Midwest Division - RMC, LLC, d/b/a Research Medical Center

373 NLRB No. 36 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. Midwest Division—RMC, LLC, d/b/a Research Medi- cal Center and NNOC—Missouri & Kan- sas/NNU, AFL–CIO and Service Employees In- ternational Union HCII, Missouri/Kansas Divi- sion. Cases 14–CA–278811, 14–CA–286571, and 14–CA–287441 March 20, 2024 DECISION AND ORDER BY MEMBERS KAPLAN, PROUTY, AND WILCOX On May 16, 2023, Administrative Law Judge Christine E. Dibble issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Coun- sel, Charging Party Service Employees International Un- ion HCII, Missouri/Kansas Division (SEIU), and Charg- ing Party National Nurses Organizing Committee—Mis- souri & Kansas/NNU, AFL–CIO (NNOC) each filed an- swering briefs, and the Respondent filed reply briefs. The General Counsel also filed exceptions and a supporting brief to which the Respondent filed an answering brief, and SEIU filed exceptions and a supporting brief to which the Respondent filed an answering brief and SEIU filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions1 only to the extent consistent with this Decision and Order.2 As set forth below, we affirm the judge’s findings that that the Respondent violated Section 8(a)(5) and (1) by engaging in a series of unlawful actions towards SEIU prior to the Region’s February 8, 2022 certification of the decertification election results. We also affirm the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by unlawfully refusing to meet and bargain with NNOC’s designated representatives at a grievance meet- ing. However, for the reasons discussed below, we re- verse the judge’s dismissal of the allegation that the Re- spondent violated Section 8(a)(5) and (1) by failing and refusing to furnish responses to an SEIU information re- quest for employee Frederick Haney. Relatedly, while we 1 No party excepted to the judge’s dismissal of the allegations that, prior to the June 14, 2021 ballot count, the Respondent violated Sec. 8(a)(1) by telling employees that the Respondent ceased deducting dues because it believed SEIU was bargaining in bad faith, prohibiting an em- ployee from wearing union buttons, and telling an employee that it would be futile to select SEIU as their bargaining representative. 2 We have amended the remedy and modified the judge’s recom- mended Order consistent with our legal conclusions herein and the Board’s standard remedial language, and in accordance with our decision in Paragon Systems, Inc., 371 NLRB No. 104 (2022). We shall substi- tute a new notice to conform to the Order as modified . adopt the judge’s finding that the Respondent failed to fur- nish requested information concerning employee Kendyl E. Howard, we modify the judge’s rationale for that find- ing. I. The Respondent operates hospitals around Kansas City, Missouri. In September 2010, the Board certified SEIU as the exclusive collective-bargaining representative of the Respondent’s technical employees and service and maintenance employees and NNOC as the exclusive col- lective-bargaining representative of the Respondent’s reg- istered nurses at its Research Medical Center (RMC) hos- pital. The Respondent and SEIU were parties to a collective - bargaining agreement that ultimately expired on February 28, 2021.3 On March 29, a timely decertification petition was filed. On March 31, the Respondent and SEIU reached agreement on a successor collective-bargaining agreement, which was ratified by the SEIU bargaining unit on April 6. Nonetheless, the June 14 ballot count from the decertification election showed that, out of ap- proximately 658 eligible voters, there were 203 votes against SEIU, 171 in favor, and 13 nondeterminative chal- lenged ballots. On February 8, 2022, the Regional Direc- tor for Region 14 overruled SEIU’s objections to the elec- tion and certified the results of the decertification election. Separately, at all relevant times, the Respondent and NNOC were parties to a collective-bargaining agreement setting forth a grievance-and-arbitration procedure providing that, at a step 1 grievance meeting, “[t]he grievant and/or the authorized Union Representative and the [Respondent] may meet to discuss resolution of any grievance at a mutually agreed upon time and date . . . . The Grievant will be represented by the Union Repre- sentative.” The agreement does not define “Union Repre- sentative,” but it does define “Grievant” as “[a] unit mem- ber, group of unit members, or the Union.” II. We agree with the judge, for the reasons she stated, that the Respondent engaged in a series of unlawful actions to- wards SEIU prior to Region 14’s February 8, 2022 certifi- cation of the decertification election results. Specifically, the Respondent violated Section 8(a)(5) and (1) by prem- aturely withdrawing recognition of SEIU and repudiating its collective-bargaining agreement with SEIU,4 not Member Kaplan acknowledges and applies Paragon Systems as Board precedent, although he expressed disagreement there with the Board’s approach and would have adhered to the position the Board adopted in Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020). 3 All dates hereinafter are in 2021 unless otherwise indicated. 4 Although the Respondent admits in its exceptions brief that it with- drew recognition on June 14, which is consistent with its other conduct towards SEIU immediately after the ballot count, we do not disturb, in the absence of exceptions, the judge’s finding that the Respondent un- lawfully withdrew recognition of SEIU on about August 15. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 furnishing SEIU with the information it requested to bar- gain over the wage rates for PRN employees,5 not furnish- ing SEIU with the information it requested to represent employee Leah Torres in her grievance against the Re- spondent, not meeting and conferring with SEIU over the wage rates for PRN employees in contravention of the Re- spondent’s contractual obligation, ceasing to deduct and remit union dues to SEIU in contravention of the Respond- ent’s contractual obligation, and denying SEIU represent- atives’ requests to access the Respondent’s facility to at- tend a new employee orientation and for the Respondent to release SEIU unit employees to attend SEIU steward training in contravention of the Respondent’s contractual obligations.6 We also agree with the judge that the Re- spondent violated Section 8(a)(1) by distributing an email to SEIU unit employees on June 14, also posted on its bul- letin boards, inaccurately notifying them that, as of that date, SEIU had been decertified as their bargaining repre- sentative and asserting that they were “formerly” repre- sented by SEIU.7 In addition, we agree with the judge’s finding, for the reasons she stated, that the Respondent violated Section 8(a)(5) and (1) by unlawfully refusing to meet and bargain with NNOC’s designated representatives at a step 1 griev- ance meeting.8 III. The General Counsel alleges that, on about September 17, the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish SEIU with information re- quested for a grievance it filed over the August 17 dis- charge of employee Frederick Haney. In filing the griev- ance, SEIU requested a copy of Haney’s personnel files and other information pertaining to Haney’s work and payroll records. On October 5, the Respondent notified SEIU that it would not provide SEIU with the requested information because it was no longer recognizing SEIU’s 5 PRN (“pro re nata”) employees work on-call as needed by the Re- spondent instead of full-time. The judge found that SEIU renewed its information request on June 30 and August 4. However, in its June 30 correspondence, SEIU informed the Respondent that it had “not received the requested information for” a separate bargaining unit at another hos- pital, without mentioning the RMC unit. Accordingly, we delete the judge’s finding that the Respondent failed and refused to furnish the in- formation requested by SEIU on June 30. 6 The judge stated that it is unclear if the parties’ collective-bargain- ing agreement contained a provision granting SEIU representatives ac- cess to the Respondent’s facility. We disagree. Art. 35, sec. 1 of the agreement provided SEIU representatives access to the Respondent’s fa- cility to perform various representational duties, and art. 35, sec. 5 ex- plicitly provided that “[a]t the conclusion of [the Respondent’s] orienta- tion for new employees, a Union representative or steward on non-work- ing time may address employees who wish to remain on unpaid time for a brief informational presentation.” 7 We agree with the judge that employees reading the posted email would reasonably believe that SEIU no longer represented them, thereby restraining them from seeking advice, assistance, or counsel from SEIU. See Miami Systems Corp., 320 NLRB 71, 71 fn. 4 (1995), affd. in rele- vant part 111 F.3d 1284 (6th Cir. 1997). In finding the violation, the judge noted that employee Ernest Banks testified that, as a result of both rights under the parties’ collective-bargaining agreement following the June 14 decertification vote. The Respond- ent also asserted that, even if the collective-bargaining agreement were in effect, it would not have provided the information because SEIU’s grievance was untimely. The Respondent cited article 8, section 3 of the parties’ collec- tive-bargaining agreement that required discharge griev- ances to be filed within 10 calendar days of the date the employee is informed of the discharge. On October 7, SEIU renewed its information request because the election results had not yet been certified. The Respondent did not reply. Similarly, on October 25, SEIU filed a grievance over the discharge of employee Kendyl E. Howard. SEIU as- serted in the grievance that Howard was discharged on Oc- tober 22. As with Haney, SEIU requested Howard’s work and payroll records, as well as other information relevant to its representation of Howard. On November 2, the Re- spondent reiterated to SEIU that it would not honor SEIU’s information request because of the decertification vote and, as with Haney’s grievance, Howard’s grievance was untimely and would have been denied in any event. Later that day, SEIU renewed its information request but received no reply.9 The judge found that the Respondent violated Section 8(a)(5) and (1) with respect to the Respondent’s failure and refusal to furnish SEIU with the requested information pertaining to Howard’s grievance, but not Haney’s. The judge properly recognized that the Respondent continued to have a bargaining obligation when SEIU made both in- formation requests, which was prior to the February 8, 2022 certification of the decertification election results, and that SEIU requested presumptively relevant infor- mation. However, the judge found merit in the Respond- ent’s timeliness defense concerning Haney’s grievance because the grievance was purportedly filed a month after the posted email and his interactions with management after June 14, he no longer believed that he was represented by SEIU. However, we do not rely on this testimony because the standard for finding an 8(a)(1) violation is an objective one. 8 The judge correctly recognized that the Respondent’s outright re- fusal to allow a second NNOC representative to attend a step 1 grievance meeting unlawfully denied NNOC unit employees their basic statutory right to be represented by representatives of their own choosing. See Native Textiles, 246 NLRB 228, 229 (1979). Moreover, the judge properly rejected the Respondent’s argument that the plain language of the parties’ agreement permits NNOC to have only one representative attend. After all, the agreement provides that both the grievant and the NNOC representative may meet with the Respondent for the step 1 griev- ance meeting and also defines the term “Grievant” to include not just a single unit member but also a “group of unit members[] or the Union.” Nothing in this language suggests that NNOC was contractually limited to having only one representative attend a step 1 grievance meeting, es- pecially in this case where NNOC itself was named as a grievant. 9 Because the complaint does not allege that SEIU renewed its infor- mation request on November 2, we do not pass on whether the Respond- ent unlawfully failed and refused to furnish SEIU with information it re- quested on that date. MIDWEST DIVISION—RMC, LLC, D/B/A RESEARCH MEDICAL CENTER 3 his discharge, in contravention of the parties’ contractual requirement for discharge grievances to be filed within 10 calendar days. We reverse the judge’s dismissal of the allegation per- taining to the information request for Haney’s grievance. The judge should have ended her inquiry after correctly determining that the requested information was presump- tively relevant. Instead, she exceeded her authority by im- properly deciding the procedural timeliness issue, which should have been reserved for an arbitrator. See Wilkes- Barre Hospital Co. LLC d/b/a Wilkes-Barre General Hos- pital, 371 NLRB No. 55, slip op. at 12 (2022) (finding in- formation request valid even though potential procedural defects have to be decided by an arbitrator); Postal Ser- vice, 303 NLRB 502, 508 (1991) (finding information re- quest valid even though the evidence appears to establish grievance would be time-barred because timeliness of grievance is for an arbitrator to decide); see also South- eastern Brush Co., 306 NLRB 884, 884 fn. 1 (1992) (ob- serving that the Board does not consider the merits of, or potential defenses to, a grievance when passing on an in- formation request allegation). Accordingly, we find that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish SEIU with the requested infor- mation pertaining to Haney’s discharge. For the same reason, although we affirm the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish SEIU with the re- quested information pertaining to Howard’s grievance, we do so only because the Respondent had a continued bar- gaining obligation at the time SEIU made its request and it requested presumptively relevant information, without relying on the judge’s determination that the underlying grievance was timely under the parties’ collective-bar- gaining agreement. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 5. “5. By failing and refusing to fully furnish relevant in- formation requested by SEIU on or about June 3, August 4, September 17, October 7, and October 25, the Respond- ent has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and (5) of the Act.” AMENDED REMEDY Having found that the Respondent engaged in certain un- fair labor practices, we shall order the following remedies, in addition to those recommended by the judge, sought by the 10 Member Kaplan acknowledges that current Board precedent lends support for the bar on employer recoupment of money from employees owed for past dues; however, he would be willing to reconsider the dues- recoupment bar in a future appropriate case. 11 In addition, we note that no party has raised arguments in support of exceptions to any of the affirmative notification remedies General Counsel in her exceptions and SEIU in its cross-ex- ceptions. First, as requested by the General Counsel, we shall sub- stitute a new notice that mirrors the provisions in the Order and reflects the Respondent’s affirmative obligations un- der the Board’s Order. Second, we agree with SEIU that the Order should af- firmatively require the Respondent to pay interest on the dues it owes. Having affirmed the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by ceasing to deduct and remit dues to SEIU as required by the parties’ collective-bargaining agreement until the certification of the decertification election results on February 8, 2022, we shall order the Respondent to reimburse SEIU for any dues that it failed to deduct from wages and remit them to SEIU on behalf of employees who had executed valid dues- checkoff authorizations, with interest at the rate pre- scribed in New Horizons, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010), and without recouping the money owed for past dues from those employees. See Ka- uai Veterans Express Co., 369 NLRB No. 59, slip op. at 2 (2020); Alamo Rent-A-Car, 362 NLRB 1091, 1091 fn. 1 (2015), rev. denied sub nom. Enterprise Leasing Com- pany of Florida v. NLRB, 831 F.3d 534 (D.C. Cir. 2016).10 In order to avoid a double recovery by SEIU, the reim- bursement requirement will be offset by the amount of any dues SEIU collected over the compliance period from em- ployees covered by the dues payment order. See Alamo Rent-A-Car, 362 NLRB at 1091 fn. 1 (citing A.W. Farrell & Son, Inc., 361 NLRB 1487, 1487 fn. 3 (2014)). Third, we agree with SEIU that the Order should in- clude an affirmative obligation for the Respondent to re- scind its unlawful withdrawal of recognition and to give full force and effect to the parties’ collective-bargaining agreement until the certification of the decertification election results on February 8, 2022. Although the judge provided for the Respondent to affirmatively notify em- ployees that SEIU was not officially decertified and con- tinued to represent them after the Respondent withdrew recognition, restoration of the status quo also requires the Respondent to affirmatively give full force and effect to the parties’ collective-bargaining agreement until Febru- ary 8, 2022. The Respondent’s adherence to the agree- ment will facilitate SEIU’s enforcement of the Respond- ent’s contractual obligations prior to February 8, 2022, in- cluding the processing of the grievances filed after the Re- spondent’s unlawful withdrawal of recognition but prior to the certification of the decertification election results.11 recommended by the judge. Accordingly, we have included those rem- edies in our Order. Member Kaplan observes that the Board has full discretion to reach remedial matters. In the exercise of that discretion, he would not order the affirmative notification remedies recommended by the judge and adopted by his colleagues because he finds that the Board’s standard remedies are sufficient in this case. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 However, we do not grant SEIU’s request for a notice- reading remedy. We find that the facts of this case do not warrant a notice reading under extant Board precedent and that the Board’s standard remedies are sufficient to effec- tuate the policies of the Act. Moreover, under the circum- stances here, a notice reading could create confusion among the employees formerly represented by SEIU as the February 8, 2022 decertification occurred almost 2 years ago.12 ORDER The National Labor Relations Board orders that the Re- spondent, Midwest Division—RMC, LLC, d/b/a Research Medical Center, Kansas City, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Withdrawing recognition from Service Employees International Union HCII, Missouri/Kansas Division (SEIU) and failing and refusing to bargain with SEIU as the exclusive collective-bargaining representative of the SEIU unit employees prior to the certification of the de- certification election results. (b) Refusing to bargain collectively with SEIU by fail- ing and refusing to furnish it with requested information that is relevant and necessary to SEIU’s performance of its functions as the collective-bargaining representative of the SEIU unit employees. (c) Failing and refusing to continue in effect all the terms of its collective-bargaining agreement with SEIU by not meeting and conferring with SEIU over PRN pay prior to the certification of the decertification election results. (d) Failing and refusing to continue in effect all the terms of its collective-bargaining agreement with SEIU by ceasing to deduct and remit union dues to SEIU from the date of the withdrawal of recognition until February 8, 2022. (e) Failing and refusing to continue in effect all the terms of its collective-bargaining agreement with SEIU by denying SEIU representatives’ request to access the Re- spondent’s facility prior to the certification of the decerti- fication election results. 12 Contrary to his colleagues, Member Prouty would order the notice reading requested by SEIU and would also require that the notice be dis- tributed to employees at the notice reading. See CP Anchorage Hotel 2 d/b/a Hilton Anchorage, 371 NLRB No. 151, slip op. at 9–15 (2022) (Member Prouty, concurring) (urging the Board to adopt a reading of the notice aloud and distribution to employees at a group meeting as a standard remedy for unfair labor practices because “[h]aving the no- tice to employees read aloud to them in a group meeting, with a copy in hand to follow along if they choose, is a superior means of disseminating and amplifying the Board's message to maximize the extent to which em- ployees hear and comprehend it”). Because the Respondent’s unfair la- bor practices affected the entire SEIU unit, a notice reading would sub- stantially promote employee awareness about their statutory rights. The Respondent engaged in its unlawful conduct widely and openly, includ- ing by disseminating a flyer to all SEIU unit employees in June incor- rectly informing them that they were no longer represented by SEIU and that the parties’ collective-bargaining agreement was no longer in effect. (f) Failing and refusing to continue in effect all the terms of its collective-bargaining agreement with SEIU by denying SEIU representatives’ request to release SEIU unit employees to attend SEIU steward training prior to the certification of the decertification election results. (e) Coercing employees by distributing flyers inaccu- rately notifying them that SEIU had been decertified and no longer represented them prior to the certification of the decertification election results. (f) Refusing to bargain collectively with the National Nurses Organizing Committee (NNOC) by refusing to meet and bargain with NNOC’s designated representa- tives for processing grievances. (g) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind its withdrawal of recognition of SEIU as the exclusive collective-bargaining representative of the SEIU unit employees prior to February 8, 2022. (b) Give full force and effect to its collective-bargain- ing agreement with SEIU from the date the Respondent unlawfully withdrew recognition until February 8, 2022. (c) Within 14 days from the date of the Board’s Order, notify employees that SEIU was not officially decertified and continued to represent them until February 8, 2022. (d) Furnish to SEIU in a timely manner the information it requested on June 3, 2021, August 4, 2021, September 17, 2021, October 7, 2021, and October 25, 2021. (e) Within 14 days from the date of the Board’s Order, notify SEIU that it will not refuse to meet and confer over PRN pay as required by the parties’ collective-bargaining agreement until February 8, 2022. (f) Reimburse SEIU for all dues it failed to deduct and remit to SEIU from the date of its withdrawal of recogni- tion until February 8, 2022, with interest in the manner set forth in the amended remedy section of this decision. (g) Within 14 days from the date of the Board’s Order, notify SEIU that it will not deny SEIU representatives’ re- quest to access the Respondent’s facility as required by the A notice reading would help ensure that SEIU unit employees understand that the Respondent’s withdrawal of recognition of SEIU and its repudi- ation of their collective-bargaining agreement occurred several months prematurely. It seems unlikely that a notice posting would be nearly as effective, even if it were read by most employees, in correcting the record for the entire 650-employee unit about a matter so fundamental to their working conditions. Moreover, Member Prouty disagrees with his col- leagues’ suggestion that a notice reading would create confusion for the Respondent’s employees. There is no reason that a notice reading would create any more confusion than a notice posting would in alerting SEIU unit employees that the Respondent had unlawfully withdrawn its recog- nition of SEIU and repudiated the parties’ collective-bargaining agree- ment before February 8, 2022. At the very least, the notice reading would provide employees an opportunity to seek clarification about any questions they have as to how the Respondent violated the Act and what its bargaining obligations were and continue to be, in a way that a posted notice cannot. MIDWEST DIVISION—RMC, LLC, D/B/A RESEARCH MEDICAL CENTER 5 parties’ collective-bargaining agreement until February 8, 2022. (h) Within 14 days from the date of the Board’s Order, notify SEIU that it will not deny SEIU representatives’ re- quest to release SEIU unit employees to attend SEIU stew- ard training as required by the parties’ collective-bargain- ing agreement until February 8, 2022. (i) Within 14 days from the date of the Board’s Order, notify SEIU that it will not coerce employees by telling them that SEIU had been decertified and no longer repre- sented them prior to the official certification of the decer- tification election results. (j) Within 14 days from the date of the Board’s Order, notify NNOC that it will not refuse to meet and bargain with the NNOC’s designated representatives for pro- cessing grievances. (k) On request, meet and bargain with NNOC’s desig- nated representatives for processing grievances. (l) Post at its facility in Kansas City, Missouri, copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to en- sure 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 proceed- ings, 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 June 14, 2021. (m) Within 21 days after service by the Region, file with the Regional Director for Region 14 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. March 20, 2024 13 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 pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the store reopens and a substan- tial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pan- demic, the Respondent is communicating with its employees by elec- tronic means, the notice must also be posted by such electronic means ______________________________________ Marvin E. Kaplan, Member ______________________________________ David M. Prouty, Member ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 ac- tivities. WE WILL NOT withdraw recognition from Service Em- ployees International Union HCII, Missouri/Kansas Divi- sion (SEIU) and fail and refuse to bargain with SEIU as the exclusive collective-bargaining representative of the SEIU unit employees prior to the certification of the de- certification election results. WE WILL NOT refuse to bargain collectively with SEIU by failing and refusing to furnish it with requested infor- mation that is relevant and necessary to its performance of its functions as the collective-bargaining representative of the SEIU unit employees. WE WILL NOT fail and refuse to continue in effect all the terms of our collective-bargaining agreement with SEIU by not meeting and conferring with SEIU over PRN pay prior to the certification of the decertification election re- sults. within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical post- ing 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 judgment of a United States court of appeals, the words in the notice reading “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 Rela- tions Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 WE WILL NOT fail and refuse to continue in effect all the terms of our collective-bargaining agreement with SEIU by ceasing to deduct and remit union dues to SEIU from the date of the withdrawal of recognition until February 8, 2022. WE WILL NOT fail and refuse to continue in effect all the terms of our collective-bargaining agreement with SEIU by denying SEIU representatives’ request to access our fa- cility prior to the certification of the decertification elec- tion results. WE WILL NOT fail and refuse to continue in effect all the terms of our collective-bargaining agreement with SEIU by denying SEIU representatives’ request to release SEIU unit employees to attend SEIU steward training prior to the certification of the decertification election results. WE WILL NOT coerce you by distributing flyers inaccu- rately notifying you that SEIU had been decertified and no longer represented you prior to the certification of the de- certification election results. WE WILL NOT refuse to bargain collectively with the Na- tional Nurses Organizing Committee (NNOC) by refusing to meet and bargain with the NNOC’s designated repre- sentatives for processing grievances. 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 our withdrawal of recognition of SEIU as the exclusive collective-bargaining representative of the SEIU unit employees prior to February 8, 2022. WE WILL give full force and effect to our collective-bar- gaining agreement with SEIU from the date we unlawfully withdrew recognition until February 8, 2022. WE WILL, within 14 days from the date of the Board’s Order, notify employees that SEIU was not officially de- certified and continued to represent them until February 8, 2022. WE WILL furnish to SEIU in a timely manner the infor- mation it requested on June 3, 2021, August 4, 2021, Sep- tember 17, 2021, October 7, 2021, and October 25, 2021. WE WILL, within 14 days from the date of the Board’s Order, notify SEIU that we will not refuse to meet and confer over PRN pay as required by our collective-bar- gaining agreement with SEIU until February 8, 2022. WE WILL reimburse SEIU for all dues it failed to deduct and remit to SEIU from the date of its withdrawal of recognition until February 8, 2022, plus interest. WE WILL, within 14 days from the date of the Board’s Order, notify SEIU that we will not deny SEIU represent- atives’ request to access our facility as required by our col- lective-bargaining agreement with SEIU until February 8, 2022. WE WILL, within 14 days from the date of the Board’s Order, notify SEIU that we will not deny SEIU represent- atives’ request to release SEIU unit employees to attend 1 All dates are in 2021, unless otherwise indicated. SEIU steward training as required by our collective-bar- gaining agreement with SEIU until February 8, 2022. WE WILL, within 14 days from the date of the Board’s Order, notify SEIU that we will not coerce employees by telling them that SEIU had been decertified and no longer represented them prior to the official certification of the decertification election results. WE WILL, within 14 days from the date of the Board’s Order, notify NNOC that we will not refuse to meet and bargain with its designated representatives for processing grievances. WE WILL, on request, meet and bargain with NNOC’s designated representatives for processing grievances. MIDWEST DIVISION—RMC, LLC, D/B/A RE- SEARCH MEDICAL CENTER The Board’s decision can be found at http://www.nlrb.gov/case/14-CA-287441 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., Washington, D.C. 20570, or by calling (202) 273–1940. Rebecca Proctor, Esq., for the General Counsel. Patricia G. Griffith, Esq. and Thomas H. Keim, Jr., Esq., for the Respondent. Amara Blades, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE CHRISTINE E. DIBBLE, Administrative Law Judge. This case was tried, by agreement of the parties, using Zoom technology on May 10 and 11, 2022.1 National Nurses Organizing Commit- tee (NNOC)—Missouri & Kansas/National Nurses Union (NNU), AFL–CIO (the Charging Party) filed the charge in Case 14–CA–287441 on December 9. The charge in Case 14–CA– 278811 was filed by Service Employees International Union, HCH, Missouri/Kansas Division (SEIU) on June 22. The first amended charge in Case 14–CA–278811 was filed by SEIU on August 30, and the second amended charge was filed on Febru- ary 23, 2022. On November 19, SEIU filed a charge in Case 14– CA–286571. The first amended charge in Case 14–CA–286571 was filed by SEIU on February 15, 2022, and the second amended charge was filed on April 11, 2022. On March 22, 2022, the National Labor Relations Board’s (NLRB/the Board) Region 14 (the Region/General Counsel) issued Order consoli- dating cases, consolidated complaint and notice of hearing. MIDWEST DIVISION—RMC, LLC, D/B/A RESEARCH MEDICAL CENTER 7 Midwest Division—RMC, LLC, d/b/a Research Medical Center (the Respondent) filed a timely answer.2 The consolidated com- plaint alleges that the Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act (NLRA/the Act) when (1) about August 15, the Respondent withdrew recognition from the SEIU as the collective bargaining representative of the Re- spondent’s employees’ bargaining unit (2) the Respondent re- fused or failed on about June 3, June 30, and August 4, to pro- duce to the SEIU the requested information as described at par- agraph 9(a) of the complaint; (3) about September 17 and Octo- ber 7, the Respondent refused or failed to provide SEIU the in- formation it requested as described at paragraph 9(b) of the com- plaint; (4) about October 7 and October 22, the Respondent failed or refused to provide the SEIU with the requested infor- mation as described at paragraph 9(c) of the complaint; (5) on October 25, the Respondent failed or refused to provide the SEIU with the requested information as described at paragraph 9(d) of the complaint; (6) since June 3, the Respondent failed to meet and confer with the SEIU over PRN3 pay as required by the col- lective bargaining agreement (CBA); (7) on June 12, the Re- spondent ceased deducting from employees’ pay and remitting union dues to the SEIU as required by the CBA; (8) since July 26, the Respondent denied the SEIU’s representatives access to the Respondent’s facility as required by the CBA; (9) since July 28, the Respondent has denied the SEIU’s request for steward training time as required by the CBA; (10) about March 4, the Respondent coerced employees in derogation of the SEIU; (11) in April or May 2021, the Respondent told employees that it would be futile to select the SEIU as their bargaining representa- tive; (12) April or May 2021, the Respondent prohibited employ- ees from wearing SEIU provided union buttons while permitting employees to wear other non-union insignia; (13) after June 14, the Respondent coerced employees by telling them the SEIU had been decertified and they were no longer represented by the Un- ion; and (14) on or about September 17, the Respondent failed to allow a designated representative of the NNOC union to attend a grievance meeting. On the entire record,4 including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, the Respondent, and the Charging Party, I make the following, FINDINGS OF FACT I. JURISDICTION The Respondent, a State of Delaware limited liability corpo- ration, has been engaged in operating hospitals with inpatient and outpatient medical care. The Respondent has an office and places of business in Kansas City, Missouri, including at 2316 E. Meyer Blvd., Kansas City, Missouri 64132; 6601 Rockhill Road, Kansas City, Missouri; and 2323 E. 63rd Street, Kansas City, Missouri 64130. During the 12-month period ending March 31, 2022, the Respondent derived gross revenues in excess of $250,000, and for the same period, it purchased and received at its Kansas City, Missouri facilities goods valued in excess of $50,000 directly from points outside the State of Missouri. I find, and the Respondent admits, that at all material times it has been an employer engaged in commerce within the meaning of 2 RMC is shorthand for Research Medical Center. 3 PRN stands for pro re nata, which means “as needed staffing.” 4 Abbreviations used in this decision are as follows: “Tr.” for tran- script; “GC Exh.” for the General Counsel’s exhibit; “R. Exh.” for the Section 2(2), (6), and (7) of the Act and has been a health care institution within the meaning of Section 2(14) of the Act. I find that at all material times the NNOC and the SEIU have been labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Roles of Management and Union Officials The Respondent, a State of Delaware limited liability com- pany, operates hospitals and, or medical facilities in Kansas City, Missouri providing inpatient and, or outpatient care. Since No- vember 1, 2020, Kevin Meyers (Meyers) has been employed as the director of labor relations for the Respondent’s Mid-America Division. In this role, Meyers is responsible for overseeing the labor relations function at the Respondent’s six Kansas City hos- pitals and three New Orleans hospitals. His responsibilities in- clude, among other duties, being the point person for collective bargaining and wage and hours issues. Meyers also was the pri- mary management contact for SEIU and its representative Brenda Davis (Davis) as well as NNOC and its representative Julie Perry (Perry). Additionally, Meyers advises human re- sources on employee relations matters. Beginning in April 2021, Weston Smith (Smith) was the Respondent’s human resources business partner. In this capacity, Smith assisted with grievance investigations and attended step 1 grievance meetings, among other duties. Since October 2021, Smith has served as the Re- spondent’s human resources manager. Celeste Clelland (Clel- land) has held the position of director of women’s services since at least September 2021. In April 2021, Terrence Engling (Engling) was and continues to be the Respondent’s administra- tive director of support services. Since September 14, 2010, the NNOC has been the exclusive bargaining representative of the following unit, All full-time, part-time, and per diem registered Nurses, but ex- cluding confidential employees, physicians, nurse and/or clini- cal educators or coordinators, clinical nurse specialists, clinical coordinators, case managers/utilization review and/or dis- charge planners, nurse practitioners, accounting or auditing RNs, infection control/employee health nurses, employees of outside registries and other agencies supplying labor to the Re- spondent, already represented employees, permanent charge nurses, managerial employees, guards and supervisors within the meaning of the Act and all other employees. (GC Exh. 1.) Since September 13, 2010, the SEIU has been the exclusive bargaining representative of the following unit, All full-time and regular part-time (including eligible per diem) employees employed by Respondent at its facilities located at 2316 E. Meyer Blvd., Kansas City, Missouri and 6601 Rockhill Road, Kansas City, Missouri, in one or more of the following combined units: 1) technical employees and 2) service and maintenance employees, but excluding skilled maintenance employees, managers, guards and supervisors, as defined by the Act, confidential employees, physicians, professional em- ployees, nurse and/or clinical educators or coordinators, clini- cal nurse specialists, clinical coordinators, case manager/utili- zation review and/or discharge planners, nurse practitioners, Respondent’s exhibit; “CP Exh.” for the Charging Party’s exhibit; “Jt. Exh.” for joint exhibit; “GC Br.” for the General Counsel’s brief; “R. Br.” for the Respondent’s brief; and “CP Br.” for the Charging Party’s brief. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 accounting or auditing RNs, infection control/employee health nurses, risk management/performance improvement and/or quality assurance or quality management nurses, business of- fice clerical employees, employees of outside registries and other agencies supplying labor to the Respondent, already rep- resented employees, and per diem employees who do not oth- erwise qualify as regular employees according to the NLRB. (GC Exh. 1) The NNOC’s structure at RMC is comprised of a nurse representative (also referred to as steward), chief nurse representative, facility bargaining council, and membership chairperson. Perry, who has been the NNOC’s labor representa- tive since 2009, oversees the entire structure, among her other duties. The nurse representatives generally consult with Perry before filing a formal grievance. Lisa Broeker (Broeker) is em- ployed by the Respondent as a registered nurse (RN) in the labor and delivery unit. She is also a nurse representative and member of the Professional Practice Committee while occasionally sit- ting on the staffing committee on behalf of the NNOC and, or the NNU. (Tr. 30.) Davis is the lead organizer for SEIU Healthcare. She is responsible for leading the team of organizers in SEIU’s Kansas City office and some of the local hospitals and nursing homes. Davis also sat as second chair “to the bargaining team.” (Tr. 118.) B. Stipulated Facts During the hearing, the following joint stipulations of fact of- fered by the General Counsel and Counsel for Respondent were accepted into evidence: The Respondent and SEIU had a collective bargaining agree- ment effective September 15, 2017 through May 31, 2020. On May 14, 2020, the Respondent and SEIU began bargaining for a successor agreement. The parties extended the 2017 collective bargaining agreement several times before allowing it to expire on February 28. The Respondent ceased the withholding and remittance of bargaining unit employees’ SEIU dues following the collective bargaining agreement’s expiration. A decertifica- tion petition seeking to decertify the SEIU was filed with the NLRB on March 29. On March 31, the Respondent and SEIU reached agreement on a new collective bargaining agreement which was ratified by the SEIU bargaining unit on April 6. The Respondent began withholding and remitting bargaining unit employee SEIU dues following ratification of the successor col- lective bargaining agreement. On June 14, a ballot count in the decertification election was held via videoconference. The tally of ballots showed 387 valid votes cast, 203 ballots cast against SEIU, 171 ballots cast for SEIU, and 13 challenged ballots. Fol- lowing the ballot count, the Respondent again ceased the with- holding and remittance of bargaining employee SEIU dues. On February 8, 2022, the results of the decertification election were certified. C. Section 8(a)(1) and (5) and 8(d) of the NLRA In paragraph 5, the complaint alleges that the Respondent’s actions violated Section 8(a)(1) of the Act. 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 guaran- teed in Section 7 include the right “to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” See Brighton Retail, Inc., 354 NLRB 441, 441 (2009). By conduct described in paragraphs 7, 9, 10, and 11 of the complaint, the General Counsel alleges that the Respondent vio- lated Section 8(a)(1) and (5) of the Act. Section 8(a)(5) of the Act prohibits an employer from refusing to “bargain collectively with the representatives of his employees, subject to the provi- sions of section 9(a).” Section 8(d) of the Act mandates that the parties bargain col- lectively with the “mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, of the negotiation of an agree- ment or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if re- quested by either party, but such obligation does not compel ei- ther part to agree to a proposal or require the making of a con- cession.” D. August 15, Withdrawal of Union Recognition The General Counsel argues that the Respondent unlawfully withdrew recognition of the SEIU and implemented several uni- lateral changes without consulting the SEIU before results of the decertification vote were certified. In support of its position that it did not violate the Act by withdrawing recognition prior to the official vote certification, the Respondent relies on a Fifth Cir- cuit decision in NLRB v. Arkema, Inc., 710 F.3d 308 (5th Cir. 2013). The Respondent also argues that the General Counsel’s reliance on W.A. Krueger, 299 NLRB 914 (1990) is misplaced because it is contrary to the Board’s holding in Johnson Con- trols, 368 NLRB No. 20 (2019), and the Fifth Circuit has rejected it. Arkema, Inc., 710 F.3d at 320. (1) Facts The SEIU and the Respondent were parties to a CBA that ran from September 15, 2017 through May 31, 2020. On May 14, 2020, the parties began negotiating a successor agreement. Dur- ing this negotiating period, they extended the 2017 CBA several times until finally allowing it to expire on February 28. A peti- tion seeking to decertify the SEIU was filed with the NLRB on March 29. On March 31, the Respondent and SEIU reached agreement on a new CBA which was ratified by the SEIU bar- gaining unit on April 6. A ballot count in the decertification election was held on June 14. On August 15, Meyers emailed SEIU representatives that the Respondent would not honor their continued requests to, among others, be included in new hire ori- entation, or meet with management over wages and union leave. He wrote that all those requests, relate to rights rooted in the collective bargaining agreement between the Hospital and SEIU that was repudiated by for- merly represented colleagues in the recent decertification elec- tion. The formerly represented colleagues at Research have spoken, and we’re going to listen. To be clear, the Hospital will not be recognizing these rights with respect to Research Medical Cen- ter based on the decertification vote. (Jt. Exh. 16.) On February 8, 2022, the NLRB certified the re- sults of the decertification election. (2) Analysis The evidence is undisputed that the election results were not certified until February 8, 2022, but the Respondent withdrew recognition from the SEIU on about August 15, prior to the MIDWEST DIVISION—RMC, LLC, D/B/A RESEARCH MEDICAL CENTER 9 official certification of the election results. Therefore, the Gen- eral Counsel argues, the Respondent is in violation of the Act and any acts that flow from this violation are likewise illegal. The General Counsel relies on the standard set out in Krueger to establish that the Respondent is mandated to “continue recogni- tion of [the] [U]nion until the results of [the] decertification elec- tion are certified.” (GC Br. 21.) The Respondent argues that the General Counsel’s reliance on Krueger is inapposite because the case’s reasoning is “highly suspect” and contrary to the Board’s decision in Johnson Controls, 368 NLRB No. 20 (July 3, 2019). (R. Br. 11.) The Respondent also relies on Arkema, Inc., where the Fifth Circuit writes that an employer “does not automatically violate the NLRA, but merely proceeds at its own risk, when en- gaging in unilateral activities before a decertification election’s results are formally validated.” Arkema, Inc., 710 F.3d at 320. I do not find the Respondent’s arguments persuasive. In Krue- ger a decertification petition was filed a little less than 3 months prior to the contract expiration date. About a month later an elec- tion was held which revealed that the union had lost majority support. Before the election results were certified and prior to expiration of the parties’ CBA, the employer implemented a number of unilateral changes. In Krueger, the Board found that an employer cannot make unilateral changes in employees’ terms and conditions of employment until the decertification election results are formally certified and the existing contract has expired. The Respondent urges me to ignore Board law and follow the findings of the Fifth Circuit, which contradicts Krue- ger. Despite the Fifth Circuit’s and the Respondent’s opinions of the Board’s reasoning in Krueger as “highly suspect”, it is not for me to decide that the Board’s opinion is wrong because a district court disagrees with NLRB case law. I am bound to fol- low current Board law unless overturned by the Supreme Court or changed by the Board. Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984); Iowa Beef Packers, 144 NLRB 615, 616 (1963); Path- mark Stores, 342 NLRB 378 fn. 1 (2004). Krueger remains Board law. I also reject the Respondent’s argument that Krueger is “contrary to the Board’s decision in Johnson Controls.” In Johnson Controls, the parties began negotiations for a successor agreement about 2 weeks prior to the expiration of the CBA that was in effect. A day after contract negotiations began, the em- ployer was presented with a “union-disaffection petition” show- ing that slightly more than 50 percent of the employees sup- ported decertification of the union. Consequently, the employer informed the union that at the expiration of the contract it would no longer recognize the union as the employees’ bargaining rep- resentative when the CBA expired in about 2 weeks. The em- ployer also told the union that it had received a petition showing the union no longer enjoyed majority support, and it canceled the previously scheduled bargaining session. The union demanded proof of the loss of employee support and demanded the em- ployer return to contract negotiations. The employer refused both requests. Thereafter, the union started soliciting authoriza- tions cards from bargaining unit members. A few days before the expiration of the contract, the employer told the union that it would withdraw recognition at the end of the contract because it had not received evidence from the Union that it retained major- ity support. Thereafter, the employer withdrew recognition and informed employees of improvements it was making to the em- ployees’ terms and conditions of employment. The union filed an unfair labor practice charge, and a hearing was held on whether, based on the union’s evidence, withdrawal of recogni- tion was lawful. The Board upheld the administrative law judge’s dismissal of the complaint. In Johnson Controls, the Board frames the issue as, what happens when employees—with no improper influence or assistance from management--provide their employer with evidence that at least 50 percent of the bargaining unit no longer wishes to be represented by their union, the employer tells the union that it will withdraw recognition when the par- ties’ labor contract expires, and the union subsequently claims that it has reacquired majority status before the employer actu- ally withdraws recognition. Johnson Controls, 368 NLRB No. 20, slip op. at 1. Like Krueger, the Board in Johnson Controls acknowledged long established precedent that under an “anticipatory withdrawal” of recognition doctrine, “an employer that receives evidence, within a reasona- ble period of time before its existing [CBA] expires, that the un- ion representing its employees no longer enjoys majority support may give notice that it will withdraw recognition from the union when the CBA expires, the employer may also suspend bargain- ing or refuse to bargain for a successor contract.” Johnson Con- trols, 368 NLRB No. 20, slip op. at 2. In Johnson Controls the Board did, however, modify the “anticipatory withdrawal of recognition” doctrine and hold that (1) the “reasonable time” be- fore contract expiration within which anticipatory withdrawal may be effected is defined as no more than 90 days before the contract expires; and (2) “if an incumbent union wishes to at- tempt to re-establish its majority status following an anticipatory withdrawal of recognition, it must file an election petition within 45 days from the date the employer announces its anticipatory withdrawal.” Johnson Controls, 368 NLRB No. 20, slip op. at 2 (emphasis added). Unlike Krueger, the Board in Johnson Con- trols allows an employer that makes a lawful anticipatory with- drawal of recognition to do so “at it peril” but only after the con- tract expires. See also, Virginia Concrete Corp., Inc., 338 NLRB 1182, 1187 fn. 5 (2003) (observing that the Board’s “act at your peril” rule does not apply to decertification proceedings, with an employer violating the Act if it makes unilateral changes without first bargaining with the union following a decertification elec- tion but before the issuance of the official certification of re- sults.) Consistent with Krueger, however, the Board in Johnson Controls emphasizes throughout the decision that an employer must continue to honor the terms of the existing contract until it expires. The Board in Johnson Controls writes that “under the ‘contract bar’ doctrine, a union is entitled to a conclusive pre- sumption of majority status during the term of a collective bar- gaining agreement, up to 3 years.” Johnson Controls, 368 NLRB No. 20, slip op. at 5. Moreover, it is important to note that the Board in Johnson Controls did not overrule Krueger even though it had the authority and opportunity to do so. In the matter at hand, the evidence is clear that the Respondent withdrew recognition of the Union on about August 15, more than 2 years before expiration of the agreement which ran from April 6, 2021 through May 31, 2023. (Jt. Exh. 7.) Consequently, the Respondent fails in its statutory obligation under the standard set forth in Johnson Controls because it not only provided notice of its intent to withdraw recognition but actually withdrew recog- nition more than 90 days before expiration of the contract. More- over, the Respondent refused to honor any of the terms of the contract before it had expired. Therefore, the Respondent effec- tuated an actual withdrawal of union recognition before the ex- piration of the current agreement in violation of the Act. Accordingly, I find that the Respondent violated the Act as DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 charged in the complaint. E. Request for Information The General Counsel alleges that the Respondent has failed and refused to provide the Union with information that is rele- vant and necessary to its role as the exclusive collective-bargain- ing representative for the unit. The General Counsel notes that the requests for information occurred within the context of the decertification petition, election, and vote count. Despite the de- certification election results, according to the General Counsel, the Respondent was “obligated to recognize the SEIU as its em- ployees’ bargaining representative and continue honoring the CBA until the vote count was certified.” (GC Br. 28.) The Gen- eral Counsel argues, therefore, the Respondent should have com- plied with the Union’s information requests. In its post-hearing brief, the Respondent did not specifically address the requests for information made on or about June 3, June 30, and August 4. However, the Respondent argues that it is not obligated to re- spond to requests made on or about September 17, October 7, and October 25, because it had lawfully withdrawn recognition of the Union. Further, the Respondent insists that two of the in- formation requests relate to untimely grievances filed by SEIU, thereby, negating any obligation it may have had to comply with the requests for information. (R. Br. 18.) (1) Facts On June 3, Lenny Jones (Jones), vice president SEIU Healthcare, sent Meyers an email requesting to meet regarding flat rate PRN wages. In preparation for the meeting, the SEIU requested the Respondent provide the following information, current PRN flat rate for all job classifications at both Hospitals as well as information for each PRN employee, including name, job classification, department, address, phone, date of hire, and number of regularly scheduled hours worked each pay period for the most recent 13 pay periods. (Jt. Exh. 9–3.) Since Jones did not get a response to his June 3 request, he sent another one to Meyers on June 30, noting that he had not received a response and asked that Meyers comply with the information request no later than July 2. In an email dated July 13, Meyers responded, “Jay [Blumhorst] is working on doc- uments to you this week.” (Jt. Exh. 9–2.)5 On August 3, Davis emailed Meyers that the SEIU “never received” the requested information and asked him to send it “as soon as possible.” (Jt. Exh. 9-1, 9–2.) On the same day, Meyers replied, “I received the information from HR the other day and am in the process of re- viewing it. I’ll get it to you soon, likely tomorrow when I grab a break in bargaining with NNU.” Id. The record is devoid of ev- idence that the information was ever produced. On September 17, the SEIU filed a grievance on behalf of em- ployee Frederick Haney (Haney) who was discharged by the Re- spondent. As part of its grievance filing, Alexis Straughter (Straughter), a union representative, requested the following in- formation, A complete copy of the grievant(s) personnel files A complete YTD list of all accrued and used PTO A copy of all documents from the employer’s investiga- tion Attendance/Tardiness records for the grievant(s) 5 By email dated July 19, Jones again reminded Meyers to send the documents. On July 20, Meyers responded, “Documents soon.” In the complaint, the General Counsel did not allege this as a separate violation. Disciplinary records of the grievant(s) Payroll records of the Grievant(s) Timecard, Timesheets and/or EVV records of the Grievant(s) Work Schedules (30) Days (Jt. Exh. 15–3, 15–4, 15–5, 15–6.) On October 5, Meyers re- fused to produce the requested information noting in an email to Straughter, As you may be aware, earlier this year an election was held by the National Labor Relations Board at Research Medical Cen- ter, and the employees formerly represented by the SEIU voted to no longer be represented by the SEIU. We have expressed in correspondence to Ms. Brenda Davis and Mr. Lenny Jones that our position is that the election was valid, and that we would no longer be recognizing rights afforded under the contract. Accordingly, we don’t recognize this grievance as valid, and no response from the Hospital is required. (Jt. Exh. 15-2.) Moreover, the Respondent informed the SEIU that even assuming it still represented the employees, and the CBA was in effect, the grievance was untimely so it and the re- quest for information would have nonetheless been validly re- jected. Id. On October 7, the SEIU renewed its request that the Respondent produce information it initially asked for on Septem- ber 17, arguing that under “the law and the CBA” the Respond- ent is required to comply with the request because the NLRB had not yet certified the results of the election. (Jt. Exh. 15–1, 14–4, 14–3.) The Respondent did not reply. On October 7, the Union filed a grievance on behalf of an em- ployee, Leah Torres (Torres). As part of its grievance filing, Da- vis and Straughter, requested the following information, A complete copy of the grievant(s) personnel files A complete YTD list of all accrued and used PTO A copy of all documents from the employer’s investiga- tion Attendance/Tardiness records for the grievant(s) Disciplinary records of the grievant(s) Payroll records of the Grievant(s) Timecard, Timesheets and/or EVV records of the Grievant(s) Work Schedules (30) Days (Jt. Exh. 14–2, 14–3, 14.4.) On October 21, Meyers refused to produce the requested information noting in an email to Straughter As you may be aware, earlier this year an election was held by the National Labor Relations Board at Research Medical Cen- ter, and the employees formerly represented by the SEIU voted to no longer be represented by the SEIU. We have expressed in our prior correspondence that our position is that the election was valid, and that we would no longer be recognizing rights afforded under the contract. Accordingly, we don’t recognize this grievance as valid, and no response from the Hospital is required. (Jt. Exh. 14–1, 14–2.) Pursuant to an email to Meyers on October 22, Straughter disputed Meyer’s interpretation of its obligation under the Act to respond to the information request and renewed MIDWEST DIVISION—RMC, LLC, D/B/A RESEARCH MEDICAL CENTER 11 the request for the Respondent to process the grievance and com- ply with the information request. The Respondent did not pro- vide the requested information or otherwise respond. On October 25, the Union filed a grievance on behalf of em- ployee Kendyl E. Howard (Howard), who was discharged by the Respondent. As part of its grievance filing, Alexis Straughter, requested the following information, A complete copy of the grievant(s) personnel files A complete YTD list of all accrued and used PTO A copy of all documents from the employer’s investiga- tion A copy of in-service sign-in sheets or logs for the inci- dent in question All evidence to support just cause for the grieved disci- pline Attendance/Tardiness records for the grievant(s) Copy of Surveillance Tapes Disciplinary records of the grievant(s) Investigation Reports/Notes on Incident Names of witnesses to the allegation(s) and copies of all witness statements Payroll records of the Grievant(s) Performance evaluations for the grievant(s) for all years of employment Staffing level by position and shift per floor compared to census of residents Timecard, Timesheets and/or EVV records of the Grievant(s) Work Schedules (30) Days Work Schedules and assignment log (90) Days (Jt. Exh. 13–2, 13–3, 13–4.) On November 2, Meyers reiterated the Respondent’s position that because the employees voted to decertify the Union as their collective-bargaining representative, the Respondent would no longer recognize it and therefore, re- fused to process the grievance or produce the requested infor- mation. (Jt. Exh. 13–1, 13–2.) Meyers also noted that the griev- ance was untimely, and therefore, he would have denied the grievance and the information request even if the Union were still the bargaining representative. Id. By email dated November 2, the Union rejected the Respondent’s argument and renewed its request for the information. The Respondent did not reply. (2) Analysis Section 8(a) (5) of the Act mandates that an employer must provide a union with relevant information that is necessary for the proper performance of its duties as the exclusive bargaining representative. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153 (1956); Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979). “. . . [T]he duty to bargain unquestionably extends beyond the period of contract negotiations and applies to labor-management relations during the term of an agreement.” NLRB v. Acme In- dustrial Co., 385 U.S. 432, 436 (1967). Information requests re- garding bargaining unit employees’ terms and conditions of em- ployment are “presumptively relevant” and must be provided. Whitesell Corp., 352 NLRB 1196, 1197 (2008), adopted by a three-member Board, 355 NLRB 649 (2010), enfd. 638 F.3d 883 (8th Cir. 2011); Southern California Gas Co., 344 NLRB 231, 235 (2005). If the requested information is not directly related to the bargaining unit, the information is not presumptively rele- vant, and the requesting party has the burden of establishing the relevance of the requested material. Disneyland Park and Dis- ney’s California Adventure (Disneyland Park), 350 NLRB 1256, 1257 (2007); Earthgrains Co., 349 NLRB 389 (2007). The standard for establishing relevancy is the liberal, “discov- ery-type standard.” Alcan Rolled Products, 358 NLRB 37, 40 (2012), citing and quoting applicable authorities. In Leland Stanford Junior University, 307 NLRB 75, 80 (1992), the Board summarized its application of the principles as follows: [T]he Board has long held that Section 8(a)(5) of the Act obli- gates an employer to furnish requested information which is potentially relevant to the processing of grievances. An actual grievance need not be pending, nor must the requested infor- mation clearly dispose of the grievance. It is sufficient if the requested information is potentially relevant to a determination as to the merits of a grievance or an evaluation as to whether a grievance should be pursued. United Technologies Corp., 274 NLRB 504 (1985); TRW, Inc., 202 NLRB 729, 731 (1973). The requested information does not have to be dispositive of the issue for which it is sought, but only has to have some rela- tion to it. Pennsylvania Power & Light Co., 301 NLRB 1104, 1104–1105 (1991). The Board has also held that a union may make a request for information in writing or orally; and a delay is unreasonable when the information requested is easily and readily accessible from an employer’s files. Bundy Corp., 292 NLRB 671, 672 (1989). The Respondent does not argue nor deny that the requested information is relevant and necessary to the Union’s representa- tional role in the grievance process and enforcing the CBA. Fur- ther, the Respondent does not contend that the information re- quested is not mandatory subject of bargaining. Rather, the Re- spondent insists that it lawfully withdrew recognition of the Un- ion, and therefore, is no longer required to produce the requested information. The Respondent cites Johnson Controls and Arkema to support its legal position. Also, the Respondent as- serts that even assuming its withdrawal of recognition was inva- lid, it is still not required to comply with two of the information requests because they pertain to untimely grievances filed by SEIU. Based on the record, I find the Respondent’s arguments un- persuasive. It is well established that a union maintains an irre- buttable presumption of majority status while the CBA is in ef- fect. Sisters of Mercy Health Corp., 277 NLRB 1353, 1353 (1985). Moreover, the Board has consistently held that a union retains its role as the exclusive collective bargaining representa- tive for the unit pending the certification of the results of its ob- jections to a decertification vote. Consequently, any unilateral changes prior to the contract expiring violates the Act. Krueger at 915. The record established that the SEIU and the Respondent reached agreement on a new CBA on March 31, and it was rati- fied by the members on April 6. Also, the record is clear that the results of the June 14 election vote were not certified by the NLRB until February 8, 2022. This is well after the Union sub- mitted its requests for information. As noted earlier in the deci- sion, the Respondent argues that the General Counsel’s reliance on Krueger is misplaced but I disagree. Briefly repeating my finding on this argument, Krueger and Johnson Controls agree that, under the ‘contract bar’ doctrine, the union has an irrebut- table presumption of majority status during the period of an ex- isting contract, up to 3 years. During this period the employer cannot refuse to bargain with or withdraw recognition of the un- ion. Johnson Controls, 368 NLRB No. 20, slip op. at 4 (2019); YWCA of Western Massachusetts, 349 NLRB 762, 763 (2007). Even under the anticipatory withdrawal of recognition doctrine, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 the employer must recognize the union and comply with the terms of the existing contract until it expires. Last, despite the Respondent’s argument, I cannot disregard Krueger because it continues to be valid Board law. Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984); Iowa Beef Packers, 144 NLRB 615, 616 (1963). I find that the requested information is “presumptively rele- vant” because it pertains to bargaining unit employees’ terms and conditions of employment, the grievance process. Lansing Au- tomakers Federal Credit Union, 355 NLRB 1345, 1351 (2010) (finding that information related to the discipline of unit employ- ees was presumptively relevant because the Union needed it to properly process its grievances to arbitration); United Technolo- gies Corp., 274 NLRB 504, 506 (1985) (finding that Section 8(a)(5) of the Act obligates an employer to furnish requested in- formation which is potentially relevant to the processing of grievances); Live Oak Skilled Care & Manor, 300 NLRB 1040, 1049 (1990) (finding the employer was in violation of the Act by refusing to provide information shown to be necessary for the Union to determine whether or not the employer was in compli- ance with its agreement); Winges Co., Inc., 263 NLRB 152, 156 (1982) (holding that the employer must provide wage survey data to the Union to substantiate its claim that “remaining com- petitive” was the reason it could only grant minimal wage in- creases to certain employees); Tennessee Chair Co., Inc., 126 NLRB 1357, 1364 (1960) (holding that the employer was in vi- olation of the Act by refusing to provide the Union, upon its re- quest, any record information or data or other probative material to substantiate its claim of inability to pay any wage increase). Consequently, the Respondent has a statutory obligation to fur- nish the Union with the requested information so that it can as- sess the merits of the grievances to determine whether to proceed to arbitration or attempt to resolve them. The record shows that a grievance was filed on behalf of a discharged employee, Haney. He was discharged on or about August 17, but the grievance was not filed until September 17, (Jt. Exh. 15–2, 15–3, 15–4, 15–5.) Article 8, section 3 of the parties’ CBA mandates that grievances must be filed within twenty-one (21) calendar days from when the grievant becomes or should have become aware of the occurrence giving rise to the grievance. However, Article 8, section 3 unequivocally states that an exception to this 21-day time limit applies to discharge case. “A discharge grievance must be filed within ten (10) cal- endar days of the date the employee is informed of the discharge and must be filed initially at step two.” (Jt. Exh. 7.) There is no evidence that contradicts the plain language of the CBA on this point. More importantly, the General Counsel presented no evi- dence disputing the grievance was untimely nor was the argu- ment mentioned in the post-hearing brief. The Respondent also argues that it likewise would not have to respond to the SEIU’s October 25, information request because the grievance was untimely. The record reveals that a grievance was filed on behalf of discharged employee, Howard. Howard was discharged on or about October 22, and the grievance and request for information were filed October 25. The Respondent contends that she was discharged in July but there is nothing in the record to corroborate this contention. Consequently, I find that the grievance and appending information request were filed within three days of Howard’s discharge and well withing the CBA’s grievance filing deadlines. Accordingly, I find that the Respondent violated the Act as 6 Art. 38, sec. 5 of the CBA governs flat rate PRN wages. described in paragraphs 9(a), 9(c), and 9(d) of the complaint. I find, however, that the Respondent did not violate the Act as described in paragraph 9(b) of the complaint and recommend dismissal of the charge as alleged in the complaint. F. Meet and Confer Over PRN Pay The General Counsel argues that since about June 3, the Re- spondent has unlawfully failed to meet and confer with SEIU over PRN pay because (1) it is obligated to recognize the union and continue honoring the CBA until the decertification vote count is officially certified; and (2) its reliance on Arkema is mis- placed because it is not Board law. The Respondent counters that even assuming it unlawfully repudiated SEIU, it still had no duty to bargain over PRN because SEIU never made a demand to bargain but simply asked for information about PRN pay. (1) Facts On June 3, SEIU Vice President SEIU Healthcare Lenny Jones (Jones) contacted Meyers “requesting to meet” on flat rate PRN wages. Jones copied Davis on the email to Meyers.6 (Jt. Exh. 9-3.) Jones followed up with another email on June 30, again asking Meyers to meet because he had not received a re- sponse. On July 13, Meyers provided his availability to meet with SEIU the week of July 19, about PNR. Thereafter, several emails were exchanged between Meyers and Jones and Davis trying to schedule a date to meet, with the last email exchange dated August 4. (Jt. Exh. 9–1, 9–2, 9–3, 9–4.) Ultimately, the parties engaged in “a conversation. Davis testified that “[i]t wasn’t really bargaining bargaining. It was more like regular bar- gaining. It was a common discussion to talk about those benefits for those workers.” (Tr. 124.) Davis and Meyers agree that at some point he told SEIU he would not meet and confer with Da- vis and Jones about PRN employees because the election results showed the decertification vote had been successful. Conse- quently, the Respondent refused to recognize any contractual rights SEIU may have held under the CBA. (Tr. 125, 208–209.) (2) Analysis Despite the Respondent’s arguments to the contrary, I have previously explained why Krueger applies to the case at hand. Consequently, the Respondent was prohibited from withdrawing recognition of the Union and had to comply with the existing contract until the results of a decertification election were certi- fied. The evidence clearly establishes that the Respondent with- drew recognition from the Union and refused to bargain over PRN wage rates. Although the Respondent argues it did not re- fuse to bargain over PRN because the Union never requested to bargain, Meyers testimony establishes otherwise. When asked on cross-examination if he “engaged in meet and confer” with the Union over PRN, he answered no. In response to why he did not meet and confer with the Union about PRN wage rates, Mey- ers replied “Because the results of the election were in, and they had been voted to decertify, so we refused to recognize the rights in the contract.” (Tr. 208–209.) Meyers also confirmed that he made the refusal prior to the certification of the vote, in clear contravention of Board law. Accordingly, I find that the Respondent violated the Act as charged in the complaint. G. Refusal to Deduct Union Dues The General Counsel argues that the case cited by the MIDWEST DIVISION—RMC, LLC, D/B/A RESEARCH MEDICAL CENTER 13 Respondent, Arkema, to justify its decision to cease deducting union dues is not Board law and cannot bind an administrative law judge to follow it. The Respondent insists it is not liable for deducting and remitting dues for the period between the June 14 decertification vote count and the official certification of that vote on February 8, 2022. According to the Respondent, its re- fusal to deduct and remit union dues is not unlawful because (1) Section 302 of the Labor Management Relations Act (29 U.S.C. § 186) with few exceptions prohibits an employer from making any monetary payments to unions; and (2) mandating it to pay dues without “recouping those amounts from employees would amount to an impermissible and unenforceable punitive damages award.” (R. Br. 14.) (1) Facts It is undisputed that following the decertification ballot count on about June 14, the Respondent stopped withholding and re- mitting bargaining unit employees’ SEIU dues. (2) Analysis The Respondent admits that it unilaterally decided to cease deducting and remitting employees’ Union dues before certifica- tion of the ballot results but argues that it was justified under Arkema. Briefly reiterating the finding in Arkema, an employer “does not automatically violate the NLRA, but merely proceeds at its own risk, when engaging in unilateral activities before a decertification election’s results are formally validated.” Arkema at 320. However, I have noted above that the Board does not follow the 5th Circuit’s ruling on this point. The Board has con- sistently held that its administrative law judges must follow Board precedent unless subsequently reversed by the Board or the Supreme Court. Waco, Inc. at 749 fn. 14); Iowa Beef Packers, at 616. Consequently, the Respondent violated the Act because it unilaterally decided to stop dues withholding and remitting un- ion dues before expiration of the existing contract and about 8 months before the formal certification of the decertification vote. Accordingly, I find that the Respondent violated the Act as charged in the complaint. H. Alleged March 4 and June 14 Coercion of Employees (1) Facts The Respondent ceased withholding and remitting employ- ees’ SEIU dues following expiration of the parties’ September 15, 2017 through May 31, 2020, CBA. As I previously noted, the parties engaged in bargaining for a successor agreement, and extended their 2017 CBA several times before allowing it to ex- pire on February 28. (Joint Stipulations 5–8.) On March 4, Joel Morgan (Morgan), food service manager, gave an update on con- tract negotiations at an “impromptu” meeting with food service employees. The meeting lasted about five minutes. Debra Cun- ningham (Cunningham), Union steward and nutrition care assis- tant, recorded the meeting with her mobile phone. The transcript of the recording of the meeting captures Morgan making the fol- lowing statement the General Counsel alleges is coercive and de- rogatory in nature, Until we get a new contract signed you will no longer be charged union dues because the Hospital doesn’t feel that’s fair 7 Banks also testified that prior to “the vote count” on June 14, man- agement was telling employees that they were no longer represented by the Union and “was no longer there.” (Tr. 169.) I make no judgment on this statement because it was not alleged in the complaint. Moreover, Bank’s testimony about management’s alleged statements prior to June to you to continue to pay for dues (loud crackling sound) when we don’t feel like the union is bargaining in good faith. (loud crackling sound) (GC Exh. 3.) Morgan went on to give his personal opinion that the Union was not in the employees’ best interest but stressed it was his opinion and “you guys are all allowed to have your own opinion. What I ask is that all of you respectfully allow each other to have your own opinion because that’s what makes this Company great, that’s what makes this country great, we’re all allowed to have different opinions.” (GC Exh. 3.) He continued the meeting stressing that he wanted to keep the employees up- dated on the negotiation process, union dues, and address ques- tions he had received about decertification. In response to the questions that he had been getting prior to the meeting on rumors about a decertification campaign, Morgan confirmed that there was a decertification petition circulating but stressed that it was their decision alone to decide if the union best supported their interest. He noted, “If you feel [the Union] is valuable you should support it, if you don’t, hey that’s up to you too.” Id. Mor- gan ended the meeting by reminding them all to be respectful of their coworkers’ opinions and warned against bullying anyone because of their union stance. Morgan opened the meeting up to questions, but there was only one and it was inaudible on the recording. The meeting ended. Cunningham testified that Mor- gan’s explanation, “it was like because they were in bargaining, we were no longer paying dues at that time, so—and that is what he was explaining to everybody else.” (Tr. 192.) A statement on behalf of the Respondent, dated June 14, was emailed to employees with copies of it placed on bulletin boards in the hospital telling employees that the Union had been decer- tified and no longer represented them. (GC Exh. 4.) While the Respondent does not deny writing the statement and emailing it to employees, it denies having posted it on hospital bulletin boards. Regardless, Ernest Banks (Banks), lead floor technician, gave undisputed testimony that he believed after June 14, the employees were no longer represented by the Union based on his understanding of the statement posted to the hospital bulletin boards and his interactions with hospital management.7 (Tr. 166– 168.) (2) Analysis The General Counsel argues that Morgan’s remark that dues were no longer being taken from their paycheck because the Re- spondent believed the Union was “bargaining in bad faith” vio- lates the Act because (1) it denigrates the Union and communi- cates “conveyance of a benefits”; and (2) although factually cor- rect, the statement exceeds the scope of protected 8(c) speech. The Respondent counters that (1) Morgan did not make a direct statement that the Union was, in fact, bargaining in bad faith; (2) the General Counsel’s sole witness did not testify to coercion and the testimony was not credible; (3) Morgan’s remark does not rise to the level of coercion required under existing Board law. I find the Respondent’s argument’s persuasive on this point. Section 8(b)(1)(A) of the Act provides that it is an unfair labor practice for a labor organization or its agents to interfere with, restrain, or coerce employees in the exercise of the rights guar- anteed in Section 7 of the Act by forcing or requiring any 14 that the employees were no longer in the bargaining unit contradicts his earlier statements about management making these statement on or after June 14, with no explanation from him for the contradictions and changes in his testimony. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 employee or self-employed person to join any labor or employer organization. The rights guaranteed in Section 7 include the right “to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” See Brighton Re- tail, Inc., at 441. In determining whether remarks violate the Act, the appropriate test is “whether the remark can reasonably be in- terpreted by the employee as a threat.” Consolidated Bus Transit, Inc., 350 NLRB 1064, 1066 (2007), enfd. per curiam 577 F.3d 467 (2d Cir. 2009). Based on the overall context of Morgan’s remarks I do not find that the single statement at issue rises to the level of coercion that’s required under the Act. While it is undisputed that Morgan made the statement at issue, the General Counsel’s sole witness on this point, Cunningham acknowledged that she interpreted his comment as an explanation that because the parties were still bargaining over a new agreement, dues would not be deducted from their paychecks. She did not even mention the portion of his comment that the Respondent believed the Union was bar- gaining in bad faith. Morgan’s statement cannot be read without placing it in context with the overall remarks that he made at the meeting. He repeatedly told employees that they had a right to freely make their own decisions and warned against bullying oth- ers for their choices. Likewise, Morgan repeatedly made clear that his opinion on the situation was his personal opinion which should have no bearing on the employees’ decision regarding the decertification drive, continued bargaining, and payment of Un- ion dues. Morgan also repeatedly informed the employees that his reason for speaking with them was to give them an update on collective bargaining negotiations and answer questions that he had been receiving about a rumored decertification effort. Based on her testimony, it appears that Cunningham agreed. (Tr. 192.) I find nothing in Morgan’s statement(s) to support a finding that it rose to the level of coercion as required by the Act. See Tenneco Auto, Inc. v. NLRB, 716 F.3d 640, 650 (D.C. Cir. 2013). Accordingly, I recommend that the charge as alleged in the complaint be dismissed. The General Counsel also alleges that the information the Re- spondent disseminated to employees in the flyers interfered with employees Section 7 rights. In support of this position the Gen- eral Counsel argues that the information contained in the flyer was inaccurate and “would lead a reasonable employee to be- lieve . . . that SEIU had been decertified and that the employees were no longer represented by the Union.” (GC Br. 27.) The Respondent counters that the information in the flyer is factual and “nothing in it contains an unlawful general or specific prom- ise of a benefit that could be construed as “coercion.” (R. Br. 30.) The flyers clearly inform employees that the SEIU has been decertified and that they are “formerly” represented by the union. This information was disseminated despite the fact that the Un- ion had not been officially decertified and the CBA was still valid. Under extant Board law, the Respondent is required to continue to recognize the Union and comply with the existing CBA until the vote count is officially certified. The Union enjoys an “irrebuttable presumption” of majority status during the term of the CBA. Krueger at 915; Sisters of Mercy Health Corp., 277 8 Employees at the Respondent’s Research Medical Center (RMC) and Menorah Medical Center (MMC) maintain separate bargaining units. The employees at MMC did not vote to decertify the Union, and therefore the Respondent continued to recognize it as the exclusive NLRB 1353, 1353 (1985). Banks credibly testified that after seeing the email and other interactions with management, he be- lieved that he was no longer a bargaining unit member repre- sented by the Union. I find that the information contained in the flyers was likely to lead a reasonable employee to believe that they no longer had Union representation, thereby restraining them from seeking out advice, assistance, or counsel from the Union for matters involving their terms and conditions of em- ployment. Accordingly, I find that the Respondent violated the Act as charged in the complaint. I. Denied Union Steward Training and Access to Respondent’s Facility (1) Facts On July 28, Davis emailed Meyers with a list of individuals she wanted released for SEIU steward training on August 25. In his response dated October 5, Meyers noted that, “our position is that the decertification election was valid, and that we would no longer be recognizing rights afforded under the contract.” Dur- ing his testimony, Meyers admitted that the employees were not released for the training.8 (Tr. 210; Jt. Exhs. 11, 12–1.) In an- other email to Jones and Davis, Meyers reiterated that the Re- spondent will not recognize any rights afforded to the Union in the CBA because, among other actions, the Union representa- tives would not be allowed onto the Respondent’s facility for ac- cess to employees for new employee orientation. (Tr. 213; Jt. Exh. 13–1, 13–2, 16.) Davis testified that between the decertifi- cation count and official certification of the vote, Meyers and “management” made it difficult for the Union to “get into the hospital as far as them surveilling us, saying we were doing something wrong, or something like that.”9 (Tr. 119.) She also insisted that in an email Meyers denied her request for access to the facility, but she could not recall the date or any other partic- ulars of the exchange. (Tr. 120.) While he did not recall a spe- cific incident, Meyers admits that he would have asked the Union to leave the Respondent’s premises if Union representatives at- tempted to access it after the June 14 decertification vote count. (Tr. 213.) (2) Analysis An employer may not unilaterally change the terms and con- ditions of employment of represented employees without provid- ing their representative with prior notice and an opportunity to bargain over such changes. See NLRB v. Katz, 369 U.S. 736, 747 (1962). “Under the unilateral change doctrine, an employer’s duty to bargain under the Act includes the obligation to refrain from changing its employees’ terms and conditions of employ- ment without first bargaining to impasse with the employees’ collective-bargaining representative concerning the contem- plated changes.” Lawrence Livermore National Security, LLC, 357 NLRB 203, 205 (2011). The duty to bargain, however, only arises if the changes are “material, substantial and significant.” Alamo Cement Co., 281 NLRB 737, 738 (1986); Flambeau Air- mold Corp., 334 NLRB 165, 171 (2001). In order to find that an employer made unilateral changes to an employee benefit in vi- olation of the Act, it must be shown that (1) material changes were made to the employees’ terms and conditions of collective bargaining representative with rights afforded under the CBA. (Tr. 124; Jt. Exh. 12–, 12–2.) 9 The complaint does not allege illegal surveillance on the part of the Respondent. MIDWEST DIVISION—RMC, LLC, D/B/A RESEARCH MEDICAL CENTER 15 employment; (2) the changes involved mandatory subjects of bargaining; (3) the employer failed to notify the union of the pro- posed changes; and (4) the union did not have an opportunity to bargain with respect to the changes. San Juan Teachers Assn., 355 NLRB 172, 175 (2010); Garden Grove Hospital & Medical Center, 357 NLRB 653, 653 fn. 4, 657 (2011). Denying the Union access to the Hospital to attend new em- ployee orientation or engage in other representational interac- tions with bargaining unit members or refusing to grant request for release from work for Union steward training are, if proven, a material change to unit members’ terms and conditions of em- ployment. Ernst Home Centers, 308 NLRB 848–849, 865 (1992) (unilateral change in the Union’s access to employees a material change that obligates the employer to bargain). The Board has consistently held that a union’s right of access to carry out its representational duties is a mandatory subject of bargaining. McGraw-Hill Broadcasting Co., 355 NLRB 1283, 1294 (2010) (right of access to represent employees is a mandatory subject of bargaining); Regency Heritage Nursing & Rehabilitation Cen- ter, 353 NLRB 1027, 1034 (2009) (“[u]nion visitation is a man- datory subject of bargaining”). The evidence establishes that Meyers admitted that the members were not released for training despite Davis’ and or Jones’ requests. Moreover, Meyers acknowledged that he informed the Union that they no longer had access to the Respondent’s facility because it had lost ma- jority support. It is unclear if the parties’ CBA, which was still valid, contained an access provision. Linwood Care Center, 367 NLRB No. 14 (2018), citing Ernst Home Centers, 308 NLRB 848 (1992) (“when an employer and a union have an agreement allowing the union access to its property to carry out its repre- sentational activities, or the employer has an established past practice of allowing access, the employer cannot unilaterally al- ter that agreement or practice.”) Even absent such a provision, however, the Respondent was still required to allow the Union access to its facility to meet with employees and allow steward training time because the contract was still valid, and the vote had not been formally certified. Krueger, 299 NLRB at 915 (an employer cannot make unilateral changes in employees’ terms and conditions of employment until the decertification election results are formally certified and the existing contract has ex- pired.) Accordingly, I find that the Respondent violated the Act as charged in the complaint. J. Prohibited from Wearing Union Buttons (1) Facts In April or May 2021, EVS Technician Steve Walker (Walker) and Administrative Director of Support Services Ter- rance Engling (Engling) had an interaction involving the wearing of union pins. Walker has worn a union button on his employee badge since his first day of working for the Respondent. In April 2021, he received two more buttons from the Union that read “Hazard Pay Now” and “I’m Sticking With My Union” which he also attached to his employee badge. He attached the “I’m Sticking With My Union” button to the back of his employee badge and it abutted his shirt. The “Hazard Pay Now” button was attached to the front of his badge facing outward and next to his employee picture. Walker testified that Engling and Manager Steve Echols (Echols) approached him in April or May 2021 and told him, without specifying which buttons, that he needed to re- move them when on patient floors because they could “poten- tially scare patients.” (Tr. 140.) He admits no one ever told him to remove the union button he had worn since his first day of work. (Tr. 145.) Although Echols did not testify, Engling ap- peared at the hearing and admitted that he informed Walker he could not wear a union pin. However, he vehemently denied telling Walker that he could not wear any of his union buttons. Engling insisted that he told Walker he had to remove the “Haz- ard Pay Now” button because it would frighten patients. He de- nied ever telling Walker he needed to remove the “I’m Sticking With My Union” pin, noting historically in that department em- ployees have been allowed to wear union pins. According to Engling, he made clear to Walker that it was only the “Hazard Pay Now” button that was of concern and denied making any “general statements” to Walker during the discussion. The ex- change on cross-examination was, MS. PROCTOR: When you spoke with Mr. Walker, [w]ere you specific that he could not wear a hazard pay but- ton? A. I made it clear to him, it was a hazard pay button that was—that I asked him to remove. Q. How—how did you make it clear to him? A. I would—I probably pointed it out to him, that we were concerned about patients being scared by that. Q. Do you remember precisely what you said? A. No, I— JUDGE DIBBLE: You made it clear to him by pointing— pointing it out to him— THE WITNESS: Uh-huh. JUDGE DIBBLE:—do you mean by pointing to the but- ton? THE WITNESS: I mean, I believe, again over a year ago, that I explained to him that patients would be scared by see- ing a “hazard” button his lapel, so— JUDGE DIBBLE: And did you say the patients would be afraid by seeing the “hazard” button the lapel, or did you say, “seeing that button?” THE WITNESS: The—I explained to him the “hazard” is- sue. BY MS. PROCTOR: So you specifically stated “hazard.” You didn’t say “that button” or point to that button? A. I was clear it was the “hazard” button. Q. Did you make any general statements when you were talking to Mr. Walker about buttons? A. No. Q. But you didn’t tell him that he would need to remove a button? A. The “Hazard” button, yes. MS. PROCTOR: No further questions. (Tr. 277–278.) Walker never removed the buttons but rather “turned them around.” (Tr. 145–148.) After he was told to re- move his union buttons, Walker began to observe many employ- ees wearing shirts with anti-union messages, even in patient fac- ing areas. However, he saw most of the employees wearing pro- union items in the public cafeteria. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 (2) Analysis In Republic Aviation,10 the Supreme Court held that the right of employees to wear union buttons at work, absent “special cir- cumstances”, is a protected activity. This right has been ex- tended to other union clothing and items. Chinese Daily News, 353 NLRB 613 (2008) (employer violated the Act by creating a dress code policy prohibiting employees from wearing clothing with the name or logo other than the employer, specifically in- cluding the union); Sam’s Club, Division of Wal-Mart Stores, Inc., 349 NLRB 1007 (2007) (while the Board held banning badge backer bearing a statement of their rights under the Act was unlawful, it found the employer could prohibit the wearing of lanyards with the union logo only because the employer was able to establish the nonbreakaway nature of the lanyards created a safety issue); P.S.K. Supermarkets, Inc., 349 NLRB 34 (2007) (the Board held the exposure of customers to union buttons, standing alone, is not a special circumstance, nor is the fact that the rule prohibited all buttons, not just union buttons). The right of employees to wear items with union insignias must be bal- anced against an employer’s right to manage its business in an orderly fashion. However, a rule restricting or prohibiting the wearing of items with union logos must be narrowly tailored to justify the rule. Wal-Mart Stores v. NLRB, 400 F.3d 1093 (8th Cir. 2005), enfg. as modified 340 NLRB 637 (2003) (employer violated the Act because there was no evidence that shirts with union logos interfered with the operation of the store); Goodyear Tire & Rubber Co., 357 NLRB 337 (2011) (employer ban on employees wearing T-shirts that said “scab” in relation to con- tract employees was not justified by special circumstances). The General Counsel and the Respondent dispute which wit- ness is more credible about whether Engling specifically told Walker to remove the “I’m Sticking With My Union” or remove buttons generally. In arguing Walker’s version was more credi- ble, the General Counsel points to Walker’s testimony that he believed Engling was referring to both buttons; and he was not going to question the order because Engling was three levels higher than him in the management hierarchy. The General Counsel argues that Walker’s account is likely to be more “mem- orable to the employee given the order than to the management official giving the order.” However, the General Counsel has provided no objective evidence to support this assertion. It is mere speculation. Next, the General Counsel claims that alt- hough Engling testified that he was only speaking about the “Hazard Pay Now” button, he admitted that “he cannot remem- ber what he said . . .” (GC Br. 26.) However, I find that is not an accurate account of his testimony. There is nothing in Engling’s exchange on direct or cross-examination to support a finding that he could not recall what he said to Walker. Clearly, he recalled what he said to Walker because he emphasized repeatedly in his testimony that he was specific in telling Walker to remove the “hazard” button, while on patient floors only, for fear of scaring patients. The Respondent also makes a persuasive point in support of Engling’s version of the encounter being more credible. The Re- spondent notes that Walker admitted no one specifically identi- fied by name the button they wanted him to remove. Moreover, the Respondent points to Walker’s testimony that “he admitted during the hearing that when he was approached by Engling— the sole button at issue herein (“I’m sticking with my union”) 10 Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). was on the back of his badge—hidden from Engling’s view be- cause it was pressed against his body. That, of course, comports with Walker’s testimony that he was (lawfully) told to remove the forward-f–—146, 276.) I find that the General Counsel’s ev- idence on this allegation is underwhelming and for the aforemen- tioned reasons, Engling’s account of his encounter with Walker over the buttons is more likely than Walker’s version. I find that for the aforementioned reasons, Engling’s account of his encounter with Walker over the buttons is more likely than Walker’s version. Accordingly, I recommend dismissal of the charge as alleged in the complaint. K. April/May 2021 Employees Allegedly Told of Futility of Un- ion Representation The General Counsel alleges that a statement made by Labor Relations Consultant Leo Arias (Arias) on or about April or May 2021, is direct evidence that the Respondent interfered with, re- strained and coerced employees in the exercise of their Section 7 rights. According to the General Counsel, Arias’ denials that he made the statement attributed to him should be ignored be- cause he was not as credible as the General Counsel’s witness. The Respondent counters that the General Counsel’s witness’ version of the meeting conducted by Arias did not occur because Arias never made the alleged statement. (1) Facts From April to May 2021, the Respondent contracted with Arias to hold informational meetings with employees about un- ionization. The decertification petition had already been filed; and a ratification vote was taking place the day Arias arrived at RMC. Arias’ role was to meet with employees and explain to them their rights under Section 7 of the NLRA, the voting pro- cess, and answer their questions and concerns about their rights. Before he started meeting with employees, however, Arias ex- plained to the Respondent the topics he would discuss with the employees. The topics and presentation of each meeting were identical, except during the questions and answers session, em- ployee questions differed with each session. Other than to in- form employees of their rights and discuss the voting process, Arias is unaware of any other reason why the Respondent hired him. The Respondent was responsible for getting employees to meet with him. He held about five meetings a day 6 to 7 days a week. Employee attendance at the meetings ranged from two to ten and no management employees attended the meetings. Paul Obie (Obie), an employee in Environmental Services De- partment, was approached by Manager Stephanie Martinez and asked if he wanted to attend the meeting with Arias in April or May 2021. He agreed to go to the meeting but admits that Mar- tinez did not force him to attend. (Tr. 159.) Obie could not recall much detail surrounding the meeting. He could not remember the date it was held, whether it was held in the spring or summer, or all who were present for the meeting.11 Obie testified that on entering the meeting room, Arias asked him to sign a form that had a list of names on it, but he refused. He did not read the form but thought it might be an attempt by management to get him to sign to decertify the Union. Nonetheless, Obie later acknowl- edged that the form could have simply been an attendance sheet. (Tr. 160.) According to Obie, Arias said, “You can sign it or don’t have to sign it. HCA is gonna do whatever they want to do 11 Obie recalled that himself, April Richardson, Shawn Wheaton/Eaton, and another unnamed employee were in attendance. MIDWEST DIVISION—RMC, LLC, D/B/A RESEARCH MEDICAL CENTER 17 anyway.” (Tr. 155–156.) He thought that the statement was in relation to signing the form which in his mind was likely a “pe- tition.” (Tr. 160–161.) Obie could recall almost no other details about the topics discussed in the meeting. He testified “he talked, but I don’t remember exactly what the whole conversa- tion was about. . . I don’t remember the whole—because it’s been a while since this happened, so I don’t remember the exact whole conversation about what we were talking about.” (Tr. 156.) Arias acknowledged asking employees to voluntarily sign an attendance sign-in sheet as they entered because every day, he would give the sheet to the Respondent to document that he ac- tually held the meetings. However, Arias vehemently denied any suggestion that he ever asked employees to sign a “petition” or made the statement attributed to him by Obie. He testified that based on his experience holding “these types of meetings” he is aware that employees “may be a bit apprehensive to sign any- thing, including attendance sheets.” Consequently, Arias “al- ways” made the meeting attendance and the sign-in sheet op- tional. (Tr. 305–306.) (2) Analysis The General Counsel argues that I should credit Obie’s testi- mony over Arias’ testimony because (1) Obie’s description of the encounter was more detailed than Arias’ testimony; and (2) Arias offered only a general denial and no specifics about the meeting. However, I do not find the General Counsel’s argu- ments persuasive enough to overcome Arias’ denial. Overall, I find that Arias was a more credible witness than Obie because his testimony was more specific on key points. Obie admitted that he could not recall during which season the meeting was held, who was in attendance, or the topics discussed in the meet- ing, In fact, Obie emphasized several times in his testimony that “[Arias] talked, but I don’t remember exactly what the whole conversation was about. . . I don’t remember the whole—- be- cause it’s been a while since this happened, so I don’t remember the exact whole conversation about what we were talking about.” Moreover, Obie admitted that he did not read the form Arias asked him to sign upon entering the meeting, but rather jumped to the incorrect conclusion that it was a “petition” to get rid of the Union when it was in fact an attendance sign-in sheet. In contrast, Arias was able to recall the month the meetings were held, topics discussed, the party responsible for inviting employees to his meetings, the purpose of the meetings, attend- ance range in the meetings, and number of meetings held. More- over, I find Arias’ denial of making the statement no more nor less specific and sincere than Obie’s allegation that the statement was made. Obie did not give extensive testimony on the actual statement other than to claim it was made by Arias. Conse- quently, Arias could not provide much more in defense than a denial that he made the statement a. I find little to nothing in the record to indicate that Obie’s testimony is likely to be more cred- ible than Arias’ testimony; and therefore, I credit Arias’ denial that he made the statement attributed to him by Obie. See Cen- tral National Gottesman, 303 NLRB 143, 145 (1991) (finding that the General Counsel did not meet its burden of proof because the testimony that the allegation occurred was equally credible as the testimony that denied the allegation); Blue Flash Express, 109 NLRB 591, 591–592 (1954) (same), questioned on other grounds, Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354 (D.C. Cir. 1997). Accordingly, I recommend dismissal of this allegation as charged in the complaint. L. September 17, Grievance Meeting The General Counsel argues that the limits the Respondent placed on the number of union representatives allowed in the step 1 grievance meeting held on September 17 violates the Act because: (1) refusing to allow more than one union representa- tive to attend the grievance meeting is in essence denying the Union the right to select its own representatives in violation of Board law; (2) the CBA does not limit the number of union rep- resentatives allowed at a grievance meeting; and (3) the Re- spondent’s witnesses were not credible on this issue. The Re- spondent counters that the allegation should be dismissed be- cause (1) the Act does not entitle the grievant to multiple repre- sentatives; (2) the CBA limits the grievant to one representative in grievance meetings; (3) no past practice exists; and (4) the Re- gion should have deferred this allegation to arbitration. (1) Facts The Respondent and NNOC had a collective bargaining agreement effective October 16, 2018 through May 31, 2021. Although they dispute whether the parties are subject to a new agreement, they agree the relevant language in the grievance ar- ticle is identical in both documents. The article reads in relevant part, SECTION 2. GENERAL PROCEDURES A. If a grievance effects more than one Unit or department of the Hospital, and relief is unavailable from the immediate su- pervisor, it may be submitted immediately at Step Two. All grievances must state the specific contractual provision(s) of this Agreement allegedly violated, the specific incident(s) (in- cluding names known or that become known to the Union dur- ing the grievance/arbitration process of persons allegedly in- volved) that give rise to the grievance and the remedy sought. B. Time limits under this Article may only be extended by the mutual agreement of the parties in writing. C. All grievances and responses to grievances shall be ren- dered in writing at each Step of the grievance procedure with the specific reason(s) for acceptance or denial. D. The parties agree to make available all relevant documents, communications, and records material to the alleged grievance upon request by either party in writing. E. Failure by the Union to follow the requirements and time limits contained herein for the filing and processing of a griev- ance shall render the grievance null and void. F. If the Employer fails to provide responses, in accordance with the timelines agreed upon, the grievance shall be consid- ered denied and the Union may advance it to the next step. G. The purpose of the grievance meeting is to engage in a good faith effort to resolve the dispute. At each step in the process, it is expected that individuals with authority to make agreements will participate in the meetings and will seek to come to a sat- isfactory resolution. H. Informal Resolution: Any RN who has a dispute that could be the subject of a grievance shall first present the dispute in- formally and verbally to his/her immediate supervisor before initiating a formal grievance, unless the RN's grievance directly relates to claims of unlawful harassment or discrimination by the immediate supervisor or termination of employment. This discussion may take place with or without the presence of a Union representative, at the RN’s option. If the dispute is not resolved to the RN’s satisfaction, s/he may request that the Un- ion advance the complaint to the Step One of the formal griev- ance procedure. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 SECTION 3. STEP ONE Within twenty-one (21) calendar days of the time a grievant(s) becomes aware or should have reasonably become aware of the occurrence giving rise to the grievance, the authorized Union Representative shall file the written grievance with the Man- ager of the Nursing Unit to which the grievant is regularly as- signed. For purposes of this Article, the grievance will be con- sidered filed upon hand delivery to the appropriate Manager, upon receipt of the grievance via scanned email attachment, via facsimile at 816.276.3571 or at some other fax number later designated by the Hospital in writing. The Manager with whom a grievance is appropriately filed shall be responsible for providing the Human Resources Director/V.P. with a copy of the grievance. However, an exception to this twenty-one (21) daytime limit occurs in discharge cases. A discharge grievance must be filed within ten (10) calendar days of the date the Em- ployee is informed of the discharge and must be filed initially at Step Two. The grievant and/or the authorized Union Representative and the Hospital may meet to discuss resolution of any grievance at a mutually agreed upon time and date, but such meeting(s) will not extend the time limits for processing of grievances as set out in this Section. The Grievant will be represented by the Un- ion Representative. The Hospital will be represented by the ap- propriate Hospital representative(s) which will typically be the Manager or Director of the Nursing Unit to which the Grievant is regularly assigned (or his/her designee). The Hospital shall respond, in writing to the Union within twenty-one (21) calendar days of its receipt of the grievance. SECTION 4. STEP TWO If not resolved in a mutually satisfactory manner at Step One, the authorized Union Representative may submit the grievance in writing to the Chief Nursing Officer (CNO) or previously authorized designee within seven (7) calendar days following receipt of the Hospital’s response in Step One. The grievant and/or the authorized Union Representative and the Hospital may meet to discuss resolution of any grievance at a mutually agreed upon time and date, but such meetings will not extend the time limits for processing of grievances as set out in this Section. A request to meet by either party will not be unreasonably de- nied. The Grievant may be present at the meeting and will be represented by the Union Representative. The Hospital will be represented by a member of senior management (or his/her de- signee(s)). The Hospital shall respond in writing to the Union within four- teen (14) calendar days of the CNO's or previously authorized designee's receipt of the written submission of the Step Two grievance. SECTION 5. OTHER MATTERS Grievance meetings will normally be scheduled during the non-working time of the grievant. Time spent in grievance meetings by the grievant will be unpaid time unless the griev- ance meeting is scheduled during the grievant’s work shift for the convenience of the Hospital. Representatives of the 12 Broeker gave undisputed testimony that nurse representatives re- ceive on-the-job training from experienced Union representatives. Con- sequently, Rodarmel’s or Perry’s attendance with her in the September Hospital's Human Resources Department may participate in any grievance meeting but are not obligated to do so. Investi- gation of grievances by union representatives will be conducted in accordance with Article 46 (Union Activity, Visitation and Bulletin Boards). Grievances shall be filed and responded to on the appropriate grievance form as agreed upon by the parties to this Agree- ment. (Jt. Exh. 2; Art. 14, Sec. 4.) On August 16, Broeker filed a griev- ance over the transfer of Medical/Surgical Unit patients to the Women’s Services Unit. The grievance was filed on behalf of Destinee Arthur (Arthur), the named grievant for RNs in the de- partment, and the NNOC. (Tr. 82 – 83; Jt. Exh. 3.) In her at- tempts to schedule a step 1 grievance meeting with management, Broeker responded via email to Clelland about the challenges of scheduling the meeting without violating the filing timelines for each step of the grievance process. In the email, Broeker re- vealed to Clelland that because this was her first time participat- ing in the grievance process beyond initial filings, she did not want to inadvertently “nullify the grievance” by missing the fil- ing deadlines. Ultimately, a step 1 grievance meeting was sched- uled for September 17. Broeker designated herself, Arthur, and Cheryl Rodarmel (Rodarmel) as attendees on behalf of NNOC. (GC Exh. 2; R. Exh. 13.) Additionally, Broeker noted that she would attend as the “union rep.” Id. Management, at this point, did not object to the Union’s list of proposed attendees. Meyers, Smith, and Clelland attended the step 1 meeting for the Respond- ent. Prior to the start of the step 1 grievance meeting, Broeker met with Perry, Rodarmel, and Arthur to prepare for the meeting. Ro- darmel informed them that she would not be able to attend the step 1 meeting with Broeker so Broeker asked Perry if another nurse representative was available to accompany her. Since it was Broeker’s first step 1 meeting, she wanted a more seasoned nurse representative with her for training purposes.12 Perry told her that she would attend with her telephonically, possibly as a witness, since NNOC was also listed as a grievant in the matter. Both parties agree that because of the pandemic, Perry had been allowed in the past to attend some meetings at the hospital via telephone. On September 17, Broeker and Arthur arrived for the meeting and waited in the human resources waiting room for Smith to escort them into the human resources meeting office. There is conflicting testimony about when Broeker informed manage- ment that Perry would participate by telephone. Smith testified that Broeker informed him while walking to the human resources meeting room. Smith said he responded that Perry would not be allowed to participate. According to Broeker, on the way into the meeting Smith told her that Rodarmel could not attend be- cause only union stewards were permitted, with her responding it was okay because Perry would participate by telephone in place of Rodarmel. Regardless, it is undisputed that Broeker was told before entering the meeting room that Perry was not allowed to attend. She immediately texted this message to Perry, who insisted that regardless of her union role, she should be allowed to attend because she is needed as a witness for “bargaining his- tory.” (Tr. 40.) There is no dispute that in the meeting Broeker 17, step 1 meeting would have been part of her on-the-job training for grievance meetings. (Tr. 35.) MIDWEST DIVISION—RMC, LLC, D/B/A RESEARCH MEDICAL CENTER 19 told Meyers that Perry would be participating by telephone, but he told her it would not be allowed. Although Meyers admits that he had not previously told Broeker, Perry or any union rep- resentative that the hospital intended to limit the number of nurse representatives allowed in step 1 meetings, he did not budge on allowing Perry to participate. Clellan also reminded Broeker that “you are both representatives for the Union. You fill the same role.” (Tr. 40 – 41.) Broeker claims that Smith gave her the op- tion to defer the meeting, but he denies it and insists it was Mey- ers. Regardless, the parties agree that she was told she could defer the meeting, but Broeker chose to go forward because she was concerned that a delay would give the Respondent grounds for dismissing the grievance for being untimely.13 (Tr. 71–2.) Broeker was concerned about meeting the deadline despite the Respondent’s previous willingness to grant an extension on holding the step 1 meeting without threatening to nullify the grievance based on timeliness. (R. Exh. 14.) Meyers testified that he told Broeker she could pause the meeting whenever she needed to contact and confer with Perry, but she did not recall that exchange.14 The step 1 meeting proceeded without Perry’s participation. However, Perry did text Meyers on the day of the step 1 meeting to protest her exclusion. (Jt. Exh. 4.) On Septem- ber 21, Meyers emailed Perry that he disagreed with her charac- terization that he denied the Union to have a representative in the meeting. (Jt. Exh. 5.) (2) Analysis The General Counsel insists that Board law gives NNOC an “absolute right” to select the representative of its choosing and by extension the Respondent cannot limit the number of repre- sentatives NNOC uses to bargain with the Respondent. Second, the General Counsel argues that under Board law this case is in- appropriate for deferral to the grievance process because, if de- ferred, it would leave unresolved the Respondent’s interference in a Section 7 right guaranteeing employees the right to designate and be represented by representatives of their choice. The Re- spondent counters that the charge is without merit because the CBA allows the Union only one representative in the meeting. Further, the Respondent argues that the Act does not entitle an employee to have multiple representatives in “a meeting.” (R. Br. 38–39.) The Respondent also contends that its action was lawful because (1) Broeker self-identified on September 17 as the union representative and on the grievance form identified herself as the union representative; (2) Broeker was given the option to stop and confer telephonically with Perry whenever needed; (3) neither Broeker nor Perry requested that Perry sub- stitute for Broeker in the meeting; and (4) Native Textiles is not applicable and the case should have been deferred to arbitration. Based on the evidence, I find that the Respondent unlawfully denied the Union its right to have the representatives of its choos- ing participate in the step 1 grievance meeting. The Board has consistently held that the Union has the right to select its own representatives, with a few exceptions that neither party argues apply in this case. Long Island Jewish Medical Center, 296 NLRB 51, 71 (1989); United Parcel Service, 330 NLRB 1020, 1020 fn. 1 (2000). Despite the Respondent’s argument to the contrary, the CBA does not explicitly state that the Union is lim- ited to one representative in grievance meetings and the 13 The deadline for filing the next step in the grievance process was the day after the September 17, step 1 grievance meeting. 14 While Broeker testified that she “definitely” did not remember Meyers making the statement, she did not explicitly deny that it was grievance process. In fact, CBA is silent on the issue. The ap- plicable provision reads in relevant part, The grievant and/or the authorized Union Representative and the Hospital may meet to discuss resolution of any grievance at a mutually agreed upon time and date, but such meeting(s) will not extend the time limits for processing of grievances as set out in this Section. The Grievant will be represented by the Un- ion Representative. The Hospital will be represented by the ap- propriate Hospital representative(s) which will typically be the Manager or Director of the Nursing Unit to which the Grievant is regularly assigned (or his/her designee). (Jt. Exh. 2.) The Respondent argues that because the provision identifies its representatives using the plural but the singular for the Union representative, then that is a clear indication the intent of the provision is to restrict the number of Union representatives in the grievance process to one. I disagree. I find that the CBA is silent on this point. Consequently, this case is analogous to United Parcel Service where the Board found that the em- ployer’s refusal to allow two employees to assist the union sec- retary at grievance hearings violated the Act. In the case, the CBA was also silent on the issue of the number of Union repre- sentatives allowed to attend grievance “hearings.” Id. at 1020 fn. 1. In bargaining sessions for this agreement, the parties could have included language specifying anywhere from one to an un- limited number of representatives each party is allowed to par- ticipate in the grievance process, but they chose silence instead. Moreover, Meyers clearly indicated in his September 21 email to Perry that his intent was to limit the Union to one representa- tive in the meeting. (Jt. Exh. 5.) Consequentially, this restricts the Union’s choices as to who it may choose to represent the bar- gaining unit member’s interests at the meeting. This violates the Act because, as noted earlier in the decision, the rights guaran- teed to employees in Section 7 include the right “to bargain col- lectively through representatives of their own choosing . . . .” See Brighton Retail, Inc., at 441. Board law also makes clear that the Union has the right to select its own representatives, par- ticularly when the CBA is silent on the issue. United Parcel Ser- vice at 1020 fn. 1; Missouri Portland Cement, 284 NLRB 432, 433 (1987) (the Board held that the employer violated the Act when it refused to bargain with two of the employees’ represent- atives). Second, the Respondent argues that the Act does not entitle the grievant to multiple representatives in the grievance process. The Respondent relies primarily on NLRB v. Weingarten, 420 U.S. 251 (1975), to support its position but also cites Barnard College, 340 NLRB 934, 935 (2003). Neither case is applicable. Weingarten and Barnard College involve the right to represen- tation at interviews that are disciplinary in nature or where the employee reasonably fears that the interview may lead to disci- pline. Weingarten at 256–257, 262; Barnard College at 935. The matter at hand involves a step 1 grievance about a term and/or condition of employment, unilateral work reassignments. There is no evidence that the step 1 meeting was investigatory or disci- plinary in nature. Therefore, I find the Respondent’s argument on this point and the cases cited unpersuasive. The Respondent also contends that because Broeker checked on the grievance form that she would serve as the Union made. (Tr. 72.) Even assuming that Meyers made the statement, it does not necessarily negate the Respondent’s statutory obligation to meet with the Union’s designated representative. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 representative it is “fatal to this claim.” (R. Br. 39.) According to the Respondent, Broeker “again self-identified as the ‘union- re[presentative]’ who would be attending the September 17 Step 1 meeting on behalf of Arthur—and in fact did so.” (R. Br. 39 citing Tr. 38, 98, 196.) The Respondent argues that because Broeker was given an option to either postpone the meeting or interrupt the meeting as needed to confer with Perry and because neither Perry nor Broeker requested that Perry substitute for Broeker, this is evidence that the Respondent did not select the grievant’s representative. I find the Respondent’s arguments less than compelling. Broeker’s initial identification of herself as the Union representative on the grievance does not preclude the Un- ion from deciding to change its representative. There is no case law to support this view. Moreover, it is irrelevant if Broeker self-identified as the Union representative on September 17, be- cause the issue is whether by limiting the number of Union rep- resentatives who could participate in the step 1 meeting, the Re- spondent was in effect choosing who could represent the Union in violation of the Act. I have already found above that the an- swer is clearly yes. Likewise, the Respondent’s offer to resched- ule or allow Broeker to leave the meeting to confer with Perry does not negate its statutory duty to refrain from interfering with “the right of employees, acting through their union” to freely se- lect the representatives of their choosing to act on their behalf in the grievance process. Missouri Portland at 433; United Parcel Service at 1020 fn. 1. The Respondent also argues that the General Counsel cannot establish that a past practice allowed multiple Union representa- tives to attend grievance meetings. However, the General Coun- sel did not specifically raise this argument in its post-hearing brief so I will not address it. Last, the Respondent contends that this charge should have been deferred to arbitration and Native Textiles is not applicable. In Native Textiles, the Board held, When it is alleged, as here, that an employer is refusing to rec- ognize a designated representative of its employees, especially for a matter of such obvious importance to employees as pro- cessing grievances, it is not simply a matter of contract inter- pretation but rather an alleged interference with a basic statu- tory right of employees that this Board is entrusted with pro- tecting. Accordingly, it is not a matter to be deferred to arbitra- tion, but rather one which requires the Board to invoke its ju- risdiction and exercise its expertise. Native Textiles at 229. According to the Respondent the case is inapposite because “the Hospital—undeniably—did not select the representative; it merely required NNOC to determine which representative it wished to attend the meeting (Broeker or Perry).” (R. Br. 46.) However, I have previously found in this decision that the Respondent did, in fact, select the Union’s rep- resentative manifested by its action of restricting the number of Union officials who could participate in the step 1 grievance meeting. Consequently, I reject the Respondent’s argument on this point. Accordingly, I find that the Respondent violated the Act as charged in the complaint. CONCLUSIONS OF LAW 1. The Respondent, Midwest Division – RMC, LLC, d/b/a Re- search Medical Center, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and has been a health care institution within the meaning of Section 2(14) of the Act. 2. National Nurses Organizing Committee – Missouri and Kansas/National Nurses United, AFL-CIO is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Service Employee International Union HCH, – Missouri and Kansas Division is a labor organization within the meaning of Section 2(5) of the Act. 4. By on or about August 15, withdrawing recognition from the SEIU as the collective bargaining representative of the unit, the Respondent violated Section 8(a)(1) and (5) of the Act. 5. By failing and refusing to fully provide relevant information requested by the SEIU on or about June 3, June 30, August 4, September 17, October 7, and October 25, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the Act. 6. By refusing to meet and confer over PRN pay as required by Article 38 of the agreement, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the Act. 7. By ceasing the deduction and remittance of union dues to the SEIU as required by Article 37 of the agreement, the Re- spondent has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and (5) of the Act. 8. By denying SEIU representatives’ access to the Respond- ent’s facility since about July 26, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the Act. 9. By denying SEIU requests for steward training time since about July 28, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) and (5) of the Act. 10. By sending flyers to employees about June 14, the Re- spondent coerced employees by telling them that SEIU had been decertified and no longer represented the employees has been in- terfering with, restraining, and coercing employees in the exer- cise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. 11. By refusing to meet with the NNOC’s designated repre- sentative, the Respondent has engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a)(1) and (5) of the Act. 12. The above violations are unfair labor practices that affects commerce within the meaning of Section 2(6) and (7) of the Act. 13. The Respondent has not violated the Act except as set forth above. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent, having discriminatorily withdrawn recogni- tion from the SEIU as the collective-bargaining representative of the Unit, must cease this practice. The Respondent, having discriminatorily failed and refused to provide SEIU with requested information, must provide the in- formation requested. The Respondent, having discriminatorily refused to meet and confer over PRN pay, must meet and confer over PRN pay with SEIU. The Respondent, having discriminatorily ceased the deduction and remittance of SEIU dues from bargaining unit member, must MIDWEST DIVISION—RMC, LLC, D/B/A RESEARCH MEDICAL CENTER 21 continue deduction and remittance of SEIU dues and make whole the charging party for the deduction and remittance of un- ion dues that should have been made for the relevant period. The Respondent, having discriminatorily denied SEIU repre- sentatives’ access to the Respondent’s facility and denied SEIU requests for steward training time, must cease this practice and allow SEIU representatives access to the Respondent’s facility and grant it steward training time so that it may fulfill its duties as the exclusive collective-bargaining representative of the unit. The Respondent, having discriminatorily coerced employees by telling them via flyers that the SEIU had been decertified and no longer represented them, must rescind the flyers and notify employees that as of the date of the flyers SEIU had not officially been decertified and therefore continued to serve as their exclu- sive collective-bargaining representative. The Respondent, having discriminatorily refused to meet with the NNOC’s designated representative, must cease this practice and notify NNOC and the bargaining unit that it will not refuse to meet with NNOC’s designated representatives. Further, the Respondent will be required to post and com- municate by electronic post to employees the attached Appendix and notice that assures its employees that it will respect their rights under the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended15 ORDER The Respondent, Midwest Division—RMC, LLC, d/b/a Re- search Medical Center, Delaware with an office and place of business in Kansas City, Missouri, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Withdrawing recognition from the SEIU prior to the de- certification vote being officially certified. (b) Failing and refusing to provide necessary and relevant in- formation in response to SEIU’s requests for information. (c) Refusing to meet and confer with the SEIU over PRN pay. (d) Ceasing to deduct and remit union dues to the SEIU. (e) Denying SEIU representatives’ access to the Respondent’s facility. (f) Denying SEIU’s requests for steward training time. (g) Coercing employees by submitting flyers to inaccurately notify employees that the SEIU has been decertified and no longer represents them. (h) Refusing to meet with the NNOC’s designated representa- tive for grievance meetings. (i) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the purposes and policies of the Act. (a) Within 14 days from the date of the Board’s Order, notify employees that the SEIU was not officially decertified and con- tinued to represent them. (b) Within 14 days from the date of the Board’s Order, pro- vide the SEIU with the information it requested as described in the complaint. 15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Or- der shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. (c) Withing 14 days from the date of the Board’s Order, notify SEIU that it will not refuse to meet and confer over PRN pay as required by Article 38 of the agreement. (d) Within 14 days from the date of the Board’s Order, notify SEIU that it will not deny SEIU access to its facility or deny SEIU steward training time. (e) Within 14 days from the date of the Board’s Order, notify SEIU that it will not coerce employees by telling them that SEIU had been decertified and no longer represented them prior to the official certification of the decertification vote. (f) Within 14 days from the date of the Board’s Order, notify NNOC that it will not refuse to meet with its designated repre- sentative. (g) Within 14 days from the date of the Board’s Order, make the SEIU whole for the failure of the Respondent to deduct and remit SEIU dues for the period at issue and any other monetary loss suffered as a result of the Respondent’s refusal to deduct and remit SEIU dues. (h) Within 14 days after service by the Region, post at its fa- cilities in Kansas City, Missouri copies of the attached notice marked “Appendix.”16 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspic- uous places including all places where notices to employees and members are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the 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 March 4, 2021. (i) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated: Washington, D.C. May 16, 2023 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 notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union; Choose representatives to bargain with us on your be- half; 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 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 Act together with other employees for your benefit and protection; Choose not to engage in any of these protected activi- ties. WE WILL NOT interfere with, restrain, or coerce you in the ex- ercise of the above rights. WE WILL NOT (a) Withdraw recognition from the SEIU prior to the decertifi- cation vote being officially certified and refuse to bargain with it as the chosen exclusive collective-bargaining representative of your bargaining unit. (b) Fail or refuse to provide the SEIU information that is rele- vant and necessary to its role as the exclusive collective-bar- gaining representative of your employee bargaining unit. (c) Refuse to meet and confer with the SEIU over PRN pay. (d) Cease to deduct and remit union dues to the SEIU. (e) Deny SEIU representatives’ access to the Respondent’s fa- cility. (f) Deny SEIU’s requests for steward training time. (g) Coerce employees by submitting flyers to inaccurately no- tify employees that the SEIU has been decertified and no longer represents them. (h) Refuse to meet with the NNOC’s designated representative for grievance meetings. Surveil or appear to surveil you in the exercise of your union activities. WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act. MIDWEST DIVISION—RMC, LLC, D/B/A RESEARCH MEDICAL CENTER The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/14-CA-287441 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., Washington, D.C. 20570, or by calling (202) 273–1940.