Woman's Hospital Foundation

372 NLRB No. 92 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Woman’s Hospital Foundation1and Katharine Sin- clair-Faulkner. Case 15–CA–270505 June 14, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND WILCOX On September 30, 2022, Administrative Law Judge Christine E. Dibble issued the attached decision. The General Counsel filed exceptions and a supporting brief, the Respondent filed an answering brief, the General Counsel filed a reply brief, the Respondent filed a surre- sponse, and the General Counsel filed a reply to the sur- response.2 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,3 and conclusions and to adopt the recommended Order as modified and set forth in full below.4 We affirm the judge's conclusion that the Respondent did not violate Section 8(a)(1) of the Act by suspending, discharging, and marking the Charging Party ineligible for rehire for falsification of payroll time, although we do 1 We amend the judge’s case caption to reflect the correct spelling of the Respondent’s name. 2 By order dated March 8, 2023, the Board granted motions from the Respondent and General Counsel to file surresponse and reply briefs, respectively. 3 There are no exceptions to the judge’s findings that the Respond- ent violated Sec. 8(a)(1) of the Act by (1) threatening employees by informing them they should keep their disciplines and related investiga- tions confidential, (2) maintaining an unlawful confidentiality rule, and (3) requesting from employees a copy of their Board-prepared affida- vits. Because, as explained herein, we affirm the judge’s dismissal of the allegations that the Respondent unlawfully suspended, discharged, and marked the Charging Party ineligible for rehire, we also dismiss the additional allegation that the Respondent threatened her by informing her that she was ineligible for rehire. Member Kaplan joins his col- leagues in dismissing this allegation, with the additional observation that even where an employer unlawfully disciplines an employee, the act of informing the employee of the discipline is inextricably part of the discipline itself rather than a separate violation of the Act. 4 We shall substitute a new notice to conform to the Order as modi- fied, the Board's standard remedial language, and our recent decision in Paragon Systems, Inc., 371 NLRB No. 104 (2022). Member Kaplan acknowledges and applies Paragon Systems as Board precedent, alt- hough he expressed disagreement there with the Board’s approach and would have adhered to the position the Board adopted in Danbury Ambulance, 369 NLRB No. 68 (2020). so under a different rationale.5 The judge found that the General Counsel failed to sustain her initial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). We find it unnecessary to pass on this finding because, even assuming the General Counsel sustained her initial bur- den, the Respondent met its defense burden of showing that it would have taken the same action even in the ab- sence of the Charging Party’s protected activity.6 In so finding, we agree with the judge that the Respondent’s investigation of the Charging Party’s changes to her job code when clocking in was fair, impartial, and thorough.7 Further, based on the record evidence, we find that the Respondent’s discipline of the Charging Party was the same as that issued to seven other employees previously found to have committed similar time-and-attendance related misconduct: (1) a nurse who was caught changing her own clock-in-and-out times in the timekeeping sys- tem; (2) an employee who clocked in for a shift but was not actually at work; (3) a group of four employees who left work without permission without clocking out; and (4) another employee who similarly left work for an ex- tended period without permission, also while on the clock. The General Counsel proffered no evidence that 5 We do not rely on the judge’s citation to Brighton Retail, Inc., 354 NLRB 441 (2009), a case decided by a two-member Board. See New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010). 6 Member Kaplan would adopt the judge’s finding that the General Counsel failed to meet her initial Wright Line burden and would dis- miss the allegation on that basis. If he were to reach the rebuttal issue, he would find that the Respondent established that, consistent with its past practice, it would have taken the same action in the absence of the Charging Party’s protected activity. 7 In early 2020, the Charging Party was demoted from RN III to RN I, which was not alleged to have been unlawful, resulting in a reduction in pay. Shortly after the demotion was finalized and reflected in the Respondent’s business systems, the Respondent’s payroll staff began receiving automatic alerts that the Charging Party was manually clocked in under her prior, higher paying RN III job code. The record shows that employees may change their codes when clocking in such as to indicate when they will be acting as a charge nurse for a particular shift, but the Charging Party’s repeated, wrong job code entries did not involve such situations and were unprecedented. Based on these alerts, the Respondent opened an investigation to discover the cause of these changes. The Respondent’s human resources and payroll staff deter- mined that the changes occurred 31 out of the 40 times she clocked in over a period of several weeks. Next, the Respondent consulted its timeclock vendor, which, upon review, verified that the job code changes were not the result of a computer problem and were intention- al. The Respondent also questioned the Charging Party, who denied making the changes, and placed her on paid administrative leave while the investigation continued. And the Respondent’s human resources and payroll staffs then worked together “to duplicate the steps that would need to be taken to—to make that change.” Based on its investi- gation and despite the Charging Party’s denial, the Respondent con- cluded that the changes were, in fact, intentional, and discharged the Charging Party. After reviewing the steps taken by the Respondent, we see no reason to question the investigation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 undermines the Respondent’s argument that it would have terminated the Charging Party even absent her pro- tected activity, but only relies on inapposite comparator evidence. Unlike the evidence the Respondent proffered, the three examples cited by the General Counsel are not sufficiently similar to the circumstances that led the Re- spondent to discipline the Charging Party and, as such, do not indicate that the Respondent acted inconsistently with prior disciplinary actions when it discharged and marked her ineligible for rehire. ORDER The National Labor Relations Board orders that the Respondent, Woman’s Hospital Foundation, Baton Rouge, Louisiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees by informing them they should keep their disciplines and related investigations confidential because they engaged in protected concerted activities. (b) Maintaining unlawful confidentiality rules that in- fringe on employees’ exercise of their Section 7 rights under the Act. (c) Requesting, demanding, or otherwise seeking to obtain a copy from employees of their Board-prepared affidavits given during Board investigations. In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the unlawful provisions in Confidentiality Policy 275.03, section B. (b) Furnish employees with inserts for the current pol- icies that (1) advise that the unlawful provisions have been rescinded or (2) provide lawfully worded provisions on adhesive backing that will cover the unlawful provi- sions; or publish and distribute to employees revised policies that (1) do not contain the unlawful provisions, or (2) provide lawfully worded provisions. (c) Post at its Baton Rouge, Louisiana facility copies of the attached notice marked “Appendix.” 8 Copies of 8 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facility reo- pens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. In addition to physi- cal posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicates with its employees by such means. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since May 29, 2020. Within 21 days after service by the Region, file with the Regional Director for Region 15 a sworn certification of a responsible official on a form provided by the Re- gion attesting 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. Dated, Washington, D.C. June 14, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan Member _____________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judg- ment of a United States court of appeals, the words in the notice read- ing “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” WOMAN’S HOSPITAL FOUNDATION 3 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities WE WILL NOT threaten you by informing you that you should keep your disciplines and related investigations confidential because you engaged in protected concerted activities. WE WILL NOT maintain unlawful confidentiality rules that infringe on your exercise of the rights listed above. WE WILL NOT request, demand, or otherwise seek to obtain a copy of your Board-prepared affidavits given during Board investigations. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind the unlawful provisions in Confiden- tiality Policy 275.03, section B. WE WILL furnish you with inserts for the current poli- cies that (1) advise that the unlawful provisions have been rescinded or (2) provide lawfully worded provisions on adhesive backing that will cover the unlawful provi- sions; or WE WILL publish and distribute revised policies that (1) do not contain the unlawful provisions, or (2) provide lawfully worded provisions. WOMAN’S HOSPITAL FOUNDATION The Board’s decision can be found at https://www.nlrb.gov/case/15-CA-270505 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washing- ton, D.C. 20570, or by calling (202) 273-1940. William T. Hearne, Esq., for the General Counsel. Charles H. Hollis, Esq.; Gillian Griffin, Esq., for the Respond- ent. DECISION STATEMENT OF THE CASE CHRISTINE E. DIBBLE, Administrative Law Judge. This case was tried, by agreement of the parties, using Zoom video tech- nology from October 25–27, 2021.1 Katharine Sinclair- Faulkner (the Charging Party/Faulkner) filed charges in case 15–CA–270505 on December 18. (GC Exh. 1(a) and 1(b).)2 The first amended charge in case 15–CA–270505 was filed by the Charging Party on January 5, 2021, and the second through fourth amended charges were filed on February 9, 2021, May 12, 2021, and June 22, 2021, respectively. (GC Exh. 1(c)–1(j)). The General Counsel issued the complaint and notice of hear- ing on July 21, 2021. Woman’s Hospital Foundation (the Re- spondent) filed a timely answer denying all material allegations and setting forth affirmative defenses to the complaint. The complaint alleges that (1) about May 29, the Respond- ent, by Edgar Halphen, at its facility, threatened employees by informing them they should keep their disciplines and related investigations confidential because they engaged in protected concerted activities; (2) about June 12, the Respondent, by Edgar Halphen, at its facility, threatened employees by inform- ing them they should keep their disciplines and related investi- gations confidential because they engaged in protected concert- ed activities; (3) about June 18, the Respondent, by Katie Baker and Edgar Halphen, at its facility, threatened employees by informing them they were ineligible for rehire because they engaged in protected concerted activities; (4) about the follow- ing dates, the Respondent's employee, the Charging Party, en- gaged in concerted activities for the purposes of mutual aid and protection by raising concerns and complaints about the Re- spondent’s employees being asked to provide patient care out- side of their competencies: December 20, 2019, December 21, 2019, December 26, 3019, December 29, 2019, January 10, 2020, January 13, January 19, January 21, January 29, February 9, March 2, March 12, May 29; (5) about June 12, the Re- spondent suspended employee, the Charging Party; (6) about 1 All dates are in 2020, unless otherwise indicated. 2 Abbreviations used in this decision are as follows: “Tr.” for tran- script; “GC Exh.” for General Counsel’s exhibit; “R. Exh.” for the Respondent’s exhibit; “GC Br.” for General Counsel’s brief; and “R. Br.” for the Respondent’s brief. My findings and conclusions are based on a review and consideration of the entire record and may include parts of the record that are not specifically cited. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 June 18, the Respondent discharged employee, the Charging Party; (7) about June 18, the Respondent marked employee, the Charging Party, as ineligible for rehire; (8) since about July 6, the Respondent has maintained the following rule: Policy 275- Confidentiality 275.03 Non-PHI (Protected Health Information) B. Employee Information -All employee—related information is regarded as confidential and is available only to authorized users. -Confidential envelopes should be used when sending salary, disciplinary and performance review information through interoffice mail. -Requests for information regarding both current and former employees should be referred to Human Resources. -Release of information will be limited to job title and dates of employment. -Salary information may be released if the request is in writing and the employee has authorized the request. -Employee-related issues should not be discussed with, or in the presence of physicians, patients, visitors, contract workers or other employees. (9) about March 2021, a more specific date unknown to the General Counsel at this time, Respondent, by Katie Baker, at the Employer’s facility, requested copies of employees’ Na- tional Labor Relations Board (the Board/NLRB) prepared affi- davits; (10) about April 13, 2021, Respondent, by Katie Baker, at its facility, requested copies of employees’ Board prepared affidavits. The General Counsel alleges that the Respondent’s above actions have been interfering with, restraining, and co- ercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation, has an office and place of business in Baton Rouge, Louisiana (Respondent’s facili- ty/hospital) and provides inpatient and outpatient medical care at the facility. During the relevant time period, the Respondent has derived gross revenues in excess of $250,000 and pur- chased and received products, goods and materials at its facility valued in excess of $50,000 directly from points outside the State of Louisiana. At all material times, the Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Respondent’s Management Structure The Respondent operates a healthcare facility in Baton Rouge, Louisiana with inpatient and outpatient services. Cur- rently, the Respondent employs about 2200 workers. Since April, Edgar Halphen (Halphen) has served as the Respondent’s vice president of human resources. In his role, Halphen is re- sponsible for overseeing the human resources and education service functions for the facility, including employee relations, recruiting, staffing, compensation benefits, and training and development. During the period at issue, Donna Bodin (Bodin) was the vice president of human resources. Bodin left the Re- spondent’s employ in about late April. Katie Baker (Baker) has been employed by the Respondent for 23 years and served as the human resources manager for the past 3-1/2 years. She oversees and coordinates employee recruitment, employee rela- tions, and employee compensation. Manager of Payroll De- partment and Accounts Payable, Jennifer Mele (Mele), has worked for the Respondent since March 2006. She manages staff that process and distribute employees’ and the hospital’s vendors pay. Shelley LeBlanc (LeBlanc) has worked for the Respondent for 15-1/2 years as a payroll specialist in account- ing. Mele is her supervisor. LeBlanc administers the Respond- ent’s timekeeping software, API, to ensure that all personnel changes and time and attendance actions are accurate. Addi- tionally, she keeps the timekeeping system updated with daily checks for “exceptions” and makes the corrections.3 Hope Vines (Vines) is the secretary for the Adult Intensive Care Unit (AICU/ICU) and the High Risk Unit (HRU). Her duties in- clude managing those unit employees’ payroll, time and attend- ance, and work scheduling. In 2019 and 2020, nurse manager of AICU Crystal Martin (Martin) was LeBlanc’s direct supervi- sor. For about 5 years, Martin had been employed intermittent- ly with the Respondent as a registered nurse (RN). In January 2019, she was hired as the nurse manager for ICU and the HRU. Siobhan Grady (Grady) is the Respondent’s clinical educator for ICU and the Assessment Center; and has held the position for about 5 years. She handles the “onboarding” for new hires, schedules new hires’ orientation, and oversees em- ployees’ annual education and unit specific procedures and policies. Director of Obstetrical Services Amye Reeves (Reeves) has been employed by the Respondent for 26 years and in her current role since 2013. She oversees the daily op- erations of the labor and delivery unit, the HRU, and the AICU. During the relevant period, Reeves reported to Cheri Johnson (Johnson), the chief nursing officer. Wendy Singleton (Single- ton) was the director of nursing administration. B. The Respondent’s Confidentiality Policy Since July 6, the Respondent has maintained the following confidentiality rule: Policy 275- Confidentiality 275.03 Non-PHI (Protected Health Information) B. Employee Information 1. All employee—related information is regarded as confidential and is available only to authorized users. 3 “Exceptions” is a term the Respondent’s timekeeping and human resources staff uses to denote an alert created by the timekeeping sys- tem that an inaccuracy has occurred in the timekeeping record of an employee. (Tr. 340–341.) WOMAN’S HOSPITAL FOUNDATION 5 2. Confidential envelopes should be used when send- ing salary, disciplinary and performance review infor- mation through interoffice mail. 3. Requests for information regarding both current and former employees should be referred to Human Resources. a. Release of information will be limited to job title and dates of employment. b. Salary information may be released if the request is in writing and the employee has authorized the request. 4. Employee-related issues should not be discussed with, or in the presence of physicians, patients, visitors, contract workers or other employees. (GC Exh. 2.) According to Halphen, sections B (1)—(4) of the Respondent’s confidentiality policy are directed at supervisors, management level, and other employees with access to sensi- tive employee information (e.g., salary, SSN). Baker explained that HR uses confidential envelopes to send documents via intraoffice mail to protect the privacy of employees involving their information, such as performance reviews, salary infor- mation, social security numbers. (Tr. 504–505.) Moreover, she notes that section 3 concerns the release of information to out- side parties in which employees need a job references, applied for a loan or Medicaid funding or other similar situations. (Tr. 505.) The Respondent insists none of the policies are designed to restrict the activities of hourly employees and their commu- nications with their coworkers. C. AICU and PACU Operations AICU treats patients requiring a high level of care and con- tinuous monitoring, e.g., pre/post pregnancy, severe hyperten- sion, massive hemorrhage, sepsis. The AICU nurses handle the most critically ill patients. Consequently, they receive training and certification in a number of complex treatment areas. The AICU nurses care for extubated and intubated patients so they receive annual airway management and mechanical ventilation pressure training. It is common occurrence for AICU nurses to care for recently extubated patients. Additionally, all critical care nurses, including those in AICU and post-anesthetic care (PACU), must be certified in advanced cardiovascular life sup- port(ACLS) to practice in a critical care setting. ACLS certifi- cation also includes qualification to maintain the airway of a patient. There is normally a patient ratio in AICU of two nurs- es for every one patient as opposed to “floor nurses” who may have to care for three to five patients at one time. The AICU occupies the 2nd floor in the pod 2A wing of the hospital with no other units on the wing. It is normal for AICU to have about four patient beds with two extra beds if needed. This set-up allows for three AICU nurses to care for about six patients; and a PACU nurse to help if AICU has a full complement of pa- tients. PACU cares for patients that are coming out of the first stage of general anesthesia. The medical staff commonly refers to this as the phase one recovery, typically the first 30 minutes, sometimes longer, after a patient’s breathing tube has been removed. PACU nurses have different training and certifica- tion requirement from AICU nurses. PACU competencies were ultimately removed from the AICU nurse training. AICU and PACU nurses have to receive ACLS certification, but PACU have requirements beyond ACLS that AICU nurses without PACU certification would not have to attain. Airway manage- ment competencies for PACU and ICU nurses are similar. D. AICU RN Job Classifications The Respondent classifies its nurses as RN I, RN II, or RN III. The pay and responsibilities increase the higher the RN level. Promotions between the RN levels afford a wage in- crease from $1.50 to $2 an hour. Charge nurses, who are as- signed to each shift, are identified in the payroll system as RN3. Occasionally, the Respondent allows its contract nurses to serve as the charge nurse. Typically, seniority determines who serves as charge nurse for the day. Nurses log into the electronic scheduling system or look at the paper copy of the scheduling book to discover the who will serve as the charge nurse that day.4 AICU nurses work a 12-hour shift with the day shift from 7 a.m. to 7 p.m. and 7 p.m. to 7 a.m. for the night shift. The nurs- es self-schedule by inputting several weeks to months in ad- vance their requested schedule. Typically, AICU nurses arrive to work between 6:30 a.m. to 6:55 a.m. to start their 7 a.m. shift. The nurses coordinated among themselves when they would take breaks with one nurse on break at any given time. At the time of the Charging Party’s termination, two to three nurses worked each shift with an occasional nursing assistant also on the shift. Likewise, in January 2020, specific doctors were attached to the unit and could be contacted if their assis- tance was needed. E. Events on December 20, 2019 In June 2015, the Charging Party began working for the Re- spondent as a RN in the AICU until her discharge in June. She became a licensed RN in May 2011 and began work for the Respondent as a RN I until her promotions to RN II and RN III in 2017 and 2019, respectively. The Charging Party is certified in critical care and cardiac medical. At the time of her dis- charge from employment with the Respondent, Martin was her manager. On December 20, 2019, the Charging Party, and nurses Leann Myers (Myers) and Caroline Chaplin (Chaplin) were assigned to work from 7 a.m. to 7 p.m. in the AICU. Chaplin had been approved to attend a funeral, so she left the AICU from about 1:45 p.m. to 5 p.m. The Charging Party was the assigned charge nurse for the shift that day. On December 20, in the afternoon, the Charging Party took a call from an un- known person in the OR telling her that a doctor wanted to send a patient directly from OR to the AICU. The Charging Party asked if PACU had been notified the patient would be sent directly to their unit because they would need a PACU nurse sent with the patient if she had been under general anesthetic. After telling Myers about the call, the Charging Party also re- layed the same information to Liz Choate (Choate), administra- tive supervisor, and reiterated to her PACU must be “notified 4 The letter “C” will appear next to the name of the person designat- ed as charge nurse for that day. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 that they were going to be skipping the physical PACU unit.” (Tr. 59.) On the same call, the Charging Party told Choate that AICU could not be responsible for the initial recovery phase and would need a PACU nurse in AICU. Sometime thereafter, Choate told her there were no PACU nurses available.5 After her conversation with the Charging Party, Choate ap- proached Reeves to tell her that the Charging Party was refus- ing to care for an extubated patient coming to AICU directly from the OR because, according to the Charging Party, AICU does not accept those types of patients without a PACU nurse to assist in the patient’s care. (Tr. 198.) Choate told Reeves and the Charging Party that a PACU nurse was unavailable. Due to complications during delivery, the surgeon and anesthesiologist wanted the patient to bypass PACU and go directly to AICU for the higher level of care the unit provided. Reeves noted that it is hospital protocol that when a doctor instructs that their pa- tient be sent to AICU, those instructions are followed. Choate also informed Reeves that it was anticipated that the patient would be extubated in the OR. The Charging Party admits to the statements attributed to her by Reeves but denies that she told anyone she would refuse to care for the patient.6 Conse- quently, Reeves went to AICU nurses’ station to speak with the Charging Party and Myers was also present. The Charging Party reiterated her concerns to Reeves about accepting the patient without a PACU nurse available for the first phase of recovery. Moreover, the Charging Party told Reeves that she did not recall a policy change allowing for AICU nurses to be responsible for the phase one recovery of extubated patients coming directly from the OR. As the Director of Obstetrical Care, Reeves knew that there was not a policy prohibiting the transfer of extubated patients directly from the OR to AICU. She told the Charging Party that she would work to get “what- ever resources we needed” to care for the patient. In an attempt 5 Choate did not testify. Consequently, I will credit the testimonies of the Charging Party and Martin about the substance of their conversa- tions with Choate since there is no evidence to contradict them in this area. Except for one point discussed below, there are only minor dif- ferences in their recollections about their discussions with Choate. 6 I find Reeves more credible than the Charging Party on this point. On cross-examination, the Charging Party gave vague and nonrespon- sive answers to the hypothetical question of whether she would have cared for the patient if a PACU nurse had been unavailable. Finally, she grudgingly testified, “We would provide everything except Phase 1 postanesthesia care, which is reasonable compliance with an order.” (Tr. 167–169.) However, it would not have been a “reasonable compli- ance with an order” because the patient was being transferred, on doc- tor’s orders, precisely because she needed the critical care that is only provided in the AICU and as an extubated patient would need phase one recovery care on arrival into the unit. If a PACU nurse was una- vailable to assist then common-sense dictates that complete care of the patient, including phase one recovery care, would fall to the nurses in AICU. Regardless, the Charging Party and Reeves’ dispute on this point is insignificant. The only reason I accepted testimony regarding the December 20 incident was to allow the counsel for the General Counsel to use it in his case as background information to help estab- lish that the Charging Party engaged in protected concerted activity and the Respondent took adverse action against her because of it. Other portions of the December 20 incident help the General Counsel to prove protected concerted activity and is discussed in more detail later in the decision. to alleviate the Charging Party’s concerns and get the resources that she needed, Reeves called Chaplin for her estimated time of arrival to the hospital and summoned Grady to the unit to help with the patient. Moreover, Reeves reminded the Charg- ing Party and Myers that Myers was a PACU nurse at another local hospital prior to working for the Respondent. Likewise, Reeves noted that in the past the Charging Party had ably cared for and provided phase one recover care to extubated patients. Regardless, the Charging Party continued to insist that it was against proper procedures and guidelines for herself and the other AICU nurses to provide phase one recovery care for the patient. Following her discussion with the Charging Party, Reeves explained to Martin her understanding of the situation and gave the telephone to the Charging Party so that Martin could talk with her. Again, the Charging Party voiced her complaints about accepting the patient, with Martin countering that be- cause she was an AICU nurse the Charging Party could “recov- er” the patient. Neither the Charging Party nor Martin could recall much detail about their telephone conversation. Eventu- ally, Martin arrived at the unit and continued her conversation with the Charging Party in private in the hallway with a rehash for the Charging Party’s insistence on not accepting the patient without a PACU nurse available and Martin reiterating that the Charging Party is trained and authorized to provide phase one recovery care for patients transferred to AICU directly from the OR. At some point prior to the patient’s arrival, Nurse Manager of the Assessment Center Tina Dunnington (Dunnington) ar- rived in the unit and called to inquire about the availability of a PACU nurse to assist with the expected patient and was told that a PACU nurse would arrive with the patient. Sometime after 5 p.m. on December 20, the patient arrived in AICU with a PACU nurse and placed in a room in front of the nurses’ sta- tion. Present in AICU when the patient arrived were the Charg- ing Party, Myers, Chaplin, Grady, and Nurse Assistant Tamika Miles (Miles). Martin and Grady cared for the patient.7 There was continued discussion between the Charging Party and Reeves about the accepted procedure for accepting extubated patients into AICU and the status of the patient. Reeves did not understand the Charging Party’s concerns because she was confident that the Charging Party was qualified to provide phase one recovery care having personally witnessed the Charging Party care for patients coming from the OR who were extubated and intubated. As the clinical educator for AICU, Grady was confident that the Charging Party and Myers were well qualified to provide care for the patient because: (1) it is a common occurrence for AICU nurses to care for recently extu- 7 Grady was a very credible witness and corroborated most of Reeve’s and Martin’s observations about the situation on December 20. The Board has consistently held that credibility determinations may be supported by several factors, “including the context of witness testimo- ny, a witness’ demeanor, the weight of respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the record as a whole.” Farm Fresh Co., 361 NLRB 848, 860 (2014); Daikichi Corp., 335 NLRB 622, 623 (2001), (citing Shen Automotive, 321 NLRB 586, 589 (1996)), enfd. mem. sub nom. 56 Fed.Appx. 516 (D.C. Cir. 2003. WOMAN’S HOSPITAL FOUNDATION 7 bated patients; (2) the Charging Party’s resume shows that she has advanced cardiac life support training which proves that she has cared for patients that are intubated and extubated; (3) dur- ing her orientation, the Charging Party was trained in caring for extubated patients; (4) the Charging Party, as well as other AICU nurses, get annual mechanical ventilation pressure train- ing; (5) in AICU the nurses care for extubated and intubated patients so they must be able to manage airways (phase one recovery); (6) Grady has personally witnessed the Charging Party competently care for extubated and intubated patients; and (7) documents show that the Charging Party has cared for an extubated patient transferred directly from OR to AICU. (Tr. 309–314; R. Exh. 2 pgs. 51, 62, 75.) While the Charging Party does not deny these points, she insists that because she is not a certified PACU nurse she is prohibited by various policies and guidelines from performing phase one recovery care. (GC Exh. 9.) Following the December 20 incident, Reeves and other man- agers continued for about six months to meet and review the process for patient care. (GC Exh. 55.) They presented their final recommendations to the Respondent’s directors for ap- proval, resulting in a new process for AICU care of extubated obstetrics and surgical patients effective July 13, 2020. (GC Exh. 89.) Martin provided undisputed testimony that the new process did not go through the formal approval process to be- come a policy but following the newly instituted process is not optional. The new process requires a PACU nurse for an extu- bated patient coming directly to AICU unless one is unavailable in which case an administrative supervisor would find a second nurse to assist with the extubated patient. Martin stopped the practice of non-critical care patients being transferred to AICU from OR. Pursuant to an email to “everyone” Martin wrote, “I made it very clear that if the PACU was bypassed, that the pa- tient would not receive PACU care, but would receive AICU standards of care on arrival.” (GC Exh. 6.) Instead, patients who are released to go home the same day or are non-critical care are sent to PACU. Martin addressed these changes with the “house supervisors” and the AICU team. Despite the Charging Party’s testimony to the contrary, Martin vehemently denied that she had a policy requiring critical care patients go to PACU before coming to the AICU or a “long-standing prac- tice” that when a patient comes directly from the OR to AICU, the AICU nurse could request a PACU to come and provide phase 1 recovery for the patient. I credit Martin’s testimony on this point because (1) as the manager of AICU, she would be the best person to know what policy or processes were in place to care for extubated and intubated patients in AICU; (2) Mar- tin would not have been able to unilaterally implement a new process or policy without the approval of other department heads; and (3) unlike the Charging Party, she had other manag- ers and supervisors to corroborate her testimony on this point. F. Suspension and Alleged Threats to Employees to Keep Dis- ciplinary Actions and Related Investigations Confidential After the chaos surrounding the events on December 20, Martin issued an email to staff clarifying the “new guidelines” for patients coming directly from the OR to AICU. (GC Exh. 6.) On December 29, the Charging Party emailed Martin, with attachments, and copied Reeves and Grady in response to Mar- tin’s December 21 email. (GC Exh. 9.) Prior to sending the email, the Charging Party discussed it, over multiple conversa- tions, with her coworkers Myers, Kathy Delatte, Latonya Brumfield, Chelsea Bradford, Ashley Robodeen and possibly other former contract nurses. She also showed them the email before sending it to get their input and agreement on the “tech- nical part, not necessarily my views of what had happened that day.” (Tr. 92.) The Charging Party noted that, “I was speaking on behalf of other staff and how we felt collectively …” (Tr. 92.) A meeting was held in Martin’s office to discuss, among other topics, the December 29 email that the Charging Party sent Martin. Vines was also present. According to the Charg- ing Party, Martin expressed that she found the email was “of- fensive” and believes that Martin asked if she had shown her email to anyone else outside of those copied on it. The Charg- ing Party answered that she had shown it to other people, prompting Martin to inquire whether Chelsea Bradford (Brad- ford) helped her to edit the email. According to the Charging Party, Martin told her it was “against the rules” to seek assis- tance with drafting the email. Martin did not provide testimony about this meeting with the Charging Party. Consequently, there is no evidence to dispute the Charging Party’s testimony about her meeting with Martin. A meeting was scheduled for January 10, for the Charging Party and management to discuss her actions on December 20. It was held in the human resources conference room with the Charging Party, Martin, Reeves, Roxanne Colon (Colon), and Baker in attendance. The Charging Party requested that a neu- tral third party be allowed to attend with her so management chose a department manager, Monica Frederic (Frederic), to serve in that role. According to the Charging Party, Reeves started the meeting by stating it was a confidential meeting, therefore no recordings were allowed. Martin then said the Charging Party was being placed in the final stage of progres- sive discipline and gave her a form to review. (GC Exh. 11.) The Charging Party protested the written final warning and refused to sign the disciplinary form. Reeves, Martin, Colon, and Baker jointly made the decision to issue the “second final conference warning” to the Charging Party on January 10, 2020. Reeves admits that she views the disciplinary warnings issued to employees as confidential but insists that employees are allowed to discuss their warning notices with other employees if not being disruptive. Moreo- ver, Reeves grudgingly admitted that the statement contained in the written warning, “Kate will refrain from unproductive comments and discussion with peers”, was an instruction for CP to stop talking about the events of December 20 with her coworkers. Reeves conveyed this restriction to the Charging Party because she had received complaints from some of the employees that they were tired of listening to the Charging Party complain to them about the December 20 incident and her discipline. (Tr. 237–239.) Although Reeves acknowledged that some employees supported and others objected to the Charging Party’s expressing her views to them about AICU nurses performing phase one recovery care, she felt overall the Charging Party’s continued complaints were disruptive to pa- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 tient care. In fact, Reeves complained to Baker and Colon that the Charging Party continued to “openly [talk] about her disci- pline-being disruptive, unprofessional, and disrespectful-and feels retaliatory (not adhering to the constructive solution given to her in January).” (GC Exh. 63.) Although Reeves, believed the Charging Party’s continued discussion of her discipline was “retaliation,” she insists that she told the Charging Party that she could discuss the issue with coworkers but not at the nurs- es’ station because it could interfere with patient care. The record, however, does not contain evidence that there was a verbal or written rule that prohibited nurses from discussing work issues at the nurses’ station. Gray also corroborated Reeves assertion that some of the AICU nurses complained that the Charging Party’s repeated griping about the December 20 incident was disruptive because of its frequency. (Tr. 316.) On January 13, the Charging Party had another meeting with Colon to understand the bases for being issued the final warn- ing and also asked to escalate her concerns about the discipline and related investigation up the chain of command. Additional- ly, the Charging Party asked to step down as charge nurse. On January 19, the Charging Party worked the day shift in AICU with Nurse Sarah Gandy (Gandy). Gandy told her that a patient was being sent directly from OR to AICU. The Charg- ing Party objected and told Gandy that they were currently caring for three patients and accepting a fourth patient would be challenging. Additionally, the Charging Party cautioned Gandy against performing phase one recovery on the patient because: Gandy’s license would not cover her if she assumes a patient for immediate postoperative care; Gandy did not have the com- petencies on file to perform phase one recovery on the patient; and Gandy was not trained in the PACU. (Tr. 111.) While acknowledging that she could not prevent Gandy from caring for the patient, the Charging Party warned her that if “some- thing goes wrong,” she would be unable to help Gandy. Gandy assured her that she was comfortable with caring for the patient. The Charging Party instructed Gandy to call Choate to inform her that there were already three “busy” patients in AICU. Gandy informed Choate of the situation who came to the unit shortly thereafter at which point the Charging Party repeated to Choate the same concerns that she had conveyed to Gandy. Ultimately, a PACU nurse and labor and delivery (L&D) nurse accompanied the patient to the unit. Pursuant to an email dated January 21, the Charging Party explained to Martin her dis- pleasure with an encounter involving Gandy on January 19. In the email, the Charging Party made clear her displeasure with the manner in which Choate handled the situation. She con- veyed that instead of instructing Gandy to perform airway man- agement, Choate should have asked Gandy if she felt comforta- ble performing that type of care on the patient. (GC Exh. 13.) On January 29, the Charging Party escalated to Johnson her objection to the final warning that she was issued. In the meet- ing with Johnson and Baker, the Charging Party rehashed the events of December 20; complained about AICU nurses being asked, presumably by supervisors, to perform tasks outside of their competencies; and counseled them on the general accept- ed practices for anesthesia and PACU nursing. (Tr. 119.) John- son responded that all hospitals expected their ICU staff to perform phase one recovery on patients and the situation on December 20 was an emergency. There was a back and forth between them over this point until the conversation shifted back to the final warning that the Charging Party had been issued. The Charging Party continued to argue her point about her belief the discipline was unwarranted until Johnson told her if the Charging Party was still “uncomfortable” about the disci- pline she could quit and would receive 2 weeks’ pay. Accord- ing to the Charging Party, Johnson also mentioned that it had come to her attention the Charging Party “had been forming a little alliance trying to get other nurses on my side and telling them not to recover. And I said, well, that is true. I have been telling nurses that they shouldn’t recover.” (Tr. 121.) Johnson told her to stop telling nurses not to recover patients and cease talking about December 20 and her discipline to coworkers. (Tr. 122.) Johnson did not testify at the hearing and there was no other testimony contradicting the Charging Party’s version of this meeting. Consequently, I credit her testimony on this point. The Charging Party continued to escalate her appeal of the discipline. (GC Exh. 17.) On March 12, she had a meeting with Bodin where she again complained about the discipline and the related investigation. Bodin directed the Charging Party to stop discussing patient placement with the PACU staff because she was making them uncomfortable. The Charging Party replied that she was not trying to make them uncomfortable but rather wanted their opinion on PACU patients being recovered in ICU instead of PACU. The meeting ended with the Charging Party telling Bodin that she wanted to be part of a cohesive team and to retain her RN III status. After their meeting the Charging Party paused pursuing the appeal of her discipline because her unit (and presumably the rest of the hospital) got chaotically busy taking care of COVID patients. Bodin did not testify at the hearing and there was no other testimony contradicting the Charging Party’s version of this meeting. Consequently, I cred- it her testimony on this point. On May 29, the Charging Party had a meeting with Halphen and Cathy Griffiths8 (Griffiths). Halphen was not involved in the decision to discipline the Charging Party or the investiga- tion. However, he was involved in the appeals process in mid- May 2020. Halphen met with the Charging Party to hear her rationale for why the discipline should be overturned. Through- out the meeting, the Charging Party did most of the talking while Halphen and Griffith listened. Halphen’s and the Charging Party’s version of the meeting differs on key points. According to the Charging Party, Hal- phen began the meeting stating that it was confidential, and she was not to repeat it to coworkers. The Charging Party began with telling Halphen that she was hesitant to go on the record with any negative remarks about management because when Myers did the same, she was fired. However, she continued to make her case to him about her reasons for believing the level of discipline was unwarranted. The Charging Party claimed that at this point he told her that at work she should say only “positive” things about Martin and reminded her again that the substance of the meeting was confidential. (Tr. 138.) However, 8 The Charging Party testified that Griffiths may have been the vice president of risk management. WOMAN’S HOSPITAL FOUNDATION 9 Halphen denies her interpretation of his comments. Instead, Halphen testified that at the end of the meeting with the Charg- ing Party, he told her that they were getting a lot of complaints from her coworkers about their work being disrupted because the Charging Party was constantly complaining to them about the December 20 incident. Consequently, he told her to “avoid disrupting the work floor and talking about it when other peo- ple were trying to get their work done . . .” (Tr. 531.) Halphen insists that the Charging Party was not told to refrain from talk- ing about her discipline and the related investigations with coworker, but “what I said was that, out of privacy, respect for her privacy, we’ll keep it confidential, and we expect her not to disrupt the workplace anymore with this discussion to – to in- sure the consistent provision of patient care.” (Tr. 540.) The Charging Party was placed on suspension at the end of the meeting. G. Discovery of Incorrect Entries to Charging Party’s Timesheet Vines’ duties as secretary for the AICU and High-Risk Unit include payroll, time and attendance, scheduling, order sup- plies/equipment, assist employees with schedules & managers with spreadsheets for accounting. She “make[s] sure that em- ployees are clocked in and out every day, make sure they have the correct cost centers, make sure they have the correct job codes, and make sure they’re scheduled charge, or if they have vacation, make sure the PTO hours are reported.” (Tr. 332.) During the period at issue, Martin was her direct supervisor. Vines’ office is physically located in the AICU with the nurses; and she works daily with the Respondent’s time and attendance program, API Healthcare (API). The human re- sources department (HR) publishes the nurses’ and other healthcare professionals’ schedules in the API system when they are first hired. HR is also responsible for changing job codes in the system when an employee is promoted or demoted. Employees input their own schedules for the next 4 to 8 weeks. The schedules are reflected in the API system alongside their job code for that scheduling period. Employees can be as- signed to work outside of their normal department, but the change must be coded in the employee’s electronic record. Each employee has a job code which they can manually change at the electronic badge reader. A change to the job code may occur if the nurse knows that she or he will be charge nurse the next day. The nurse may also come to work and punch “pro- ductive time” button on the timeclock screen and enter the job code they will work under that day. Employees cannot mistak- enly change their job code by swiping their employee identifi- cation card into the badge reader, but it can be done if the em- ployee enters the job code manually into the reader.9 (Tr. 338.) When HR makes changes to an employee’s job code, Vines 9 The Charging Party attempts to argue that on those occasions when the wrong job code was entered into the badge reader it was accidental or a glitch in the API system. I do not find her argument persuasive. She presented no evidence other than her unsubstantiated statements to support her position. Whereas the Respondent presented testimony from payroll specialists and documentation disputing the Charging Party’s claim. (Tr. 448, 450–452, 457, 519, 536; R. Exh. 7; GC Exh. 31.) does not discover it until she performs her payroll functions in the API system. Moreover, if a job code is not associated with an employee’s profile, Vines will get an exception alerting her of an incorrect job code for the employee. Vines works to catch timekeeping mistakes committed by employees. For example, she has made corrections to an em- ployee’s time to reflect that, while not currently scheduled as a charge nurse, the employee knew that he or she would be work- ing as the charge nurse in the near future. Vines knows which employee in AICU will serve as the charge nurse because their schedules, as I noted earlier, are made a week or more in ad- vance. In order to ensure timekeeping accuracy, Vines checks the assignment sheet and the API system to make certain the nurses are properly coded and checks again later to ensure the right charge nurse gets the proper credit. Likewise, when an employee is reassigned to work in a different department, Vines has to make certain the code is corrected to reflect the depart- ment assignment. However, Vines is not notified about em- ployees being reassigned to a new department until it is written on the assignment sheet. An important element of Vines’ and LeBlanc’s timekeeping duties is to process exceptions. Vines checks for and reviews exceptions multiple times daily. There are several types of exceptions: a crucial exception means an employee will not get paid; a warning exception conveys that there is an unusual oc- currence with an employee’s timecard that requires a more in- depth review; and informational exceptions. An exception appears to alert payroll to address when an employee’s job code does not match their schedule in the HR profile and other time- keeping abnormalities. (Tr. 341–342.) Vines notifies Martin about payroll problems, including which employees were tardy to work or other types of “no clock.” Employees clocking in under the wrong job code is a rarity. LeBlanc testified to fol- lowing the same procedure as Vines and corroborated most of her testimony. In March, the Charging Party had been demoted from a RN III to RN I. Towards the end of March, Vines and LeBlanc began receiving exception reports that the Charging Party was frequently changing her job code from RN I to RN III. The first time it happened Vines made the correction and returned the Charging Party to the correct job code, RN I. This problem repeatedly occurred until early May when she reported the problem to Martin. However, prior to alerting Martin to the issue, Vines checked the work schedule to verify that she had correctly entered the Charging Party as RN I and it was correct. She then conducted an investigation into the reason for this reoccurrence by reviewing the AICU and COVID schedules to make certain those schedules had the Charging Party coded as RN I. Finally in early May, Vines reported the exceptions to Martin and told her it had been an ongoing problem since March. Vines explained that she did not report it sooner be- cause she thought it was a simple error. Martin instructed her not to take additional action and she would talk to HR about it. The Charging Party is the only employee that Vines has en- countered to have numerous exceptions because the wrong job code had been repeatedly entered. In March, LeBlanc also began receiving exception reports stating the Charging Party was trying to clock a job code that DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 she was ineligible to receive, RN III. When she first started getting the exceptions about the Charging Party’s job code, she contacted HR and was that the Charging Party’s correct job code was RN I. Consequently, LeBlanc fixed the error since it was confirmed by HR that the incorrect job code was clocked into the timeclock. Subsequently, LeBlanc made these correc- tions “a lot” and “often” until the end of May when her manag- er, Mele, returned from extended sick leave. LeBlanc asked Mele what she would do if there were exceptions continually appearing for an employee. Mele told LeBlanc to contact HR for assistance. Shortly thereafter she called Gibson in HR and informed her of the situation. Towards the end of May, Mele told her to discontinue making changes to the Charging Party’s exceptions because HR was monitoring how often it was occur- ring. Continuing to correct the exceptions would erase the record of the Charging Party making the changes to her job code at the timeclock. After HR was informed of the continual exceptions for the Charging Party, an audit was performed of her clock-ins at the time clock from March through May. Mele, Baker, and Le- Blanc were involved in the audit. It was discovered that during the covered period, the Charging Party swiped in 9 times with the correct job code, RN I, and changed her job code to RN III at the badge reader 31 times. The audit trail led them to deter- mine that the Charging Party was responsible for intentionally changing her job code at the badge reader. HR explained that a job code change by HR in the Charging Party’s (and presuma- bly all employees) profile would automatically populate through the time clock once the employee download is com- pleted by payroll. Employee downloads are conducted every two weeks. There are two methods for an employee’s job code to reflect incorrectly: (1) the employee profile has not been updated to reflect the new job code; or (2) the employee manu- ally changes their job code at the timeclock. Vines had no further conversation with anyone about the is- sue until a meeting she had in May 2020 with Mele and Colon. In the meeting, Vines was asked about the clock-in errors for the Charging Party. Mele and Colon had the Charging Party’s audit report to review with Vines. She examined the payroll records and confirmed where she had changed the Charging Party’s time records to reflect her correct status of RN I. (Tr. 356.) The records revealed that the Charging Party had incor- rectly clocked in 31 times as a RN III and instead only clocked in 9 times as RN I. Also, as part of her investigation into this issue, Mele spoke with a representative from the timeclock vendor to determine if there was a computer glitch that could be causing the numerous job code changes for the Charging Party. Mele discussed with Baker and LeBlanc the conversation she had with time clock representatives and their findings about the likelihood that the job code errors were a systems glitch versus an employee’s intentional changes to the job code. Based on a number of factors and the multiple steps it takes to change a job code at the time clock, the vendor confirmed that the Charging Party’s job code changes were done manually and intentionally. (Tr. 536–537.) After much discussion, a review of the records, and the findings of the API company, Mele, Baker, and Le- Blanc determined that the Charging Party purposely changed her job code from RN I to RN III. (GC Exh. 31; Tr. 362–364.) H. Charging Party’s Suspension, Termination, and Ineligibility for Rehire Designation In mid to late May, Halphen became aware of the Charging Party’s appeal of her January 10 final warning and the payroll issue. As discussed above, he and Griffiths met with her on May 29 about her appeal. On June 12, Halphen and Baker held a follow-up meeting with the Charging Party to discuss her appeal of the January written final warning and the timeclock issue. The Charging Party and Halphen testified to slightly different versions of the meeting. Halphen broached the sub- ject of the Charging Party’s job code discrepancies at the timeclock. He explained their findings from the initial investi- gation and asked the Charging Party if she had an explanation for the numerous job code changes at the timeclock. The Charging Party denied intentionally changing her job code and replied that it was either human error on her part or a system error. In response to her denials, Halphen told the Charging Party he was placing her on paid administrative leave while the investigation continued to “look further into the possibility of the incorrect clocking being done accidentally.” (GC Exh. 44.) The timeclock vendor was contacted to determine the likeli- hood that the job code changes at the timeclock were the result of a computer error or human mistake. Halphen then began to address the Charging Party’s appeal of her January discipline. After addressing each of her concerns about the Respondent’s bases for the discipline and fairness of the investigation, Hal- phen told the Charging Party that the written warning was sus- tained. At the conclusion of the meeting, he told the Charging Party “out of privacy, respect for her privacy, we’ll keep [this meeting] confidential, and we expect her not to disrupt the workplace anymore with this discussion to—to insure the con- sistent provision of patient care.” (Tr. 540.) The Charging Party testified that Halphen started the June 12 meeting by reminding her the meeting was confidential and not to discuss it with anyone outside of the meeting. The parties’ testimonies and Baker’s notes of the meeting support a finding that Halphen cautioned the Charging Party at some point in the meeting that what was discussed in the meeting should remain confidential and should not be shared with anyone outside the meeting. (Tr. 140, 540; GC Exh. 44.) Halphen then started asking her questions about the difference in her pay as an RN III and RN I; and if she was aware that at some point in March that she had been demoted. The Charging Party acknowledge that she was aware of her demotion. At this point, Halphen said “it had come to their attention that sometime in the last few weeks, they had become aware that I had been intentionally changing my RN I status to RN III, and that they got confirma- tion that week that there was no other explanation for it.” (Tr. 141.) The parties agree that at this point the Charging Party objected to the allegation and denied that she had purposely altered her RN status in order to override her demotion. She told him that the system is “glitchy” and an unexplained change to her job code at the time clock had happened on another occa- sion. The Charging Party then asked to shift the conversation back to the January disciplinary action that she received. The parties agree that Halphen addressed with her in detail each of her concerns surrounding her discipline and ended by stating the original disciplinary action would not be rescinded. Again, I WOMAN’S HOSPITAL FOUNDATION 11 will note that because she denied purposely changing her RN status in the timekeeping system, Halphen told the Charging Party that she would be placed on paid administrative leave while the investigation delved further into finding the source of the frequent job code changes. Halphen insisted on a complete investigation of the time clock issue. As a result of his desire to understand the steps involved in changing a job code at the time clock, he had the HR and payroll staffs work together “to duplicate the steps that would need to be taken to – to make that change.” (Tr. 536.) The investigation was completed in early June. Consequently, on June 18, Baker and Halphen met again with the Charging Party to inform her that after further investigation, they were certain she intentionally changed her job code so she was ter- minated effective June 18 and would not be eligible for rehire. (GC Exh. 23.) I. Respondent’s Request for NLRB Subpoenas In March 2021, Vines received a subpoena from the NLRB and because it concerned her, Vines called Baker for advice. Baker asked for a copy and told Vines that she would speak with the Respondent’s attorney, Charles Hollis (Hollis) about assisting her. Hollis offered to “represent” Vines in the affida- vit process. Vines provided Baker with a draft copy and a re- quest for Baker to review it before sending the finalized affida- vit to the NLRB. (GC Exh. 86.) After Vines finalized her affi- davit, Baker asked for a copy to retain for her records and Vines complied. Likewise, LeBlanc panicked when she re- ceived the NLRB subpoena and “immediately” called Baker to ask why she had received a subpoena. Baker told her not to worry because the Respondent would support her with whatev- er resources she needed to get through the process, including an attorney (Hollis). LeBlanc sought out Baker’s advice on the matter because she had maintained a good working relationship with Baker since LeBlanc began work at the hospital and con- sidered her a mentor and a good resource for personnel matters. Although Baker did not discuss the affidavit with LeBlanc, she did ask for a copy of the completed affidavit and LeBlanc com- plied. (GC Exh. 87, 88.) III. DISCUSSION AND ANALYSIS A. June Suspension, Discharge, and Ineligibility for Rehire The General Counsel contends that the Respondent suspend- ed and then ultimately discharged the Charging Party and des- ignated her ineligible for rehire because of her protected con- certed activity. In support of this position, the General Counsel argues (1) the investigation into the Charging Party’s alleged timekeeping violation was inadequate; (2) there is “overwhelm- ing” evidence of animus; (3) the close nexus in time between the adverse employment actions and the Charging Party’s pro- tected concerted activities is evidence of illegality; and (4) the Respondent’s comparative evidence is not persuasive. The Respondent insists that the Charging Party did not engage in protected concerted activity but counters that, regardless, it would have taken the same adverse employment action against her even in the absence of the protected conduct. (R. Br. 21– 22.) Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. The rights guaranteed in Section 7 include the right “to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection.” See Bright- on Retail, Inc., 354 NLRB 441, 441 (2009). An employer vio- lates Section 8(a)(1) of the Act if it disciplines or discharges an employee for engaging in activity that is “concerted” within the meaning of Section 7 of the Act. If it is determined that the activity is concerted, a violation of Section 8(a)(1) will be found if the employer knew of the concerted nature of the em- ployee’s activity, the concerted activity was protected by the Act, and the adverse employment action was motivated by the employee’s protected, concerted activity. Relco Locomotives Corp., 358 NLRB 229 (2012) (citing Meyers Industries, 268 NLRB 493, 497 (1984), remanded sub nom. Prill v. NLRB 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988)). Once the General Counsel establishes such an initial showing of discrimination, the employer may present evidence, as an affirmative defense, showing it would have taken the same action even in the absence of the protected ac- tivity. The General Counsel may offer evidence that the em- ployer’s articulated reasons are pretext or false. Relco, supra. The Board applies the Wright Line10 analysis to evaluate whether an adverse employment action violates 8(a)(3) of the Act. The burden is on the General Counsel to initially establish that a substantial or motivating factor in the employer’s deci- sion to take adverse employment action against an employee was the employee’s union or other protected concerted activity. In order to establish this initial showing of discrimination, the evidence must normally prove: (1) the employee engaged in union or protected concerted activities; (2) the employer knew of the concerted nature of the activities; and (3) the adverse action taken against the employee was motivated by the activity which must be proven with evidence sufficient to show a causal connection between the averse action and the protected activity. Electrolux Home Products, 368 NLRB No. 34, slip op. at 2–3 (2019) Circumstantial evidence may be used to show animus. Elements to support a showing of unlawful motivation may include, among other factors, suspicious timing of the adverse action; false or changing reasons provided for the adverse ac- tion; failure to conduct a meaningful investigation of the al- leged employee misconduct; departure from past practice in imposing the adverse action; and disparate treatment of the employee. See Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 4, 8 (2019); Medic One, Inc., 331 NLRB 464, 475 (2000). The evidence must establish that a causal connec- tion exists between the employee’s union or other protected concerted activity and the employer’s adverse employment action against the employee. Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 8. 10 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 Once the General Counsel has met its initial showing that the protected conduct was a substantial or motivating reason in employer’s decision to take the adverse action, the employer has the burden of production by presenting evidence the action would have occurred even absent the union or protected con- certed activity. The employer does not have to prove that the disciplined employee committed the infraction alleged. Rather, the employer only needs to establish that it had a reasonable belief the employee committed the misconduct alleged and acted on that belief when it took the disciplinary action against the employee. McKesson Drug Co., 337 NLRB 935, 937 fn. 7 (2002); see also Bally’s Atlantic City, 355 NLRB 1319, 1321 (2010), enfd. 646 F.3d 929 (D.C. Cir. 2011). The General Counsel may offer proof that the employer’s articulated reason is false or pretextual, and if found to be false or pretextual, discriminatory animus may be inferred. Electrolux Home Prod- ucts, 368 NLRB No. 34, slip op. at 3. The General Counsel, however, retains the ultimate burden of proving discrimination. Wright Line, id. The Wright Line analysis is not applicable when there is no dispute that the employer took adverse action against the employee because the employee engaged in union or protected concerted activity. Phoenix Transit System, 337 NLRB 510, 510 (2002), enfd. 63 Fed.Appx. 524 (D.C. Cir. 2003). i. Charging Party engaged in protected concerted activities The General Counsel argues that the Charging Party, from December 20 to May 29, 2020, engaged in protected concerted activities when (1) she repeatedly complained about the Re- spondent requiring AICU nurses perform phase 1 recovery care on patients coming directly from the operating room (OR); and (2) the quality of patient care in the AICU. The Respondent counters that the Charging Party’s conduct was not protected concerted activity because (1) she did not have a “good faith belief” that treating the patient on December 20, would be un- safe; (2) her complaints did not relate to terms and conditions of employment; and (3) her complaints were personal gripes and not an effort towards group activity. Despite the Respondent’s argument that the Charging Party’s complaints were personal gripes without an effort to encourage group action, I find that the evidence is to the contrary. The evidence shows that beginning on December 20, the Charging Party objected to extubated patients coming directly from the OR to the AICU without a PACU nurse or other medical pro- fessional certified in airway management. In voicing her objec- tions to management about the practice of extubated patients bypassing PACU and going directly to the AICU, the Charging Party told them that they were placing the AICU nurses in jeopardy of losing their nursing licenses. According to the Charging Party, the AICU nurses should not perform phase 1 recovery because most were not certified in it. She also told Reeves that forcing the AICU nurses to care for PACU patients without a PACU nurse could devolve into an unsafe work envi- ronment because the AICU can quickly fill with other critical care patients. (Tr. 76.) Moreover, the Charging Party shared with fellow nurses her concerns that the Respondent’s practice of allowing AICU nurses to perform phase 1 recovery on extu- bated patients directly from OR jeopardizes their nursing li- cense and the care of patients. Two examples are when the Charging Party drafted an email to management complaining about the practice and before sending it shared the email with other nurses for their input. (Tr. 91–92; GC Exh. 9.) She also repeatedly griped about conducting phase 1 recovery of patients to several of the AICU nurses, including Leann Myers, Kathy Delatte, Latonya Brumfield, Chelsea Bradford, and Ashley Robodeen. Id. Likewise, Sinclair Faulkner counseled a fellow nurse, Sarah Gandy (Gandy), against providing airway man- agement to a patient because Gandy was not trained in PACU care and the AICU was already busy with other patients. (Tr. 110–112.) She then reiterated her concerns and followed up with an email to Choate about patient safety with Gandy taking responsibility for a phase one recovery of a patient with three additional patients in the AICU. (Tr. 110–112; GC Exh. 13.) Last, Sinclair Faulkner provided undisputed testimony that since 2015, she and other AICU nurses have raised concerns to managers about extubated patients bypassing PACU and com- ing directly to AICU from the OR. (Tr. 96.) These actions are clear indications that Sinclair Faulkner was voicing group con- cerns about patient safety and fear that the AICU nurses were jeopardizing their nursing licenses by performing phase 1 re- covery on patients without the proper certifications. Second, I find the evidence shows that the Charging Party had a “good faith belief” that treating the patient on December 20, would be unsafe. The Respondent argues that because the Charging Par- ty had cared for recently extubated patients coming to AICU directly from the OR she did not have a good faith belief that treating the patient would be unsafe. However, the Charging Party’s primary argument is that, regardless of the perceived safety of the patient, industry standards prohibit her, and all nurses not certified in PACU, from caring for PACU patient sent to them without a PACU nurse present. Consequently, I find that Sinclair Faulkner’s complaints were not personal gripes but rather an effort towards group activity to improve terms and conditions of employment. ii. Employer knowledge of charging party’s concerted protected activity The evidence is overwhelming that the Respondent was aware of Sinclair Faulkner’s concerted activity. As previously noted, since 2015 the Charging Party with other nurses have had several conversations with managers about their objections to performing phase 1 recovery on extubated patients coming to AICU directly from the OR. Specifically, on December 20, the Charging Party, within in hearing of other nurses, complained about this practice to several managers and supervisors includ- ing Choate, Reeves, Martin, Dunnington, Grady, and Johnson. Again, in a meeting with Johnson and Baker, the Charging party spoke about the inappropriateness of nurses being asked by management to perform phase one recovery and tasks out- side of their “competencies.” (Tr. 119.) In the same meeting, Johnson told her “it had come to our attention that [the Charg- ing Party] had been forming a little alliance trying to get other WOMAN’S HOSPITAL FOUNDATION 13 nurses on my side and telling them not to recover.”11 (Tr. 121.) Moreover, Reeves admitted that soon after the Charging Party’s complaints on December 20, some of the managers met to ad- dress the very issues raised by the Charging Party. Thereby, she implicitly acknowledges that the Charging Party’s actions effected change in the nurses’ terms and conditions of employ- ment. Grady admitted that the Charging Party and Myers ob- jected to caring for extubated patients without a PACU nurse present because they insisted that they lacked the qualifications for such care. Therefore, she was aware of the Charging Par- ty’s efforts, in conjunctions with Myers, to stop the practice of nurses not certified in phase one recovery of patients from car- ing for them without a PACU nurse present. Last, the eviden- tiary record shows email correspondence from the Charging Party to the supervisors and managers complaining about the Respondent’s policy and, or guidelines on AICU nurses caring for phase one recovery patients. (GC Exhs. 8, 9, 13, 17.) It is clear in these emails that the Charging Party is complaining about workplace policies and guidelines on behalf of herself and other nurses in the AICU. Consequently, I find that the General Counsel has established the Respondent’s knowledge of the Charging Party’s protected concerted activities. iii. The general counsel failed to establish animus The General Counsel argues that the Respondent demon- strated animus towards the Charging Party’s protected activities shown by (1) the Respondent’s response to the Charging Par- ty’s request for a PACU nurse on December 20; (2) the Re- spondent’s “nonsensical and contradictory” testimony on the December 20 incident; (3) the Respondent’s action to issue the Charging Party a final warning in the weeks soon after the De- cember 20 incident; (4) the Respondent’s admonishment to the Charging Party to not discuss her discipline or work-related concerns with coworkers; and (5) the “inadequacy” of the in- vestigation into the time clock issue. According to the General Counsel, this animus resulted in the Charging Party’s suspen- sion, discharge, and designation of ineligible for hire in viola- tion of the Act. The Respondent denies animus against the Charging Party arguing that (1) adverse actions were taken against her for legitimate reasons unrelated to any protected concerted activity; and (2) she was treated the same as similarly situated individuals. According to the General Counsel, the managers’ December 20, responses to the Charging Party’s request for a PACU nurse are themselves evidence of animus. I find the General Coun- sel’s argument unpersuasive. Nothing in their responses to the Charging Party that day indicated animus against her exercising her right to object about the use of AICU nurses to extubate patients directly from the OR. Rather, the managers addressed her concerns by providing a PACU nurse, pointed out that she and other nurses had ably cared for such patients, and followed- up with clarification on the particular guideline for caring for these patients. Moreover, I find nothing “nonsensical and con- 11 The Charging Party’s testimony attributing this statement to John- son is undisputed, in part, because Johnson did not testify at the hear- ing; and the Respondent presented no other evidence to dispute it. There is nothing in the record to give me pause to credit the Charging Party’s testimony that Johnson made the statement. tradictory” about Reeves’, Martin’s, and Grady’s testimony. The General Counsel argues that Reeves, Martin, and Grady “pushed Respondent’s narrative that Sinclair-Faulkner refused to treat the patient who would be later sent to the AICU. How- ever, all three admitted on cross-examination that Sinclair- Faulkner’s specific request was to have a PACU nurse present to perform phase 1 recovery, and not that she would not pro- vide treatment to the patient.” (GC Br. 32–33.) I find, however, that both sentiments can be true. When questioned on cross- examination, the Charging Party refused to answer whether she would have provided treatment to the patient on December 20 if a PACU nurse had not been available to assist with the care. After repeated questioning by the Respondent’s counsel on this point, the Charging Party finally admitted she would not have provided phase one recovery care to the patient. She testified, “We would provide everything except Phase 1 postanesthesia (sic) care, which is a completely reasonable compliance with an order.” (Tr. 169.) However, the practical implication of this is that if a PACU nurse was unavailable the Charging Party, by her own admission, would not have fully provided treatment to the patient. (Tr. 167–169.) In other words, the three managers could have and did interpret the Charging Party’s statements to mean that she needed a PACU nurse to accompany the patient and if one was not sent to the AICU, she would not provide full care for the patient. The General Counsel also contends that Martin’s “contradictory” testimony on AICU nurses’ ability to request a PACU nurse prior to December 20, is further evi- dence of animus. According to the General Counsel, Martin testified that prior to December 20, AICU nurses could not request a PACU nurse to administer phase one recovery to a patient, but her statement is contradicted by “evidence that Administrative Supervisors Choate, Reeves and Dunnington all contacted PACU to have a PACU nurse accompany the pa- tient.” (GC Br. 33.) The General Counsel provides a few con- clusory statements to support this contention. Nonetheless, there is scant to no evidence showing how these statements demonstrates animus towards the Charging Party’s protected activity. The General Counsel argues that other evidence of the Re- spondent’s discriminatory animus towards the Charging Party’s protected activity is revealed in “its decision to discipline [her] for her conduct on December 20, 2019, and the following weeks.” (GC Br. 33.) While the General Counsel admits that the disciplinary warning is not alleged as unlawful in the Com- plaint “as no charge was filed within the Section 10(b) period,” counsel for the General Counsel spent an inordinate amount of time at the hearing litigating this allegation as if it was properly and timely alleged. Since the January 10 discipline is not al- leged as unlawful in the complaint, I do not have it before me. Consequently, I have not reviewed evidence or heard testimony with a view towards deciding whether the January 10 discipline was unlawful. Nonetheless, the thrust of the General Counsel’s argument appears to be that the disciplinary warning was un- lawfully motivated by the Charging Party’s protected activity and therefore proves animus. However, the General Counsel provides nothing but a circular argument to prove that the dis- ciplinary warning was unlawfully motivated. I do not take a position on whether the January 10 disciplinary action was DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 unlawfully motivated because that is not a complaint before me. The only agreed upon fact that I have regarding the disci- pline is that it was issued to the Charging Party by the Re- spondent on January 10. If the General Counsel wanted me to find that the disciplinary warning was unlawfully motivated by the Charging Party’s protected activity, thereby showing ani- mus, the General Counsel should have timely and properly alleged and prosecuted it as unlawful in the Complaint so that I could decide it on the merits. However, it was not done so consequently, I reject the General Counsel’s argument on this point. Another argument that the General Counsel posits is that the directives contained in the written warning and those related to the January 10 discipline for the Charging Party to keep her discipline confidential is further evidence of its animus towards her protected activity. Citing St. Margaret Mercy Healthcare Centers, 350 NLRB 203, 204 (2007), enfd. 519 F.3d 373 (7th Cir. 2008); Kenworth Truck Co., 327 NLRB 497 (1999), the General Counsel notes that it is “settled that the threat of en- forcement of unlawful rules, such [as] prohibiting discussion of discipline with co-workers, provides evidence of animus to- ward employee Section 7 rights.” (GC Br. 35.) I do not find either case particularly persuasive. St. Margaret Mercy has been overturned by the Board to the extent it is inconsistent with General Motors LLC & Co., 369 NLRB No. 127 (2020). Regardless, the facts and allegations in St. Margaret Mercy and Kenworth Truck Co. differ so greatly from those in this case they are weak comparisons. I previously found that the Respondent unlawfully instructed employees, i.e., the Charging Party, not to discuss her disci- pline with coworkers. The evidence also shows that the man- agers were frustrated with the Charging Party’s continued dis- cussions with coworkers about her discipline and related inves- tigation. Nonetheless, I do not find that there is persuasive evidence linking the managers’ directive that the Charging Party refrain from discussing her discipline and the related investigation with coworkers, and their frustration when she continued, to her subsequent suspension, termination, and inel- igibility for rehire. It is clear to me that the evidence supports a finding that she was suspended, terminated, and deemed ineli- gible for rehire solely because she committed time and attend- ance fraud and not because the Respondent acted on illegal animus. It is undisputed that the Charging Party’s job codes were changed 31 times in the time clock to a higher paid RN III level when it should have reflected her correct status, RN I. Vines gave uncontradicted evidence that in her years monitor- ing employee time records, she had never encountered a situa- tion with as many wrong job codes as she had for the Charging Party. (Tr. 345.) Although the General Counsel disagrees with the adequacy of the investigation into the changed job codes, I find that it was conducted in a fair, impartial, and thorough manner. The payroll department, in conjunction with HR, or- dered an audit report to first verify that the changes were being made manually at the badge reader and the extent of the chang- es. Additionally, the payroll department retrieved the Charging Party’s “clocking report” and cross-referenced it with the audit report for the period at issue. Halphen and Baker also met with the Charging Party to determine if she had an explanation for the 31 manual changes to her job codes at the badge reader. She denied making the changes so instead of terminating her at that point, they placed her on paid administrative leave while con- ducting further investigation. The Respondent, as part of its investigation into the issue, contacted the timeclock vendor who verified that it was not a computer glitch or human error and provided reasons for that conclusion. (Tr. 449, 451, 536– 537.) The General Counsel also attempts to argue that there is no evidence the Charging Party is the one who made the time code changes at the badge reader. Considering the evidence overall, it stretches credulity to believe that an unknown ran- dom person decided to change the Charging Party’s job codes and coincidentally the changes began soon after she was de- moted from a RN III to RN I. Regardless, there is ample evi- dence to support a finding that the Respondent’s investigation of the Charging Party’s job code changes was fair, impartial, and thorough. Based on the evidence, I find that the General Counsel has failed to establish the Respondent harbored animus towards the Charging Party because of her protected concerted activities. Consequently, I find that the Respondent did not violate Sec- tion 8(a)(1) of the Act, and therefore recommend that para- graphs 7(b), (c) and (d) be dismissed. B. The Respondent’s Confidentiality Rule Under Boeing, the Board held that it will “no longer find un- lawful the mere maintenance of facially neutral employment policies, work rules and handbook provisions based on a single inquiry, which made legality turn on whether an employee ‘would reasonably construe’ a rule to prohibit some type of potential Section 7 activity that might (or might not) occur in the future.”12 Consequently, the Board established the follow- ing analytic framework: [W]hen evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications asso- ciated with the rule. We emphasize that the Board will con- duct this evaluation, consistent with the Board’s “duty to strike the proper balance between . . . asserted business justi- fications and the invasion of employee rights in light of the Act and its policy,” . . . focusing on the perspective of em- ployees, which is consistent with Section 8(a)(1). . . . As the result of this balancing, . . . the Board will delineate three cat- egories of employment policies, rules and handbook provi- sions (hereinafter referred to as “rules”):  Category 1 will include rules that the Board desig- nates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or in- terfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is out- weighed by justifications associated with the rule. Examples of Category 1 rules are . . . the “harmoni- ous interactions and 15 relationships” rule that was at 12 365 NLRB No. 154, slip op. at 2 (2017). WOMAN’S HOSPITAL FOUNDATION 15 issue in William Beaumont Hospital, and other rules requiring employees to abide by basic standards of civility . . . .  Category 2 will include rules that warrant individual- ized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.  Category 3 will include rules that the Board will des- ignate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example of a Category 3 rule would be a rule that prohibits em- ployees from discussing wages or benefits with one another. Boeing, 365 NLRB No. 154, slip op. at 3–4. The Board has also held that an employer’s work rules which are ill defined and overbroad violate Section 8(a)(1) of the Act. The General Counsel alleges that the following provisions of the Respondent’s written confidentiality policy are unlawful: “All employee-related information is regarded as confidential and is available only to authorized users” and “Employee- related issues should not be discussed with, or in the presence of physicians, patients, visitors, contract workers or other em- ployees.” (GC Br. 45; GC Exhs.1(k), 2.) According to the General Counsel, the provisions are unlawful because they are “written so broadly that employees, reviewing the provisions, would be led to understand they must keep employee infor- mation confidential and are prohibited from discussion (sic) employee information with other employees or third parties.” (GC Br. 46.) The Respondent denies that its policy prohibits or discourages employees from “discussing the terms and condi- tions of their employment or any other topic protected under Section 7 with their fellow employees.” (R. Br. 26.) Further, it argues that the policies are restricted to employees with access to the “Hospital’s confidential information, such as certain managers and Human Resources professionals”, and does not apply to hourly employees’ interactions with their coworkers. Id. I find that the two confidentiality provisions violate the Act under both category 2 and 3 of the Boeing test. A mere reading of these provisions within the overall context of the Respond- ent’s confidentiality policy establishes that they are broadly worded. There is nothing in the plain language of the texts limiting their reach to “certain managers and Human Resources professionals.” The first provision notes that all employee- related information is confidential and available only to “au- thorized users” without defining that term. (Emphasis added.) It also does not place restrictions on nor defines “employee- related information.” This provision, therefore, would lead employees to believe that they are prohibited from talking about their terms and conditions of employment or other Sec- tion 7 protected subjects. The second provision is afflicted with similar problems. Again, the provision does not reference the types of employee information that is covered by this re- striction. Moreover, it explicitly prohibits “employees”, with- out any limiting language, from discussing these non-defined issues. The language leaves it to the imagination of the em- ployees to determine if they are covered by the language and the types of “employee-related issues” they are prohibited from discussing with coworkers. Consequently, I find that the over- broad nature of both provisions would lead employees, whether hourly or non-hourly employees, to believe that these strictures apply them. Accordingly, I find that the Respondent’s confidentiality provisions as alleged in the complaint violate Section 8(a)(1) of the Act. C. Threatening Employees for Engaging in Protected Activities The complaint alleges that about May 29 and June 12, the Respondent, through Halphen, threatened employees by telling them to keep their discipline and related investigations confi- dential because of their protected concerted activity. The Re- spondent’s counter argument is (1) the Board has recognized as reasonable oral instructions to an employee that for the duration of the confidential investigation not to discuss with others mat- ters related to it: and (2) Halphen merely instructed the Charg- ing Party not to discuss her discipline and the confidential in- vestigation “so as not to disturb her colleagues in the AICU and adjoining High Risk Unit.” (Tr. 19–20.) In order to justify a rule prohibiting employee discussions of ongoing investigations, the Respondent must show that it has a legitimate business justification. See Hyundai America Ship- ping Agency, 357 NLRB 860, 874 (2011) (the Board held no legitimate and substantial justification when an employer promulgates a blanket prohibition against employees discussing matters under investigation). The question, therefore, is wheth- er the Respondent’s stated legitimate and substantial business reasons outweigh the employees’ exercise of their Section 7 rights. In Hyundai America Shipping Agency, the Board noted, “Rather, in order to minimize the impact on Section 7 rights, it was the Respondent’s burden ‘to first determine whether in any give[n] investigation witnesses need [ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.’”). Id. The Board has held that prohibiting employees from discussing terms and conditions of employment, particularly discipline or potential discipline, violates Section 7 of the Act. Employees have a right to discuss discipline with each other because those discussions may induce employees to take col- lective action. Lafayette Park Hotel, 326 NLRB 824 at 828 (1998) (citing Norris/O’Bannon, 307 NLRB 1236, 1245 (1992)). It is not relevant whether an employer’s prohibition on discussing terms and conditions of employment is a request or order, nor must it contain a direct or specific threat of discipline to be a violation of employees’ Section 7 rights. Franklin Iron & Metal Corp., 315 NLRB 819, 820 (1994), enfd. 83 F.3d 156 (6th Cir. 1996); Westside Community Mental Health Center, 327 NLRB 661, 666 (1999) (supervisor’s instruction to em- ployees not to discuss their discipline found unlawful restraint of Section 7 rights, even though the instruction contained no explicit threat of a penalty). However, an employer might avoid liability if it can establish that there is a legitimate and substantial justification that outweighs the Section 7 rights of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 employees. Verizon Wireless, 349 NLRB 640, 658–659 (2007); Caesar’s Palace, 336 NLRB 271, 272 fn. 6 (2001). The General Counsel counters that, in addition to undisputed testimony from witnesses, there is objective evidence that Hal- phen issued the Charging Party a blanket prohibition on dis- cussing her discipline and the investigation surrounding it. However, Halphen denied instructing the Charging Party not to discuss her discipline or the investigation with other employees. He admitted, however, telling the Charging Party not to discuss her January 10 discipline and confidential investigation with coworkers because supervisors had received complaints that the Charging Party’s incessant griping was distracting to her col- leagues. According to the Respondent, this “distracting” be- havior could be “detrimental to patient care” and Halphen con- veyed this specific concern to the Charging Party (R. Br. 20; Tr. 532.) Halphen insists that his instruction to the Charging Party was limited to not discussing her discipline and com- plaints while other employees were working. (Tr. 530–531; R. Br. 19–20.) Also, he tried to explain that “what I said was that, out of privacy, respect for her privacy, we’ll keep it confiden- tial and we expect her not to disrupt the workplace anymore with this discussion to—to insure the consistent provision of patient care.” (Tr. 540.) There are, however, notes from Baker that memorialized the discussion in the June 12, meeting with Halphen, the Charging Party, and Baker. Baker wrote, “[Hal- phen] reminded [the Charging Party] her situation will remain confidential to respect her privacy and it was expected she do the same. In addition, any further disruption would not be toler- ated.” (GC Exh. 44.) I find the Respondent’s arguments unpersuasive. Halphen admitted he told the Charging Party not to discuss her disci- pline or the “confidential” investigation with other employees. The record is devoid of evidence that he limited this edict to a specific time period. In January, Reeves admitted she told the Charging Party to “refrain from unproductive comments and discussions with peers” as it related to her discipline and the investigation. (Tr. 238–239.) Martin also admonished the Charging Party in a meeting to refrain from talking to cowork- ers about her discipline. Moreover, Martin sent emails to other managers, mostly in HR, complaining that the Charging Party continued to discuss her discipline and the investigation with coworkers after being warned to stop. (GC Exh. 63; Tr. 292.) Although Martin insists that she told the Charging Party to limit those talks with coworkers to areas other than the nurses’ sta- tion, the emails reveal that the Charging Party’s mere discus- sion of her discipline was considered disruptive and a violation of the discipline. (GC Exh. 63.) Combined with these other warnings from managers and supervisors, the Charging Party more likely than not Charging Party understood Halphen’s instructions as a permanent ban against talking with employees about her discipline and its attendant investigation. Last, the Respondent produced no witnesses to corroborate Halphen’s or Baker’s assertions that other employees told them the Charging Party repeatedly complained to them about her discipline which distracted them from their work duties. I find that the evidence is insufficient to establish that the Charging Party’s discussion with coworkers about her discipline and the disciplinary inves- tigation was disruptive to the point that the Respondent had a legitimate business reason for severely restricting her ability to talk about those protected activities with coworkers. The Re- spondent also argues that even if the Board determines that the confidentiality provisions interfere with employees’ section 7 rights, under the Boeing test, it has legitimate justifications for the policy which outweighs any burden on employees’ rights under the Act. The Respondent contends its policy is legiti- mately justified because: (1) the number of employees it em- ploys requires policies and procedures in place to prevent the erroneous or unauthorize disclosure of employee information; and (2) the policy “confirms that any confidential employee matters are not discussed in the presence” of unauthorized indi- viduals. I find both arguments unpersuasive. The number of employees employed by the Respondent is not, without more, a sufficient reason for implementing a rule that infringes on em- ployees Section 7 rights. Moreover, even though the intent of the rule may be to prevent “unauthorized individuals” from divulging confidential employee information, as discussed above, it too broadly and vaguely written to make clear to em- ployees that the policy is not a prohibition on discussing mat- ters protected by Section 7 of the Act. Accordingly, I find that about May 29 and June 12, the Re- spondent, through Halphen, illegally threatened employees because they engaged in protected concerted activities in viola- tion of Section 8(a)(1) of the Act. D. Unlawful Request for Copies of Employees’ NLRB Affidavits On receipt of subpoenas from the NLRB, Vines and LeBlanc approached Baker with questions because they were anxious and wanted guidance on the process. Baker offered to contact the Respondent’s attorney to assist them. The evidence is un- disputed that Baker asked Vines and LeBlanc for final copies of their NLRB affidavits in connection with this matter. (Tr. 32– 34, GC Exhs. 86, 88.) Likewise, it is undisputed that Baker requested copies of their affidavits prior to either employee reviewing, signing, and returning the final copies to the NLRB. The evidence shows that Vines also provided Baker with a draft copy and a request for Baker to review it before sending the finalized affidavit to the NLRB. (GC Exh. 86.) LeBlanc also gave Baker a draft copy which she forwarded to the Respond- ent’s counsel to review for changes. Baker requested from LeBlanc a copy of her completed affidavit and she complied. (GC Exh. 87, 88.) Citing several Board cases, the General Counsel argues that although Vines and LeBlanc testified that, “Baker did not demand they provide her with copies of their affidavits and neither felt coerced to provide Baker with a copy . . ., the Board has determined the coercive nature of the state- ment is not altered whether made as a request or demand.”13 (GC Br. 47.) Similar to the General Counsel, the Respondent also presents a few Board cases to support its position.14 Noting that Vines 13 Wire Products Mfg. Corp., 326 NLRB 625, 626 (1998); Astro Printing, 300 NLRB 1028, 1029 fn. 6 (1990); Frascona Buick, 266 NLRB 636, 647 (1983); Ingram Farms, 258 NLRB 1051, 1054 (1981). 14 Randall, Burkart/Randall, Div. of Textron, Inc., 257 NLRB 1, 11 (1981); Decker Truck Line, Inc. & David Miller, Esq., the Sawaya L. Firm, 2014 L.R.R.M. (BNA) 168780 (N.L.R.B. Div. of Judges Sept. 23, 2014). WOMAN’S HOSPITAL FOUNDATION 17 and LeBlance “independently reached out” to Baker, the Re- spondent argues that Baker then “merely requested” copies of Vines’ and LeBlanc’s affidavits; and they did not feel threat- ened or coerced because of it. Citing Textron, among other cases, the Respondent argues that the Board has held that “mere requests made by a company for employee affidavits do not violate an employee’s rights under the NLRA.” (R. Br. 29.) I reject the Respondent’s argument. The Board has held that an employer’s request for a copy of an employee’s confidential affidavit to the NLRB is inherently coercive even without a demand. Astro Printing at 1029 fn. 6. Even assurances from the employer that acceding to the request is voluntary does not necessarily negate the inherently coercive nature of the request. GEX of Colorado, Inc., 250 NLRB 593, 596 (1980). Also, the Respondent cites Decker Trucking for the proposition that it is only a violation of the Act when a “demand” is made for a copy of an employee’s affidavit. However, the case is silent on whether an employer’s “request” for a copy of an employee’s confidential affidavit is illegal, and rather focuses on the issue of “demand.” Consequently, I do not find the case particularly relevant. Moreover, in each of the cases cited by the Respond- ent, the employee was explicitly informed that production of the NLRB affidavits was voluntary and would not result in retaliatory action if the employee declined to provide the em- ployer with a copy. None of these safeguards were present in the case at issue. Accordingly, I find that about March 2021 and April 13, 2021, the Respondent, through Baker, illegally requested copies of employee’s Board prepared affidavits in violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Woman’s Hospital Foundation, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By threatening employees on May 29, 2020, when in- forming them they should keep their disciplines and related investigations confidential because they engaged in protected concerted activities, the Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act. 3. By threatening employees on June 12, 2020, when in- forming them they should keep their disciplines and related investigations confidential because they engaged in protected concerted activities, the Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act. 4. By maintaining an unlawful confidentiality rule as set forth in paragraph 8 of the complaint since July 6, 2020, the Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act. 5. By requesting copies on about March 2020, of employees Board prepared affidavits, the Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act. 6. By requesting copies on April 13, 2020, of employees Board prepared affidavits, the Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act. 7. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. The Respondent has not violated the Act except as set forth above. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent will be ordered not to threaten or tell em- ployees that they should keep their disciplines and related in- vestigations confidential. The Respondent will be ordered not to request, demand, or otherwise seek a copy from employees of their Board prepared affidavits given during Board investigations. The Respondent will be ordered not to maintain a confidenti- ality rule that infringes on employees’ exercise of their Section 7 rights under the Act. The Respondent will be required to post and communicate by electronic post to employees the attached Appendix and notice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended15 ORDER Respondent, a corporation with an office and place of busi- ness located in Baton Rouge, Louisiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees by informing them they should keep their disciplines and related investigations confidential because they engaged in protected concerted activities. (b) Maintaining unlawful confidentiality rules that infringe on employees’ exercise of their Section 7 rights under the Act. (c) Requesting, demanding, or otherwise seeking to obtain a copy from employees of their Board prepared affidavits given during Board investigations. (d) In any like or related manner, interfering with, restrain- ing, or coercing its employees in the exercise of the rights guar- anteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the purposes and policies of the Act. (a) Within 14 days after service by the Region, post at its fa- cilities in Baton Rouge, Louisiana, copies of the attached notice marked “Appendix.”16 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees and members are customarily posted. In addition to physical 15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. 16 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 posting of paper notices, the notices shall be distributed elec- tronically, such as by email, posting on an intranet or an inter- net site, and/or other electronic means, if the Respondent cus- tomarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these pro- ceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 29, 2020. (c) 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. Dated: September 30, 2022 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 violated Federal labor law and has ordered us to post and obey this no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT do anything to prevent you from exercising the above rights WE WILL NOT threaten you or tell you that you may not dis- cuss discipline or investigations with others. You have the right to freely bring concerns and/or complaints related to your wag- es, hours, and working conditions, including being asked to provide patient care outside of your competencies, to us on behalf of yourself and other employees. WE WILL NOT do anything to interfere with your exercise of that right. WE WILL NOT stop you from discussing your terms and con- ditions of employment, including your salary and other related employee information. WE WILL NOT request that you provide us with a copy of your Board prepared affidavits given during investigations Affida- vits prepared by the National Labor Relations Board are confi- dential and you are not required to provide copies of affidavits you have provided during investigations to us. WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s order, rescind the rule in our Confidentiality Policy 275.03, Section B, which prohibits you from discussing your salary and all other employee related issues. WOMAN’S HOSPITAL FOUNDATION The Administrative Law Judge’s decision can be found at www.nlrb.gov/case or by using the QR code below. Alterna- tively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.