Hospital of the Good Samaritan

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 794 (N.L.R.B. 1994)

794
315 NLRB No. 116
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On April 27, 1994, Administrative Law Judge Gerald A.
Wacknov issued the attached decision. The Respondent and the
Union filed exceptions and supporting briefs. The Respondent filed
an answering brief to the Union’s exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 There are no exceptions to the judge’s recommended dismissal
of several complaint allegations of 8(a)(1) violations.
The Petitioner has excepted to the judge’s failure to sustain objec-
tions to the Respondent’s campaign propaganda and to the use of
Relief House Supervisor Ronald Masson as an election observer. We
find no need to pass on these objections in light of our adoption of
the judge’s conclusion that the election should be set aside based on
the unfair labor practices committed by the Respondent during the
critical preelection period.
4 We will modify par. 1(b) of the judge’s recommended Order to
additionally reflect his finding that the Respondent violated Sec.
8(a)(1) by telling employees that the unit-based educator program
was being discontinued because of the Union.
The Respondent asserts in exceptions that changed circumstances
in its operations make inappropriate the judge’s recommended af-
firmative remedy requiring restoration of the unit-based educator
program. In support of this argument, the Respondent offers the affi-
davit of one of its officials. We reject the affidavit, which is not a
part of the record in these proceedings. We shall, however, modify
the recommended Order to provide explicitly that reestablishment of
the unit-based educator program will be required unless the Re-
spondent establishes in the compliance stage of this proceeding,
based on evidence unavailable at the time of the unfair labor practice
hearing, that this remedy is inappropriate. We Can, Inc., 315 NLRB
170, 174–177 (1994).
The Hospital of the Good Samaritan and American
Federation of Nurses, Local 535, Service Em-
ployees International Union, AFL–CIO, CLC.
Cases 31–CA–19912, 31–CA–19961, and 31–RC–
7050
December 16, 1994
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The issues in this proceeding are whether the judge
correctly found that the Respondent: violated Section
8(a)(1) of the Act on several occasions; violated Sec-
tion 8(a)(3) of the Act by eliminating a desirable unit-
based educator program because of the Union; and en-
gaged in objectionable preelection conduct which inter-
fered with the results of the election.1 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,2 and conclusions,3 to adopt
the recommended Order as modified,4 to set aside the
results of the election affected by the Respondent’s
conduct, and to direct a second election.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, The
Hospital of the Good Samaritan, Los Angeles, Califor-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Discontinuing the established and functioning
unit-based educator program because of the advent of
the Union, and telling employees that the program has
been discontinued because of the Union.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Reestablish the unit-based educator program
and resume its functioning consistent with the prior
implementation of the program, unless it can show at
compliance, on the basis of evidence that was not
available at the time of the unfair labor practice hear-
ing, that reestablishment is no longer appropriate.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT restrict employees’ rights to engage
in union activity by revoking the practice of permitting
nurses to visit each other’s units during breaktime.
WE WILL NOT interfere with our employees’ right to
engage in union activity by searching nurses’ bags or
belongings for union material when they enter work, or
by engaging in surveillance of their union activity out-
side the hospital, or by warning them that they will be
reprimanded for bringing union materials into the hos-
pital.
795HOSPITAL OF THE GOOD SAMARITAN
1 All dates or time periods hereinafter are within 1993 unless oth-
erwise specified.
WE WILL NOT advise employees that we are dis-
continuing the unit-based-educator program because of
the Union.
WE WILL NOT discontinue the unit-based educator
program because of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed them by Section 7 of the
Act.
WE WILL reestablish the unit-based educator pro-
gram and implement it in the manner previously for-
mulated, unless we can show in compliance proceed-
ings before the Board, on the basis of evidence that
was not available at the time of the unfair labor prac-
tices hearing, that reestablishment is no longer appro-
priate.
THE HOSPITAL OF THE GOOD SAMARITAN
Ann Reid Cronin, Esq., for the General Counsel.
Robert M. Stone, Esq. and Douglas R. Hart, Esq. (Musick,
Peeler & Garrett), of Los Angeles, California, for the Re-
spondent.
James Rutkowski, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of Los Angeles, California, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing in this matter was held before me
in Los Angeles, California, on October 19, 20, and 21, and
November 8, 9, 10, and 18, 1993. The charge in Case 31–
CA–19912 was filed on April 29, 1993, by the American
Federation of Nurses, Local 535, Service Employees Inter-
national Union, AFL–CIO, CLC (the Union), and was
amended on June 28, 1993. The charge in Case 31–CA–
19961 was filed by the Union on June 1, 1993. On July 29,
1993, the Regional Director for Region 31 of the National
Labor Relations Board (the Board) issued a consolidated
complaint and notice of hearing in both captioned cases, al-
leging violations by the Hospital of the Good Samaritan (the
Respondent or the hospital) of Section 8(a)(1), (3), and (4)
of the National Labor Relations Act (the Act). The complaint
was amended at the hearing. In its duly filed answer to the
consolidated complaint, the Respondent denies that it has
committed the unfair labor practices as alleged.
On February 25, 1993, the Union filed a petition in Case
31–RC–7050 requesting an election in a unit consisting of all
full-time and regular part-time registered nurses employed by
the Respondent here. A representation election was con-
ducted on May 6 and 7, 1993. Thereafter, the Union filed
timely objections to the election. On August 24, 1993, a re-
vised tally of ballots was issued, which showed that of ap-
proximately 575 eligible voters, 554 ballots were cast, of
which 277 were cast against the Union, 236 were cast for the
Union, 41 ballots remained challenged, and 1 ballot was
void. Thereafter, on September 2, 1993, the Acting Regional
Director determined that certain objections filed by the
Union raised substantial and material factual and legal issues,
and consolidated the election objection with the aforemen-
tioned unfair labor practice consolidated complaint for the
purposes of hearing, ruling, and decision by a duly des-
ignated administrative law judge; and that thereafter Case
31–RC–7050 be transferred to and continued before the
Board in Washington, D.C.
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the General Counsel,
counsel for the Respondent, and counsel for the Union. On
the entire record, and based on my observation of the wit-
nesses and consideration of the briefs submitted, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a California nonprofit corporation en-
gaged in the operation of an acute care hospital and facility
located in Los Angeles, California. In the course and conduct
of its business operations the Respondent annually purchases
and receives goods and materials valued in excess of $50,000
directly from suppliers located outside the State of California
and derives gross revenues in excess of $250,000. It is ad-
mitted, and I find, that the Respondent is now, and at all
times material has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and has been a health care institution within the meaning of
Section 2(14) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is, and at all
times material has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this proceeding are whether the Re-
spondent has engaged in various violations of Section
8(a)(1), (3), and (4) of the Act, and whether it has engaged
in objectionable election practices and misconduct sufficient
to require that the previously conducted election be set aside
and another election directed.
B. The Facts
1. Background facts
The Respondent operates a large metropolitan acute or ter-
tiary care hospital in Los Angeles, California, and employs
approximately 1100 employees, including over 500 full- and
part-time registered nurses who comprise the appropriate bar-
gaining unit here. The Union commenced an organizing cam-
paign among the nurses in about January 19931 and filed a
petition for election with the Board on February 25.
796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The union button, which many nurses wore on their clothing, is
a large red button, about 2 inches in diameter, with the following
wording in large letters: ‘‘Vote Yes for Quality Care—AFN 535.’’
3 This incident is not alleged as a violation of the Act.
4 The Respondent called no witnesses to corroborate the testimony
of Donevant in this regard.
2. February 25 warning to Nacorda
At about 1 p.m. on February 25, a group of about 25
nurses went to the executive offices of Dr. Mirion Bowers,
the Respondent’s president and chief executive officer, for
the purpose of requesting recognition. In Bowers’ absence,
they spoke with Margaret Vosburgh, vice president for pa-
tient care services, who was in charge of some nine depart-
ments or administrative units, including nursing. Among the
nurses in this group who presented Vosburgh with a petition
or letter requesting recognition was Sussette Nacorda, a reg-
istered nurse in the coronary care unit (CCU).
Nacorda, employed by the hospital since 1983, had been
wearing a union button on her uniform for at least several
days prior to February 25.2 Nacorda testified that she re-
turned to her coronary care unit (CCU) shortly after the pres-
entation of the petition to Vosburgh. Thereupon, the sec-
retary in CCU advised the CCU clinical director, Evelyn
Donevant, that Donevant had been summoned to attend an
emergency meeting. Donevant returned from the meeting
about an hour and a half later, and said that she wanted to
have a little talk with Nacorda. She brought Nacorda into a
small utility room, and said that Nacorda should tell her
friends from CSU (cardiothoracic surgical unit) to stop com-
ing to see her in CCU, and that if they continued to do so
both Nacorda and her friends could be in a lot of trouble.
Donevant went on to say, ‘‘And if they don’t stop coming,
we could be terminated and the Union can’t do anything for
us, to protect us.’’
Nacorda replied that her friends from CSU were on their
breaks and were not doing anything improper; rather, they
were just stopping by to see if Nacorda could go on a break
with them. Donevant said that she just didn’t want Nacorda
to get into trouble with her friends. That evening, Nacorda
phoned four of her friends from CSU, all registered nurses,
and told them that they would have to stop coming to CCU
on their breaks because Nacorda could be in trouble if she
was found talking to them.
The incidents that precipitated this discussion had occurred
on Monday, February 22, and Wednesday, February 24. On
Monday afternoon, two CSU nurses stopped by Nacorda’s
unit and waited for her in the hallway outside a patient’s
room for 4 or 5 minutes to see if Nacorda had time to take
a break with them. Both nurses, as well as Nacorda, were
wearing union buttons. Nacorda was expecting them and it
had been prearranged that they would try to take their breaks
together that afternoon and discuss the Union. They left after
Nacorda told them that she would be unable to take a break
with them as she was busy with a patient. When they left,
Nacorda overheard Donevant ask the charge or resource
nurse, who is in charge of the unit in Donevant’s absence,
why the CSU nurses were there. Donevant, after being told
that the nurses were not there on hospital business, said that
she knew they were there ‘‘because of the Union.’’ However,
Donevant did not say anything about this to Nacorda.
On February 24, at about the same time in the afternoon,
a similar incident occurred. Again two nurses from CSU,
who were wearing union buttons and had prearranged to take
a break with Nacorda for the purpose of discussing the
Union, waited for Nacorda in the CCU kitchen for several
minutes; again, as CCU is customarily very busy in the after-
noon, Nacorda was attending to a patient and was unable to
take a break with them. Donevant, who was present, did not
say anything to Nacorda about this visit from the nurses.
Nacorda testified that prior to February 25, Donevant had
never criticized or counseled her when nurses from other
units would come to CCU and wait to see if she was avail-
able to take a break with them. It was the practice, according
to Nacorda, for nurses from other units to drop by in the
afternoon to say ‘‘hi’’ or to take a short break in the CCU
kitchen or lounge, or, in the event Nacorda had time for a
longer break, to leave the unit and go to the cafeteria. Simi-
larly, Nacorda would sometimes go to see her friends in
other units during her break.
Gles Gardoce-Padeo has been a registered nurse in CCU
since 1988. Donevant was her clinical director. Gardoce-
Padeo testified that she was counseled by Donevant on the
day Donevant saw her talking in CCU with two nurses from
CSU. Donevant told her that she did not want her to be in
trouble, and that she and her friends should not discuss
‘‘things’’ in the CCU. Garduce-Padeo replied that she and
her friends had not been ‘‘discussing’’ anything, but had
merely been talking. Gardoce-Padeo did not recall the date
when she was counseled by Donevant.3
Gardoce-Padeo corroborated the testimony of Nacorda re-
garding the practice of permitting nurses from other units
who were on break to enter the CCU unit and wait for CCU
nurses to go on break with them, or to visit with CCU nurses
for a short time in the CCU hallway or lounge in the event
they did not have time to take the allotted 15-minute break.
Donevant testified that she became aware that the Union
had filed a representation petition after being so advised dur-
ing a discussion in the hospital’s board room on the after-
noon of February 25.
Donevant recalled that she counseled Nacorda and
Gardoce-Padeo about ‘‘traffic control within the unit’’ on
two successive days, namely, February 23 and 24, respec-
tively, and denies that she counseled Nacorda on February
25, the day the representation petition was filed. Her recol-
lection of these events was assisted by assignment sheet
records which show that the only day Gardoce-Padeo worked
in CCU that week was on February 24, and she recalled that
she counseled Nacorda the day before she counseled
Gardoce-Padeo; thus, she deduced that Nacorda’s counseling
must have occurred on February 23. The counseling was
verbal only, and she did not make a memorandum of it.
CCU is a critical care unit and customarily there is one
nurse assigned to one or two patients. Donevant testified that
she told Nacorda that nurses who are not involved in patient
care should not be in the unit, and that socializing and per-
sonal business should be conducted during break or lunch
time or off duty hours. This, according to Donevant, was the
established policy.4 Donevant denies that she said anything
about the Union to Nacorda during the counseling. Nor did
she mention the possibility of termination, as this was ‘‘a
simple verbal counseling’’ and ‘‘it would have been very in-
appropriate to have mentioned termination.’’ Further, she did
797HOSPITAL OF THE GOOD SAMARITAN
5 The regular workweek for all of the full-time nurses at the hos-
pital consisted of three 12-hour days.
6 While the record does not show what paper Vosburgh may have
been referring to, a Decision and Direction of Election was issued
by the Regional Director on April 9.
not observe that Nacorda was wearing a union button prior
to the time she was counseled.
3. Abolishment of ‘‘unit-based educator’’ positions
Jil Lima has been a registered nurse in the neonatal inten-
sive care unit (NICU) since 1988. Her immediate supervisor
is Sally McGann, the clinical director of that unit. From the
outset of the union organizational campaign, Lima was an
outspoken supporter of the Union and advised Clinical Direc-
tor McGann of her opinion that, collectively, the nurses
would be more powerful with union representation. She wore
a union button at work, and was among the 25 nurses who
presented the petition or request for recognition to Vosburgh
on February 25. In addition, she testified in support of the
Union’s position in a Board representation hearing in March.
The Respondent maintains a ‘‘communications book’’ in
each unit which contains current memoranda or notices for
the unit personnel. The nurses are required to read the mate-
rial in the communications book. In January, the Respondent
placed a memorandum in this book announcing that new
hospital-wide ‘‘unit-based educator’’ positions were being
created. The Respondent’s continuing education program of
updating the knowledge and skills of the nurses, and orient-
ing new personnel within the units, had been administered by
Melody Davidson, the Respondent’s director of education; up
to this point, however, this educational process had appar-
ently been conducted sporadically or within only certain
units. The new positions of unit-based educator would be
filled by nurses within each unit, who would work 1 day a
week as educator for the unit, and would care for patients
for the remainder of the workweek.5
Lima was interested in applying for the unit-based educa-
tor position for her unit and obtained an application form
from Clinical Director McGann. Two other nurses from her
unit also applied. In late January or early February, Lima
was interviewed for the position by both Davidson and
McGann, and during the interviews expressed her thoughts
regarding what she would like to attempt to accomplish if se-
lected as her unit’s unit-based educator. Sometime in March,
McGann told Lima that she and Sarah Currie, another appli-
cant, would ‘‘split’’ the position within their unit.
Lima testified that on April 1, she and Currie attended an
8-hour training session along with approximately 20 to 30
other nurses who had been selected to become unit-based
educators in their respective units. The training, conducted
by Director of Education Davidson, included theories of
adult learning principles and methods for developing assess-
ment tools for educational needs that would be individualized
for each unit so that the format of education and instruction
could be tailored to the specific needs of the unit personnel.
Course material was distributed to all the attendees, with a
cover sheet bearing the heading ‘‘Unit-Based Educator Ori-
entation.’’ Davidson said that the nurses would immediately
begin functioning in their educator positions, and gave them
an assignment to develop the aforementioned assessment tool
for their respective units. Another meeting was scheduled for
the following month.
After conferring with and receiving permission from
McGann, a particular day, denominated as ‘‘education day,’’
was set aside on the weekly schedule for Lima and Currie
to work on the development of the educator position within
their unit. On education day, Lima and/or Currie, who were
to ‘‘split’’ the position, would not perform their patient care
duties. On April 6, a scheduled education day, Lima and
Currie were working together in a conference room to pre-
pare materials and discuss the method by which the educator
position would be divided between them. After a while they
went to the cafeteria for a break. Peggy Vosburgh, vice
president for patient care services, who had been instrumen-
tal in promoting the concept of unit-based educator, hap-
pened to see them in the cafeteria and asked Lima, who was
dressed in street clothes and was wearing a lab coat with a
union button attached, who she was and what she was doing
in the hospital. Lima told her that they were developing an
assessment tool for the unit-based educator position in NICU,
and she and Vosburgh then engaged in a short discussion of
the assessment tool. During the conversation, Lima observed
that Vosburgh was staring at her union button. Then Lima
and Currie returned to the conference room to continue their
work.
An hour or so later, McGann came by the conference
room and said that she had just received an e-mail on her
computer advising her that the unit-based educator positions
were being placed on hold. McGann also said that she
thought it was because of the union activity in the hospital.
About a week later Vosburgh held a meeting of the nurses
who had been selected as unit-based educators. About 10 or
12 nurses were present at the meeting that Lima attended.
Davidson was also at the meeting. Vosburgh, according to
Lima, referred to some paper she had in front of her and said
that the hospital could not go through with the educator posi-
tions because there had been ‘‘a charge from the NLRB
against a director.’’ Lima and another nurse asked to see the
paper and Vosburgh said she could not show it to them.6
Vosburgh said that the National Labor Relations Board was
very partial toward the Union, and Lima asked how a gov-
ernmental agency would be permitted to show partiality.
Vosburgh simply replied that Lima should educate herself.
Since that time the unit-based educator program has been re-
scinded and has not been functional.
According to Lima, the unit-based educator positions
would not immediately entitle the nurses in those positions
to additional compensation. However, the fact that the nurses
effectively occupied those positions would be a favorable
component of future evaluations.
Clinical Director McGann testified that she first heard
about the position of unit-based educator from Vosburgh and
Davidson at a supervisors’ meeting in January. The clinical
directors were instructed to ascertain how many such edu-
cators they needed, and to so advise Davidson. McGann then
placed a memorandum regarding the position in the commu-
nications book, and requested that nurses contact her if they
were interested in applying. She then interviewed the appli-
cants and referred them to Davidson. Later, Lima and Currie,
who had been selected for the position from McGann’s unit,
attended a class for this purpose conducted by Davidson.
Thereafter, McGann received an e-mail notifying her that the
798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unit-based educator position was being ‘‘placed on hold.’’
On contacting Vosburgh about the matter, Vosburgh told her
two things: that Davidson had not been given final approval
to hold the orientation class, and that the NLRB could look
on the unit-based educator positions unfavorably. McGann
then immediately relayed this information to Lima and
Currie.
Vosburgh, vice president for patient care services, began
working for the Respondent in August 1992. She resigned 1
year later, in August 1993. Vosburgh testified that in about
October 1992, shortly after her employment began, she intro-
duced the concept of unit-based educators because the hos-
pital was a very large facility and although there were
‘‘budgeted positions that were unfilled’’ there was only one
nurse educator for the entire division of nursing, namely,
Educational Specialist Melody Davidson. Explaining, Vos-
burgh testified that ‘‘we had dollars for positions, and the
way we wanted to allocate them was to have an educator for
each of the specialties like medical surgical nurse, critical
care, obstetrics. So that was our goal to fill those positions
with experts in those clinical areas.’’
According to Vosburgh, the educational specialist has a
masters degree and is an expert in curriculum design and
adult learning theory, and is authorized to grant nurses con-
tinuing education units on the completion of courses. The
unit-based educator would supplement the work of the edu-
cational specialist as follows:
A unit based-educator is a very good staff nurse
that—in nursing that’s a phrase where you start as a
novice and become an expert. Well, these are nurses
that are on the pathway to becoming experts, and
they’re assigned to a unit, and they’re used in this con-
cept.
They would be the people that, when a new staff
member came on board, the [specialist] educator would
do the formal classes, and then, as they come into the
unit and are integrated into the structure of the unit they
would have a preceptor, and this preceptor would be
the unit-based educator.
So they would be almost like a buddy, a person that
would help them learn the techniques, would mentor
them through the system, and then, if they had specific
learning needs, would either get them articles or do a
little in-service for them or identify to the education
specialist that there were major learning needs, and at
that time it’s turned over to the educational expert.
At the same time, according to Vosburgh, the establishment
of additional new positions, that of assistant clinical director,
was under consideration for each of the units. It was ‘‘envi-
sioned,’’ among other possibilities, that the positions of unit-
based educator ‘‘would be subsumed’’ in the role of assistant
clinical director. Both of the aforementioned new positions
were in the conceptual stage, and were introduced by
Vosburgh as ‘‘just a germination of ideas.’’
Vosburgh spoke to her immediate superior in the hospital,
Roxanne Spitzer-Lehmann, the Respondent’s chief operating
officer and executive vice president, who was enthusiastic
about the concept, but cautioned her that it would cost a lot
of money. Ongoing conversations were also held with David-
son and some of the nurse administrators. Everyone, accord-
ing to Vosburgh, understood that the role of unit-based edu-
cator could not be implemented until it was budgeted in the
next fiscal budget, beginning in September 1993. Thus, as
the unit-based educators would be spending a significant por-
tion of their time ‘‘out of count,’’ meaning that they would
not be available for patient care, the funds for the employ-
ment of additional staff nurses at added cost to the hospital
would have to be budgeted.
Vosburgh testified that because the positions of unit-based
educator were still in the conceptual stage and had not been
budgeted, she was ‘‘aghast’’ when she read the memorandum
issued by Davidson on January 20, to all the clinical direc-
tors, with copies sent to Vosburgh, Spitzer-Lehmann, and
others. The very detailed two-page memorandum sets out
specific criteria and responsibilities for the position of unit-
based educator, and states, inter alia, as follows:
In order to meet the educational needs of our staff I’ve
considered an alternative method for nursing education
at HGS. One option is to develop a position in each
unit for an educator. This person would work one
twelve hour shift per week in the educator position.
Their primary responsibility would be to meet the bed-
side educational needs of the unit.
. . . .
Please discuss this role with your staff and encourage
anyone who is qualified and interested. I have attached
a questionnaire for applicants to complete and return to
me. If possible, I would like to implement this role in
early February.
Vosburgh immediately had a meeting with Davidson, and
advised her that the memorandum was premature, unauthor-
ized, ‘‘terribly incomplete,’’ and could only lead to confu-
sion. She asked Davidson why she issued it, as ‘‘it was so
preliminary.’’ Davidson really didn’t have an explanation for
her actions, and Vosburgh admonished her and told her that:
I was very concerned that somebody with her level of
responsibility and, you know, the fact that she was an
educator, that she would put a document out like this
that was so incomplete . . . I reminded her that we had
talked about incorporating this role into the assistant
clinical director role . . . the more I went through this
with her the more concerned I became . . . I said,
‘‘Melody, I don’t want you to send out anything to the
clinical directors for anything, any projects or any pro-
grams without me seeing it first. Are you comfortable
with that?’’
However, Vosburgh did not instruct Davidson to send out a
retraction of the January 20 document, and, as testified to by
Lima, the application process, interviews, awarding of the
positions to the best-qualified applicants, and the initial April
1 orientation meeting for those selected occurred thereafter.
On January 21, Vosburgh received an e-mail from Loretta
Tolentino, a clinical director, under the heading ‘‘Unit-Based
Educators.’’ The e-mail is as follows:
HI, YOUR APPROVAL FOR UNIT BASED EDU-
CATORS ONE SHIFT A WEEK IS VERY MUCH
APPRECIATED! THANK YOU! LORETTA
799HOSPITAL OF THE GOOD SAMARITAN
Vosburgh responded to this thank you note as follows: ‘‘It
is my pleasure to serve!’’ Vosburgh testified that this note
from Clinical Director Tolentino simply meant that word
about the position of unit-based educators was getting out to
the clinical directors where it needed to be, and that there
was a lot of work to do to bring the concept to fruition.
Thus, Vosburgh maintains that she gave no such approval to
Clinical Director Tolentino.
On January 26, Spitzer-Lehmann, Vosburgh’s supervisor,
sent the following memorandum to Davidson, with a copy to
Vosburgh:
I was really impressed with your plan regarding the unit
based educators. I am excited to see this approach and
believe it is the most effective and viable both in terms
of cost efficiencies and unit based learning. Congratula-
tions for a good plan. I look forward to the implemen-
tation and positive outcomes that can be achieved by
‘‘on site’’ concurrent education.
Vosburgh testified that at round table open forums with
the staff, held on February 16, 18, and 19, she gave a slide
presentation setting out the way that the nursing division
would be reorganized in many respects, and emphasized that
the reorganization, including the new positions of unit-based
educator and assistant clinical director, would not be insti-
tuted until after the beginning of the new fiscal year. How-
ever, there is no written memoranda nor anything on the
slides which would corroborate such testimony, or which in-
dicates that the unit-based educator program would not be
implemented until September 1993.
Vosburgh testified that she first became aware that David-
son had failed to follow her specific instructions and had im-
plemented the unit-based educator program when she hap-
pened to encounter Lima and Currie in the cafeteria on April
6. She inquired why they were in street clothes, and they
said that they were unit-based educators for NICU, that they
had attended a unit-based educator orientation class on April
1, and that Davidson had given them this assignment to cre-
ate an assessment tool for their unit. As a result of this
chance meeting with Lima and Currie, later that day
Vosburgh asked Davidson what she had done. Vosbugh testi-
fied that: ‘‘I told [Davidson] at that point that I was very dis-
appointed, that I didn’t understand why she would go ahead
with this and that I wanted her to absolutely stay out of the
role of dealing with the unit-based educator.’’ Also, however,
Vosburgh directed Davidson to prepare an ‘‘implementation
plan’’ by the following day.
Davidson sent a memorandum to Vosburgh the following
day, April 7, with the heading ‘‘Unit-Based Educator Imple-
mentation Plan.’’ Attached to the memorandum is a ‘‘Unit-
Based Educator Roster,’’ which lists the names of 17 unit-
based educators and their respective units. The memorandum
begins as follows: ‘‘The following steps have been planned
for implementation of the unit-based educators.’’ Then the
memorandum sets forth in some detail what had been accom-
plished up to that point, namely, the conducting of ‘‘base
line education day’’ for all the unit-based educators on April
1, and the assignment to them of the preparation of a needs
assessment for each of their respective units. The memoran-
dum continues as follows:
3. Meetings with all the unit-based educators will be
set up every two weeks initially starting April 21. The
needs assessment that the educators are developing will
be finalized at the first meeting and distributed to the
staff at that time. Analysis of the results and
prioritization of needs will occur at the next meeting.
Development of the unit-based education calendar for
the rest of the year will also be completed.
4. Follow-up on nursing orientation by the unit-based
educators will begin immediately.
5. There are four options for budgeting. (1) The unit-
based educators can be absorbed by their units knowing
that this would be a variance. (2) The cost can be
charged to the Nursing Education department knowing
that this would be a variance. (3) The cost can be split
between the unit and the Nursing Education department
to decrease the variance for each department. (4) The
cost can be budgeted out of the CES [Clinical Edu-
cational Specialist] positions that are currently open.
With the new budget cycle, the cost can be budgeted
through the Nursing Education department or their unit
as a line item.
Again, on seeing this memorandum, which Vosburgh had
directed Davidson to prepare the preceding day, she faulted
Davidson for its contents, telling her that she [Vosburgh]
‘‘was not comfortable with her communication’’ and that ‘‘to
do a program where we have no money and just run a vari-
ance is irresponsible.’’ Vosburgh then asked Davidson how
she had selected the attached list of 17 unit-based educators,
‘‘because some of the clinical directors told me that they
didn’t have any input into that position.’’ Vosburgh told Da-
vidson to schedule a meeting of everyone involved in the
unit-based educator program.
This meeting was held within 2 weeks thereafter.
Vosburgh told Davison that she would try to ‘‘protect her in-
tegrity,’’ but she would have to point out to those assembled
‘‘that we jumped the gun.’’ She told the unit-based educators
in attendance that neither the orientation class they had at-
tended nor the work they had done up to that point in time
nor the position for which they had been selected had been
approved by anyone. However, she said that she ‘‘still had
tremendous hopes for the unit-based educator role at the hos-
pital, but at this point we needed to put it on hold.’’
Vosburgh also told them the following:
I also told them that I had a fear at this point we were
in the middle of a union campaign, that I wouldn’t be
able to defend implementing this because we had no
goals; we had no objectives; we had no criteria for se-
lection; that it wasn’t really a program, and it should
not have gone on, so that I was going to put it on hold,
but I was still committed to the concept.
Vosburgh testified that even though she was ‘‘aghast’’ and
terribly disappointed with Davidson’s aforementioned unau-
thorized conduct, Vosburgh merely ‘‘counseled’’ her on sev-
eral occasions but did not give her a written reprimand,
which is the second step of the Respondent’s disciplinary
procedure; and she took no other disciplinary measures
against her.
At the time of the hearing here, neither Vosburgh, Spitzer-
Lehmann, nor Davidson had remained in the Respondent’s
800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 On April 9, the Regional Director issued a Decision and Direc-
tion of Election in which he determined, contrary to the position of
the Respondent taken at a representation hearing, that the resource
nurses were not supervisors within the meaning of the Act, and were
included in the appropriate collective-bargaining unit. The Respond-
ent filed a request for review with the Board, and its request for re-
view was denied.
8 This meeting occurred after the unit-based educator program had
been discontinued.
employ. Spitzer-Lehmann apparently left some time in April,
Vosburgh left in August, and Davidson left sometime later.
The Respondent has made no representations on the record
for its failure to call either Spitzer-Lehman or Davidson to
corroborate Vosburgh’s testimony. However, Davidson di-
rectly reported to Peggy Sterbenz, assistant vice president for
nursing, who, in turn, reported to Vosburgh. According to
Vosburgh’s testimony, Sterbenz was knowledgeable regard-
ing all of the foregoing unit-based educator matters.
Sterbenz was called as a witness in this proceeding by the
Respondent. She testified that she worked for the Respondent
from February 5, 1990, until June 1993. She reported to
Vosburgh, and was responsible for the overall management
and coordination of clinical units, for which she also had fi-
nancial responsibilities; the clinical directors as well as clini-
cal nurse specialists reported to her. Sterbenz testified at
length regarding another issue in this proceeding, and was
asked no questions regarding the matter of unit-based educa-
tor. Thus, she did not corroborate any of the testimony given
by Vosburgh.
In addition to the documents described above which were
subpoenaed from the Respondent by the General Counsel,
another document, entitled ‘‘Position Description’’ for the
position of ‘‘Unit-Based Educators’’ was introduced into evi-
dence by the General Counsel. This undated two-page posi-
tion description contains a detailed description of the job
qualifications, job summary, and performance criteria for the
position of unit-based educator. The job summary is as fol-
lows:
The Unit Based Educator, under the supervision of
the Clinical Director and in collaboration with the Clin-
ical Education Specialist, is responsible for unit based
education in an assigned area. Major areas of respon-
sibility include: employee orientation, preceptor sup-
port, coordination of performance-based staff develop-
ment, development/facilitation of unit based in services.
The Unit Based Educator works collaboratively with
the Clinical Director and Clinical Education Specialist
to accomplish his/her goals and reports to the Clinical
Director.
4. The position of assistant clinical director
Lima is a resource nurse in NICU. The position of re-
source nurse (also commonly referred to as ‘‘charge nurse’’)
is a rotating position within the unit, and each of the re-
source nurses occupy that position during approximately nine
shifts per month, or 75 percent of the time. During these
shifts the resource nurse is in charge of his or her respective
unit; during the remaining shifts, the nurse functions as a
regular staff nurse and a different resource nurse is in charge.
All nurses report to the clinical director of each unit.7
Lima testified that at her unit’s resource nurse meeting in
late April,8 conducted by Clinical Director McGann and at-
tended by Lima and four other NICU resource nurses,
McGann said that the hospital was going to create new posi-
tions called ‘‘assistant clinical director,’’ and that the five re-
source nurses would fill those positions. McGann explained
that in their new positions the nurses would become man-
agers, and would receive a salary rather than the hourly pay
they were then receiving. Essentially, the assistant clinical di-
rectors would be performing the same work that they had
been performing for the past year as resource nurses, but
would have certain additional responsibilities such as evalu-
ating nurses’ work performance and dealing with budgetary
matters. According to Lima, McGann said that the new posi-
tions would be created if the Union were voted out.
Lima’s affidavit regarding this meeting is as follows:
McGann told us that the hospital had plans for what
would happen after the union election, and stated that
if the Union was not voted in, the hospital was going
to create the position of assistant clinical directors hos-
pital-wide, and that there would be four positions in the
NICU, two on days and two on nights.
McGann said that there would be an increase in our
pay and we would be salaried, the position would in-
clude evaluations, paperwork, and being in charge of
the unit while on duty. It was my assumption that the
positions would go to the resource nurses. McGann said
the positions would be created once the union question
was resolved. McGann did not tell us the specific
amount of the pay increase.
When questioned on cross-examination regarding whether
McGann said that the new positions would be created ‘‘if the
Union was not voted in,’’ or whether McGann said that the
‘‘positions would be created once the union question was re-
solved,’’ Lima testified that she believed that McGann made
both statements. When asked by the General Counsel what
McGann ‘‘indicated’’ would happen with respect to the posi-
tion of assistant clinical director, Lima’s answer to this ques-
tion was that McGann said the positions would be created if
the Union was voted out.
Clinical Director McGann testified that she held a regu-
larly scheduled resource nurse meeting on April 27. At the
conclusion of the meeting one of the nurses happened to ask
about the position of assistant clinical director, and McGann
replied that there would be two such positions on days and
two on nights, and they would become effective in Septem-
ber 1993, to coincide with the new fiscal year budget. There
was no other discussion about the position, and McGann did
not refer to the Union during this brief colloquy.
Fravina Aquipel, a NICU resource nurse who has been
employed by the Respondent since 1988, testified that about
halfway through the resource nurse meeting on April 27,
McGann said that the position of assistant clinical director
would become effective next year, and had been budgeted.
McGann did not say how many positions would be available,
and said that anyone who wanted to apply for the position
was welcome to do so. The Union was not mentioned.
801HOSPITAL OF THE GOOD SAMARITAN
Aquipel testified that she was a union supporter during the
union campaign, and wore a union button.
Marina Bridgeman, a NICU resource nurse who has been
employed by the Respondent since 1989, testified that
McGann, at a resource nurse meeting in April, ‘‘mentioned
about they’re going to be opening a position of permanent
charge, but it has to depend on the next year’s budget.’’
Nothing else was said about the position, and there was no
mention of the Union. On cross-examination Bridgeman stat-
ed that she believed the meeting she was describing took
place sometime after the election, and admitted that she was
unable to recall the month that the discussion took place.
Further, Bridgeman recalled McGann stating that there would
be about four such positions of assistant clinical director es-
tablished, and that being appointed to this position would
constitute a promotion and would be accompanied by an in-
crease in salary. She was unable to recall receiving any anti-
union literature from McGann or from the hospital, and testi-
fied that McGann said nothing about the Union at any of the
meetings she held with the staff.
Tipawan Ormzubsin has worked for the Respondent since
1989. She attended the resource nurse meeting in question.
Ormzubsin testified that McGann said, pursuant to an inquiry
by one of the nurses, that ‘‘they may have some permanent
charge nurse job coming in the next fiscal year meeting.’’
Someone asked how many positions there were going to be,
and Ormzubsin first testified that McGann said that she could
not discuss this at that time; later in her testimony, she testi-
fied that McGann said that maybe there would be two on
days and two on nights, but that she really didn’t know.
McGann did not indicate that the new position would be a
promotion, or that it would include a salary increase. Further,
McGann said nothing about the Union at this meeting.
5. Alleged 8(a)(1) violations by Dr. Bowers
Within several weeks prior to the May 6–7 election, Dr.
Mirion Bowers, the Respondent’s president and chief execu-
tive officer, held some 22 meetings with the nurses in the
voting unit here. The last meeting prior to the election was
conducted by Bowers on May 1. About 10 nurses were in
attendance, including Marietta Breganza and Carole Huyck.
Breganza, an ICU nurse, began working for the Respond-
ent in 1984. She was a member of the Union’s organizing
committee and active union proponent, and wore a union
button during the campaign. Breganza was unable to remain
for the entire April 1 meeting, but was present for most of
the meeting. Breganza testified that Bowers at first reviewed
his background with the Respondent, and said that there were
many problems that needed to be addressed. He said that he
was ‘‘willing to work with us, work out our problems,
through meetings such as the one we were having.’’ He said
there were programs which he was ‘‘trying to bring in from
UCLA, and that there were other programs in the planning
stages, and that those programs could possibly be jeopardized
if we brought the union in.’’ Bowers asked the nurses to give
him a chance to work everything out and to trust him and
not bring the Union in, ‘‘and that if we voted the Union out,
he could work with us; however, if we voted the Union in,
he won’t work with us.’’ He also said ‘‘that if we voted for
the Union, he would take it as a personal attack upon him.’’
At another point in her testimony, Breganza testified that
Bowers said: ‘‘He could work with us as it was, with meet-
ings such as that one; however, he could not work with us
if there was a union.’’
The first question asked Bowers was why he couldn’t
work with the nurses just as well across the negotiating table
as in group meetings. Bowers replied that he felt that unions
were not good for anybody, and that they would make the
hospital unstable, and that the threat of a strike alone makes
the atmosphere very unstable.
Another nurse asked why he disliked the Union so much,
and Bowers stated, according to Breganza, as follows:
that he felt the Union can do nothing for us employees;
they could neither solve our problems nor guarantee us
anything. He further added that everything that we
wanted would have to be brought to the bargaining
table and be negotiated, and that he and the hospital
were not obliged to negotiate anything with us, in
which case we would have to strike for anything that
we want.
Bowers, according to Breganza, stated that other tertiary
hospitals in the area were having financial problems and had
closed or were closing, and that the Respondent was having
revenue problems as well. He stated that the Respondent
could go the same route of those other hospitals, and pos-
sibly might have to be closed as well. And he kept repeating
that perhaps that was what the nurses wanted, to close the
hospital. Finally, he said, ‘‘maybe that would be best for ev-
eryone, just to close the hospital.’’ Breganza spoke up and
said that nobody wanted the hospital to close.
During the meeting there was colloquy between various
nurses, and Carole Huyck, another staunch union supporter,
answered a nurse’s question and advised her that the nurses
would have to make a list of their demands and negotiate
this with the hospital. Breganza did not recall whether Bow-
ers responded to this response of Huyck.
Huyck has been working for the Respondent since 1980.
She is a staff nurse in ICU. Huyck remained for the entire
meeting conducted by Bowers. She testified as follows: Bow-
ers reviewed his recent history with the Respondent as its
chief executive officer, and described the problems facing the
hospital on his assuming that position. He said that one of
the ‘‘projects’’ that he had not yet had a chance to work on
were the problems relating to the employees, and that the
‘‘Union came on board’’ prior to the time he was able to ad-
dress these problems. According to Huyck, Bowers said:
he did not like unions. He didn’t feel he personally
could work with a union. He didn’t feel that a union
was good for the hospital. He definitely didn’t feel it
was good for the nurses, the employees. He was totally
against the idea of unions. He said he could work with
the nurses in group meetings like we were in that very
day—small groups sitting in a room, just like we were
that day—and work out all of our problems and all of
our differences, and get everything resolved.
Bowers further stated to the nurses:
Let me put it to you this way . . . . If you vote the
Union into place, you will come to us to the negotiating
table with a list of your demands and your requests. He
said: We don’t have to listen to those demands and re-
802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Bowers testified that while he did not so advise the nurses, the
hospital was then in negotiations with a large hospital insurer group
to provide health care for the individuals insured by that group, and
that the group had expressed concern as to whether the Respondent
could ‘‘guarantee continuity of services.’’ Bowers stated that this
quests. We don’t have to negotiate with you. And he
went on to say, in fact, that we will not negotiate with
you . . . if you vote the Union in, you come to us with
your demands, we will not meet your demands because
we don’t have to meet your demands, and the end re-
sult is that you will end up on strike.
Huyck testified that during this discussion about negotia-
tions, Joyce Gentle, one of the nurses, said she would like
to address a question to the prounion nurses, namely, what
could the Union guarantee her if she voted for it. Huyck re-
sponded, stating that the only thing that could be guaranteed
is the right to come to the negotiating table and bargain to
obtain a contract. Gentle replied that, in other words, the
Union could not guarantee anything. At that point, Bowers
interjected, ‘‘That’s just the point . . . . If you vote the
Union in, you’re going to come to the bargaining table, and
we don’t have to give you anything. We don’t have to work
with you. We don’t have to give you anything. And . . . the
end result will be that you’ll be on strike.’’ When asked
again about this part of the meeting, Huyck testified that
Bowers stated:
Let me put it to you this way. If you vote this Union
in to place, then you will come to the bargaining table.
You will come to the bargaining table with a list of de-
mands and a list of things . . . that you want. That
does not mean that we have to give you those things.
That does not mean that we have to negotiate with you
. . . . In fact, I will not negotiate with you. I will not
work with you because I will not work with a union.
I will not work with a union on board . . . I will work
with you like this, in small groups, the nurses and the
administrator, or me. But I will not work with the
Union on board. And the end result will be that you’ll
have to go on strike . . . even to get the negotiations
started.
One of the nurses went on at great length telling Bowers
that his real problem was with the middle managers. Bowers
said that if that was the problem, he would take care of it
‘‘after this union thing is over and gone.’’
Bowers said, according to Huyck, that there was an over-
abundance of tertiary care hospitals which are very expensive
to operate because of their high overhead as a result of the
need to utilize the latest available technology, and that in the
next couple of years he anticipated that perhaps 50 percent
of such hospitals would close. Bowers said that he wanted
the Respondent to be one of the hospitals that remained in
business.
Toward the end of the meeting he said:
Maybe you nurses are right. Maybe what we should do
is just close the hospital. Maybe you guys have the
right idea. Maybe we shouldn’t continue to try to fight
this thing out. Maybe we shouldn’t continue to try to
keep our doors open and keep our long history . . . .
Maybe we should just close the hospital.
At another point in the meeting, Bowers stated, according
to Huyck, that the hospital had a number of contracts pend-
ing with other entities, and he mentioned Delta Airlines and
Cigna Hospital. He said that the Respondent was attempting
to obtain contracts with these entities to use the Respond-
ent’s services, and continued as follows:
that he could not say that we would not get the con-
tracts if we had a union, but he said that certainly hav-
ing a union on board was considered a destablizing fac-
tor in a hospital because at any time the employees
could be out on strike, and that’s not a pleasing idea
for doctors, or for patients, or for entities that are look-
ing to contract with a hospital.
Huyck made notes of this meeting about a week or two
after the meeting. The notes were furnished to Respondent’s
counsel prior to cross-examination.
Bowers testified that he held about 22 small group meet-
ings with the staff nurses. Each of the meetings lasted about
1-1/2 hours. He had met with his ‘‘advisors’’ on several oc-
casions prior to this series of meetings, and had been advised
that there were definitely certain things he should not say.
He really didn’t see the meetings as union meetings; rather,
he was there to introduce himself to the nurses, discuss the
hospital’s problems, and answer the nurses’ questions. Bow-
ers testified that the meetings ‘‘were really to let the people
know me, where I came from, explaining the situation, an-
swer questions that they have. A lot of the meetings that we
had was more about the hospital than the Union. So it wasn’t
a question of the Union this and the Union that.’’ One of the
purposes of the meetings, however, was to explain why he
believed the nurses should not vote for the Union.
Bowers testified that the particular meeting in question
‘‘was the most difficult of all the meetings’’ and was ‘‘ex-
tremely hostile.’’ After introductory remarks regarding his
history with the hospital and the various problems confront-
ing him at that time, Bowers was interrupted by one of the
nurses who said, ‘‘Look, Dr. Bowers, we’re not interested in
your background. We want to deal with some other issues.’’
Then, one of the nurses said, ‘‘Look I think the big problem
is are you going to fire Peggy Vosburgh.’’ Bowers replied
that he could make no promises of that sort because it was
against the rules or guidelines that prohibited him from try-
ing to sway their vote.
Regarding negotiations with the Union in the event it pre-
vailed in the election, Bowers told the nurses that the nego-
tiations could ‘‘go freely’’ and the parties would ‘‘come to-
gether,’’ or if there was no agreement the vehicle that the
Union had would be the power to strike. Bowers could not
remember whether he said anything more about union nego-
tiations.
Bowers recalled that at the meeting certain prounion
nurses maintained that the Union would not strike. Bowers
disputed this, saying that there had been a strike at Kaiser
Hospital. He said nothing further about striking. He did say
that if hospital services were interrupted by a strike, then
there was a possibility that the hospital could suffer perma-
nent damage as a result of loss of its patient and physician
base.9 However, he did not say anything about the closing
of the hospital.
803HOSPITAL OF THE GOOD SAMARITAN
contract would be a ‘‘significant revenue producer’’ for the Re-
spondent.
Bowers specifically denied that he made remarks to the ef-
fect that the hospital would not have to negotiate with the
Union; that the Union would have to strike to even get the
hospital to the negotiating table; that the employees would be
out on strike if they voted for the Union; that the nurses had
the hospital in their hands and that maybe they were right
and the hospital should be closed; that he would prefer to
work with the nurses in groups rather than through the
Union; or that the facility would or might close if the Union
was voted in. He is not too sure that he said that he didn’t
like unions, ‘‘because that would be a presumptuous state-
ment,’’ and he ‘‘would not imagine I would say that.’’ He
did not say that the situation would be unstable if the Union
came in; and he was not too sure that he asked the nurses
to trust him.
Bowers did tell the nurses that if they truly felt the Union
was in their best interest, then they should vote for it, and
that if they felt it was not, they should vote against it. He
did tell the nurses that he believed the Union was not in the
best interest of the hospital, and, in response to a nurse’s
question, that the Union was an outside source because it had
a power structure outside of the hospital’s internal structure.
Further, he did mention the contract with Delta Airlines, and
said that unionization may have an impact on that contract,
‘‘which was a very prized contract.’’ He was attempting to
share with the nurses his concerns about the future of the
hospital with or without a union.
Leonarda McClarity, a staff nurse in ICU since 1987, at-
tended the meeting in question. It was the only meeting she
attended. McClarity appeared to have a good recollection of
the meeting and testified as follows:
It started with Dr. Bowers just telling us a little history
about himself and how long he had been in his posi-
tion, which was six months, and his goals for the hos-
pital, and that he was relatively [sic] here to hear the
issues of the nurses because he had mostly been con-
centrating on the other areas of administration and deal-
ing with some things that was [sic] happening with the
doctors, and he had left the issues that the nurses had
to his people under him, to the administration under
him, but since things weren’t getting resolved, he was
having these forums so that he could firsthand hear
what our issues were.
McClarity testified that Bowers opened the floor for dis-
cussion, and asked the nurses what was on their minds. ‘‘It
just seemed to be a very heated meeting, very hostile,’’ al-
though Bowers remained ‘‘business-like.’’ Regarding nego-
tiations and strikes, Bowers said, according to McClarity,
that he did not like working with unions and preferred not
to work with them, but made no reference as to how he
wanted them to vote. He asked the nurses to give him a
chance to ‘‘solve their issues.’’ McClarity testified further as
follows:
Concerning union negotiations, he was saying that the
administration would have to negotiate with the Union
in fair labor negotiations, and that in the negotiations,
the Union couldn’t guarantee that all the issues would
be resolved. He said that within the negotiations, the
nurses might get what they want, they might get more
than they wanted, they might get less of what their
issues were sought [sic]. He said nothing was guaran-
teed, that the Union [couldn’t] guarantee the nurses
anything, and that if the union couldn’t get the nurses
what they wanted, then their ultimate weapon was to
take the nurses out on strike.
Regarding the future of the hospital, Bowers stated the fol-
lowing:
What he said about tertiary hospitals was that there are
a lot of tertiary hospitals around, especially in our area.
He said that there was not enough patients to go
around; there was just too many patients for the amount
of hospitals that were opened in conjunction with the
way health care was going. He said that since there
wasn’t enough patients, somebody would have to close.
Some hospital would have to close and hopefully it
would not be Good Sam that would be one of the hos-
pitals that would have to close because at our hospital,
we’re hopefully giving the best quality of care and we
would be one of the hospitals that would be staying
open.
According to McClarity, Bowers said the hospital would
have to negotiate in good faith with the Union. He did not
say that the Union would have to strike just to get the hos-
pital to start negotiating, or that the employees would be on
strike if they voted for the Union. He did say that the ulti-
mate weapon of the Union would be to take the nurses out
on strike. He did not say that the hospital was in the nurses’
hands and maybe the best thing to do would be to close it.
Joyce Gentle has been a staff nurse in the orthopedic unit
since 1990. Gentle wore an antiunion button for about 2 days
just before the election. Gentle testified that Bowers stated
to the nurses at the May 1 meeting that he would rather work
with the nurses personally than through a union, and that he
didn’t like unions. Gentle testified that Bowers introduced
himself and spoke about his history with the hospital. He
went on to outline some of his plans for the hospital. Re-
garding union negotiations and strikes, Bowers stated:
He said that if there was a union in the hospital that,
although he did not like the idea of having a union, he
would rather not have a union; that the nurses had a
right to their choice of having a union there, and if
there was a union, he would negotiate with them in
good faith. Related to a strike, he did say that a strike
is an ultimate weapon. The truth about a strike is that
it’s an ultimate weapon used by unions if negotiations
sometimes don’t go the way the union had hoped it
would go.
Gentle further testified that Bowers did not say that the
hospital would not have to negotiate with the Union, or that
the nurses would have to go on strike just to get the hospital
to start negotiating with the Union, or that the employees
would be on strike if they voted for the Union. He did not
say that the hospital was in the nurses’ hands, and that
maybe the best thing to do would be to close the hospital.
He did not say that the hospital may be in an unstable posi-
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion if the Union was voted in. Gentle had no recollection
of Bowers stating that the hospital would or might close, and
admitted that she was not focusing on Bowers’ discussion re-
garding the future of tertiary care hospitals. Gentle recalls
making a statement that she would rather have the nurses
deal with the administration through their own nursing body
rather than the Union; one of the prounion nurses responded
and explained why she was prounion.
6. The events of May 3
On May 3 and 4, several days prior to the election, several
union representatives and nurses congregated across the
street from the hospital and distributed buttons, campaign lit-
erature, address booklets, and boxes of fortune cookies con-
taining prounion slogans to the nurses who were going to
work. This union activity took place during shift change in
the morning at about 7 a.m., and in the evening at about 7
p.m., on a public sidewalk across the street from the hospital
property, adjacent to the hospital’s parking garage.
Braganza was distributing such materials on that day; it
was one of her days’ off. Braganza testified that as
Vosburgh, vice president of patient care services, was leaving
the parking structure on her way to work, Braganza offered
her an address booklet, and Vosburgh refused. Vosburgh
crossed the street and, according to Braganza, proceeded to-
ward the main entrance of the hospital where she happened
to meet one of the staff nurses, Elsa Yui, who was coming
off duty. Braganza observed that Vosburgh began wagging
her finger at Yui, and Yui began wiping her eyes, as if cry-
ing. She also observed Vosburgh giving Yui a hug. After
about a minute, Braganza proceeded across the street to in-
vestigate the situation. She approached the two of them and
asked if everything was okay. Neither Vosburgh nor Yui said
anything at first. She then asked Yui if she was okay, and
Yui replied that everything was okay. Braganza did not
leave; she gave Yui an address booklet, and said, ‘‘Happy
Nurses Week.’’ Vosburgh then told Braganza to stop
harassing her nurses. Braganza said she was doing no such
thing. Then Vosburgh asked Braganza who she was and
where she worked. Braganza gave her name and displayed
her hospital badge. Vosburgh said that Braganza was on hos-
pital grounds, and that she could do her campaigning across
the street but not on hospital grounds. She said this three
times. Braganza testified that she ‘‘just kind of stood rooted
there and stared at [Vosburgh],’’ not knowing what to do. At
that point, one of the security guards came over and told her
to leave. Vosburgh told him to ‘‘please escort this nurse out
of here.’’ The security guard accompanied Breganza across
the street.
When Yui came across the street she told Braganza that
she had been very upset about what had happened the night
before, as a result of a conversation regarding the Union she
had with Peggy Sterbenz, an assistant vice president. Yui
said that she had been so upset that she removed her
prounion button. Yui did not testify in this proceeding.
Billie Jean Stull has been employed by the Respondent
since 1991. She works in the obstetrics unit. Union rep-
resentatives and nurses were handing out union material on
the morning of May 3, adjacent to the parking structure,
where Stull had parked her car. Stull testified that she and
another nurse who happened to be entering the hospital lobby
at the same time were stopped by the security guard who
asked if they had any union material with them. The other
nurse was wearing a nurses’ uniform; Stull was wearing
street clothes. The other nurse replied no and went on, and
the guard again asked Stull, prior to the time she had been
able to show him her hospital identification, whether she had
any union material with her. She said no. The guard stepped
in her path, directly in front of her, and after she had dis-
played her hospital identification, said, ‘‘Well, if you have
any union material with you and you take it in with you, you
will be written up.’’ Stull, in a louder that normal tone of
voice, advised him that she had already said that she had no
such material. As she proceeded to walk around him and into
the hospital lobby, she made some remark to him about not
being able to enter the hospital without being bothered. As
she was walking through the lobby she saw Bowers and
Vosburgh standing nearby in front of the gift shop.
Vosburgh had apparently seen the incident or had over-
heard Stull’s comment, and approached her and asked what
had happened. Stull told her, and Vosburgh said that the
guard should not have done that and that she would take care
of it. Then she walked back toward the lobby.
Denise Kennedy began working for the hospital in May
1989. She works in NICU. Kennedy testified that on the
evening of May 3, as she was walking from the parking
structure to the main door of the hospital, she observed Bow-
ers standing outside the main door searching a nurse’s large
white cloth bag. As she approached the main door of the
hospital and was within 3 feet of Bowers, she observed that
Bowers was looking into the bag of a different nurse: he had
both of his hands in her bag, and Kennedy overheard him
ask the nurse what she had in the bag. Kennedy was sur-
prised to see this, believing it was an invasion of privacy.
A security guard was sitting in a chair about 3 or 4 feet
away.
Thanhloan Ho has worked in the cardiothoracic surgery
unit since December 1992. On the evening of May 3, at
about 6:30 p.m., Ho was handing out union materials to
nurses who were going to work. Large boxes of fortune
cookies were being distributed to some nurses. The boxes
were the size of a donut box—about 8 by 12 by 3 inches—
and nurses were given the boxes for the purpose of distribut-
ing the fortune cookies to other nurses in their units. Ho ob-
served that a hospital security guard was standing on the op-
posite side of the street. One nurse, who had been given a
box of fortune cookies, was stopped by the security guard
after she crossed the street; then the nurse walked into the
hospital. Ho, asked by one of the union representatives to
follow the nurse and find out what had happened, entered the
hospital lobby but could not locate that nurse. However,
while she was in the lobby of the hospital she saw another
nurse with a box of fortune cookies standing near the ele-
vators. She observed Bowers and a security guard approach
the nurse, and overheard Bowers say that he wanted to see
what was in the box. The nurse opened the box for him.
Bowers said something to the effect that the box just con-
tained cookies and not flyers. Then Bowers said ‘‘fine,’’ and
walked away. Ho then returned to the group across the street.
Later, when Ho entered the hospital to begin her shift, she
was carrying some union flyers. The guard stopped her and
told her that if she passed out those flyers she would be writ-
ten up. Ho said she ‘‘had a right’’ to those flyers and pro-
805HOSPITAL OF THE GOOD SAMARITAN
ceeded to walk past the guard into the hospital. She distrib-
uted the flyers in the hospital to other nurses.
Marianne Jenny, a CCU nurse who has been employed by
the Respondent since 1989, was assisting the Union in dis-
tributing materials outside the hospital on May 3. On the
evening of that day, at about 6:30 p.m., Jenny saw Bowers
standing outside the entrance to the hospital and observed
him stopping a nurse who was carrying a box of fortune
cookies that had been given to her by the union supporters.
Bowers opened the box and went through them with his
hands. Then the nurse entered the hospital.
Leila Valdivia, an organizer for the Union, testified that
she observed a security guard stop a nurse who had been
given a box of fortune cookies; the guard reached his hand
in the box and was rummaging around. The nurse then con-
tinued walking toward the hospital entrance and was again
stopped, this time by Bowers. Bowers looked through the
box and then the nurse proceeded to walk into the hospital.
The union supporters again assembled across the street
from the hospital on the following day, May 4, in the morn-
ing and evening, and distributed the same materials to the
nurses, including the boxes of fortune cookies. Valdivia was
there on each of the four separate occasions, namely, both
the morning and evening of May 3 and 4, and testified that
she did not observe that any of the nurses were stopped by
anyone on May 4.
Carole Huyck testified that on the evening of May 3, she
was helping the union supporters pass out the various mate-
rials, and observed Bowers and Vosburgh near the entrance
to the hospital. During the evening, a security guard walked
across the street to where the union activity was taking place,
and asked if he could look inside one box of fortune cookies.
He looked inside, and closed the box. The guard remained
on that side of the street near the periphery of the group of
union supporters, within hearing distance of their conversa-
tions with the nurses who were arriving at work, for about
45 minutes; then another guard relieved him, and also re-
mained and observed the union activity for about 45 minutes.
The record evidence clearly shows that throughout the
preelection period union literature was handed out in the hos-
pital by the nurses in the various lounges on breaktime, and
was posted on bulletin boards in the lounges. There is no
contention that such activity was prohibited.
Bowers denied that he stopped any nurses outside the hos-
pital on May 3, and looked into boxes or bags they may
have been carrying, or that he questioned them about the
Union or anything related to the Union. He testified that on
a Monday evening (May 3 fell on a Monday) at about 6
p.m., as he was leaving his office on the way to his car, a
security guard approached him in the lobby of the hospital
and said, ‘‘Sir, would you come with me.’’ Bowers thought
this was a little strange and that there must be something
going on. The guard said, ‘‘Would you stand here, sir.’’
Bowers stood in the hallway next to the elevators, and the
guard asked an individual, probably a nurse waiting for the
elevator, to open her bags. Bowers stood about 10 feet away.
The lady opened her bag and the guard said, ‘‘May I look
in the bag.’’ The guard looked in the bag, and when that was
completed the nurse got in the elevator and Bowers went to
the physicians’ parking garage and left the premises; he did
not exit out the main entrance of the hospital.
Bowers testified that he did not ask the security guard why
he stopped the lady or why the guard wanted him to observe
the searching of her bag, and does not recall the name of the
security guard. Vosburgh, according to Bowers, was not
present. Bowers further testified that prior to this incident he
had not been advised by anyone and did not know that any
union supporters were distributing materials and fortune
cookies outside the hospital that day. Further, neither the se-
curity guards’ supervisor, nor any security guard, ever spoke
to him about how they intended to deal with the union activ-
ity at the hospital.
Neither Vosburgh nor any security guard testified regard-
ing the matter of stopping nurses on May 3, searching their
bags or boxes of fortune cookies, or warning them about dis-
tributing union literature in the hospital. Vosburgh, however,
did testify about the May 3 incident involving Elsa Yui.
7. The alleged April 22 threat of Clinical
Director Tolentino
Sharon Eilat is a nurse in ICU and has been employed
since 1989. Eilat testified that on Thursday, April 22, Clini-
cal Director Loretta Tolentino approached her in the ICU
unit, introduced herself as a fifth floor clinical director, and
asked Eilat how her job was going. Eilat said that things
were not going very well for her, and added that she was
prounion because of this. Tolentino said that the Union
couldn’t help her and was not good for the hospital.
Tolentino had some papers with her in a notebook, and the
top paper had to do with nurses at Kaiser Hospital. Tolentino
said, according to Eilat, that when the Kaiser contract was
up, the Kaiser nurses were going to lose their 12-hour shifts,
and that she knew that a lot of the Respondent’s nurses had
second jobs and families. She ‘‘kind of patted’’ the Kaiser
flyer and again said that the Kaiser nurses were going to lose
their 12-hour shifts.
Eilat replied that she didn’t have a second job to lose, and
there ensued some further discussion: Eilat ‘‘adamantly’’
supported her position that the Respondent would not switch
to an 8-hour shift, saying that she didn’t think this was eco-
nomically feasible, that there were not enough nurses to fill
three shifts, and that if the hospital had to hire more nurses
it would cost them more for benefits. Tolentino replied to her
arguments by trying to convince her that, in fact, it was eco-
nomically feasible. Tolentino ended the discussion by again
saying said that the Union couldn’t help her and it wasn’t
the way to go. Eilat said that she was going to vote for the
Union anyway, and Tolentino thanked her very much and
said it was nice to have met her.
Eilat testified that working a 12-hour shift 3 days a week
is beneficial to most nurses. It enables Eilat to have a family
life and to spend more time with her small child, and also
makes it possible to have a second job during the off-duty
days. In addition, the 12-hour shift translates into more
money for the nurses, as the last 4 hours of each shift are
paid at time-and-a-half.
Tolentino was not called as a witness by the Respondent.
8. The May 27 termination warning to Efren Devera by
Assistant Vice President Barbara Brown
Efren Devera has been an ICU nurse since 1987. He was
an active union proponent and wore a union button at work
806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Devera had previously been given a final warning relating to his
performance and his attitude as a result of an incident a few weeks
earlier when he had removed a pencil and paper from a patient in
his care who had just had throat surgery. The following day he was
suspended for 3 days for refusing to accept a transfer patient into
his unit. On May 17, when he returned to work, he was given 3
months’ probation and was required to attend a session with the em-
ployee assistance counselor, as mentioned above.
prior to the election. Devera was suspended for a period of
time, and in conjunction with this disciplinary action his clin-
ical director, Ann Bramhall, required him to attend a meeting
with an employee assistance counselor on May 26. On May
25, Devera advised Bramhall that he was scheduled to work
in ICU on May 26, and requested that she make the em-
ployee assistance appointment on a day that he was not
scheduled to work. Bramhall denied this request and said that
time could be found for the appointment during the workday
on May 26. Devera did keep his appointment with the coun-
selor on May 26, as scheduled. The appointment lasted about
an hour, and Devera was paid for his time.
Devera also worked on the following day, May 27. On
that day he happened to be talking to another nurse, Edna
Marki, who casually mentioned in passing, apparently to
someone else, that she had been canceled from working her
shift on May 26. When Devera overheard this he ‘‘ap-
proached her’’ and told her that he had been willing to vol-
untarily take off work on May 26, and had offered to do so,
but that Bramhall had denied his request. Marki, according
to Devera, appeared disappointed.
Later that day, Bramhall approached Devera and asked
him to come to her office. Barbara Brown, vice president of
nursing, was present. Bramhall said that Marki had com-
plained that she, rather than Devera, had been canceled on
May 26, although Devera had asked to be canceled that day.
Brown said that she was running out of patience with
Devera, that this wasn’t the first time he had made such
comments that could create trouble in ICU, and that such
comments would ‘‘add to more trouble in an already troubled
unit.’’ Brown said that he should consider this to be a final
warning, and that one more such comment of this nature
would result in his termination.10 Devera asked Brown to put
this in writing. Brown refused, and told Devera to just con-
sider it a counseling.
Nurses are canceled with some frequency, depending on
the ‘‘census’’ or number of patients needing care on a par-
ticular day. A work schedule is made a month in advance.
Cancellations are made at about 5 a.m. on the day of the
cancellation. At the time Devera requested to be canceled for
his May 26 shift, namely, at about 2 p.m. on May 25, there
was no way for Bramhall to know whether he would be
needed or not. It has been a long standing practice that can-
cellations are customarily done by rotation, so that a particu-
lar nurse does not receive excessive cancellations. According
to Devera, cancellations are common, sometimes as many as
two times within a pay period of six scheduled workdays.
Devera testified that he simply made a casual statement of
fact to Marki and was not attempting to cause dissension
within the unit.
9. The Respondent’s campaign literature
During the course of the preelection campaign, the Re-
spondent distributed various letters and leaflets to the nurses
or to other employees of the hospital. The complaint alleges
that four such pieces of literature contain statements which
are violative of the Act.
A letter dated April 15 was sent by the Respondent to em-
ployees other than bargaining unit employees. It is addressed
to ‘‘Dear Good Samaritan Employee,’’ and is signed by Dr.
Bowers. It urges the employees to let the registered nurses
know how they feel about the Union, as ‘‘the outcome of the
election could have a dramatic impact on everyone who
works at Good Samaritan, including yourself.’’ The letter
states, in pertinent part:
As you know, we rely on physicians from other hos-
pitals to refer their patients to Good Samaritan for spe-
cialty services. No one can predict the future, but the
threat of a union strike might cause these physicians to
send their patients to other, more stable hospitals. We
are already struggling, and any drop in census could
hurt everyone.
If we look at what this union is doing at Kaiser, we
can see how everyone’s job security can be threatened.
For example, Kaiser officials recently said that the
union’s threat of strike could have a ‘‘long-lasting and
devastating effect’’ and ‘‘result in significant layoffs.’’
We do not want even the chance of that here. [Empha-
sis in original.]
A letter dated April 22, addressed to ‘‘Dear Good Samari-
tan Nurse,’’ sets forth a quotation from a union publication
stating that the law requires the employer to bargain in good
faith over wages, hours, and working conditions, but does
not require the employer to agree to the Union’s bargaining
proposals. The letter goes on to state:
With Local 535, you put your 12-hour shifts, the
weekend differential and your current wages all at risk.
The law is clear, it is just as likely that you could end
up with less after bargaining as you could with more.
In fact, at El Centro Community Health Center, Local
535 took employees out on an 11-week strike and then
agreed to a 2% cut in pay. [Emphasis in original.]
The union cannot use the law to force hospitals to
agree to any of their demands. But it can and has used
the threat of strike. This is why I am so concerned
about the union getting in at Good Samaritan. The
union’s threat of strike is their ultimate bargaining
weapon. [Emphasis in original.]
An undated ‘‘Good Samaritan Hospital fact sheet’’ was
distributed to the nurses, with the heading, ‘‘There are no
guarantees in collective bargaining — you could just as eas-
ily end up with less as you could more.’’ The fact sheet then
lists some examples of what the nurses put at risk through
collective bargaining, and how such items have been re-
solved in other contracts negotiated by the Union. One exam-
ple, which the General Counsel deems to be violative of the
Act, states that the nurses’ 12-hour shifts are put at risk, as
follows:
807HOSPITAL OF THE GOOD SAMARITAN
11 The Acting Regional Director’s Supplemental Decision states
that specified complaint allegations are ‘‘co-extensive’’ with certain
union election objections, and that the issues raised by the objections
could best be resolved by hearing together with the hearing on the
unfair labor practices. Based on this language, the Respondent ar-
gues that the Union’s objections to the campaign literature of the
Respondent are limited to those four pieces of literature specified in
the complaint, and that the Union may not use any other campaign
literature as a basis for its objections. While the Respondent’s infer-
ential argument is plausible, I conclude, in the absence of any clear
and unambiguous statement to the contrary, that the Acting Regional
Director did not intend to so limit the Union’s use of other campaign
materials in addition to those specified in the complaint.
(AMI Tarzana contract) 12-hour shifts can be elimi-
nated with 60 days notice—the union can do nothing
about it. (Kaiser contract) 12-hour shifts are effective
only until April 1994.
An undated two-page document entitled ‘‘Thoughts About
Unions’’ was distributed by a group referred to as ‘‘Nurses
for Nurses; From Good Sam’s Nurses who do not want
Union.’’ It was posted on the hospital’s bulletin boards. The
document contains the following:
When asked why some employees want a union, they
reply, ‘‘More money.’’ I haven’t heard about anything
else but this reason for a union. I want to say to those
people, ‘‘Wake up and smell the unemployment!’’ I
know of so many companies who are laying off, freez-
ing wages and bonuses. The ‘‘more money’’ people
don’t seem to remember that when Good Sam a [sic]
had the money, they could make up to 10% raise. And
as revenues decreased, the raises unfortunately had to
go down. We are now in a recession of nasty propor-
tions with unwanted results.
In addition, the document deals with the possibility and rami-
fications of a strike: it expresses doubts that doctors would
be able to take over patient care in the event of a strike, and
questions whether true health care professionals could really
walk out on people who need them. Further, the document
contains the following:
And this doesn’t even cover the personal aspects about
going out on strike. Some things to really think about:
a. Could you afford to go on strike?
b. Do you realize that if a strike is called and you
work instead of striking, you will be heavily fined for
everyday you work during that strike?
c. Could you deal with the abandonment of your
work?
d. Could you deal with what may happen if you
cross the picket lines (other than fines?)
In addition to the foregoing literature which, in part, the
General Counsel deems to be violative of the Act, the Union
maintains that other leaflets should be considered as evidence
in support of its election objections.11
A letter to the registered nurses dated April 27, signed by
Dr. Bowers, contains the following:
One of my chief concerns about the current union orga-
nizing effort is SEIU and Local 535’s reputation for
strikes. We have discovered that this union has a secret
48-page ‘‘Strike Manual’’ that explains in detail how to
take employees out on strike. The union admits in this
secret manual that:
‘‘Collective bargaining and the negotiations process
are real only when the union can back up its demands
with a credible threat of strike.’’
No one can predict that a strike will occur at Good
Samaritan, but here is what this union has done:
SEIU unions, like Local 535, have taken thousands
of employees out on 164 strikes in just the last six
years.
Local 535 has taken Kaiser RN’s out on three sepa-
rate strikes and threatened a strike at Tarzana in 1991.
[Emphasis in original.]
Some SEIU unions’ strikes have lasted almost a full
year.
This union is serious about strikes—they even talk in
their ‘‘Strike Manual’’ about how to assist you in ap-
plying for welfare benefits while out on strike. No one
knows what will happen, but I am sure the nurses at
Kaiser were told by this same union not to worry about
strikes—and they have gone out on strike three times.
[Emphasis in original.]
I strongly encourage you to vote NO to this particular
union and its reputation for strikes. Voting NO next
Thursday or Friday is the only way to insure that the
conflict of a strike never occurs here.
An undated Good Samaritan Hospital leaflet entitled
‘‘Facts,’’ states that the SEIU has represented employees at
Kaiser for several years, and has failed to obtain certain
specified contractual items. The fact sheet goes on to state:
Most importantly, since they have failed at the bar-
gaining table, SEIU is preparing to take its members
out on strike.
Confrontation, strikes, diverting patients to other hos-
pitals, threatening everyone’s job security—this is
SEIU! [Emphasis in original.]
Another document, entitled ‘‘Strike Information,’’ contains
nine questions and answers about the how a strike would im-
pact the nurses. It advises them that they would be ineligible
to receive unemployment benefits; that they could be perma-
nently replaced; that their return to work following a strike
would not be automatic if the patient census is down; that
the nurses who work during the strike could face public at-
tacks by the Union; that the Union has taken employees out
on strike before the first contract was negotiated, and the
strike was reported as being violent, with threats of physical
intimidation; that the nurses would have to continue paying
union dues during a strike; and, finally, that they should vote
‘‘NO’’ if they do not want even the chance of a strike.
The evidence shows that most nurses were personally
handed a sheet of paper by their clinical directors, framed
with an elaborately designed border, entitled ‘‘The Hospital
of the Good Samaritan Personal Strike Calculator.’’ Each
such document is individualized with the nurse’s name and
unit, and specifies the total amount of wages he or she would
have lost, based on that nurse’s specific wage rate, had the
nurse gone out on strike at each of four different hospitals
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
where strikes had occurred in the past. Further, the document
specifies for each strike situation the ‘‘Length of time for
you to regain lost wages if the difference in management’s
final offer and the contract settlement were the following:
$0.45/hr; $0.30/hr; $0.15/hr’’; thus, the Personal Strike Cal-
culator demonstrates that it could take years to recoup the
loss in wages resulting from a lengthy strike.
10. The Union’s objection to the Respondent’s use of
Ronald Masson as an election observer
The Union objects to the Respondent’s use of Ronald
Masson, a registered nurse who sometimes works as a ‘‘re-
lief house supervisor,’’ as an election observer. Masson acted
as an observer for 3 hours during one of the polling sessions.
Masson’s name was placed on the eligibility list submitted
by the employer, and his ballot was challenged by the Union.
Masson has been employed by the Respondent since Feb-
ruary 1992. He is a resource nurse on the day shift in the
emergency room. Resource nurses are not supervisors. His
immediate supervisor is the clinical director of the emer-
gency department. Masson testified that he also sometimes
acts as a ‘‘relief house supervisor,’’ and in this capacity he
fills in on an irregular basis if something unforeseen happens
and neither the regular house supervisors nor the regular re-
lief house supervisors are able to work. He spends a very
small percentage of his time in this capacity. As a relief
house supervisor he is stationed in the nursing office and
makes the rounds of the various hospital units to insure that
things are operating smoothly. He has the authority to in-
crease or reduce staffing, as the situation warrants, and may
take immediate disciplinary action if necessary; otherwise, he
makes recommendations regarding discipline or other matters
to higher supervision. In emergency situations he contacts
higher supervision, which individuals are always on call.
C. Analysis and Conclusions
The representation petition was filed on February 25. On
that day, shortly after Clinical Director Donevant had been
summoned to an emergency meeting regarding the Union,
she returned to the CCU unit and counseled Susette Nacorda
for permitting her friends from another unit to talk with her
or wait for her to go on break with them, as they had done
on previous occasions that week. I credit the testimony of
Nacorda and find that Donevant told her to tell her friends
from CSU (the cardiothoracic surgical unit) to stop coming
to see her in CCU, and that if they continued to do so both
Nacorda and her friends could be in a lot of trouble. Further,
I find that Donevant went on to say, ‘‘And if they don’t stop
coming, we could be terminated and the Union can’t do any-
thing for us, to protect us.’’
I do not credit Donevant’s testimony that she could not
have counseled Nacorda on February 25. Nacorda appeared
to have a vivid recollection of the incident, and recalled that
it occurred on the day she presented the petition to
Vosburgh. Donevant’s testimony, premised on her alleged
recollection of a sequence of events, is not convincing under
the circumstances.
I credit the testimony of nurses Nacorda and Gles
Gardoce-Padeo and find that it had been a common occur-
rence for nurses to engage in the practices which Donevant
thereafter sought to prohibit. I do not credit Donevant’s
uncorroborated testimony that such practices had always
been contrary to established rules; nor do I credit her denial
that she mentioned the possibility of termination should
Nacorda and her friends continue to meet in CCU as they
had done in the past.
I find that Donevant was well aware of Nacorda’s
prounion sympathies as a result of her outspokenness and the
fact that she had worn a union button for several days prior
to February 25. In this regard, I find no merit in the Re-
spondent’s position that union buttons were not introduced
until February 25 or thereafter. As there appears to be no le-
gitimate reason for Donevant’s conduct, I find that the coun-
seling and warning of termination to Nacorda was motivated
by a desire to limit the extent of Nacorda’s union activity
and the activity of her prounion friends. By such conduct, I
find that the Respondent has violated Section 8(a)(1) of the
Act as alleged.
It appears from the documents introduced into evidence
that approximately 17 nurses were selected to occupy the po-
sition of unit-based educator for their respective units. It is
clear from the documents and from the testimony of Lima
that the unit-based educators began functioning in their new
positions on April 1, the day they attended an all-day ori-
entation and training session and were given their first as-
signment, namely, to create a needs assessment tool for their
respective units.
It is clear that the new position was one which required
some greater degree of experience and nursing expertise, and
that the nurses who were selected for the position were to
assist in the orientation and training of new nurses and the
continuing education of nurses in their units. Further, while
there was to be no immediate increase in pay, the unit-based
educators’ duties required that they perform functions other
than the usual patient care functions approximately one-third
of the time, and that their future evaluations would reflect
the responsibility they had undertaken as unit-based edu-
cators. Accordingly, appointment to this newly created posi-
tion clearly affected various work-related activities and con-
stituted an immediate and significant change in the nurses’
conditions of work, with new and challenging job opportuni-
ties and the possibility of attendant wage increases in the fu-
ture. Thus, I find no merit to the Respondent’s apparent ar-
gument that the position of unit-based educator was an insub-
stantial change from the nurses’ customary role of caring for
patients.
The abundant and detailed documentary evidence which
demonstrates that the position of unit-based educator was en-
thusiastically accepted and endorsed by supervisors and man-
agers with significant authority, and that the program was in
fact implemented on April 1, belie Vosburgh’s attempt to ex-
plain away the documents and events as being premature and
unauthorized, and beyond the authority of Davidson; nor did
the Respondent introduce any documentary or testimonial
evidence supporting Vosburgh’s assertion that the position of
unit-based educator had to be placed on hold until September
for budgetary reasons. Indeed, Vosburgh testified that, with
regard to unit-based educators, there were ‘‘budgeted posi-
tions that were unfilled’’ and that ‘‘we had dollars for posi-
tions, and the way we wanted to allocate them was to have
an educator for each of the specialties.’’
Further, it is significant that Vosburgh did not see fit to
discipline Davidson in any manner for such an alleged unau-
809HOSPITAL OF THE GOOD SAMARITAN
12 I also conclude that McGann’s April 6 comment to Lima and
Currie to the effect that it was her belief that the program was being
discontinued because of the union activity constitutes an independent
violation of Sec. 8(a)(1) of the Act. Similarly, I find that the state-
ment Vosburgh made to the entire group of unit-based educators
sometime later is also violative of the Act. I find the evidence insuf-
ficient to conclude that the program was discontinued because of
Lima’s testimony on behalf of the Union at the representation hear-
ing in March; thus, I do not find an 8(a)(4) violation, as alleged.
thorized, costly and time-consuming process of planning for,
selecting, and training a complement of 17 nurses to perform
unit-based educator duties, and for taking them away from
their regular patient care duties. Moreover, Davidson alleg-
edly did all these things in direct disregard of Vosburgh’s
specific and repeated admonitions to refrain from such activi-
ties. Under the circumstances, Vosburgh’s failure to take
some significant disciplinary action against Davidson for
gross insubordination provides convincing evidence that
Vosburgh’s entire account of the unit-based educator matter
is not to be credited, and that it was for other than budgetary
reasons that the then ongoing program of unit-based edu-
cators was discontinued.
It is significant that Vosburgh decided to put the program
on hold within several hours after speaking with Lima in the
cafeteria. Lima was wearing a union button at the time. Fur-
ther, she had been one of the 25 nurses who presented
Vosburgh with a petition for recognition on February 25, and
had testified on behalf of the Union in the earlier representa-
tion hearing in March. Thus, it appears that perhaps the Re-
spondent did not want prounion nurses to be placed in posi-
tions which would provide them with greater opportunities to
influence their coworkers. Indeed, Clinical Director McGann
told Lima and Currie, after receiving the e-mail message
from Vosburgh, that she thought the program was being
placed on hold because of the union activity in the hospital.
In any event, the program was admittedly discontinued be-
cause of the impending union election, as Vosburgh so ad-
vised the assembled unit-based educators.
The law is clear that it is unlawful to discontinue a pre-
existing benefit for antiunion reasons; and an employer must
proceed with its business decisions as if the union were not
in the picture. The unit-based educator program was clearly
in the process of being implemented prior to the February 25
date of the filing of the representation petition. Thus, up to
that point, the announcement for the new positions had been
circulated, the applicants had applied, and by early February
the interviewing process had been conducted. Thereafter, fol-
lowing the filing of the petition, the Respondent continued
the process by awarding the positions to 17 individuals, by
holding an orientation and training session on April 1, and,
finally, by taking the unit-based educators from their regular
patient care assignments and assigning them entirely different
unit-based educator duties during one shift per week.
Thus the Respondent was not privileged to discontinue the
program and, in effect, to rescind the benefits that had pre-
viously been conferred on the unit-based educators. As the
Board stated in Great Atlantic & Pacific Tea Co., 166 NLRB
27, 29 fn. 1 (1967):
As a general rule, an employer, in deciding whether to
grant benefits while a representation election is pend-
ing, should decide that question as he would if a union
were not in the picture. On the other hand, if an em-
ployer’s course of action is prompted by the union’s
presence, then the employer violates the Act whether he
confers benefits or withholds them because of the
union. [Citations omitted.]
See LRM Packaging, 308 NLRB 829, 830 (1992);
Laidlaw Waste Systems, 307 NLRB 52 (1992); Gerkin
Co., 279 NLRB 1012 (1986). By such conduct I find
that the Respondent has violated Section 8(a)(1) and (3)
as alleged.12
The testimony of Lima regarding Clinical Director
McGann’s remarks at the April 27 NICU resource meeting
is somewhat ambiguous. Thus, Lima testified that McGann
may have stated both that the positions of assistant clinical
director would be created ‘‘if the Union was not voted in,’’
and that ‘‘the positions would be created once the union
question was resolved’’; and at the conclusion of her testi-
mony, it appears that Lima impliedly acknowledged that
McGann merely ‘‘indicated’’ rather than specifically said
that the positions would be created if the Union were not
voted in. There is no corroboration of Lima’s testimony, and
three other nurses who attended the meeting testified that the
Union was not mentioned. Under the circumstances, even if
the Union was mentioned, McGann’s remarks at this meeting
are of sufficient doubt to preclude my finding of the alleged
violation. Therefore I shall dismiss this allegation of the
complaint.
The complaint alleges that Dr. Bowers made several state-
ments and/or threats violative of Section 8(a)(1) of the Act
during his May 1 remarks to about 10 assembled nurses.
Thus, it is specifically alleged that he threatened employees
with the closure of the facility if the Union were voted in;
that he told employees that the Respondent would not nego-
tiate with the Union or work with the Union, thereby indicat-
ing the futility of voting for the Union; and that he told em-
ployees it would be necessary to strike in order to obtain bar-
gaining demands.
It is significant that Bowers held 22 such meetings, many
of which, it may be reasonably presumed, were attended by
union supporters; yet there is no contention that Bowers
made any statements violative of the Act in any meeting
other than the May 1 meeting. Further, it appears unlikely
that Bowers would make such blatantly unlawful statements
as attributed to him by Breganza and Huyck in the presence
of nurses who were demonstrably union supporters. Finally,
a careful comparison of the testimony of Breganza and
Huyck demonstrates that their testimony was not entirely
consistent: for example, Huyck testified, at one point, that
Bowers said the nurses would have to strike even to get the
Respondent to the bargaining table, while Breganza did not
attribute such a statement to Bowers. And Huyck’s testimony
was sometimes internally inconsistent: thus she maintains
that Bowers said that he wanted to keep the hospital operat-
ing and did not want it to close, but also said that maybe
the hospital should be closed. Assuming that Bowers said
both of these things at various points, such ambiguity does
not appear to amount to a threat to close the facility if the
Union is voted in. While it appears that Breganza and Huyck
were forthrightly attempting to relate their interpretation of
Bowers’ remarks, I credit the accounts provided by
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 See Clark’s Discount Department Stores, 168 NLRB 273, 278
(1967), enfd. in pertinent part 407 F.2d 199 (6th Cir. 1969).
14 The record contains much evidence regarding Dr. Bowers’ con-
duct. The Respondent takes the position that such conduct never oc-
curred or that if it did, it was committed by some unidentified indi-
vidual other than Bowers. In this regard, the Respondent introduced
photographs of the premises with foliage and shadows obscuring the
hospital’s main entrance, and the General Counsel introduced photo-
graphs taken from similar vantage points tending to demonstrate that
individuals near the hospital’s entrance could be readily identified
from across the street, where the union supporters had congregated
on May 3. I credit the various individuals who identified Bowers as
being the individual involved in some of the searches; indeed, one
of them was within 3 or 4 feet of Bowers at the time he was en-
gaged in such activity.
15 Regarding the encounter between a security guard and Billy
Jean Stull, it appears that Vosburgh, who was standing nearby and
questioned Stull about the matter, immediately told Stull that the
guard should not have done what he did and that Vosburgh would
take care of it. Accordingly, I find that Vosburgh effectively dis-
sipated the coercive effect of the guard’s conduct on Stull.
McClarity and Gentle regarding the specific aforementioned
complaint allegations as being, in essence, the more reliable,
and find that Bowers did not make the statements alleged
herein as being violative of the Act. Accordingly, I shall dis-
miss these allegations of the complaint.
The events on May 3 are curious in light of the fact that
there had apparently been no prior interference with the right
of the nurses to disseminate union literature within the hos-
pital. Apparently, May 3 was the first time the Union had
distributed materials to nurses outside the hospital premises,
and, such unanticipated activity prompted the Respondent’s
spontaneous reaction. What the Respondent was looking for
in the boxes of fortune cookies must remain a matter of
speculation, as the Respondent proffered no explanation for
its conduct. Regarding the interference with the May 3 union
activity by the security guards, the Respondent called no se-
curity guards to deny that they stopped nurses on hospital
premises as they were coming to work and searched their
bags and fortune cookie boxes; told nurses that they would
be written up if they brought union flyers into the hospital;
and remained across the street from the hospital in close
proximity to the ongoing union activity in order to observe
such union activity. On the next day, May 4, the guards ap-
parently discontinued such searching and surveillance activ-
ity, and there were no similar incidents.
I find no merit in the Respondent’s contention that the
guards were not agents of the Respondent and simply acted
in an unauthorized manner on their own volition; the guards
are employed by the Respondent, and there is no credible
evidence that their conduct was unauthorized.13 Indeed, Dr.
Bowers, the hospital’s president, was asked to observe such
a search by a security guard, and not only did not instruct
the guard to discontinue such searches, but did not even ask
the guard why he was searching nurses’ belongings. Further,
I do not credit the denials of Bowers, and find that he, too,
engaged in similar activity.14 I find that by such conduct the
Respondent has engaged in unlawful surveillance, threats,15
and searches of employees as they were entering the prem-
ises on May 3, and that such conduct by the Respondent had
an inhibiting effect on lawful union activity. Accordingly, I
find that by such conduct the Respondent has violated Sec-
tion 8(a)(1) of the Act as alleged. See Sands Hotel & Casino,
306 NLRB 172 (1992); Reeves Southeastern Corp., 256
NLRB 574, 578 (1981); Southern Moldings, Inc., 255 NLRB
839, 851, 852 (1981), enfd. 728 F.2d 805 (6th Cir. 1984);
Intermedics, Inc., 262 NLRB 1407, 1415 (1982), enfd. 715
F.2d 1022 (5th Cir. 1983); Russ Togs, Inc., 253 NLRB 767,
775–776 fn. 6 (1980); Woodland Molded Plastics Corp., 250
NLRB 169 (1980); Arthur Briggs, Inc., 265 NLRB 299 fn.
2 (1982).
I shall dismiss the allegation of the complaint regarding
the May 3 Vosburgh-Yui-Breganza incident. Breganza, who
was off duty on the day in question, approached Vosburgh
and Yui on hospital premises, and injected herself into a pri-
vate conversation which did not concern her. She was repeat-
edly asked to leave and to conduct her union business across
the street, and did not do so. Accordingly, I find that
Vosburgh’s several requests that she leave, and the security
guard’s actions in escorting her across the street, under the
circumstances, do not constitute interference with legitimate
union activity.
The April 22 discussion between Eilat and Clinical Direc-
tor Tolentino appears to be no more than a frank disagree-
ment regarding their respective positions relative to the fea-
sibility of going from a 12-hour shift to an 8-hour shift.
Tolentino was implying that if this was being done at Kaiser
Hospital, where the nurses were represented by the Union, it
would also be feasible for the Respondent. Eilat disputed
this. It does not appear that the remarks of Tolentino were
couched in terms of a threat. I shall therefore dismiss this
allegation of the complaint.
The May 27 warning of termination by Assistant Vice
President Barbara Brown to Efren Devera occurred several
weeks after the election, and is unconnected with the union
campaign. It is alleged that Devera received such a warning
because of his ‘‘union and/or protected concerted activity.’’
The concerted activity involved here, according to the Gen-
eral Counsel, is Devera’s casual remark to Marki that he had
volunteered to be canceled on May 26. This apparently upset
Marki, who had been canceled, and she thereupon voiced her
displeasure to her supervisor. As a result, Devera was given
a warning for, in Brown’s words, ‘‘add[ing] to more trouble
in an already troubled unit.’’
It is clear that the admittedly casual conversation between
Devera and Marki was not intended to constitute concerted
activity for the purpose of changing the hospital’s long-estab-
lished cancellation practice or to otherwise affect the em-
ployees’ wages, hours, or working conditions. Marki, who is
the one who did the complaining to her supervisor, was not
disciplined or reprimanded. While, under the circumstances,
the warning to Devera may have been unwarranted, the Gen-
eral Counsel has not demonstrated by the citation of any au-
thority that such conduct by Devera and/or Marki is con-
certed activity within the meaning of the Act, or that the
warning by Brown is violative of the Act.
The complaint alleges that four campaign documents, de-
tailed above, contain statements violative of Section 8(a)(1)
of the Act. Thus, it is alleged that the April 15 letter
impliedly threatens employees with loss of benefits and/or
employment; that the April 22 letter impliedly threatens em-
ployees with loss of benefits and/or employment; that the
document entitled ‘‘Hospital of the Good Samaritan Fact
Sheet’’ impliedly threatens employees with loss of benefits;
811HOSPITAL OF THE GOOD SAMARITAN
16 It is conceivable, of course, that incessant references to strikes
and their consequences could become tantamount to ‘‘brainwash-
ing,’’ but that is not this case.
17 In its brief, the Union has withdrawn another election objection
pertaining to the Respondent’s alleged untimely or deficient posting
of the Notices of Election.
18 Masson filled in as relief supervisor on about 25 occasions with-
in the 9 months preceding the May 1993 election.
19 Of approximately 575 eligible votors, 554 ballots were cast, of
which 277 were cast against the Union, 236 were cast for the Union,
41 ballots remained challenged, and 1 ballot was void.
and that the document entitled ‘‘Thoughts About Unions’’
impliedly threatens employees with job loss. I do not agree.
The General Counsel, in support of these complaint allega-
tions, cites the following cases: Overnight Transportation
Co., 296 NLRB 669 (1989), enfd. 938 F.2d 815 (7th Cir.
1991); Phillips Industries, 295 NLRB 717 (1989); Harrison
Steel Castings Co., 293 NLRB 1158 (1989); Richlands Tex-
tile, Inc., 220 NLRB 615 (1975); Dean Industries, 162
NLRB 1078 (1967); and Star Kist Samoa, Inc., 237 NLRB
238 (1978).
The campaign propaganda and factual circumstances in
each of the foregoing cases is clearly distinguishable from
the Respondent’s campaign propaganda here. In the cited
cases the employer, either explicitly or, more subtly, by
strong implication, conveyed the message, either verbally or
in writing, that it would fail and refuse to bargain in good
faith with the union, or would shut down its plant, or, as a
result of other serious unfair labor practices, would not hesi-
tate to do something else that would make a strike or loss
of benefits inevitable. With such unlawful threats as a basis
or predicate, repeated references to a strike and its con-
sequences on the employees become unlawful. Without such
a predicate, the employer’s emphasis of the mere possibility
of a strike or loss of benefits, no matter how many times re-
peated, and regardless of the number of variations on these
themes, 16 does not appear to be unlawful. I find that the
statements of the kind contained in the above-described let-
ters and leaflets disseminated by the Respondent during the
election campaign, under the circumstances here, constitute
permissible campaign propaganda protected under Section
8(c) of the Act, and do not constitute unlawful threats of loss
of jobs or benefits. See Clark Equipment Co., 278 NLRB
498 (1986); Morristown Foam & Fibre Corp., 211 NLRB 52
(1974); Histacount Corp., 278 NLRB 681 (1986); Computer
Peripherals, Inc., 215 NLRB 293 (1974).
Thus, in Morristown Foam & Fibre Corp., supra, the em-
ployer distributed 12 letters, leaflets, and handouts during the
critical preelection period. The Board stated as follows:
The Regional Director found that the Employer’s lit-
erature made continued reference to violence, disaster,
threats to kill, loss of jobs, plant closure, and long,
costly strikes, and that such a constantly recurring
theme created an atmosphere of fear and a belief among
the employees of the inevitability of strikes and loss of
jobs and ultimately plant closure if they selected the Pe-
titioner as their bargaining representative, thereby pre-
venting them from exercising a free and untrammeled
choice in the election.
Contrary to the Regional Director, we do not find
that the literature distributed by the Employer exceeds
the permissible limits of electioneering propaganda or
that the employees were not capable of evaluating the
literature as electioneering propaganda. Accordingly, we
would not find the employees were prevented from ex-
ercising a free and untrammeled choice in the election.
In support of its election objections, the Union maintains
that certain additional pieces of campaign literature, coupled
with the four pieces of literature advanced here by the Gen-
eral Counsel as being violative of the Act, demonstrates to
the employees the inevitability of a strike, and therefore con-
stitutes objectionable conduct. In support of this argument,
the Union cites the following cases: Fred Wilkinson Associ-
ates, 297 NLRB 737 (1990); Thomas Products Co., 167
NLRB 732 (1967); Turner Shoe Co., 249 NLRB 144 (1980).
These cases are also distinguishable from the instant facts.
While the additional campaign literature, detailed above,
contains still more variations on the strike theme, it also ap-
pears to lack the necessary predicate of a clear threat or
strong implication of the inevitability of a strike. Rather, the
statements contained in such literature convey only the possi-
bility of a strike, and go on to discuss the effect that the
mere threat of a strike could have on the Respondent’s oper-
ations, and the consequences of a strike on the Respondent’s
employees. I conclude that these repeated references to
strikes, without more, constitute permissible campaign propa-
ganda. Therefore, I shall recommend that this objection be
overruled.
Regarding the Respondent’s use of Relief House Super-
visor Ronald Masson as an election observer, it is rec-
ommended that this objection be overruled.17 In Canonsburg
General Hospital Assn., 244 NLRB 899 (1979), a case di-
rectly in point, the Board found that a relief supervisor with
the same duties and responsibilities as Masson, who filled in
on an irregular basis when the regular and regular relief su-
pervisors were unavailable, as is the case with Masson,18 was
not a supervisor within the meaning of the Act and was eligi-
ble to vote in the election even though the individual ‘‘pos-
sessed the same authority over the employees as that of a
nursing supervisor.’’ There appear to be no factual distinc-
tions here which would warrant a different conclusion.
11. Conclusions regarding the election objections
I have found that during the critical preelection period
commencing with the date of the filing of the representation
petition, February 25, until the date of the election, May 6,
the Respondent committed various unfair labor practices.
Namely, it ‘‘counseled’’ and threatened termination of an
employee for meeting with other employees on their breaks
in an effort to inhibit their discussions about the Union; it
discontinued the unit-based educator program, already in
progress, and blamed such discontinuation on the advent of
the Union; and it engaged in unwarranted searches of em-
ployees and surveillance of their union activities as they were
entering work, and threatened them with reprimand if they
brought union material into the hospital.
Given the nature of these unfair labor practices together
with the number of employees who were directly affected or
who may have been indirectly affected by them, in compari-
son with the relative closeness of the election results,19 I rec-
ommend to the Board that the election be set aside and that
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
21 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
a new election be conducted. Cf. Clark Equipment Co., supra
at 505.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and a health care institution within the meaning of Section
2(14) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has violated the Act as specified above.
4. The Respondent has not engaged in any other violations
of the Act.
5. The unfair labor practices found here constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The election objections filed by the Union should be
sustained to the extent found here, and the previously con-
ducted election should be set aside and a new election di-
rected.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(1) and (3) of the Act, I recommend that it be required
to cease and desist therefrom and from in any like or related
manner interfering with, restraining, or coercing its employ-
ees in the exercise of their rights under Section 7 of the Act.
Affirmatively, it shall be required that the Respondent re-
institute the unit-based educator program which it discon-
tinued after the advent of the Union. Moreover, the Respond-
ent shall be required to post an appropriate notice, attached
hereto as ‘‘Appendix.’’
Based on these findings of fact and conclusions of law and
on the entire record, I issue the following recommended20
ORDER
The Respondent, the Hospital of the Good Samaritan, Los
Angeles, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Counseling and warning employees to discontinue the
established custom of visiting each others’ units during
breaktime in an effort to limit their union activity.
(b) Discontinuing the established and functioning unit-
based educator program because of the advent of the Union.
(c) Engaging in surveillance of employees’ union activi-
ties, searching their belongings for union material, and warn-
ing them that they would receive reprimands for bringing
such material into the hospital.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reestablish the unit-based educator program and re-
sume its functioning consistent with the prior implementation
of the program.
(b) Post at its facility copies of the attached notice marked
‘‘Appendix.’’21 Copies of the notice, on forms provided by
the Regional Director for Region 31, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
Further, it is recommended that the Board set aside the
election previously conducted and that a second election be
directed.