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

The Carney Hospital and Service Employees International Union, Local 285.[1] Case 1–CA–38280

August 13, 2007

DECISION AND ORDER

By Chairman Battista and Members
Schaumber and Walsh

Under Redd-I, Inc., 290 NLRB 1115 (1988), unfair labor practice allegations that are otherwise time-barred by the 6-month limitations period in Section 10(b) of the Act may be litigated if they are legally and factually “closely related” to allegations of a prior timely filed charge. This case presents the issue of whether a timely charge alleging an 8(a)(3) violation and otherwise untimely amendments to that charge alleging 8(a)(1) violations are factually “closely related” under Redd-I because all of the alleged conduct occurred during the same organizational campaign.[2]

For the reasons set forth herein, we hold that the mere occurrence of the alleged violations during or in response to the same organizing campaign is insufficient to establish the close factual relationship required by Section 10(b). Accordingly, with the exception of the handbook rules violations, discussed below, we find that the 8(a)(1) violations alleged in the amended charge and complaint, and found by the judge, must be dismissed. Further, because the Board’s decision in Ross Stores, Inc., 329 NLRB 573 (1999), enf. denied in relevant part 235 F.3d 669 (D.C. Cir. 2001), is inconsistent with our decision here, we overrule it.

i. facts

The Respondent operates an acute care hospital. Early in 2000,[3] the Union commenced an organizing campaign among a unit comprising the Respondent’s service and maintenance employees. An election was held on April 27, which the Union lost. The Union filed timely objections to the election, and a hearing was scheduled for June 14.

Willie Foxworth was a unit employee who openly supported the Union during the organizing campaign. He was scheduled to testify on behalf of the Union at the June 14 hearing. On June 9, however, the Respondent suspended Foxworth for 3 days, purportedly because of a report that Foxworth had threatened another employee with physical harm 1 week earlier. The Union filed a timely charge on June 29, alleging that Foxworth’s suspension violated Section 8(a)(3).

Ten months later, on April 29, 2001, the Union amended the charge to further allege that, prior to the April 2000 election, the Respondent violated Section 8(a)(1) and (3) by, among other things, interrogating employees, threatening them with job loss and loss of employment benefits, surveilling their union activities, and implying that collective bargaining would be a futile process. The Union again amended the charge on May 8 to add allegations that, during the previous 12 months, the Respondent maintained rules in its employee handbook pertaining to solicitation of patients, distribution of literature, and disclosure of confidential information, all in violation of Section 8(a)(1) and (3).

The General Counsel issued a complaint alleging that the conduct set forth in the initial charge and both of the amended charges violated the Act.[4] In its answer to the complaint, and at the hearing, the Respondent asserted that the 8(a)(1) complaint allegations were time-barred by Section 10(b) because the amended charges containing those allegations were filed in April and May 2001, more than 6 months after April 2000, when the Section 8(a)(1) conduct allegedly occurred.

ii. judge’s findings

The judge rejected the Respondent’s 10(b) defense. As to the alleged handbook rule violations, he found that the allegations were timely under a “continuous violation” theory. That is, although the rules were adopted more than 6 months prior to the filing of the second amended charge, the rules were maintained during the 6-month period prior to the filing of that charge. See, e.g., Teamsters Local 293 (Lipton Distributing), 311 NLRB 538, 539 (1993).

As for the remaining 8(a)(1) allegations, the judge applied Redd-I, supra, as interpreted in Ross Stores, supra. He found that although, standing alone, the allegations were untimely, they were “closely related” to the timely filed 8(a)(3) charge because all of the conduct arose out of the Respondent’s antiunion campaign. After rejecting the Respondent’s 10(b) defense, the judge addressed the merits and found the violations as alleged in the complaint.

For the reasons stated by the judge, we agree that the Respondent violated Section 8(a)(3) and (1) by suspending Foxworth and violated Section 8(a)(1) by maintaining facially invalid rules in its employee handbook pertaining to the disclosure of confidential information, the solicitation of patients, and the distribution of material to patients. We reverse the judge, however, and find that the remaining 8(a)(1) allegations are time-barred by Section 10(b).[5]

iii. analysis

Section 10(b) provides that “no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board.” This statutory provision serves “‘two separate functions.’” Precision Concrete v. NLRB, 334 F.3d 88, 90 (D.C. Cir. 2003) (quoting Ross Stores, Inc. v. NLRB, 235 F.3d 669, 677 (D.C. Cir. 2001) (Randolph, J., concurring)). First, it underscores that the General Counsel and Board lack independent authority to initiate unfair labor practice proceedings in the absence of a charge filed by an outside party. In this respect, Section 10(b) operates as a jurisdictional limitation, under which the Board (through the General Counsel) “may investigate and prosecute conduct only in response to the filing of a ‘charge.’” 334 F.3d at 90. Second, Section 10(b) functions in part as a statute of limitations by prohibiting the issuance of a complaint based on conduct occurring more than 6 months prior to the filing of a charge.[6]

Notwithstanding the literal language of Section 10(b), the Supreme Court has long since made clear that Section 10(b) permits litigation of certain unfair labor practice allegations that were not raised in a timely charge:

Once its jurisdiction is invoked the Board must be left free to make full inquiry under its broad investigatory power in order properly to discharge the duty of protecting public rights which Congress has imposed upon it. There can be no justification for confining such an inquiry to the precise particularizations of a charge. . . .

What has been said is not to imply that the Board is . . . to be left carte blanche to expand the charge as they might please, or to ignore it altogether. . . . [But] the Board is not precluded from dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board.

NLRB v. Fant Milling Co., 360 U.S. 301, 308–309 (1959) (footnotes, citations, and internal quotations omitted).[7]

Traditionally, both courts and the Board have permitted litigation of otherwise untimely allegations that are “closely related” to a timely filed charge and involve conduct occurring within 6 months of that timely charge. E.g., NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d Cir. 1952). The Board set forth its test for determining whether allegations are “closely related” in Redd-I. See Peerless Pump Co., 345 NLRB No. 20, slip op. at 4 (2005). Under the Redd-I test, the Board (1) considers whether the otherwise untimely allegations involve the same legal theory as the allegations in the timely charge; (2) considers whether the otherwise untimely allegations arise from the same factual situation or sequence of events as the allegations in the timely charge; and (3) “may look” at whether a respondent would raise the same or similar defenses to both the untimely and timely charge allegations. Redd-I, supra, 290 NLRB at 1118.[8]

The Redd-I “closely related” test strikes a reasonable balance between the statutory limitations on litigation expressed in Section 10(b) and the need to assure broad leeway for the exercise of Board authority, once properly invoked by the filing of a charge, to advance the public interest. Adherence to the requirement that an untimely allegation be closely related to a timely filed charge insures both that the Board is operating within the scope of matters raised by that charge and that, on any given day, a party generally is assured that its liability is extinguished for any activities occurring more than 6 months earlier that are not the subject of—or closely related to—a pending timely charge. Redd-I, 290 NLRB at 1118.[9]

As noted above, the second prong of the Redd-I test requires the Board to determine whether otherwise untimely allegations arise from the same factual situation or sequence of events as the allegations in a timely charge. In Nippondenso Mfg. U.S.A., 299 NLRB 545 (1990), the required factual nexus was found lacking. There, the charge alleged that the respondent violated Section 8(a)(3) by discharging an employee-member of an organizing committee. The complaint omitted this allegation and, instead, alleged various 8(a)(1) violations regarding the posting of union literature and the wearing of union insignia. The Board found that “apart from their relationship to the same organizing campaign,” the allegations in the charge and those set forth in the complaint arose from different circumstances. Id. at 546. In so finding, the Board noted the absence of any contention that the discharge stemmed from the posting of union literature or wearing of union insignia by the employee whose discharge was alleged in the charge to be unlawful. Id. Accordingly, the Board concluded that the complaint allegations must be dismissed as insufficiently related factually to the allegation in the charge.

In Drug Plastics & Glass Co., 309 NLRB 1306 (1992), the Board found that the Redd-I test was satisfied where the timely charge alleged an 8(a)(3) discharge of a union supporter during a union campaign, and the subsequent complaint added numerous uncharged 8(a)(1) violations that allegedly occurred during the campaign. The Board found that the uncharged allegations nevertheless were factually related because they “arose out of the Respondent’s overall plan to resist the Union,” they “occurred after the Respondent’s acknowledged awareness of the organizing effort,” several of the allegations involved statements to the employee who was the subject of the timely 8(a)(3) allegation, and “the 8(a)(1) allegations generally occurred during the same time period as the 8(a)(3) allegation.” Id. at 1306 fn. 2.

The D.C. Circuit denied enforcement. Drug Plastics & Glass Co. v. NLRB, 44 F.3d 1017 (D.C. Cir. 1995). The court discerned no record support for the Board’s finding that the allegations arose out of an overall plan to resist the union. The court found that no such plan was alleged, and the only relationship disclosed by the allegations was that the alleged incidents occurred during the same time period. The court made clear that a mere chronological relationship is insufficient to establish factual relatedness under both the court’s precedent and the Board’s.

The court rejected the Board’s reliance on the alleged conduct having arisen out of the same antiunion campaign as a basis for finding factual relatedness. As the court observed, such reliance would be inconsistent with the Board’s own precedent in Nippondenso. 44 F.3d at 1021. Because the Board had neither explained “its departure from Nippondenso” nor “overruled that opinion,” the second prong of Redd-I’s test was not satisfied and the complaint allegations were 10(b) barred. 44 F.3d at 1022.

In Wal-Mart Stores, 325 NLRB 124 (1997), the Board found the Redd-I test satisfied where the allegations in a timely charge and in a complaint both addressed threats of plant closure. The Board found the allegations to be “factually similar” because they both alleged “that an official of the Respondent threatened that the Respondent’s facility would close if the Union were chosen as the employees’ bargaining representative.” Id. at 125. The Board further noted that both statements were “alleged to have occurred during the same period, i.e., during the Union’s organizing campaign.” Id.

The Fourth Circuit denied enforcement. Sam’s Club v. NLRB, 173 F.3d 233 (4th Cir. 1999). Like the D.C. Circuit, it held that “[a] mere chronological relationship between the two events is not enough, nor is it enough that the events simply occurred during the same union organizing campaign or reflected anti-union animus.” Id. at 246 (citing Drug Plastics, supra, 44 F.3d at 1021). The court further found that the alleged threats were not shown to be related as parts of an overall “effort or crusade against the Union through illegal means.” Id. at 247. Instead, the threats “were two discrete and insular occurrences over the course of the Union’s organizing campaign.” Id. at 248. They were allegedly made by different managers with different levels of responsibility. The managers acted independently, and their alleged threats were not part of a chain or “progression of events.” Id. at 247.

In an effort to reconcile the conflict in precedent discussed by the D.C. Circuit in Drug Plastics, a Board majority in Ross Stores, supra, 329 NLRB 573, overruled Nippondenso. It did so stating that Nippondenso was an “aberrant” decision, 329 NLRB at 575, at odds with “other precedent” which consistently held that the factual relationship requirement under the second prong of Redd-I could be met “based on acts that arise out of the same antiunion campaign.” Id. at 574. The Board went on to find, however, that each of the allegations also “was part of the Respondent’s overall efforts to resist that [union organizing] campaign.” Id. On those grounds, the Board majority held that an untimely charged 8(a)(1) warning to an employee against union solicitation, having satisfied Redd-I’s test in all other respects, was cognizable because it was closely related to a timely charged 8(a)(3) discharge allegation involving the same employee.

The D.C. Circuit denied enforcement, stating that the “Board’s contention that the factual relationship prong can be satisfied solely on the basis that the separate acts arise out of the same anti-union campaign here is a deviation from the very precedent it cites.” Ross Stores, Inc. v. NLRB, supra, 235 F.3d at 673 (emphasis in original). That precedent, the court stated, had always “required both that the separate incidents” in a timely charge and a complaint “be part of the same union organizing campaign and that they be part of an overall employer plan to undermine the union activity.” Id. (Emphasis in original.)

The court acknowledged that the Board had also specifically found that the alleged incidents were part of the employer’s overall efforts to resist the union’s campaign, but held that the finding was unsupported by the record. Thus, there was no indication that the warning against solicitation and the discharge were related, “except by the happenstance that the unrelated two violations occurred during a single campaign and involved the same pro-union employee.” Id. The court concluded that this showing was insufficient and that “some additional factual similarity is necessary before an allegation not timely charged can be exempted from the literal application of Section 10(b)’s limitation period under the closely related test. And there is none here.” Id. at 674–675.

We agree with the D.C. and Fourth Circuits that factual relatedness under Redd-I is not shown simply because two events occurred close in time, during the same union organizing campaign, or in response to a campaign. Mere chronological coincidence during a union’s campaign does not warrant the implication that all challenged employer actions are related to one another as part of a planned response to that campaign.

We agree that a sufficient factual relationship can be established by showing that the timely and untimely alleged employer actions are “part of an overall employer plan to undermine the union activity.” Ross Stores, supra, 235 F.3d at 673; accord Sam’s Club, supra, 173 F.3d at 246 (“If . . . allegations are demonstrably part of an employer’s organized plan to resist union organization, they are closely related.”). This is not a new concept. For example, in Well-Bred Loaf, Inc., 303 NLRB 1016 fn. 1 (1991), complaint allegations were found factually related to a timely filed charge “because they all occurred within the same general time period and concern[ed] conduct which constitute[d] an overall plan to resist the Union” (emphasis added). Similarly, in Recycle America, 308 NLRB 50 (1992), the Board found the requisite factual relatedness where the charge and complaint both asserted conduct that “occurred within the same general time period” during the union’s organizing campaign and was part of an overall plan by the respondent to “resist union organization.” Id. at 50.

We do not suggest, however, that the second prong of Redd-I can be satisfied only by a showing that alleged violations during a union campaign were part of an overall employer plan to undermine union activity. There was, for instance, no question of an “overall plan” in Nippondenso. Instead, the Board looked to whether the timely and untimely allegations arose from the same factual situation or sequence of events and found they did not, noting there was no contention that the alleged discriminatee was disciplined for having engaged in the conduct that was the subject of the untimely allegations. 299 NLRB at 546.

In sum, consistent with Nippondenso and other pre-Ross Stores precedent that represent the appropriate application of the factual relatedness prong of Redd-I’s closely related test, we will not find that the second prong is satisfied merely because timely and untimely allegations pertain to events that occurred during or in response to the same union campaign. But where the two sets of allegations “demonstrate similar conduct, usually during the same time period with a similar object,”[10] or there is a causal nexus between the allegations and they are part of a chain or progression of events, or they are part of an overall plan to undermine union activity, we will find that the second prong of the Redd-I test has been satisfied.[11] To the extent that Ross Stores and any of our other prior decisions are inconsistent with our decision today, they are overruled.

iv. application of redd-i to this case

Applying the principles stated above, we find that the 8(a)(1) allegations are barred by Section 10(b). Contrary to the judge’s finding, they are not factually closely related on any basis to the allegations in the timely charge alleging that Willie Foxworth was suspended in violation of Section 8(a)(3) and (1).[12]

First, the untimely 8(a)(1) allegations and Foxworth’s timely charged suspension do not involve similar conduct. Second, there is no indication that the incidents were part of a chain or progression of events. Foxworth was not alleged to have been subjected to any of the interrogations, threats of job loss, surveillance, or threats that collective bargaining would be futile alleged in the untimely charge. See WGE Federal Credit Union, 346 NLRB No. 87, slip op. at 2 (2006) (factual relatedness not found where individuals implicated in timely charge were not involved in untimely amended charge). Although Foxworth was subjected to an untimely alleged threat of loss of benefits, this threat was made in April by his immediate supervisor, Kathleen O’Brien, who was not involved in his suspension, 6 weeks later, purportedly for threatening another employee.[13] Thus, the alleged threat of loss of benefits is not factually related to the timely charged suspension either. Ross Stores, Inc. v. NLRB, supra, 235 F.3d at 673–674; cf. Kentucky Tennessee Clay Co., 343 NLRB 931, 932 (2004) (factual relatedness found where same supervisor “followed through” with untimely alleged reduction of employee’s hours by subsequently terminating him as alleged in timely charge).

Finally, although the events occurred during the same organizational campaign and the same general time period, we have held above that a chronological relationship without more is insufficient to support a finding of factual relatedness.

Further, there is no showing here that the two sets of allegations involve events that are “part of an organized plan to resist union organization.” Sam’s Club v. NLRB, supra, 173 F.3d at 246. The record does not disclose that the alleged 8(a)(1) violations and Foxworth’s suspension were any more than separate actions carried out independently by several different Respondent officials. See id. at 247–248; see also Ross Stores v. NLRB, supra, 235 F.3d at 672.

Having determined that the second prong of the Redd-I test has not been established, the final inquiry is whether the untimely 8(a)(1) allegations can nonetheless survive a 10(b) time-bar defense if the first prong, i.e., the common legal theory prong, of Redd-I has been met. We find that they cannot. As the court noted in Drug Plastics, 44 F.3d at 1021–1022, “Nippondenso makes clear . . . that allegations which are related by mere legal theory are not ‘closely related’ for purposes of §10(b). . . .” Accord Precision Concrete v. NLRB, supra, 334 F.3d at 93; Sam’s Club v. NLRB, supra, 173 F.3d at 245 and 248.[14]

In sum, we find that the amended charge alleging the 8(a)(1) violations is not closely related to the timely charge alleging the 8(a)(3) suspension of Foxworth. Accordingly, because those allegations were time-barred under Section 10(b) and should not have been considered by the judge, we reverse his findings that the Respondent violated Section 8(a)(1).

amended remedy

Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and take certain affirmative action necessary to effectuate the policies of the Act.[15] Specifically, we shall order the Respondent to reimburse Willie Foxworth for the wages he lost as a result of his unlawful suspension in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1172 (1987).[16]

ORDER

The National Labor Relations Board orders that the Respondent, The Carney Hospital, Dorchester, Massachusetts, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Maintaining any overly broad rule prohibiting solicitation and distribution.

(b) Maintaining any overly broad confidentiality rule.

(c) Suspending or otherwise discriminating against any employee for supporting a union or engaging in other protected activity.

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

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

(a) Notify all employees that the version of the solicitation and distribution rule that was contained in the employee handbook prior to June 30, 2003, is rescinded, void, of no effect and will not be enforced. Further notify all employees that the Respondent will not prohibit employees from soliciting and distributing material to patients in a manner protected by the Act.

(b) Notify all employees that the version of the confidentiality rule that was contained in the Respondent's employee handbook prior to June 30, 2003, is rescinded, void, of no effect and will not be enforced. Further notify all employees that the Respondent will not prohibit employees from discussing the terms and conditions of their employment in a manner protected by the Act.

(c) Furnish all current employees with inserts for the current edition of the employee handbook that (1) advise that the unlawful provisions in 2(a) and 2(b), above, have been rescinded, or (2) provide the language of lawful provisions; or publish and distribute to all current employees a revised reference guide that (1) does not contain the unlawful provisions, or (2) provides the language of lawful provisions.

(d) Make Willie Foxworth whole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the amended remedy section of this decision.

(e) Within 14 days from the date of this Order, remove from its files any reference to Foxworth’s unlawful suspension and, within 3 days thereafter, notify him in writing that this has been done and that the suspension will not be used against him in any way.

(f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(g) Within 14 days after service by the Region, post at its facility in Dorchester, Massachusetts, copies of the attached notice marked “Appendix.”17 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, 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 June 9, 2000.

(h) 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.

It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.

Dated, Washington, D.C., August 13, 2007

Robert J. Battista, Chairman

Peter C. Schaumber, Member

Dennis P. Walsh, 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 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 behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities

We will not maintain any overly broad rule prohibiting solicitation and distribution.

We will not maintain any overly broad confidentiality rule.

We will not interfere with your right to discuss the terms and conditions of your employment in a manner protected by the National Labor Relations Act.

We will not suspend or otherwise discriminate against any employee for supporting a union or engaging in other protected activity.

We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

We will notify you that the version of the solicitation and distribution rule that was contained in our employee handbook prior to June 30, 2003, is rescinded, void, of no effect and will not be enforced, and that we will not prohibit employees from soliciting and distributing material to patients in a manner protected by the Act.

We will notify you that the version of the confidentiality rule that was contained in the Respondent’s employee handbook prior to June 30, 2003, is rescinded, void, of no effect and will not be enforced, and that we will not prohibit employees from discussing the terms and conditions of their employment in a manner protected by the Act.

We will furnish all of you with inserts for the current edition of the employee handbook that (1) advise that the unlawful provisions, above, have been rescinded, or (2) provide the language of lawful provisions; or publish and distribute to all current employees a revised reference guide that (1) does not contain the unlawful provisions, or (2) provides the language of lawful provisions.

We will make Willie Foxworth whole for any loss of earnings and other benefits suffered as a result of our discrimination against him.

We will, within 14 days from the date of the Board’s Order, remove from our files any reference to Foxworth's unlawful suspension, and we will, within 3 days thereafter, notify him that this has been done and that the suspension will not be used against him in any way.

The Carney Hospital, Inc.

Kathleen McCarthy, Esq., for the General Counsel.

Geoffrey P. Wermuth, Esq. (Murphy, Hesse, Toomey & Lehane, LLP), of Boston, Massachusetts, for the Respondent.

DECISION

Statement of the Case

Paul Bogas, Administrative Law Judge. This case was tried in Boston, Massachusetts, on September 22 and 23, 2003, upon a complaint issued on May 17, 2001. The Service Employees International Union, Local 285, AFL–CIO (the Union) filed the underlying charges. The complaint alleges that The Carney Hospital (the Respondent or the hospital) violated the National Labor Relations Act (the Act) by suspending an employee because of his union and protected concerted activities and by making threats, engaging in surveillance, interrogating employees about their union sympathies, implying that selection of a collective-bargaining representative would be futile, and maintaining certain policies in its employee handbook regarding solicitation/distribution, and confidentiality.1

On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the parties, I make the following findings of fact and conclusions of law.

Findings of Fact2

i. jurisdiction

The Respondent, a corporation, operates a hospital in Dorchester, Massachusetts, where it annually derives gross revenues in excess of $250,000, and purchases and receives goods valued in excess of $5000 from points outside the Commonwealth of Massachusetts. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

ii. alleged unfair labor practices

A. Background

The Respondent operates a full-service community hospital that has approximately 1350 employees. The Respondent’s service and maintenance employees are not represented by a union for collective bargaining purposes and, in 2000, the Union began a campaign to represent those employees. Union supporters distributed prounion leaflets and other materials to employees and wore buttons with prounion slogans. The Hospital responded with an antiunion campaign that included distributing written materials and having officials talk directly to employees about unionization.

The representation election was held on April 27, 2000. A majority of eligible voters who cast ballots, voted against designating the Union as their collective-bargaining representative. On May 4, 2000, the Union filed objections to the conduct of the election and to conduct affecting the results of the election. A hearing regarding the objections was held on 5 days beginning June 14. On August 14, the hearing officer issued a report stating that the evidence showed the Respondent had engaged in improper interrogations, surveillance, threats and promises, and had made statements implying that it would be futile for the employees to unionize. On May 3, 2003, the Board issued a decision in which it adopted the hearing officer’s findings and recommendations, set aside the election, and ordered a new election.3

B. Respondent’s Campaign Against Union

Officials of the Respondent met with employees in an effort to persuade them not to support the Union. In one instance, Geraldine Geary, the Respondent’s director of medical records, walked out of the hospital building and approached Kathleen Heffel, a clerk in the medical records department, while Heffel was distributing prounion leaflets outside the building prior to the start of her shift. Geary is not Heffel’s direct supervisor, but Heffel’s supervisor, Noreen Cahill, reports to Geary. Geary asked Heffel to give her one of the leaflets, and Heffel did so. After receiving the leaflet, Geary asked Heffel if she thought what she was doing was “a good thing.” Heffel replied that she thought it was “a very good thing.” Geary repeated her question, and Heffel affirmed that she thought she was doing a “good thing.” Geary asked why Heffel believed this, and Heffel answered. Geary and Heffel continued to talk about issues relating to the organizational campaign. The exchange lasted about 20 minutes and during that time Heffel had to maneuver around Geary in order to hand the leaflets to passing employees, and generally found it more difficult to distribute the leaflets. After the conversation, Geary walked back into the hospital building.

In another instance, this one on Sunday, April 16, 2000, Carol Krzywda, clinical manager, went to the Hospital for the purpose of discussing the Respondent’s position regarding the Union with employees. One employee who Krzywda met with that day was Morna Mashrick, a certified nurse’s aide/student nurse4 who Krzywda supervised. Krzywda asked Mashrick to come to her office. When the two were alone in Krzywda’s office, Krzywda asked Mashrick “What do you think about [the Union campaign]?” Mashrick responded, that she thought “it’s great,” and that “a union is great” based on what she heard “about it at school and what I know.” Krzywda asked, “[I]s that how you’re going to vote?” and Mashrick answered, “I’m going to vote yes.”5 Krzywda adopted an angry demeanor, and asked Mashrick “why would you want to do that?” Mashrick responded that she had heard “that workers usually had better circumstances after a union came in.” At this point Krzywda began to convey unfavorable opinions about unions to Mashrick, and did not allow Mashrick an opportunity to respond. Regarding bargaining with the Union, Krzywda told Mashrick that “just because a union comes in . . . doesn’t mean . . . that we would go to the table at all.” She stated that the Respondent “might not even go to the table.” On the subject of the benefits received by employees, Krzywda stated that if the Respondent did bargain, she could “guarantee you’re going to lose something.” She asked if Mashrick thought she “would get what [she] got now,” have the schedule she wanted, and as much vacation as employees currently received. Krzywda told Mashrick that she had bent “over backwards” to meet Mashrick’s scheduling and professional development needs, and asked Mashrick whether she thought “anybody who gets off a plane from Washington, D.C.,” was going to “care about” her the way Krzywda herself did.

Krzywda discussed strikes at one or more other hospitals, and warned Mashrick that the Respondent would not be able to survive a strike. Krzywda had a number of documents that related to the Respondent’s position with respect to the Union. Mashrick did not want to take these documents, but felt that Krzywda would not permit her to leave without doing so. The meeting lasted 10 to 20 minutes. This was the first and only time that Krzywda met with Mashrick one-on-one during Mashrick’s 10 months working for the Respondent, and also the only time that Mashrick saw Krzywda at the Hospital on a Sunday. Prior to the meeting, Krzywda had never seen Mashrick openly proclaiming support for the Union, and did not know what Mashrick’s position was regarding the organizational campaign. Mashrick testified that she was concerned that her prounion responses to Krzywda’s questions had negatively affected the chances that the Respondent would hire her as a licensed nurse after she completed her degree. Mashrick never applied for such employment with the Respondent.6

Willie Foxworth is a buyer for the Respondent’s pharmacy, and has been an employee of the Respondent’s since 1997. He was one of the Union’s most active and open supporters during the campaign. Kathleen O’Brien, Foxworth’s supervisor, was aware of his prounion views. During the organizational campaign, O’Brien would talk to Foxworth about the materials that the Respondent distributed as part of its campaign to oppose unionization. On one occasion, O’Brien showed Foxworth a booklet and told him that the highlighting in it indicated how many times the listed unions had gone on strike. Foxworth asked, “How do you know we’re going to go on strike just because we get the Union in?” O’Brien responded, “[W]hat happens . . . is you go to a bargaining table, and in order for you to get some of the things you want you’re going to have to give up something.” She listed a number of benefits that employees might lose and said, “[the Respondent’s president] is not going to give you what you want without taking something away.” O’Brien stated that employees “might gain something,” but were “definitely going to lose something.” She told Foxworth that if employees went to the bargaining table and did not get what they wanted, “that’s how the strike occurs.”

Among the written materials that the Respondent distributed to employees was a booklet called “The Decision is Yours.” The following language appeared in that booklet:

What Happens If The Union Wins?

After objections (if any) regarding the election are filed with the National Labor Relations Board and resolved, bargaining for a first contract begins and it can be a long, complicated and technical process which can go on for weeks, months, a year . . . or longer.

While bargaining goes on, wages and benefit programs typically remain frozen until they are changed, if at all, by a contract.

If the union wins, you take the risks . . . you will have to “wait and see” if anything happens with wages and benefits. The union, however, may begin collecting dues from you right away.

(Emphasis in original.) In the booklet, the Respondent told employees that it believed “the union’s interest in you is prompted by its need for union dues rather than by any union commitment to ensure the job security of individuals.” The booklet was dated April 27, 2000, and distributed to employees on, or about, that date.

C. Rules in Employee Handbook

The Respondent maintains an employee handbook. From at least April 1, 2000, until June 30, 2003, the handbook included a rule on solicitation and distribution, which stated:

Persons not employed by the Hospital may not solicit or distribute literature on Hospital property for any purpose at any time. Employees may not solicit for any purpose during working time in treatment, surgery, examination, admitting rooms, or other patient care areas. Employees may not distribute literature during working time, or at any time in working or patient care areas.

Solicitation or distribution to patients and visitors is prohibited at all times. Employees who participate in unauthorized solicitations or distributions are subject for [sic] disciplinary action.

On June 30, 2003, the Respondent amended its employee handbook to delete the second paragraph quoted above.

Since at least April 1, 2000, the handbook has contained a confidentiality provision that states:

Disclosure of confidential information gained through your employment by the Hospital is considered an act of prohibited conduct subject to formal disciplinary action. Any information concerning a patient’s illness, family, financial condition or personal characteristics is strictly confidential. When a patient’s history or condition is reviewed, it must be done in privacy with only those persons involved with the care of the patient. Any other information coming to you in the course of your work concerning another person or employee is also considered confidential and may not become the topic of conversation with others.

On about June 30, 2003, the Respondent amended the confidentiality provision by adding the following language:

This Confidentiality Information Policy should not be interpreted to prohibit employees from discussing the terms and conditions of their employment in an appropriate manner.

According to the uncontradicted testimony of Mary Orlandi, the Respondent’s human resources manager, no employee has ever been disciplined under the confidentiality policy for discussing issues relating to wages, benefits, and other terms and conditions of employment.

Copies of the Respondent’s employee handbook are maintained in supervisors’ offices and issued to new employees. Amendments to the handbook are maintained in department managers’ offices and posted on department bulletin boards. The record does not show how long the amendments remain posted, or whether the department bulletin boards are the places where notices to employees are customarily posted. The record also does not show whether the handbooks that were distributed to new employees after June 30, 2003, incorporated, or gave notice of, the two amendments discussed above.

D. Suspension of Willie Foxworth

1. Foxworth and Olivier

As noted above, Foxworth was one of the Union’s most active and open supporters during the organizing campaign in 2000. He wore buttons with prounion messages and permitted the Union to use his picture on some of its campaign material. He served as an informal liaison between employees and union officials regarding questions about union representation. The Union designated him as one of its official observers at the April 27 election. After the election, Foxworth signed an open letter urging his coworkers to come forward with objections to the Respondent’s campaign against the Union. He testified for the Union on June 14 and 15 at the objections hearing. The Respondent’s human resources manager, Mary Orlandi, stated that she was aware of Foxworth’s prounion sympathies and activity. Orlandi testified that prior to June she had no cause to believe that Foxworth was a problem in the workplace and that she found him a cordial and respectful employee. Indeed, Foxworth had never been disciplined by the Respondent prior to June 2000.

On June 9, 2000, Orlandi informed Foxworth that he was suspended without pay for a period of 3 days—from June 12 through June 14. The suspension was imposed only 5 days before Foxworth was to testify in the objections hearing regarding the representation election. Orlandi was the official who made the decision to suspend Foxworth. According to Orlandi, the reason she decided to suspend Foxworth was that he had threatened another employee, Lionel Olivier. Olivier was an employee who had worked to defeat the organizational effort, but he was not part of the proposed bargaining unit, or, at the time of the election, of management.7 The Respondent sometimes summoned employees away from their work assignments so that Olivier could talk to them about the Union. During the April 27 election, Olivier was one of the Respondent’s official observers.

The first indication that the record provides of friction between Olivier and Foxworth involves an incident that took place while votes were being cast in the representation election. Olivier complained to a Board agent that Foxworth was outside the door to the voting area pressuring employees to vote in favor of the Union. The Board agent talked to Foxworth, and Foxworth denied Olivier’s accusation. Foxworth testified that what the Board agent discovered was that Foxworth was waiting for an elevator and talking to his brother-in-law. The Board agent apparently took no further action regarding the accusation against Foxworth, despite Olivier’s continued protestations.

The verbal exchange that Orlandi offers as the primary reason for suspending Foxworth is supposed to have occurred on June 1. According to what Olivier told Orlandi, Foxworth passed him on the way into the cafeteria and told him “You’re going to get it.”8 Foxworth gave a significantly different account. He told Orlandi that what he had said was “it’s about that time,” meaning time for breakfast, and that he directed this comment to others, not Olivier. He denied threatening Olivier. At trial, Foxworth testified that he continued into the cafeteria and that Olivier then came to the door and asked him “What do you mean it’s about that time.” According to Foxworth, he repeated, “It’s about that time,” and did not elaborate. Foxworth testified that “it’s about that time” is phrase he routinely uses when inviting coworkers to join him in the cafeteria for a meal.

Aside from Olivier and Foxworth, there were two witnesses to the incident—Lynnette Samuel and Dale Jeffries. Orlandi interviewed both of these witnesses, but even according to Orlandi neither Samuel nor Jeffries corroborated Olivier’s account. Samuel, who Olivier counted as a “good friend,” reported that what Foxworth had said was, “I think it’s about that time” and that she initially thought Foxworth was speaking to her. Jeffries stated that Foxworth had said “[I]t’s time,” and that Olivier asked, “What did he say to me?” Jeffries told Orlandi that he considered the matter “petty.” The Respondent does not claim that either Samuel or Jeffries reported that Foxworth had said anything like “You’re going to get it,” or had otherwise threatened Olivier. Orlandi also received a copy of a police report regarding a complaint that Olivier filed with the Boston Police. According to that report, Olivier told the police that Foxworth said “it was that time” in a threatening manner. There is no mention in the police report of Olivier claiming that Foxworth had said that Olivier was “going to get it.” The police never contacted Foxworth about Olivier’s allegation.

Despite the fact that two witnesses, and the police report, essentially corroborated Foxworth’s version of what he said to Olivier, Orlandi testified that she decided Foxworth had “absolutely no credibility.” Instead she credited Olivier’s account, which was corroborated by no one. At trial, Orlandi claimed that the reason she did not find Foxworth credible was that he did not appear to be taking the matter seriously. As to why she did not give much weight to Samuel’s and Jeffries’ statements corroborating elements of Foxworth’s account, Orlandi stated that she believed they were reluctant witnesses and were not telling all that they knew about the incident. Even if one accepts Orlandi’s claim that the two appeared reluctant,9 Orlandi provides no basis for believing that whatever they may have been holding back would have been unfavorable to Foxworth. Based on Orlandi’s demeanor and testimony, I believe that the reason Orlandi concluded the two witnesses were withholding information was that she wanted to credit Olivier’s account, and therefore was determined to view any witness whose account failed to conform to Olivier’s as less than reliable.

Although Orlandi said that the cafeteria incident was the main reason for the suspension, she testified that she also considered a threat that Olivier reported several weeks earlier. According to Olivier, he was on an elevator with Foxworth and Tim Durkey. When it reached Olivier’s floor, he stepped off, leaving only Foxworth and Durkey inside the elevator. Olivier states that as the doors closed and the elevator moved away, he could hear Foxworth say to Durkey, “I know he’s your boy, and I’m going to get him.” Orlandi looked into this accusation by interviewing Olivier and Durkey. Durkey corroborated Olivier’s account. Orlandi testified that she had no reason to believe that Durkey was a personal friend of Olivier’s. However, the record shows that Durkey and Olivier were personal friends who socialized together outside of work and played darts together at Olivier’s home.10 Although Orlandi met with Foxworth before suspending him, she did not ask him anything about the threat he allegedly made on the elevator. Indeed, although Orlandi viewed the elevator incident as significant enough to play a part in the decision to suspend Foxworth, she testified that she did not believe it was necessary to give Foxworth an opportunity to tell his side of the story. At trial, Foxworth denied that the elevator incident had occurred.

Foxworth testified, as scheduled, at the objections hearing in June 2000. During its cross-examination of Foxworth at that hearing, the Respondent introduced the suspension into evidence in an effort to undermine Foxworth’s credibility.

2. Comparator evidence

When Orlandi called Foxworth to inform him that he was suspended, Foxworth asked if any discipline would be imposed on Olivier. Orlandi responded that no complaint had been filed against Olivier. Subsequently, Foxworth made a complaint in which he stated that Olivier had threatened him. Foxworth stated that he had not heard these threats directly, but he gave Orlandi the names of two witnesses to the alleged threats—one a current security officer and the other a former employee who was Foxworth’s brother-in-law. Orlandi told Foxworth that he had to submit his complaint in writing—a requirement she had not applied to Olivier’s complaints against Foxworth.11 Orlandi asked Foxworth why he had not brought up the allegations earlier, and she testified that Foxworth’s response was, in her view, unsatisfactory. Orlandi told Foxworth that she would look into his complaints, but she never did. Orlandi conceded at trial that she made no effort to contact either of the two witnesses Foxworth identified. When Foxworth asked Orlandi about the status of his complaint, she told him she had concluded there was “no validity” to his claim. Orlandi testified that she did not feel she needed to look into Foxworth’s allegations against Olivier because it was clear to her those allegations were an “afterthought” that Foxworth was just trying on “for size.”

The Respondent’s disciplinary policy provides that a 3-day suspension is the appropriate penalty when one employee threatens another. The policy also states, however, that the Respondent has the discretion to depart from the discipline listed. Orlandi acknowledged that she possessed that discretion and that she had sometimes exercised it to impose lesser discipline, such as a written warning, when one employee threatened another. According to Orlandi, the discipline she imposed depended on “the level of threat involved.” She testified that in some cases when two employees were at odds she had called the employees together and tried to help them work out their differences, rather than imposing any discipline at all. Orlandi agreed that she had not made this effort in the case of the conflict between Foxworth and Olivier.

The record establishes a number of instances in which employees who engaged in conduct similar to Foxworth’s were given lesser discipline.12 One such incident involved an employee, ED, who made threatening, inappropriate, statements to a coworker and received only counseling and a written warning as punishment. Another employee, RM, had been verbally abusive towards her supervisor, but Orlandi merely told this employee to return to work and encouraged her to meet with both the supervisor and Orlandi to “iron this out.”13 The employer concluded that another employee, FM, was making graphic comments to, and otherwise sexually harassing, a female coworker. The Respondent did not suspend FM for that intimidating conduct, but rather gave him a written warning.14 Another employee, AS, had numerous documented confrontations with employees and patrons before the Respondent considered his threatening conduct serious enough to warrant a suspension. The record also reveals a number of instances in which the Respondent imposed discipline comparable to that it imposed on Foxworth for conduct similar to what it attributes to Foxworth. For example, one employee, BM, received a 3-day suspension because he threatened one of the Respondent’s cafeteria cashiers during a dispute over paying for his food. Another employee, LM, received a 3-day suspension after he threatened to make a coworker’s “life miserable,” and to “settle this” before the end of the shift. Another employee, OE, was given a 3-day suspension for making inappropriate comments that the Respondent considered sexual harassment.

E. The Complaint Allegations

The complaint alleges that the Respondent interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act: when its agent Geary engaged in surveillance of employees’ union activities; when its agent Krzywda interrogated employees, threatened employees with loss of benefits and job loss, and implied to employees that selecting the Union as their collective-bargaining representative would be futile; when O’Brien, the Respondent’s agent, threatened employees with loss of benefits; when the Respondent distributed a document to employees that implied that they would lose benefits if they voted for the Union; and by maintaining an overly broad confidentiality policy and overly broad policies regarding solicitation and distribution. The complaint also alleges that the Respondent violated Section 8(a)(1) and (3) of the Act by suspending Willie Foxworth because of his union and concerted activities and thereby interfering with, restraining, and coercing employees in the exercise of their rights under Section 7 of the Act.

F. Analysis and Discussion

i. section 10(b)

Paragraph 7 of the complaint alleges unfair labor practice violations based on the April 2000 events and the handbook provisions. The Respondent contends that the allegations contained in Paragraph 7 of the complaint are time-barred under Section 10(b) of the Act because they involve events that occurred more than 6 months before the filing of the relevant amended charges. The Union filed the original charge in this case on June 29, 2000. That charge concerned only Foxworth’s June 9, 2000, suspension. On April 19, 2001, the Union filed an amended charge which added allegations that in April 2000, during the weeks prior to the election, the Respondent engaged in unlawful threats, surveillance and interrogations, and made statements implying futility. On May 8, 2001, the Union filed a second amended charge, which added allegations