Deepdale General Hospital

National Labor Relations Board - Board Decisions

Dec 9, 1980

253 N.L.R.B. 644 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ralph Nenner, M.D., Louis Orens, M.D., et al., a
partnership d/b/a Deepdale General Hospital
and District 1199, National Union of Hospital
and Health Care Employees, League of Regis-
tered Nurses, Retail, Wholesale and Department
Store Union, AFL-CIO. Cases 29-CA-6952,
29-CA-7092, and 29-RC-4400
December 9, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 8, 1980, Administrative Law Judge
Harold Bernard, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the Charging
Party filed a letter in the nature of a brief in oppo-
sition to said exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Ralph Nenner,
M.D., Louis Orens, M.D. et al., a partnership d/b/
a Deepdale General Hospital, New York, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD, JR., Administrative Law Judge:
This is a consolidated representation and unfair labor
practice proceeding heard before me on July 30 and 31,
August 1, 2, 6, 7, and 8, and September 10, 1979, in
Brooklyn, New York. District 1199, National Union of
Hospital and Health Care Employees, League of Regis-
tered Nurses, Retail, Wholesale and Department Store
Union, AFL-CIO,' the Charging Party-Petitioner,
herein the Union, lost an election for registered nurses at
Respondent's Deepdale General Hospital on December
21, 1978, 61 to 47, and filed timely objections based on
Respondent's alleged interference with said election.
Thereafter, the Union also filed charges alleging that Re-
spondent violated Section 8(a)(1), (2), (3), and (5) of the
Act, as later detailed in a consolidated complaint issued
April 27, 1979, wherein the General Counsel also alleges
that Respondent's misconduct is so severe as to render a
fair election impossible, thereby requiring the issuance of
a bargaining order remedy pursuant to N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969).
The issues are: (1) whether Respondent initiated, par-
ticipated in, sponsored, and encouraged the Nursing
Committee of Deepdale Hospital, solicited grievances
from employees, promulgated unlawful rules prohibiting
union solicitation and distribution of union literature, un-
lawfully promised and granted employment benefits in-
cluding sick leave pay, unlawfully threatened to with-
hold employment benefits, kept employee union and con-
certed activities under unlawful surveillance, and pro-
moted an employee for her support against the Union;
(2) whether the Union was validly authorized by a ma-
jority of the registered nurses at Deepdale General Hos-
pital to be their collective-bargaining representative; and
(3) whether the alleged conduct warrants a bargaining
order remedy.
Upon the entire record, including my observation of
the demeanor of the witnesses, and consideration of Re-
spondent's brief, the only brief filed,2 I make the follow-
ing:
FINDINGS OF FACT
I. JURISDICTION
A. Respondent
Respondent operates a general hospital in New York,
New York, where it annually derives revenues in excess
of $250,000 from the sale of hospital health care services
and annually purchases supplies valued in excess of
$50,000, directly from sources outside the State of New
York. I find, as admitted, that Respondent is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
B. The Labor Organizations Involved
The Charging Party Union is admittedly a labor orga-
nization within the meaning of Section 2(5) of the Act
and I so find. It is also found that the Nursing Commit-
tee of Deepdale Hospital was at all times material herein
in business to represent hospital employees in bargaining
with Respondent over wages, hours, and working condi-
tions and therefore constituted a labor organization
under said Section in the Act, however short-lived its ex-
istence.
The case caption as amended at the hearing.
2 The Party in Interest. Nursing Committee of Deepdale Hospital.
made no appearance nor did it file a brief
253 NLRB No. 92
644
DEEPDALE GENERAL. HOSPITAL
II. THE APPROPRIATE BARA(;ININGi UNIT
The parties agree and the record reflects that the fol-
lowing constitutes a unit appropriate for collective bar-
gaining:
All full-time and regular part-time registered nurses,
including head nurses and charge nurses, employed
by Respondent at its Little Neck hospital. New
York City, New York, excluding all other employ-
ees, guards, and all supervisors as defined in the
Act.
In its answer, Respondent admitted the status of Drs.
Ralph Nenner and Louis Orens as board of directors'
members, John Kenny as hospital executive director,
Helen Timm as director of nursing, and Muriel Manson
as assistant director of nursing; and that Kathy Brown,
recovery room supervisor, and Dorothy Caraher, re-
ferred to as senior nursing supervisor, are supervisors
within the meaning of the Act. I find, in view of said ad-
missions and the roles they played in the events dis-
cussed below while occupying said managerial and su-
pervisory positions, that these individuals also acted as
agents on behalf of Respondent.
IM1. THI LUNIAIR AHOR P'ACTICES
A. Background
The timeframe for relevant circumstances is from early
October 1978 until January-February 1979, roughly the
period tracking the Union's organizational campaign to
represent the hospital's 120 or so registered nurses.
An existing benefit for the hospital employees, and one
which will be readily seen as very important to the regis-
tered nurses, was Respondent's sick leave policy allow-
ing employees the option to accrue sick leave and turn it
in for pay, rather than using it in the form of excused
days off due to sickness. In early October, the hospital
executive director, Kenny, held a closed meeting with
department heads, including Barbara Russo, the infection
control nurse. At this meeting with top operational per-
sonnel, Kenny painted an unfavorable picture of hospital
finances as being in the red, and asked those present to
ask nurses to take their sick leave as excused time rather
than be paid for it because the hospital's supply of cash
was low. It is not clear why Russo, who figures promi-
nently in later events, was invited to be present with de-
partment heads but it could be that her position carried
with it a status akin to that of a department head, since it
involved responsibility hospitalwide for the detection and
prevention of infection, a rather single-missioned func-
tion requiring her to circulate throughout the hospital
without close supervision in an autonomous department-
like operation. Adding to the basis for such an inference
is the special confidence placed in Russo both by Dr.
Ralph Nenner, hospital part-owner, shown in events dis-
cussed below, and by Kenny in contacts with Russo and
the nursing committee.
By October 20, nurses Barbara Smith, Carolyn Dom-
broski, Ivy Hall, and Beverly Goodman had learned of
the "withdrawn" benefit from supervisors; i.e., that there
no longer would be pay for unused sick leave. Ivy Hall
was told of the withdrawal by Nursing Supervisor Pat
Johnson, who informed her after checking with Assistant
Director of Nursing Manson that it was definite, to
which Hall replied it was unfair after getting the benefit
for 7 years. Smith learned from other nurses that the sick
leave policy, which she understood was 15 days a year,
henceforth would be on a "use it or lose it" basis. There
is no question but that the news had spread among the
nurses, Smith also talking to nurses Jo Cruz and Judy
Garlander on the second floor, by October 20. In re-
sponse, that day, Smith agreed with Goodman that a
meeting of employees be scheduled at Great Neck House
for October 23, and flyers were made up by the nurses
announcing the meeting to discuss, inter ulia, salary and
benefits, lack of interest and communication from admin-
istration, and "Need For Bargaining Agent" (G.C.Exh.
I(o)). Smith handed out the flyers in the hospital to
about 50 employees. Smith also telephoned different
unions seeking a speaker for the meeting, finally succeed-
ing in arranging for Local 1199 Union Organizer Jeff
Cohen to appear.
Despite Respondent's disclaimer on both points, the
record establishes that whatever mental reservations Re-
spondent contends it harbored about changing the sick
leave policy, i.e., that no "change" had really been made,
only a decision by Kenny to ask nurses not to seek pay
for unused sick leave, it is clear from the foregoing that
those reservations were not communicated to employees
and that Respondent's conduct objectively manifested a
final decision to end the option for pay in lieu of time
off. I so find. Further, I find that Respondent knew
about employees' efforts to meet and discuss the need for
a bargaining representative on October 20, when 50
flyers to this effect were circulated to employees by
Smith at the hospital, where, as shall appear clear, very
little escaped notice by Respondent so far as union activ-
ities of its employees, especially Barbara Smith, are con-
cerned. Indeed, at a Christmas party on December 15,
Kenny told Smith he knew about the unionizing effort
prior to the hospital staff meeting on October 26.
About 35 employees attended the union meeting,
which Smith addressed prior to Cohen's arrival. Smith
compared benefits of unrepresented employees with
those of nonprofessional employees represented by a
union as reflected by a booklet describing the benefits.
When Cohen arrived, Smith introduced him and, accord-
ing to a tape recording Smith made that evening, and
which the parties agree is accurate, Cohen then ad-
dressed the group, describing the history of the Union,
its inception, and earlier working conditions in the indus-
try, including how representation of technical and pro-
fessional workers was important to the ability to bargain
for strong contracts, development of bargaining units,
voting eligibility criteria, benefits that the Union can
offer, such as health insurance paid by employees, and
dental insurance details. Cohen explained that he could
not quote a contract covering the Jamaica Hospital terms
as the contract the Union would negotiate with Deep-
dale because the Union would negotiate a Deepdale Hos-
pital contract reflecting the nurses' needs there. He ex-
plained that, "We will negotiate a contract as the mem-
645
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
bership wants" (G.C. Exh. 101). Cohen also listed bene-
fits sought by bargaining, such as a pension plan, tuition
plan, job classification protection, surgical benefits, pre-
scription costs, disability and maternity benefits, stating
that practical reasons, namely, competitor union rivalry,
would tend to foster union efforts not to negotiate a con-
tract that was in any way inferior at Deepdale Hospital.
He described operating procedures leading to formula-
tion of contract negotiation demands, holiday pay, over-
time provisions, starting salary, and benefits at other hos-
pitals under contract with the Union.
About midway through his talk, Cohen was asked
whether the authorization or designation card, referred
to in only general terms earlier, meant that the staff
wants the Union. Cohen answered by reading the card as
follows:
[T]he designation card says, Authorization for Rep-
resentation. I hereby authorize the League of Regis-
tered Nurses, District 1199, National Union of Hos-
pital and Health Care Employee [sic] Division of
RWDSU, AFL-CIO, to represent me in collective
bargaining negotiations.
One can hardly conceive of a more direct affirmative
reply than that. He went on to say that, "It does not say
you are going to vote for the Union. You are not a
Union member, when you sign this. It merely is a card
authorizing representation." (Emphasis supplied.) Cohen's
was an accurate and true portrayal of the cards' express-
ly stated purpose, authorization of the Union to represent
the signer in collective-bargaining negotiations. Respond-
ent points out, however, that Cohen went further in this
part of the speech when he asked rhetorically of the au-
dience what was done with these cards and went on to
explain only one of different alternatives, their retention
by the Union until the latter felt enough cards were on
file for an election whereupon the cards are brought to
the Labor Board for such purpose. It is also true that
Cohen made use of the term "election" elsewhere in his
remarks, but it is clear that nowhere in his speech did
Cohen ever state that the only purpose of the card was
to secure a Board election; nor did he otherwise negate
the expressly stated purpose for signing the authorization
card. At its best, Respondent's interpretation of events is
that Cohen told employees at this meeting and a second
meeting (held on October 28) where it is agreed he said
the "same things," that an election is a purpose of the
cards. (Emphasis supplied.) The Board has held that by
such message, "the solicitor neither contradicts the plain
statement on the card nor misstates the Union's actual in-
tention." General Steel Products, Inc., and Crown Flex of
North Carolina, Inc., 157 NLRB 636, 644-645 (1966).
Cohen neither contradicted the language on the card nor
told employees to disregard it and there is nothing in his
remarks to establish that the Union intended to abandon
or ignore the authorization.
In addition, as shall be noted further below, most of
the card signers presented by the General Counsel testi-
fied that they read the cards before signing them, and the
card was accurately read to employees by Cohen at
these two meetings. I find that nothing said by Cohen
during the course of these meetings invalidated the cards
circulated and secured there. Motor Inn of Perrysburg,
Inc. d/b/a Holiday Inn of Perrysburg. Ohio, 243 NLRB
280 (1979); and Jeffrey Manufacturing Division, Dresser
Industries, Inc., 248 NLRB 33 (1980). At the conclusion
in Cohen's records, cards were circulated and, upon
being signed, were handed by the signatories to Smith,
who checked that all the blanks were filled in, that the
signatures appeared, and that the cards were dated,
before giving them to Cohen. Cohen also gave out addi-
tional authorization cards for distribution to other
nurses.:'
Two days later, on October 25, Smith met Cohen for 5
minutes in the nurses' lounge located in the operating
room suite. This lounge is open to the public, contains a
coffeemaker, and both friends and husbands of nurses use
the lounge to wait for nurses. Smith described the area
as a fairly open area, also frequented by salesmen and
free of restrictions. She gave her own signed authoriza-
tion card to Cohen. Promptly after Cohen left, Supervi-
sor Brown told Smith, "They know who he is, and I
don't want you meeting with him in this area ever again
.... He is not to come in here." Smith testified without
contradiction that she knew of no prior rules or policy
restricting solicitation, or speaking to employees, or dis-
tribution of literature in the hospital, and gave examples
of prior sales solicitations by outside or nonemployee in-
dividuals, solicitations for showers, or gifts for departing
employees which had occurred inside the hospital build-
ing. Thus, Brown's instructions were targeted against
Smith having such contact in an area previously free
from such restriction. This was no attempt by the hospi-
tal totally to exclude a nonemployee from its premises al-
together. In fact, the admonition was directed only
against an employee, nurse Smith, to deny her rights in
the nature of solicitation, distribution, or contacts with
the Union by discriminatorily denying her the use of the
lounge area for such purposes while allowing use of the
lounge for all other purposes. This deprivation of a con-
venient locus for the exchange of information or litera-
ture between Smith and Cohen is akin to an employer's
discriminatory restrictions on the use of company bulle-
tin boards or other channels of communication to ob-
struct organizational and collective-bargaining rights-
restrictions created for the first time at the advent of
union activity and, thus, shown to be unlawfully motivat-
ed. I find Brown's restriction on Smith's use of the
lounge to be an unlawful intrusion into employees' Sec-
tion 7 rights violative of Section 8(a)(l) of the Act.
Montgomery County MH/MR Emergency Service, 239
NLRB 821 (1978).
This incident also reveals Respondent's growing con-
cerns over the Union's organizational efforts. Nurse
Carolyn Dombroski testified that Supervisor Brown told
her of warning Smith not to meet with union people in
her department shortly after the first union meeting, in
i The taped version of Cohen's remarks does not support his assertion
when testifying in this proceeding that he also mentioned securing recog-
nition with the authorization cards, nor Smith's testimony to such effect,
possibly based on other meetings attended by Smith and Cohen with the
Union's organizing committee.
646
DEEFPDALF GENERAL HOSPITAL
fact, the next day, and that Brown had said that there
had been a man with papers in the area to see Smith and
"they" knew who he was, that she had been called into
Kenny's office that evening and questioned whether she
knew anything about union activity in the hospital. I find
that Supervisor Brown's repeated reference to Smith and
Dombroski that "they" know who he is, an obvious ref-
erence to Cohen arising from his being seen by Brown
during his visit with Smith on organizational matters,
and Brown's report to Dombroski of Kenny's question-
ing her about the nurse's union activities, also coupled
with the statement "they" know who he is, was enough
in combination to create the impression that Respondent
was keeping protected union activities of its nurses under
close surveillance and therefore constituted a violation of
Section 8(a)(l). The Estate of Alfred Kaskel, d/b/a Doral
Hotel and Country Club, 240 NLRB 1112 (1979). That
this observation by Brown arose in the context of the un-
lawful restriction on Smith's use of the public lounge
only adds further menacing import and support to the
finding of surveillance, nor was this an isolated occur-
rence as will appear below.
B. Solicitation of Grievances. Promises. and Grant of
Benefits and Formation of the Nursing Committee
A hospital staff meeting called by administration in the
auditorium was held on October 26, only 3 days after the
union meeting. Attending were Nenner, Kenny, Manson,
a large number of nursing supervisors, and 75 to 100 staff
nurses. Admittedly this somewhat regular annual meeting
had a significantly different nature to its format over the
prior meeting in 1977, when the nurses were told in fait
accompli fashion what a pay increase or other benefits
would be in the forthcoming year. This time I credit wit-
nesses Smith, Dombroski, and nurse Ivy Hall, that there
was a willingness-eagerness-by Nenner to learn what
benefits the nursing staff wanted, what they considered
important problem areas. He asked them what their "pri-
orities" were, what the nurses wanted in terms of bene-
fits. Dombroski asked why there was a meeting seeking
to determine what the nurses wanted when, in the past,
the meeting was to tell nurses about decisions already
made by the board of directors concerning nurses' sala-
ries; but she did not recall the response. Concern was
voiced and questions asked by several nurses about the
announced decision to discontinue the sick leave pay
option. At first Nenner disclaimed that the previously
communicated decision had ever been made, but then in
a verbal pirouette stated that nurses "would be given the
money if we needed it," because "something" could be
done. When, in response to these solicited concerns, an-
other nurse questioned why salaries were higher at other
hospitals, Nenner promised that Deepdale nurses' pay
would be kept on a par or equal to nurses' salaries in
neighboring hospitals, a promise or announcement of
policy not, in this record, at least shown to be a policy
previously followed by administration and thus constitut-
ing an improvement when it is considered that the objec-
tion made to Nenner was that other nurses were paid
higher salaries. Responses continued over other topics as
well, including the medical plan and pension program. It
is manifest in the context of events that Respondent at
this meeting solicited employees to express their most
important employment-related concerns, some of which
it resolved on the spot, as a reaction to the Union's orga-
nizing effort. This was an unprecedented inquiry into the
needs of employees on a much more intensive and wide-
ranging scale than prior inquiries at the previous year's
meeting into whether the nurses felt there was enough
linen and the like, and Respondent failed to offer any ex-
planation for this action's timing. I find a substantial de-
parture in this year's staff meeting, and solicitation of
grievances made even more evident below, when, for the
first time, a nursing committee is formed, and conclude
that Respondent unlawfully solicited grievances from its
employees to discourage growing employee support for
the Union. Edward A4. Utlaut Foundation. Inc. d/b/a
Edward A. Utlaut Memorial Hlospital and Fair Oaks Nurs-
ing Home, 249 NLRB 1153 (1980). I further find that
what was falsely represented to employees to be a dis-
claimer of any change in sick leave policy was in fact a
reinstatement of Respondent's preexisting sick leave
policy which had no explanation or other purpose than
to still employees' heated dissatisfaction which so impor-
tantly fueled their union organizing drive. This reinstate-
ment action therefore violated the Act. Edward A. Utlaut
Memorial Hospital. supra. Respondent's promise to raise
salaries of the nurses to a level equal to other hospitals,
an improvement in its pay scale policies insofar as the
employee outlook and this record is concerned, likewise
has no origin other than Respondent's desire to discour-
age employee support for the Union by removing this
from employees' concerns and, thus, canceling another
inducement for representation. This conduct also violat-
ed the Act.
During this same meeting a suggestion arose, either
made by Nenner, as Smith recalled, or by Barbara
Russo, an attendee at the earlier described meeting of de-
partment heads, that a committee be formed to investi-
gate the salaries and benefits at nearby hospitals. I find
from the record that as if on signal a fast-paced sequence
in events then quickly transpired-Nenner stated his
prompt approval of the plan, and that such a committee
should be formed, appointed Russo as chairman (or to
form the committee), and went on to promise that any
higher benefits than being paid at Deepdale found by the
committee would be paid by Deepdale to the nurses ret-
roactive to October 1. I find the promise of retroactivity,
like the promise to maintain general benefit levels at
Deepdale on a par with other local hospitals, likewise to
be violations of Section 8(a)(1) of the Act as designed to
undermine employee interest in and support for the
Union. Nenner also pledged to support the committee's
efforts, approval for the use of the hospital's name in re-
questing information from other hospitals and pledged to
support the efforts in getting any information needed.
Nenner then said he would be happy to dismiss the ad-
ministration and turn the meeting over to the nurses to
discuss and form the committee. Despite objections by
some nurses over Nenner's proposal, met by Russo's as-
surance that if "it" did not work, "we" could go to the
Union, Nenner and Kenny then left. But Nenner was re-
placed by yet another Respondent representative, the as-
647
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sistant director of nursing, Muriel Manson, to run the
meeting with Russo from the front of the auditorium.
Nominations were requested for members on the com-
mittee by Manson. Nurse Dombroski, a highly credible
witness who declined opportunities when she could have
easily shaded her testimony in favor of the Union and
stuck very carefully to the truth, protested that the
nurses were being pressured into these nominations.
Nonetheless, the process continued, as if preordained,
under Manson's and Russo's control, and a nursing com-
mittee of eight nurses, including Russo, was formed.
Both during the session just prior to nominations, and
during the formation of the committee, employees were
paid their regular wages. While initially formed for in-
vestigation and reporting purposes, the Nursing Commit-
tee, as will appear later, went beyond the role of being a
tool, by which Respondent would crystallize how much
he would pay the nurses to dissuade them from union
support, into a bargaining agent puppet. But even at this
early juncture, it is clear and I find, from the foregoing
and as alleged by the General Counsel, that Respondent
nurtured and pushed the idea of forming the Nursing
Committee, promised and gave support to it, controlled,
and participated in, the formation of the committee on
October 26.
The next day, Smith was handing out leaflets announc-
ing that a second union meeting at Great Neck was
planned on October 28, for all nurses, due to the over-
whelming interest and support received at the prior
meeting. Smith was on her lunchtime distributing the
pamphlets in the employee cafeteria located in the hospi-
tal basement level and recalls other nurses present during
the lunch period, as well as Manson. Manson admittedly
instructed Smith that she should not be handing out the
literature in the cafeteria. It is also undenied that Manson
told Smith she had no right to distribute the literature.
Respondent's executive director, Kenny, testified that the
cafeteria is open to employees and physicians only and
not to the public or patients, and there was no demon-
stration whatever that Smith's actions would disrupt pa-
tient care or disturb patients. I find that Manson and
thereby Respondent unlawfully restricted Smith from en-
gaging in solicitation distribution activities in a nonimme-
diate patient care area in violation of Section 8(a)(1) of
the Act. Beth Israel Hospital v. N.L.R.B., 437 U.S. 483
(1978). This conclusion obtains whether or not one views
Manson's efforts as promulgating a rule restricting distri-
bution (and solicitation) as in the cited case; and such
view draws support from several other instances when
Respondent restricted Smith unlawfully, or whether
Manson's conduct, as is also the case, is viewed as consti-
tuting ad hoc interference with the Section 7 rights of
employees. Heat Research Corporations, 243 NLRB 206
(1979).
C. Activities of the Committee
The committee met shortly afterward to consider how
to get information from other hospitals. Kenny gave the
committee a letter of approval for such purpose. He also
called two hospitals to get information for the committee
and gave it copies of contracts from some hospitals. Ivy
Hall testified without contradiction that she and other
committee members were paid for their time at commit-
tee meetings, and that Russo told the members they
would be paid. This included in at least one instance pay
for attending such meeting on the employee's own, off-
shift, time. The committee, I find, then met on Novem-
ber 3, first in a morning session when the pay scales of
different hospitals were somehow gotten together, and at
3 p.m. when, at a meeting of the nurses called by Russo,
the committee "proposals" were read to the 50 or so
nurses and supervisors attending in the auditorium. At
this meeting Russo read a list of current benefits and the
proposals, and assured the nurses that they would not be
presented to the administration until at the earliest the
following Monday or Tuesday evening after any further
comments or proposals from the nursing staff had sur-
faced. Smith talked to Russo at some point in these
events, after the morning meeting, telling her she had 72
hours to get the hospital's proposal as she would hand in
the "cards" by then. Russo testified that she told Kenny
of Smith's declaration. After the two committee meetings
that day, the first one having lasted 3 hours on that
Friday morning, the second one somewhat shorter,
Russo, her committee in tow, "happened" to pass
Kenny's office and Kenny "happened" to see the group,
inviting it into his office, and asking the committee what
its findings were. Russo detailed the committee's propos-
al, despite assurances to the staff nurses earlier that no
presentation to administration would be made until
nurses had additional time to consider the matter-a
minimal courtesy considering the committee's proposal
had only been read for the first time that day. Kenny re-
sponded to Russo's presentation by stating that he him-
self had worked out about the same figures. Kenny also
said that the nurses ought to be paid time and a half for
holidays. There was discussion of fringe benefits, tuition
refunds, longevity pay, base salary, and uniform
allowances, Kenny trying to match his earlier arranged
figures with the committee's findings, but "came up with
something else." Kenny testified that the committee
wanted no change in sick leave, wanted uniform
allowances, and that their tuition refund proposal could
be a big problem. He testified it was on the basis of the
figures' comparison that he arrived at what he felt the
hospital could live with. There is no question that this
was an early bargaining or negotiating proposal by the
committee, Kenny himself testifying that he was given a
time limit for acceptance or rejection of the findings or
proposals, which caused him to work over the weekend
on the hospital's responsive offer.
The next day, Saturday, November 4, Russo called
Smith and told her that she had done Smith a "favor" by
disclosing the committee's proposal to administration
early. Smith expressed surprise given the earlier expec-
tancy that there would be no disclosure until nurses had
been canvassed and proposals had been finalized on
Monday. Russo told her Kenny would take it to Nenner
and the board and be back to Russo later.
On Monday, November 6, the committee met with
Nenner, Kenny, and Manson. Although an effort was
made by the nurses to read off a list of grievances for
discussion, Nenner cut short the effort, stating that he al-
648
DEEPI)AI.E GENERAL HOSPITAL
ready had been given a list on Friday of the grievances
for the whole staff, and that it was complete. There was,
in Kenny's words, a general "kicking around" of the
committee's offer. Nenner then read and explained the
board's version of the proposals, listing what was disap-
proved and what would probably be agreed to, which
Dombroski testified was less in most cases than the pro-
posals sought. Nenner's proposals on paper signed by
Kenny were distributed by Russo to the nurses' staff in-
cluding Smith on November 7 and 8. General Counsel's
Exhibits 3 and 4 reflect a wide range of topics sought by
the committee and improvements in existing benefits
granted or proposed by the administration as circulated
in General Counsel's Exhibit 4 on November 7 and 8.
The benefits listed included, inter alia, wage increases,
vacations, holidays, sick pay, pension plan,4 hospitaliza-
tion maternity leave, education benefits, uniform
allowances, in-service education, communication of job
openings, a bulletin board, a grievance committee, and
representation on a review board. There is no record evi-
dence tending to establish that these promised improve-
ments in employment conditions were part of a regular
or periodic increase in benefits that the Employer regu-
larly granted to its employees on so widespread a scale
as this. Given the timing of these promised benefits, the
context within which the Employer's motive must be as-
sessed, as more particularly noted below, the obvious use
of the committee as a means to bargain about and there-
by legitimatize their origin, and Respondent's animus
toward the known union organizing drive, also devel-
oped more fully belov, I find the promises of benefit
were intended to stem employee interest in the Union in
violation of Section 8(a)(l) of the Act by removing from
employees' minds any necessity for union representation.
Hamilton Avnet Electronics, 240 NLRB 781 (1979).
At a nurses' staff meeting held on November 9, the
very next day after General Counsel's Exhibit 4 was cir-
culated, Russo was vehemently criticized by nurses who
attacked her for an alleged disloyal association with
Kenny and expressed displeasure over Russo's premature
presentation and bargaining of the committee proposals
to administration on November 4. The nurses turned
down the proposals in a bitter display of resentment,
whereupon Russo, in tears, reported events to Director
of Nursing Timm. After the meeting, Cohen and Smith
decided to file a petition for an election and Cohen
called in his request to the Union's attorney to do so. En
route to see Cohen, Smith had passed by the emergency
room and spoken to nurse Roviczenko who, upon learn-
ing from Smith that the proposal had been defeated,
filled out and signed an authorization card. The fllow-
ing day after Smith spoke to another nurse regarding her
union card in the kitchen on the fifth floor, having first
passed by Nenner at the nurses' station there, Nursing
Supervisor Kathy Brown instructed Smith she was not
to go to the floors during hospital time for any type of
union business. Shortly afterward, however, Director of
Nursing Timm came to Smith and spent time in the re-
covery room inquiring from Smith how nurses could get
their cards back, that they wanted them back. She in-
4 The pension plan was to rmain the same.
structed Smith, whose position normally required her to
go from floor to floor, to stay in her own unit. Respond-
ent did not proscribe any other nonworking activity.
Payne & Keller of Louisiana, 239 NLRB 694 (1978). 1 find
that Respondent discriminatorily abridged employees' so-
licitation and distribution rights in violation of Section
8(a)(1) of the Act by these overly broad, and as shall be
seen still further below, unequally administered, restric-
tions on Smith's movements. Clearly, there were nonim-
mediate patient care areas, viz, the kitchen, cafeterias,
first floor public lounges, and the like, where Smith's ac-
tivities, on this record, would be free from the unlawful
bans imposed on her by Brown and Timm. Beth Israel
Hlospital v. .L.R.B.. supra; and, ' L.R.B. v. Baptist Hos-
pital, 442 U.S. 773, 787, 788 (1979).
D. Respondent's Control Over the Committee
Intent on seeing the committee become a strong vehi-
cle for its own purposes, Respondent did not rest with
the nurses' rejection of the first proposal, and ignored
the committee registered protests over the suspicious
conduct. Instead, on November 13, Timm called a meet-
ing, notices of which were posted on hospital bulletin
boards, of the nursing staff, in the auditorium on work-
ing time, which was attended by Nenner, Timm.
Manson, Caraher, all the nursing supervisors, and regis-
tered nurses. Kenny, in his testimony, admitted that a de-
cision had been made, in light of the results and circum-
stances at the November 9 meeting, to have another
meeting, the instant one, and "control it better." Re-
spondent succeeded. Director Timm passed out the ad-
ministration proposal (G.C. Exh. 25), only slightly differ-
ent, in Dombroski's opinion, from the rejected proposal
(G.C. Exh. 4), which was read to the nurses; details of
differential pay were discussed; and Nenner appeared
and spoke, telling nurses that there would be retroacti-
vity to October 1, and assuring pay on par with area
hospitals. Timm called for a vote on the proposals, in-
structing that yes or no be written on pieces of paper
and that the papers be brought up to Timm and Manson
in the front of the auditorium where, Smith recalls,
Timm would open the slips immediately and place them
before her. I credit Smith that Timm did so. Dombroski
objected to the procedures being followed, protesting
that supervisors were voting on the proposal and other
irregularities, to no avail. When voting was over Timm
retained custody of the ballots, and retired to Executive
Director Kenny's office where Kenny and Timm, with
no one else present, counted the ballots in complete se-
crecy. The announced result was that the ostensible end
product of committee-Respondent bargaining had been
approved by the voters. As is true with regard to other
committee meetings, employees were paid for the work-
time spent at this meeting.
By watching the committee members and their "con-
stituency" deliberate and vote on the benefits proposal
(the administration and committee's end product), col-
lecting the votes and opening them immediately, and se-
cretly counting the votes, Timm, as well as Kenny and
thereby Respondent, was keeping the Section 7 activities
of its employees under intentional and open surveillance
649
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in plain violation of Section 8(a)(1) of the Act and I so
find. It was a known fact that the choice running
throughout events in this period was between acceptance
of the proposals and "going for Local 1199" so that, in
my view, both the union activities and the sentiments of
nurses at this meeting, as well as their general concerted
activities conducted for the purpose of collective bar-
gaining viz, the proposal's consideration, were under Re-
spondent's unlawful surveillance. A vote against the pro-
posal was, under the circumstances, a vote for the Union
and against the administration-committee position fa-
vored by, indeed, pushed upon, the nurses by the hospi-
tal and being carefully shepherded by Timm, Manson,
and the supervisor's presence, participation, and control
of the meeting. There could be no clearer deprivation of
the nurses' rights to unsurveilled deliberation and debate
concerning their concerted activities in seeking improved
working conditions than this.
It is evident, in addition, that the Nursing Committee,
shown even before events on November 13 to have been
originated under Respondent auspices, approved and as-
sisted by Nenner and Kenny, midwifed into existence by
Manson, and supported by the hospital generally, was a
bargaining agent puppet controlled by Respondent in
further violation of Section 8(a)(2) of the Act. This con-
clusion is based on the origins and purpose of the com-
mittee described above wherein it is found to have been
conceived as a tool by which Respondent could further
solicit, ascertain, and implement the hoped-for improve-
ments of its nurses' employment benefits to the extent it
felt desirable, of course, for unlawful purposes. Russo's
appointment by Nenner to chair the committee, and did
so in the manner of Respondent's handmaiden, is another
factor. Manson's presence at the first originating meeting
and helpful role is another. Russo's status sufficient to be
present at the department head meeting implies a status
aligning her closer to management and supervision than
to rank-and-file nurses. Her unaccountable spilling of the
committee's findings and proposals in a "chance" meet-
ing with Kenny who by further "happenstance" had ar-
rived at the same figures, and bargaining by her commit-
tee with Kenny both in stark repudiation of her promise
to nurses to await their further consideration and posi-
tion-taking before presentation, add further evidence to
suggest an affinity, if not identity, between Russo and
Respondent's interests in keeping the Union out. It ap-
pears no coincidence that when the nurses boisterously
rejected Russo's proposals on November 9 as given to
her by administration after any complete negotiating ef-
forts by the nurses had been thwarted by Russo, Kenny,
and Nenner, the latter cutting off efforts to hear or talk
about any grievances other than the list Russo provided,
that Russo went directly to Director of Nursing Timm
to report events in tears and to seek solace from an obvi-
ous ally. Even though the nurses killed the proposals,
Respondent revived and breathed life into the adminis-
tration-committee process which produced the plan by
admittedly "stronger control" of the nurses, committee
and all, on November 13 when Timm, Manson, and the
supervisors, with help from Nenner and Kenny, secured
passage of virtually the same proposals. Revealing fur-
ther manipulative power over the committee and its dis-
dain for the committee action supported by the nurses at
the November 9 meeting which rejected the proposals,
Respondent circulated a memorandum on November 15,
after the "controlled" meeting, stating that the nursing
staff had voted overwhelmingly to accept "your elected
Committee proposals .... " (G.C. Exh. 8). Finally, if
any stronger proof of committee control by Respondent
were needed, it will later be seen that on January 5,
1979, Nenner himself preemptorily dissolved the commit-
tee, noting it had served its purpose. The Union had lost
the election on December 21. Although the General
Counsel does not allege an unlawful control aspect in the
complaint count of a violation of Section 8(a)(2), the
issue was thoroughly litigated at the hearing where ques-
tions of fact common to such an issue as well as other
issues raised by the complaint were addressed. I find that
Respondent not only unlawfully helped originate the
Nursing Committee, fostered, assisted, and supported it,
and participated in the committee's activities through
management and supervisors, but also exercised control
over the committee activities, including its very exist-
ence, in violation of Section 8(a)(2) of the Act. Edward
A. Utlaut Memorial Hospital, supra; Fry Foods, Inc., 241
NLRB 76 (1979); Janesville Products Division, Amtel, Inc.,
240 NLRB 854 (1978); and Fremont Manufacturing Com-
pany, Inc., 224 NLRB 597, 601 (1976).
E. Respondent's Continued Recognition of the
Committee after the Union's Petition Is Filed, Further
Restrictions on Union Activities, Threatened Loss of
Benefits, Transfir of Loretta Fisch, and Grant of
Benefits
After the "controlled" meeting Cohen gave Smith a
flyer announcing that District 1199 League of Registered
Nurses had filed a petition for election (G.C. Exh. 6).
The same day, March 13, Smith posted it and gave a
copy to Timm and a staff doctor, and the Union sent a
telegram to Respondent containing a request for bargain-
ing, which the hospital received on November 14. That
same day, a memorandum over Kenny's signature was
circulated which stated that contrary to rumor all nurses
whether they had signed cards or not could be eligible to
vote in the event a vote is necessary on "an outside Bar-
gaining Unit . . . ."(G.C. Exh. 7). On November 15,
Respondent, in a memorandum to all registered nurses,
refused to recognize the Union, Kenny indicating therein
that Respondent "shall proceed to work with your Elect-
ed Committee to put into effect your proposals as
amended and accepted on November 13, 1978." (G.C.
Exh. 8.)
There is clear proof that Respondent, in the guise of
maintaining order by both sides during the ensuing days
in the election campaign, continued to work with the
committee by overly restricting union activities while al-
lowing and encouraging committee support in further
violation of Section 8(a)(2). Thus, I find that Timm's tes-
timony, under continuously leading questions, and with-
out reassuring specificity, that she evenhandedly instruct-
ed Russo and others on both sides to restrict activities
unpersuasive in light of other credited testimony by
Smith and Dombroski, as well as admissions by Kenny
650
DEEPDALE GENERAL HOSPITAL
himself. Thus, I find Respondent acted disparately to-
wards Smith on November 28, when Timm again re-
stricted Smith to stay in her unit and to stay off the
floors altogether after Smith tried to talk to nurse Loret-
ta Fisch that day concerning the origin of a leaflet Fisch
had helped prepare instructing nurses how to secure the
return of signed union authorization cards; yet Russo
freely posted and distributed the same paper in the hospi-
tal (G.C. Exh. 9). On November 29, Smith and Cohen
distributed leaflets at the timeclocks at the end of the day
after the shift was over. The very next day, I credit
Smith that Kenny instructed Smith in his office, with
Dombroski present, to be out of the building and off the
grounds at the close of her shift, that she was not al-
lowed to stay on the premises at all after her shift was
over. Further, I find that Kenny told Smith she was not
to conduct union business on the floors at any time-any
place-in the hospital, and that she was not to conduct
any type of union activity in the hospital during the
work shift. Yet, the very same day, Timm herself freely
distributed in the hospital a copy of the "Salary and
Benefit Proposal" (G.C. Exh. 10), which Kenny had ear-
lier trumpeted and identified in his memorandum to the
nurses as being a product of the committee's efforts and
which consisted of a four-page listing of economic bene-
fits planned for the nurses. Further, on December 4,
Timm also distributed in the hospital a two-page memo-
randum from Kenny to all nurses announcing consent to
an election but referring pointedly to the earlier agreed
proposals and declaring that "your committee and ad-
ministration can work for the best interest of all con-
cerned" (G.C. Exh. 12). When nurse Smith, on Decem-
ber 4, flipped through a cardex file checking for hand-
writing similarities there and on a note she had received
of an upsetting nature to her, Timm protested to Dom-
broski Smith's activities on the floors. In response the
two agreed Smith would remain off the floors until the
union matter was resolved. Other procommittee-oriented
literature found its way unimpeded into the hospital as
well, such as a memorandum extolling, inter alia, that
"the proposals that your Committee put together brings
your salary and benefits in almost all cases above what
the Union has quoted" (G.C. Exh. 14). Yet, on Decem-
ber 17, the senior nursing supervisor, Caraher, made it
pointedly clear that union witness and election observer
Ivy Hall was not to hand out leaflets to nurses in the
hospital, while she was visiting there at I p.m. during her
vacation.
I also fully credit Dombroski's uncontradicted testimo-
ny concerning this unequal treatment, that she frequently
witnessed Timm talking to nurses during worktime about
the committee, that Russo uninterruptedly spoke in favor
of the committee on many occasions and was free to
carry her message throughout the hospital, that she
noted how committee communications were distributed
on hospital stationery, that she could see and hear Timm
also discussing the committee with its members in the
nursing office. And, in fact, she had objected to Timm
the unfairness in all this. I find on the basis of the forego-
ing that Respondent not only promulgated and enforced
an overly broad no-solicitation, no-distribution rule
against union activities in violation of Section 8(a)(l), but
also that it was discriminatorily applied against union ac-
tivities and not to procommittee activities which Re-
spondent favored and thereby assisted in violation of
Section 8(a)(1) and (2) of the Act. Beth Israel Hospital.
supra; and N.L.R.B. v. Baptist Hospital, supra; and Rike's.
a Division of Federated Department Stores, Inc., 241
NLRB 240 (1979).
The Threatened Loss of Benefits on December 15
The complaint alleges that Respondent, through
Nenner, threatened to withhold employment benefits in
order to discourage support for the Union. The allega-
tion is based on Smith's testimony describing Nenner's
statements to her at a hospital staff Christmas party on
December 15, 6 days before the election. In this discus-
sion, Smith asserts that Nenner spoke to her in a similar
vein as did Kenny earlier at the party, telling her how
much better the hospital policies were than those offered
by the Union and that she should stop being involved
with the Union. When Smith asked Nenner why the hos-
pital did not give the nurses the benefits now, Nenner re-
plied that the hospital could not give them anything until
after the election. Smith said on further cross-examina-
tion that she asked him why the nurses had not been get-
ting them all along, and that Nenner said the hospital
could not give anything until after the vote. Smith fur-
ther testified that she asked Nenner why he had waited
so long and then all of a sudden when the nurses decided
to unionize he wanted to give them something. She also
testified that she said that if the Union had not come in
the nurses would not get any of these benefits, to which,
instead of a denial, Nenner shrugged and laughed. It is
clear that Nenner was pegging the payment of richer
employment benefits to the outcome of the election
voting by the nurses on December 21. Viewed in a party
context separate and apart from the background to this
case, Nenner's comments appear innocuous, though am-
biguous. However, when the long stream of Respond-
ent's acts presenting to nurses the oft-proclaimed choice
between the committee, and all the new promised bene-
fits connected with it and the Union, assumedly not con-
nected with such improvements, is placed into back-
ground to Nenner's remarks, the message comes through
rather clearly. With a view now enlarged by full context,
Nenner's message becomes rather direct and to the point,
viz, if the vote goes union there will be no committee of
course, and hence, no committee-generated benefits as
promised. Nenner did not tell Smith she should not con-
strue his comments in such a way, content to rest on the
ambiguous threat that benefits would in effect depend on
the election, nor did he testify at the hearing in denial of
the complaint allegation, or of Smith's testimony. Re-
spondent, through repeated references to what the com-
mittee and the administration had produced in the form
of new benefits, reference to continuing to work with the
committee, and its open, deliberate favoritism to the
committee, including written preferences for it over the
Union and efforts to dissuade Smith to stop being in-
volved in the Union, virtually made the continued exist-
ence of the committee synonymous with, and a necessary
predicate to, the nurses receiving those committee-ad-
651
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ministration benefits. An existence which would be im-
possible if the "outside" bargaining agent were to prevail
in the election. When Respondent's well-known union
animus is joined with these other circumstances Nenner's
remarks reasonably appear calculated to threaten em-
ployees with a loss of benefits unless they vote against
the Union, a threat violating Section 8(a)(l) of the Act. I
so find. Interstate Transport Security/Division of PJR En-
terprises, Inc., 240 NLRB 274 (1979).
The Alleged Preferential Transfer of Loretta Fisch
The General Counsel contends that Fisch was trans-
ferred to infection control nurse on December 26, to fill
the vacancy created by Russo's departure, because Fisch
was deemed worthy of an advantageous move or reward
due to her support for the administration against the
Union. No doubt Fisch was more procommittee and ad-
ministration than prounion; she served as hospital observ-
er at the election and no doubt the new position which
she left shortly afterward at the end of February, for the
position of head nurse, carried with it, while no greater
pay, more flexible hours and the freedom to move
around the hospital. In addition, while no other econom-
ic benefits attend the position, it rates a status sufficient
to qualify the incumbent to attend department head
meetings and perhaps serve as a stepping stone for
Fisch's further advancement; so clearly the post amount-
ed to a step up for Fisch and a desirable one generally. I
found Fisch's testimony unreliable, both as to her exag-
gerated responses concerning an overblown incident
with Smith in the medication room, and her association
and activities on the Nursing Committee, when her testi-
mony was vague and her recall selective and guarded
where it should have been clear. In addition, Fisch testi-
fied she did not know what the qualifications for the in-
fection control nurse were before applying or afterward.
And Timm, when questioned why she had not posted
the new opening, in the face of the hospital's broadcasted
policy of doing so before filling new vacancies, simply
admitted that she did not know why she had not posted
the opening. It is, of course, rare that such a violation as
this can be proven by direct evidence, such as an admis-
sion by the happy new incumbent in the position, who is
not likely to turn on the grantor, or by an admission by
the benefactor who would just as soon not concede
other than a pure intent. As a consequence in this area,
even more so than in most, a judicious use of circumstan-
tive evidence is required, and reliance on burdens of
proof and presumptions arising therefrom fully justified.
Fisch often defended the committee, and went to Timm
protesting Smith's inquiry into a committee-alleged usur-
pation on November 28, in such manner as to clearly
evince she was procommittee; in fact, she admitted
working on the paper containing instructions for nurses
to recover their union authorization cards. She further
appears as a hospital ally from her service as an observer
for Respondent 5 days before her transfer, and an out-
spoken defender of the Respondent-controlled committee
throughout the hospital. In addition to a possible motive
of rewarding Fisch for her procommittee support against
the Union, inter alia, in her efforts to secure a return of
the union cards, Respondent had the additional motive of
filling Russo's old position from which vantage point it
could continue to keep a pulse on activities throughout
the hospital with a tried and true loyalist, so there is no
doubt that motive for appointing Fisch is established in
the record. Russo's departure, of course, provided a
timely opportunity. In the face of these factors, a pre-
sumption arises that Respondent may have harbored the
intention to reward Fisch based upon her committee ac-
tivities, thereby shifting the burden of showing why
Fisch was selected onto Respondent. Fisch's admitted
lack of any knowledge of the position's required qualifi-
cations and Timm's failure to offer any reason at all why
the hospital promised-posting policy was not followed
render Timm's only alleged substantial reason for select-
ing Fisch, viz, to solve some personal friction problem on
the floor between Fisch and another as totally unpersua-
sive and unworthy of belief. This leaves the latter's an-
tiunion activity, as the only reason on this record for the
transfer of Fisch, a basis for the action which clearly dis-
criminated in regards to an employee's union activity in
violation of Section 8(a)(3) of the Act. I so find.
Grant of Benefits
There is no question but that, in December 1978, and
beginning in early January 1979, Respondent granted nu-
merous employment benefits to its nursing employees,
telling them it was implementing benefits, "as promised."
Smith testified that sick leave pay was paid employees
and the record indicates this was on December 14, in a
paycheck accompanied by a note from Kenny to all em-
ployees: ". . . your pay for unused sick time as promised
.... " (G.C. Exh. 15). She also testified to increases in
base salary being paid, increase in the timespan during
which progressive pay increments would be given; in-
creases in pay differentials for head nurses, who were in-
cluded in the unit, increases in shift differential pay for
staff nurses, increased pay for nurses serving as charge
nurse and medication nurse on the same shift, better holi-
day pay in the form of time and a half for some holidays,
premium pay for work required on a nurse's normal day
off, greater discretion in use of sick leave, maternity
leave policy in writing, a uniform allowance for the first
time, posting of new positions prior to their being filled,
college education benefits, an educational committee,
plans for a minimum in-service education period were in-
augurated, a nurses' bulletin board, a grievance commit-
tee, and representation on the medical board. On January
5, Nenner informed employees that the Nursing Commit-
tee had achieved its purpose and no longer existed, also
telling employees when pay raises would be implement-
ed. On February 28, employees received paychecks with
a note attached informing them the amount of the pay
included retroactive pay "which you were promised
.... Even though all matters have not been settled as
yet with the National Labor Relations Board .... " Re-
spondent does not deny that it actually granted these
benefits, and never before this had the nurses been treat-
ed to so wide a variety of new and substantially in-
creased benefits. These benefits flowed from Respond-
ent's earlier promises, found herein calculated to discour-
age employee interest in the Union, and came into exist-
652
DEEPDALE GENERAL HOSPITAI.
ence through the unlawful manipulation and control of
the puppet Nursing Committee-via alleged bargaining
with administration and in the guise of "proposals," also
found to constitute, in reality, Respondent-created prom-
ises of benefit to achieve unlawful purposes. I find the
new benefits granted by Respondent to be merely the un-
lawful fruition of its earlier unfair labor practices and, for
the same reasons, to constitute interference with the Sec-
tion 7 rights of its employees in violation of Section
8(a)(1) of the Act. Hamilton A.vner Electronics, supra Don
Pizzolato, Inc., 249 NLRB 953 (1980), and cases cited
therein.
F. The Union Majority
The parties stipulated that the appropriate unit consist-
ed of 123 employees.5 (G.C. Exh. 90) Credible testimony
on this record by either the card signers themselves-
some 50 authenticated their own cards, most saying they
read them first-the solicitors of other cards, and an ex-
amination of all the cards, including the 10 cards with
accompanying W-4 forms containing the signatures to
those 10 cards, establish uncontestably authenticated au-
thorization cards, valid on their face, bearing a clear des-
ignation of the Union as bargaining representative on
behalf of 80 unit employees out of the 123; were execut-
ed during the period October 23 to November 8, 1978.
Respondent's argument that the cards are nullified by
material misrepresentations made to the signers by solici-
tors is found not supported by the record. I have already
concluded, for the reasons stated, that the cards signed
by employees at the October union meetings are valid.
As to the remaining cards, employees testified in fairly
identifiable similar lots that they were told the cards
were for the Union to represent them, to join the Union;
that the cards were to get the Union to send a repre-
sentative to talk to them; or so that they could attend a
meeting to hear what the Union had to offer; to show an
interest in having a union; to learn more about the
Union; to show an interest sufficient to get an election;
for an election; that it was not a vote for the Union; and,
in one or two instances at most that the card was only to
be used for an election (Rosemary Preda), or other assur-
ances reasonably construable to the same effect (Kath-
leen Dello). In addition, Respondent elicited impressions
from some card signers that the card was for an election.
Many card signers' testimony is clear, direct and to the
point also, that they signed the card to have the Union
represent them and, while the signers' subjective intent is
irrelevant, strictly speaking, that fact tends to contradict
Respondent's argument that an overview of all the cir-
cumstances tends to make the cards wholly unreliable. I
find that the stated purposes given employees for signing
these unequivocally clear bargaining authorization cards
did not negate their stated purpose and that, except for
the cards Preda and Dello signed, there is no reason not
to rely on them. Accordingly, I find that the Union had
been duly designated as bargaining representative by a
majority of Respondent's employees in the appropriate
I Respondent, contrary to the other parties, would also include (ioldie
Thompson in the unit, hut it is unnecessary to make a detlermination on
Thompson's status., hich as not treated at the hearing
unit by November 8, prior to its demand for recognition
on November 14. Jeffrey Manufacturing Division, Dresser
Industrie.s, Inc., supra at 10-20; Holiday Inn of Perrysburg,
Ohio. supra: and Federal Alarm. 230 NLRB 518, 522
(1977).
It follows from the foregoing that Respondent, when it
refused to bargain with the Union on November 15,
having embarked on a course of committing unfair labor
practices designed to impede the exercise of its employ-
ees' Section 7 rights beginning with the illegal formation
of the Nursing Committee and including the commission
of numerous other violations both within and outside the
election period time parameters, violated Section 8(a)(5)
of the Act as of November 15, 1978. I so find. Albertson
IManufacturing Company, 236 NLRB 663 (1978).
Respondent's misconduct interfered with the election
in Case 29-RC-4400 to a substantial degree so that the
results therein warrant nullification by setting aside the
election. Dal-Tex Optical Company, Inc., 137 NLRB
1782, 1786 (1962). It is recommended, however, in view
of the following bargaining order remedy, that said elec-
tion be set aside and all proceedings in connection there-
with be vacated.
IV. HE FFECT OF THE UNI:AIR LABOR PRACT1CES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCI.USIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union and the Nursing Committee are labor or-
ganizations within the meaning of Section 2(5) of the
Act.
3. The bargaining unit of all registered nurses de-
scribed above is a unit appropriate for collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. Respondent has violated Section 8(a)(1) of the Act
by: (a) promising and granting employment benefits to
employees including improvements in sick pay in order
to dissuade them from supporting the Union; (b) solicit-
ing and thereby promising to resolve grievances from
employees to persuade them to abandon the Union; (c)
promulgating and discriminatorily enforcing unlawfully
broad no-solicitation, no-distribution rules at any time or
any place in its hospital; (d) giving the employees the im-
pression that their union activities are under surveillance,
and keeping employees' protected concerted and union
activities under actual surveillance; and (e) threatening to
withhold employment benefit increases from employees
contingent upon how they voted in an NLRB represen-
tation election.
5. Respondent has violated Section 8(a)(2) and (1) of
the Act by approving the initiation of the Nursing Corn-
653
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mittee, participating in its formation, giving research,
support, and other encouragement and assistance to, and
by controlling, recognizing and bargaining with, the
Nursing Committee over employees' terms and condi-
tions of employment.
6. Respondent has violated Section 8(a)(3) and (1) of
the Act by discriminatorily transferring Loretta Fisch to
a more favorable employment position as infection con-
trol nurse because of her support of, and allegiance to,
Respondent's campaign to discourage employees' support
for the Union.
7. Since November 8, 1978, a majority of the employ-
ees in the registered nurses' bargaining unit described
above have designated the Union as their exclusive rep-
resentative in the unit for purposes of collective bargain-
ing and the Union, since November 7, 1978, has been the
exclusive bargaining representative of said employees
within the meaning of Section 9(a) of the Act.
8. Respondent has on and since November 15, 1978,
violated Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Union as the representa-
tive of its employees in the appropriate unit.
Ti R EMII)Y
It is now well settled that a bargaining order is war-
ranted when an employee's commission of unfair labor
practices is serious and extensive in nature, so that a fair
election is not a likely or possible means for ascertaining
employee wishes. N.L.R.B. v. Gissel Packing Co., Inc.,
395 U.S. 575 (1969). Respondent committed very serious
unfair labor practices from about the time the Union's
organizing campaign was generated by employees
through the filing of a petition for an election and there-
after. The promises and grants of benefits, solicitation of
grievances, formation, support, and control of a puppet
employee bargaining committee, discriminatory restric-
tions on prounion communications, rewarding transfer of
an employee, and threat to withhold benefits were calcu-
lated to thwart the Section 7 rights of employees to exer-
cise a free choice for representation by the Union. That
Respondent succeeded in this, and in its efforts to use the
employee committee as a means to such end, is seen most
clearly when after the Union had lost the election
Nenner dissolved the Nursing Committee noting that it
had ". . . served its purpose." A clear presumption can
reasonably be drawn that, but for Respondent's unfair
labor practices, the Union's majority prior to the election
would have been retained. American Map Company, Inc.,
219 NLRB 1174 (1975), enfd. 551 F.2d 301 (2d Cir.
1976). It can also be expected, given the powerful effect
Respondent's antiunion conduct likely had on its employ-
ees, that employees would remain under the influence of
Respondent's tactics in any rerun election. Tipton Electric
Company and Professional Furniture Company, 242 NLRB
202 (1979). In short, Respondent's solicitation of griev-
ances, and responses to employees' proposals through the
Nursing Committee controlled by Respondent, whose
tactics placed the committee in a preeminent position,
presented the strong message to employees that the "out-
side" help of the Union was totally unnecessary. National
Care & Convalescent Industries, Inc. d/b/a Elmwood
Nursing Home, 238 NLRB 346 (1978). Accordingly, I
conclude that an election would be an unreliable indica-
tion of employee desires for representation and I will
grant the General Counsel's request for a bargaining
order. Since Respondent's violations are egregious in
nature, in addition to cease-and-desist provisions ad-
dressed to specific conduct, a broad cease-and-desist pro-
vision is warranted. 6
Upon the foregoing findings of fact and conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, hereby issue the follow-
ing recommended:
ORDER 7
The Respondent, Ralph Nenner, M.D., Louis Orens,
M.D., et al., a partnership d/b/a Deepdale General Hos-
pital, New York, New York, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Granting or promising benefits to employees in-
cluding improvements in sick pay in order to dissuade
them from supporting the Union. However, nothing
herein shall require Respondent to withdraw any benefits
now being enjoyed by employees.
(b) Soliciting grievances from employees and thereby
promising benefits to employees to induce them to aban-
don the Union.
(c) Engaging in surveillance of employees' protected
concerted and union activities or creating the impression
of surveillance of employees' union activities.
(d) Threatening employees that employment benefit in-
creases will be withheld depending on how they vote in
an NLRB representation election.
(e) Promulgating, maintaining, or discriminatorily en-
forcing any overly broad rule, prohibiting at any time or
any place in the hospital the distribution of literature and
solicitation relating to matters involving the exercise by
employees of their rights under Section 7 of the Act.
(f) Approving the initiation of the Nursing Committee,
telling employees to elect members on it, rendering
advice, support, and assistance to the committee, and
controlling it.
(g) Recognizing or bargaining with the Nursing Com-
mittee or any member thereof as the representative of its
employees concerning terms or conditions of employ-
ment.
(h) Discriminatorily transferring any employee to a
more favorable position because of such employee's sup-
port against the Union.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
6 Cf. Hicwkmo Foods, Inc., 242 NLRB 1357 (1979)
In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ilgs. conclusions, and recommended Order herein shall, as provided in
Sec 102.48 of the Rules and Regulations, be adopted bh the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
654
DEEPDAI.E GENERAL HOSPITALI
(a) Upon request, bargain with the Union as the exclu-
sive representative of all employees in the unit described
below, with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if an un-
derstanding is reached, embody such understanding in a
signed agreement:
All full-time and regular part-time registered nurses,
including head nurses and charge nurses, employed
by Respondent at its Little Neck hospital in New
York City, New York, excluding all other employ-
ees, guards, and all supervisors sa defined in the
Act.
(b) Post at its hospital in New York, New York, copies
of the attached notice marked "Appendix." 8 Copies of
said notice, on forms provided by the Regional Director
for Region 29, after being duly signed by Respondent's
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
R In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the ords in the notice reading "Posted bh
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board
APPENDIX
NOTICE To EMPLOY EES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full hearing at which the parties had an opportu-
nity to present their evidence, the Nation Labor Rela-
tions Board has found that we violated the National
Labor Relations Act, as amended, and has ordered us to
post this notice and carry out its terms.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a representa-
tive of your own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT in the future give you or promise
to give you improved benefits or anything else of
value including sick pay improvements to induce
you to stop helping, to stop supporting, or to refrain
from voting for District 1199, National Union of
Hospital and Health Care Employees, League of
Registered Nurses, Retail, Wholesale and Depart
ment Store Union, AFL-CIO, or any other labor
organization.
Wl. WIll NOT solicit grievances from you nor
promise benefits to you to induce you to abandon
the Union.
WE wit l. Nor keep your union or protected con-
certed activities under suveillance and wi. wllrl
NOt give you the impression that your union activi-
ties are under surveillance.
WE WILL NOT threaten that increases in employ-
ment benefits will be withheld depending on how
you vote in an NLRB election.
WE Wil.l NOT adopt and unfairly enforce overly
broad rules prohibiting at any time or any place in
the hospital distribution of literature or solicitation
relating to matters involving your exercise of rights
guaranteed to you by the Act.
WE WIl. NO' approve the initiation of the Nurs-
ing Committee or ask you to elect members on it,
and WI. Wil.l NOT render assitance to the Nursing
Committee, or give support to, or control said com-
mittee.
WE WIll. Nor recognize or bargain with the
Nursing Committee or any one elected by you to
become a member thereof as your representative
concerning wages, rates of pay, hours of employ-
ment, or any other terms and conditions of employ-
ment.
WE wIt.I Nor discriminatorily transfer any em-
ployee to a more favorable job because of such em-
ployee's support against the Union.
WE Wll. NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of the rights guaranteed them by Section 7 of
the Act.
WE WILL, upon request, bargain with the above-
named Union, as the exclusive representative of all
employees in the bargaining unit described below,
with respect to rates of pay, wages, hours. and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit
is:
All full-time and regular part-time registered
nurses, including head nurses and charge nurses,
employed by Respondent at its Little Neck hospi-
tal, New York City, New York, excluding all
other employees, guards, and all supervisors as
defined in the Act.
RALPH NENNER, M.D., Louts ORENS,
M.D., E AL., A PARTNERSHIP D/BR/A
DEEPDALE GENERAl. HOSPITAL
,55