East Tennessee Baptist Hospital

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 872 (N.L.R.B. 1991)

872
304 NLRB No. 113
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
In agreeing with the judge that the Respondent violated Sec. 8(a)(3) by re-
fusing to grant Sharon Rimmer’s request to transfer to a 12-hour shift because
she failed to solicit the Union to withdraw the unfair labor practice charges,
we emphasize the following. The Respondent violated Sec. 8(a)(1) by telling
Rimmer her request would be granted if she solicited the Union to withdraw
the unfair labor practice charges. In addition, we note that about the same time
the Respondent refused Rimmer’s request, it honored two other requests for
shift transfers and a request for the retention of a 12-hour shift. Although these
requests were made earlier in time than Rimmer’s request, they were nonethe-
less implemented at a time when the Respondent claimed it could not honor
Rimmer’s request because of pending unfair labor practice charges.
2 The judge inadvertently failed to include a make-whole remedy for the Re-
spondent’s failure to grant Rimmer’s request for a shift transfer. The judge
also inadvertently failed to include a bargaining provision in the notice. We
shall correct these errors.
East Tennessee Baptist Hospital and Office & Pro-
fessional Employees International Union, Local
268. Cases 10–CA–23887, 10–CA–24302, 10–
CA–24413, and 10–CA–24508
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On June 4, 1990, Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified.2
1. We agree with the judge that the Respondent vio-
lated the Act by refusing to furnish the wage and at-
tendance information the Union requested. By agreeing
to article 19.2(b) in the 1988–1989 contract as it re-
lates to wage increases and article 19 in the 1989–1991
contract as it relates to personnel matters, the Respond-
ent obligated itself to provide the requested informa-
tion to allow the Union to verify the Respondent’s
compliance with the contracts.
The Respondent claimed that it attempted to accom-
modate the Union’s request for wage information by
offering to permit, at the Union’s expense, a ‘‘mutually
agreeable independent certified public accountant’’
(CPA) to examine the Respondent’s payroll records to
determine whether unit employees received the same
percentage wage increase as nonbargaining unit em-
ployees received in July 1988. We do not believe the
Respondent’s offer was a reasonable attempt to accom-
modate the Union’s request for wage information.
The Respondent’s obligation to provide the informa-
tion arises from the contractual commitment to grant
unit and nonunit employees the same wage increase.
The contract contains no restrictions on the Union’s
entitlement to verify that the increases were equivalent.
Thus, the parties’ contract provides the Respondent no
grounds on which to insist on such a restriction. Fur-
ther, by suggesting that the CPA be mutually accept-
able, the Respondent retains veto power over who the
Union’s agent in examining the books will be. Such a
limitation is unreasonable, for to accede to it would be
to allow the Respondent ultimate control over a matter
ostensibly relinquished by contract. Finally, the Re-
spondent has not shown that the wage information the
Union seeks is so complex that it requires the analyt-
ical services of a CPA to interpret.
2. The judge found that the Respondent violated
Section 8(a)(5) of the Act by conducting a survey
among unit employees. We do not agree.
In the spring of 1989, the Respondent experienced
considerable staffing problems in the operating room.
Merry Anne Pierson, director of surgical services and
supervisor of operating room personnel, testified that
eight employees left the operating room staff between
April and June 1989 due to problems associated with
the shift schedule. Pierson decided to conduct a survey
among operating room personnel to solicit their opin-
ions on how to solve the staffing problem.
The Union was not notified that the Respondent in-
tended to conduct a survey. Pierson believed that ‘‘it
was within our right to, as management, to determine
what shifts we needed to staff our department so that
we could provide patient care.’’ Pierson relied on the
contract’s article 15, section 15.1, which states as fol-
lows:
Permanent changes in shifts and hours of employ-
ment may be made as necessary to provide ade-
quate patient care. Such changes are first made on
a voluntary basis within the affected departments
. . . . Changes in shifts and hours of employment
shall be made only for legitimate, non-discrimina-
tory reasons and shall not be made for the pur-
pose of harassing any employee. In the event the
hospital determines that massive changes in shifts
or hours of employment are necessary, it will no-
tify the Union of the changes before instituting
the same and meet with the Union upon request
to discuss the impact of the changes upon affected
employees.
The Respondent did not implement the proposed
staffing plan it developed as a result of the June 1989
survey. Pierson testified that the new staffing pattern,
had it been put into effect, would have been on a vol-
untary basis and would have involved only 10 employ-
ees on 2 shifts.
873EAST TENNESSEE BAPTIST HOSPITAL
3 Cf. United Technologies Corp., 274 NLRB 1069, 1071 (1985) (survey not
unlawful where purpose was to determine whether personnel policies and ben-
efits programs were being communicated to new hires).
4 Cf. Obie Pacific, 196 NLRB 458 (1972), where survey found unlawful,
as it was conducted to determine employee support for union’s bargaining po-
sition. NLRB v. Wallkill Valley General Hospital, 866 F.2d 632, 636 (3d Cir.
1989), enfg. Alexander Linn Hospital Assn., 288 NLRB 103 (1988), relied on
by the judge, is also distinguishable. There the survey sought employee pref-
erences as to certain employee benefits proposals previously addressed directly
in collective bargaining and at a time when there was a possibility of renewed
bargaining over the same issues. Here, to the contrary, the subject matter of
the survey was totally unrelated to any ongoing or upcoming negotiations. Fur-
ther, the Respondent has shown, unlike the respondent in Alexander Linn, a
compelling need to ascertain employee views relevant to exercising a manage-
ment right explicitly granted by the collective-bargaining agreement.
The judge found that the focus of the survey in-
volved hours of work, a mandatory subject of bargain-
ing. The judge also found that the Respondent rou-
tinely notified the Union of planned employee surveys
and bargained about the surveys when the Union re-
quested. The judge concluded that the Respondent vio-
lated the Act ‘‘by dealing directly with unit employ-
ees’’ in conducting the survey. We do not agree.
There is no dispute that, prior to the time the survey
was conducted among the operating room employees,
the Respondent had experienced serious difficulties in
staffing the shifts in that department. Pierson’s testi-
mony establishes that the provision of adequate patient
care was of major concern. The contract gives the Re-
spondent the right to make shift changes ‘‘as necessary
to provide adequate patient care.’’ Any proposed
changes in the shift schedule would have been on a
voluntary basis, in accordance with the contract. The
employee survey was designed to collect information
to enable the Respondent to determine if the operating
room employees wanted to make changes in their
schedules on a nonmandatory basis.3
Finally, the employee survey was conducted during
the term of a contract. No contract negotiations were
pending or contemplated.4
Considering all the circumstances, especially that the
contract gave the Respondent the right to make shift
changes as necessary to provide patient care and that
the survey was conducted during the contract term and
no negotiations were contemplated, we find that the
Respondent did not violate the Act by conducting a
survey among operating room employees.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion
of Law 6.
‘‘6. The Respondent, by failing and refusing to fur-
nish the Union information requested by it which is
necessary and relevant to the Union’s performance of
its function as the exclusive collective-bargaining rep-
resentative of the employees in the bargaining unit,
violated Section 8(a)(5) and (1) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, East
Tennessee Baptist Hospital, Knoxville, Tennessee, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Delete paragraph 1(b) and reletter the subsequent
paragraphs.
2. Substitute the following for paragraph 2(b).
‘‘(b) On request, transfer Sharon Rimmer to the 12-
hour shift and, if necessary, make her whole for any
loss of earnings or benefits she may have sustained as
a result of the Respondent’s unlawful conduct. Any
loss of earnings or benefits shall be determined with
interest computed in the manner prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER OVIATT, concurring in part and dissenting in
part.
I concur with my colleagues’ resolution of the issues
in this case except with regard to the Union’s demand
for wage information regarding nonrepresented em-
ployees.
In August 1988, the Union requested certain infor-
mation including ‘‘(1) James, job titles and rates of
pay before the July 1988 wage increase for all EPBH
non-bargaining unit employees.’’ The Respondent an-
swered that it did not believe the hospital was obli-
gated to provide the information requested concerning
non-bargaining unit employees. Six weeks later the
Union ‘‘clarified’’ its request by indicating that it de-
manded rates of pay for nonunit employees both before
and after the July 1988 across-the-board 5-percent
market wage increase. The asserted basis for this re-
quest was article XIX of the parties’ collective-bar-
gaining agreement which provided in pertinent part:
Effective July 4, 1988, each employee shall re-
ceive a market wage rate equal to the percentage
market wage adjustment (not including special
market wage adjustments) that non-bargaining
unit employees will receive in July, 1988; or an
amount equal to the difference between the em-
ployee’s existing wage rate and the new maxi-
mum rate for the job classification, whichever is
less.
The Respondent replied that the nonbargaining unit
employee wage rates requested were confidential both
from the standpoint of the employees involved and the
hospital and therefore respectfully declined to provide
that specific information. In light of article XIX, how-
ever, the Respondent agreed to permit access by a
CPA to the relevant payroll records for the purpose of
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 My colleagues assert that the Respondent’s suggestion that the CPA be
mutually acceptable was an unreasonable limitation. To the contrary, I deem
it eminently prudent. Indeed, even the Union raised no objection on that
ground.
2 Indeed, the Union not only failed to meet its burden of proposing a means
of reconciling its demand with the confidentiality problem as to nonunit em-
ployees, it explicitly rejected any such accommodation. Thus, in response to
the Respondent’s November 8, 1988 letter, Union Representative Pope contin-
ued to insist that he ‘‘needed the names and the other information so that’’
he could verify it independently and, even if an accountant checked the wages,
the Union ‘‘still needed’’ the right to go out and independently verify any kind
of wage information. Such a statement does not indicate any effort to accom-
modate the Employer’s confidentiality needs.
3 The Judge stated that the Respondent’s willingness to let a CPA examine
the payroll records to determine whether the market wage adjustments percent-
age increases were the same for unit and nonunit employees was ‘‘inconsist-
ent’’ with its prior claim of confidentiality. That is more reminiscent of Alice
in Wonderland than appropriate legal analysis.
enabling the accountant to determine whether the mar-
ket wage adjustment (not including special market
wage adjustments) percentage increases received by
unit and nonunit employees were the same. It contin-
ued, ‘‘we believe this suggestion fully accommodates
any legitimate interest you have in the matter.’’
The Union insisted that it was entitled to the infor-
mation in the form requested. Union Business Rep-
resentative Pope, who made the request, testified at the
hearing that even if an accountant checked the wages,
‘‘that was not sufficient.’’ He testified that he still
needed the right to go out and independently verify
any kind of wage information; ‘‘for example . . . I
needed the names and the other information so that I
could verify it.’’
My colleagues conclude that by agreeing to article
XIX in the contract relating to wage increases, the Re-
spondent obligated itself to provide the information re-
quested by the Union in the form requested by the
Union. I disagree.
There is no dispute here that the Union has a right
to assurance that the 5-percent market wage increase
has been evenly applied as provided in article XIX of
the contract. But that is all that the Union is entitled
to. Article XIX cannot reasonably be interpreted to
grant the Union the right to an unlimited fishing expe-
dition, or to require the Respondent to furnish the
Union with unlimited information as to the names, job
titles, and rates of pay of all nonunit employees of the
hospital in the form demanded by the Union. To say
that the Union has a legitimate interest in verifying
that the contractual requirement regarding the market
wage increase has been complied with clearly does not
include the right to garner confidential information re-
garding employees that the Union does not represent
and which just as clearly is not required for the Union
to ascertain whether the 5-percent increase was in fact
the same. To conclude, as the majority apparently
does, that agreement to a clause providing that market
wage increases will be equivalent is the same as also
agreeing that the Respondent will provide the Union
with confidential information about nonunit employees
is to rewrite the parties’ contract.
The Union here has shown no legitimate need for
any information other than verification that the con-
tract clause had been complied with. It ignored the Re-
spondent’s reply that its request was overbroad except
to expand the scope of its request. It also rejected the
Respondent’s proposed offer to accommodate the
Union’s right to police the contract clause in light of
the confidentiality of information concerning employ-
ees that the Union did not represent1 But when those
aspects had been raised by the Respondent, the burden
shifted to the Union to propose an accommodation
which would enable it to verify compliance, while at
the same time meeting the concerns raised by the Re-
spondent.2 The Union’s explanation was that even if
an accountant checked the wages, Pope still ‘‘needed
the names and the other information so that I could
verify it.’’ That simply is not sufficient to demonstrate
a necessity for the Union to be given all the informa-
tion it wants in the form that it wants it concerning
nonbargaining unit employees.3
In sum, the Union has utterly failed to demonstrate
the requisite necessity for the requested information as
to nonunit employees, and it failed to modify its re-
quest to accommodate the limited right to information
that it did have with the concerns of overbreadth and
confidentiality raised by the Respondent. Accordingly,
I would dismiss this allegation of the complaint and I
dissent from my colleagues failure to do so.
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 the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain collectively with Of-
fice & Professional Employees International Union,
Local 268, as the exclusive bargaining representative
of our employees in the following appropriate unit, by
refusing to furnish the Union requested wage informa-
875EAST TENNESSEE BAPTIST HOSPITAL
tion and attendance information in accord with its re-
quests on and after August 19, 1988, and October 12,
1989:
All licensed practical nurses and technical em-
ployees, employed by Respondent at its Knox-
ville, Tennessee hospital including computerized
tomograph, registered technologist; staff radiology
technologist and clinical instructor; nuclear medi-
cine technologist; radiation therapy technologist;
special procedures technologist; non-registered
staff technologist; registered staff technologist; li-
censed practical nurse, level II, nursing service; li-
censed practical nurse, level I, nursing service; li-
censed practical nurse, level I, recovery room; op-
erating room technician; certified lab assistant;
certified respiratory therapist; respiratory therapy
technician; respiratory therapy technician, level I,
pulmonary laboratory technician; bloodbank tech-
nician; histopathology technician; medical labora-
tory technician; licensed practical nurse, emer-
gency room; cyto technologist; physical therapy
assistant; laboratory assistant heart center; cardio-
vascular technician I; respiratory, intensive care,
therapist; but excluding office clerical workers;
guards; professional employees; supervisor as de-
fined in the Act and all other employees.
WE WILL NOT promise our employees that we will
grant requests to transfer them to a 12-hour shift in
order to encourage them to solicit the Union to with-
draw its unfair labor practice charges.
WE WILL NOT refuse to transfer our employees to a
12-hour shift on their request because they failed to so-
licit the Union to withdraw its unfair labor practice
charges.
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, on request, recognize and bargain with the
Union by furnishing the Union information regarding
the wages and attendance of nonunit employees to en-
able the Union to determine whether we are in compli-
ance with our collective-bargaining agreement with the
Union.
WE WILL, on request, transfer employee Sharon
Rimmer to a 12-hour, 3-day-a-week shift and make her
whole, with interest, for any loss of earnings or bene-
fits she may have sustained by our failure to transfer
her.
EAST TENNESSEE BAPTIST HOSPITAL
Frank F. Rox, Jr., Esq., for the General Counsel.
E. H. Rayson, Esq., of Knoxville, Tennessee, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge. This
case was heard in Knoxville, Tennessee, on February 7,
1990.
The complaint alleges that Respondent engaged in conduct
violative of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (Act).
Respondent admitted the commerce allegations of the
complaint. Respondent in its answer to second amended con-
solidated complaint admitted that it is engaged in the busi-
ness of operating a hospital in Knoxville, Tennessee. During
the past calendar year, Respondent received gross revenues
in excess of $250,000 from services rendered at its Knoxville
hospital and it purchased and received at that facility, goods
valued in excess of $100,000 directly from suppliers located
outside Tennessee. Respondent admitted that it is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
Respondent, in its answer, admitted that the Charging
Party (Union) is, and has been at material times, a labor or-
ganization within the meaning of Section 2(5) of the Act.
Respondent admitted that on February 28, 1979, the Union
was certified as the exclusive collective-bargaining represent-
ative of its employees in the following appropriate bargain-
ing unit:
All licensed practical nurses and technical employees,
employed by Respondent at its Knoxville, Tennessee
hospital including computerized tomograph, registered
technologist; staff radiologic technologist and clinical
instructor; nuclear medicine technologist; radiation ther-
apy technologist; special procedures technologist; non-
registered staff technologist; registered staff tech-
nologist; licensed practical nurse, level II, nursing serv-
ice; licensed practical nurse, level I, nursing service; li-
censed practical nurse, level I, recovery room; operating
room technician; certified lab assistant; certified res-
piratory therapist; respiratory therapy technician; res-
piratory therapy technician, level I, pulmonary labora-
tory technician; bloodbank technician; histopathology
technician; medical laboratory technician; licensed prac-
tical nurse, emergency room; cyto technologist; physical
therapy assistant; laboratory assistant heart center; car-
diovascular technician I; respiratory, intensive care,
therapist; but excluding office clerical workers; guards;
professional employees; supervisor as defined in the
Act and all other employees.
Respondent and the Union engaged in collective bargain-
ing and entered into collective-bargaining agreements. The
most recent of those collective-bargaining agreements pro-
vided that it is effective until the end of the day on June 30,
1991.
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I. RECORD EVIDENCE
A. The Complaint Alleges that Respondent Violated the
Act by Refusing to Furnish Relevant Information
Requested by the Union
1. Information regarding wages
On August 19, 1988, the Union wrote Respondent and re-
quested,
(2) Please include as a separate listing any increase
in shift bonus, increases for overtime payments, week-
end differentials or any other economic gain for non-
bargaining unit employees which became effective on
or about July 1988, and the effective date for such
changes.
(3) Copies of any and all correspondence presented
to the ETBH Board of Directors, or the appropriate au-
thority, recommending the July 1988 economic pack-
age, pertaining to both bargaining unit and nonbargain-
ing unit employees. Also please provide copies of any
and all correspondence from the appropriate authority
which pertains to the recommendations or approval of
such authority in the granting of economic gains for the
nonbargaining unit and the bargaining unit.
Respondent replied by September 9, 1988 letter including
the following,
We do not believe that the hospital is obligated to pro-
vide you with the information you requested concerning
nonbargaining unit employees or that we are obligated
to provide you with documents that come to the atten-
tion of the Board or any written responses from the
Board thereon.
On October 27, 1988, the Union wrote the Respondent and
acknowledged receipt of the names, addresses and phone
numbers of some employees but complained that 41 percent
of the listed employees did not have phone numbers listed
and that incorrect addresses were listed for some employees.
The letter continued,
The union also renews the request for information on
the non-bargaining unit employees as requested in a let-
ter to you dated August 19, 1988 (copy attached). Arti-
cle XIX. section 19.2 states that bargaining unit em-
ployees are to receive ‘‘a market wage adjustment
based on a percentage of the employees’ existing wage
rate equal to the percentage market wage adjustment
that nonbargaining unit employees will receive in July
1988. . . .’’ The information requested in the August
19 letter is necessary for the union to determine wheth-
er or not the labor agreement has been violated.
The Union’s business agent, Phillip Pope, testified as to
why the Union wanted the nonbargaining unit information,
Well, there had been a history here of the nonbar-
gaining unit employees receiving ‘‘greater’’ wage in-
creases than the bargaining unit. And in the 1988 nego-
tiations it was agreed between the parties and written
into our contract that the wage increases given to the
nonbargaining unit would be the same as what they
were giving to the bargaining unit. And the employees
in the bargaining unit, we were given wage information
on what their before and after wages were to assure
compliance with the contract. However, we had no way
to know whether or not the nonbargaining unit received
more or less than what had been agreed to in the con-
tract. So, in order to ensure compliance of the contract
we needed the nonbargaining unit wages to make sure
that the Baptist Hospital had lived up to our agreement.
On November 8, 1988, Respondent wrote the Union,
This is in reply to your letter of October 27.
. . . .
You also request the names, job-titles and the before
and after July 1, 1988, wage rates of non-unit employ-
ees so that you may ascertain whether Article XIX of
the agreement has been violated. The employee wage
rates you request are confidential both from the stand-
point of the employees involved and the Hospital. We,
therefore, respectfully decline to provide that specific
information to you. In light of Article XIX, however,
we will agree to permit, at your expense, a mutually ac-
ceptable independent certified public accountant to have
access to our relevant payroll records for the purpose
of enabling the accountant to determine whether the
market wage adjustment (not including special market
wage adjustments) percentage increases unit employees
received were the same as that non-unit employees re-
ceived. We believe this suggestion fully accommodates
any legitimate interest you have in the matter. If this
meets with you approval, please let me know and we
can arrange for a time and also agree upon guidelines
the accountant is to follow.
Article XIX of the collective-bargaining agreement be-
tween Respondent and the Union in October 1988, is entitled
‘‘Wage Rates.’’ Relevant provisions under that article, at
19.2(b), include the following,
effective July 4, 1988, each employee shall receive a
market wage rate equal to the percentage market wage
adjustment (not including special market wage adjust-
ments) that non-bargaining unit employees will receive
in July, 1988; or an amount equal to the difference be-
tween the employee’s existing wage rate and the new
maximum rate for the job classification, whichever is
less.
Phillip Pope of the Union testified that he talked with Re-
spondent’s agent, Human Resources Vice President Daniel
Standley, about Standley’s November 8 letter suggesting that
the Union hire a CPA to examine Respondent’s pay records
for nonbargaining unit employees:
I told Mr. Standley that wasn’t acceptable. I told him
it wasn’t acceptable primarily for two reasons. Number
one, our Local Union couldn’t afford something like
that, in my opinion, because we had been running at
deficit.
877EAST TENNESSEE BAPTIST HOSPITAL
Number two, even if an accountant checked the
wages, then the Union still needed the right to go out
and independently verify any kind of wage information.
For example . . . . I needed the names and the other
information so that I could verify it.
And Mr. Standley’s response was, ‘‘This is all we’re
going to do.’’
Phillip Pope testified that Respondent never asked the
Union to sign a confidentiality agreement regarding wage in-
formation for nonbargaining unit employees.
Pope testified that the Union has never been provided with
the requested information on nonunit employees.
On cross-examination Pope admitted that no nonunit em-
ployee told him that the nonunit employees had received
greater wage increases than unit employees.
In July 1988 brochures were given to all employees, both
unit and nonunit employees, which announced a general
wage increase of 5 percent:
1. Effective July 4, 1988, all employees will be
awarded a market wage increase of 5%. This increase
will be added to the employees’ current base amount
regardless of position in the wage range. Thus, for em-
ployees at the top of the 1987 wage range, the 5% will
be added to your base and a new maximum of the wage
range will be established. THIS CHANGE APPLIES
TO THIS TRANSITION WAGE INCREASE ONLY.
For employees at the maximum of the wage range, after
July 4, 1988, lump sum bonus merit increases will be
given as in the past.
2. During the period July 1, 1988, to June 30, 1989,
employees will be eligible for AN ADDITIONAL pro-
portioned Pay for Performance merit increase on their
service date.
Daniel Standley testified that the above brochure as well
as the 5-percent market wage increase, was applicable to
both unit and nonunit employees.
2. Information regarding attendance
On October 12, 1989, the Union wrote Respondent regard-
ing several grievances. In that letter the Union discussed
grievances regarding employee absenteeism. The letter in-
cluded the following:
In addition to the above requested information, please
provide the union with copies of all attendance records
for all bargaining unit and nonbargaining unit employ-
ees from June 1, 1988, up to and including the week
before supplying the information to the union. This in-
formation should reflect an employee’s attendance and
whether or not the employee was scheduled to work the
day of absence. Also please provide copies of suspen-
sion and discharge records for nonbargaining unit per-
sonnel. Additionally, please provide the absolute policy
which governs the number of days of absence which re-
quires warnings, written reprimands or suspensions and
exactly how is this absentee policy explained to em-
ployees.
On October 24, 1989, Respondent answered the Union’s
October 12 letter (in part):
With regard to your broad information request, we
decline to provide you with the attendance records of
nonbargaining unit employees: We regard this request
as being excessively burdensome and out of line with
any legitimate need or interest of the Union. It may be
that the records of some non-unit employees in a de-
partment where unit employees also work are relevant,
particularly those with poor attendance. It may also be
that the attendance records of certain bargaining unit
employees may be relevant. In any event, I suggest that
we meet to explore an accommodation of our respective
interests.
You have been provided with copies of all policies
on this subject but in the event they have been mis-
placed, Policies 951-08-01 and 951-09-01 are enclosed.
I refer you also to the management’s right provisions
of our agreement.
Pope testified that he talked with Standley in early No-
vember after receiving the above letter:
and in his letter dated October 24th he said it was a
burdensome request. I offered to Mr. Standley to come
into the Hospital myself, on my time, and review the
records to keep them from having to go to any type of
burdensome duplicating purposes. . . . Mr. Standley
said that was not acceptable.
Phillip Pope testified that the Union needed the absentee-
ism information he requested to check compliance with a
provision in their collective-bargaining agreement with Re-
spondent that provided
‘‘that all personnel policies which affect non-bargaining
unit people will affect the bargaining unit people on the
same and equal basis. The absentee policy of Baptist
Hospital is not addressed in our contract. Or, it is not
modified. So, the same policy on attendance would be
the same for bargaining unit as it was for non-bargain-
ing unit.’’
So, in order to see if the Hospital was in fact apply-
ing the policy equally between the bargaining unit peo-
ple and the non-bargaining unit people, I needed the
employees’ attendance records.
According to Pope, the Union has not received any of the
requested absenteeism records on nonbargaining unit employ-
ees.
Pope admitted on cross-examination that he had been told
by Respondent (Standley) that Standley wanted to go to a
structured absentee policy because different departments in
the hospital had been applying the attendance policy in an
inconsistent fashion.
Phillip Pope also admitted on cross that Standley told him
that he would supply the absenteeism records for any nonunit
employee specifically named by the Union. Pope replied that
he had no access to the nonunit employees and could not
name any particular employee that may illustrate disparity in
application of the absenteeism rules.
Daniel Standley testified that following a request from
Pope regarding unit personnel, he discovered his assistant
had handled suspensions of some employees for absenteeism,
but that Respondent had failed to notify the Union of those
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
suspensions as required by the contract. Upon further discus-
sion Standley agreed that Respondent would not contend that
any grievance that may be filed by the Union over those sus-
pensions, was untimely. After that incident the Union made
their request for information on nonunit employees. Standley
testified about conversations he had with Pope regarding that
request,
I had told (Pope) that we would be willing to provide
that information on the bargaining unit employees. That
was a fairly good sized job in and of itself. Because
these attendance records, the period of time that he was
asking for, I think, was June of ’88 through that present
time. And the way our attendance records are structured
is that they are on an eight and a half by eleven page.
The first six months of a year is on one side of the
page and the second six months of the year is on an-
other side of the page. These records are maintained by
the department directors. So, it is a decentralized sys-
tem that we have. They are not centrally located in the
Human Resources Department.
. . . .
. . . I communicated to Mr. Pope that we would be
willing to provide the attendance records on any spe-
cific non-unit employee that they felt had worse attend-
ance records and they wanted to look at. . . .
In my mind, with sixty some different departments
and the number of employees that were involved, if we
were to have one employee do it. Or, if you were to
combine all the times of the department employees to
put this together probably would have been over a
weeks work for one person.
However, Standley admitted that Respondent may not have
applied the absenteeism policy uniformly throughout the hos-
pital:
I knew that there were inconsistencies in the way it was
being applied from department to the other. I didn’t, in
all cases, know of the particulars involved and I had
communicated that to Mr. Pope in some of these con-
versations. That I would prefer and would have liked
to have seen a more specific policy that would commu-
nicate specific expectations to the employees and spe-
cific expectations to the managers as to how we pro-
ceeded and what our policy would be on absenteeism
and attendance. . . . We published (a structured absen-
teeism policy that calls for a specific discipline after so
many incidents) in December and it went into effect on
January 1 of 1990.
Phillip Pope, in rebuttal testimony disputing testimony of
Daniel Standley, testified that he suggested to Standley on
two occasions that he would personally come to Respond-
ent’s facility and go over nonunit employees attendance
records in order to relieve Respondent of any burden.
Standley denied his requests.
B. The Complaint Alleges that Respondent Violated the
Act by Conducting an Employee Survey Among Unit
Employees Without Notifying the Union
The parties agreed by stipulation that Respondent con-
ducted an employee survey among virtually all non-
supervisory employees in the operating room department in
late June 1989, and that those surveyed employees included
approximately 34 bargaining unit employees. The parties fur-
ther agreed that the results of the employee survey were pub-
lished to bargaining unit employees on July 20, 1989.
Director of Surgical Services Merry Anne Pierson testified
that at the time of the survey there were 84 nonsupervisory
employees in the operating room department including 50
nonunit and 34 bargaining unit employees.
That survey supplied to operating room employees read:
PLEASE FILL OUT THIS SURVEY AND SIGN! WE ARE
VERY INTERESTED IN YOUR OPINION
DO YOU THINK 3–11 SHOULD WORK WEEKENDS?
YES NO
DO YOU THINK 11–7 SHOULD WORK WEEKENDS?
YES NO
DO YOU THINK WE SHOULD STAFF WEEKENDS WITH
12 HOUR PEOPLE FRI., SAT., AND SUN.? YES NO
DO YOU THINK 3–11 AND 11–7 SHOULD ROTATE HOLI-
DAYS? YES NO
DO YOU THINK WE SHOULD HAVE A PERMANENT 3–
11 AND 11–7 SHIFT DURING THE WEEK? YES NO
WOULD YOU BE WILLING TO COVER WEEKEND OFF
SHIFTS SO WE COULD HAVE PERMANENT 3–11 AND 11–
7 SHIFTS IF THAT MEANT NOT INCREASING WEEKEND
ROTATIONS? YES NO
SIGNATURE llllllllll
ALL UNSIGNED FORMS WILL BE DISCARDED!
Respondent distributed the following survey results to op-
erating room unit employees:
OPERATING ROOM SURVEY RESULTS
There were thirty one respondents to the survey and the
following are the results:
1. 99% stated that we should have 12 hours shift
coverage for Friday Saturday, and Sunday.
2. 70% stated 3–11 & 11–7 shifts should rotate holi-
days.
3. 94% stated we should have permanent 3–11 &
11–7 shifts.
4. 71% stated 11–7 should not work weekends.
5. 50% stated that 3–11 should not work weekends.
6. 52% stated that they would work off shifts on
their assigned weekend to work if needed.
Director of Surgical Services Merry Anne Pierson testified
as to the ‘‘circumstances that resulted in this survey:’’
There were a number of suggestions made from the
staff that there had to be a way to solve the problem
879EAST TENNESSEE BAPTIST HOSPITAL
with (staffing and keeping staffed) the 3:00 to 11:00
shift and the unhappiness that people had from working
on that shift and having to rotate off. As a result of that
we wanted to hear if they had any better suggestions
at it than we did.
Phillip Pope testified that Respondent did not notify the
Union before they conducted the above survey.
The parties stipulated regarding a decertification petition
filed regarding unit employees. A decertification petition was
filed on March 28, 1989. That petition was dismissed but
was reinstated on May 4, 1989. The petition was blocked on
August 4, 1989, and is being held in abeyance pending reso-
lution of unfair labor practice charges.
Daniel Standley testified that Respondent has conducted
other surveys including a survey in the cafeteria during the
fall, 1989, when the Union was not notified of the survey.
Standley did admit that the Union was advised of plans for
an employee attitude survey in February 1989, and that, be-
cause of Union objections, that survey did not include unit
employees.
In rebuttal testimony Phillip Pope testified that he was no-
tified of the cafeteria survey by Daniel Standley and that
Standley sent him a copy of the survey.
C. The Complaint Alleges that Respondent Promised an
Employee a 12-hour Shift if that Employee Would
Solicit the Union to Withdraw Unfair Labor Practices
Charges and that Respondent has Illegally Refused to
Transfer Employee Sharon Rimmer to a 12-hour
Weekend Shift
Surgical Technician Sharon Rimmer testified that in the
fall, 1989, she asked Respondent if she could go on a 12-
hour shift. About a week later she had a conversation about
her request with Director of Surgical Services Merry Anne
Pierson.
(Ms. Pierson) said that she had heard that I was going
to take that position (the 12 hour shift), but I couldn’t
have it right then because there was a grievance filed
by the Union against the Hospital. When they got that
resolved, then I could have it.
Some time later Rimmer again talked about the 12-hour
shift with Pierson:
I just asked her if she had heard anything else about
my job yet. And she said, no, that it would be a while.
And I said, ‘‘Well, I had been looking at the Union
contract and it looked like from what it said that as far
as it didn’t interfere with anybody else’s hours and
things, that I could have the shift.’’
And she said, ‘‘Well, the Hospital attorney told me
not to fill anymore of the positions until this other
problem is resolved.’’
I said, ‘‘Well, Mr. Pope said that as far as the unit
is concerned, that I could have the job. It would be any
problems with the Union and he would even write a let-
ter stating that it was okay for me to take it.’’
. . . .
And she said, ‘‘Well, if you can get the Union attor-
ney to drop the charges against the Hospital, then you
can have that position.’’
On cross-examination Rimmer testified that two unit em-
ployees went on 12-hour shifts because in part, of their at-
tending school. According to Rimmer, one employee, Caro-
lyn Allan, was placed on a 12-hour shift some 2 years before
February 7, 1990 (the date of this hearing).
Rimmer testified that Pierson did not know whether
Rimmer was in the Union or not.
Rimmer testified that she has not been given the 12-hour
shift position.
Operating Room Technician Sherrill Bishop testified she
overheard a conversation between Rimmer and Pierson.
Bishop testified:
I remember Ms. Rimmer asking (Pierson) about the
(twelve-hour shift). And then I just remember what Ms.
Pierson stated to her. Which was, if you can get the
Union to rescind their charges against the Hospital, then
I can give you your shift.
Director of Surgical Services Merry Anne Pierson admit-
ted having at least two conversations with Sharon Rimmer.
Pierson denied telling Rimmer that she could get the 12-hour
shift if she could get Pope to drop his charge. Pierson testi-
fied:
Sharon stopped me in the lounge one day and said that
Mr. Pope had said that she could go to that shift. I told
her that I was still under advisement from Mr. Standley
and the lawyers that I was not to move anyone else to
the shifts until some resolution had occurred.
Pierson testified that a plan which may have involved a re-
duction in force was being considered at that time which
would drastically change
the number of people available to us during the week.
We reduced by approximately ten fulltime equivalent
positions. And because of that and because the biggest
bulk of our procedures are done Monday through Fri-
day 7:00 to 3:30, or 7:00 to 5:30, there was no way I
was going to implement or move another person to a
weekend twelve-hour shift. I needed to have them
available during Monday through Friday staffing.
Pierson testified that she was unable to tell employees
about the consideration toward reduction in force at the time
of her conversations with Rimmer about the 12-hour shift.
That reduction in force came about on November 6, 1989.
No members of the bargaining unit were actually eliminated
because of the reduction in force.
Pierson said that until a recent special situation (apparently
regarding employee Kathy Burns, see below), she has not
placed anyone on a 12-hour shift since her conversations
with Rimmer and that as people came off the 12-hour shift,
they were not replaced.
Director of Human Resources (formerly Vice President of
Human Resources) Daniel Standley testified that after the
Union filed a charge regarding the operating room depart-
ment survey, he told Director of Surgical Services Merry
Anne Pierson that ‘‘it would probably be best if we didn’t
move anyone else to that twelve-hour shift.’’
Business Agent Phillip Pope testified that he talked to
Human Resources Vice President Standley about a complaint
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that employee Sharon Rimmer had asked for a 12-hour shift
but, among other things, Rimmer had been told by her super-
visor that she could not have the 12-hour shift because the
Union had filed unfair labor practice charges. Pope argued
to Standley that two other employees had been given 12-hour
shifts.
Pope testified that Standley replied that Respondent did
not deny that Rimmer had not been awarded a 12-hour shift.
Standley admitted to Pope that Rimmer’s supervisor, Merry
Anne Pierson, told Rimmer there had been a charge filed and
that Respondent’s attorney had advised Respondent not to
make any more 12-hour shift appointments at that time.
Standley denied that Merry Anne Pierson told Rimmer that
she would get the 12-hour shift if she could get the Union
to withdraw the charges.
On cross-examination Pope denied that Standley said any-
thing to him about Respondent developing a plan of reorga-
nization. Pope testified:
The only thing that Mr. Standley said in connection
with that, Mr. Rayson, was the fact that their attorney
had advised them not to make anymore changes as far
as putting people on the twelve-hour shift. And that
Merry Anne Pierson was accurate when she made that
statement to Ms. Rimmer. That was the only conversa-
tion about twelve-hour shift between Mr. Standley and
myself. That you had advised them, I assume that you
were their attorney, not to make any more changes.
Daniel Standley testified in accord with Pope’s testimony
regarding their two conversations about Rimmer’s quest for
the 12-hour shift. However, in addition to what Pope re-
called, Standley recalled that he told Pope about a possible
reorganization. Standley testified that he told Pope
that we were not going to be making any more changes
on the twelve-hour shift, because of the unfair labor
practice pending. But also, because—I said I was not
at liberty to go into any details at that time. And not
all of the plans were formalized at that time, but that
our top management was already considering and in the
process of looking at a reorganization. Mr. Pope asked
me if that would affect staffing? I said, ‘‘Yes.’’
He said, ‘‘Does that mean that there is going to be
a layoff?’’
I said, ‘‘Well, again, I’m not really in a position to
go into any details at this time, but that would not be
beyond the realm of possibility. That I would share
with him the information that was relevant to the bar-
gaining unit at a point in time in which that was firmed
up.
Pope’s cross-examination continued on the question of
whether any other employees have been placed on 12-hour
shifts:
Q. Do you know of anyone, or has it been reported
to you that any employee since mid-September, who
has been put on the twelve-hour shift?
A. Yes, there have been, as of two weeks ago. . . .
I understand that within the last couple of weeks one
of the original two that was filled when this survey was
implemented, or portions of it were implemented, one
of those two people, I understand, left the employe of
the hospital and the Hospital put another bargaining
unit person on one of those shifts. . . . I think the
name (of the employee that was placed on the 12 hour
shift two weeks ago) is Kathy Burns.
. . . .
They (Respondent) are using employees, staggering
their days off during the week and they are still cover-
ing the position as called for in the survey, they just
aren’t covering the position in the same procedure.
Q. Do you have any objection to that?
A. Well, I think in the beginning, Mr. Rayson, and
other instances where Baptist Hospital wanted to make
massive changes it called the Union in, we’ve sat down,
we’ve discussed it. We had feedback from the employ-
ees that we represent about the impact it would have
on their personal lives. And this thing goes deep, be-
cause the majority of our membership are female who
have other obligations outside of work. I’m not saying
that the men don’t either, but primarily in the South
women have a hell of a lot of obligations outside of
work. And our employees also receive what we call a
weekend shift bonus.
. . . .
We were bypassed in this particular case. Yes, I feel
like we should have had some input into it.
The parties entered into the following agreement:
(Testimony that employee Kathy Burns was placed
on a twelve-hour shift some two weeks before this
hearing) is correct.
A child of Ms. Burns, still in school, attempted sui-
cide and Ms. Burns requested to be put on this shift
(12-hour day, three days a week), in order that she
could more closely attend her child during the week.
The Hospital agreed for that sole reason to place her on
that shift, period. The placement is temporary and will
conclude at the end of the school year.
Director of Surgical Services Merry Anne Pierson testified
that there are currently three daily shifts in the operating
room department plus some ‘‘individuals working some ten-
hour shifts and two individuals working a twelve-hour shift.’’
II. CREDITABILITY DETERMINATIONS
A. The Complaint Alleges that Respondent Violated the
Act by Refusing to Furnish Relevant Information
Requested by the Union
1. Information regarding wages
In most areas the evidence regarding this allegation is not
in dispute. There is no dispute regarding the letters (e.g., the
Union’s letters dated August 19 and October 27, 1988, and
Respondent’s letters dated September 9 and November 8,
1988).
Nor is there dispute as to the reasons given by Phillip
Pope as to why the Union wanted the nonbargaining unit em-
ployees’ wage information.
There is no dispute regarding the provisions of the collec-
tive-bargaining agreement, the brochure distributed to em-
ployees in July 1988, or that Respondent awarded both unit
881EAST TENNESSEE BAPTIST HOSPITAL
and nonunit employees a July 1988 market wage increase of
5 percent.
Moreover, there was general agreement between Pope and
Standley regarding their conversations over the nonunit em-
ployees’ wage records. I found both Standley and Pope to be
generally truthful. However, as shown below, I find that
Standley exaggerated testimony regarding Respondent’s deci-
sion to deny a transfer to employee Sharon Rimmer. Due to
that determination and my determination that Pope testified
truthfully throughout the hearing, I shall credit the testimony
of Pope and, to the extent it conflicts with Pope’s testimony,
I discredit the testimony of Daniel Standley.
2. Information regarding attendance
There was general agreement as to the evidence regarding
the Union’s request for records involving attendance and ab-
senteeism among nonunit employees. There was no dispute
as to the letters from the Union and Respondent.
There was general agreement as to what was said in con-
versations between Phillip Pope and Daniel Standley. There
was disagreement between Pope and Standley regarding
whether Pope volunteered to Standley that Pope would be
willing to come to Respondent’s facility and go over the
nonunit employees attendance records.
As shown above, I credit the testimony of Pope, and to
the extent of conflict with Pope, I discredit the testimony of
Standley.
B. The Complaint Alleges that Respondent Violated the
Act by Conducting an Employee Survey Among Unit
Employees Without Notifying the Union
There was no dispute in the evidence regarding the operat-
ing room survey.
There was a dispute between Pope and Standley regarding
whether the Union was advised of the cafeteria survey in the
fall of 1989. In view of my credibility findings throughout
this decision, I credit the testimony of Pope, and, to the ex-
tent there is a dispute, I discredit Standley.
C. The Complaint Alleges that Respondent Promised an
Employee a 12-hour Shift if that Employee Would
Solicit the Union to Withdraw Unfair Labor Practices
Charges and that Respondent has Illegally Refused to
Transfer Employee Sharon Rimmer to a 12-hour
Weekend Shift
As shown above, both Merry Anne Pierson and Daniel
Standley testified about two factors which influenced Re-
spondent’s decision to not transfer anymore employees to the
12 hour shift. One of those two alleged factors created sev-
eral credibility conflicts.
That factor involved the reorganization considerations by
Respondent. There was a conflict between Phillip Pope of
the Union and Daniel Standley as to whether Standley told
Pope about the reorganization discussions when they dis-
cussed the Rimmer complaint on September 20.
In consideration of the full record I am convinced that
Pope testified truthfully regarding his September 20 con-
versation with Standley. In agreement with Pope, I find that
Standley did not tell Pope that possible reorganization was
also considered in deciding to deny Rimmer’s request to
transfer to the 12-hour shift. I make that decision, in part,
because of confusion between Standley and Director of Sur-
gical Services Merry Anne Pierson, as to the status of the re-
organization discussions on September 20.
Both Pierson and Standley agreed that reorganization talks
played a part in the decision to deny Rimmer her requested
transfer to a 12-hour shift. However, Pierson’s testimony as
to her reasons for denying the 12-hour shift to Rimmer, went
beyond a simple explanation that Respondent was consider-
ing reorganization which may have impacted on operating
room personnel.
Pierson testified that a plan which may involve a reduction
in force was being considered at that time which would dras-
tically change
the number of people available to us during the week.
We reduced by approximately ten fulltime equivalent
positions. And because of that and because the biggest
bulk of our procedures are done Monday through Fri-
day 7:00 to 3:30, or 7:00 to 5:30, there was no way I
was going to implement or move another person to a
weekend twelve-hour shift. I needed to have them
available during Monday through Friday staffing.
Pierson testified that she was unable to tell employees
about the consideration toward reduction in force at the time
of her conversations with Rimmer about the 12-hour shift.
That reduction in force came about on November 6, 1989.
Daniel Standley was able to specifically recall the date on
which Phillip Pope phoned him about Rimmer being denied
her request to transfer to the 12-hour shift. Standley recalled
that phone conversation occurred on September 20, 1989.
On cross-examination Standley was asked when did Re-
spondent first start identifying employees and job classifica-
tions which would be laid off in November:
Okay. That would have been in late September, early
October. We didn’t get down to specific employees
until much closer to November.
Standley testified about what he told Pope regarding
Rimmer’s effort to transfer to the 12-hour shift,
that we were not going to be making any more changes
on the twelve-hour shift, because of the unfair labor
practice pending. But also, because—I said I was not
at liberty to go into any details at that time. And not
all of the plans were formalized at that time, but that
our top management was already considering and in the
process of looking at a reorganization. Mr. Pope asked
me if that would affect staffing? I said, ‘‘Yes.’’
He said, ‘‘Does that mean that there is going to be
a layoff?’’
I said, ‘‘Well, again, I’m not really in a position to
go into any details at this time, but that would not be
beyond the realm of possibility. That I would share
with him the information that was relevant to the bar-
gaining unit at a point in time in which that was firmed
up.
. . . .
I felt that I ought mention something to Mr. Pope to
try to give some perspective to why we weren’t going
to be following through on some of the things that we
had talked about. But certainly I was not at liberty and
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
since there were no employees in the organization that
were involved in this re-organization conceptional-
ization below the department director level. And even
though I mentioned some things to Mr. Pope about it,
it was not something that we wanted to have be com-
mon knowledge. So, I asked Mr. Pope to, you know,
please keep that in confidence.
As mentioned above, Pope disputes the above testimony.
However, at this point I am concerned with a comparison of
the testimony of Standley and that of Merry Anne Pierson.
Standley’s testimony shows that the reorganization discus-
sions caused concern as to where those talks may lead as to
staffing. However, according to Pierson, the talks had already
progressed to the point of her knowing that she had a staff-
ing problem on weekdays which prevented her from consid-
ering transferring Rimmer to the weekend 12-hour shift re-
gardless of the status of the unfair labor practice charge.
When the above testimony of Pierson is compared with
that of Standley, it is apparent that those two had different
recollections of the status of the reorganization plans at the
time Sharon Rimmer asked to be placed on the 12-hour shift.
Pierson recalled that reorganization plans had progressed to
the point of her realizing that she would have a shortfall on
the weekday work force. Because of that information, ac-
cording to her testimony, she would not have placed Rimmer
on the 12-hour schedule regardless of the pending unfair
labor practice charge, for the simple reason that she could
not afford to lose someone from her weekday team. Standley,
on the other hand, recalled that reorganization discussions
were such that they may have developed to the point of af-
fecting staffing and he wanted Pope to be aware of that pos-
sibility. Standley’s testimony revealed that reorganization
talks had not progressed beyond the point of revealing there
may be a staffing problem down the road.
Daniel Standley was able to pinpoint his first conversation
with Pope regarding Rimmer’s complaint, as occurring on
September 20, 1989. In view of Standley’s testimony in that
regard, it is apparent that Pierson’s conversations with
Rimmer concerning Rimmer’s request to transfer to the 12-
hour shift, occurred before September 20, 1989.
In view of the fact that Pierson made the decision regard-
ing Rimmer’s request before September 20, the fact that the
reorganization was not implemented until November 6, and
especially in view of Standley’s testimony regarding the stat-
ues of the reorganization talks on September 20, it is appar-
ent that specific staffing levels including reductions as to
available weekday jobs, had not occurred on September 20.
I am convinced that Pierson exaggerated the impact the re-
organization discussions had had on weekday staffing at the
time of Rimmer’s request for a transfer. In an effort to estab-
lish an additional motive for denying Rimmer transfer to the
12-hour shift, Pierson was not content to rest on a simple
statement that the considered reorganization may have af-
fected staffing and for that additional reason she was cau-
tious about transferring anyone to a 12-hour shift. Instead
Pierson accelerated the decisional time table on reorganiza-
tion in order to assert a more substantial reason for denying
the requested transfer.
The testimony of Standley convinces me that, at the very
most, the reorganization discussions had progressed only to
the point of revealing a possible staffing problem down the
road. Pierson, on the other hand, testified that because of
those reorganization discussions, she knew that she could not
afford to transfer anyone off the weekday shifts.
As stated above, I am also convinced that Standley did not
testify truthfully regarding his September 20 conversation
with Pope. Although I do not dispute that reorganization dis-
cussions may have occurred during September and October
1989, I have strong doubts about the testimony of Standley
and Pierson that reorganization impacted on the decision to
deny Rimmer’s request to transfer. Standley and Pierson
demonstrated confusion as to exactly how those talks influ-
enced the decision to deny Rimmer’s transfer. I am con-
vinced that Standley exaggerated the importance of the reor-
ganization discussions by falsely stating that he told Pope the
discussions were an additional reason why Rimmer’s request
was denied. As found above, Pierson exaggerated the impact
of the reorganization discussions on Rimmer’s transfer be-
yond Standley’s recollection (see above).
I credit the testimony of Sharon Rimmer and Sherrill
Bishop. Both Rimmer and Bishop are employees of Re-
spondent. Although Rimmer may have had something to gain
regarding her desire to work the 12-hour shift, Bishop had
nothing to gain. Both risked the displeasure of their employer
by testifying against Respondent. I was impressed with the
demeanor of both Rimmer and Bishop. In most respects
Rimmer was corroborated by the testimony of Merry Anne
Pierson. The one area of dispute between Rimmer and Pier-
son, was Rimmer’s contention and Pierson’s denial, that
Pierson told Rimmer that Rimmer would get the 12-hour
shift if she could persuade the Union to drop their unfair
labor practice charge. As to that disputed area, Sherrill
Bishop corroborated Rimmer.
III. FINDINGS OF FACT
A. The Complaint Alleges that Respondent Violated the
Act by Refusing to Furnish Relevant Information
Requested by the Union
1. Information regarding wages
Beginning on August 19, 1988, the Union requested wage
information regarding both unit and nonunit employees.
From September 9 Respondent has refused to supply the
Union with requested wage information regarding nonunit
employees.
The parties’ collective-bargaining agreement in effect in
1988, required Respondent to grant the same percentage mar-
ket wage adjustment to unit employees that it granted to
nonunit employees in July 1988.
Respondent offered to permit an acceptable CPA to exam-
ine its nonunit employees pay records provided the Union
pay the CPA. The Union declined that offer.
There is no evidence showing that Respondent failed to
comply with the collective-bargaining agreement requirement
that it grant unit and nonunit employees the same percentage
market wage adjustment in July 1988.
2. Information regarding attendance
The credited evidence shows that the Union wrote Re-
spondent on October 12, 1989, and requested attendance
records for all unit and nonunit employees. Respondent has,
since its letter of October 24, 1988, denied the Union’s re-
883EAST TENNESSEE BAPTIST HOSPITAL
quest regarding nonunit employees on the grounds that such
production would be burdensome.
The Union offered to come to Respondent’s facility and
examine the requested records there in an effort to avoid
being burdensome.
The evidence shows, without dispute, that Respondent has
an obligation under the collective-bargaining agreement to
treat unit and nonunit employees without discrimination in
applying its attendance and absentee policy.
Daniel Standley admitted to the Union there were incon-
sistencies in the way Respondent’s absenteeism policy was
applied between departments.
Effective on January 1, 1990, Respondent implemented a
structured absenteeism policy applicable to all departments.
B. The Complaint Alleges that Respondent Violated the
Act by Conducting an Employee Survey Among Unit
Employees Without Notifying the Union
The undisputed evidence shows that Respondent conducted
a survey as shown above, among unit and nonunit employees
in the operating room department in late June 1989. The re-
sults of that survey were published by Respondent to unit
and nonunit operating room department employees on July
20, 1989. The Union was not notified and permitted to bar-
gain about the survey.
The credited evidence shows that on other occasions Re-
spondent has notified the Union and permitted the Union to
bargain regarding employee surveys.
C. The Complaint Alleges that Respondent Promised an
Employee a 12-hour Shift if that Employee Would
Solicit the Union to Withdraw Unfair Labor Practices
Charges and that Respondent has Illegally Refused to
Transfer Employee Sharon Rimmer to a 12-hour
Weekend Shift
The credited evidence shows that Director of Surgical
Services Merry Anne Pierson told employee Sharon Rimmer
that Rimmer could not transfer to the 12-hour shift because
of an unfair labor practice charge filed by the Union and that
Rimmer could be transferred if she could get the Union to
withdraw that charge.
IV. LEGAL CONCLUSIONS
A. The Complaint Alleges that Respondent Violated the
Act by Refusing to Furnish Relevant Information
Requested by the Union
The Respondent, in its brief, raises four points in defense
of these allegations. Respondent argues that General Counsel
failed to prove relevancy, that the records included confiden-
tial information, that the Union’s request was burdensome
(which included Respondent’s contention that the Union
failed to propose alternative accommodations) and that the
hospital’s responses to the Union were adequate.
As to relevancy:
It is settled that an employer is obligated to furnish infor-
mation requested by its employees’ collective-bargaining
agent which is relevant and necessary to the Union’s bargain-
ing responsibilities under the terms of a collective-bargaining
agreement. Kendall College of Art, 292 NLRB 1065 (1989);
George Koch & Sons, 295 NLRB 695 (1989).
As to information regarding unit employees there is a pre-
sumption that the information is relevant to the Union’s bar-
gaining obligation. When the information requested of an
employer is about employees or operations other than those
represented by the Union it is necessary for the General
Counsel to prove relevancy. However, the standard for rel-
evancy is the same whether relevancy is presumed or proved
by specific evidence. That standard is a liberal discovery-
type standard. Ibid.
In a dissent Board Chairman Stephens wrote,
The Respondent has submitted all other items of in-
formation requested by the Union, but refuses to furnish
the names and addresses of employees, arguing that this
information is not relevant to the Union’s duties and re-
sponsibilities as the exclusive bargaining representative
of the employees in the unit. As the information sought
here pertains to employees and operations other than
those represented by the Union, the Union has the bur-
den of establishing the relevance of the information.
(Ohio Power Co., 216 NLRB 987, 991 (1975), enfd.
531 F.2d 1381 (6th Cir. 1976). The Union has failed
to meet that burden.
As the judge notes, at the hearing the Union never
answered the question why the Union needs the names
and addresses of these employees and in its brief to the
judge, it states only that, as its collective-bargaining
agreement with the Respondent may be applicable to
the H & K and E & M employees, a list of their names
and addresses would be ‘‘helpful.’’ Although the stand-
ard of relevance to be applied here is a liberal one, the
Union still bears the burden of demonstrating ‘‘the rea-
sonable and probable relevance of the requested infor-
mation.’’ Southern Nevada Builders Assn., 274 NLRB
350, 351 (1985). Blue Diamond Co., 295 NLRB 1007
(1989).
The Board majority in Blue Diamond found,
there is sufficient showing of relevance to warrant the
conclusion that the Respondent has an obligation to fur-
nish the names of E & M Express, Inc. (E & M) and
H & K Equipment Company, Inc. (H & K) employees.
As the judge found, there is ‘‘an objective factual basis
for the Union to believe that bargaining unit work was
being performed by employees of E & M and H & K,
that H & K and E & M together with Respondent
might constitute a single employer, and that the assign-
ment of subcontracting of loads to their drivers violated
both the recognition clause of the agreement and the
subcontracting clause.’’ Id. at 1011. That objective fac-
tual basis makes the Union’s request here a legitimate
one and clearly not, as urged by our dissenting col-
league, a fishing expedition. . . .
. . . .
Thus, the Union’s request for information is merely
part of an investigatory process through which it deter-
mines whether or not there exists a basis for a griev-
ance against the Respondent. . . . Blue Diamond Co.,
supra.
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Here, unlike the situation in Blue Diamond Co., the Union
did provide reasons why it needed the information sought
from Respondent. As to the attendance records Phillip Pope
testified that the Union needed the absenteeism information
he requested to check compliance with a provision in their
collective-bargaining agreement.
Respondent did not dispute that it has a contractual obliga-
tion to treat unit and nonunit employees alike. Respondent,
in its brief, cited the 1989–1991 collective-bargaining agree-
ment, Article XIX—Preservation of Benefits:
All personnel policies and benefits which pertain to all
other employees, which the Hospital may change from
time to time, shall pertain on an equal basis to all em-
ployees governed by this Agreement, except where such
subjects have been addressed or modified in this Agree-
ment in which case, this provision shall be inapplicable.
Regarding the wage information sought on nonunit em-
ployees—the Union’s business agent, Phillip Pope, testified
as to why the Union wanted the nonbargaining unit informa-
tion:
Well, there had been a history here of the non-bargain-
ing unit employees receiving ‘‘greater’’ wage increases
than the bargaining unit. And in the 1988 negotiations
it was agreed between the parties and written into our
contract that the wage increases given to the non-
bargaining unit would be the same as what they were
giving to the bargaining unit. And the employees in the
bargaining unit, we were given wage information on
what their before and after wages were to assure com-
pliance with the contract.
However, we had no way to know whether or not
the nonbargaining unit received more or less than what
had been agreed to in the contract. So, in order to en-
sure compliance of the contract we needed the non-bar-
gaining unit wages to make sure that the Baptist Hos-
pital had lived up to our agreement.
Article XIX of the collective-bargaining agreement be-
tween Respondent and the Union in October 1988 is entitled
‘‘Wage Rates.’’ Relevant provisions under that article, at
19.2(b), include the following,
effective July 4, 1988, each employee shall receive a
market wage rate equal to the percentage market wage
adjustment (not including special market wage adjust-
ments) that nonbargaining unit employees will receive
in July 1988; or an amount equal to the difference be-
tween the employee’s existing wage rate and the new
maximum rate for the job classification, whichever is
less.
In the instant matter the disputed requests for information
involve nonunit employee records. However, unlike the situa-
tion in other cases involving records of nonunit employees,
there are specific provisions within the applicable collective-
bargaining agreements which deal with the matters at issue
here. As shown above, there are provisions requiring Re-
spondent to treat unit employees in the same manner as
nonunit employees in many areas including the areas of pay
and attendance.
In light of the specific provisions of the collective-bargain-
ing agreements, there is a question as to General Counsel’s
burden and the issue of presumptions. As shown above,
when the issue involves records of unit employees, there is
a presumption that the records are relevant to the Union’s
bargaining responsibilities. Although the instant contest in-
volves nonunit employees, the presumption may also apply
in view of the fact that the collective-bargaining agreements
provide the manner in which nonunit employees are treated
vis-a-vis unit employees.
However, in view of my findings below, that question re-
garding presumption, is of no moment. I find that the record
includes evidence which illustrates that the requested records
are relevant to Union’s bargaining responsibilities. I make
that finding in large part, because of the specific collective-
bargaining contract provisions requiring equal treatment be-
tween unit and nonunit employees. The contract’s provisions
provide a legitimate grounds for the Union’s inquiry. The
Union is entitled to information which would enable it to ex-
amine whether the contract is being obeyed. Only by knowl-
edge as to how Respondent is treating nonunit employees
may the Union oversee compliance with those contract provi-
sions requiring equal treatment for unit employees.
I find that General Counsel proved that the records sought
by the Union are relevant and material to the Union’s obliga-
tions as exclusive collective-bargaining representatives of the
unit employees.
As to the question of confidentiality:
Respondent did not seek to accommodate its bargaining
obligation with regard to confidentiality of records. For ex-
ample, Respondent did not seek to have the Union agree to
keep records confidential. In a similar situation the Board
held,
In affirming the judge’s 8(a)(5) and (1) findings based
on the Respondents’ refusal to provide relevant infor-
mation requested by the Union, we find no merit in the
Respondents’ contention that their refusal was justified
because some of the requested information was con-
fidential. The Respondents raised confidentiality con-
cerns for the first time at the hearing, and at no time
complied with the duty to come forward with some
offer to accommodate its concerns with its bargaining
obligation. See Oil Workers Local 6–418 v. NLRB, 711
F.2d 348, 363 (D.C. Cir. 1983); Tritac Corp., 286
NLRB 522 (1987). At no time has the Union indicated
that it would not consider such an accommodation, and
it implicitly showed a willingness to do so in its infor-
mation request by providing for the exclusion of argu-
ably confidential contract sales figures from a relevant
document requested. Maben Energy Corp., 295 NLRB
149 fn. 1 (1989).
Although Respondent did raise the question of confiden-
tiality in one of its letters to the Union (see above), Respond-
ent subsequently took an inconsistent position regarding con-
fidentiality. In that regard Respondent expressed a willing-
ness to permit a CPA to examine its records despite its con-
cern over confidentiality. Respondent did not explain why it
was willing to have a CPA examine its records but would
not permit the Union to do so. Additionally, as shown above,
Respondent did not ask the Union for any assurances that the
885EAST TENNESSEE BAPTIST HOSPITAL
Union would respect confidentiality not did it ask the Union
to sign a confidentiality agreement.
I find that the Respondent has failed to prove that con-
fidential records could not receive adequate protection. Phil-
lip Pope testified that he would agree to assure Respondent
that he would protect confidential records. There was no
showing that Pope’s assurances would be inadequate. In fact,
Respondent’s Director of Human Resources Daniel Standley
testified that he has asked Pope to keep several matters con-
fidential and there was no showing that Pope has ever failed
to keep the confidences requested by Standley. I recommend
that Respondent’s defense in that regard be overruled.
As to the claim that the Union’s request was burdensome:
As shown above, I credited evidence showing that the
Union offered to come to the Hospital and examine the
records. Respondent failed to show how that alternative pro-
posal would cause hardship on the Hospital.
In view of Phillip Pope’s suggestion that he would exam-
ine the records at the Hospital, if the Respondent agreed, I
find that the record evidence does not support the Respond-
ent’s claim that the Union’s request was unduly burdensome.
As to the claim that Respondent adequately replied to the
Union’s request, I disagree. What the Respondent points to
in this regard is its response that it would agree to having
the Union provide a mutually agreed upon CPA examine the
records at the Union’s expense.
Respondent did not show how an examination by a CPA
would relieve it of the inconveniences complained about
above. For example there was no showing how the CPA
would affect the claim of Respondent regarding relevancy,
burdensomeness or confidentiality.
The relevancy claim would remain the same regardless of
the CPA question. As to burdensomeness, there was no
showing that it would be less burdensome for Respondent to
provide for the CPA to examine the records than for Phillip
Pope to examine those same records. As to confidentiality,
Respondent made no showing that its records would retain
greater confidential protection under a CPA than under ex-
amination by Pope especially in view of the fact that Re-
spondent never asked Pope if he would be willing to give
assurances of confidentiality.
I am unable to find that Respondent’s alternative proposal
would accomplish anything. On the other hand, it is undis-
puted that that proposal would be a costly one to the Union.
Respondent did not rebut Phillip Pope’s contentions that a
CPA would be expensive and that the Union could not afford
that expense.
In view of the above, I find that Respondent’s response to
the Union to the effect that it would agree to the Union pro-
viding a mutually agreeable CPA to examine the records at
the Union’s expense, was not sufficient. See Tama Meat
Packing Corp., 291 NLRB 657 (1988).
B. The Complaint Alleges that Respondent Violated the
Act by Conducting an Employee Survey Among Unit
Employees Without Notifying the Union
As to this issue Respondent argues that the management
rights provisions of the applicable collective-bargaining
agreement enables it to make shift changes and for that rea-
son, the survey is not illegal.
Regardless of the merits of Respondent’s argument, the
issue here is not one of alleged unilateral changes (i.e.,
whether, as Respondent argues, the right to unilaterally make
shift changes), but one of alleged direct dealing with employ-
ees (i.e., questioning unit employees by use of the employee
survey).
If the allegation involved a contention that Respondent il-
legally changed working hours for operating room depart-
ment employees then Respondent’s argument referencing the
management-rights provisions of the collective-bargaining
agreement would be entitled to more consideration. However,
the complaint makes no such allegation. Instead the com-
plaint alleges that Respondent engaged in direct dealing with
unit employees over matters which should have been submit-
ted to the collective-bargaining representative of the employ-
ees. There is nothing in the management-rights provisions
which entitle Respondent to bypass the Union and deal di-
rectly with employees regarding mandatory subjects of bar-
gaining.
The credited evidence shows that Respondent conducted
an employee survey among operating room department em-
ployees which included both unit and nonunit employees,
without notice to the Union. At that time, in late June 1989,
there existed a collective-bargaining agreement between the
Union and Respondent even though a decertification petition
was filed on March 28, 1989, and dismissed but reinstated
on May 4, 1989. Since August 4, 1989, that decertification
petition has been held in abeyance pending the outcome of
unfair labor practice proceedings.
In Laminated Products, 294 NLRB 816 (1989), the Board
upheld a finding that an employer violated Section 8(a)(5)
and (1) by conducting an employee survey among unit em-
ployees which ‘‘reflects a deliberate undertaking (1) to deal
directly with employees on matters . . . which properly
should have been addressed to the collective-bargaining rep-
resentative . . . .’’
In a case similar to this case, NLRB. v. Wallkill Valley
General Hospital, 866 F.2d 632 (3d Cir. 1989), the court
granted enforcement to a Board Order finding that an em-
ployee survey constituted direct dealing with employees in
violation of Section 8(a)(5). There, as here, the survey in-
quired into matters which may have been involved in con-
tract negotiations, and the survey was conducted during the
existence of a collective-bargaining agreement while a decer-
tification petition was pending but was being held in abey-
ance.
Here, the credited evidence shows that it was Respond-
ent’s practice to routinely notify the Union of planned em-
ployee surveys and to engage in bargaining whenever re-
quested by the Union. There was no evidence showing that
the Union had ever been bypassed regarding employee sur-
veys before the filing of the decertification petition on March
28, 1989.
The survey at issue deals with working conditions (i.e.,
hours of work) which is a mandatory subject of collective
bargaining to the extent it involves unit employees. Here, of
course, unit employees, as well as nonunit employees, were
involved in the survey.
I find that the record supports the allegations that Re-
spondent’s action in conducting the survey circumvented the
Union in matters within the scope of the Union’s responsibil-
ity, and constitute a violation of the Act by dealing directly
with unit employees.
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C. The Complaint Alleges that Respondent Promised an
Employee a 12-hour Shift if that Employee Would
Solicit the Union to Withdraw Unfair Labor Practices
Charges and that Respondent has Illegally Refused to
Transfer Employee Sharon Rimmer to a 12-hour
Weekend Shift
It is settled law that an employer may not discriminate
against its employees because a Union initiates proceedings
before the Board. Nor may an employer coerce its employees
into interfering with Board proceedings initiated by the em-
ployees collective-bargaining representative.
Here the credited evidence illustrated that Respondent’s
agent Merry Anne Pierson told Sharon Rimmer that she was
being denied the opportunity to transfer to the 12-hour shift
because the Union had filed unfair labor practice charges
over the survey conducted by Respondent among operating
room employees (see above).
Even if we assume for the sake of argument, that an em-
ployer may take some actions in order to stop possible illegal
activity or to protect itself from the possible detrimental ef-
fects of unfair labor practices (e.g., such as steps to cut off
a potential back pay award), it would be necessary to con-
sider whether the employer’s action had a reasonable nexus
to those possibilities. Here, there does not appear to be such
a nexus. There was no showing by Respondent that it was
reasonable for it to change its policy of permitting employees
to transfer to its 12-hour 3-day shift in an effort to either
cure possible unfair labor practices alleged in a charge, or to
cut off any liability that may flow from the Union’s unfair
labor practice charge regarding the operating room employ-
ees survey.
When Merry Anne Pierson mentioned the Union’s griev-
ance (charge) she was referring to the Union’s August 21,
1989, unfair labor practice charge regarding the operating
room department survey (10–CA–24302). That survey ques-
tioned employees about how they felt about certain working
hours and if they would prefer certain changes in those
hours. However, that particular charge did not allege that Re-
spondent was engaged in any unlawful activity by permitting
employees to transfer to different shifts. Charge 10–CA–
24302 alleges:
Since on or about February 1989, the employer has en-
gaged in individual bargaining and has bypassed the
collective-bargaining agent in matters pertaining to
wages, hours, and other terms and conditions of em-
ployment.
It was not until October 5, 1989, well after Merry Anne
Pierson told Rimmer that she could not transfer because of
the Union’s unfair labor practice charge, that the Union filed
a charge (10–CA–24413) which included an allegation that
‘‘since September 15, 1989, the employer has implemented
the work schedule’’ etc. That charge was, in fact, referring
to Merry Anne Pierson’s conversation with Rimmer.
Therefore, there was no logical connection between the
charge by the Union and the action of Respondent around
September 15, 1989, in telling its employee that it would dis-
continue allowing employees to transfer to the 12-hour shift.
In view of the above, there does not appear to be any log-
ical business justification behind Respondent’s action in
changing the transfer policy regarding the 12-hour 3-day
shifts.
By the comments by Pierson regarding Respondent’s mo-
tive for changing the policy and denying Rimmer the oppor-
tunity to transfer to the 12-hour 3-day-a-week shift, Respond-
ent informed it employee that she was being denied benefits
because of the Union filing charges.
Pierson went further. She promised Rimmer that Respond-
ent would permit transfer if Rimmer persuaded the Union to
drop its unfair labor practice charge regarding the operating
room department survey.
Section 8(a)(3) of the Act prohibits an employer from dis-
criminating against its employees in regard to ‘‘any term or
condition of employment to encourage or discourage mem-
bership in any labor organization.’’
Section 8(a)(1) of the Act prohibits an employer from
interfering, restraining or coercing employees in the exercise
of protected activities.
By promising to grant Rimmer’s request to transfer in
order to have the Union drop its charge over the survey, Re-
spondent took action which both discouraged Rimmer from
supporting the Union and which interfered, restrained, and
coerced her because the Union was engaged in actions in fur-
therance of its duties as the employees’ collective-bargaining
agent.
In view of the evidence proving that Respondent engaged
in other activity violative of sections of the Act, I find that
General Counsel has proven antiunion animus.
I find that General Counsel has proved a Section 8(a)(1)
and (3) violation by Respondent refusing to transfer Rimmer
to the 12-hour shift unless she persuaded the Union to drop
its unfair labor practice charge regarding the operating room
survey.
CONCLUSIONS OF LAW
1. East Tennessee Baptist Hospital is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Office & Professional Employees International Union,
Local 268 is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Union has been at times material herein the exclu-
sive representative for the purposes of collective bargaining
of the following employees:
All licensed practical nurses and technical employees,
employed by Respondent at its Knoxville, Tennessee
hospital including computerized tomograph, registered
technologist; staff radiology technologist and clinical
instructor; nuclear medicine technologist; radiation ther-
apy technologist; special procedures technologist; non-
registered staff technologist; registered staff tech-
nologist; licensed practical nurse, level II, nursing serv-
ice; licensed practical nurse, level I, nursing service; li-
censed practical nurse, level I, recovery room; operating
room technician; certified lab assistant; certified res-
piratory therapist; respiratory therapy technician; res-
piratory therapy technician, level I, pulmonary labora-
tory technician; bloodbank technician; histopathology
technician; medical laboratory technician; licensed prac-
tical nurse, emergency room; cyto technologist; physical
therapy assistant; laboratory assistant heart center; car-
887EAST TENNESSEE BAPTIST HOSPITAL
1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
2 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
diovascular technician I; respiratory, intensive care,
therapist; but excluding office clerical workers; guards;
professional employees; supervisor as defined in the
Act and all other employees.
4. Respondent, by promising its employee a 12-hour shift
if the employee would solicit the Union to withdraw unfair
labor practice charges, violated Section 8(a)(1) of the Act.
5. Respondent, by refusing to allow employee Sharon
Rimmer to transfer to a 12-hour weekend shift because she
failed to solicit the Union to withdraw unfair labor practice
charges, violated Section 8(a)(3) and (1) of the Act.
6. Respondent, by failing and refusing to furnish the
Union information requested by the Union which is nec-
essary and relevant to the Union’s performance of its func-
tion as the exclusive collective-bargaining representative of
the employees in the above described bargaining unit and by
unilaterally engaging in direct bargaining with its bargaining
unit employees by conducting an employee survey among
unit employees without notice and bargaining with the
Union, violated Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, East Tennessee Baptist Hospital, Knox-
ville, Tennessee, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Office & Professional Em-
ployees International Union, Local 268 as the exclusive bar-
gaining representative of the employees in the following ap-
propriate unit, by refusing to furnish the Union information
it requested regarding nonunit employees’ wage information
on and after August 19, 1988, and by refusing to furnish the
Union information it requested regarding nonunit employees
attendance information on and after October 12, 1989:
All licensed practical nurses and technical employees,
employed by Respondent at its Knoxville, Tennessee
hospital including computerized tomograph, registered
technologist; staff radiologic technologist and clinical
instructor; nuclear medicine technologist; radiation ther-
apy technologist; special procedures technologist; non-
registered staff technologist; registered staff tech-
nologist; licensed practical nurse, level II, nursing serv-
ice; licensed practical nurse, level I, nursing service; li-
censed practical nurse, level I, recovery room; operating
room technician; certified lab assistant; certified res-
piratory therapist; respiratory therapy technician; res-
piratory therapy technician, level I, pulmonary labora-
tory technician; bloodbank technician; histopathology
technician; medical laboratory technician; licensed prac-
tical nurse, emergency room; cyto technologist; physical
therapy assistant; laboratory assistant heart center; car-
diovascular technician I; respiratory, intensive care,
therapist; but excluding office clerical workers; guards;
professional employees; supervisor as defined in the
Act and all other employees.
(b) Dealing directly with bargaining unit employees by
conducting employee surveys about matters which properly
should be addressed to the employees’ collective-bargaining
representative.
(c) Promising its employees transfers at their request to a
12-hour, 3-day-a-week shift provided the employees success-
fully solicit the Union to drop unfair labor practice charges.
(d) Refusing to transfer its employees to a 12-hour shift
at their request unless the employees persuade Union to drop
unfair labor practice charges.
(e) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of 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) Recognize and bargain in good faith with Office &
Professional Employees International Union, Local 268, re-
garding terms and conditions of employment of unit employ-
ees by furnishing the Union information regarding wages and
attendance of nonunit employees upon request by the Union.
(b) On request, transfer Sharon Rimmer to the 12-hour
shift.
(c) Post at its facility in Knoxville, Tennessee, copies of
the attached notice marked ‘‘Appendix.’’2 Copies of the no-
tice, on forms provided by the Regional Director for Region
10, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.