Fairview Hospital

National Labor Relations Board - Board Decisions

Mar 20, 1969

174 N.L.R.B. 924 (N.L.R.B. 1969)

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fairview Hospital and Hospital Employees Labor
Program , Local 743, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America , and Local 73, Building
Service Employees International Union , AFL-CIO.
Fairview Hospital and Hospital Employees Labor
Program , Local 743, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and
Helpers of America , and Local 73, Building
Service Employees International Union , AFL-CIO.
Cases 13-CA-8303 and 13-RC-11360
March 20, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On October 29, 1968, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision The Trial Examiner also found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and
recommended that such allegations be dismissed.
The Trial Examiner further found that certain
conduct by Respondent interfered with the
employees' free choice in the election in Case
13-RC-1 1360, sustained some and overruled other
challenges to ballots cast in that election, and made
alternative recommendations that the Union be
certified as bargaining representative in the event the
revised tally of ballots shows that it has received a
majority of votes cast in the election, but that
should the Union fail to acquire such majority vote,
the election be set aside and a second election be
directed. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision together with a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, as modified herein.2
We do not agree with the Trial Examiner that in University Nursing
Home , Inc , 168 NLRB No 53, the Board specifically found or made any
determination that a licensed practical nurse was not a professional
employee The Board excluded from the unit the licensed practical nurse in
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that Respondent,
Fairview Hospital, Chicago, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified
I Delete from paragraph 1(f) of the Trial
Examiner's Recommended Order that part thereof
which reads "In any like or related manner" and
substitute therefor "In any other manner. . ."
2. Delete from the third to last paragraph of the
Notice to All Employees the words "in any like or
related manner" and substitute therefor "in any
other manner...."
It is hereby further ordered that the complaint be,
and it hereby is, dismissed insofar as it alleges
violations not found herein.
that case solely because the evidence established that she was a supervisor,
and did not pass on whether she was or was not a professional In any
event, there are no exceptions to the Trial Examiner ' s finding with regard
to the ballot of Nurse Mullins, and we adopt it pro forma
'Member Zagoria does not reply on Mrs Freund's conduct between
shifts of the election as grounds for setting aside the election , but agrees,
for the reasons stated by the Trial Examiner, that the Union's other
objections have merit
TRIAL EXAMINER'S DECISION AND
REPORT AND RECOMMENDATIONS AS TO
OBJECTIONS TO ELECTION AND
DISPOSITION OF CHALLENGED BALLOTS
STATEMENT OF THE CASE
HERBERT SILBERMAN , Trial Examiner These
consolidated proceedings were heard at Chicago, Illinois,
on July 31 and August l and 2, 1968 All parties were
represented at the hearing by counsel Following the close
of the hearing briefs were submitted on behalf of the
General Counsel and the Employer which have been
carefully considered.
The Pleadings
The complaint, in Case 13-CA-8303, dated June II,
1968, and amended on August I, 1968, alleging that
Fairview Hospital, herein referred to as the Employer or
the Hospital, has engaged in and is engaging in unfair
labor practices within the meaning of Sections 8(a)(1) and
(3) and 2(6) and (7) of the National Labor Relations Act,
as amended, is based upon a charge filed on February 29,
1968, by Hospital Employees Labor Program, Local 743,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and Local 73,
Building Service Employees International Union,
AFL-CIO, jointly, herein called the Union In substance,
the complaint, as amended, alleges that the Employer
discharged Melvin Gates, Louis Rodriquez, Lawrence
Brown, and Clifford Williams on February 21, 25, and 26
and June 28, 1968, respectively, and constructively
discharged Frank Rogers on February 21, 1968, because
174 NLRB No. 192
FAIRVIEW HOSPITAL 925
they had engaged in union or other concerted activities
and, that by reason of said discharges and other conduct
set forth in the complaint, the Employer has interfered
with, restrained, and coerced employees in the exercise of
the rights guaranteed to them by Section 7 of the Act In
its answer Respondent generally denies the allegations of
the complaint
With respect to the representation proceedings, Case
13-RC-11360 A petition requesting certification of
representatives was filed by the Union on January 5, 1968.
Thereafter, the parties entered into a Stipulation for
Certification Upon Consent Election which was approved
by the Regional Director of the Board on February 14,
1968 Pursuant thereto, an election by secret ballot was
held on February 26, 1968, between the hours of 7 and
7.30 a.m. and 2 and 4 p.m. in the hospital chapel area of
the Employer's premises among the employees in the
following unit
All nurses aides, orderlies, dietary department
employees, housekeeping and maintenance employees
employed by Fairview Hospital located in Chicago,
Illinois, but excluding registered nurses, licensed
practical nurses , clerical employees, professional
employees, guards and supervisors as defined in the Act
and all other employees.
The tally of ballots shows that of approximately 42
eligible voters, 16 votes were cast for the Union, 17 votes
were cast against the Union and 5 ballots were challenged.
The challenged ballots are sufficient in number to affect
the results of the election.
On February 29, 1968, the Union filed timely
objections to conduct affecting the results of the election
The Regional Director caused an investigation of the
challenges and the objections to be made and on June 19,
1968, issued his report thereon. The report shows that 4 of
the 5 challenged ballots were cast by persons who are
alleged in the complaint in Case 13-CA-8303 to have been
unlawfully discharged and that the objections are
substantially similar to some of the allegations set forth in
the same complaint The Regional Director, therefore,
issued an Order which directs a hearing with respect to
the objections and the challenges, which consolidates said
hearing with the hearing in Case 13-CA-8303, which
directs the Trial Examiner designated to hear said cases to
prepare and to cause to be served on the parties a report
containing resolutions of credibility of witnesses, findings
of fact, and recommendations to the Board as to the
disposition of the issues in the representation proceeding
and which further directs that Case 13-RC-11360 be
transferred to and continued before the Board
Upon the entire record in the cases, and from my
observation of the witnesses and their demeanor, I make
the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Employer, an Illinois corporation , maintains a
licensed proprietary psychiatric hospital in Chicago,
Illinois During the calendar year 1967, which is
representative of Respondent's business activities, in the
course and conduct of its hospital operations, the
Employer received gross revenues in excess of $1 million.
During this same period, the Employer received directly at
its location in Chicago, Illinois , drugs and supplies from
places in States of the United States other than the State
of Illinois valued in excess of $3,000 The Employer
admits, and I find, that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act
III. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint , and Coercion
In late fall of 1967 the Employer learned of the Union's
drive to organize its employees. The Hospital's first
response was to issue a directive, in November or
December 1967, prohibiting its employees from discussing
union matters during working hours' Subsequently, on
January 5, 1968, a representation petition was filed by the
Union The Employer and the Union on February 14,
entered into a Stipulation for Certification Upon Consent
Election pursuant to which an election was held on
February 26, 1968 During the week preceding the
election, and on the day of the election, the Employer is
accused of having engaged in conduct which infringed on
employee's statutory rights.
The first incident complained of occurred on February
21, 1968. In the afternoon of that day C. Geraldine
Freund, executive director of the Hospital, held one of
several meetings with employees Present at this meeting,
in addition to Mrs. Freund, were Anita Auerbach,
assistant executive director, three nursing aides, anu two
orderlies, Lawrence Brown and Louis Rodriquez Using
some of the literature which had been distributed by the
Union, Mrs Freund compared the employees' wages and
employment benefits with those the Union was promising
to obtain for them. Such comparisons, if made with
reasonable fairness, is a permissible preelection campaign
tactic and is not statutorily offensive However, Mrs.
Freund used the occasion to voice numerous threats of
loss of benefits should the Union become the employees'
bargaining representative Thus, Mrs. Freund said that if
the Union got in the employees would no longer receive
free meals, the Employer would discontinue giving loans
to employees, the Employer would stop giving semiannual
bonuses, and the employees who were being paid in excess
of $2 per hour would suffer a wage reduction to the $2
figure Mrs Freund also discussed the employees'
'The record is vague regarding the scope of the directive and its
promulgation C Geraldine Freund, executive director of the Hospital,
testified that the directive was announced orally and also appeared in
writing She was uncertain as to whether it was she or the assistant
executive director, Anita Auerbach , whc had prepared the written
directive However, if there was such an instrument , no copy was
introduced in evidence and there is no evidence that any employee had seen
it Mrs Freund further testified that in November or December 1967 she
and Mrs Auerbach instructed the employees "not to discuss any union
activities while they were treating patients or while they were employed
and working on the floor" Corroboratively, Jolene Thompson , a nursing
aide, testified that Mrs Auerbach had instructed her that "union was not
to be discussed on the floor . during working time " As the complaint
does not allege that the directive was unlawful and as General Counsel
does not make any such contention in his brief , for the purposes of this
case, I shall assume that the Hospital's rule prohibiting employees from
discussing union subjects was limited to working areas during working
hours and was lawfully promulgated
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hospitalization, insurance program. She told the employees
that the Company was looking into improvements in its
insurance program and that if the Union got in the
employees probably would have to pay half the premiums
for their hospitalization insurance (at the time of the
meeting the Hospital's insurance program was
noncontributory)' Despite the fact that during the meeting
Mrs Freund also told the employees, "If you want to join
the Union, you're welcome to it," I find that by reason of
the above-described conduct on the part of Mrs Freund
the Employer has violated Section 8(a)(1) of the Act.'
At the end of the February 21 meeting Mrs Freund
entered into a conversation with Brown and Rodriquez.
She said to them that it was up to the employees if they
wanted the Union or not, but they would be better off if
they negotiated with her instead of doing so through the
Union. She attempted to find out from them whether they
favored the Union or not Later in the same day
Rodriquez met with Mrs Freund alone Mrs. Freund
attempted to show Rodriquez that he had previously been
given a $25 increase. The conversation then turned to the
subject of the Union. Mrs. Freund, mentioning that
Rodriquez was popular among the employees and spoke
with everyone in the Hospital, asked him why the
employees wanted the Union. She also asked whether
there would be a lot of votes for the Union. Rodriquez
answered in the affirmative She inquired about the
kitchen help and Rodriquez said that most of the kitchen
help were going to vote against the Union. She then asked
about the night shift and Rodriquez responded that the
night shift was undecided Mrs. Freund stated that "we
got the Union out before . we'll get the Union out this
time, too."
The questioning of Rodriquez and Brown regarding
their attitudes toward the Union and her later questioning
of Rodriquez concerning the attitudes of other employees
occurring shortly after the meeting at which Mrs Freund
sought to dissuade the employees from supporting the
Union and at which she had threatened the employees
with various reprisals should the Union win the election,
had a natural tendency to create the impression that she
was considering reprisals against union supporters ° In the
circumstances, therefore, such conduct constituted
'Brown, Rodriquez , and Mrs Freund testified concerning the
transactions at the February 21 meeting I have credited the versions of
Brown and Rodriquez Mrs Freund ' s version of the meeting in some
respects conflicts with those of Brown and Rodriquez For instance, with
respect to insurance , according to Mrs Freund , she advised the employees
that the Hospital has a comprehensive insurance plan while under the
Union ' s proposed program the employees would have to pay half the
insurance premiums and that she merely "pointed up that we are ahead
here" I do not credit Mrs Freund ' s version of sshat she said at this
meeting Mrs Freund impressed me as being an unreliable witness Her
memory of the events in issue appeared to be poor In addition, she
became excited as she testified which prevented her from giving a
straightforward account of the transactions in question When
cross-examined by General Counsel she assumed a combatatively defensive
attitude , she tended to avoid giving direct and responsive answers to the
questions asked and when finally compelled to answer his questions she did
so generally in an argumentative manner Even when questioned by the
Employer's counsel her answers were more discursive than responsive I
am of the opinion that Mrs Freund has been so affected by her
involvement in the Union ' s organizational campaign and in the instant
proceedings that her perspective has been distorted to such a degree as to
have impaired her ability to recount the facts as they happened
'According to Brown and Rodriquez, Mrs Freund also said that she was
looking into the purchase of new insurance for the employees and that it
would be better if the employees negotiated with her rather than through
the Union Contrary to General Counsel, I do not find these remarks
constitute unlawful promises of benefits
unlawful interrogation in violation of Section 8(a)(1) of
the Act.
About 2 hours after the February 21 employees'
meeting concluded Mrs Freund called Lawrence Brown to
her office She told him that she had heard that he was an
agent for the Union and that he had been talking about
the Union on the floor She warned him that if she
received any further reports about him "as far as union
was concerned" he would be fired The next day Mrs.
Freund called Brown to the bookkeeping department
where, in reviewing his wage records with him, she said to
him that if the Union gets in his wage rate would be
reduced from $2 20 an hour to $2 an hour These threats
made to Brown by Mrs. Freund constituted interference,
restraint, and coercion of employees in violation of
Section 8(a)(1) of the Act.
Clifford Williams, who was then employed by the
Hospital as an elevator operator, testified that he attended
a meeting of employees conducted by Mrs Freund during
which she said that she would like to know who was in
favor of the Union and who was against the Union
During the same meeting she advised the employees that if
the Union comes in the employees would lose their fringe
benefits and "it is going to cost us to join the union."
Williams further testified that on another occasion Mrs.
Freund asked several employees including himself to name
the people who had gone to the Holiday Inn where the
Union had held a meeting. She remarked to Williams that
she knew who had gone to the union meeting These
efforts on the part of Mrs Freund to ferret information
concerning which employees favored and supported the
Union and which didn't and her threat that employees
would lose fringe benefits if the Union should win the
election constituted further violations of Section 8(a)(1) of
the Act
Jolene Thompson testified that one or two days before
the election Mrs Freund had a private talk with her
during which Mrs Freund informed her that she was not
to discuss the Union on the floor 5 As the conversation
progressed Mrs Freund raised her voice and proceeded to
tell Mrs. Thompson that if the latter were to vote for the
Union she would be fired one way or another, that if Mrs.
Thompson was not satisfied at the Hospital why didn't she
go to work in a union hospital, and that Mrs. Thompson
was trying to influence other employees as to how to vote
in the election. During their discussion Mrs Freund
accused Mrs. Thompson of discussing the Union on the
floor which the latter denied by saying that the only time
she talked union was during her lunch hour Mrs Freund
replied that she pays for the employees' lunches and
therefore it was her half hour. I find that the threat to
discharge Mrs. Thompson if the Union should win the
election constitutes a violation of Section 8(a)(1) of the
Act
'Bok, The Regulation of Campaign Tactics in Representation Elections
under the National Labor Relations Act, 78 Harv L Rev 38, 106 (1964)
'Mrs Thompson testified that one or two days earlier Mrs Auerbach
had instructed her that there was to be no discussion of the Union in the
Hospital
'Mrs Thompson testified that after the election her work station was
transferred from the third floor to the fourth floor Initially she was
transferred because the patients from the third floor also had been
transferred to the fourth floor and it was desirable for her to continue
caring for the same patients However, beginning about a week later
Thompson was transferred back and forth among the second , third and
fourth floors and from week to week she did not know on which floor she
would work the next week According to Thompson, these frequent
transfers of station made her job more difficult Contrary to General
FAIRVIEW HOSPITAL
B. The Discharge of Louis Rodriquez
'Rodriquez, who was hired as an orderly on March 10,
1967, was discharged by Mrs. Freund on February 25,
1968, the day before the election According to Rodriquez,
on the date of his discharge, while he was working in the
dining room he began a conversation with one of the
kitchen employees (Mattie Freison) about the pending
election. He inquired how long she had been working for
the Hospital to which she replied for 8 months. He asked
if she was going to vote She did not answer, but just
laughed He then asked her whether she had been
brainwashed. She still did not answer. Shortly thereafter
Mrs Freund sent for him She asked what he had said to
Mattie Freison. He repeated his conversation with
Freison Mrs Freund responded that she was told that he
had asked Freison whether or not she was going to vote
for the Union and that he also had said to Freison that
Mrs. Freund had been brainwashing her. Rodriquez
denied that he had made those statements. Mrs Freund
then told him not to talk to anyone on the floor and to
leave the floor
Rodriquez went to the lobby of the building and there
he had another encounter with Mrs. Freund. According to
Rodriquez, "she started raving and talking very loud .
and said I was for the union; and she called me a double
agent. She said . . . I didn't think you were for the union,
the way you talk and the way you act. . . You're a
double agent. . . . You're for the union, you're for the
union. . . . you're fired." During the same discussion Mrs.
Freund also said, "[W]hy don't you go over [to the
Presbyterian Hospital] and work for the union over there9
I am paying you a salary over here. The union is not
paying you. [I]f you wanted the union so bad, you should
be working someplace else "
Mrs. Freund testified that over a period of several
months the Employer had received complaints about
Rodriquez' behavior, specifically, that he had been
stealing drugs from the Hospital and had been engaging in
serious improprieties with nurses in the Hospital.
However, the immediate reason for his discharge was the
incident involving Mattie Freison. According to Mrs.
Freund, in the afternoon of February 25, Rodriquez came
to speak with her and told her that he had been checking
with some people in the Presbyterian -- St. Luke's
Hospital which was being unionized and that he heard
that they were starting at very low salaries and were not
happy and he is happy working here in a nonunion place.
About 4.30 p.m., an hour later, Mattie Freison informed
Mrs. Freund that Rodriquez had stopped her while she
was on her way to the dining room with food and had
asked her how she was going to vote and whether she
favored the Union. Freison also complained that
Rodriquez "sort of heckled me" and said, "You're being
brain-washed by Mrs. Freund " Mrs Freund went to the
floor where Rodriquez was working and told him to
report to her office Her only conversation with him on
the floor was to ask the rhetorical question, "Haven't you
been told by Mrs. Auerbach and by me if you have to
discuss anything on the floor to take it out of the
hospital?" Before she met with Rodriquez in her office she
called Dr Freund and discussed Rodriquez with him. Dr.
Freund, according to Mrs. Freund, advised, "knowing that
Counsel , I find that this testimony by Mrs Thompson does not prove by
the requisite preponderance of evidence that Mrs Thompson ' s duty station
was changed in the manner described by her in order to retaliate against
her for her union activities
927
we already know about him, knowing that he is provoking
many situations, we don't think he is a good risk to be
around patients." Dr Freund instructed her to discharge
Rodriquez, which she did '
General Counsel does not contend that the Hospital's
no-solicitation rule was invalid and presumably would not
contend that had Rodriquez been discharged for a
violation of the rule, the discharge would have been
unlawful. However, it is General Counsel's argument that
Mrs Freund discharged Rodriquez because she learned
that he was promoting the Union's cause rather than
because of his violation of the Hospital's rule. The issue
thus turns on whether the truth lies with Rodriquez'
version or Mrs Freund's version of what transpired on
February 25, 1968 6 According to Mrs Freund, on the
Sunday in question Rodriquez interrupted her about 3
p m to tell her that he was happy "working here in a
non-union place." About an hour later Mrs. Freund
learned from Mattie Freison that Rodriquez was
promoting the Union's cause Then, motivated by her
concern for her patients because, according to her
testimony, "mealtime for psychiatric patients [is] a very
important part of the day and psychiatric patients are
very sensitive to disturbances on the floor " Mrs Freund
accosted Rodriquez on the floor where he was working
and reproved him for speaking to Freison and for being
away from the dining room She told him to report to the
office where, after talking to Dr. Freund, she discharged
Rodriquez. She denied that she told Rodriquez that he
was discharged because he was for the Union. This story
does not ring true. Rodriquez, according to Mrs. Freund,
was suspected of having engaged in serious derelictions
over a period of several months. Nevertheless, no
disciplinary action was taken against him After receiving
information that Rodriquez may have stolen drugs from
the Hospital, Mrs. Freund testified that "I did not
approach him. We sort of like to give an employee a
chance . . . we like to be sure that he is guilty of what we
are going to accuse [him]." Then when she later learned
about Rodriquez' alleged improprieties with nurses the
only action taken against him, according to Mrs Freund,
was that "we were observing him sort of without letting
anyone know we knew about these things " Thus, with
respect to the serious accusations made against Rodriquez
Mrs Freund was willing to act slowly, cautiously, and
only with certainty so that if Rodriquez was innocent he
'Mrs Freund described Rodriquez' discharge twice The version set forth
above is a summary of her testimony given in response to questions asked
her by Employer ' s counsel while presenting the Employer's defense
However, Mrs Freund was questioned by General Counsel as an adverse
witness and as his first witness In response to his questions she gave a
somewhat different version of Rodriquez' discharge According to this
version , Mattie Freison came to her office and told her that Rodriquez had
stopped Freison while Freison was delivering food , asked Freison many
questions about the Union, and why Freison isn ' t joining the Union or
signing up Mrs Freund approached Rodriquez and asked him whether
Freison ' s story was true Mrs Freund was unable to remember Rodriquez'
reply but did remember that Rodriquez admitted he had talked to Freison
"about it " Mrs Freund discharged him then or shortly thereafter She
informed Rodriquez that "he had repeatedly been told not to discuss union
activities while he was taking care of patients , and he had been cautioned
long before , and if they are doing it, this would be cause for dismissal " In
this version Mrs Freund does not refer to any conversation with Dr
Freund
In connection with my resolution of the two conflicting versions of the
incident, I place no reliance upon the testimony of Frank Rogers which
purports to corroborate Rodriquez Frank Rogers ' employment was
terminated on February 21, four days before the incident in question
Therefore, he could not have been present in the Hospital when Mrs
Freund discharged Rodriquez
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not be unfairly penalized. However, in contrast, on
a Sunday afternoon when the Hospital was operating "on
skeleton staff" Rodriquez was peremptorily discharged for
his alleged brief conversation with Mattie Freison about
the latter's voting intentions the next day
I credit Rodriquez' version of the events leading to his
discharge on February 25. I find that he is a more reliable
witness than Mrs. Freund. Furthermore, while Mrs.
Freund's testimony is marked by incongruities and
inconsistencies, Rodriquez description of Mrs Freund's
behavior when she discharged him comports with the
highly emotional and agitated manner Mrs Freund
displayed at the hearing. I find that Rodriquez was
discharged on February 25, 1968, because Mrs Freund
had learned that he was supporting the Union in the
pending election. Accordingly, I further find that the
Employer thereby has violated Section 8(a)(3) and (1) of
the Act
C. The Discharge of Lawrence Brown
Lawrence Brown, who was hired as an orderly in July
1967, was discharged when he reported for work on
Monday, February 26, 1968, the day of the election. The
Employer's explanation is that Brown was not a
satisfactory employee and that he was discharged because
of his unexcused absence from work on the preceding day.
General Counsel contends, however, that Brown was
discharged not for the reason given by the Employer but
because of Mrs. Freund's suspicions concerning his union
sympathies and activities. Although Brown was not active
in promoting the Union's organizational cause, he testified
that he discussed the Union with other employees in the
hospital premises particularly in the locker room and the
dining room. Of more significance is the fact that on
February 21 Brown was called to Mrs Freund's office
where he was accused by her of being "an agent for the
union, double agent . [of] talking about the union on
the floor" and was warned that he would be fired if she
received any further reports about him "as far as union
was concerned "
Brown was not discharged by Mrs. Freund but by Mrs
Auerbach, the assistant executive director of the Hospital.
Mrs. Auerbach testified that Brown worked on the 3 to 11
p.m. shift and was chronically absent from work.
According to Mrs. Auerbach, he would call to advise that
he was going to be late and then would not appear at all
so that on such occasions his department had to operate
short of help She spoke to him about the matter and
following their conversation tried to schedule Brown's
days off to accommodate his convenience. Nevertheless,
Brown continued to remain away from work, particularly
on Sundays. Mrs. Auerbach again spoke to him about his
absenteeism. This time Brown informed her that he had
another job and sometimes he was too tired to go to
work. Mrs. Auerbach advised him that such excuse was
unacceptable About the same time she began to hear
reports that Brown was using more physical restraint than
necessary on patients Mrs. Auerbach spoke to him about
this matter and also about his tendency to be short
tempered with the patients Brown promised to be more
careful The week before he was discharged he again was
absent on a scheduled work day. Mrs Auerbach warned
him that the next time he was absent he would be
discharged. On Sunday, February 25, Brown again failed
to report for work According to Mrs Auerbach, she
received a report from the afternoon supervisor, Mrs.
Frank, that Brown had telephoned to say that he had
overslept and that he would get to work late. The next
morning when Mrs. Auerbach arrived at the hospital she
found a note from Mrs. Frank saying that Brown had not
called back and had not reported for work. Accordingly,
Mrs. Auerbach pulled his timecard thereby discharging
him.'
I credit Mrs Auerbach. As a witness at the hearing she
gave her testimony, in response to questions directed to
her on cross-examination as well as on direct examination,
without equivocation, without embellishment, and with
conviction. Her manner on the witness stand was sincere
and straightforward. I am of the opinion that Mrs.
Auerbach was a truthful and reliable witness.
Furthermore, her testimony is uncontradicted.
Accordingly, despite the suspicions generated by the
transactions at the meeting on February 21 between
Brown and Mrs. Freund, I find that General Counsel has
failed to prove by a preponderance of the evidence that
Brown was discharged for a reason prohibited by the Act.
D. The Discharges of Melvin Gates and Frank
Rogers
Frank Rogers and Melvin Gates were both hired by the
Employer on February 3, 1968 Rogers was assigned to
operate the elevator and Gates was assigned to work in
the kitchen. Their employment terminated on February
21. They testified that several days earlier as they were
walking through the lobby of the hospital from the locker
room Gates asked Rogers whether he was going to vote
for the Union and Rogers answered in the affirmative.
They further testified that Mrs Auerbach then was
standing at the door to her office about 5 feet from them.
General Counsel argues in his brief that there can be no
question that Mrs. Auerbach heard this conversation
because she was a witness at the hearing and did not deny
having heard it. As further evidence that the Employer
knew of their union sympathies General Counsel refers to
the testimony of Gates and Rogers to the effect that as
they were entering the hospital on February 21 to obtain
their final paychecks following their terminations they
overheard a supervisor, Mrs. Chapman, say to Mrs.
Auerbach, "Melvin and Frank are for the union."
According to the Employer both Gates and Rogers
were unsatisfactory employees Gates was discharged
following an insubordinate refusal to work overtime and
'Brown testified that on Sunday, February 25, he called and spoke with
Mrs Freund He told Mrs Freund that he had told Mrs Frank, the
afternoon supervisor, and "she said try to make it in , because they were
short of help " He further testified that "the situation came up where the
person that was driving me had car trouble, and was too late, and I didn't
go in But I had told Mrs Frank that I wouldn't make it, and should I
come in tomorrow, and she said, `yes' " On cross-examination Brown
testified, "I had overslept and the person that was driving me had car
trouble and I told Mrs Frank that I'd try to get in, and she told me to
try " General Counsel contends that the above-quoted testimony should be
interpreted to mean that after Brown discovered that he would not be able
to get to the hospital he telephoned Mrs Frank a second time, informed
her of his predicament and inquired whether he should report for work the
next day to which she replied in the affirmative While I find that Brown's
testimony is less than clear I do not accept General Counsel's resolution of
the ambiguities If Brown had had a second telephone conversation with
Mrs Frank on the Sunday in question and had told her he would not be in
at all that could have been brought out more clearly Certainly, his review
of the event on cross-examination does not even hint at the fact that he
made more than one telephone call to Mrs Frank or that he told her he
would not be in at all
FAIRVIEW HOSPITAL 929
Rogers quit his employment after he had been warned
that if his performance did not improve he also would be
discharged.
Josephine E Oyler, dietary manager of the Hospital,
who was Gates' immediate supervisor, testified about
Gates' derelictions One constant problem arose from the
fact that Rogers repeatedly came into the kitchen and
then he and Gates would begin "fooling around " She
warned Rogers several times to stay out of the kitchen
and to stop annoying Gates but Rogers, nevertheless,
continued to come back She criticized Gates on several
occasions for leaving the kitchen without permission in
order to smoke She also testified to difficulties she had
because of Gates' absence on one occasion and refusal to
work overtime on another
Mrs Auerbach testified that she received several
complaints about Gates from Mrs. Oyler Following an
occasion when Gates had promised to work overtime but
nevertheless left the hospital without permission, she
spoke with him about the occurrence and informed him
that absenteeism was unforgivable. She agreed to give him
another chance after he promised to do better She spoke
with him again at a later time after she had received a
further complaint from Mrs Oyler that Gates was
"goofing off and fooling around with Frank Rogers and
was not in the kitchen " On this occasion Gates again
promised to do better. Lastly, on February 21, Mrs Oyler
reported that she had asked Gates to work overtime and
he at first said he would, but later said he would not Mrs.
Auerbach sent for Gates and asked him whether he would
stay, but he refused She then asked if he would come to
work the next day, which was his scheduled day off. He
also refused to do this After Gates left her office she
discussed his work with Mrs Oyler and decided to
discharge him i° She called his home and left a message
for him to telephone When he called back Mrs. Auerbach
told him that the Employer did not need his services any
longer and that he was discharged.
During her final conversation with Gates the latter
asked her if Rogers was also fired, she said, "No.""
Frank Rogers testified that Gates came to his home
and told him he was discharged He thereupon telephoned
Mrs Auerbach and asked her whether he was fired She
replied, "Not yet." Then according to Rogers, "I asked
her how come I was going to be fired, and then she said
"Gates testified to a somewhat more dramatic version of the event,
leading to his discharge According to Gates, the previous day Mrs Oyler
had asked him to work overtime and he had responded that he was tired
and could not work She reported the incident to Mrs Auerbach who
spoke with him and asked him whether he wanted to work overtime, but
when he told her that he was tired Mrs Auerbach said, "Okay " Then he
continued his testimony , as follows
So the next day when I came back , she [Mrs . Oyler] asked me the same
thing, would I work , and there wasn't anybody off and I said, "No. I
am not going to work."
And she told me the same thing and I said, "I ' ll work."
She said , "If you feel - If I tell you to work , you'll work "
I said , "If you say it like that , I won't work If you are going to tell me
I have to work , I won't work "
Just like that
"Gates testified that Mrs Auerbach telephoned his home and left a
message with his mother that the Employer would not need his services
any more When he returned, he telephoned Mrs Auerbach and inquired
why he was discharged She gave him no reason He then asked whether he
could go to the hospital and pick up his check She said yes , and she
added , " If your friend , Frank , doesn ' t do any better , we are going to fire
him, too " To the extent that they conflict, I credit Mrs Auerbach's
version of the event rather than Gates'
that my work is not good. Then I asked her who had told
her that, and she told me my supervisor, Mrs Chapman
had told her, which I knew was not true. . Then I told
her I'd be in to pick up my check."
According to Mrs. Auerbach, whom I credit, Rogers
telephoned her shortly after her conversation with Gates.
He mentioned that he understood that Gates was fired
and inquired whether he too was fired She answered,
"No" But, she told him, "you are still on your three
months' probation I would expect now that Melvin is
gone you can settle down and work well." He
responded,"Well, I quit."
I credit the Employer's versions of the circumstances
which led to the terminations of Gates and Rogers. I find
that both employees were generally unsatisfactory, that
Gates was discharged for his insubordinate refusal to work
overtime and that Rogers voluntarily quit his employment
E The Discharge of Clifford Williams
Clifford Williams began working for the Hospital in
1964 About June 27, 1968, while he was on his vacation,
he was notified by Mr Kanter, the building
superintendent, by telephone that he was discharged No
reason was given to Williams for his discharge Williams
testified that he was an elevator operator at the Hospital
and during the period of the organizational campaign the
topic of the Union was discussed widely among the
employees. According to Williams, "it caused people to
dislike people. And some of them wasn't speaking to one
another. It was a terrible mess around there." Williams
testified that there was a meeting of the employees in the
maintenance department and that Mrs Freund barred him
from attending the meeting. According to Williams, she
accused him of being an instigator of the Union And told
him that she should have fired him 2 years ago
According to Williams' further testimony Mrs Freund
asked him, among others, who had attended a union
meeting at the Holiday Inn and she remarked to him that
she knew all the people who had gone to the meeting He
further testified that on the day of the election he was
relieved from his duties as operator of the elevator by
Mrs Freund who said to him, "I don't want you on the
elevator, because you are in favor of the Union."
Mrs Freund testified that Williams' work performance
had been bad for at least 6 to 8 months prior to his
discharge One of his offenses was to take food from the
patients' food trays which was a violation of Board of
Health rules He was repeatedly warned to stop this
practice and also to stop bringing sandwiches into the
elevator. But he could not stop eating Another practice
he engaged in of which the Employer disapproved was to
leave the elevator and listen to ball games in the
emergency room so that he did not respond to elevator
calls. He was warned many times about this fault Still
another offense of which he was guilty was to discuss
medical problems with the families of patients. This
tended to cause difficulties In addition, he carried
patients from floor to floor without first obtaining the
clearance of the nurses in charge According to Mrs.
Freund, while Williams was on vacation in June 1968, Mr
Kanter, the building superintendent, advised her that he
had hired a vacation replacement for Williams and found
the replacement very capable and he wanted the new man
to be Williams' permanent replacement Mrs Freund
approved the change.
Williams did not deny that while he was employed by
the Hospital he had engaged in the offenses described by
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mrs. Freund. He was discharged 4 months after the
election (objections to the election were pending at the
time of his discharge) There is only minimal causal
connection between the Employer's incriminatory conduct
involving Williams which took place prior to February 21
and Williams' discharge On the other hand, the
Employer's reasons for Williams' discharge are plausible.
Although the record gives rise to suspicions that Williams
may have been discharged because of his suspected union
activities, particularly as Kanter was not called as a
witness to corroborate Mrs. Freund's testimony,
nevertheless, I find that General Counsel has failed to
prove by a preponderance of the evidence that Williams
was discharged for his union sympathies or activities
W. THE REPRESENTATION PROCEEDINGS
A The Objections
I have found that in the 5 days between February 21
and the day of the election, the Employer engaged in
various conduct constituting unfair labor practices. The
nature of the conduct, which is described above, was such
as to have had a coercive impact on the Hospital's
employees and tended to prevent them from making a
rational election decision
There is a further matter raised by the objections to the
election which has not been considered in connection with
the alleged unfair labor practices One of the objections is
that "[o]n the day of the election herein the Employer
harassed and interfered with the duties of The National
Labor Relations Board field examiner assigned to conduct
the election herein in the presence of employees eligible to
vote." With respect to his objection General Counsel in
his brief contends that "[o]n the day of the election Mrs.
Freund conducted herself in such a manner so as to create
a chaotic and confused situation in the polling place "
The election was divided into two voting periods, one in
the morning and the other in the afternoon Apparently
the Board agent had removed the ballot box from the
voting area during the recess When he returned with the
ballot box Mrs. Freund voiced loud objections to the fact
that the box had been taken out of the voting area She
also acted to delay the balloting during the afternoon
voting period According to Mrs. Freund, "There was a
delay, but only because I asked [the Board agent] if he
would wait until I contacted our attorneys We did not
prevent him from going up. We did not try to stop the
election. I asked him very politely if he minded if I got in
touch with my attorney. He was rather impatient and
didn't like it." The balloting was delayed by
approximately a half hour. In addition , Mrs. Freund
prevented Lawrence C Brown, who was discharged when
he reported for work on the day of the election, from
going to the polling area to vote for approximately 1-1/2
hours At one point while he was waiting Brown went for
a drink. When Mrs. Freund noticed his absence she began
screaming that he should be found and located.
I agree that Mrs Freund's conduct during the election
period constituted an interference of such nature as
warrants setting aside the election. From the point of view
of the sanctity and security of the election process and of
providing an environment where the employees would be
able to cast their vote free from adverse extraneous
influences the premises of the Employer is less than an
ideal place in which to conduct an election. However, it is
not uncommon for the Board to do so in order to
accommodate the convenience of both the employer and
the employees. As the critical stage of a Board election is
the moment when the employee must make a choice and
mark his ballot it is especially important that the polling
area be as free as reasonably may be possible from
extraneous influence which might distract, coerce, or
otherwise interfere with the voter casting a free ballot.
The Board has long recognized that special safeguards are
justified to ensure that the election will be conducted in a
manner which would not generate employees' fears,
confusion, or uncertainty Thus, it is the Board's policy to
prohibit supervisory personnel or nonemployee union
officials from acting as official observers at an election,' 2
and employers and unions are both prohibited from
making election speeches to employees on company time
during the 24 hours preceding the election." Where the
balloting is held in the premises of the Employer there is a
special burden upon all involved to ensure that an
impression will not be created that somehow the balloting
is subject to the Employer's influence, or that the secrecy
of the ballot will not be preserved and also to ensure that
nothing untoward occurs that might upset or affect the
employees so as to impair their ability to make a
reasoned, uncoerced choice. In this case Mrs. Freund's
conduct, described above, created a sufficient disturbance
and interruption of the election proceeding as to have had
a tendency to create fear, confusion, and uncertainty in
the minds of some and thus tended to interfere with the
employees' complete freedom of choice
Accordingly, I recommend that the election which was
conducted among the employees of the Hospital on
February 26 in the unit described above be set aside
B The Challenged Ballots
The ballots of five persons who appeared to vote at the
election were challenged Four of these ballots were cast
by Louis Rodriquez, Frank Rogers, Lawrence Brown, and
Melvin Gates, and were challenged on the ground that
their names were not on the eligibility list. As Brown,
Gates and Rogers had lawfully been discharged prior to
the election, the challenges to their ballots should be
sustained On the other hand, as I have found that Louis
Rodriquez was discriminatorily discharged and as I shall
recommend that he be reinstated to his former position, I
shall further recommend that the challenge to his ballot
should be overruled.
The final challenge concerns that ballot of Wilma
Mullins. According to the Regional Director's report she
"was challenged by the Board agent on the ground that
she is a licensed practical nurse, a classification excluded
from the voting unit " The unit here was agreed to by the
stipulation of the parties and was approved by the
Regional Director of the Board. It appears to be a unit
composed of all employees of the Hospital' ° with the
normal exclusions except excluded also are licensed
practical nurses Thus, excluded from the unit are clerical
employees, guards, and supervisors. These categories are
conventionally excluded from an overall bargaining unit
In addition, there are excluded professional employees and
"Paragon Rubber Co , 7 NLRB 965, 966, Union Switch & Signal
Company, 76 NLRB 205, 211, Southern Steamship Company v N L R B,
120 F 2d 505, 507 (C A 3), reversed on other grounds 316 U S 31 , Serens
Moser Co, 106 NLRB 1388, 1389
"Peerless Plywood Company, 107 NLRB 427, 429; NLRB v
Shirlington Supermarket , 224 F 2d 649, 651 (C A 4 ), cert denied 350
U S 914
"Inspection of the included classifications indicates on its face that the
voting unit is neither a craft unit nor a departmental unit and , so far as the
FAIRVIEW HOSPITAL
registered nurses. This is a redundancy because registered
nurses are professional employees. Registered nurses, as
well as other professional employees, are normally
excluded from an overall unit of nonprofessional
employees of proprietary hospitals.15 The final exclusion
from the stipulated unit is the category of licensed
practical nurses. A licensed practical nurse in the State of
Illinios clearly is not a professional employee within the
meaning of the National Labor Relations Act One of the
elements of the Act's definition of "professional
employee" is that the employee shall be engaged in work
"requiring knowledge of an advanced type in a field of
science or learning customarily acquired by a prolonged
course of specialized intellectual instruction and study in
an institution of higher learning or a hospital, as
distinquished from a general academic education or from
an apprenticeship or from training in the performance of
routine mental, manual, or physical processes." However,
the academic requirements for a license as a practical
nurse in Illinois are merely the completion of a 2-year
course of study in a high school, if the applicant is more
than 18 years of age but less than 25 years of age, or the
completion of 8 grades of grammar or primary school, if
the applicant is more than 25 years of age, plus, in either
case, the completion of a program of study of at least 9
months in an approved school of practical nursing 16 These
qualifications scarcely approach the test described in the
Act's definition of a professional employee
The record does not explain why the parties in this case
by their stipulation excluded licensed practical nurses from
the unit " As there is no evidence that licensed practical
nurses are either professional employees or supervisors the
parties may have excluded that classification for reasons
apart from those which the Board normally apply in
determining exclusions from overall units."
Wilma Mullins is not a licensed practical nurse In his
brief the General Counsel suggests that the challenge to
the ballot cast by Wilma Mullins should be sustained
because the duties she performs " are so similar to those
performed by a [licensed practical nurse] or a registered
nurse, that even though she did not have her license at the
time of the election, she should be excluded from the
unit " The evidence in the case does not sustain this
contention. Moreover, as a licensed practical nurse (who is
not a supervisor) normally would be included, rather than
excluded, from a unit such as is involved in this case, it
would be aggravating the distortion of normal Board
practices regarding unit placements to exclude additional
classifications merely because their work bears some
resemblance to the duties of a licensed practical nurse.
evidence before me shows, it includes all employees of the Hospital except
for the specifically excluded categories
"Butte Medical Properties, dlbla Medical Center Hospital, 168 NLRB
No 52 See also Consolidated Vultee Aircraft Corporation, 108 NLRB
591, 592
"91 III Stat Ann , Secs 35 40 and 35 40-1
"See Somerset Manor, Inc, 170 NLRB No 185
"In University Nursing Home, Inc, 168 NLRB No. 53, the Board
specifically found that a licensed practical nurse was not a professional
employee However, in that case the Board excluded an employee who was
classified as a licensed practical nurse from an overall unit because the
evidence showed that she was a supervisor See Butte Medical Properties,
supra , footnote 12 See also Job Descriptions & Organizational Analysis
for Hospitals and Related Health Services , Department of Labor (1952),
pp 364-365
931
Furthermore, Mrs. Freund, Mrs. Auerbach, and Mrs.
Mullins all testified that Mrs Mullins was employed as a
nursing aide and not in any other category At the time of
the election Mrs Mullins had graduated from a school of
practical nursing and had served the requisite period of
time to complete her eligibility for her examination as a
licensed practical nurse. However, she had not yet taken
and passed the qualifying examination The fact that she
may have sometimes called herself a practical nurse and
that others, including perhaps even members of
management of the Hospital, may have referred to her as
a practical nurse does not establish the existence of such a
classification in the Hospital." Accordingly, as I find that
Wilma Mullins was not a licensed practical nurse at the
time of the election I shall recommend that the challenge
to her ballot shall be overruled 20 ,
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Employer set forth in section III,
above, occurring in connection with the Employer's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V1. THE REMEDY
Having found that the Employer has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Employer unlawfully discharged
Louis Rodriquez on February 25, 1968, I shall
recommend that the Employer offer him immediate and
full reinstatement to his former or to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of earnings he may have suffered by reason of the
discrimination against him by payment to him of a sum of
money equal to that which he normally would have earned
from the aforesaid date of his discharge to the date of the
"Not only Mrs Freund, Mrs Auerbach and Mrs Mullins testified that
the Hospital did not employ practical nurses as a separate classification,
but Lawrence Brown also testified to the same effect
"Regarding the issue of challenged ballots the Regional Director ' s report
shows "The ballots of Frank Rogers , Lawrence Brown , Melvin Gates, and
Louis Rodriquez were challenged by the Board agent on the grounds that
their names were not on the eligibility list The ballot of Wilma Mullins
was challenged by the Board agent on the ground that she is a licensed
practical nurse , a classification excluded from the voting unit Conflicting
evidence as to her status has been presented " On the first day of the
hearing the Trial Examiner excluded testimony which General Counsel and
the Union sought to present in order to prove that Wilma Mullins was a
supervisor The reason he gave for such ruling was that the issue regarding
Wilma Mullins was limited by the Regional Director ' s Report to whether
or not she was a licensed practical nurse However, at the outset of the
next day' s hearing the Trial Examiner announced that, upon reflection, he
deemed his earlier ruling was incorrect and therefore would permit
evidence to be adduced regarding Mrs Mullins ' status as a supervisor
Upon review of all the evidence adduced at the hearing regarding Mrs
Mullins' duties and authority , I find that there is no adequate proof
demonstrating that she is a supervisor within the meaning of the Act. In
his brief General Counsel suggests that Mullins could be excluded from the
unit under Sec 2(12Xb) of the Act I find no merit in this suggestion
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer's offer of reinstatement less his net earnings
during such period The backpay provided herein shall be
computed on the basis of calendar quarters, in accordance
with the method prescribed in F W Woolworth
Company, 90 NLRB 289. Interest at the rate of 6 percent
per annum shall be added to such net backpay and shall
be computed in the manner set forth in Isis Plumbing &
Heating Co, 138 NLRB 716.
.Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
1 By threatening employees with a reduction in their
wages and the loss of other employment benefits should
they select the Union as their collective-bargaining
representative, by interrogating employees concerning
their union sympathies and attitudes and the union
sympathies and attitudes of other employees and by
threatening employees with discharge should they support
the Union or should the Union win the pending election,
the Employer has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed to them
by Section 7 of the Act, and has thereby engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
2 By discriminatorily discharging Louis Rodriquez,
thereby discouraging membership in the Union, the
Employer has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
4 The Employer has not engaged in any violations of
the Act by reason of conduct alleged in the complaint in
Case 13-CA-8303 to constitute unfair labor practices
except insofar as such conduct hereinabove has been found
to violate Section 8(a)(1) or (3) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, and
pursuant to Section 10(c) of the Act, I hereby recommend
that Fairview Hospital, its officers , agents, successors, and
assigns, shall
1 Cease and desist from
(a) Discouraging membership in Hospital Employees
Labor Program , Local 743, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of
America , and Local 73, Building Service Employees
International Union , AFL-CIO, Jointly, or any other
labor organization , by discharging or by otherwise
discriminating in regard to the hire , tenure of
employment , or other term or condition of employment of
any of its employees
(b) Threatening its employees with loss of employment
benefits if they should select or designate the above-named
Union, or any other labor organization, as their
collective - bargaining representative
(c) Expressly or impliedly threatening its employees
with a reduction in wages if they should select or
designate the above -named Union, or any other labor
organization , as their collective - bargaining representative
(d) Interrogating employees about their union
sympathies or attitudes or about the union sympathies or
attitudes of other employees.
(e) Threatening its employees with discharge or other
reprisals if they should support the above-named Union,
or any other labor organization, as their
collective-bargaining representative
(f) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist the above-named Union, or any other labor
organization, to bargain collectively through
representatives of their own choosing and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain
from any and all such activities
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act
(a) Offer to Louis Rodriquez immediate and full
reinstatement to his former or to a substantially
equivalent position, without prejudice to his seniority and
other rights and privileges, and make him whole for any
loss of earnings he may have suffered by reason of the
unlawful discrimination against him in the manner set
forth in the section of this Decision entitled "The
Remedy "
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time
cards, personnel records and reports, and all records
relevant to a determination to the amount of backpay due
to Louis Rodriquez
(c) Notify Louis Rodriquez if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces
(d) Post at its hospital in Chicago, Illinois, copies of the
attached notice marked "Appendix "21 Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by its authorized
representative, shall be posted by the Employer
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by the
Employer to insure that said notices are not altered,
defaced, or covered by any other material
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps the Employer has taken to comply herewith 22
IT IS FURTHER RECOMMENDED that the complaint in
Case 13-CA-8303 be dismissed insofar as it alleges that
Fairview Hospital has engaged in any unfair labor
practices other than the conduct heremabove specifically
found to have constituted violations of Section 8(a)(1) or
(3) of the Act
IT IS ALSO RECOMMENDED that with respect to Case
13-RC-11360 the challenges to the ballots of Frank
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
FAIRVIEW HOSPITAL 933
Rogers, Lawrence Brown, and Melvin Gates be sustained
and that the challenges to the ballots of Louis Rodriquez
and Wilma Mullins be overruled and that their ballots be
opened and counted
IT IS FURTHER RECOMMENDED that in the event that the
revised tally of ballots in Case 13-RC-11360 shows that
the Union has received a majority of the valid ballots cast
a Certification of Representative shall issue However, in
the event that the revised tally of ballots shows that the
Union has not received a majority of the valid ballots
cast, the election conducted on February 26, 1968, shall be
set aside and a second election shall be directed in
accordance with the rules, regulations and practices of the
Board
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that.
WE WILL NOT discourage membership in Hospital
Employees Labor Program, Local 743, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America and Local 73, Building Service
Employees International Union, AFL-CIO, Jointly, or
any other labor organization, by discharging or
otherwise discriminating against any of our employees
in regard to their hire, tenure of their employment, or
any term or condition of their employment
WE WILL NOT threaten any of our employees with
discharge or with other reprisals if they should join,
assist, or support the above-named Union, or any other
labor organization
WE WILL NOT threaten any of our employees with a
reduction in their wages or with loss of other
employment benefits or with discharge if they should
select or designate the above-named Union, or any
other labor organization, as their collective-bargaining
representative.
WE WILL NOT question any of our employees about
their union sympathies or attitudes or about the union
sympathies or attitudes of other employees
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor
organizations, to join or assist the above-named Union,
or any other labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
WE WILL offer Louis Rodriquez reinstatement to his
former or to a substantially equivalent. position, without
prejudice to his seniority and other rights and
privileges, and WE WILL make him whole for any loss of
earnings he may have suffered by reason of our
unlawful discrimination against him
WE WILL notify Louis Rodriquez if presently serving
in the Armed Forces of the United States of his right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after
discharge from the Armed Forces
FAIRVIEW HOSPITAL
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 881 U S.
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
312-828-7572