandi’s claim that the two appeared reluctant,9 Orlandi provides no basis for believing that whatever they may have been holding back would have been unfavorable to Foxworth. Based on Orlandi’s demeanor and testimony, I believe that the reason Orlandi concluded the two witnesses were withholding information was that she wanted to credit Olivier’s account, and therefore was determined to view any witness whose ac- count failed to conform to Olivier’s as less than reliable. Although Orlandi said that the cafeteria incident was the main reason for the suspension, she testified that she also con- sidered a threat that Olivier reported several weeks earlier. According to Olivier, he was on an elevator with Foxworth and Tim Durkey. When it reached Olivier’s floor, he stepped off, leaving only Foxworth and Durkey inside the elevator. Olivier states that as the doors closed and the elevator moved away, he could hear Foxworth say to Durkey, “I know he’s your boy, and I’m going to get him.” Orlandi looked into this accusation by interviewing Olivier and Durkey. Durkey corroborated Oliv- ier’s account. Orlandi testified that she had no reason to be- lieve that Durkey was a personal friend of Olivier’s. However, the record shows that Durkey and Olivier were personal friends 9 Neither Samuel nor Jeffries was called to testify at the trial in this matter. who socialized together outside of work and played darts to- gether at Olivier’s home.10 Although Orlandi met with Fox- worth before suspending him, she did not ask him anything about the threat he allegedly made on the elevator. Indeed, although Orlandi viewed the elevator incident as significant enough to play a part in the decision to suspend Foxworth, she testified that she did not believe it was necessary to give Fox- worth an opportunity to tell his side of the story. At trial, Fox- worth denied that the elevator incident had occurred. Foxworth testified, as scheduled, at the objections hearing in June 2000. During its cross-examination of Foxworth at that hearing, the Respondent introduced the suspension into evi- dence in an effort to undermine Foxworth’s credibility. 2. Comparator evidence When Orlandi called Foxworth to inform him that he was suspended, Foxworth asked if any discipline would be imposed on Olivier. Orlandi responded that no complaint had been filed against Olivier. Subsequently, Foxworth made a complaint in which he stated that Olivier had threatened him. Foxworth stated that he had not heard these threats directly, but he gave Orlandi the names of two witnesses to the alleged threats—one a current security officer and the other a former employee who was Foxworth’s brother-in-law. Orlandi told Foxworth that he had to submit his complaint in writing—a requirement she had not applied to Olivier’s complaints against Foxworth.11 Orlandi asked Foxworth why he had not brought up the allegations earlier, and she testified that Foxworth’s response was, in her view, unsatisfactory. Orlandi told Foxworth that she would look into his complaints, but she never did. Orlandi conceded at trial that she made no effort to contact either of the two wit- nesses Foxworth identified. When Foxworth asked Orlandi about the status of his complaint, she told him she had con- cluded there was “no validity” to his claim. Orlandi testified that she did not feel she needed to look into Foxworth’s allega- tions against Olivier because it was clear to her those allega- tions were an “afterthought” that Foxworth was just trying on “for size.” The Respondent’s disciplinary policy provides that a 3-day suspension is the appropriate penalty when one employee threatens another. The policy also states, however, that the Respondent has the discretion to depart from the discipline listed. Orlandi acknowledged that she possessed that discretion and that she had sometimes exercised it to impose lesser disci- pline, such as a written warning, when one employee threatened another. According to Orlandi, the discipline she imposed de- pended on “the level of threat involved.” She testified that in some cases when two employees were at odds she had called the employees together and tried to help them work out their differences, rather than imposing any discipline at all. Orlandi agreed that she had not made this effort in the case of the con- flict between Foxworth and Olivier. 10 At trial, Olivier was asked whether he and Durkey were friends. At first Olivier responded, evasively, that they were just “co-workers.” Upon further questioning he conceded that they socialized outside of work and that Durkey came to his home to play darts. 11 Olivier testified that his complaints to the Respondent about Fox- worth were not made in writing. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 638 The record establishes a number of instances in which em- ployees who engaged in conduct similar to Foxworth’s were given lesser discipline.12 One such incident involved an em- ployee, ED, who made threatening, inappropriate, statements to a coworker and received only counseling and a written warning as punishment. Another employee, RM, had been verbally abusive towards her supervisor, but Orlandi merely told this employee to return to work and encouraged her to meet with both the supervisor and Orlandi to “iron this out.”13 The em- ployer concluded that another employee, FM, was making graphic comments to, and otherwise sexually harassing, a fe- male coworker. The Respondent did not suspend FM for that intimidating conduct, but rather gave him a written warning.14 Another employee, AS, had numerous documented confronta- tions with employees and patrons before the Respondent con- sidered his threatening conduct serious enough to warrant a suspension. The record also reveals a number of instances in which the Respondent imposed discipline comparable to that it imposed on Foxworth for conduct similar to what it attributes to Foxworth. For example, one employee, BM, received a 3- day suspension because he threatened one of the Respondent’s cafeteria cashiers during a dispute over paying for his food. Another employee, LM, received a 3-day suspension after he threatened to make a coworker’s “life miserable,” and to “settle this” before the end of the shift. Another employee, OE, was given a 3-day suspension for making inappropriate comments that the Respondent considered sexual harassment. E. The Complaint Allegations The complaint alleges that the Respondent interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act: when its agent Geary engaged in surveil- lance of employees’ union activities; when its agent Krzywda interrogated employees, threatened employees with loss of benefits and job loss, and implied to employees that selecting the Union as their collective-bargaining representative would be futile; when O’Brien, the Respondent’s agent, threatened employees with loss of benefits; when the Respondent distrib- uted a document to employees that implied that they would lose benefits if they voted for the Union; and by maintaining an overly broad confidentiality policy and overly broad policies regarding solicitation and distribution. The complaint also alleges that the Respondent violated Section 8(a)(1) and (3) of the Act by suspending Willie Foxworth because of his union and concerted activities and thereby interfering with, restrain- ing, and coercing employees in the exercise of their rights un- der Section 7 of the Act. 12 At trial, I granted the Respondent’s unopposed motion to refer to these “comparator” employees only by their initials. 13 The Respondent did not discipline RM until she violated Orlandi’s instructions by refusing to return to work and leaving the Hospital without notice to her superiors. 14 Harsher discipline was not imposed until after FM continued his harassment of the coworker in contravention of the Respondent’s ex- plicit order that he “stay away” from her. F. Analysis and Discussion I. SECTION 10(B) Paragraph 7 of the complaint alleges unfair labor practice violations based on the April 2000 events and the handbook provisions. The Respondent contends that the allegations con- tained in Paragraph 7 of the complaint are time-barred under Section 10(b) of the Act because they involve events that oc- curred more than 6 months before the filing of the relevant amended charges. The Union filed the original charge in this case on June 29, 2000. That charge concerned only Foxworth’s June 9, 2000, suspension. On April 19, 2001, the Union filed an amended charge which added allegations that in April 2000, during the weeks prior to the election, the Respondent engaged in unlawful threats, surveillance and interrogations, and made statements implying futility. On May 8, 2001, the Union filed a second amended charge, which added allegations that the Re- spondent maintained rules in its handbook regarding confiden- tiality and solicitation/distribution that unlawfully prohibited protected activity. The provision of the Act regarding time limits on charge fil- ing, Section 10(b), states in relevant part: [N]o complaint shall issue based upon any unfair labor prac- tice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. Under this provision, allegations that involve events occurring more than 6 months prior to the filing of the charge are still considered timely if those allegations are “closely related” to the allegations made in a timely charge. Seton Co., 332 NLRB 979, 985 (2000); Nickles Bakery of Indiana, 296 NLRB 927 (1989); Redd-I, Inc., 290 NLRB 1115, 1116–1118 (1988); see also Ross Stores, 329 NLRB 573, 573 fn. 6 (1999) (the “closely related” standard applies both when the question is whether otherwise time-barred allegations in an amended charge relate back to the allegations of an earlier timely filed charge, and where the question is whether the allegations in a complaint are sufficiently related to those in a charge.) enf. denied in relevant part 235 F.3d 669 (D.C. Cir. 2001). In NLRB v. Fant Milling Co., 360 U.S. 301(1959), the Supreme Court explained the basis for the “closely related” standard. The Court stated that the Board’s role is “not to adjudicate private controversies but to advance the public interest,” Id. at 308, and therefore the Board would not be “precluded from ‘dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board,’” Id. at 309 quoting National Lico- rice Co. v. Labor Board, 309 U.S. 350 (1940). The purpose of the charge, the Court explained, is “merely to set in motion the machinery of an inquiry,” while “[t]he responsibility of making that inquiry, and of framing the issues in the case is one that Congress has imposed on the Board.” 301 U.S. at 307. In the instant case, the Union’s initial charge regarding Fox- worth’s suspension was filed on June 29—within 6 months of both Foxworth’s suspension and the Respondent’s alleged mis- conduct in April 2000. However, the Union did not amend the charge to discuss the April 2000 conduct until April 19, 2001— CARNEY HOSPITAL 639 well after the 6-month period expired—and, therefore, the alle- gations regarding the April 2000 conduct are untimely unless those allegations are closely related to the timely allegation regarding Foxworth’s suspension. I conclude that, under the standards articulated by the Board, the allegations regarding the April 2000 conduct are closely related to the timely allegation, and therefore that the allegations in paragraph 7(c), (e), (f), and (g) are not barred by Section 10(b). The Board has considered the following factors when deter- mining whether allegations are closely related: (1) whether the allegations involve the same legal theory; (2) whether the alle- gations arise from the same factual circumstances; and (3) whether the respondent would raise similar defenses to the allegations. Nickles Bakery, supra at 928; see also Redd-I, Inc., supra at 1118. The Board has treated these as factors to guide analysis of the issue, not as requirements all of which must be met. The Board has held that the “closely related” standard is met when the allegations “involv[e] ‘acts that are part of the same course of conduct, such as a single campaign against a union,’ . . . and acts that are all ‘part of an overall plan to resist organization.’” Ross Stores, supra at 573 (internal citations omitted); see also Office Depot, Inc., 330 NLRB 640 (2000).15 Under these standards, the allegations regarding the Respon- dent’s conduct in April 2000 are sufficiently related to those in the timely charge to survive the Respondent’s 10(b) challenge. If Foxworth’s suspension on June 9 was, as alleged, a response to his activities in support of the union campaign, that suspen- sion would plainly be an extension of the same antiunion cam- paign that allegedly included the threats, surveillance, and other improper conduct in April 2000, about 2 months earlier. This is true even though the April 2000 conduct occurred before the representation election on April 27 since neither the Union’s effort, nor the Respondent’s opposition to it, ended with the election. Instead, the Union continued its campaign by filing objections to the election and convincing the Board to direct a new election. The Respondent’s opposition to the postelection campaign by the Union is within the sweep of a single, con- tinuous, effort by the Respondent to defeat the Union. Since 15 The Respondent argues that each factor is a requirement and that allegations are not “closely related” unless all three are satisfied. Re- spondent’s Brief at 11. That is not the Board’s view. In Nickles Bak- ery, the Board indicated that the third factor is permissive—stating that “the Board may look at whether a respondent would raise similar de- fenses to both allegations.” 296 NLRB at 928 (emphasis added). In Redd-I, the Board’s discussion indicated that allegations could be found closely related as long as they involved “the same subject matter and sequence of events.” 290 NLRB at 1116, quoting Douds v. Long- shoremen, 241 F.2d 278, 284 (2d Cir. 1957). More recently, the Board has applied Nickles Bakery and Redd-I, and held that allegations are closely related as long as they allege unfair labor practices that were committed as part of a single antiunion campaign. Precision Concrete, 337 NLRB 211 fn. 5 (2001), enf. denied in relevant part 334 F.3d 88 (D.C. Cir. 2003); Office Depot, Inc., supra; Ross Stores, supra. In support of the contrary view, the Respondent relies on Nippondenso Mfg. U.S.A., 299 NLRB 545 (1990). Not only is Nippondenso contrary to the weight of prior Board precedent and the Supreme Court’s ration- ale in Fant Milling, supra, but the Board has explicitly repudiated it in relevant part. See Office Depot, supra at 640; Ross Stores, supra at 574–575. the April 2000 allegations and those in the timely charge re- garding Foxworth’s suspension “are part of . . . a single cam- paign against the Union” those allegations are closely related under the Board precedent cited above. The Board has recognized that its view that unfair labor practices are sufficiently related as long as they arise out of the same antiunion campaign has not found favor with the U.S. Court of Appeals for the D.C. Circuit, but the Board has chosen to adhere to its own standard. Precision Concrete, supra. I, in turn, am bound by Board’s view since it has not been reversed by the Supreme Court or the Board itself. See Los Angeles New Hospital, 244 NLRB at 962 fn. 4. In any case, I am convinced that the Board’s current position is consistent with Redd-I and Nickles Bakery, as well as with the policy concerns set forth by the Supreme Court in NLRB v. Fant Milling Co., 360 U.S. at 307–309. Moreover, I conclude that the amendment to the charge satisfies the “closely related” requirement even when each of the three factors identified in Nickles Bakery is consid- ered individually. The first factor is whether the allegations involve the same legal theory. In the instant case, both the amendment regarding the Respondent’s April 2000 conduct and the timely charge regarding Foxworth’s suspension allege the same legal theory—i.e., that the Respondent engaged in ani- mus-motivated efforts to defeat the union campaign.16 Indeed, the allegations regarding threats, interrogations, and so forth, would, if proven, help to establish the animus the General Counsel is required to show as part of its case regarding Fox- worth’s allegedly discriminatory suspension, and thus cannot reasonably be seen as less than closely related to that allegation. Second, the April 2000 allegations and the discriminatory sus- pension allegation arise from the same factual circumstances— i.e., the Respondent’s antiunion campaign. Indeed, the Re- spondent’s conduct in April 2000 is alleged to include an unlawful threat directed at Foxworth, the same individual who the Respondent is alleged to have unlawfully suspended 2 months later in June. Finally, the Respondent would likely raise some similar defenses to both allegations. As discussed above, it is predictable that the General Counsel would rely on evidence regarding the Respondent’s April 2000 conduct in order to show that the Respondent harbored antiunion animus connected to Foxworth’s suspension. Thus, in response to both the April 2000 allegations, and the allegation regarding Fox- worth’s suspension, the Respondent would be expected to de- fend, in part, by contending that the April 2000 conduct either did not occur, or that the conduct was not improper. 16 This factor does not require that both allegations invoke the same section of the Act. Nickles Bakery, 296 NLRB at 928 fn.5. At any rate, the complaint invokes the same provision—Sec. 8(a)(1)—with respect to the Respondent’s alleged April 2000 misconduct, and the allegedly unlawful suspension of Foxworth. The complaint alleges that both had the purpose of discouraging employees from engaging in protected activities. Of course, the suspension, unlike the April 2000 conduct, is alleged to be discriminatory in violation of Sec. 8(a)(3), but this does not negate the fact that both the April 2000 conduct and the suspension are also alleged to violate Sec. 8(a)(1). See Flannery Motors, Inc., 321 NLRB 931 (1996) (in discriminatory discipline case, the 8(a)(1) viola- tion is derivative of the 8(a)(3) violation), enfd. 129 F.3d 1263 (1997) (Table). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 640 A decision to permit the General Counsel to pursue the April 2000 allegations is also consistent with the Supreme Court’s rationale in Fant Milling, supra. In that case, the Court made clear that Section 10(b) should not be construed to interfere with the General Counsel’s responsibility for shaping the in- quiry “set in motion” by the charge, 360 U.S. at 307, and “‘dealing adequately with unfair labor practices which are re- lated to those alleged in the charge and which grow out of them while the proceeding is pending before the Board,’” Id. at 309. In this case, the 8(a)(1) allegations relating to the Respondent’s campaign against the Union logically grow out of the Board’s investigation of the charge regarding Foxworth’s suspension, since the Board would reasonably investigate the Respondent’s antiunion campaign for evidence of the type of antiunion ani- mus required to establish that the suspension was discriminato- rily motivated. In Redd-I, supra, the Board also looked to principles of “fairness” to aide in the resolution of the 10(b) issue. There, the Board stated that it was not unfair to permit the allegations to go forward since the employer could not claim surprise or that “events” had “induced [it] not to preserve evidence.” 290 NLRB at 1117. Here the Respondent also cannot claim such surprise, since it should have expected an inquiry into its cam- paign against the Union after receiving the charge regarding Foxworth’s suspension. Moreover, even before the Union filed the initial unfair labor practice charge, the Respondent was made aware that its April 2000 conduct would be scrutinized by the Board, since the same conduct was cited by the Union in its May 4 objections to the Respondent’s election conduct. In- deed, counsel for the Respondent made use of the transcript from the objections hearing during his crossexamination of one or more witnesses in the unfair labor practices trial before me. The Respondent also argues that Section 10(b) bars the alle- gations that the Respondent violated the Act by maintaining certain rules in its handbook. Those rules were adopted more than 6 months prior to the filing of the May 8 charge, which first alleged that the rules violated the Act. This argument fails because the Respondent continued to maintain the challenged provisions during the 6-month period prior to the filing of the May 8 charge. Section 10(b) does not preclude the Board from finding that a provision or policy maintained by an employer is unlawful, even it was adopted more than 6 months prior to the filing of a charge, since such violations are continuing in na- ture. See Teamsters Local 293, 311 NLRB 538, 539 (1993), Auto Workers Local 148 (McDonnell-Douglas), 296 NLRB 970, 977 (1989), Sheet Metal Workers Local 73, 274 NLRB 374, 375 (1985). This conclusion is unaffected even if the rules were not enforced during the charge-filing period since the mere existence of such a rule “tends to restrain and interfere with employees’ rights under the Act, even if the rule is not enforced,” TeleTech Holdings, Inc., 333 NLRB 402, 403 (2001) (emphasis added); see also Alaska Pulp Corp., 300 NLRB 232, 233–234 (1990), enfd. mem. 972 F.2d 1341 (9th Cir. 1992). II. THE 8(A)(1) ALLEGATIONS A. Geary The General Counsel alleges that the Respondent violated Section 8(a)(1) by unlawfully surveilling union activity in April 2000 when Geary approached Heffel while the latter was dis- tributing union literature to employees outside the hospital’s entrance. It is undisputed that Geary exited the hospital in or- der to stand next to, and talk with, Heffel for approximately 20 minutes on that occasion, and that Geary found it more difficult to distribute literature to employees because of Geary’s action. Geary was Heffel’s second-level supervisor.17 The Board has held that “management officials may observe public union activity, particularly when such activity occurs on company premises, without violating Section 8(a)(1) of the Act, unless such officials do something out of the ordinary.” Arrow Automotive Industries, 258 NLRB 860 (1981), enfd. mem. 679 F.2d 875 (4th Cir. 1982). I conclude that the observation at issue here constitutes more than ordinary observation of public union activity and amounts to unlawful surveillance. The re- cord indicates that Geary was not casually observing employ- ees, but rather exited the hospital for the purpose of standing at Heffel’s side while Heffel tried to distribute prounion leaflets. Geary situated herself in such a way that Heffel had to maneu- ver around her to hand the leaflets to passing employees. Geary remained at Heffel’s side for 20 minutes, the effect being that any employee who wished to take a leaflet from Heffel during that time would have to do so under the intrusive, close- up, scrutiny of Geary. This unusual physical proximity signifi- cantly heightens the coercive effect of Geary’s observation. See Flexsteel Industries, 311 NLRB 257 (1993) (under Sec. 8(a)(1), employees should be free to participate in union orga- nizing campaigns without the fear that members of manage- ment are “peering over their shoulders”). Moreover, it meant that any communications, or questions, regarding the leaflets that employees wanted to raise with Heffel were at risk of being overheard by Geary. Geary’s activities were out of the ordinary and had the tendency to unreasonably chill the exercise of em- ployees’ Section 7 rights. Fairfax Hospital, 310 NLRB 299, 310 (1993), enfd. mem. 14 F.3d 594 (4th Cir. 1993), cert. de- nied, 512 U.S. 1205 (1994). Under the circumstances, I am not surprised that Heffel found it more difficult to distribute leaflets to employees during Geary’s visit. My conclusion that Geary’s surveillance violated Section 8(a)(1) is consistent with prior decisions in which the Board found that an employer’s observation of public union activity was sufficiently “out of the ordinary” to constitute unlawful surveillance. In Hoschton Garment Co., 279 NLRB 565, 566 (1986), the Board found that the Respondent had engaged in unlawful surveillance at a plant entrance when it “did not merely observe union activity, but rather attempted to prohibit [an employee] from distributing handbills to employees on public property, and that [the supervisor] stood very close to [the employee] for the duration of the handbilling.” Similarly, in the instant case Geary stood close to Heffel dur- ing handbilling. Although Geary did not state that Heffel was prohibited from distributing the leaflets, she did something similar; she positioned herself in a way that made it physically difficult for Heffel to place the leaflets in employees’ hands. Moreover, the intrusive observation by Geary, an upper-level 17 The Respondent admits that Geary is its agent and a supervisor within the meaning of Sec. 2(11). CARNEY HOSPITAL 641 supervisor, would predictably chill employees from taking the prounion leaflets and discussing them, or the Union, with Hef- fel. In Sands Hotel & Casino, 306 NLRB 172 (1992), enfd. mem. 993 F.2d 913 (D.C. Cir. 1993), the Board found that an employer violated the Act when guards observed public union activity using binoculars. In the instant case, Geary also took steps to get an intrusive, closeup, view of the public union ac- tivity, although she did this not through the use of a mechanical device, but rather by leaving the hospital and standing at Hef- fel’s side. If anything, Geary’s physical presence was a more coercive and intimidating intrusion than that represented by the use of binoculars in Sands Hotel. In Sands Hotel, it was also noted that there was no evidence that the Respondent’s “con- duct was based on safety or property concerns.” 306 NLRB at 172; see also Arrow Automotive, 258 NLRB at 861 (employer’s surveillance of handbilling unlawful when it was not necessary to preserve the integrity of its property). Similarly, the Re- spondent did not show that it had a legitimate basis for the in- trusive surveillance in this case. In Days Inn Management Co., 306 NLRB 92 fn.3 (1992), the Board found that the employer had not engaged in unlawful surveillance, but only after noting that the employer: had not disrupted contact between employ- ees and the union; was not able to overhear conversations be- tween employees and the union; and had not attempted to talk to union representatives. In the instant case, those same factors weigh in favor of finding the surveillance unlawful. Geary interfered with Heffel’s efforts to distribute leaflets by position- ing herself so that Heffel had to maneuver around her in order to hand the leaflets to passing employees. From this same posi- tion, Geary would likely be able to overhear conversations that Heffel had with employees. During the time that Geary ob- served the union activity she questioned Heffel, an employee who she indirectly supervised, about her support for the union. For the reasons discussed above, I find that, in April 2000, the Respondent engaged in unlawful surveillance of union ac- tivities in violation of Section 8(a)(1). B. Krzywda On April 16, 2000, Krzywda summoned one of her supervi- sees,18 Mashrick, to come to her office for a one-on-one meet- ing. The General Counsel alleges that during that meeting Krzywda unlawfully interrogated and threatened Mashrick, and implied that it would be futile to choose the Union as collective bargaining representative. During the incident in question, Krzywda asked Mashrick what her view was regarding the union campaign and, after Mashrick revealed a favorable impression of unions, Krzywda asked whether Mashrick intended to vote consistent with that view. Mashrick said that she intended to vote in favor of the Union, and then Krzywda asked why Mashrick held a favorable view of unions. When Mashrick responded, Krzywda, ap- peared to become angry, and began communicating negative views about unions without allowing Mashrick to respond. An interrogation is unlawful if, in light of the totality of the cir- cumstances, it reasonably tends to interfere with, restrain, or 18 The Respondent admits that Krzywda is its agent and a supervisor within the meaning of Sec. 2(11). coerce employees in the exercise of their Section 7 rights. Mat- thews Readymix, Inc., 324 NLRB 1005 (1997), enfd. in part 165 F.3d 74 (D.C. Cir. 1999); Emery Worldwide, 309 NLRB 185, 187 (1993); Liquitane Corp., 298 NLRB 292, 292–293 (1990). Relevant factors include, whether the interrogated employee is an open or active union supporter, the background of the interrogation, the nature of the information sought, the identity of the questioner, and the place and method of the in- terrogation. Stoody Co., 320 NLRB 18, 18–19 (1995); Ross- more House Hotel, 269 NLRB 1176 (1984), enfd. 760 F.2d 1006 (9th Cir. 1985). Based on these factors, I find that Krzy- wda’s interrogation of Mashrick was unlawfully intimidating and coercive. The record did not show that Mashrick was a particularly open or active union supporter prior to the interro- gation. Indeed, Krzywda stated she did not even know whether Mashrick supported the Union when she began to question her. The fact that Krzywda was Mashrick’s supervisor also adds to the coercive character of the questioning. This is especially true since Mashrick was a student nurse who would soon qual- ify for a position as a registered nurse and therefore her future with the Respondent was uncertain. In addition, the interroga- tion took place only 11 days before the scheduled election, and against the backdrop of the Respondent’s aggressive campaign to defeat the Union. As discussed below, in the same conversa- tion during which Krzywda questioned Mashrick, she also threatened that unionization would result in loss of employment and benefits. The place and method of the interrogation further supports the conclusion that it was unlawfully coercive. Krzy- wda summoned Mashrick to her office, where, out of the pres- ence of others, she posed her questions. A reasonable em- ployee would find that setting to be intimidating. “In light of the totality of the circumstances” shown here, I conclude that Krzywda’s interrogation unlawfully interfered with, restrained, and coerced Mashrick in the exercise of her Section 7 rights. For these reasons, I find that on April 16, 2000, the Respon- dent interrogated Mashrick about her union sympathies in vio- lation of Section 8(a)(1). The General Counsel alleges that Krzywda also unlawfully threatened Mashrick with loss of employment and benefits. During the meeting with Mashrick, Krzywda discussed strikes that had occurred at one or more other hospitals where unions were present and told Mashrick that the Respondent would not survive such a strike. In NLRB v. Gissel Packing Co., 395 U.S. 575, 619 (1969), the Supreme Court found that an employer violated Section 8(a)(1) by conveying the message that the company was in a precarious financial position, that the union would likely strike to obtain its demands, and that the probable result of a strike would be the shutdown of the plant. The ques- tion when assessing this type of speech, the Court stated, is whether the employer’s prediction is “carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control.” 395 U.S. at 618; see also Quamco, Inc., 325 NLRB 222, 223 fn. 6 (1996) (When employer “implies a prediction that the em- ployer’s plant will also close if the employees choose union representation, the employer must, as noted above, articulate an objective basis for the prediction.”). The Respondent has pre- sented no evidence that Krzywda’s prediction that the Hospital DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642 would not survive a strike had any basis at all in objective fact. To support its contention that Krzywda did not unlawfully threaten loss of employment, the Respondent cites Crompton Co., Inc., 272 NLRB 1121 (1984)—a case in which the Board found it was not a violation for an employer to disseminate accurate information about strikes that a union has engaged in at other facilities, including strikes that resulted in plant clos- ings. However, Krzywda did something more than recount what had happened at other facilities. She predicted something that would happen at the Respondent—i.e., that the Hospital would go out of business if the Union went on strike to obtain its demands. Therefore, Krzywda’s prediction is subject to the test set forth in Gissel, which, as discussed above, it fails. The General Counsel alleges that Krzywda unlawfully threatened Mashrick with loss of benefits when she said “I can guarantee you’re going to lose something” in bargaining and mentioned a number of examples of benefits, including favor- able work schedules and the existing vacation benefit. An em- ployer violates the Act when it makes a prediction to employ- ees that they would necessarily lose benefits if they select a union when there is “no lawful explanation based on objective facts as to why such a loss of benefits would occur.” Poly- America, Inc., 328 NLRB 667, 669 (1999);19 see also Dico Tire, Inc., 330 NLRB 1252, 1257 (2000) (employer threatens an employee in violation of the Act when it predicts that em- ployees will lose benefits in negotiations if they select a union). The Respondent here has articulated no objective basis for Krzywda’s prediction that employees would lose benefits as a result of collective bargaining, and therefore her statement con- stitutes a coercive threat, not a lawful prediction. For the reasons discussed above, I find that the statements Krzywda made during her April 16, 2000, conversation with Mashrick violated Section 8(a)(1) by threatening that employ- ees would lose employment and benefits if they selected the Union as their collective- bargaining representative. The final allegation arising out of the meeting between Krzywda and Mashrick is that Krzywda implied it would be futile for employees to select the Union as their collective- bargaining representative. During the meeting, Krzywda told Mashrick that “just because a union comes in . . . doesn’t mean . . . that we would go to the table at all.” She added that the Respondent “might not even go to the table.” I find that this statement is unlawful because it implies that voting for union representation would be futile insofar as the employees could not use the election process to force the Respondent to recog- nize and bargain with the Union. See Equipment Trucking Co., Inc., 336 NLRB 277, 283 (2001) (company unlawfully threat- ened futility when it told employees that the company would never negotiate a contract); Outboard Marine Corp., 307 19 In its brief, the Respondent answers the allegation that it unlaw- fully threatened loss of benefits in part by citing Sec. 8(c) of the Act, which protects an employer’s right to communicate its views to em- ployees. In Gissel, the Supreme Court considered Sec. 8(c), but con- cluded that an employer’s predictions that unionization will result in negative consequences are protected by that section only if the predic- tions are “carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control.” 395 U.S. at 617 and 618. NLRB 1333, 1335 (1992) (same), enfd. mem. 9 F.3d 113 (7th Cir. 1993); Airtex, 308 NLRB 1135 fn.2 (1992) (employer unlawfully threatened futility by stating that it only had to ne- gotiate with the union, not sign a contract). The threatening character of Krzywda’s statements implying futility is exacer- bated because those statements came in the context of a rather lengthy meeting during which Krzywda also coercively interro- gated Mashrick and threatened her with loss of employment and benefits. See Venture Industries, 330 NLRB 1133 (2000) (statement of futility was made during a lengthy conversation that also included threats of the loss of jobs and opportunities and this context added to threatening nature of the statement of futility). I believe that Krzywda’s statements unlawfully im- plied futility despite the fact that she did not unequivocally state that the Respondent would not bargain, but rather that it “might not.” Krzywda’s statement implies that the election effort was futile since, regardless of the results of that election, the Respondent would be the one who decided whether em- ployees bargained collectively. See also Roma Baking Co., 263 NLRB 24, 30–31 (1982) (employer unlawfully implied futility when it stated that organizing campaign “might not” reach the voting stage and that it “could” close the facility). For these reasons, I conclude that the Respondent violated Section 8(a)(1) by implying that it would be futile for employ- ees to select the Union as their collective-bargaining represen- tative. C. O’Brien The complaint alleges that O’Brien, a supervisor, violated Section 8(a)(1) in April 2000 by threatening employees with loss of benefits if they voted for the Union.20 The only state- ments by O’Brien that appear in the record are those testified to by Foxworth, and so I assume that this allegation relates to those statements. O’Brien told Foxworth that if the Union won the election, employees were “definitely going to lose some- thing” during negotiations, and that the Respondent was “not going to give you what you want without taking something away.” During this same conversation, O’Brien listed a num- ber of benefits that employees could lose. The language used by O’Brien is very similar to some of that used by Krzywda, and which I have already found to be unlawful. As in the case of Krzywda’s statements, O’Brien’s prediction that employees would necessarily lose some benefits if they selected a union was not supported by a “lawful explanation based on objective facts as to why such a loss of benefits would occur.” Poly- America, Inc., supra at 669; see also Dico Tire, Inc., 330 NLRB at 1257. Since the Respondent has articulated no objective basis for O’Brien’s prediction that employees would necessar- ily lose some benefits as a result of collective bargaining, her statement constitutes a coercive threat, not a lawful prediction, under applicable precedent. I find that the statements O’Brien made during her April 2000, conversation with Foxworth violated Section 8(a)(1) by threatening that employees would lose benefits if they voted for the Union. 20 The Respondent admits that O’Brien is its agent, and a supervisor within the meaning of Sec. 2(11). CARNEY HOSPITAL 643 IV. STATEMENT REGARDING “FROZEN BENEFITS” The General Counsel alleges that the Respondent threatened loss of benefits by distributing a pamphlet on or about April 27, which stated that during initial collective-bargaining wage and benefit programs typically remain “frozen” and employees would have to “wait and see” whether wages and benefits would be “changed, if at all by a contract.” When evaluating whether an employers’ statement that wages and benefits will be frozen during initial bargaining con- veys an unlawful threat, the Board has looked to the surround- ing circumstances. In Teksid Aluminum Foundry, 311 NLRB 711 fn. 2, 717 (1993), the Board considered an employer’s statement that if the union won the election wages and benefits would be frozen until an agreement was reached. In that case, the language was found to violate the Act because employees “reasonably could infer from the language used that step in- creases were frozen indefinitely in the event they chose to be represented by the Union.” Id. at 717. The decision was also based on the fact that the employer had posted the at-issue lan- guage shortly before the representation election was to be held, so that the union did not have a reasonable opportunity to re- spond. Id. Similarly, in Frank’s Nursery & Crafts, 297 NLRB 781, 785 (1990), an employer’s statement that wages would be frozen was found to be unlawful because it indicated that em- ployees would not receive periodic merit wage increases that were an existing term and condition of their employment. On the other hand, in Mantrose-Haeuser Co., 306 NLRB 377, 377– 378 (1992) the Board held that language virtually identical to that used by the Respondent in this case could not reasonably be read as a threat that regular wage increases and bonuses would be lost since the Respondent had continued making the regular wage increases during the campaign and had assured employees that the past practices of granting merit increases and other benefits would continue. Under the circumstances present here, I conclude that the Respondent’s statement that wages and benefits typically would be “frozen” during initial bargaining was an unlawful threat. The Respondent’s employee handbook states that “[a]s a gen- eral rule, Performance Evaluations are conducted and resultant pay increases are granted once during a fiscal year.” GC Exh. 4.21 The Respondent does not claim, and the evidence does not show, that it told employees that the “freeze” would not prevent these periodic wage increases that were an existing term and condition of employment with the Respondent. Employees could reasonably infer from the language used that the periodic wage increases they would otherwise receive would be frozen indefinitely if the Union won the election. Unlike in Mantrose- Haeuser Co., a decision upon which the Respondent relies, management in this case did not do anything to dispel that in- ference. To the contrary, as in Teksid Aluminum, the Respon- dent disseminated its statement about “frozen” wages very close in time to the election, thereby depriving employees’ of a chance to determine, prior to voting, what effect a freeze would have on established, periodic, raises. Furthermore, in Man- 21 In the decision on the election objections, the hearing officer found that these wage increases historically occurred during the fall. GC Exh. 2 at 18–20. trose-Haeuser, the Board supported its conclusion that lan- guage like that at issue here was lawful by observing that “there were no other allegations of unfair labor practices or objection- able conduct.” 306 NLRB at 377. Conversely, the fact that the Respondent made the statement about frozen wages during a period when it committed multiple unfair labor practices, in- cluding threatening employees with loss of benefits, increases the likelihood that employees would reasonably understand the Respondent’s statement about frozen wages to be a threat. For these reasons, I find that the Respondent violated Section 8(a)(1) when, on or about April 27, 2000, it distributed a pam- phlet that contained language threatening that employees would lose wages and/or other benefits if they selected the Union as their collective-bargaining representative. V. SOLICITATION/DISTRIBUTION POLICY The General Counsel alleges that the following portion of the Respondent’s policy regarding solicitation and distribution is overly broad and a violation of the Section 8(a)(1): “Solicita- tion and distribution to patients and visitors is prohibited at all times. Employees who participate in unauthorized solicitations or distributions are subject for [sic] disciplinary action.” For the reasons discussed below, I agree that the policy is unlawful. In recognition of the fact that a hospital’s primary function “is patient care and that a tranquil atmosphere is essential to carrying out that function,” the Board has permitted health care facilities to impose somewhat more “stringent prohibitions” on solicitation and distribution than are generally permitted.22 St. John’s Hospital & School of Nursing, Inc., 222 NLRB 1150 (1976), enfd. in part 557 F.2d 1368 (10th Cir. 1997); see also Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978) (approving the standard applied by the Board in St. John’s Hospital). A hospital may prohibit solicitation and distribution at any time in immediate patient care areas (such patients’ rooms, operating rooms, X-ray areas, therapy areas), even during nonworking time. St. John’s Hospital, supra at 1150–1151; see also Health Care & Retirement Corp., 310 NLRB 1002, 1004–1005 (1993). However, a hospital may not ban solicitation and dis- tribution in other areas to which patients and visitors have ac- cess (such as lounges and cafeterias) unless the evidence shows that such a ban is necessary to avoid a disruption of patient care. Id.; NLRB v. Baptist Hospital, 442 U.S. 773, 781–787 (1979). In this case, the Respondent does not limit the prohibition on solicitation and distribution to immediate patient care areas. In fact, the Respondent’s rule is so broad as to prohibit employees from petitioning public support regardless of where or when such activity occurs. The policy, on its face, would apply to locations outside, and even distant from, the hospital. There- fore, the rule is invalid unless the Respondent can show that it 22 Under the standards applicable to nonhospital employers, a policy against solicitation violates the Act when it prohibits employees from engaging in union solicitation during nonwork times, such as breaks and meals. M.J. Mechanical Services, 324 NLRB 812, 813 (1997). A nonhospital employer’s policy against distribution of literature is gen- erally unlawful when it prohibits employees from distributing union literature during nonworking time in nonwork areas. Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644 is necessary to avoid a disruption of patient care. Here, the Respondent has produced no evidence showing that such an unqualified ban on solicitation and distribution is necessary to avoid a disruption of patient care.23 Therefore, the Respon- dent’s rule is overbroad and unlawful. The Respondent contends that its rule is permissible because employees only have the right to solicit and distribute to “other employees, not clients of the institution.” It is unsurprising that the Respondent cites no authority for this proposition since it is contrary to applicable law. In UCSF Stanford Health Care, 335 NLRB 488, 535–536 (2001), enfd. 325 F.3d 334 (D.C. Cir. 2001), cert. denied 2004 WL 46646 (Jan. 12, 2004), the Board affirmed that a hospital violated the Act when it maintained a policy that prohibited solicitation and distribution to nonem- ployees. The United States Court of Appeals for the D.C. Cir- cuit upheld the Board’s decision, stating: [N]either this court nor the Board has ever drawn a substan- tive distinction between solicitation of fellow employees and solicitation of nonemployees. To the contrary, both we and the Board have made clear that [National Labor Relations Act] sections 7 and 8(a)(1) protect employee rights to seek support from nonemployees. Stanford Hospital & Clinics v. NLRB, 325 F.3d 334, 343 (D.C. Cir. 2001). Similarly, in NCR Corp., 313 NLRB 574, 576 (1993), the Board stated that “Employees have a statutorily protected right to solicit sympathy, if not support, from the general public, customers, supervisors, or members of other labor organizations” by distributing union literature to them. See also Santa Fe Hotel & Casino, 331 NLRB 723, 730 (2000) (“[T]he fact that off-duty employee distributions . . . were to customers rather than to other employees . . . is an irrelevant consideration.”) Therefore, the Respondent’s argument based on the nonemployee status of patients and visitors fails. The Respondent also argues a violation should not be found because the handbook contains language indicating that it only “summarizes” the rules applicable to employees. This argu- ment is utterly frivolous. The Respondent does not even claim that there exists an “unabridged” version of its solicita- tion/distribution policy much less venture to say how its mean- ing diverges from that of the rule published to employees, or explain why any such differences would render the policy law- ful.24 Even assuming that the unlawful version of the rule that the Respondent provided to employees is not complete, the fact would remain that it was the version the Respondent chose to 23 The Respondent conjures the image of prounion employees ac- costing patients who are entering the hospital in need of medical atten- tion. However, the Respondent’s policy of prohibiting solicitation of patients and visitors at all times and in all places is far broader than is necessary to address any concerns of this type. 24 The Respondent cites Mediaone of Greater Florida, Inc., 340 NLRB 277 (2003), in which the Board evaluated the legitimacy of an employer’s no-solicitation rule by considering two expressions of that rule (one a summary and one complete), both of which were provided to employees in a single employee handbook. That decision is inappli- cable here since, during the relevant time period, the Respondent’s employee handbook only provided one version of its solicita- tion/distribution policy, the unlawful one discussed above. provide to employees and that it would tend to chill protected activity. At any rate, to the extent that one accepts that the Respondent left the precise contours of the rule ambiguous, the Board has held that such ambiguity is to be construed against the promulgator of the rule. Lafayette Park Hotel, 326 NLRB 824, 828 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999) (Table); Norris/O’Bannon, 307 NLRB 1236, 1245 (1992). For the reasons discussed above, I conclude that the Respon- dent’s rule prohibiting solicitation and distribution to patients and visitors is overbroad and violates Section 8(a)(1) of the Act.25 VI. CONFIDENTIALITY POLICY Up until June 30, 2003, the Respondent maintained a confi- dentiality policy that stated: Disclosure of confidential information gained through your employment by the Hospital is considered an act of prohibited conduct subject to formal disciplinary action. Any informa- tion concerning a patient’s illness, family, financial condition or personal characteristics is strictly confidential. When a pa- tient’s history or condition is reviewed, it must be done in pri- vacy with only those persons involved with the care of the pa- tient. Any other information coming to you in the course of your employment concerning another person or employee is also considered confidential and may not become the topic of conversation with others. The General Counsel alleges that the Respondent’s mainte- nance of this policy violates Section 8(a)(1) of the Act. In determining whether the maintenance of a confidentiality policy violates Section 8(a)(1) of the Act “the appropriate in- quiry is whether the rules would reasonably tend to chill em- ployees in the exercise of their Section 7 rights.” University Medical Center, 335 NLRB 1318, 1320 (2001), enf. denied in relevant part 335 F.3d 1079 (D.C. Cir. 2003). In cases involv- ing policies that prohibit disclosure of employee information, the inquiry has turned on whether the rule “could reasonably be construed by employees to prohibit them from discussing in- formation concerning terms and conditions of employment.” See, e.g., id. at 1322; Lafayette Park Hotel, supra at 826. De- pending on the language of the particular policy, the Board has found either that the restriction did prohibit such activity, see Flamingo Hilton-Laughlin, 330 NLRB 287, 288 fn.3 and 291 (1999), University Medical Center, id. at 1322, or that it did not, see Mediaone of Greater Florida, supra at 278; Lafayette Park Hotel, 326 NLRB at 826. “Where the rules are likely to have a chilling effect on Section 7 rights, the Board may con- clude that their maintenance is an unfair labor practice, even 25 The second sentence of the challenged paragraph states that em- ployees who participate in “unauthorized” solicitations or distributions may be disciplined. To the extent that this might suggest that the Re- spondent’s policy permits soliciting and distributing to patients and visitors as long as the Respondent’s prior authorization is obtained, that does not alter my conclusion that the policy is unlawful. The Board has held that “any rule that requires employees to secure permission from their employer as a precondition to engaging in protected concerted activity on an employee’s free time and in nonwork areas is unlawful.” Brunswick Corp., 282 NLRB 794, 795 (1987). CARNEY HOSPITAL 645 absent evidence of enforcement.” Lafayette Park Hotel, id. NLRB at 825. I conclude that employees would reasonably read the confi- dentiality policy as prohibiting them from discussing informa- tion concerning terms and conditions of employment. The language that the Respondent chose for the provision is unusu- ally broad. The policy does not limit the prohibited disclosures to the types of information typically considered “confidential,” but rather goes out of its way to redefine confidential in the broadest terms. It states that confidential information includes “any information” about another employee “coming to” an employee in “the course” of their employment. “Any informa- tion,” on its face includes information about employee wages and other terms and conditions of employment. The Respon- dent also fails to limit what is meant by information “coming to” employees “in the course of their employment.” Thus, the category of information coming to employees in the course of their employment would include, for example, information that co-workers voluntarily divulged to each other during working hours about their own wages and benefits. For these reasons, I find that the version of the Respondent’s confidentiality policy regarding employee information that was maintained until June 30, 2002, is overly broad and a violation of Section 8(a)(1) of the Act. On June 30, 2002, the Respondent modified the confidential- ity policy by adding the following language: “This Confidenti- ality Information Policy should not be interpreted to prohibit employees from discussing the terms and conditions of their employment in an appropriate manner.” The General Counsel argues that the policy is unlawful even as modified because the phrase “appropriate manner” is ambiguous and will leave em- ployees “with the choice of either guessing what the employer would find appropriate or playing it safe by not discussing terms and conditions of employment at all.” I disagree. With the modification, I believe that reasonable employees would understand the employer’s confidentiality policy as permitting the type of discussions regarding terms and conditions of em- ployment that are protected by Section 7. The Board itself has used the term “appropriate manner” to describe the types of concerted or union activity with which employers may not in- terfere. In one case the Board stated than an employer’s action violated Section 8(a)(1) “because it was meant to inhibit [the employee’s] protected right to criticize management . . . in an appropriate manner in support of a union organizational drive.” Lancaster Fairfield Community Hospital., 311 NLRB 401, 403 (1993) (emphasis added). In another case, the Board affirmed the administrative law judge’s conclusion that an employer violated Section 8(a)(1) by denying union organizers who be- haved in an “appropriate manner” access to a cafeteria that was open to the public. Southern Maryland Hospital, 293 NLRB 1209, 1216 (1989), enf. granted in part and denied in part 916 F.2d 932 (4th Cir. 1990). For the reasons discussed above, I conclude the complaint paragraph that alleges a violation based on the version of the confidentiality policy that the Respondent adopted on June 30, 2003, should be dismissed. VII. SUSPENSION OF FOXWORTH The General Counsel alleges that the Respondent discrimi- nated in violation of Section 8(a)(1) and (3) when it suspended Foxworth for 3 days in June 2000. In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981) cert. denied, 455 U.S. 989 (1982), approved in NLRB v. Transporta- tion Corp., 462 U.S. 393 (1983), the Board set forth the stan- dards for determining whether an employer has discriminated against an employee on the basis of union or protected activity. Under the Wright Line standards, the General Counsel bears the initial burden of showing that the Respondent’s actions were motivated, at least in part, by antiunion considerations. The General Counsel may meet this burden by showing that: (1) the employee engaged in union or other protected activity, (2) the employer knew of such activities, and (3) the employer har- bored animosity towards the Union or union activity. Senior Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000); Regal Recycling, Inc., 329 NLRB 355, 356 (1999). If the Gen- eral Counsel establishes discriminatory motive, the burden shifts to the employer to demonstrate that it would have taken the same action absent the protected conduct. Senior Citizens, supra at 1105. The Respondent cannot meet its Wright Line burden merely by showing that employee misconduct also fac- tored into the Respondent’s decision. Rather, the Respondent must show that the misconduct would have resulted in the same discipline even in the absence of the employee’s union and protected activities. Monroe Mfg., 323 NLRB 24, 27 (1997). Under the standards stated above, I conclude that the General Counsel has met its initial burden. The evidence shows that Foxworth was one of the Union’s most active and open sup- porters and that Orlandi was aware of Foxworth’s prounion sympathies and activities when she decided to suspend him. As shown by the violations found above, the Respondent bears antiunion animus and has demonstrated a willingness to act unlawfully in its campaign to defeat the organizational effort. Since the General Counsel has made the required initial showing, the burden shifts to the Respondent under Wright Line, supra, to show that it would have taken the same actions even in the absence of Foxworth’s protected activities. The Respondent argues that regardless of Foxworth’s union activi- ties, it would have suspended him because of the threats that Olivier reported that Foxworth had made near the elevator and outside the cafeteria. Regarding the elevator incident, I do not believe that Orlandi would have accepted Olivier’s highly im- plausible account if not for the fact that Foxworth was an active union supporter. Olivier claimed he heard what Foxworth said even after the doors to the elevator had closed and the elevator started away. It is implausible that from outside the elevator Olivier would be able to hear something said inside the elevator at that time, much less that he would be able to discern the exact words spoken and the identity of the speaker. Neverthe- less, Orlandi decided to accept Olivier’s facially implausible account of the elevator incident without giving Foxworth any opportunity to respond to the allegation or tell his side of the story. When questioned about her failure to discuss the inci- dent with Foxworth before suspending him, Orlandi simply stated that she did not believe doing so was necessary. Al- though Orlandi did not believe it was worth the trouble to ques- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646 tion Foxworth about this allegation against him, she did make the effort to discuss the allegation with Durkey, a personal friend of Olivier’s. An employer’s failure to conduct a mean- ingful investigation of alleged wrongdoing by an employee and its failure to give the employee an opportunity to explain are indicia of discriminatory intent. New Orleans Cold Storage & Warehouse Co., 326 NLRB 1471, 1477 (1998), enfd. 201 F.3d 592 (5th Cir. 2000). The way Orlandi conducted the investiga- tion of the elevator incident, and especially her failure to allow Foxworth any opportunity to clear his name, shows such bias. Orlandi also showed obvious bias in her investigation of the exchange that Foxworth and Olivier had near the cafeteria. In that instance, Orlandi did interview Foxworth, and Foxworth categorically denied threatening Olivier. Orlandi questioned the two individuals, other than Olivier and Foxworth, who were witnesses to the incident, and both of those individuals essen- tially corroborated Foxworth’s account of what he said. Nei- ther corroborated Olivier’s claim that Foxworth said “You’re going to get it,” nor did either report that Foxworth had made a threat of any kind. Orlandi also received a copy of the police report that Olivier had filed regarding the cafeteria incident. Even that report essentially corroborated Foxworth’s account of what was said, and contradicted Olivier’s. Orlandi’s decision to credit Olivier’s account despite the clearly contrary evidence generated by her own investigation shows obvious bias. The bias in Orlandi’s investigation is even clearer when one considers how differently she treated the allegation made against Olivier—an active opponent of the Union. Foxworth gave Orlandi the names of two individuals who he said had heard Olivier make threats against him. Orlandi responded by demanding that Foxworth put his allegation in writing and then concluded that there was “no validity” to the allegation without ever interviewing either of the witnesses. On the other hand, when Olivier alleged that Foxworth had made threats, Orlandi did not require him to submit his allegation in writing, and she was quick to conclude that the claim had validity even though the two witnesses she interviewed, as well as the police report, failed to corroborate Olivier’s account. The timing of Foxworth’s suspension is a further cause to suspect the Respondent’s motives. See Detroit Paneling Sys- tems, 330 NLRB 1170 (2000) (timing is an important factor in assessing motivation in cases alleging discriminatory discipline based on union or protected activity); Bethlehem Temple Learn- ing Center, 330 NLRB 1177, 1178 (2000) (same); American Wire Products, 313 NLRB 989, 994 (1994) (same). After the election, Foxworth, along with a number of other employees, signed an open letter urging employees to come forward with bases for objecting to the election. The Respondent suspended Foxworth on June 9—only 5 days before the objections hearing at which Foxworth testified on behalf of the Union.26 The sus- pension continued through the first day of Foxworth’s testi- 26 In its Brief, the Respondent asserts that when Orlandi took the dis- ciplinary action she did not know that Foxworth would be testifying at the hearing. R. Br. at 10 and 33. The Respondent provides no record citation to support this contention. In fact, Orlandi’s testimony was that she was “not sure” if she knew about the scheduled objections hearing at the time she suspended Foxworth. Tr. 146. mony. During the objections hearing, the Respondent’s coun- sel elicited testimony about the recently imposed suspension in an effort to undermine Foxworth’s credibility. This timing gives me further cause to believe that the disciplinary action against Foxworth would not have been taken absent the Re- spondent’s antiunion animus and desire to discourage employ- ees from supporting the Union. The Respondent presented evidence regarding other employ- ees who it disciplined in an effort to show that it treated Fox- worth the same as others who threatened coworkers. That evi- dence is largely besides the point since, as discussed above, the Respondent did not have a legitimate, nondiscriminatory, basis for believing that Foxworth had threatened Olivier. Even if one considers the evidence of comparators, it does little to further the Respondent’s case, and certainly falls far short of outweigh- ing the evidence that the suspension resulted from unlawful discrimination. The comparator evidence showed that Orlandi sometimes addressed conflicts by assisting the employees in ironing out their differences, without disciplining anyone. The record also shows that four of the comparators presented by the Respondent received discipline comparable to Foxworth’s only after having prior conduct or performance problems. In only three instances was there sufficient evidence to show that a co- worker had received a 3-day suspension for misconduct that was arguably comparable to that attributed to Foxworth. The Respondent argues that Foxworth exaggerated his im- portance in the union campaign. According to the Respondent, Foxworth was just one of dozens of union supporters, and its lack of discriminatory motive is demonstrated by the fact that it did not discipline any of the others. (R. Br. at 33–34.) The Respondent’s assertion that Foxworth overstated his involve- ment in the union campaign is made without any citation to record evidence. Indeed, there was no testimony or other evi- dence contrary to Foxworth’s testimony that he, inter alia: was designated by the Union as an observer at the April 27 election; served as a informal liaison between employees and the Union; and had his picture and name featured on pro-union materials distributed to employees. Therefore, I reject the Respondent’s contention that Foxworth was not a particularly active union supporter. At any rate, even if the Respondent could prove that it did not discipline other employees who supported the Union as actively as Foxworth had, that would not forgive the dis- criminatory discipline it imposed on Foxworth. See, e.g., McGaw of Puerto Rico, 322 NLRB 438, 451 (1996) (layoff of union leaders unlawful even though union leaders from other departments were not laid off), enfd. 135 F.3d 1 (1st Cir. 1997), nor would it show that the Respondent would have refrained from discriminatorily disciplining other active union supporters given some pretense for doing so. The Respondent warns that it is not the Board’s role to “sub- stitute its judgment for that of an employer in deciding what would have been appropriate discipline.” Respondent’s Brief at 34, citing Guardian Automotive Trim, Inc., 340 NLRB 475 (2003) and Detroit Paneling Systems, supra. I agree, but “‘[w]hile it is a truism that management makes management decisions, not the Board , . . . it remains the Board’s role, sub- ject to deferential review, to determine whether management’s proffered reasons were its actual ones.’” Detroit Paneling Sys- CARNEY HOSPITAL 647 tems, supra at 1170, quoting Uniroyal Technology Corp. v. NLRB, 151 F.3d 666, 670 (7th Cir. 1998). Given the evidence in this case, especially the blatant bias in the way the Respon- dent’s investigation was conducted, I conclude that manage- ment’s proffered reasons are pretextual. For the reasons discussed above, I find that the Respondent violated Section 8(a)(1) and (3) of the Act in June 2000 by discriminatorily suspending employee Willie Foxworth because he assisted the Union and engaged in concerted activities and to discourage employees from engaging in these activities. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. The Union is labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent interfered with employees’ exercise of Section 7 rights in violation of Section 8(a)(1) of the Act: in April 2000, by engaging in unlawful surveillance of union activities; on April 16, 2000, by unlawfully interrogating an employee about her union sympathies; on April 16, 2000, by unlawfully threaten- ing that employees would lose employment if they selected the Union as their collective-bargaining representative; on April 16, 2000, by implying that it would be futile for employees to select the Union as their collective-bargaining representative; on two occasions in April 2000, by threatening that employees would lose benefits if they selected the Union as their collective- bargaining representative; on or about April 27, 2000, by distrib- uting a pamphlet to employees which contained language threat- ening that employees would lose wages and/or other benefits if they selected the Union as their collective-bargaining representa- tive; by maintaining an overly broad rule prohibiting solicitation and distribution to patients and visitors; by maintaining an overly broad confidentiality rule regarding employees’ use of informa- tion about other employees. 4. The Respondent violated Section 8(a)(1) and (3) of the Act in June 2000 by discriminatorily suspending employee Willie Foxworth because he assisted the Union and engaged in concerted activities and to discourage employees from engag- ing in such activities. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. In addition to the usual cease-and- desist order and other affirmative relief, I recommend that the Respondent be ordered to make Willie Foxworth whole for any loss of earnings and other benefits he suffered as a result of his unlawful suspension. The backpay is to be computed in accor- dance with F. W. Woolworth, Co., 90 NLRB 289 (1950) with interest computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987). As discussed above, I find that the Respondent’s confidenti- ality rule, as amended on June 30, 2003, no longer offends the Act. This should not, however, be construed as a finding that the Respondent has adequately remedied the violation based on the earlier, unlawful, language, or that the Respondent has been in compliance with the Act since June 30, 2003. The fact that an employer has corrected an unlawful rule is insufficient to escape liability unless there is adequate publication of the change and assurances to employees that the employer will not violate the Act. See Electrical Workers Local 3 (Fairfield Electric), 331 NLRB 1498, 1500 (2000). The record in this case does not show whether, after June 30, 2003, copies of the handbook distributed to new employees, and maintained in supervisors’ offices, incorporated the change, or provided no- tice of it. Nor does the record show that the Respondent as- sured employees that there would be no future interference with their Section 7 rights. The same is true with respect to the June 30, 2003, amendment that deleted offending language from the handbook provision on solicitation and distribution. For these reasons, I will recommend that the Respondent be required to rescind the unlawful provisions and post an appropriate reme- dial notice. See Elevator Constructors, Local 2 (Unitec Eleva- tor Services), 339 NLRB 941, 944 (2003) (Although employer repealed unlawful provision, it is required to rescind the provi- sion again and post an appropriate notice, since it did not “re- pudiate its unlawful conduct in a timely, unambiguous, and specific fashion, nor did it assure its members there would be no future interference with their Section 7 rights.”). [Recommended Order omitted from publication.]