Baptist Regional Medical Center

National Labor Relations Board - Board Decisions

Aug 31, 1994

314 N.L.R.B. 1003 (N.L.R.B. 1994)

1003
314 NLRB No. 165
BAPTIST REGIONAL MEDICAL CENTER
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In adopting the judge’s finding that the Respondent unlawfully in-
terrogated employee Erna Skeen, we do not rely on Skeen’s subjec-
tive reaction to the questioning about her union activity.
1 All dates are in 1993 unless otherwise indicated.
2 On the previous evening Skeen gave the same answer in response
to a telephone solicitation from Union Agent Ball. Skeen had turned
in the notice of resignation because she felt aggrieved on learning
that her seniority did not preclude her being required to do relief
work on another shift.
3 Over the years Campbell and Skeen have been good friends both
on and off the job. They they took lunches and ‘‘worked crafts’’ to-
gether and visited each other’s home.
Baptist Healthcare System, Inc. d/b/a Baptist Re-
gional Medical Center and District 1199, The
Health Care and Social Service Union, SEIU,
AFL–CIO. Case 9–CA–30646
August 31, 1994
DECISION AND ORDER
BY MEMBERS DEVANEY, BROWNING, AND COHEN
On June 15, 1994, Administrative Law Judge Robert
T. Wallace issued the attached decision. The Respond-
ent filed exceptions.
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 has decided to af-
firm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Baptist Healthcare System,
Inc. d/b/a Baptist Regional Medical Center, Corbin,
Kentucky, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Julius U. Emetu, Esq., for the General Counsel.
Matthew R. Westfall and Raymond C. Haley III, Esqs.
(Westfall, Talbott & Woods), of Louisville, Kentucky, for
the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. This
case was tried in London, Kentucky, on December 8, 1993.1
The charge was filed by the Union on May 4, and the com-
plaint was issued on June 24.
At issue is whether Respondent (BRMC), through a super-
visor, unlawfully interrogated an employee about the union
sympathies and activities of another employee.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent I make the fol-
lowing
FINDINGS OF FACT
I. BACKGROUND
BRMC, a corporation, operates an acute care hospital in
Corbin, Kentucky, where it annually purchases and receives
goods valued in excess of $250,000 directly from points out-
side the Commonwealth of Kentucky. It admits and I find
that it is an employer engaged in commerce within the mean-
ing 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.
Although BRMC has approximately 1000 hourly employ-
ees eligible to be represented by a union, it remains a non-
union facility. An attempt at organizing occurred in 1992
when a union sent letters to employees inviting them to a
picnic. The event was not a success, perhaps due in part to
rumors that hospital agents would be spying. No further or-
ganizational activity occurred that year.
In early April 1993 employee Dianna Scarbro, a registered
nurse, contacted a field representative, Robin Ball, of the
charging union and inquired about the possibility of orga-
nizing. Following advice given by Ball, Scarbro and another
employee, Lois Combs, over the next several weeks con-
tacted employees during breaks and lunch periods with a
view to compiling a list of names, addresses, and phone
numbers of those interested in learning more about the
Union. Scarbro spoke to every employee she met (over 40)
and felt ‘‘a real positive feedback from all of them.’’ She did
not wear a union button or jacket or otherwise identify her-
self as a union supporter; and, responding to her desire for
secrecy, employees wrote the requested information on
scratch paper and surreptitiously stuck it in her pocket.
Erna Skeen, a licensed practical nurse at the facility for
over 9 years, was approached by Scarbro on the morning of
April 4. Skeen told her she wasn’t interested because she had
turned in a 30-day notice of resignation on April 2.2 Scarbro
urged her to withdraw the notice and help in the campaign.
Skeen declined and warned Scarbro that management was
bound to learn of her union advocacy and would fire her for
it.
Skeen gave the warning because she believed the hospital
was hostile to unions. Her belief is based upon signs posted
in the hospital prohibiting distribution of printed materials,
rumors circulating at the time of the 1992 union picnic, and
the reaction of a supervisor, Mary Campbell, on several oc-
casions when Skeen, expressing frustration, told her ‘‘this
would be a good place to have a union.’’ According to
Skeen’s undisputed testimony, Campbell responded saying,
‘‘You better not let no one else hear you say this.’’3
II. THE INTERROGATION
April 30 was to be Skeen’s last day at work. On April 27
she was given an exit interview by director of nursing, Kathy
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 At this time, Campbell’s official title was ‘‘GRASP Coordinator
House Patient Care Manager.’’ As such she had responsibility for as-
suring adeqate patient care throughout the facility. She reports di-
rectly to the vice president of nursing services as well as to the di-
rector of nursing for her shift.
5 Skeen states that ‘‘[u]sually if I knew about something going on
on the floor and Campbell wanted to know, I’d tell her.’’
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order 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.
7 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.’’
Hammonds. There was no mention of unions or union activ-
ity.
At about 1:30 p.m. on April 28 Skeen was on duty in a
corridor on the third floor between the elevator and the
nurses’ station. She recalls that Supervisor Campbell4 got off
the elevator, came directly to her, and initiated the following
conversation:
CAMPBELL: What did Kathy have to say?
SKEEN: . . . You already know.
CAMPBELL: Let me ask you a question. Has Dee
[Scarbro] talked to you about the Union?
SKEEN: No.5
CAMPBELL: She hasn’t talked to you about a Union?
SKEEN: No. . . . [but] . . . I talked to a lady from
the Union. . . . [who] called me. . . . I told her that
I had resigned and would be of no help to her.
CAMPBELL: Well, I told them it was probably just a
feedback from last year.
At that point, according to Skeen, Campbell turned away,
walked back to the elevator, reentered, and left the area.
Skeen then looked for Scarbro and, not finding her, left a
note asking Scarbro to call her at home that evening. When
she called, Skeen told her that ‘‘management knew’’ and ad-
vised her to stop her union activities or risk getting fired.
Skeen claims that Campbell never urged her to withdraw
her resignation and indeed had never discussed the matter
with her.
For her part, Campbell testified that on several occasions
she tried to talk Skeen out of retiring and that upon seeing
Skeen during the course of her rounds on April 28 she at-
tempted to do so again. According to her, Skeen rebuffed the
effort and ‘‘at some point in the conversation’’ volunteered
that she had declined a request by someone who called her
at home asking that she postpone her departure ‘‘until the
Union gets in.’’ Campbell admits that ‘‘at some point’’ she
asked Skeen ‘‘Was Dee [Scarbro] collecting phone num-
bers?’’ Assertedly, she asked because in the course of report-
ing on ‘‘problems and stuff’’ during a shift change earlier in
the day two other patient care managers said they heard
Scarbro was collecting phone numbers.
Campbell’s testimony, was studiously vague and
unpersuasive. For example, after stating she met Skeen in the
course of making rounds on the third floor she later con-
ceded she had not in fact ‘‘made rounds . . . [because] it
was change of shift [time] and it looked, you know, nothing
hectic . . . was going on.’’ Skeen, on the other hand, was
consistent and appeared to be a candid witness and I credit
her account.
Analysis and Conclusions
Under the totality of circumstances test set forth in
Rossmore House, 269 NLRB 1177 (1984), enfd. sub nom.
Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985), I find that Campbell’s interrogation
was coercive.
Campbell was a high-level supervisor who on hearing of
an incipient organizational campaign made haste to verify
that fact from employee confidant Skeen. The latter was well
aware that the hospital took a dim view of union activism
particularly since Campbell previously warned her that she’d
better not talk about having union representation. Her ques-
tion was not casual. Rather, she sought Skeen out promptly
to verify the concern expressed to her that day by other man-
agers. Her questioning was intrusive, i.e., she asked whether
a specific individual, Scarbro, one who had taken pains to
conceal her activity, was soliciting union support, and it was
persistent. Not satisfied with Skeen’s initial denial she again
asked whether Scarbro had talked to her about the Union.
Despite their long friendship, Skeen clearly perceived a
threat, falsely answering, ‘‘No,’’ twice, and upon Campbell’s
departure she immediately took steps to alert Scarbro.
CONCLUSION OF LAW
Respondent is shown to have violated Section 8(a)(1) of
the Act in the particulars and for the reasons stated above,
and its violation has affected, and unless permanently en-
joined will continue to affect, commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in an un-
fair labor practice, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act.
Disposition
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Baptist Healthcare System, Inc. d/b/a
Baptist Regional Medical Center, Corbin, Kentucky, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about their
union support or union activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Corbin, Kentucky facility, copies of the at-
tached notice marked ‘‘Appendix.’’7 Copies of the notice, on
forms provided by the Regional Director for Region 9, after
1005BAPTIST REGIONAL MEDICAL CENTER
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
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, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT coercively question you about your union
support or activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
BAPTIST HEALTHCARE SYSTEM, INC. D/B/A
BAPTIST REGIONAL MEDICAL CENTER