Emanuel Hospital

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1344 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emanuel Lutheran Charity Board d/b/a Emanuel
Hospital and Rosetta Sebastian. Case 36-CA-
3539
29 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 26 March 1981 Administrative Law Judge
James S. Jenson issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed limited exceptions
and a statement in opposition to exceptions filed by
the General Counsel.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order. '
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Subsequent to the issuance of the judge's decision in this proceeding,
the United States Supreme Court issued its decision in NLRB v. Hen-
dricks County Rural Electric Membership Corp., 454 U.S. 170 (1981), find-
ing that there is a reasonable basis in law for the Board's practice of ex-
cluding from collective-bargaining units only those confidential employ-
ees with a "labor nexus," while rejecting any claim that all employees
with access to confidential information are beyond the reach of Sec.
2(3)'s definition of "employee."
In finding that the alleged discriminatee, Rosetta Sebastian, was a con-
fidential employee within the definition historically applied by the Board,
we agree with the judge that, particularly in the absence of union animus,
the Respondent fulfilled whatever obligation it had to Sebastian, assum-
ing she was entitled to the protection of the Act, and would also find it
unnecessary to decide the question expressly left open by the Supreme
Court in Hendricks County, above, of whether such protection actually
inures to confidential employees.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge: This
case was tried in Portland, Oregon, on October 28, 1980.
The complaint, which was issued on May 19, 1980, pur-
suant to a charge and amended charge filed on October
26, 1979, and May 19, 1980, respectively, alleges, in sub-
stance, that the Respondent violated Section 8(a)(1), (3),
and (4) by terminating Rosetta Sebastain because she
supported the Union or, alternatively, because of its con-
cern about her potential access to confidential material
and its belief that she voted or attempted to vote in a
Board election, thereby interfering with the Board's or-
268 NLRB No. 201
derly election process. The Respondent admits that Se-
bastian was told that she could not remain in the position
of personnel assistant after November 30, 1979, but
denies Sebastian was terminated, claiming instead she
was given the opportunity to transfer to other available
positions within the hospital which did not entail access
to confidential information, which she failed to do. All
parties were afforded full opportunity to appear, to intro-
duce evidence, to examine and cross-examine witnesses,
to argue orally, and to file briefs. Briefs were filed by the
General Counsel and the Respondent and have been
carefully considered.
On the entire record in the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Emanuel Lutheran Charity Board d/b/a Emanuel
Hospital is engaged in the operation of a nonprofit hospi-
tal in Portland, Oregon. In the past 12 months, the Re-
spondent drived gross revenue in excess of $1 million
and purchased and received goods and materials valued
in excess of $50,000 directly from sources outside
Oregon or from suppliers within Oregon which in turn
obtained such goods and materials directly from sources
outside Oregon. The Respondent admits, and it is found,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and a health
care institution within the meaning of Section 2(14) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and found that Retail Employees Union
Local 1092, Professional Division, herein called Local
1092, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. ISSUES
1. Whether Sebastian is a confidential and/or manage-
rial employee.
2. Whether Sebastian is entitled to the Act's protec-
tion.
3. Whether Sebastian was removed from the position
of personnel assistant because she favored the Union or
because of the Respondent's belief she voted or attempt-
ed to vote in a Board election, thereby interfering with
the Board's orderly election process; or whether her re-
moval was justified because of a conflict of interest since
she had access to confidential matters in the field of
labor relations.
4. Whether the Respondent was obligated to offer Se-
bastian a substantially equivalent position.
All dates hereafter are in 1979 unless stated otherwise.
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EMANUEL HOSPITAL
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
The Respondent operates a nonprofit hospital in Port-
land, Oregon, employing approximately 1900 employees.
The Respondent has six collective-bargaining agreements
with various labor organizations. Local 1092 represents
the employees in two bargaining units, one covering var-
ious "professional-technical" employees and the other
covering pharmacy personnel. James McIntosh is the Re-
spondent's director of personnel services and Ann
Toutges is the compensation manager. The Respondent
admits, and it is found, that they are supervisors and
agents of the Respondent. Fay Meski is the Respondent's
employment manager; Vernita Gilmore is the administra-
tive secretary to the vice president of administration and
was the Respondent's election observer during the elec-
tion held on October 18; Darrell Coffey, who is em-
ployed by Metropolitan Hospitals, Inc., was Local 1092's
observer at the same election; Michael Hereford is chief
executive officer of Local 1092; and Lon Imel is a busi-
ness representative for the Local.
Pursuant to a petition for an election filed with the
Board in Case 36-RC-4234 on September 11, the Re-
spondent and Local 1092 entered into a Stipulation for
Certification Upon Consent Election, providing for an
election to be held on October 18 in the following unit:
All office clerical employees of the employer at its
Portland, Oregon facilities, but excluding all other
employees, professional employees, confidential em-
ployees, technical employees, guards and supervi-
sors as defined in the Act.
Pursuant to said agreement, the election was held on
that date. The tally of ballots shows the Union lost the
election by a count of 56 to 113, with 11 challenged bal-
lots, which were insufficient in number to affect the re-
sults of the election. The Union filed objections to the
election, which were subsequently withdrawn.
The record shows that sometime prior to the election,
but after the Union had received a copy of the Excelsior
list from the Respondent, Imel called the Board agent in
charge of the election regarding the fact that the clerical
employees in the pesonnel office were not listed. 2
Whether the Board agent undertook to investigate the
fact as Imel understood is not on the record. However,
between the morning and afternoon voting sessions on
October 18,3 Hereford and Imel went to McIntosh's
office to discuss the fact that the names of the personnel
office employees were not on the voting list. It is clear
from the testimony of Hereford, Imel, and McIntosh,
which is mutually corroborative, that McIntosh informed
the union officials that the Respondent had not denied
and would not deny anyone the right to vote and, if the
Respondent did not think an employee was eligible, that
individual's ballot would be challenged. As the union
representatives left, Hereford told Sebastian that she
2 Coffey testified he told the clerical employees in personnel, including
Sebastian, that they were eligible to vote.
s The voting sessions were from 6:30 to 8 a.m. and 3 to 5:15 p.m.
could vote. Sebastian testified that a week prior to the
election she had told another employee, Kevin Smith,
that she, Sebastian, could not vote because she was a
personal and confidential employee. She testified another
employee, Karen Finley, told her that the union presi-
dent said she could vote. According to Sebastian, a
couple of days before the election she told Toutges that
a couple of employees had approached her and that one
had said that she could vote, and asked if that were true.
According to Sebastian, Toutges told her, "No, you are
[a] personal and confidential employee and that you
cannot vote." She claimed that Toutges' response to the
fact that Karen Finley had told her the Union said she
could vote was that "the Union lies." Toutges, who im-
pressed me as the more reliable of the two, denied that
she ever told Sebastian that she could not vote, or that
she accused the Union of lying. Sebastian further testi-
fied that on the afternoon of the election Ann Thomas,
the receptionist in personnel, reported that she had asked
McIntosh if she could vote, and that she was told, "We
could not vote because we worked for him." Thomas did
not testify, and McIntosh denied he ever commented to
anyone in the personnel department regarding their eligi-
bility to vote. He testified that Thomas asked whether
the people in the personnel office were on the eligibility
list, and that he responded no, that in the Company's
opinion they were confidential employees and not a part
of the unit. As noted, Thomas was not called as a wit-
ness. An inference adverse to the party who fails to call
witnesses otherwise available to it, or neglects to explain
the failure to call such witnesses, has been established
law since the early days of the Board. Freuhauf Trailer
Co., 1 NLRB 68 (1935), reversed 85 F.2d 391 (6th Cir.
1936), reversing circuit and enforcing the Board 301 U.S.
49 (1937). I have considered this factor in crediting
Toutges and McIntosh over Sebastian. Accordingly, the
hearsay testimony is not credited.
Shortly after 5 p.m. on October 18, Sebastian proceed-
ed to take her usual route to the employee parking lot,
and in doing so entered the opposite end of the "audito-
rium" or "recreation room" where the election was
being conducted. She had noticed a sign so stating and,
on entering, observed the Board agent in charge of the
election and the two election observers at the far end of
the room. The Board agent asked if she was there to
vote, to which Sebastian responded "that I could not
vote, I was a personal and confidential employee." After
asking for her name and ascertaining that it was not on
the voting list, the Board agent informed Sebastian that if
she wanted to vote she would be protected and ex-
plained the challenged ballot procedure. According to
Sebastian, she responded that, while she wanted to vote,
she felt she could not and, as she turned to leave, stated,
"I hoped that the Union gets in."
The morning of October 19, Gilmore, the Respond-
ent's election observer, reported to Mclntosh the fact
that Sebastian had appeared at the polling place the pre-
vious day and expressed support for the Union. Mcin-
tosh asked for, and Gilmore prepared, a written state-
ment concerning the incident. Mcintosh had heard from
others that Sebastian had made statements supporting the
1345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. Therefore, he decided to talk to Sebastian about
it, because
· . I could not have anybody working in that kind
of a position who would actually support the
Union. It would be a conflict of interest. With the
kinds of issues I had to deal with it just, to me, was
ridiculous to have somebody working directly for
me and handling that kind of information when I
was in an adversary position after they had ex-
pressed support for my adversary.
Accordingly, on October 24, McIntosh called Sebastian
to his office. Toutges was also present. While there is
some conflict in the testimony of Sebastian on the one
hand and McIntosh and Toutges on the other hand, the
substance of the conversation was to the effect that Se-
bastian had supported the Union contrary to McIntosh's
instruction that those in the personnel area should main-
tain a position of neutrality throughout the union cam-
paign;4 that Sebastian stated she had not supported the
Union in previous elections, 5 but that she actively sup-
ported the Union this time because of her own personal
grievances; 6 and that McIntosh expressed his view that
she was involved in a conflict of interest and he could no
longer trust her to continue as his personnel assistant
typing confidential matters, and that she should therefore
transfer out of the personnel department to a nonconfi-
dential position. Sebastian asked about filing a grievance,
and was told she could and that it would be handled by
Executive Vice President Behn instead of Mcintosh be-
cause of his involvement. Sebastian stated she would
resign; however, Toutges encouraged her to think it over
for a few days and let them know about pursuing trans-
fer possibilities.7
October 24 was on a Wednesday. It appears Sebastian
took the next 2 days off as sick leave, with Toutges'
knowledge. She requested, and was granted, the follow-
ing week as vacation. Sebastian requested additional time
to attend her father's funeral. Having failed to hear from
Sebastian since October 24, on November 14, McIntosh
wrote her the following letter:
Dear Rosetta,
As we discussed on October 24, 1979, you may feel
free to apply for transfer to available openings at
Emanuel, excluding confidential positions.
McIntosh was afraid that, if people working in personnel were to ex-
press their opinion one way or the other regarding the union campaign,
there was a chance the election might be set aside.
a There had been similar elections in 1977 and 1978 which the Union
had lost.
6 Sebastian had not been promoted to "employment specialist," and
had received only a I-week vacation in 3 years.
I While Sebastian claimed Mcintosh accused her of going to the poll-
ing area to vote, both Mcintosh and Toutges, whom I credit, denied the
subject of voting in the election was mentioned. In this regard, McIntosh
already had Gilmore's statement to the effect that Sebastian had told the
Board agent she had not come to the polling place to vote. I doubt, in
these circumstances, that McIntosh would have accused her of trying to
vote. Rather, I view Sebastian's testimony along that line to be a fabrica-
tion in an attempt to bolster the alleged illegal character of the conversa-
tion.
Ms. Meske informs me that you have not contacted
her to investigate any possibilities. I want to remind
you that it is necessary for you to contact and keep
in touch with the Employment Manager if you do
desire employment at Emanuel.
Please contact Ms. Meske should you wish to
pursue employment in a different position with the
hospital.
According to Sebastian, she called McIntosh on a
Friday s and told him that she would be back to work on
the following Monday. She stated that, after expressing
sympathy over her father's death, he responded that "it
was not necessary for me to come in that I should use
this time to find another job." She testified that, when
she stated she needed the money, McIntosh informed her
that she would be paid until November 30. McIntosh tes-
tified his only recollection of the call was that he encour-
aged her to call Employment Manager Meski about
other employment opportunities in the hospital. It ap-
pears that Sebastian called Meski on the same date re-
garding any openings. Meski informed her of the open-
ings listed on the employment opportunities sheet which
is published daily. Sebastian was not interested in either
admitting clerk opening since the jobs were at a lower
grade (7 as opposed to 8 which she had been), and paid
less than she had been receiving, and also because one of
the positions was not full time. She was apprised of an-
other grade 8 or 9 opening as administrative secretary to
the vice president of nursing services, but that the Re-
spondent would not consider her for that job because it
involved personal and confidential information and be-
cause taking shorthand was required and Sebastian
lacked that skill. Meski testified that, while she told Se-
bastian to keep in touch regarding any further openings,
she was contacted by Sebastian only the one time. On
the other hand, Sebastian claimed she called Meski a
second time and was told no comparable positions were
available, but to keep checking. She also called Employ-
ment Specialist Evelyn Foreman about November 24 and
was advised of several clerk positions that were avail-
able. Sebastian claimed her roommate, who worked in
patient accounts, brought the employment opportunity
sheet home on a daily basis, and that the only compara-
ble job listed was the one as administrative secretary to
the vice president of nursing services, which Meski said
she was not qualified for.9 It is clear that Sebastian was
familiar with the transfer procedures within the hospital,
and that she never came back to the hospital after Octo-
ber 24.
B. Sebastian's Employment Status
While counsel for the General Counsel has not con-
ceded Sebastian was a confidential employee, she argues
that even if she is a confidential employee the Board
"has consistently held that like other employees, confi-
I Apparently on November 16, although both she and McIntosh later
placed the call on or about November 19, a Monday.
9 Whether the job was indeed a "confidential" one within the Board's
definition was not explored on the record.
1346
EMANUEL HOSPITAL
dentials are protected by Section 7 of the Act." The Re-
spondent contends that Sebastian was a confidential em-
ployee who also performed managerial functions and as
such was not entitled to the protections of the Act. It
contends further that her removal from her confidential
position was justified since there was a conflict of inter-
est on her part, and that she had an opportunity to trans-
fer to a nonconfidential position, which she failed to do.
There can be no question but that Sebastian was a con-
fidential employee with a "labor nexus." She was the as-
sistant to Director of Personnel Services McIntosh, who
"had overall responsibility for all of the personnel admin-
istration, industrial relations, labor relations affairs and
including acting as spokesman for the hospital in negotia-
tions, labor contract administration, safety, development
of personnel policy, establishment of wage and salary
programs, benefit programs, the entire gambit of person-
nel administration," including the responsibility for run-
ning the Employer's campaign during Board elections.
He also had primary responsibility for handling employ-
ee grievances that were filed by unions. As his assistant,
Sebastian handled all correspondence that McIntosh had
with legal counsel, labor unions, and government regula-
tory agencies, including the Board and HEW. She made
monthly reports to the unions representing the various
employee units regarding new hires, terminations, and
changes in employee status. She notified the various de-
partments when employees were subject to discharge
under labor agreements for failing to maintain good
standing. She typed contract proposals on behalf of the
Respondent and the final agreements when reached. She
also typed wage forecasts prepared by McIntosh for
both bargaining unit and nonunit employees. She typed
memoranda regarding salary recommendations for man-
agement. Drafts and final responses to union grievances
were also prepared by her.
Upon the basis of the foregoing, I find that Sebastian
meets the Board's consistently applied definition of confi-
dential employee as one who assists and acts in a confi-
dential capacity to a person who formulates, determines,
and effectuates management policies in the field of labor
relations. Kleinberg, Kaplan, Wolff Cohen & Burrows,
P.C., 253 NLRB 450 (1980); B. F. Goodrich Co., 115
NLRB 722 (1956). The Respondent's argument that Se-
bastian performed managerial functions and is therefore
not protected by the Act is not well taken. With respect
to her (1) unemployment compensation functions, which
consisted of interviewing supervisors to obtain statements
for the reasons for the terminations and assembling this
information for a consulting firm that represented the
Respondent in unemployment hearings, (2) conducting
orientation programs, and (3) conducting salary surveys
of other hospitals and employers in the Portland metro-
politan area, it is clear they are of a routine nature and
do not require the use of independent judgment. Nor
does the fact that on one occasion she attended an unem-
ployment compensation hearing alone, which involved a
sexual harassment charge, change my conclusion. Sebas-
tian discussed with her immediate supervisor the fact
that the supervisor charged with the harassment would
not attend the hearing. She was told not to worry about
it, that "we would have lost the case anyway." Thus, it
is seen that it was not Sebastian who made the decision
not to contest the unemployment compensation claim. In
sum, the Respondent has failed to show that Sebastian
formulated and implemented management decisions. Ac-
cordingly, I find she neither formulates nor effectuates
management policies nor exercises sufficient independent
discretion of a managerial nature in the performance of
her job to be classified as a managerial employee. Lock-
heed Aircraft Corp., 217 NLRB 573 (1975).
Having concluded Sebastian is a confidential employee
but not a managerial employee, the question remains
whether, as a confidential employee, she is entitled to the
Act's protection. I find it unnecessary to discuss the ar-
guments of the parties over this issue since I have no dis-
cretion in this area. In Los Angeles New Hospital, 244
NLRB 960, 962 (1979), the Board (at fn. 4) stated:
Additionally, we would note that the Administra-
tive Law Judge's finding that confidential employ-
ees do not enjoy protection under the Act, although
consistent with the decisions of several courts of ap-
peals, is, with all respect to those courts of appeals,
inconsistent with current Board law. See Hendricks
County Rural Electric Membership Corporation, 236
NLRB 1616 (1978). It is well settled that it is the
duty of an administrative law judge "to apply estab-
lished Board precedent which the Supreme Court
has not reversed." Iowa Beef Packers, Inc., 144
NLRB 615, 616 (1965).
While the Hendricks case is now before the Supreme
Court,' ° I have no discretion but to apply current Board
law. I find, therefore, that Sebastian, as a confidential
employee, is entitled to the protection of the Act.
C. Whether the Respondent Terminated Sebastian
Because She Engaged in Protected Concerted Activity
or Because of Its Concern Over Her Access to
Confidential Labor Relations Material
Paragraph 9 of the complaint alleges the Respondent
discharged Sebastian because of its belief that she voted
or attempted to vote in the October 18 election, and that,
by telling her she could not remain in the position of
personnel assistant and by discharging her, the Respond-
ent interfered with the Board's election process. I fail to
comprehend how the October 24 and November 30 con-
duct of the Respondent, as alleged in the complaint,
could have "interfered with the NLRB's orderly election
process," inasmuch as the election took place on October
18, some 8 days on the one hand, and in excess of a
month on the other hand, before the conduct. In this
regard, the credible evidence does not establish, as I
found earlier, and as alleged in paragraph 5 of the com-
plaint, that Toutges had told Sebastian that she could not
vote in the Board election. In any event, it is clear on
the record that Sebastian had typed the Excelsior list and
knew her name was not on it, and was fully aware of the
fact the Respondent considered her to be excluded from
the voting unit on the basis of her confidential status.
'o Review granted March 2, 1981, 49 U.S. Law Week 3635.
1347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, it is clear from the record that on October 19
McIntosh had Gilmore's statement regarding what tran-
spired on October 18 betweeen Sebastian and the Board
agent at the polling place, and knew that Sebastian nei-
ther voted nor attempted to vote on October 18. I con-
clude, therefore, that the General Counsel has failed to
prove by a preponderance of the evidence the allegations
in paragraphs 5 and 9 of the complaint.
The Respondent admits that, on October 24, Sebastian
was told she could not remain in the position of person-
nel assistant, as alleged in paragraph 6(a), but denies it
terminated her on November 30 because she joined, sup-
ported, or assisted the Union, or that its action was taken
to discourage employees from engaging in such activi-
ties, as alleged in paragraphs 6(b) and 7(a) and (b).
Rather, the record supports the Respondent's claim that
Sebastian was told that because of her active support of
the Union she could no longer remain in a confidential
position involving labor relations and was encouraged to
transfer to a nonconfidential job in the hospital. Sebastian
testified that McIntosh told her on October 24 "that I
could transfer into another department, but that he did
not want me working here in personnel." It is clear that
both McIntosh and Toutges encouraged her to transfer
to another job instead of leaving the Respondent's
employ.
Even though the Board adheres to the position that
confidential employees enjoy protection under the Act, it
also recognizes the fact that an employer may have a le-
gitimate desire to protect the confidentiality of its labor
relations matters from disclosure to others, and is justi-
fied in terminating an employee if it suspects the employ-
ee may "leak" confidential information. Illinois Bell Tele-
phone Co., 228 NLRB 942 (1977); Joseph Schlitz Brewing
Co., 211 NLRB 799 (1974). The right to take action
against an employee in order to protect the confidential-
ity of labor relations material applies to all employees, in-
cluding "confidential" employees. Thus, even though Se-
bastian is entitled to the Act's protection as a confidential
employee, she may be removed from her job if it is done
in order to preserve labor relations confidentiality. The
question whether the removal is lawful or not goes to
the employer's motivation. In American Shipbuilding Co.
v. NLRB, 380 U.S. 300, 311 (1965), the Supreme Court
stated:
It has long been established that a finding of viola-
tion under this section will normally turn on the
employer's motivation.... But we have consistent-
ly construed the section [8(a)(3)] to leave unscathed
a wide range of employer actions taken to serve le-
gitimate business interests in some significant fash-
ion, even though the act committed may tend to
discourage union membership. See, e.g., Labor
Board v. MacKay Radio & Telegraph Co., 304 U.S.
333, 347. Such a construction of Section 8(a)(3) is
essential if due protection is to be accorded the em-
ployer's right to manage his enterprise.
Clearly, if the Respondent either transferred or termi-
nated Sebastian to punish her because she favored the
Union, or to punish others for engaging in protected ac-
tivities, the Respondent violated the Act. If, however,
the Respondent's action was taken for fear that she
might divulge confidential labor relations information,
the Respondent has not violated the Act.
Must an employer wait until an employee has actually
divulged confidential information before taking some
action to protect itself? Both Joseph Schlitz Brewing and
Illinois Bell indicate the answer is no. In the former, the
employer feared or suspected that an employee with a
social relationship with a local union officer and whose
husband was an active union member employed by an-
other employer might leak confidential information. In
the latter, the employer felt there was a possibility that
an employee might divulge confidential material to her
brother, a shop steward. In addressing the question, the
Board noted:
[T]he fact that the possibility does exist in a more
than conjectural sense entitles the employer to pro-
tect himself against it. [228 NLRB 942 fn. 1.]
Thus, suspicion, doubt, or fear that an employee with
actual or potential access to confidential labor relations
material might divulge or leak it is sufficient to justify an
employer's acton against an employee.
There is no evidence the Respondent has had anything
but an amicable relationship with the various unions rep-
resenting its employees, including Local 1092, nor is
there any evidence the Respondent harbored any animus
or hostility toward Local 1092 or the other unions with
whom it has a collective-bargaining relationship. There is
also no evidence that the Respondent was attempting to
discourage any of its employees from union membership
or activities. Rather than discouraging union membership
or activities, by encouraging Sebastian to transfer to a
nonconfidential job, it could be argued the Respondent
was encouraging union membership. Thus, there is no
evidence of an illegal pattern of conduct by the Re-
spondent in the context of which its action with respect
to Sebastian may be judged. In sum, there is no credible
evidence the Respondent sought to discriminate against
Sebastian or any other employee because of union or
other protected concerted activities. The thrust of the
Respondent's action goes to labor relations confidential-
ity and not to protected or union activity. The absence
of evidence tainting the Respondent's motive convinces
me that its action in removing Sebastian from her confi-
dential position was based solely on suspicions concern-
ing labor relations confidentiality. Gilmore had reported
the fact that Sebastian had appeared at the polling place
and stated she hoped the Union won; another employee
reported that Sebastian had been politicking in favor of
the Union despite McIntosh's admonition to remain neu-
tral for fear the election could be set aside. Sebastian told
McIntosh that she would have voted for the Union. His
reaction was not to terminate her for having done so,
but, in Sebastian's words, "He told me he could not trust
me typing his personal and confidential memorandum."
Thus, the thrust was not toward protected or union ac-
tivities, but toward the protection of confidentiality in
the field of labor relations. I find, therefore, that there is
insufficient evidence to support a finding that Sebastian
1348
EMANUEL HOSPITAL
was either told she could not remain in the position of
personnel assistant, or be terminated, in whole or in part
for the purpose of discriminating against her because of
her union or concerted activities, or to discourage em-
ployees from engaging in such activities. I find, instead,
that she was told that she could not remain in the posi-
tion of personnel assistant for a legitimate business
reason, the Respondent's concern over the confidentiality
of matters concerning labor relations. Sebastian was en-
couraged to transfer to a nonconfidential job and failed
to do so. Not having engaged in any illegal conduct, the
Respondent was under no obligation to effect a transfer
for her to a substantially equivalent job.
I therefore find the Respondent did not violate the Act
in any respect as alleged in the complaint, and recom-
mend its dismissal.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) and a
health care institution within the meaning of Section
2(14) of the Act.
2. Local 1092 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommended
ORDER I 1
The complaint is dismissed in its entirety.
"I 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 objections to them shall be deemed waived for all pur-
poses.
1349